June 28, 2004 Here are today's supreme court announcements. The court issued seven decisions. The court did not grant cert. in any cases. I hope to get summaries for all the cases up by the end of the week (unfortunately, my workload is interfering with my blogging, as well as my golf. I need to talk to somebody about this). COLORADO
SCHOOL VOUCHER PROGRAM VIOLATES THE STATE CONSTITUTION. The supreme
court in a 4-3 decision (Justices Kourlis, Coats and Rice dissenting)
held that the Colorado Opportunity Contract Pilot Program CRS§§
22-56-101 to -110, which takes state and local education dollars, assigns
them to a particular student who qualifies, and allows that student
to expend the dollars on education at identified nonpublic institutions,
violates the local control provisions of article IX, section 15 of the
Colorado Constitution. Owens
v. June 25, 2004 The supreme court will issue seven decisions on Monday. I hope to get those summarized Monday but my workload may interfere for much of next week. Here are the cases the court will be deciding: Garhart v. Columbia/HealthOne Taylor v. Canterbury In Re Jahn Cassels v. People Fry v. People Owens v. Breazell In the Matter of Trupp June 24, 2004 Here are today's case announcements from the court of appeals. The court issued only unpublished decisions. June 23, 2004 The court of appeals' list of cases to be issued tomorrow can be found here. The court will issue only unpublished decisions. June 22, 2004 The supreme court's announcements for Monday, June 21, 2004 are here. The court issued one decision, summarized below. The court did not grant cert. in any cases. Where redemption actually occurs upon payment of the required redemption amount to the public trustee, redeeming party becomes statutorily entitled to a certificate of redemption (C.R.S. § 38-38-303) and its right to redeem cannot be extinguished by any subsequent satisfaction of the judgment. Wyse Financial Services, Inc. v. National Real Estate Investment, LLC Here is the court of appeals oral argument calendar for August 2004. Finally, I've
summarized last Thursday's published court of appeals decisions: C.R.S. § 42-4-808 does not impliedly eliminate the defense of comparative negligence. That section requires drivers to yield the right of way to disabled pedestrians, directing drivers to a complete stop and to take necessary precautions to avoid an accident before proceeding. While the violation of the statute is a traffic offense, it does not eliminate in civil actions defenses available to the driver of a vehicle. McCall v. Meyers Jury verdicts finding defendant guilty of conspiracy and attempt to commit first degree murder after deliberation and with extreme indifference are legally inconsistent. Murder after deliberation is committed only if the perpetrator's malice is directed toward a single, identifiable individual, while extreme indifference murder requires proof of malice against human life "generally," a "universal malice" not directed against a single individual. Therefore, if the evidence establishes that a perpetrator possessed the specific intent to cause the death of the person whom he killed, then the death of that individual can support a conviction under the murder after deliberation statute, but cannot support a conviction under the extreme indifference murder statute. People v. Candelaria A trial court may not deny a defendant's challenge for cause to a prospective juror who has expressed bias based solely upon its belief that the prospective juror is merely seeking to avoid jury service. The court noted that a trial court must receive some assurance from a prospective juror that he or she is willing and able to accept the basic principles of criminal law and to render a fair and impartial verdict based upon the evidence admitted at trial and the court's instructions. Otherwise, a prospective juror who seeks to avoid jury service because of work-related concerns or a planned vacation may nevertheless serve on a jury although he or she is biased against the defendant. Therefore, while it is appropriate for a trial court to consider whether a prospective juror is seeking to avoid jury service when considering a challenge for cause, that basis, standing alone, is insufficient when a prospective juror makes a clear statement of bias. People v. Wilson Admission of videotaped interview (by police officer) of child who defendant allegedly sexually-assaulted violated defendant's constitutional right to confront and requires reversal of his conviction. The court held that the videotaped statement given by the child was "testimonial" under the Crawford v. Washington formulation of that concept. In so concluding, the court rejected the People's argument that the statement could not be considered testimonial because it was not made during the course of police interrogation and because a seven-year-old child would not reasonably expect his statements to be used "prosecutorially." Because the defendant had no opportunity to cross-examine the child regarding the statements he made to the interviewing officer, introduction of the child's statements to the interviewer violated the defendant's right to confront the witnesses against him. People v. Vigil By enacting the specific offense of defrauding an innkeeper, C.R.S. § 12-44-102, General Assembly did not intend to abrogate prosecutors' discretion to charge defendants with theft under C.R.S. § 18-4-401(1). People v. Sharp Pilot's claims for breach of contract, wrongful discharge, and intentional interference with contract do not relate to airline's prices, routes, or services and therefore are not preempted by the Airline Deregulation Act or the Whistleblower Protection Program. Nokes v. Aspen Aviation, Inc. Agreement to apportion fees upon the departure of an attorney from a law firm does not violate Colo. RPC 1.5(d), and therefore is not void or unenforceable. The court noted that Colo. RPC 1.5 has no application to the division of fees within a firm. Norton Frickey, P.C. v. James B. Turner, P.C. Where absence of desired terms or conditions can constitute legal prejudice to defendant, defendant may appeal voluntary dismissal under C.R.C.P. 41(a)(2), if dismissal is entered (1) over the defendant's objection, (2) without imposing terms and conditions that the defendant requests, or (3) without making allowances for the defendant's counterclaims. FSDW, LLC, v. First National Bank Substitution of parties under C.R.C.P. 25(c) is a matter within the trial court's discretion, but in determining whether an entity is a transferee of interest, the trial court must apply the law to the facts. Because the trial court gave no explanation for its denial of a motion for substitution, the court of appeals could not review the trial court's decision, and remand was necessary. Under the circumstances of the case, the court of appeals required the trial court on remand to conduct an evidentiary hearing. Liberty Mutual Fire Ins. Co. v. Human Resources Companies, Inc. Claim against estate by Colorado Department of Health Care Policy and Financing was valid, despite the fact that the original notice of claim was defective, because the claim itself was filed within the one-year statutory bar period and the amended notice gave the heirs and other affected individuals a reasonable opportunity to apply for a hardship waiver. Estate of Kochevar In determining whether the best interests standard or the endangerment standard applies to a modification of parenting time, court may have to inquire into both the quantitative and the qualitative aspects of the proposed change to parenting time, as well as the reason or reasons advanced for the change. Under the facts of this case, however, because the record presented neither a qualitative change in the nature of father's parenting time (such as a requirement that visitation be supervised), nor a reason for the change that implicates the children's safety, the trial court properly applied the best interests standard. Marriage of West Admission of the videotape of investigating officer's "forensic interview" of four-year-old alleged victim of sexual assault violated juvenile's Sixth Amendment right of confrontation. The interview was "testimonial" under Crawford v. Washington, and therefore was inadmissible at trial. Along with People v. Vigil (summarized above), this is the second Crawford case the court of appeals decided in this area last Thursday. People in the Interest of R.A.S. Prematurely-filed notice of appeal does not divest the trial court of jurisdiction to consider further substantive issues related to the merits of the case. Therefore, the trial court had jurisdiction to conduct the second phase of trial during the interval between the filing of a premature notice of appeal and the dismissal of that appeal by the court of appeals. Woznicki v. Musick June 18, 2004 Here are yesterday's court of appeals announcements. The court issued 13 published decisions. You can see the decisions by clicking on the case name. I had hoped to get summaries up today, but work is taking me away from my blogging duties today. I will get the summaries up next Tuesday, along with summaries of any decisions the supreme court issues on Monday. I won't be able to post on Monday because I will be playing a Special Olympics charity golf tournament on Monday. Good golf for a good cause. Check back on the afternoon of June 22 and you'll have more case summaries than you'd like. And as of 10:25 a.m. (MDT), Phil Mickleson is leading the U.S. Open (-5). McCall
v. Meyers June 16, 2004 The list of cases the court of appeals will announce tomorrow is here. The court will issue 13 published decisions and a bunch of unpublished decisions. I will try to summarize the published decisions tomorrow. But since I will be out of the office (doing nothing fun, I assure you), I may be tardy in posting. June 14, 2004 Judge Kapelke to step down. Judge Kapelke has decided not to stand for retention for his seat on the court of appeals. His term expires on January 11, 2005. The Supreme Court Nominating Commission will meet on August 10 and 11 to interview and select the three finalists for the position. Governor Owens will then select one of the three for appointment to the court. Applications for the position are due July 16, 2004. For more information click here. Today's supreme court announcements are here. The court issued five decisions and granted cert. in one case. Upon termination of a disability trust, a trustee may use the corpus of the trust to pay state and federal taxes before the state is reimbursed for medical assistance rendered to the beneficiary. The court noted that this construction of Colorado's disability trust statute, C.R.S. § 15-14-412.8, is consistent with the language of the statute, the federal enabling act, the applicable federal guidelines, as well as state and federal tax law. Stell v. Boulder County Dep't of Soc. Serv. CRS § 1-11-203.5, which sets out the exclusive procedure for contesting ballot titles in local elections and creates a twenty-day process for the court to hear complaints about the form or content of a ballot title and to correct any ballot titles whose form or content do not conform to state law, is constitutional. Therefore, challenges to a ballot title that did not comply with the statute's deadlines for filing such challenges were time-barred. The court rejected the argument that § 1-11-203.5 violated TABOR (article X, section 20 of the Colorado Constitution). The court agreed that § 1-11-203.5 cannot and does not time-bar constitutional challenges to the substance of a ballot issue or ballot question, but held that the statute permissibly limits challenges based on the form or content of the ballot title. Cacioppo v. Eagle County Sch. Dist. A criminal defendant's direct appeal or action for postconviction relief does not toll the statute of limitations for the defendant's related legal malpractice action. The supreme court concludes that a defendant must file the malpractice action within two years of discovering the cause of action and the resulting injury, and may seek a stay pending the resolution of the criminal case. Justice Bender did not participate. Morrison v. Goff CRS § 38-1-114(2)(d), which requires the trial court to reduce a landowner's compensation for property taken by the amount of special benefits to the remaining property, is not unconstitutional. The court held that the statute does not conflict with the just compensation guarantee of article II, section 15 of the Colorado Constitution. The court reasoned that special benefits are a valid form of compensation under article II, section 15, and therefore just compensation is not synonymous with a cash payment. Justice Kourlis, the lone dissenter, concluded, "Article II, Section 15 of the Colorado Constitution demands that a landowner whose property is condemned receive 'just compensation' for that property. Deducting from that payment some amount attributable to intangible benefits that may inure to a separate piece of property violates that guarantee of just compensation. Accordingly, in my view, section 38-1-114(2)(d), 10 CRS (2003), is unconstitutional on its face and as applied in this case." E-470 Public Highway Auth. v. Revenig Proposal to divert water from creek at its decreed points of diversion and, before applying that water to a beneficial use or placing it into a decreed place of storage, to return it by ditches to the creek, for subsequent removal further downstream, would not add to the creek any water that was not already there and would clearly have no effect on the natural course of the creek. Therefore, the water subject to downstream removal would continue to flow along the existing course of the creek at the undecreed points proposed for its removal, whether or not it were briefly detoured at an upstream location. Under these circumstances, the proposed downstream takings constitute diversions within the meaning of the Water Right Determination and Administration Act of 1969 and cannot benefit from the priorities of existing water rights without a change of those rights. Trail's End Ranch, LLC v. Colorado Div. of Water Resources The court granted cert. in Cary v. United of Omaha Life Ins. Co., to address the following questions:
Whether the court of appeals correctly interpreted Tom Cary’s health insurance plan as excluding coverage for injuries sustained by his fourteen-year-old daughter when she shot herself because she was suffering from a biologically based major depressive episode.
Whether a brochure or the draft of a new Summary Plan Description which purports to exclude coverage can trump a previously published and distributed Summary Plan Description which contains no such exclusion even though the draft Summary Plan Description had not been distributed to insureds. The court of appeals' decision in Cary is here.
June 10, 2004 Here are today's court of appeals announcements. The court issued only unpublished decisions. June 7, 2004 Today's supreme court announcements are here. The court decided two cases today and granted cert. in two others. CRS§ 13-10-117, which sets a ten-day deadline for appealing the entry of a municipal court judgment, governs the time for appeal only from municipal courts not of record. For municipal courts of record, CRS§ 13-10-116(2), Colorado Municipal Court Rule 237, and Crim. P. 37 all combine to provide a thirty-day timeframe within which to file an appeal. Because the Petitioner's conviction was entered by a municipal court of record, he had thirty days to appeal. Since his notice of appeal was filed within thirty days following entry of the judgment of conviction, the district court erred in dismissing Petitioner's appeal as untimely. Normandin v. Town of Parachute Defendant was not in custody for Miranda purposes and therefore his statements should not have been suppressed. In this interlocutory appeal by the People, the supreme court concluded that in finding a 17-year-old juvenile to be in custody, the district court relied almost exclusively, and erroneously, on the subjective intent of the officers that contacted the juvenile. The supreme court held that under the objective test for establishing custody-whether a reasonable person in the suspect's position would consider himself significantly deprived of his liberty-the juvenile was not in custody. People v. Howard The court granted cert. in these cases: Washington County
Bd. of Equalization v. Petron Dev. Co., addressing these
issues: People v. Simonds,
addressing this issue: United States Supreme Court denies cert. in Colorado redistricting case. Chief Justice Rehnquist, joined by Justices Scalia and Thomas, dissented from the denial. Click here for the dissenting opinion. June 4, 2004 The supreme court will issue two decisions on Monday, Normandin v. Parachute and People v. Howard. I'll post summaries on Monday. The Normandin case is an appeal from a district court decision, and addresses this jurisdictional issue: Whether a notice of appeal from a Colorado Municipal Court of Record must be filed with the Colorado District Court within either ten days or thirty days. I have no information on the Howard case. SCOTUSBlog recently had this interesting post discussing the cert. petition pending in the Colorado redistricting case (Colorado General Assembly v. Salazar, U.S. Supreme Court No. 03-1082). It will be interesting to see if the Court weighs in on this case (or other state redistricting decisions for that matter). But I stand by my original prediction that the Court will deny cert. SCOTUSBlog also had this post on the Texas redistricting case. June 3, 2004 Here are today's announcements from the court of appeals. The court issued seven published decisions, summarized below. Declaratory judgment actions may be filed to determine the existence of, or rights under, an oral contract. Berenergy Corp. v. Zab, Inc. To obtain appellate review of a trial court's denial of a motion for severance, the defendant must renew the motion during the trial, or the objection is waived. The court also held that a DUI conviction merges with conviction for aggravated driving after revocation prohibited (DARP) because the offense of aggravated DARP under C.R.S. § 42-2-206(1)(b)(I) requires proof of DUI as an element. People v. Carlson CRS§
18-1.3-401(8)(a)(IV) applied to defendant's sentence for unlawful use
of marijuana in a detention facility; therefore, minimum sentence that
could be imposed was fifteen months. Defendant cannot be convicted for both possession of an illegal weapon, CRS§ 18-12-102(4), and possession of a weapon by a previous offender, § 18-12-108(1), because the offenses merge. The court also held that defendant's sentences for distribution of a controlled substance and tampering with evidence had to run concurrently because the record provided no basis to determine that each charge was supported by separate evidence. People v. Brown Where the trial court found neither a violation, nor a threatened and impending violation, of a court order by CDOT, (i.e. no contempt found ), the trial court could not issue an order for injunctive relief as a remedy. Department of Transportation v. Auslaender When a junior judgment creditor obtains the debtor's equitable interest in real property, through an equitable action in the nature of a creditor's bill, senior judgment liens do not attach. Hence, the creditor who brings the action is given priority. Whalen v. Shepler Fraternal Order of Police is not a public entity for purposes of the Colorado Governmental Immunity Act. Nor are sheriff's department officers who serve as FOP officers entitled to immunity under the CGIA for actions taken in their roles as FOP officers. The court also held that it lacked jurisdiction to consider defendants' argument that the trial court erred in denying their motion to dismiss for failure to state a claim. The court noted that the denial of a motion to dismiss for failure to state a claim is not a final appealable order. The court had jurisdiction only to consider the interlocutory appeal challenging the district court's denial of immunity under the CGIA. Podboy v. Fraternal Order of Police June 2, 2004 The list of decisions the court of appeals will announce tomorrow is here. The court will issue seven published decisions and many more unpublished decisions. June 1, 2004 Here are today's supreme court announcements. The court issued no decisions and granted cert. in no cases. Archibald Cox passes away. The former Watergate special prosecutor, Solicitor General of the United States, Harvard Law School Professor, and model citizen, passed away Saturday at his home in Maine. He argued many cases in the United States Supreme Court, including Baker v. Carr and the Bakke decision. And, of course, his service as Watergate special prosecutor, and his firing in the Saturday Night Massacre, was a defining moment in our constitutional history. Professor Cox was a hero of mine. I had the great privilege to take two seminars from him when he was a visiting professor at CU Law School. His commitment to public service, truth, justice and the rule of law made this nation a better place and made me a better lawyer and person. He will be sorely missed. It is a true honor to have known him.
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