March 31, 2008 Here are today's supreme court announcements. The court did not issue any new decisions and did not grant cert. in any cases. March 28, 2008 Gov. Ritter has appointed Nancy Lichtenstein to the Colorado Court of Appeals. The governor's press release is here. She will take the seat vacated by Judge Marquez. Congratulations to soon-to-be Judge Lichtenstein. March 27, 2008 Here are today's court of appeals' announcements. The court issued unpublished decisions only. March 26, 2008 Tomorrow the court of appeals will release these unpublished decisions: 04CA1781 People v. Ricky R. Chambers March 25, 2008 Sorry for the delays in posting, but fortunately this post will get me caught up. The supreme court announcements and summaries are first, followed by two new original proceedings, and finally the summaries of last week's court of appeals decisions. Here are yesterday's supreme court announcements. The court issued 6 decisions, summarized below. The court did not grant cert. in any cases. A stipulated judgment arising from a settlement agreement entered into by plaintiffs and defendant-insureds is not enforceable against the insurer (who was not a party to the agreement). The supreme court held that where the insurer has conceded coverage and defended its insured, and where there has been no finding of bad faith against the insurer, the insurer cannot be bound by a pretrial settlement agreement and stipulated judgment to which it was not a party. The court also concluded that postjudgment interest cannot be imposed on the unenforceable stipulated judgment. Old Republic Insurance v. Ross In a case about scratch lottery tickets allegedly being sold after all prizes have been awarded, the supreme court reviewed whether claims against the Colorado State Lottery Division by a scratch ticket purchaser are barred by the Colorado Governmental Immunity Act (CGIA) because they lie in tort or could lie in tort. Petitioner filed contract claims and an unjust enrichment claim against the Lottery, alleging that the Lottery continues to sell scratch tickets for months after all the represented and advertised prizes have already been awarded. The supreme court held that the underlying injury asserted in Petitioner’s claims arises out of the alleged misrepresentations of the Lottery. Thus, the court held that Petitioner’s contract and unjust enrichment claims lie in tort or could lie in tort and are therefore barred by the CGIA. The supreme court also held that C.R.S. § 13-17-201 does not permit an award of attorney fees where contract claims are dismissed under the CGIA because they lie in tort or could lie in tort. Thus, because Petitioner brought a contract action rather than a tort action and it was the contract claims that were dismissed, she was not subject to pay attorney fees. Robinson v. Colorado State Lottery Div. In a post-conviction proceeding, the supreme court held that conflict-free counsel should be appointed for petitioner in order to investigate and pursue potential relief, from the operation of the post-conviction time bar, at a trial court hearing, based upon the justifiable excuse or excusable neglect exception to the time bar and a colorable claim of ineffective assistance of counsel for failure to raise the applicability of People v. Nguyen, 900 P.2d 37 (Colo. 1995), to petitioner's sentence. Justice Eid, joined by Justice Rice, dissented, concluding that "the majority makes a fundamental error by finding Nguyen to be 'applicable.' " Close v. People The supreme court held that the trial court improperly limited the testimony from the defendant’s expert witness, because the prosecution opened the door to it, and the error was not harmless beyond a reasonable doubt. The trial court had certified the defense witness as an expert on sole impressions and the court permitted him to testify on the specific characteristics of defendant's boots. But upon the prosecution’s objection, the trial court excluded any testimony regarding the expert's comparison of the prints recovered at the crime scene with the soles of the defendant's boots. The supreme court held that to be reversible error. Justice Coats, joined by Justice Rice, dissented, and took the majority to task for "characterizing an abuse of discretion in limiting the scope of a defense expert’s opinion as a violation of the defendant’s constitutional right to present a defense." Justice Coats believed "the majority confounds evidentiary with constitutional error and imposes far too exacting a standard for evaluating the prejudice resulting from the former." Golob v. People The supreme court reviewed the water court’s decision upholding rules governing certain new withdrawals from the confined aquifer in Water Division Three. The supreme court held that the rules are not in violation of either statutory law or the Colorado Constitution. The court concluded that because the confined aquifer does not contain any unappropriated water, restrictions on withdrawals from that aquifer do not violate the constitutional right to appropriate. The court also held that the rules do not extend beyond their statutory authority. The court rejected the argument that the rules violate equal protection because they pertain only to new withdrawals from the confined aquifer, concluding that rationale bases existed for treating the groups at issue differently. Finally, the court held that the state engineer was not required to follow the state Administrative Procedure Act in promulgating the rules. Cotton Creek Circles v. Rio Grande Water Consv. In an interlocutory appeal from a suppression order, the district court had ruled that a search for some, but not all, of the items enumerated in the warrant was supported by probable cause. It specifically found that the warrant validly authorized a search for handguns, firearms, and ammunition but not for drugs or drug paraphernalia. The district court therefore suppressed, among other things, a vial containing a controlled substance found in a pocket of pants found in the defendant’s bathroom and a baggy containing a controlled substance, a scale, and other empty bags found in a kitchen cabinet. The supreme court reversed and remanded, holding that these items should have been admitted under the “plain view” exception to the warrant requirement. Although the items were not within the scope of a valid search warrant, the pants pocket and kitchen cabinet were places that could contain guns or bullets, for which a search was validly authorized, and the drugs and drug paraphernalia discovered in these locations had an incriminating character that was immediately apparent upon being seen. People v. Koehn The supreme court recently added these two original proceedings: In re: People v. Wright, No. 08SA71: The People seek relief from the district court’s order granting Defendant Wright’s motion to suppress statements regarding his new criminal conduct on the basis of an alleged violation of Rule 4.2 of the Rules of Professional Conduct made during a Mirandized interview at a jail where Wright was being held on unrelated charges. On March 10, 2008, the court issued a rule to show cause why the relief requested should not be granted. Respondent Wright, with the assistance of advisory counsel, is directed to provide a written answer on or before April 28, 2008. The People have 45 days from receipt of the answer within which to reply. Amicus curiae are invited to participate. A copy of the petition for a rule to show cause may be found at: http://www.courts.state.co.us/supct/PeopleVsWrightAmici/index.htm In re: People v. Perez, No. 08SA39: The People seek relief from the trial court’s order requiring them to provide the defense with the residential addresses of law enforcement witnesses they intend to call during the sentencing phase in this death penalty case even though the defense did not request this information. On February 12, 2008, the court issued a rule to show cause why the relief requested should not be granted. Respondent Alejandro Perez is directed to provide a written answer on or before March 20, 2008. The People have thirty days from receipt of the answer within which to reply. On February 25, 2008, the court issued an order holding in abeyance this briefing schedule and granting a limited remand so that the district court can rule on several pending motions; the limited remand is in effect until April 7, 2008, and the district court is directed to rule on the pending motions on or before that date. A new briefing schedule on the original proceeding will be announced upon receipt of the district court’s orders on the pending motions. Here are the summaries of last week's published decisions from the court of appeals: C.R.S. § 18-1.3-102, the deferred sentence statute, requires the written consent of defense counsel only if the defendant is represented. Because defendant was pro se at all relevant times, counsel’s consent to a deferred sentence was not required. The court rejected defendant's argument to the contrary under the doctrine of constitutional doubt, a doctrine that requires a statute to "be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.” The court did agree with defendant that the trial court's reliance on double and triple hearsay deprived him of his due process right to confront adverse witnesses. People v. Loveall Trial court erred by instructing the jury that it could not consider the lesser included offense of second degree burglary unless it unanimously determined that defendant was not guilty of first degree burglary. But the court concluded the error was not plain error warranting reversal. People v. Zamarripa-Diaz City commenced a condemnation proceeding to acquire respondents’ property for the construction of a municipal maintenance facility. The City sought and obtained a court order for immediate possession of the property. Following a valuation trial, the jury determined that $637,500 was just compensation for the taking, which was over six times higher than the City appraiser’s opinion of value, and $100,000 more than the valuation opinion of respondents’ appraiser. The City, unhappy with the award, filed a notice of abandonment, seeking to abandon the condemnation. Respondents contested the abandonment. The trial court held an evidentiary hearing, during which the City disclosed that it had discovered mining waste on the property that would require significant expense to remediate. The court authorized the City to abandon the condemnation, but awarded part of respondents’ attorney fees to them. On appeal, the court of appeals rejected Respondents' argument that the trial court should have applied the doctrine of equitable estoppel to preclude the abandonment. City of Black Hawk v. Ficke The cancellation provision of wife's insurance policy stated that “we may cancel by mailing notice of cancellation to you by certified mail at the address shown in the policy.” The policy defined “you” as “the policyholder named in the declarations and spouse, if living in the same household.” There were no terms limiting those provisions, nor were there terms suggesting that the “spouse” included in the definition of “you” was limited to spouses who were named policyholders, had driver’s licenses, or were otherwise insurable. (Wife's spouse had no driver's license.) Rather, the plain terms of the policy required the insurer to mail notice to both the policyholder and her resident spouse. The court of appeals, reversing summary judgment in favor of the insured, concluded as a matter of law that insurer disregarded the insured's rights under the policy and acted without justification in refusing to pay PIP benefits. Accordingly, insurer's repeated refusal to pay such benefits was willful and wanton under the No-Fault Act. The trial court therefore erred in granting summary judgment in insurer's favor on the issue of willful and wanton conduct under the No-Fault Act. The court of appeals further concluded that the court should have granted the insured's summary judgment motion. Geiger v. American Standard Insurance Company of Wisconsin In an appeal involving the question whether Colorado's Smoking Ban violates theaters’ rights under the First Amendment and Colorado Constitution article II, section 10 because it precludes conduct – namely, smoking – that may be presented as part of certain theatrical productions, the court of appeals held that the theaters’ constitutional rights are not violated by the application of the Smoking Ban to them. The court of appeals first concluded that smoking by an actor as part of a theatrical production is expressive conduct for purposes of the First Amendment. The court then concluded that the measure was content-neutral and therefore applied intermediate scrutiny. Applying that test, the court concluded that (1) the statute is within the constitutional power of the government; (2) it furthers an important or substantial governmental interest; (3) the government’s interest in establishing the regulation is unrelated to the suppression of free expression; and (4) the incidental restriction is no greater than is necessary to further that interest. Therefore, the court upheld the ban as applied to actors smoking in theater performances. Curious Theater Company v. Colorado Department of Public Health and Environment Trespass claim was not barred by the statute of limitations. The court of appeals concluded that an irrigation pipeline constituted a continuing trespass, and therefore the trespass claim was not barred. Sanderson v. Heath Mesa Homeowners Association Claimant was not denied due process because a second ALJ who had not been present at her evidentiary hearings determined that her testimony was incredible. Due process requires that a hearing officer either hear the evidence or “read and consider the evidence adduced in his absence.” The second ALJ's order notes that both hearings were digitally recorded. The Panel stated that the second ALJ had "reviewed the digital recording of the hearing testimony as well as all evidence and pleadings in the record." The second ALJ found that "claimant is not a credible witness" because "[c]laimant's repeated insistence on testimony in contradiction to medical records significantly undercuts her credibility"; "[c]laimant also changed her testimony in a way that reflects poorly on her credibility"; and claimant asserted that her back pain "was completely resolved" before the incident giving rise to her claim, although a month before that incident she had reported back "pain of 8 out of 10" and she had received no medical treatment for the pain between this report and the incident. The court of appeals concluded that where a second ALJ listens to recordings, the second ALJ can make credibility determinations.Bodensieck v. Industrial Claim Appeals Office March 20, 2008 Here are today's court of appeals announcements. The court issued 7 published decisions. As I have brief due tomorrow, I probably will not be able to post summaries until Monday. (Yes, I really do have a brief due, and no, I am not secretly running off to see the NCAA Tournament. But I wish I were.) March 19, 2008 The court of appeals will release the following decisions tomorrow, including 7 published decisions: Published Opinions 05CA2031 People v. Jeffery Allen Loveall Unpublished Opinions 04CA2556 People v. Clifford Baldwin March 17, 2008 Happy St. Patrick's Day! If you're celebrating, have a fun and safe time. And if you're driving, don't drink, and if you're drinking, don't drive. Here are today's supreme court announcements. The court issued two decisions, summarized below. The court also granted cert. in 3 cases (though 2 of those cases are related). Petitioner was a holder of the negotiable instrument at issue, a check, through constructive possession. Under C.R.S. §§ 4-3-302 and 4-3-306, C.R.S. (2007), it also qualified as a holder in due course and took the instrument free of any claims of Respondent. The case arose from the embezzlement of funds by a former employee of Petitioner. The former employee was found out and fired, then when to work for Respondent as a bookkeeper. While working for Respondent, the employee wrote a check to Petitioner from Respondent's account. Petitioner deposited the funds. Two years later Respondent discovered the transaction and filed suit against Petitioner for theft, conversion, and the like. Petitioner argued it was a holder in due course of the check and therefore took the funds free and clear of any claims of Respondent. The supreme court agreed, holding, in an issue of first impression, that under sections 4-1-201(b)(20) and 4-3-302, a person can be a holder of a negotiable instrument entitled to holder in due course status under a theory of constructive possession of a negotiable instrument. Georg v. Metro Fixtures Contractors, Inc. Addressing two discovery issues arising in a medical malpractice lawsuit filed on behalf of a child who was born with severe neurological injuries, the supreme court held that portions of an attorney's notes are not shielded from discovery by the work product doctrine because the plaintiffs demonstrated a substantial need for the attorney’s notes and an inability to obtain the information contained in the notes by any other means. The hospital where the child was born failed to conduct a routine investigation of its own, and instead retained an attorney who created notes of his interview with a labor and delivery nurse, of his communications with the hospital’s risk management personnel, and of his review and evaluation of relevant medical records. These notes represented the only investigative report that exists of what happened before, during, and after the child’s birth, and may contain unique factual information such as the contemporaneous sense impressions of a fact witness, taken nearly four years ago, regarding the child’s birth. The supreme court held that, under these circumstances, the factual portions of the attorney’s notes were subject to discovery. The court also held that discovery of the mother’s medical records is guided by the legal standards set forth in Alcon v. Spicer, 113 P.3d 735, 738-42 (Colo. 2005), and that the mother must provide the hospital with a privilege log that identifies the medical records she claims are protected from discovery by the physician-patient privilege for the five years before the child’s birth and for the period of time since the child’s birth. The privilege log must describe each record with sufficient detail so that the hospital -- and if necessary the trial court -- can assess whether the contested medical record relates to the issue of causation concerning the child’s injuries, thereby waiving the privilege for that medical record. Justice Coats, joined by Justice Eid, concurred in part and dissented part. Justice Coats concluded that the plaintiff had not demonstrated the substantial need and undue hardship required for even limited discovery of documents prepared in anticipation of litigation. He thought "it essential to remand for development of a record and consideration by the district court of any reasons why the plaintiff has been or might yet be unable to obtain comparable evidence." In re Cardenas v. Jerath The court granted cert. in these cases: People v. Jorlantin, No. 07SC875, on this question:
Whether the trial court properly granted Defendant's motion to suppress evidence when the trial court did not find that the evidence sought to be suppressed by Defendant was obtained as a result of police misconduct. Board of County Commissioners of the County of Adams v. Colorado Dep't of Public Health and Environment, Nos. 07SC977, 07SC978, on these issues:Whether Adams County has standing to challenge the Colorado Department of Public Health and Environment’s decision to issue a radioactive materials license, which authorized the disposal of certain types of radioactive waste, to a waste disposal facility located in the County on the ground that the facility failed to first obtain a certificate of designation from the County specifically authorizing the disposal of such waste.
Whether Adams County has standing to challenge the Colorado Department of Public Health and Environment’s decision to modify a hazardous waste disposal permit issued to the same waste disposal facility on the ground that the modified permit incorporated the terms of the radioactive materials license without first obtaining a modified hazardous waste certificate of designation from the County, or otherwise obtaining the County’s approval. March 14, 2008 The supreme court will issue two decisions on Monday, No. 07SC26, Freestyle Sports Marketing v. Metro Fixtures, and No. 07SA150, In re Cardenas v. Jerath. Here are yesterday's court of appeals announcements. The court issued unpublished decisions only. The supreme court nominating commission named the three finalists for the court of appeals' vacancy created by Judge Marquez's retirement. The press release is here. The governor has until March 27 to appoint one of the three. March 12, 2008 The court of appeals will release the following unpublished decisions tomorrow: 03CA1529 People v. Kenton D. Schminke March 11, 2008 The court of appeals' oral argument calendar for May is here. March 10, 2008 The supreme court's announcements for today are here. The court issued no decisions and did not grant cert. in any cases. March 7, 2008 Here are yesterday's court of appeals announcements. The court issued 8 published decisions, summarized below. Defendant abandoned his challenge for cause by failing to request that the trial court grant or deny it before exercising a peremptory challenge to excuse the juror. Defendant also did not properly invoke his right to counsel during interrogation when he said“maybe I should get a lawyer or what ever find out where I stand,” “I don’t want to say the truth without a lawyer or something,” and “I don’t want to say the truth cause it’s not a court of law and I don’t have an attorney.” They were not clear and unambiguous requests for counsel and did not require the questioning to end. People v. Grenier In the course of and in furtherance of a conspiracy to buy and sell methamphetamine, a drug dealer gave an undercover officer information about his sources, and agreed and arranged to sell the drugs to the officer. The dealer made statements to an undercover police officer when arranging the drug transactions. The court of appeals held that a reasonable person in the dealer’s position would not make such incriminating statements if he believed they would later be used against him and his co-conspirators in the investigation or prosecution of the crime. Therefore, the court concluded they were not testimonial in nature under Crawford. People v. Villano The court of appeals upheld the admission of DNA mixture evidence and of testimony regarding the statistical probability that the DNA was that of a specific individual. The court rejected the defendant's argument that the evidence should have been excluded under CRE 403. People v. Rojas Illinois's civil commitment is the functional equivalent of “conviction” or “convicted” as those terms are defined in C.R.S. §§ 16-22-102(3), and therefore petitioner was required to register in Colorado under the Sex Offender Registration Act. Judge Russel dissented, concluding, "I recognize that the Illinois Sexually Dangerous Persons Act (SDPA) contains many procedural safeguards, and I accept that the State of Illinois satisfied the SDPA’s requirements in establishing that Mayo committed or attempted an act of sexual assault or molestation. But I do not believe that this process yielded the functional equivalent of a criminal conviction. The SDPA’s statutory features do not erase the fundamental constitutional differences between criminal and civil proceedings." Mayo v. People When a public entity chooses to upgrade, modernize, modify, or improve the design or construction of a facility, such action does not waive governmental immunity unless the dangerous condition created falls into one of the statutorily defined categories for which a public entity’s immunity is waived. The absence of concrete barriers on the road on which plaintiff was injured, was included in the conception, or plan, for the highway’s upgrade. Therefore, plaintiff's injuries were attributable solely to design, and thus were not injuries for which the CGIA waives the state’s immunity. Estate of Grant v. State of Colorado ALJ’s order did not deny claimant’s right to pursue benefits, or order employer to begin paying them. The effect of the order was to continue benefits that had previously been ordered. The order did not award new benefits, increase or decrease their amount, or bar employer from seeking to reduce or eliminate them once claimant reaches MMI. Thus, the ALJ's order was not a final order, and employer's petition for review was dismissed. Jefferson County Public Schools v. Industrial Claim Appeals Office Open water meter pit into which Plaintiff fell was owned, operated, and maintained by the city. Plaintiff alleged the city failed to use reasonable care to remedy the dangerous condition created by the uncovered meter pit. The court of appeals upheld the denial of governmental immunity, concluding that immunity was statutorily waived under C.R.S. § 24-10-106(1)(f) because plaintiff's alleged injuries resulted from the operation and maintenance of a public water facility. The court concluded that the meter pit constituted a “public water facility” under the CGIA. Montoya v. City of Westminster Department of Public Works A dependency and neglect case is not a quasi-criminal proceeding, and that the societal costs of applying the exclusionary rule would exceed any deterrent effect that exclusion would have on the department or the police in investigating a child welfare issue. Therefore, the court upheld the denial of mother's motion to suppress. People In the Interest of A.E.L. and K.C-M. March 5, 2008 The court of appeals will release the following decisions tomorrow. Because of my work schedule, I will not be able to post summaries of the published decisions until Friday or Monday: Published Opinions 00CA1992 People v. Albert Peter Grenier Unpublished Opinions 04CA1503 People v. JoJo Hamlin March 3, 2008 The supreme court's announcements for today are here. The court issued four decisions, summarized below. It did not grant cert. in any cases. The supreme court reversed a district court decision transferring a case to Costa Rica. The plaintiff alleged that despite paying for real property located in Costa Rica, the defendants failed to convey it. The plaintiff brought suit in district court seeking rescission of the parties’ contract, damages, attorneys’ fees and an accounting. The trial court ruled that the action was one “affecting real property” within the meaning of C.R.C.P. 98(a), and ordered the case transferred to Costa Rica, where the real property is located. The supreme court reversed, holding that because venue is subservient to jurisdiction, a trial court is not deprived of subject matter jurisdiction regardless of whether an action is one “affecting real property.” In any event, plaintiff's action is not one “affecting real property” within the meaning of C.R.C.P. 98(a) because it was not shown that the ownership of the land in question was disputed, and the plaintiff did not seek any remedies pertaining directly to the property. Justice Coats concurred in the judgment only, concluding that "Because the plaintiff’s complaint raises contract-related claims against particular defendants, over whom it has personal jurisdiction, I would find that the real property that is the subject of the contract is not also the subject of the action, and therefore venue in Chaffee County is not rendered improper by C.R.C.P. 98(a)." Justice Coats said that "Rather than attempt to distinguish this action from others we have previously found to be included within our broad reading of the term 'affecting,' I would take this opportunity to construe Rule 98(a), with regard to real property, as prescribing venue only for actions seeking to resolve actual ownership interests in, or perhaps direct injury to, real property." In re Sanctuary House v. Krause Because the condition barring defendant from possessing weapons was neither mandated by statute nor imposed by the trial court and because the trial court could not delegate the discretion to impose such a condition to the pretrial services program, the pretrial services program exceeded its statutory authority by imposing that condition on defendant. The court also held that The supreme court holds that respondent lacked standing to assert claims for violation of the facsimile solicitation provisions of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 (2003). The court held that a claim for liquidated damages under the TCPA is a claim for a penalty, which cannot be assigned under Colorado law. Since respondent's claims were ones assigned to him, he lacked standing to pursue them. Kruse v. McKenna When an easement is expressly created but never used, use of the easement area is not adverse and will not trigger the statutorily-mandated period of time for adverse possession until the easement holder needs to use the easement, demands to use it, and is denied the right to use it. On the facts of the case, the court held that use of the easement area was not adverse and did not trigger the statutorily-mandated period of time for adverse possession until the owner of the easement needed to use the easement as a right-of-way in 2003. Justice Coats dissented, concluding,"I can find no justification for the judicial imposition of a special rule of accrual for one narrow class of easements, largely exempting them from loss by adverse possession. It seems clear that the majority’s new rule, modeled after variations recently adopted in a handful of other jurisdictions, does not reflect the common law of England and, as best I can determine, does not even embody the rationale of the jurisdiction that thought it up. Most importantly, however, even if I considered such a rule meritorious policy, I would nevertheless reject its judicial adoption as a flagrant usurpation of the legislative function, allocated elsewhere by our constitution." Justice Eid concurred, writing separately to note her "disagreement with the dissenting opinion’s suggestion that the court’s ruling is inconsistent with Colorado law and based on principles 'borrow[ed]' from elsewhere." Matoush v. Lovingood
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