May 28, 2004 Have a pleasant and safe holiday weekend. I don't know yet whether the supreme court will issue new decisions on Tuesday, but if it does, I'll summarize those on Tuesday. Yesterday's court of appeals announcements are here. The court issued unpublished decisions only. May 26, 2004 Here is the list of opinions the court of appeals will release tomorrow. The court will issue only unpublished decisions. The court of appeals' oral argument calendar for July is here. May 25, 2004 Here are the summaries of Monday's supreme court decisions: State employees and their employee associations have standing to challenge the Governor's Executive Order and related Personnel Department Policy that eliminated automatic payroll deductions for union dues. In a unanimous decision, the court held that the plaintiffs satisfied the standing test--injury-in-fact to a legally-protected interest. The complaint alleged that the Personnel Director's Policy and the Governor's Executive Order deprived employees and organizations of the right to be even considered for a payroll deduction. The court concluded those allegations satisfied the legally-protected interest requirement. Plaintiffs satisfied the injury-in-fact requirement because the complaint's allegations were sufficient to show that Plaintiffs were deprived of a right to apply for a deduction and receive a non-arbitrary ruling on their application. Ainscough v. Owens Under the Nonprofit Corporation Act, the signature by a neighborhood association's president on a settlement agreement with a developer was not sufficient to bind the association's other members. Therefore, petitioner, another member of the association, did not contractually waive his First Amendment rights to petition and speak out against the developer's proposed development. The court held, consistent with precedent, that a motion to dismiss predicated on First Amendment immunity generally must be decided as a motion for summary judgment. The court also held that petitioner was entitled to attorney fees under C.R.S. § 13-17-201 because the tortious interference claim against him failed to state a claim under C.R.C.P. 12(b)(5). Justice Kourlis, joined by (who else?) Justice Coats, concurred in the judgment only. She concluded that the case should be dismissed under Rule 12(b)(5) and would not have reached other issues the majority addressed. Krystowiak v. W.O. Brisben Cos. Exclusivity provision of Colorado Dissenters' Rights Act prohibits a challenge to corporate action except for a narrow exception for unlawful or fraudulent conduct. Therefore, a dissenting shareholder may not seek compensatory damages in addition to the statutory appraisal remedy when the complaint "boils down to nothing more than a complaint about stock price." Szaloczi v. John R. Behrmann Revocable Trust Although the Colorado Constitution allocates general jurisdiction to the district courts, where matters of local and municipal concern are involved and those issues do not implicate statewide concerns, the constitution specifically provides for municipal court jurisdiction. The supreme court held that although the jurisdiction of the district court is affected by the municipal court jurisdiction, because the constitution provides for municipal court jurisdiction in these circumstances, such an effect is not prohibited. The Town of Frisco vested its municipal court with exclusive original jurisdiction over all matters arising under the Town Charter, ordinances, and other Town enactments. The supreme court concluded that the Town's grant of exclusive jurisdiction to the municipal court was a proper exercise of municipal authority under the Colorado Constitution. Therefore, a Rule 106 action in district court challenging the Town's approval of a conditional land use development was properly dismissed for lack of jurisdiction. The matter had to be heard in the municipal court in the first instance. Town of Frisco v. Baum CRS § 18-8-210.1, which allows a subset of juvenile offenders to be charged with felony escape, does not violate the Colorado Constitution either facially or as applied to the juveniles defendants in this case. The trial court had ruled the statute unconstitutional on its face and as applied. The supreme court made absolute a rule to show cause, concluding "that section 18-8-210.1 does not conflict with [Colorado Constitution] article XVIII, section 4, because the statute's sole effect is to criminalize certain behavior (escape) when it is committed by an adjudicated juvenile delinquent who is confined because she committed an offense that would be a felony if committed by an adult. The power to criminalize such conduct lies firmly within the purview of the legislature, and absent a constitutional infirmity, we have no basis to interfere with that power." In re People v. M.B. To prevail on a motion to set aside a default judgment under C.R.C.P. 60(b), a movant must satisfy the common law "clear, strong and satisfactory" burden of proof. The supreme court held that CRS § 13-25-127, which requires the burden of proof in civil actions to be a preponderance of the evidence, does not apply to motions to set aside default judgments: "The General Assembly's enactment of section 13-25-127, while properly establishing the burden of proof applicable to substantive 'civil actions,'did not override the procedural rule [Rule 60(b)] which we had already established." On the merits, the court concluded that the movant met the higher standard of proof. Justice Martinez dissented in part, concluding that the case should be remanded to the trial court to apply the higher standard of proof to the facts of the case. Borer v. Lewis Four-year sentence for the storage of hazardous waste was not an illegal sentence; was not imposed in an illegal manner; and did not amount to an abuse of the sentencing court's discretion. The supreme court therefore discharged the rule to show cause. The court said it agreed to review this Rule 21 proceeding because the defendant challenged the trial court's compliance with mandates already issued by the appellate courts in this same case and, as a matter of first impression, the defendant questioned the scope of a trial court's discretion in sentencing for crimes defined outside the criminal code. The court concluded that sentencing discretion is the same regardless of where the particular statute appears in the statutes: "The general assembly has therefore made abundantly clear that its broad statement of purposes for criminal sentencing and its recognition of the kinds of information considered relevant to those purposes apply to all felony sentences, without regard to the organization of the revised statutes." While I agree with that conclusion, I think the court should have allowed this case to proceed as a direct appeal following resentencing, rather than as a Rule 21 proceeding. People v. Newman May 24, 2004 Today's supreme court case announcements are here. The court issues seven decisions, which I will summarize in the next day or so. The court granted cert. in one case, Coors v. Security Life of Denver Ins. Co., on the following issues:
Whether the court of appeals erred in concluding, as a matter of law, that the record lacked substantial evidence of public impact resulting from the defendant’s conduct, as required for violation of the Colorado Consumer Protection Act.
Whether the court of appeals erred in holding that petitioner was not entitled to surrender his policy without a penalty, despite Security Life’s misconduct, which both courts considered a material breach of the insurance contract.
Whether the court of appeals erred in reversing the district court’s award of punitive damages and attorney fees. The court of appeals' decision in that case is here. May 21, 2004 Monday the supreme court will issue these seven decisions (is that one per justice?): People v. Newman People v. MB Krystkowiak
v. Brisben Borer
v. Lewis Szaloczi
v. Behrmann Rev. Trust Ainscough
v. Owens Frisco v. Baum I'll
try to put up summaries Monday, but geez, why they gotta come down with
so many cases at once? (I guess it beats being a U.S. Supreme Court
reporter at the end of June--but I bet those reporters don't have briefs
to write, too.) Yesterday's court of appeals announcements are here. Reconstruction of trial court record was sufficient for court of appeals review. The court held that nothing in defendant's assertions or the reconstructed record indicated any crucial evidence could have been misinterpreted, misapplied, misunderstood, or erroneously admitted. The court held that the defendant had failed to establish that the incomplete record visiteds a hardship upon him or prejudiced his appeal. People v. Jackson Excited utterances by victim were not testimonial statements within the meaning of Crawford v. Washington. In addition, the court held that Colorado courts should continue to apply the Roberts-Dements test to determine whether the admission of nontestimonial hearsay comports with the requirements of the state constitution. Under that test, the prosecution must either produce the declarant or show that she is unavailable for trial. Second, if the declarant is unavailable, the government can use the out-of-court statements only if they bear sufficient indicia of reliability. On the facts of the case, the court held that the admission of the victim's excited utterances through the testimony of the victim's friend did not violate the defendant's confrontation rights under the federal or state constitution. People v. Compan C.R.S. § 8-42-124(6) can be applied retroactively to permit garnishment of disability benefits. The court held that the statute effected a procedural or remedial change and therefore was not retrospective in nature. American Compensation Ins. Co. v. McBride Because record did not show that the Chief Justice approved the initiation of proceedings for the construction or remodeling of court facilities, the district court's order requiring the Board of County Commissioners to provide new facilities for the Routt County Combined Court could not stand. In re Court Facilities for the Routt County Combined Court
Statutory speedy trial rights violated, and therefore trial court properly dismissed charges against defendant. The defendant originally was tried and convicted for possession of a controlled substance. Her conviction was reversed on the ground that the trial court erred in summarily denying her motion to suppress without holding an evidentiary hearing. The trial court received the mandate on January 2, 2002 and set a suppression hearing for July 23, 2002. After additional delay, the trial court dismissed the case, concluding that the statutory speedy trial period had run. The court of appeals affirmed, concluding that the defendant had to be retried within six months of the receipt of the mandate by the trial court, under C.R.S. § 18-1-405(2). People v. Zedack Under CRS § 8-40-301(5), driver under a lease agreement with a common carrier or contract carrier was not a statutory employee entitled to workers' comp benefits. FFE Transportation Services, Inc. v. Industrial Claim Appeals Office No presumption
exists that it is in a child's best interests to remain with the primary
residential parent when that parent moves. The court held that
CRS § 14-10-129 requires the consideration of a number of factors
before deciding whether it is in the child's best interests to be relocated.
The court noted that nothing in the legislative history or the language
of the statute, as amended, suggests that § 14-10-129 contains
a presumption in favor of the primary residential parent. May 19, 2004 The list of decisions the court of appeals will issue tomorrow is here. The court will issue nine published decisions and a bunch of unpublished decisions tomorrow. I will post summaries of the published decisions on Friday (I'll be tied up tomorrow). May 18, 2004 Sorry for the delay in posting Monday's supreme court doings, but better late than never . . . . Here are Monday's supreme court announcements. The court issued three decisions, summarized below. The court granted cert. in one case, Grissom v. People, on the following issue:
Whether the lower courts misinterpreted the law and seriously erred in ruling that an alleged complicitor is not entitled to a lesser-included offense instruction unless the principal himself could be acquitted under such a theory. By enacting statute designed to provide treatment alternatives for individuals convicted of offenses involving alcohol, General Assembly did not intend to reduce the sentence for felony vehicular homicide from between four and twelve years in the Department of Corrections to one year in the county jail. Therefore, the court affirmed the six-year sentence imposed on the defendant for vehicular homicide. Justice Bender, joined by Justice Martinez, dissented, concluding that the statute conflicted irreconcilably with the earlier-enacted sentence for DUI vehicular homicide (4-12 years under C.R.S. § 18-1.3-401(1)(a)(V)(A)). The dissent concluded that the later statute controlled and thus the maximum sentence for vehicular homicide at the time of the offense was one year in county jail. Frazier v. People Pollution exclusion clauses in insurance policies do not necessarily exclude insurance coverage for wastes placed in unlined ponds if the insured expected seepage. The relevant inquiry to determine if the clauses preclude coverage is whether the insured placed wastes in an unlined disposal area with the expectation that contaminants would be fully contained through filtration. Coverage exists if the insured did not expect and intend contaminants to migrate either off its property or into the groundwater. In addition, the court held that when an insurer refuses to defend and the insured brings an action for defense costs after the resolution of the underlying action, the insurer must rely solely on the allegations contained in the underlying complaint to establish that no duty to defend existed. Finally, the court held that that the excess insurance policies in the case created no duty to defend for the excess insurers. Cotter Corp. v. American Empire Surplus Lines Insurance Co. When a case involves many claims, some of which are successful and some of which are not, it is left to the sole discretion of the trial court to determine which party, if any, is the prevailing party under C.R.C.P. 54(d), and whether costs should be awarded, even where claims are brought only by one party. Therefore, the court held that the trial court did not abuse its discretion in awarding costs to individual defendants as prevailing parties despite the fact that Plaintiff prevailed on one claim in the case. Archer v. Farmer Bros. Co. May 14, 2004 The supreme court will issue these three decisions on Monday: Cotter Corp. v. American Empire, addressing these questions: Whether the Court of Appeals erred in granting summary judgment based on its interpretation of "qualified" pollution exclusion clauses contained in Cotter's insurance policies to preclude coverage for seepage from unlined tailings ponds, when Cotter knew the ponds would leak, but did not believe that the leakage would contaminate the environment off-site from its facility. Whether the court of appeals erred in holding that two of Cotter's excess insurance policies created no duty to defend. Frazier v. People, answering this question: Whether Senate Bill 01-168 (Appendix B) which set the maximum penalty
for vehicular homicide involving alcohol, at one year in County Jail,
was clear and unambiguous, and therefore not subject to interpretive
rules of statutory construction. Archer v. Farmer Bros. Co., addressing this issue: Whether the court of appeals erred in affirming the trial court's rulings refusing to tax costs in favor of the plaintiff as the prevailing party, and to tax costs in favor of the individual defendants. May 13, 2004 Here are today's court of appeals announcements. The court issued only unpublished decisions. May 12, 2004 The list of cases the court of appeals will release tomorrow is here. The court will release only unpublished decisions. May 10, 2004 The supreme court announcements are now available at the link below. The court issued only one decision and did not grant cert. in any cases. Court
reduces attorney's discipline from disbarment to suspension for one
year and one day. The
court rejected the Hearing Board's conclusion that disbarment was the
presumed sanction for the respondent's misappropriation of funds and
his violation of a court order. The court held that the Board did not
appropriately consider and balance the aggravating and mitigating circumstances
established as a matter of fact, and thereby imposed an unreasonably
harsh sanction on the respondent: "Because we believe the proper
application of the ABA Standards for Imposing Lawyer Sanctions leads
to the conclusion that suspension, rather than disbarment, is the appropriate
sanction, we now order the suspension of the respondent from the practice
of law for a period of one year and one day." In
the Matter of Fischer Today's supreme court announcements will be here. (They weren't up when I posted this. Perhaps it's the Sasser worm.). As soon as they are available, I will post a summary of the decision the court issued as well as the questions presented in any cases in which cert. is granted. But so you won't go home empty-handed, here are summaries for last Thursday's court of appeal decisions (except the Jeremy Bloom appeal, which was summarized in my May 6th post): Where jury found that employee was not acting within the scope of his employment at the time of an accident, jury had no logical basis to find against employer on negligent hiring claim. Accordingly, the court held that the trial court should have granted the defendant's JNOV motion. Raleigh v. Performance Plumbing and Heating, Inc. Evidence showing that defendant had never been convicted of an offense was not evidence of a "pertinent trait" under CRE 404(a)(1). Because a person may violate a law without ever being prosecuted, the absence of a criminal conviction does not necessarily demonstrate a defendant's law-abiding character. People v. Goldfuss Where plaintiffs had complete, adequate, and speedy administrative remedies to challenge (1) Zoning Department's decision to give its approval for issuance of a certificate of occupancy and (2) the Building Department's issuance of that certificate, trial court lacked subject matter jurisdiction over the matter. Egle v. City and County of Denver C.R.C.P. 60(b) does not bar a motion for retroactive modification of child support based on a mutually agreed upon change of physical custody. The court held that under the applicable statutes, a prior child support obligation will be modified as of the date when a child's physical custody has been changed by mutual agreement. The court concluded that because C.R.S. § 14-10-122(1)(c) "expressly provides for retroactive modification of child support upon a voluntary change of physical custody without imposing any time limit for seeking modification, . . . C.R.C.P. 60(b), which imposes such limits, is inconsistent with the procedure contemplated in the statute." Marriage of Michelle Green District court is not require to offset current child support obligation by amount of overpayment. Although a court may employ this remedy, it should do so only when the interests of the children will not be harmed. Marriage of Haddad and Concerning El Paso County Child Support Enforcement Unit May 6, 2004 Happy Birthday Grant! Star athlete Jeremy Bloom loses his appeal. Bloom, a star freestyle skier who has received endorsements in the past, also was recruited to play football at CU. On Bloom's behalf, CU requested waivers of certain NCAA rules regarding endorsements. The NCAA denied the requested waivers. Bloom discontinued his endorsement activities and later sued the NCAA. The trial court refused to grant preliminary injunctive relief to Bloom, finding that he failed to satisfy all six elements of the Rathke test for preliminary injunctions. On appeal, the court of appeals held that the trial court did not abuse its discretion in denying a preliminary injunction. In particular, the court held that the trial court did not abuse its discretion in failing to fault the NCAA for refusing to waive its rules, as requested by CU, to permit Bloom "to pursue any television and film opportunities while he is a student-athlete at CU." The court's decision probably comes to the right legal decision on the facts and law of the case. The real problem with Bloom's situation is the inflexibility of the NCAA's regulations. It is a shame (as a matter of policy, not law) that the NCAA's position will likely force Bloom to forego one of the sports he loves. Bloom, and the public he entertains, deserves better. Jeremy Bloom's appeal (Bloom v. NCAA). Today's court of appeals announcements are here. The court issued 6 published decisions, including the Bloom decision. Here are links to the other published decisions. I'll add summaries as soon as I can, but they may not be up until Monday due to my work load and other commitments. Raleigh
v. Performance Plumbing and Heating, Inc. Mac Danford, clerk of the supreme court, will retire effective June 30, 2004. Mr. Danford has served as clerk since 1985. I personally wish him all the best in his retirement. His service and that of his staff is invaluable to the court's ability to function. If you are interested in succeeding Mr. Danford, applications are due May 28th. For more information contact the supreme court. May 5, 2004 The court of appeals will issue its decision in Jeremy Bloom's appeal tomorrow morning. The decision will be published so it will be available online. Here is the list of decisions coming down tomorrow. The court will issue 5 other published decisions and a bunch of unpublished ones. I will post links to the published decisions tomorrow. I will try to get summaries done as well, but that may have to wait until Monday as I have a brief to get done tomorrow and will be out of the office on Friday. May 3, 2004 The United States Supreme Court has not yet decided whether it will hear the Colorado redistricting case (Colorado General Assembly v. Salazar, No. 03-1082). Though the case was scheduled to be addressed in last Friday's conference, the Court did not issue an order on the General Assembly's cert. petition. Here is the Court's order list for today. According to the Court's calendar, the next conference will be May 13, after the General Assembly's session has ended. Maybe we should thank the Court for not ruling on the petition before the legislature has gone home for the season. Here are today's supreme court announcements. The court issued two decisions, summarized below. The court granted cert. in one case, Mishkin v. Young, an appeal from a district court decision on the following issue: Whether the district court erred in ruling that a landlord is automatically subject to C.R.S. § 38-12-103 triple damages and attorney fees for “willful” failure to return a tenant security deposit within the statutory deadline, where the county court found that the landlord’s deposit retention was not “wrongful” because the tenant caused extensive property damage, and the landlord provided a timely accounting and refund to the tenant within the seven-day warning letter deadline. In a tort claim against an insurer for breach of the duty of good faith and fair dealing, the plaintiff may recover damages for emotional distress without proving substantial property or economic loss. In so holding, the court overruled Farmers Group, Inc. v. Trimble, 768 P.2d 1243 (Colo. App. 1988) ("Trimble III"), to the extent it is inconsistent with the court's holding today. Justice Coats concurred in the judgment only, noting: "I can see no reason to gratuitously overturn an existing and imminently reasonable damage limitation in the third-party context that has governed the jurisdiction for more than fifteen years. I therefore concur only in the judgment of the court and not in its opinion." Goodson v. American Standard Insurance Company of Wisconsin PUC has jurisdiction to regulate providers of intrastate transportation services and may assess fines against parties providing intrastate passenger service without the prior issuance by the PUC of a certificate of public convenience and necessity, as required by C.R.S. §40-10-104(1). The evidence in the record supported the PUC's penalty assessment, and thus the district court correctly affirmed that penalty. Trans Shuttle, Inc. v. PUC
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