May 31, 2005 The supreme court's oral argument calendar for June is here. The court will hear arguments on June 13, 14 and 16, and will hold a public hearing on the 16th, following arguments. The notice for the public hearing is here. The supreme court's announcements for today are here. The court issued two decisions, summarized below. The court also granted cert in Liggett v. People, No. 05 SC 144, on this issue: Whether petitioner was entitled to an extended proportionality review, but if not, whether his sentence is disproportionate even under an abbreviated proportionality review, and the district court erred by concluding otherwise. Trial court erred in ordering defendant's former counsel to produce, for in camera review, his entire case file from his representation of the defendant. In a Rule 21 proceeding, the supreme court held that before granting a request for in camera review of an attorney's case file, the trial court must determine (1) as precisely as possible, the information sought to be discovered, (2) whether the information is relevant to a matter at issue, (3) whether the information could be obtained by any other means, (4) whether the information is privileged, (5) if it is privileged, whether the privilege has been waived, (6) if the information is privileged and the privilege has been waived, the scope of the waiver. On the facts of the case, the court concluded that the trial court's in camera inspection order was premature, and therefore remanded for further proceedings. In re People v. Madera Defendants do not have a right to a jury of twelve when charged only with misdemeanor offenses. Therefore, C.R.S. § 18-1-406 and Crim. P. 23(a)(2), which provide for a jury of six in misdemeanor cases, are not unconstitutional. In so holding, the court concluded that Art. II, sec. 23 of the Colorado Constitution did not establish a right to a jury of twelve in misdemeanor cases. Justice Coats concurred in the judgment only, disagreeing with the court's analysis of the Colorado Constitution, and concluding that the majority "needlessly ties" the hands of the General Assembly "with regard to the practical development of the jury system in criminal prosecutions."People v. Rodriguez May 27, 2005 The supreme court will issue two decisions on Tuesday, People v. Rodriguez (No. 04SC219) and People v. Madera (No. 04SA213 no orals). Madera looks to be an interlocutory appeal from a suppression order. Rodriguez concerns two issues: (1) Whether a defendant who is being tried for a misdemeanor has a Colorado Constitutional right to a jury of twelve; and (2) Whether section 18-1-406, 6 C.R.S. (2003) and Crim. P. 23 are unconstitutional in providing for a jury of six in a misdemeanor case. Have a happy and safe Memorial Day Weekend. May 26, 2005 The court of appeals' announcements for today are here. The court issued only unpublished decisions. Still no word on the cases set on the supreme court's argument calendar in June. The court will be sitting on June 13, 14 and 16. I'll post the argument calendar as soon as it is available. May 25, 2005 The Supreme Court Nominating Commission has selected three finalists for the court of appeals' vacancy created by Judge Nieto's upcoming retirement. The press release is here. The Governor has until June 8th to select one of the three. The court of appeals will issue the following decisions tomorrow (unpublished decisions only this week): Unpublished Opinions No.: 03CA0205 Refinance America, Ltd. v. Vincent C. Todd May 23, 2005 The court of appeals' oral argument calendar for July is here. The
supreme court's announcements for this morning are here.
The court issued 3 decisions, summarized below. The court did not grant
cert. in any cases. Defendant's aggravated sentence under C.R.S. § 18-1.3-401(6) was not unconstitutional under Blakely and Apprendi. Under § 18-1.3-401(6), in light of Blakely, aggravating sentence may rely on four kinds of facts: (1) facts found by a jury beyond a reasonable doubt; (2) facts admitted by the defendant; (3) facts found by a judge after the defendant stipulates to judicial fact-finding for sentencing purposes; and (4) facts regarding prior convictions. Because the defendant's aggravated sentence was based on facts about a prior conviction, the sentence did not violate Blakely and therefore was affirmed. Justice Coats, joined by Justices Rice and Kourlis, concurred in the judgment only, criticizing the majority for "eviscerating" the state sentencing scheme: "Today's decision effectively cuts in half the highest prison sentences available to courts in the vast majority of felony cases." Justice Coats concluded that the majority had misconstrued Blakely and therefore misapplied it to Colorado's sentencing scheme. Lopez v. People Insurer was not entitled to enforce early termination penalty provision of life insurance contract, where insurer materially breached contract. The court also held that the trial court's finding of wilful and wanton conduct by the insurer was proven beyond a reasonable doubt, and therefore supported an award of punitive damages. The court did not decide a third issue, involving the applicability of the Colorado Consumer Protection Act (CCPA). The court of appeals had held that there was no public impact present and therefore the CCPA did not apply and plaintiff did not have a private cause of action under the Act. The supreme court divided 3-3 on this issue. Justices Kourlis, Rice and Coats would hold there was no public impact; Justices Bender and Hobbs and Chief Justice Mullarkey would have held there was. Since the court was equally divided on this issue, the court of appeals judgment on it was affirmed by operation of law. Coors v. Security Life of Denver In a water court appeal, the court was equally divided on whether the Appellants' judicial estoppel claim was groundless, and therefore the water court's decision finding the claim groundless and awarding attorney's fees was affirmed by operation of law. On issues on which the court reached the merits, the court upheld the amount of the attorney's fees award, upheld the award of costs to Golden as the prevailing party, reversed the award of costs against the municipal appellants (because that award lacked statutory authorization), and reversed the trial court's award of moratory interest, because the awards were in the nature of costs, not damages. Farmers Reservoir and Irrigation Co. v. City of Golden May 19, 2005 I will not be doing any more posts until Monday afternoon at the earliest. Tomorrow is my son's field day, which should be a hoot and a holler. So I'll be out of the office for that and all the fun associated therewith (duck races, three-legged races, sunscreen in my eyes, etc.) Have a good weekend. Here are today's court of appeals announcements. The court issued 6 published decisions, summarized below. Trial
court erred in allocating all of personal injury settlement (arising
out of an employment-related injury) to noneconomic damages and distributing
the full amount to the injured worker. The workers comp. insurer had
a subrogation right on the economic damages the injured worker recovered
from the tortfeasor. The trial court had not determined the worker's
actual past and future economic damages. The court of appeals concluded
that was error, and that on remand the trial court had to determine
the economic damages and reallocate the settlement proceeds. On another
issue, the court concluded that damages for physical injury or disfigurement
were not economic damages under the former version of C.R.S. §
8-41-203. But the court noted that if the worker were awarded benefits
under C.R.S. § 8-42-108 in the future, those benefits may be subject
to a limited subrogation right. Colorado
Compensation Insurance Authority v. Jones In trial of defendant on child exploitation charges (under C.R.S. § 18-6-403(3)), the trial court erred in adopting a subjective test to define "erotic nudity" and in instructing the jury according to that definition. Instead the jury should have been instructed to consider whether the content of photographs, taken by the defendant and posted on the Internet, viewed objectively would lead to sexual gratification or stimulation of a reasonable viewer. The court therefore disapproved the trial court's ruling (the defendant was acquitted at trial on all charges). People v. Grady Trial court had jurisdiction to revoke defendant's Youthful Offender System (YOS) sentence and sentence defendant to prison term. The defendant had argued that since the expected completion date for his YOS sentence had expired before any revocation proceedings were initiated, the trial court lacked jurisdiction. Defendant had been arrested two weeks before the completion of his YOS sentence and held in custody pending a DOC administrative hearing, but the hearing was not held until after the expiration of the expected completion date of his YOS sentence. The court of appeals concluded that the defendant had not successfully completed the YOS sentence due to his arrest before the sentence expired. People v. Efferson Appeal from State Personnel Board orders was not timely. The petitioner had been a probationary employee and was terminated, for, he claimed, discriminatory reasons. The Board rejected Petitioner's request for a hearing (since he was a probationary employee, he was not entitled to a hearing as of right), adopting the preliminary recommendation of the ALJ. Petitioner did not appeal that order within 45 days, but instead filed exceptions to the Board's order. The Board later rejected those exceptions, and petitioner filed his notice of appeal within 45 days of that order. The court of appeals concluded that petitioner had to appeal within 45 days of the original order denying him a hearing, and since he had not done so, his appeal has to be dismissed for lack of jurisdiction. Hussein v. Regents of the University of Colorado The
People were not entitled to relief under Crim. P. 35(a) (to correct
an illegal sentence). The court of appeals noted that the People's argument
did not challenge the legality of the defendant's two sentences, but
instead challenged the manner in which those sentences were effectuated.
Therefore, the trial court had no jurisdiction under Crim. P. 35(a).
The court also concluded that Crim. P. 35(c) gave no jurisdiction to
the trial court to consider the People's arguments. Judge Taubman wrote
the opinion, joined by Judge Rothenberg. Judge Russel dissented. The
case is intricate and requires careful study for a full understanding.
We may not have heard the last of this case either. People
v. Heredia County court had no authority to try defendant for felonies, and therefore a new trial was required. On the day scheduled for trial, the district court noted that no district judges were available to preside over defendant's trial. The district court therefore transferred the case to a county court division, over defendant's objection. On appeal, the defendant argued that the county court had no authority to try him. The court of appeals agreed, concluding that there was no order by the chief judge of the district court authorizing county court judges to conduct felony trials, and that without such an order, the county court judge had not authority to preside over defendant's trial. People v. Jachnik May 18, 2005 The court of appeals will announce six published decisions tomorrow, along with many unpublished ones. Here's the list of cases that will issue tomorrow: Published Opinions Nos.: 03CA0487 & 03CA1740 Colorado Compensation Insurance Authority,
d/b/a Pinnacol Assurance Company, et al. v. Dr. Ron Jones Unpublished Opinions No.: 01CA0584 People v. Harold Cunefare May 16, 2005 The supreme court has announced its oral argument schedule for 2005-2006. The court will hold arguments on September 13-15, October 25-27, December 6-8, 2005, and January 24-26, March 7-9, May 1, 3 and 4, and June 13-15, 2006. Plan your vacations accordingly. I'm still waiting for the court to post the calendar for the arguments it will hear this June. There are two matters that have been added recently to the supreme court's original proceedings docket. The first, In re Marriage of Stookey, No. 05SA124, from the Arapahoe County District Court, "seeks relief from the Arapahoe County District Court’s exercise of jurisdiction in this child custody matter, and requested that the Supreme Court issue a rule to show cause why the lower court should not be enjoined from exercising subject matter jurisdiction over the parties’ infant child pursuant to the Uniform Child-Custody Jurisdiction and Enforcement Act, § 14-13-101, C.R.S." In the second, In re People v. Fregoso-Perez, No. 05SA43, from the Denver District Court, a criminal defendant "seeks relief that would require the Plaintiff, the Honorable Judge Sheila A. Rappaport of the Denver District Court, to rule on his pending request for appointment of counsel and to conduct a timely evidentiary inquiry into Petitioner’s postconviction claims for relief pursuant to Crim. P. 35 (c)." The court's original proceedings page is here. Here are today's supreme court announcements. The court issued two decisions, summarized below. The court also granted cert. in five cases, and the issues in those appeals follow the case summaries. Finally, the court modified its decision, and denied rehearing, in Keller v. Koca. The modified decision, which simply changed the remand order, is here. Based on objective factors, a reasonable person in the defendant's circumstances would have considered himself to be deprived of his freedom to a degree associated with formal arrest. Therefore, incriminating statements made to police, after admittedly defective Miranda warnings, were obtained in violation of the defendant's Miranda rights. Accordingly, the court affirmed the trial court's suppression of the statements. Justice Kourlis, joined by Justices Rice and Coats, dissented, concluding that the trial court's findings were insufficient and the evidence was conflicting. She would have remanded for further factual findings. People v. Pascual Promise in 1984 Separation Agreement to pay for daughter's postsecondary education was not enforceable as a contract term. But because it was incorporated into the trial court's dissolution decree, the trial court retained continuing jurisdiction to modify its orders concerning the daughter, including the father's postsecondary education support obligation. C.R.S. § 14-10-115(1.5)(c.5) of the child support guidelines did not divest the trial court of that jurisdiction. In order to invoke that jurisdiction, however, the father had to show a substantial and continuing change of circumstances. Here, his sole basis for invoking jurisdiction was the postsecondary education child support cap in C.R.S. § 14-10-115(1.5)(b)(1). The court held that justification to be insufficient, standing alone, to invoke the trial court's continuing jurisdiction. In re Marriage of Chalat The court granted cert. in these cases: Wilford v. People, No. 04 SC 769, on this issue:
Whether the term “confederate” as it is used in the aggravated robbery statute, § 18-4-302(1)(c), 6 CRS (2004), requires the prosecution to prove that the confederate acted with intent. Alvarado v. People, No. 04 SC 868, on this issue:
Whether a conviction for criminal impersonation under section 18-5-113(1), CRS (2004) requires proof of an additional act, other than the act of impersonation, from which a defendant intends to receive a benefit. People v. Garmany, No. 05 SC 30, on this question:
Whether the Court of Appeals erroneously limited a trial court’s ability to assess the admissibility of expert testimony, improperly found professional disciplinary evidence to be irrelevant to an expert’s credibility, and erroneously determined that the admission of such evidence was not harmless error in this case Eichhorn v. Kelley, No. 05 SC 67, on these issues: Whether private counsel for the beneficiary of a court order, rather than the district attorney or a special prosecutor, is authorized by statute to prosecute an alleged punitive contempt of that order on behalf of the court.
Whether private counsel for the beneficiary of a court order prosecuting an alleged punitive contempt of that order creates a conflict of interest or an appearance of impropriety because private counsel has a sole duty to advance the client’s interests, rather than to seek justice and fairness in the prosecution.
Because a punitive contempt is a matter between the offending party and the court, does a beneficiary of a court order [have] standing to pursue punitive sanctions for an alleged contempt of that order? Guaranty Bank v. LaSalle National Bank, No. 05 SC 173, on this question:
Whether the court of appeals erred in ruling that subsequent lenders have notice of a recorded instrument when that instrument contains an incomplete legal description but would have been revealed under a grantor-grantee index search? May 12, 2005 Here are today's court of appeals announcements. The court issued only unpublished decisions. May 11, 2005 The court of appeals will issue the following unpublished decisions tomorrow (sorry, no published ones this week): Unpublished Opinions No.: 02CA1488 People v. Anthony Lane May 9, 2005 The supreme court's announcements for today are here. The court issued no new decisions and did not grant cert. in any cases. May 5, 2005 The court of appeals' announcements for today are here. The court issued 13 published decisions, summarized below. Successor judge erred in retroactively applying trial judge's recusal to vacate conviction entered by trial judge before recusal, where the facts giving rise to recusal developed after the conviction entered. People v. Schupper Claims challenging aggravation of sentence, asserting ineffective assistance of counsel, and arguing that certain evidence should have been suppressed were not properly raised as habeas corpus claims, but instead must be raised under Crim. P. 35(c). Because those claims had already been litigated, the court declined to consider them. Leske v. Golder Plaintiff's claims that city denied him fringe benefits in his employment as a lifeguard sounded in contract, not tort, and therefore were not barred by the Colorado Governmental Immunity Act. Adams v. City of Westminster Any agricultural classification of land for tax assessment purposes must be based on the statutory criteria of C.R.S. § 39-1-102 rather than on any non-statutory equitable considerations. Further, the focus must be on the actual use of the surface land, not on the taxpayer's subjective intent regarding the use of his land. Under the facts, the taxpayer could not demonstrate that he had used the property for agricultural purposes in 1999-2001. Therefore, the court of appeals reversed the district court's determination that the land qualified as agricultural. Hepp v. Boulder County Assessor "Ad-Tab" machines are gaming devices under C.R.S. § 18-10-102(3). Sniezek v. Colorado Department of Revenue County court did not exceed its jurisdiction, under C.R.S. § 16-19-117(1) when it set a "cash only" extradition bond. Fullerton v. County Court Amended declarations prohibited further subdivision of Plaintiff's land. Estate of McIntyre v. Lionsridge #4 Homeowner’s Association Trial court did not err in denying presentence confinement credit for time defendant spent on home confinement and electronic monitoring. Under C.R.S. § 18-1.3-405, "house arrest" does not constitute "confinement" and therefore does not entitle defendant to credit for presentence confinement. People v. Chavez Excise tax on imposed on the sale, use, consumption, handling or distribution of certain tobacco products, C.R.S. § 39-28.5-102, does not violate the Commerce Clause. McLane Western, Inc. v. Department of Revenue CRS § 10-4-517 provided absolute immunity to insurer from liability of any kind for any action taken by the insurer in the performance of its power and duties, including the handling of claims. Therefore, insurer could not be liable for penalties under § 8-43-304(1) for delay in making timely payments to claimant. Mosley v. Industrial Claim Appeals Office Court of appeals reverses denial of claim for adverse possession and remands for further proceedings. The claimant's removal of a fence did not support a finding of abandonment and therefore did not defeat the adverse possession claim. The court remanded for the trial court to determine whether the original landowner had acquiesced in the building of the fence, since acquiescence would defeat the adverse possession claim. Welsch v. Smith Under C.R.C.P. 36, a request for admission and the admission itself do not bind the requesting party. The purpose of Rule 36 is to bind the party making the admission, not the party requesting it, and therefore the submission of a request for admission, and the response to it, admit nothing as to the requesting party. Aspen Petroleum Products, Inc. v. Zedan Driving while ability impaired (DWAI) is a petty offense for Sixth Amendment purposes. But under the statutory scheme, first-time DWAI offenders are treated as though DWAI is a serious offense. Therefore, first-time offenders wishing to have a jury trial need not comply with C.R.S. § 16-10-109(2) (which requires a defendant charged with a petty offense to make a written request for a jury trial and pay a $25 fee within ten days of arraignment). Byrd v. Stavely May 4, 2005 The court of appeals will issue the following decisions tomorrow, including 13 published decisions: Published Opinions No.: 03CA1554 People v. Sanford B. Schupper Unpublished Opinions No.: 02CA2379 People v. Ned Pace, Jr. May 2, 2005 The supreme court's announcements for today are here. The court issued two decisions, summarized below. The court also granted cert. in one case, and the questions presented in that appeal follow the case summaries. The act required to invoke the jurisdiction of the district court in a criminal appeal from county court, under Crim. P. 37(a), is not the filing of a notice of appeal in the county court, but instead the timely docketing of the appeal in the district court. The defendant, convicted of driving while impaired in the county court, had filed a timely notice of appeal and designation of record in the district court. No notice of appeal was filed in the county court, and the district court dismissed the appeal on that ground. The supreme court unanimously reversed, holding that the filing of a notice of appeal in the county court is not a jurisdictional requirement, and that a timely docketing of the appeal in the district court is sufficient to invoke the appellate jurisdiction of the district court. Peterson v. People Because C.R.S. § 18-18-405 (unlawful distribution, manufacturing, dispensing, sale or possession of a controlled substance) defines a single offense, defendant could not be convicted of both possession and distribution arising out of the same transaction. Therefore, defendant's convictions for both violated the prohibition on double jeopardy. People v. Abiodun The court granted cert. in Roberts v. American Family Ins. Co., No. 05SC57, on these issues
Whether the court of appeals should have considered whether the plaintiffs’ motorcycle and automobile policies were issued by different companies in determining whether plaintiffs could stack underinsured motorist coverages, even if this specific contract interpretation was not raised in the trial court summary judgment proceedings.
Whether the court of appeals erred in rejecting plaintiffs’ argument that the anti-stacking provision in the motor vehicle policies they purchased from defendants was inconspicuous and, therefore, unenforceable.
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