May 31, 2006 The court of appeals will release the following decisions tomorrow, including 12 published decisions. Unfortunately, I will be unable to summarize those any time soon. Realistically, I will not be able to get the court of appeals' decisions from May 18th and June 1st summarized and posted until the week of June 12th. I apologize for this unusual delay, but the harmonic convergence of many work activities has necessitated it (not to mention what it's done to my golf game). PUBLISHED OPINIONS No.: 04CA0492 People v. John D. Jones UNPUBLISHED OPINIONS No.: 03CA0875 People v. Donald Lee Cook May 30, 2006 The supreme court's oral argument calendar for June is here. The court will hold arguments on June 13-15, and on the 15th will have a public hearing on proposed amendments to the Colorado Rules of Professional Conduct Here are today's supreme court announcements. The court issued three decisions and granted cert. in three cases. In an appeal of a suppression order, the court held that the interrogating officer should have known his words and actions were reasonably likely to elicit an incriminating response, and defendant's statements were in response to the functional equivalent of interrogation. Therefore, those statements were appropriately suppressed for violating Miranda. The court concluded, however, that spontaneous statements made by defendant while he was alone in the interrogation room were not the product of a custodial interrogation. Further, the court held that statements made following his reinitiation of contact with the interrogating officer did not infringe upon the Fifth Amendment right to counsel. Finally, the court held the record did not support the trial court’s finding that all of the statements were involuntary. Justice Coats, joined by Justice Eid, dissented from the conclusion that Miranda was violated. People v. Wood A trial court retains jurisdiction to determine substantive matters when a party files a premature notice of appeal of a nonfinal judgment. The court further holds that a judgment subject to C.R.C.P. 54(b) certification must be so certified in order to be considered final and sufficient to transfer jurisdiction to the court of appeals. Musick v. Woznicki Initiative #74, which seeks to impose expiration dates upon all governmental actions for which voter approval is required under article X, section 20 of the Colorado Constitution (TABOR), violates the single-subject requirement of article V, section 1(5.5) of the Colorado Constitution. The court therefore reversed the action of the Title Board. Justice Coats dissented. In the Matter of the Title, Ballot Title and Submission Clause for 2005-2006 #74 The court granted cert. in the following cases: People v. Flippo, No. 05SC794, on these issues: Whether section 16-8-107(3)(b), C.R.S. (2005), which requires notice and a court-ordered examination before a defendant may introduce expert opinion evidence concerning his or her mental condition, applies regardless of the purpose for which the evidence is admitted.
Whether the court of appeals incorrectly held that section 16-8-107(3)(b), only applies when a defendant offers expert opinion evidence concerning his mental condition as a defense or to show a lack of a required mens rea, although the statute contains no such limiting provision.
If the trial court erred in preventing the respondent from presenting evidence of his mental condition, was such error harmless. Clyncke v. Waneka, No. 06SC66, on this question: Whether the court of appeals erred in substituting the word “or” in place of the word “and” in the Colorado Equine Activities Statute, thereby greatly expanding the potential liability of those involved in the equine industry despite the stated legislative purpose of the Colorado Equine Activities Statute to provide immunity and limit liability in that industry. Williams v. Kanau, No. 06SC93, on this question: Whether, in cases where a claimant has successfully challenged an initial MMI rating through the DIME process, the claimant must request a follow-up DIME in accordance with section 8-42-107, 107.2 in order to challenge the subsequent MMI rating. May 25, 2006 The court of appeals' announcements for today will be here. The court is issuing only unpublished decisions today. May 22, 2006 The supreme court's announcements for today are here. The court issued two decisions, both on initiative ballot title matters. Summaries are below. The court did not grant cert. in any cases. The court affirmed
the Title Board's action setting the title, ballot title and submission
clause for the judicial term limits amendment. The text of Initiative
#75 states that the terms of office for court of appeals judges and
supreme court justices shall be four years, and no court of appeals The court also
affirmed, in a 4-2 decision, the Title Board's action setting the title,
ballot title and submission clause for the "Pay-to-Play" amendment,
which the Proponents say seeks to eliminating contributions made to
issue committees supporting Amendment 1 (TABOR) ballot measures by persons
who might stand to gain any form of direct or indirect benefit from
the passage of the measure. Justice Hobbs, joined by Justice Bender,
dissented, concluding that the initiative violated the single-subject
rule. In
the Matter of the Title, Ballot Title and Submission Clause, and Summary
for 2005-2006 #73 ("Pay-to-Play" Contributions) The summaries May 18th's court of appeals' decisions will be delayed due to my current workload. I apologize, but assure you that they will be posted eventually. May 17, 2006 Here is the court of appeals' oral argument calendar for July. The court of appeals will release decisions tomorrow, including 11 published opinions. The list of cases to be released appears below. I will be out of the office Thursday and Friday and will not be able to get summaries done. But here is the link to tomorrow's case announcements. The link should be available as of about 8 a.m. on Thursday. PUBLISHED OPINIONS No.: 04CA1224 People v. Sanford B. Schupper UNPUBLISHED OPINIONS No.: 03CA1672 In re the Marriage of Phyllis M. Coors and William Kistler
Coors May 15, 2006 Here are today's supreme court announcements. The court issued three decisions, which will be summarized below. The court did not grant cert. in any cases. A ground water rights owner or user whose well is pumped with his authorization is a “person who diverts ground water” within the meaning of C.R.S. § 37-92-503(6)(a). The statute imposes liability on an owner or user of water rights, to whom an order to discontinue was validly issued under § 37-92-502, whose well continues to be used with his authorization. The court concluded the People presented sufficient evidence that Plaintiff and his family continued pumping after being ordered not to do so by the state and division engineers, and therefore affirmed the water court's assessment of a penalty. Vaughn v. People A witness may not be asked to opine on the veracity of another witness at trial. Defendant was asked on cross-examination by the prosecution whether he believed another witness was “lying” or “mistaken” as to contested issues of fact. Defense counsel objection to the “lying” questions and was overruled. As a matter of first impression, the supreme court held “were they lying” questions are categorically improper. But the court also concluded the errors did not constitute reversible error, and affirmed the conviction. Liggett v. People In a workers'
comp. case, the court held that under C.R.S. § 8-42-107(7)(b)(III),
mental impairments cannot be combined with either scheduled or nonscheduled
physical injuries when calculating a whole person impairment rating
for purposes of the benefits cap provision in § 8-42-107.5. Chief
Justice Mullarkey, joined by Justice Martinez, dissented, concluding
"Nothing in the express language, legislative history, or surrounding
circumstances of either statute requires the result May 11, 2006 Here are today's court of appeals announcements. The court issued only unpublished decisions. May 10, 2006 The court of appeals will release the following unpublished decisions tomorrow (no published decisions will be released): No.: 03CA2517 People v. Jennifer Lee-Renee Wend May 8, 2006 Here are today's supreme court announcements. The court issued no new decisions and did not grant cert. in any cases. Since the legislative session ends this week, the court's pending decision in the line-item veto case apparently will not have an impact on this year's budget (the last of the Owens administration). May 4, 2006 The court of appeals' announcements for today are here. The court issued 12 published decision, summarized below. Officer who had consent to enter defendant's hotel room to talk could generally move around the room, at least in the circumstances present here. Thus, when the officer stood near the nightstand, and was then able to look into a partially open drawer and see a syringe filled with fluid, he was able to seize the syringe under the plain view doctrine. People v. Bostic Court of appeals concludes that defendant's due process rights in probation extension proceedings are less significant than in probation revocation proceedings. Therefore, the court concluded that due process did not require a hearing before extending defendant's probation. The court noted that the record suggested the defendant chose to extend his probation rather than proceed to a revocation hearing, which could have resulted in the revocation of his probation. People v. Conner Ina 106 action, the court held that the Jefferson County Board of Commissioners abused its discretion by permitting developers to make substantial changes to their proposal after the public testimony was closed. The court said, "We agree with CARE that the Developers’ revisions and additions were substantial enough to warrant adequate public review, and that the public was not reasonably informed of the project specifications, as required by zoning resolution § 1.G.3.1 and § 31-23-304, C.R.S. 2005." Canyon Area Residents for the Environment v. Board of County Commissioners Trial court erred in finding that Texaco, which sold the Colorado lottery tickets that were the subject of plaintiff's class action, was an “instrumentality” of the state and therefore constituted a “public entity” for purposes of the GIA. Though Texaco was a licensed lottery sales agent, the court held, "Extending immunity to Texaco would not further the General Assembly’s intent in the GIA to limit the burden on state taxpayers. Any liability imposed on Texaco would be paid by Texaco, not the state." Robinson v. Colorado State Lottery Division Nurse's termination
did not violate public policy where , according to plaintiff, it was,
at least in part, in retaliation for conduct required by her ethical
obligations as a nurse. The court concluded that neither the American
Nurses Association's Code for Nurses nor a "public policy"
entitled "Role of the Critical Care Nurse" that appears on
the website of the American Association of Critical Care Nurses website
supports a public policy wrongful discharge claim. The court also rejected
plaintiff's argument that her termination violated public policy arising
from the Colorado quality management functions statute, C.R.S. §
25-3-109. The court concluded the statute does not support a public
policy wrongful discharge claim. Jaynes
v. Centura Health Corporation Trial court erred in exercising jurisdiction over suit sought to enforce previously decreed water rights. The plaintiff sought to enforce his rights and the defendant defended on the grounds of adverse possession. The court of appeals, sua sponte, held that the issue was within the exclusive jurisdiction of the water court, and had to be resolved there. The court concluded the trial court did have jurisdiction to consider plaintiff’s negligence, trespass, and nuisance claims, and affirmed the trial court's judgment on those. Archuleta v. Gomez In an eminent domain case involving property near SH 119 that CDOT wished to use, the court of appeals reversed the trial court's determination that the property owner had to be compensated for use of CDOT's right-of-way. The court noted CDOT's right-of-way was not dependent on permission from the County, and did not merge into the County’s interest as a result of earlier conveyances, could not be abandoned by the County, and was not abandoned by CDOT. Thus, CDOT’s right-of-way was enforeceable unless, as found by the trial court, CDOT was estopped from asserting its interest in the right-of-way. The court held, as a matter of law, that the facts found by the trial court did not support the application of the doctrine of promissory estoppel to preclude CDOT from asserting its interest in the property. Department of Transportation v. First Place, LLC Trial court
erred in holding that C.R.S. § 13-80-108(4), instead of §
13-80-108(6), determined the accrual date for natural gas royalty claims.
Under subsection 6, the claims began to accrue when the royalty owners
became aware of BP’s breach of the lease agreements in November
and December 2003. The court rejected BP's argument that BP argues that
subsection 4 controlled and therefore that the claims began to accrue
on the various dates BP allegedly underpaid the royalties, ending in
January 1998. The court said that because statutory accrual provisions,
as applied to a particular case, can preclude parties from litigating
a claim in the same manner that statutes of limitations can, a dispute
between equally applicable statutory accrual provisions Health Authority
Act, C.R.S. § 25-29-101, et seq., does not create a statutory exception
to the corporate practice of medicine doctrine and a contrary conclusion
would defeat the expressed Personnel Board
did not abuse its discretion by refusing to enter judgment against DOC
on disciplinary action against a DOC employee. The DOC employee had
been disciplined, but the DOC later rescinded the disciplinary action.
Therefore, the request for the Personnel Board to enter judgment against
the DOC was rendered moot. The court did conclude, however, that the
that the Personnel Board erred as a matter of law in upholding the ALJ’s
determination that an evidentiary hearing on an appeal of the disciplinary
action was a prerequisite to a request for attorney fees. Aragon
v. Department of Corrections County’s
payment of mileage reimbursement to county employee using his personal
vehicle did not create a lease of his vehicle for purposes of the GIA.
Therefore, the trial court correctly determined that the GIA barred
a claim against the County brought by someone injured in a car accident
with the employee during the course and scope of employment. The court
said that absent the right to possession, control, and use of the employee’s
vehicle, the payment of mileage reimbursement does not create a lease
of the vehicle. The court ackowledged that its interpretation of the
GIA will have an anomalous result: a party injured in an auto accident
by a District court
court did not err in concluding that hearing officer abused his discretion
and acted arbitrarily and capriciously by failing to document that inmate
had knowingly and voluntarily waived his right to remain silent during
the hearing as required by the Code of Penal Discipline. The court held,
"Because a different regulation requires audio taping the entire
hearing, documentation of an inmate's waiver of a right . . . must entail
more than mere recording of the hearing. In our view, the regulation
at issue requires a hearing officer to make at least a brief inquiry
to ascertain that an inmate's waiver of the right to remain silent was
knowing and voluntary. After such an inquiry, the hearing officer must
state on the record the conclusion that the inmate's waiver was knowing
and voluntary." The court concluded the error was not harmless.
But it reversed the district court's order requiring expungement of
the inmate's May 3, 2006 The governor has appointed Steven Bernard, Jerry Jones and Diana Terry to the Colorado Court of Appeals, to fill the new judgeships created during this legislative seession. Congratulations to each of them, and I wish them many years of great service to the court and the people of Colorado. I have now finished the backlog of case summaries. The May 2nd post contains the summaries of the cases from the supreme court decided April 24th and the cases from the court of appeals published April 20th. Thanks for your patience. Of course there's no time for a breather, because tomorrow the court of appeals will issue 12 more published decisions. Here is the list of opinions the court will issue tomorrow: PUBLISHED OPINIONS No.: 03CA2114 People v. Julie A. Bostic UNPUBLISHED OPINIONS No.: 02CA0445 People v. Thomas Lee Johnson May 2, 2006 Happy Birthday Audrey! Below are the summaries of the supreme court decisions from April 24th and the court of appeals' published decisions from April 20th. (It's a work in progress, so if the list is not complete please check back.) Supreme court summaries: The Department
of Corrections did not violate the trial court's sentencing order in
calculating presentence confinement credit. Because the district court
made no attempt to impose a specific method of calculation on the department,
even after the defendant sought such an order, the department correctly
followed the legislative mandate to deduct presentence confinement credit To invoke a
rape shield hearing under the history-of-false-reporting provisions
of C.R.S. § 18-3-407(2) and (2)(a), the affidavit accompanying
the defendant’s offer of proof must articulate facts which, if
demonstrated at the evidentiary hearing by a preponderance of the evidence,
would show that the alleged victim made multiple prior or subsequent
reports of sexual assault that were in fact false. An allegation that
charges were not brought as a result of other sexual assault allegations
is insufficient as a matter of law to warrant the trial court convening
an evidentiary hearing under §18-3-407(2)(c). People
v. Weiss A defendant’s
failure to make corrections or additions to his presentence report when
asked by the court does not constitute an admission that supports aggravated
sentencing under Blakely and Lopez unless the defendant knowingly, voluntarily,
and intelligently waives his right to jury trial on the facts contained
in the presentence report. Because Defendant in the instant case did
not effectuate a valid waiver of his Blakely rights, his sentence violated
Blakely and must be set aside. The court remanded for resentencing within
the presumptive range. Justice Coats dissented, concluding "The
record in this case is literally awash with evidence that the defendant Aggravated-range
sentence was properly based on the Blakely-exempt prior-conviction fact
that Court of Appeals summaries: Regardless of its similarity to the charged offense, the fact of a prior misdemeanor conviction falls within the prior conviction exception to the rule of Apprendi. People v. Blessett Trial court erred by denying defendant's motion for judgment of acquittal as to felony counts of violation of bail bond conditions because the two bond conditions defendant was charged with violating were not specifically ordered by the county court, and pretrial services acted ultra vires and without statutory authority in imposing those bond conditions. People v. Rickman An attorney’s discussion of one witness’s testimony with a prospective witness did not violate CRE 615. People v. Villalobos The treble damages
provision of C.R.S. § 18-4-405 (the civil theft statute) imposes
a statutory penalty governed by C.R.C.P. 98. Therefore, the trial court
did not err in granting defendants’ Department of Personnel Reg. No. 4-11(A), 4 CCR 801, conflicts with C.R.S.§ 24-50-112.5(5)(b) and is, therefore, void to the extent of that conflict. Martinez v. Department of Personnel and Administration Executive Office Attorney's charging lien attached to settlement. Cope v. Woznicki In a Medicaid benefits case, 42 U.S.C. § 1396a(a)(3), which says that a state plan for medical assistance “must provide” a fair hearing to “any individual” whose claim for medical assistance under the plan is denied or is not acted upon within reasonable promptness, does provide a private right of action that can be enforced in a § 1983 action. Monez v. Reinertson Property lessee did not have the exclusive right to use or possess the areas outside the building footprints under C.R.S. § 39-1-103(17)(a)(II)(B). Nor did it have the ability to exclude others from making the same beneficial use of these areas. Accordingly, the areas outside the building footprints are not subject to lessee's exclusive use and possession and thus are excluded from valuation for tax purposes under § 39-1-103(17)(a)(II)(B). Denver jetCenter, Inc. v. Arapahoe County Board of Equalization C.R.S. § 15-16-203 provides in part that the court "will not, over the objection of a party, entertain proceedings under section 15-16-201 involving a trust registered or having its principal place of administration in another state, except when all appropriate parties could not be bound by litigation in the courts of the state where the trust is registered or has its principal place of administration, or when the interests of justice otherwise would seriously be impaired." Addressing this statute, the court concluded that it was not jurisdictional, but instead they provides that, when there is a possibility of litigating in more than one forum, trust litigation should proceed in the most appropriate forum. On the facts of the case, the court concluded that the probate court did not abuse its discretion in referring the case to the state of the trust’s administration (Wisconsin) would not strongly impair the interests of justice. In addition the court held that the beneficiary's constitutional right to access the Colorado courts was not violated. Luebke v. Luebke Parents of deceased sister who brought a wrongful death claim are not “persons” separate and apart from the deceased sister within the meaning of insurance policy's declarations, the insuring language, or the limitations of the policy, such that a separate “per person” policy limit applies to them. Swan v. Farmers Ins. Exchange Taxpayer's appeal was timely filed under C.R.S. § 39-21-105(1) where his appeal was filed within 30 days of the Department's second notice of deficiency, even though the appeal was more than 30 days after the Department's first notice. The court rejected the Department's contention that taxpayer was liable for the delinquent withholding taxes of the company for whom taxpayer had been president. The court held C.R.S. § 39-21-116.5 applicable only to those corporate officers responsible for tax compliance who willfully fail to collect, account for, or pay taxes. The undisputed evidence showed that taxpayer was not responsible for his company's tax compliance. Hanson v. Department of Revenue Court concludes that the presumptive sentencing range for the class four felony offense of attempted unlawful distribution of a schedule II controlled substance is two to six years. But the court rejected the defendant's argument that because the presumptive sentencing range for the offense for which he was convicted is two to six years, his eight-year violated Blakely. Defendant made a binding admission at the time of his plea that he would be subject to aggravated range sentencing because he was on parole at the time he committed the offense. Therefore, Blakely was not violated. People v. Blinderman Court rejects claims for preliminary injunction against CHSAA concerning eligibility of allegedly-disabled plaintiffs to play high school sports. Tesmer v. Colorado High School Athletic Association May 1, 2006 Here are today's supreme court announcements. The court issued no decisions and did not grant cert. in any cases.
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