November 30, 2004 The court of appeals' oral argument calendar for January 2005 is here. The supreme court's case announcements for today are here. The court issued 3 decisions, summarized below. The court did not grant cert. in any cases. The common law "open and obvious dangers" defense did not survive the enactment of Colorado's premises liability statute, C.R.S. § 13-21-115. In a 4-3 decision, the court concluded that the express, unambiguous language of the statute evidenced the General Assembly's intent to establish a comprehensive and exclusive specification of landowners' duties to those injured on their property. Accordingly, common law landowner duties and defenses do not survive the statute's adoption. Justice Kourlis, joined by Justices Hobbs and Coats, dissented, concluding that the express purpose of the statute was to protect private property rights and that since the "open and obvious dangers" defense was consistent with that purpose, it was not abrogated by the statute. Vigil v. Franklin When a defendant is charged with witness tampering under C.R.S. § 18-8-707(1)(b)--which forbids intentionally attempting to induce a witness or victim to "absent himself from any official proceeding to which he has been legally summoned"--the prosecution must prove that the witness or victim was "legally summoned," i.e., under some obligation to the tribunal to appear at an official proceeding. Since defendant was charged under that section, but there was no evidence the victim was "legally summoned," the conviction could not stand. Justice Coats dissented, concluding that the statute is violated when a defendant attempts to dissuade any person from complying with a lawful duty to testify truthfully, whether or not an official proceeding is pending and whether or not that person has been summoned to it. People v. Yascavage Another witness tampering case, however, went the People's way. When a defendant is charged under C.R.S. § 18-8-707(1)(a)--which forbids intentionally attempting to induce a witness or victim to "testify falsely or unlawfully withhold any testimony"--the prosecution need not prove that the witness or victim had been legally summoned to an official proceeding or that the defendant's actions were interfering with actual testimony. Addressing the defendant's forgery conviction, the court held that C.R.S. § 18-5-102, the forgery statute, can include forgery of an instrument intended to affect the defendant's legal status in a criminal prosecution (the defendant falsified a letter recanting the victim's name and signed her name without her knowledge or consent). Justice Bender, joined by Justice Martinez dissented on this interpretation of the forgery statute. Justice Bender concluded that the plain language of § 18-5-102(1)(c) (which includes among forged documents, "other instrument[s] which [do] or may evidence create, transfer, terminate, or otherwise affect a legal right") is ambiguous on whether the defendant's letter falls within the statute's ambit. Applying rules of statutory construction, Justice Bender concluded that the letter did not fall within the scope of the forgery statute. People v. Cunefare November 29, 2004 The supreme court will issue 3 decisions tomorrow, Vigil v. Franklin, People v. Yascavage, People v. Cunefare. I will summarize those decisions and have the case announcements for you tomorrow. November 23, 2004 The court of appeals case announcements for tomorrow will be here. This link won't be available until tomorrow morning when the court releases its decisions. The court will be issuing unpublished decisions only. I'm posting a day early because I will be taking tomorrow and the rest of the week off. I wish you all a happy and safe Thanksgiving. November 22, 2004 Here are the supreme court's announcements for today. The court issued one decision, in an interlocutory appeal. That case is summarized below. The court also granted cert. in two cases. The questions presented follow the case summary. In an interlocutory appeal, the court upheld a suppression order. The police discovered a shotgun under a couch in the defendant's apartment and obtained a statement from the defendant as the result of a nonconsensual warrantless search of the apartment. The trial court suppressed the evidence. On appeal, the prosecution argued that the evidence was properly seized as a search incident to arrest. The supreme court did not resolve that issue, concluding that the prosecution conceded the argument in the suppression hearing in the trial court. The court held that the trial court's suppression order was supported by competent evidence, and therefore upheld it. People v. Syrie The court granted cert. in the following cases: Aloi v. Union Pacific RR, No. 04SC320, addressing these issues: Where the trial court found that the defendant had willfully destroyed relevant evidence and correctly determined that an instruction on spoliation of evidence was thus warranted, did the court err in repeating such instruction during the course of the trial as a sanction for defendant’s destruction of evidence.
Whether the trial court improperly instructed the jury it could draw
an adverse inference from defendant’s missing documents. People v. McMurtry, No. 04SC437, on these questions:
Whether a defendant, who filed a motion to dismiss his case for a violation of the speedy trial statute but then entered a valid unconditional guilty plea, can still appeal the denial of his motion.
Whether the court of appeals erred in reaching the concededly “anomalous” conclusion that a violation of the statutory right to speedy trial divests a trial court of jurisdiction, yet a violation of the constitutional speedy trial right does not, thus precluding defendants from litigating these constitutional speedy trial violations on appeal after the entry of a guilty plea.
Whether delays in bringing a defendant’s case to final disposition,
due to the sheriff department’s repeated violations of court order
requiring enforcement of the sound-and-sight segregation rule set forth
under section 19-2-508(4)(b), 6 C.R.S. (2003), are chargeable to the
prosecution for purposes of evaluating violations of the right to speedy
trial and furthermore constitute evidence of “bad faith.” November 19, 2004. The supreme court will issue one decision on Monday, People v. Syrie, No. 04SA214. I'll have a summary of that case on Monday. November 18, 2004 Today's court of appeals announcements are here. The court issued 10 published decisions, summarized below. Because first degree burglary required the predicate offense of assault and the elements of first degree burglary include all the elements of assault, the burglary and assault merged. In order to maximize the jury's verdict the court vacated the first degree burglary conviction and retained the assault conviction. People v. Delci Colorado Consumer Protection Act's treble damages provision does not violate equal protection or substantive or procedural due process. Vista Resorts, Inc. v. Goodyear Tire & Rubber Co. Person released to mandatory parole can commit felony escape. Offenders on parole, though not in prison, remain in legal custody and are subject to return to a correctional facility at any time. The court also held that C.R.S. § 17-27.5-104 does not violate the separation of powers or the nondelegation doctrine. The court concluded that the statutory provisions sufficiently limited the parole board's authority so that the statute was constitutional. The court also rejected an equal protection challenge to §§ 17-27.5-104 and 106, as well as rejecting several other constitutional challenges raised by the defendant. People v. Sa’ra Testimony sought to be introduced as "impeachment by specific contradiction" was erroneously excluded under CRE 608(b), but error was harmless. The court also held that it was improper to admit a police officer's opinion that two witnesses were "sincere," but it was not plain error. People v. Hall General penalties under C.R.S. § 8-43-304(1) may only be imposed for violations of the Workers' Compensation Act when no penalty has been specifically provided. But the court concluded that § 8-43-401(2)(a) does not specifically provide for a penalty for an insurer's failure to provide treatment. Therefore, the general penalty imposed by the ALJ was proper. Pena v. Industrial Claim Appeals Office Claim of tortious interference was barred by the economic loss rule where duty to not unreasonably withhold consent arose from lease contract. But recovery for emotional distress was not barred because emotional distress is not an economic loss, but instead involves personal injuries. Parr v. Triple L&J Corporation Arbitrator has limited authority, under what is now C.R.S. § 13-22-220, to correct or modify an award once it has been delivered. The court held that the statute modified the common law doctrine of functus officio, which provides that after an arbitrator delivers the ruling, the arbitrator loses jurisdiction. The court vacated the district court's order confirming the arbitration award because the district court's judgment substantively changed the arbitrator's ruling. And because the arbitrator's ruling was ambiguous the court ordered the district court to remand to the arbitrator for clarification. Osborn v. Packard Deeds of trust issued by owner of property were subject to the effects of a TRO placing the property in constructive custody as a result of a forfeiture action. Thus, when the state perfected its title to the property, its title was superior to the deeds of trust. People v. Elvin L. Gentry, P.C. Claimant established his status as an "employee" for purposes of the Workers' Compensation Act by overcoming the presumption created under C.R.S. § 40-11.5-102(4). Claimant showed that he was not offered coverage that satisfied the requirements of C.R.S. § 40-11.5-102(5). USF Distribution Services, Inc. v. Industrial Claim Appeals Office Trial court could hold in contempt husband for changing his military pension to veterans' disability benefits, thereby affecting the property division payment to his former wife. The court of appeals rejected the husband's argument that since he had a right under federal law to elect to waive his military pension and receive veterans' disability payments instead, he could not be held in contempt. In re Marriage of Lodeski November 17, 2004 Here is the supreme court's oral argument calendar for December. The fiscal year 2004 judicial branch annual statistical report is here. The supreme court seems to have posted its oral argument calendar for December, but the link is not working. I'll try to have a good link for you as soon as the court's website has one. The court of appeals will issue the following decisions tomorrow: Published Opinions No.: 02CA0515 People v. Delci Unpublished Opinions No.: 02CA2577 People v. Anderson November 15, 2004 The supreme court's announcements for today are here. The court issued no new decisions and granted cert. in no cases. The
Tenth Circuit issued an important en banc decision on Friday, O Centro
Espirita Beneficiente Uniao Do Vegetal v. Ashcroft. The somewhat fractured
decision upheld a preliminary injunction granted under the Religious
Freedom Restoration Act, enjoining the U.S. from prohibiting the sacramental
use of hoasca by the plaintiff church and its members. The case is certainly
of importance and interest from a First Amendment free exercise perspective,
but the decision is more important for its clarification of the proper
preliminary injunction standard to be applied in cases where the injunction
sought is one from the following three categories: (1) preliminary injunctions
that alter
the status quo; (2) mandatory preliminary injunctions; and (3) preliminary
injunctions that afford the movant all the relief that it could recover
at the conclusion of a full trial on the merits. The majority concluded
that plaintiffs seeking such injunctions bear a heightened burden to
show that the four preliminary injunction requirements weigh
heavily and compellingly in their favor
before such an injunction may be issued.
To me, the heightened standard seems to be the equivalent of a clear
and convincing evidence standard. A
different majority of the court upheld the injunction.
For any practitioners
seeking a preliminary injunction in one of the three
above categories
in any district court in the Tenth Circuit, the case is a must-read
(and, unfortunately, a long one). The
decision can be accessed, for the time being, by clicking
on this link and then selecting 02-2323 under Published Opinions. November 12, 2004 The supreme court will issue no new decisions on Monday. If the court grants cert. in any cases, I'll let you know Monday. Have a good weekend. November 10, 2004 The court of appeals case announcements for today are here. The court issued only unpublished decisions. The court issued its weekly decisions today rather than its usual Thursday release, because tomorrow is Veterans' Day and the court will be closed. The court will also be releasing decisions on the day before Thanksgiving. The court has not yet issued its January argument calendar, but I expect that soon. November 8, 2004 The Denver District Court issued its decision in City and County of Denver v. State of Colorado, the declaratory judgment action in which Denver sought a declaration that certain Denver firearms control ordinances were not preempted by state law, or, alternatively, that the state laws violated the home rule amendment to the Colorado Constitution. The district court largely sided with the City. The decision can be found here. The supreme court case announcements for today are here. The court issued 2 decisions, which are summarized below. The court also granted cert. in 3 cases, one of them an important post-Blakely decision. The questions presented in those cases appear below the case summaries. McCarran Amendment's (43 U.S.C. § 666) waiver of sovereign immunity was not so broad that it allowed state court to evaluate and adjudicate federal agencies' decision-making processes related to the quantification application. Therefore there had to be both state and federal proceedings to resolve all the issues related to the United States' Black Canyon water rights. Thus, the water court did not abuse its discretion in entering a stay pending the outcome of federal litigation. Justice Hobbs, joined by Justice Kourlis, dissented, concluding that under the McCarran Amendment, the water court did have authority to decide all factual and legal issues in the case. In re Application of Water Rights of United States of America Signed release unambiguously released hunting expedition company from liability for injuries suffered by hunter on expedition, even if those injuries resulted from company's negligence. The supreme court held that C.R.S. § 13-21-119, which requires sponsors to warn of the inherent risks of equine activities, does not prohibit release agreements for negligent conduct. Justice Hobbs dissented, concluding that the release the plaintiff signed did not put him on notice that he was waiving the statutory duty of care the legislature placed on the company. Justice Kourlis did not participate. Chadwick v. Colt Ross Outfitters, Inc. The court granted cert. in these cases: City of Westminster
v. Centric-Jones Constructors, No. 03SC712, on these issues: DeHerrera v.
People, No. 04SC446, which will address this fundamentally important
sentencing issue: In re Marriage
of Ciesluk, No. 04SC555, on these questions: Finally, the court modified its opinion, and denied a petition for rehearing, in People v. McKinney. The modified opinion is here. November 4, 2004 Here are the the court of appeals announcements for today. The court issued 8 published decisions, summarized below. The court also issued numerous unpublished decisions. Failure
to merge aggravated robbery conviction into kidnapping conviction did
not violate double jeopardy. The court rejected the argument that Apprendi
and Ring v. Arizona mandated a different result. The court
also rejected the defendant's argument that his sentences were required
to run concurrently. People
v. Hogan Trial court properly classified defendant's conviction for sexual assault on an at-risk adult as a class 2 felony, rather than a class 3. The court concluded that under C.R.S. § 18-6.5-103(7)(a) only sexual assault crimes committed before July 1, 2000 that were previously described as second degree sexual assault should be classified as class 3 felonies. People v. Renfro Where no discrete part of arbitration award could be identified and severed, trial court erred by only partially vacating arbitration award procured in part based on fraudulent evidence. Instead, entire award had to be vacated, and case was remanded to the trial court to determine whether a rehearing, before a new arbitrator, was appropriate. Superior Construction Company, Inc. v. Bentley Because
defendant, in pleading guilty, admitted the fact on which his enhanced
sentence was based, his sentence did not violate Apprendi,
and therefore postconviction relief was not available.
People
v. Fogle Dismissal of case was violation of automatic bankruptcy stay that rendered dismissal void. Under C.R.C.P. 60(b)(3), a void judgment may be challenged at any time and must be vacated upon request. Therefore, the dismissal was void and had to be vacated under Rule 60(b)(3). Unlike review of trial court rulings on other subsections of Rule 60(b) (which are reviewed for abuse of discretion), review of a trial court's ruling on a Rule 60(b)(3) motion is de novo. McGuire v. Champion Fence & Construction, Inc. Decision
by board of adjustment is accorded a presumption of validity that developer
challenging board's action must overcome in C.R.C.P. 106 action. Developer
failed to do so, where board interpreted county commissioners' resolution
to impose a ten-house limit instead of a ten-lot limit. The court also
held that the county commissioners did not lack authority to enact the
ten-house limit. C.R.S. §§ 19-1-115(4)(d) (which imposes a mandatory obligation on parents to contribute to the cost of their child's residential placement by a public agency) and 19-2-114 (which permits the court to order either the parents or the juvenile to pay for the cost of care) can be harmonized and must be considered together. Magistrate erred by considering only 19-2-114 in denying request by Denver Department of Human Services for reimbursement of foster care fees. People in the Interest of M.L.M. November 3, 2004 Well, the election has come and gone. Interesting outcome in Colorado, where it looks like the Democrats will control both houses of the state legislature. It'll certainly affect the legislative agenda for the next two sessions. But now on to the courts. The court of appeals will issue the following decisions tomorrow: Published Opinions No.: 02CA0396 People v. Jason Hogan Unpublished Opinions No.: 02CA0270 People v. Kevin Martin November 1, 2004 I'm back. I spent the last week in Washington DC on vacation. Took the family to see the memorials, museums, and other sites. Ran into Newt Gingrich at the Jefferson Memorial and Ross Perot at the National Archives. Great time of year to see DC-great weather, not crowded. I highly recommend the Spy Museum, though it's best for adults and kids 12 and up. Anyway, the Colorado appellate courts were relatively quiet last week, so I thank them for that. Here are the supreme court's case announcements for today. The court issued no decisions, and grant cert. in no cases. The supreme court granted cert. in two cases last Monday (October 25-while I was at Mt. Vernon). The case announcements from that day are here. The court agreed to hear these appeals on the following issues: Dempsey v. People,
No. 04SC362: Compan v. People, No. 04SC422: Whether Petitioner's constitutional Right to Confrontation under the
Sixth Amendment to the U.S. Constitution was violated by the admission
of an extended narration as an "excited utterance" exception
to the hearsay rule when such evidence was never tested by cross-examination
as required by Crawford v. Washington, 541 U.S. ____ , 124 S.Ct. 1354,
158 L.Ed.2d 177 (2004).
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