November 29, 2006 The court of appeals will release the following decisions tomorrow. I will be unable to get summaries posted before Friday, as I will be in court tomorrow. Published Opinions No.: 01CA2340 People v. Hausua A. Whittiker Unpublished Opinions No.: 02CA1371 People v. James L. McNurlen November 27, 2006 Here are the court of appeals' announcements from last Friday. The court issued only unpublished decisions. Here are today's supreme court announcements. The court issued 2 decisions, summarized below. The court granted cert. in two cases. The questions presented in those cases appear below the case summaries. In two consolidated cases involving of identically-situated spouses who were codefendants, the supreme court resolved a split of authority between two divisions of the court of appeals to determine whether a trial court is obligated to undertake an inquiry into a defendant’s financial situation sua sponte. Prior to trial, the court gave the couple an Arguello advisement about the constitutional right to counsel, during which both defendants assured the court they were not entitled to court-appointed counsel. After appearing several times without representation, the court found the couple had waived their rights to counsel. They proceeded to trial pro se and were convicted on all counts. The court of appeals reversed the wife’s convictions, finding her Sixth Amendment right to assistance of counsel was violated. However, a separate panel of the court of appeals affirmed the husband’s convictions. The supreme court held the Arguello advisement given to the couple to be sufficient, and therefore concluded the trial court had no duty to inquire into the couple’s financial situation in the absence of an affirmative statement by the defendants that they could not afford counsel. People v. Alengi Supreme court
affirms water court judgment. The parties had contested the meaning
of a stipulated decree provision contained in a conditional water rights
diligence decree. The stipulated decree provision concerned Cherokee’s
use of two sets of wells in the Upper Black Squirrel Creek Designated
Ground Water Basin known as the Cherokee Wells 18 in the northern part
of the Designated Basin and the Sweetwater Wells in the southern part
of the Designated Basin. The court granted cert. in these cases: M.S.W. v. People, No. 06SC418, on this issue:
Whether the court of appeals erred in concluding that the juvenile court properly admitted statements made by petitioner to law enforcement, absent his parents’ presence or a written waiver of his parents’ presence, based on an erroneous finding that petitioner was not in custody at the time the statements were made. Hanover Sch. Dist. No. 28 v. Barbour, No. 06SC446, on these questions: Whether a school district is required by section 22-63-203(3), C.R.S. (2006), to give a nonrenewed probationary teacher a second written notice after the teacher has been given a written notice of intention to nonrenew and has had actual notice of the nonrenewal.
Whether a probationary teacher who has been improperly nonrenewed is entitled to recover full back pay without offset of earnings from alternative employment.
Whether a court may order the reemployment of a probationary teacher after the term of his contract has ended and he has been awarded a damages remedy for the school district’s failure to employ him for the contract term. November 21, 2006 I have updated the November 20th post to include the supreme court case summaries, and the November 16th post to include the court of appeals summaries. I will be off the rest of the week to enjoy some R and R with my family, so there won't be any more posts this week. The court of appeals will likely release decisions tomorrow, but they should be only unpublished ones. Happy Thanksgiving to everyone. Have a safe holiday and if you're driving, don't drink, and if you're drinking, don't drive. November 20, 2006 Here are today's supreme court announcements. The court issued four decisions and granted cert. in one case. Summaries of the decisions will appear in the next couple of days. The cert. grant was in Kruse v. McKenna, No. 06SC555, on this question: Whether the court of appeals’ ruling that Colorado courts have subject matter jurisdiction over federal Telephone Consumer Protection Act claims due to a legislative “acknowledgment” is in error and must be reversed. The plain language of C.R.C.P. 26(c) does not authorize a protective order that would restrict the use of documents originally obtained outside the discovery process in the pending action. Jessee v. Farmers Insurance C.R.S. § 5-12-106(1)(a) mandates that an appealing judgment debtor pay post-judgment interest when the appeal is affirmed and the funds were inaccessible to the creditor. The court further held that § 5-12-106(1)(a) makes no exception for attorneys’ fees. Thus, post-judgment interest on attorneys’ fees is required when the judgment is affirmed on appeal. Finally, the court held that it is left to the trial court to determine, given the relevant facts of the case, whether the wife or her attorney receives interest on the attorneys’ fees. In re the Marriage of Gutfreund In a Blakely case, the court concluded that Colorado law does not contemplate an increase in the statutory maximum sentence to which a defendant has subjected himself by pleading guilty, based on subsequent jury findings, which are the functional equivalent of elements of a greater offense than the one to which he pled. Therefore, the district court's order permitting additional jury findings was disapproved. In re People v. Lopez Police were
dispatched to a burglary in progress and first contacted the witness
alone on the front porch. After securing the scene, the officer took
a statement from the witness, who would later be unavailable to testify
at trial. Examining the record, the supreme court determined that the
officer’s primary purpose for interrogating the witness was to
investigate past events that were potentially relevant to a later criminal
prosecution. The court held that there was no ongoing emergency at the
time the statements were made because the officers had control of the
situation, there was no threat to the declarant at the time the statements
were made, and the statements were not made in a frantic or unstable
situation. Therefore, the statements were testimonial, and their admission
violated Crawford. But the court concluded the admission of the statements
was harmless beyond a reasonable doubt because there was no reasonable
probability that the defendant could have been prejudiced by the admission
of the statements. Raile
v. People November 17, 2006 The supreme court's oral argument calendar fr December is here. The court will hear arguments December 5-7. On December 11, the court will hold a special session at Gateway High School in Aurora to hear two cases. The supreme court will issue these four decisions on Monday: 05SA370 - Jessee v. Farmers Insurance (no orals) 05SC902 - In re the Marriage of Gutfreund and Hughes (no orals) 06SA116 In re People v. Lopez (no orals) 05SC756 Raile v. People November 16, 2006 Here are today's court of appeals announcements. The court issued 17 published decisions. I will get summaries posted in the next few days. Court of appeals
affirms the convictions and sentences for Will Hoover. The court rejected
Hoover's contention that the trial court impermissibly infringed upon
his constitutional right to present a defense, by prohibiting him from
testifying about his attorney’s advice on four separate matters.
The court rejected Hoover's other challenges to both his convictions
and sentences. Of particular interest, the court concluded that because
the the General Assembly clearly authorized separate punishments for
COCCA and the underlying predicate offenses of theft and securities
fraud, conviction for both COCCA and those underlying offenses does
not violate double jeopardy. People
v. Hoover A parent may
only bring suit under the Wrongful Death Act if the decedent is “an
unmarried adult without descendants.” Therefore, a decedent’s
parent may not bring suit under the Act if the decedent is survived
by a child. Because the decedent had a son, the decedent's mother was
not a Proper analysis
in claim of ineffective assistance for failing to initiate plea negotiations
is whether, in light of the particular facts and circumstances of the
case, defense counsel’s failure to initiate An exemption
lacking statutory authority, claimed and allowed in bankruptcy, does
not continue Defendant's
conviction was reversed because the jury was not instructed that, to
find him guilty, it had to find that his attempt to possess the schedule
III controlled substance was not pursuant to a lawful prescription.
In so holding, the court concluded that the "prescription exception"
referenced in C.R.S. § 18-18-405(1)(a), is an affirmative defense,
and that defendant was entitled to an instruction on that affirmative
defense.
People v. Whaley Doctrine of unclean hands provides no defense to right to partition property because the right to partition is absolute. The court also held that the county was not, by virtue of its tax lien on the subject property, an indispensable party under C.R.S. § 38-28-102. Colorado Korean Association v. Korean Senior Association of Colorado Town's ordinance, creating a lien for the collection of its sales taxes that was superior to bank's lien, was a proper exercise of the Town's authority under Article XX of the Colorado Constitution, and therefore Town's lien was superior. Town of Avon v. Weststar Bank Wife was entitled to attorney's fees for bringing contempt action against husband for failure to pay court-ordered child support, where martial separation agreement provided for award of fees to prevailing party. Marriage of Sanchez-Vigil Public notice for Town Board of Trustees' meeting did not comply with the Open Meetings Law, C.R.S. § 24-6-402(2)(c), because it did not not including specific agenda information regarding the Board’s January 8, 2004 decision not to undertake a construction project at a town park. The majority concluded that the notice conveyed that an advisory committee’s work would continue and, hence, that there would not be a final decision regarding the project. Therefore, the notice was not full, adequate, or fair under the circumstances. Judge Carparelli wrote the majority opinion, joined by Judge Jerry Jones. Judge Casebolt dissented, concluding the Town had complied with the statute: "this case does not present a situation in which decisional processes were closed to public scrutiny. Nothing in this case was decided in secret; indeed, the action was taken at an open meeting. Because it was not possible to include in the notice an action that no Town Board member contemplated at the time the notice was posted, I would conclude the Town complied with the Open Meetings Law." Darien v. Town of Marble Hearsay statements
victim made at a family gathering before the victim went missing, were
not testimonial under Crawford. There was no showing of any police involvement
when the statements were made, or that the statements were made as a
part of, or in preparation for, a Deed of trust
was a spurious document under C.R.S. § 38-35-201(3). The deed holder
had no Appeal dismissed
for lack of jurisdiction. The majority concluded that the supreme court
did not intend to enable parties to obtain a “final, appealable
judgment” in a probate action by filing a new petition under a
new case number, where, as here, determination of the new petition is
inextricably linked to the main probate proceeding, and there is no
preclusive effect of the probate In an appeal
of a driver's license revocation, the court of appeals rejected the
petitioner's contention that the deputy violated his due process rights
by failing to inform him that he did not have the option to take a breath
test because the hospital where he received treatment did not have breath
testing equipment. The court said that there is no constitutional right
to an advisement concerning the right to choose between a blood test
and a breath test, and absent such a right, plaintiff was not constitutionally
entitled to an advisement that he did not have a choice of tests, or
that no such choice existed for a particular reason. The court also
rejected petitioner's argument that C.R.S. § 42-4-1301.1 violates
equal protection because it improperly treats individuals differently
because it allows some the right to choose between a blood test and
a breath test, but limits those receiving medical treatment at locations
without breath testing equipment to a blood test only. Evans
v. Department of Revenue Plain language of C.R.S. § 19-2-516(1) supported the district court’s finding that juvenile was a mandatory sentence offender. People In the Interest of J.C.P. Trial court
properly dismissed prisoner's constitutional challenge that contended
the DOC illegally increased his sentence by applying § 17-22.5-403(2)(a)
and (3) in calculating his parole eligibility date. Contrary to plaintiff’s
argument, regardless of the extension of his parole eligibility date
by the application of these provisions, the DOC has not increased his
sentence, illegally or In a paternity action, the district court did not abuse its discretion in affirming the magistrate's order denying the paternal grandmother's motion to intervene. While the grandmother has standing to seek visitation under C.R.S. § 19-1-117, the district court did not err in denying intervention. The statute does not create an unconditional right to intervention. The court ntoed that the issue of grandparent visitation could inject new factual questions into the paternity action, causing delay and confusion in the adjudication of the parents’ rights. Furthermore, grandmother can protect her right to visitation by filing an independent proceeding for visitation under § 19-1-117. Therefore, it was not an abuse of discretion to deny permissive intervention. In the Interest of K.L.O-V. In appeal of permanent child custody order, the trial court did not lack jurisdiction to enter the order of permanent custody even though and appeal from the adjudicatory decree was pending. The court concluded that the second sentence of C.R.S. § 19-1-109(2)(c) provides a trial court with continuing jurisdiction to enter such further permanent custody orders under § 19-3-702 as it deems necessary to further the child’s best interests, even if those orders are entered after the order adjudicating the child dependent or neglected is appealed. People In the Interest of K.A. November 15, 2006 The court of appeals will release the following decisions tomorrow, including 17 published ones, one of which is the appeal of Will Hoover: Published Opinions No.: 04CA1794 People v. William Hoover Unpublished Opinions No.: 03CA2409 People v. Dariel I. Hough, Jr. November 13, 2006 I'm sorry for the lapse in blogging at the end of last week, but I was hit with case of strep throat which leveled me. Thanks to the miracle of antibiotics, I'm back to about 80% today. Last Thursday's court of appeals announcements are here. The court issued only unpublished decisions. Today's supreme court announcements are here. The court issued one decision, summarized below. The court granted cert. in only one case, People v. Vega, No. 06SC476, which it remanded to the court of appeals for reconsideration in light of People v. Johnson, 142 P.3d 722 (Colo. 2006). In an original
proceeding, a husband who served as conservator was deposed on behalf
of his incapacitated wife, the plaintiff in a medical malpractice lawsuit.
Defense counsel asked the husband questions regarding his wife’s
family medical history and his own health and life expectancy. The district
court issued an order requiring him to answer the questions about his
wife’s family medical history, and his own health as it pertains
to his ability to care for her. The supreme court held that Colorado’s
physician-patient privilege does not shield the husband November 8, 2006 The court of appeals will release the following unpublished decisions tomorrow: No.: 03CA1744 People v. Gregory Brinley November 7, 2006 News reports have indicated that the Colorado Democratic Party has sought an injunction in Denver, at least that's my understanding of the scope, asking the polls to be kept open an additional two hours due to problems. As I understand it, some of the election centers have run out of provisional ballots. Let's hope that these and any other issues get sorted out so that all who want to vote get the opportunity to do so. Here are the supreme court's announcements from Monday. The court issued four decisions and granted cert. in four cases. Summaries and questions presented are below. Once a workers' comp. claimant has successfully challenged a finding of MMI through the DIME process, the DIME process remains open. Thus, when the treating physician makes a second finding of MMI, the employer or insurer may not file an FAL to close the case before returning the claimant to the independent medical examiner for a follow-up examination and determination of MMI. For those of you unfamiliar with workers' comp.-speak, MMI is maximum medical improvement, DIME is the Workers' Compensation Division independent medical exam, and FAL is Final Admission of Liability. Justice Coats, joined by Justice Eid (in the Williams case only, Justice Eid did not participate in Stefanski), dissented. Justice Coats took the majority to task over its statutory interpretation: "Because I consider the court's holding today yet another demonstration of its proclivity to disregard the legislature's own statutes in order to implement, in the way the court thinks best, what it takes to be a greater legislative policy goal, I respectfully dissent." Williams v. Kunau; Sanco Industries v. Stefanski (companion case applying Williams) The supreme court held that the Colorado Ground Water Commission does have limited jurisdiction over surface water rights, but the jurisdiction is limited to altering a designated ground water basin's boundaries as called for under the Management Act,C.R.S. § 37-90-106(1)(a). The court also held that the Plaintiffs Appellants Cross-Appellees are not barred by issue or claim preclusion. Gallegos v. Colorado Ground Water Commission In a highly
fact-intensive water court case, the supreme court affirmed the water
court's determination that an 1882 decree adjudicating the Jones Ditch
Water Right is an absolute decree and is impliedly limited to the amount
of water necessary to irrigate the acreage originally irrigated by the
appropriator in 1882. In so holding, the court rejected the Central
Colorado Water Conservancy District's arguments that the language of
the 1882 decree, and Colorado law at the time the decree was entered,
would dictate a different result. The court also rejected Central's
argument that the Opposers in this case are barred from challenging
the lawful historic use of the Jones Ditch Water Right by the doctrine
of laches. The court reversed the water court's holding that, based
on a parcel-by-parcel analysis of the Jones Ditch Water Right, Central
is entitled to consumptive use credit for the historic volume of water
used to irrigate its 37 acres, which amounts to 66.65 acre feet per
year. The water court had based its decision to conduct a parcel-by-parcel
analysis on the fact that a separate 1992 decree adjudicating a portion
of Central's share of the Jones Ditch Water Right precluded a ditchwide
analysis under the doctrine of claim preclusion. The supreme court disagreed,
and held that the doctrines of claim preclusion and issue preclusion
are not implicated by the 1992 decree. A ditchwide analysis of the Jones
Ditch Water Right is more The court granted cert. in the following cases: Rutter v. People,
No. 06SC342, on this issue: People v. Kelly,
No. 06SC394, on this question: Carton v. People,
No. 06SC436, on this issue: Brodeur v. American
Home Assurance Co., No. 06SC499, on these questions: November 3, 2006 The court of appeals' oral argument calendar for January 2007 is here. November 2, 2006 The court of appeals' announcements for today are here. The court issued 8 published decisions, summarized below. Court rejects
on harmless error grounds challenge to search that contended tenant
did not have authority to consent to search of bedroom where defendant
had been staying as a guest. The court said that even assuming, without
deciding, that the search violated the Fourth Amendment, it was harmless
beyond a reasonable doubt. The court also concluded that attempted robbery
is not a lesser included offense of use of a stun gun, and the trial
court was not therefore required to merge those two convictions. People
v. Bass When a postconviction
claim is properly presented for evaluation on the merits but is premised
on trial error that was not preserved by a contemporaneous objection,
Colorado courts must review the claim for plain error, employing the
prejudice test articulated in Wilson v. People, 743 P.2d 415, 420 (Colo.
1987). Under this standard, the defendant must identify (1) an error,
(2) that is plain, and (3) so undermined the fundamental fairness of
the trial as to cast serious doubt on the reliability of the judgment
of conviction. On the merits, the court of appeals reversed defendant's
conviction for murder due to plain error based on incorrect jury instruction
on, and the prosecutor's erroneous statements about, self-induced intoxication.
People
v. Versteeg The purpose
of C.R.S. § 4-2-205 is only to establish a type of offer that,
although not supported by consideration, is nonetheless irrevocable;
it is not intended to provide the exclusive mechanism by which a valid
(though perhaps revocable) offer can be made. An oral offer could, if
timely Insurer breached
its duty to defend because, under the doctrine of equitable subrogation,
the Trial court
applied the wrong legal standard when it ruled that plaintiff’s
easement was not Petitioner’s
attempted recantation of refusal to submit to testing as required by
the express consent statute was invalid because it was not made to the
arresting officer but to a custodial officer with another law enforcement
agency, who had no participation in the probable cause Under the plain
language of C.R.S. § 6-1-113(1)(b), the only assignees authorized
to bring an action are those whose assignors were actual consumers who
purchased the defendant’s If contractual
shortening of the statute of limitations is prohibited, contractual
limitation cannot shorten statute of limitation. But if statute does
not prohibit contractual shortening, shorter contractual period may
be enforced. The statute of limitations applicable to the claim at issue
was claim, C.R.S. § 13-80-101(1)(a), which provides that all contract
suits “shall be commenced within three years after the cause of
action accrues, and not thereafter.” The contract between the parties
specified a two-year period, which was enforceable and barred plaintiff's
claim. November 1, 2006 Happy All Saints' Day, Día de los Muertos, and Samhain (I think that about covers it). The court of appeals will release the following decisions tomorrow, including eight published opinions: Published Opinions No.: 04CA1207 People v. Danny E. Bass
Unpublished Opinions No.: 03CA1100 People v. Trenton Harold Parker
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