October 31, 2005 Happy Halloween! The supreme court's announcements for today are here. The court issued no decisions and granted cert. in no cases. Though it does not appear on the announcement sheet, the court also denied cert. as having been improvidently granted in a case argued last week, No. 04SC761, Arnold v. O'Neill, et al. (I know about it only because I was counsel for co-respondents in the case, and I got the order in the mail this morning.) The nomination of Judge Samuel Alito to the United States Supreme Court appears like it will lead lead to a fairly nasty nomination process focused on ideology. Whether or not that is a good thing or bad thing, I predict Alito will be confirmed, but not quickly. It looks highly probable that Justice O'Connor will sit until the end of the year at least. Some cases argued this fall may be set for re-argument later. At this time of year, though, I must confess that I'm more interested in Halloween and the upcoming holidays (and continuing my success in my firm's weekly football pool). October 27, 2005 With the withdrawal of Harriet Miers' nomination, it is looking more likely that Justice O'Connor will still be on the Court in January. So decisions that come down between now and the end of the year will likely include her vote and possibly opinions by her. Interesting. The court of appeals' announcements for today are here. The court issued no published decisions but did issue the following unpublished opinions: No.: 02CA0988 People v. Carlton Alexander Cottman October 26, 2005 Below are the summaries of the supreme court's decision from Monday and the court of appeals' decisions from Thursday. Sorry for the delay in posting. Supreme court case summary (case decided October 24): PUC decision granting exceptions to the ALJ's recommendation and granting an Application for an Extension of Certificate of Public Convenience and Necessity was proper. The district court concluded that the Commission regularly pursued its authority, that the Commission’s decision was just and reasonable, and that the Commission’s conclusions were in accordance with the evidence. The supreme court agreed with the district court's conclusions and therefore affirmed. Durango Transportation, Inc. v. PUC Court of Appeals case summaries (cases decided October 20): Defendant's right to confront, under Crawford v. Washington, was not violated by admission, at pretrial suppression hearing, of hearsay statements made by unidentified confidential informant. The court noted that nothing in Crawford suggested that the Supreme Court intended to alter its earlier rulings that permitted such hearsay statements at pretrial hearings. People v. Felder Trial court did not err in permitting police officer to testify as an expert witness that the amount of drug's in the defendant's possession was consistent with distribution rather than personal use. The court also rejected the defendant's arguments that the evidence was insufficient to convict. People v. Atencio Where jurors had difficulty observing the defendant and prosecution witnesses and therefore had an impaired ability to see and evaluate defendant and the witnesses' demeanor, defendant's confrontation right was violated. The court also held that the trial court's response to this problem was inadequate. The court concluded, however, that the error was not structural error, as the defendant contended, but was instead trial error subject to harmless error review applies. The court held that the error was not plain error and therefore affirmed the convictions. People v. Boykins Where consent to search occurred before officer retained defendant's identification for a warrant check (which the defendant argued was an illegal seizure), the consent was not tainted by any prior illegality and was therefore valid, justifying denial of defendant's motion to suppress. The court also rejected defendant's sufficiency of the evidence and jury instruction arguments. People v. Tweedy Where oil and gas leases were silent on allocation of costs, trial court properly applied a marketability analysis. The court concluded, however, that the trial court erred in allowing deduction of severance and ad valorem taxes. The claim to those taxes was a compulsory counterclaim and because no counterclaim was brought and the claim was not put at issue in the trial, it was barred. Savage v. Williams Production RMT Company Trial court
properly dismissed C.R.C.P. 106 complaint brought against governor by
inmate claiming no action had been taken on his request for clemency.
Complaint failed to state a claim and prisoner had no right to due process
in regard to a response to or hearing on his clemency petition. Schwartz
v. Owens Probate court abused its discretion in admitting extrinsic evidence where trust documents were clear and unambiguous. The probate court also erred in granting summary judgment where transfer of the principal was not authorized. The court of appeals reversed and granted summary judgment in favor of the Bank. This decision is a "should read," if not a "must read," for trust and estate lawyers. Denver Foundation v. Wells Fargo Bank, N.A. Collateral estoppel
did not preclude second ALJ from determining the date of claimant's
maximum medical improvement (MMI). The second ALJ found that the prerequisites
for determining MMI existed because the employer complied with the new
procedure for obtaining a DIME in October 24, 2005 The supreme court's announcements for today are here. The court issued one decision but did not grant cert. in any cases. The link to the decision is below. I'll post summaries of that case and the court of appeals' decisions from last week by Wednesday. Durango Transportation, Inc. v. PUC October 21, 2005 The supreme court will issue one decision on Monday, Durango Transportation, Inc. v. PUC. The audio for the oral argument in that case can be found here (under September 14, 2005 arguments). The court of appeals' case announcements for yesterday are here. The court issued 8 published decisions. The links to those decisions are below. I will probably not be able to do summaries until next Tuesday or Wednesday, as I have an oral argument Tuesday morning that I am preparing for. Thanks for your patience. People
v. Felder October 17, 2005 Here are today's supreme court announcements. The court issued 2 decisions summarized below. The court granted cert. in 2 cases, and the questions presented are below. District court's lack subject matter jurisdiction to hear challenges to the application and enforcement of the Rules Governing Admission to the Colorado Bar. Such challenges are within the exclusive jurisdiction of the supreme court. Smith v. Mullarkey Improper denial of dependent's statutory right to speedy trial does not divest the trial court of jurisdiction to accept a guilty plea. By entering a guilty plea, the defendant waives the right to appellate review of the denial of his statutory right. People v. McMurtry The court granted cert. in these cases: West v. Roberts, No. 05SC358, on this questions:
Whether the original owner of a vehicle that he relinquished due to fraud should be allowed to recover the vehicle from a bona fide purchaser, thereby necessitating overturning Keybank v. Mascarenas, 17 P.3d 209 (Colo. App. 2000).
Dillard v. Pepsi Bottling Group, No. 05SC494, on this issue: Whether the court of appeals erred in applying section 8-42-107.5,
C.R.S., which is a section of the workers’ compensation act which
applies to the total amount of compensation that is available to injured
workers based upon the severity of their injuries, by using section
8-42-107(7)(b)(I) and (III), C.R.S., which is the section of the act
that determines the type of impairment or methodology of computing payment
for impairment, to deprive or further limit injured workers’ permanent
disability benefits. October 16, 2005 The court of appeals' oral argument calendar for December is here. October 14, 2005 The supreme court will issue two decisions on Monday, No. 05SA238 Smith v. Mullarkey et al (no orals), and No. 04SC437 People v. McMurtry (argued in September). Due to my work
and other commitments, my blogging activity will be sporadic during
the next two weeks. I will do my best to get things posted, but it is
likely there will be some delays. Thanks for your patience. October 13, 2005 Here are today's court of appeals announcements. The court issued only unpublished opinions. October 12, 2005 The court of appeals will issue the following unpublished decisions tomorrow: No.: 02CA0413 People v. Jose Arturo Pena October 11, 2005 Today's supreme court announcements are here (since yesterday was a legal holiday). The court issued one decision summarized below. The court granted cert. in quite a few cases, though several of those were remanded to the court of appeals for reconsideration and the rest involved Blakely/Apprendi issues. Also of note, the court denied the People's cert. petition in the Terry Lynn Barton case (arising out of the the Hayman fire). Justices Kourlis and Coats would have granted the petition. The court also denied petitions for rehearing after modifying opinions in two water cases. The term "law enforcement agency" as used in C.R.S. § 16-10-103(1)(k), which requires a trial court in a criminal case to grant a challenge for cause to a prospective juror who is a compensated employee for a public law enforcement agency, includes the Army Military Police Corps. Therefore, the trial court's failure to grant a challenge for cause to a prospective juror who serves as a platoon leader for the Army Military Police Reserves, was error and required a new trial. Justice Bender wrote the majority opinion. Justice Coats, joined by Justices Kourlis and Rice, dissented, concluding that defense counsel had failed to challenge the prospective juror for cause and that the Department of Defense, in which the Army Military Police Reserves resides, is not a public law enforcement agency to which the statutory provision would apply. Ma v. People The court granted cert. in these cases: People v. Moon, No. 04SC800, on this question:
Whether a sentence above the presumptive maximum should be affirmed if it rests on at least one trial court finding that is permissible under Blakely v. Washington, 542 U.S. 126 (2004) and Apprendi v. New Jersey, 530 U.S. 466 (2000). People v. Solis-Martinez, No. 05SC37, on this issue:
Whether Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 126 (2004), permit a trial court to impose a discretionary aggravated range sentence based on the court’s finding of extraordinary aggravating circumstances, as authorized by section 18-1.3-401(6), C.R.S. (2004). People v. Misenthaler, No. 05SC272, on this question: Whether Blakely v. Washington, 542 U.S. 126 (2004) permits a trial court to impose a discretionary aggravated-range sentence based on the defendant’s argeement to sentencing in the aggravated range. People v. Armenta, No. 05SC350, on this issue:
Whether an alleged error under Blakely v. Washington, 542 U.S. 126 (2004) is harmless under People v. Broga, 750 P.2d 59 (Colo. 1998) and People v. Leske, 957 P.2d 1030 (Colo. 1998), because the trial court also relied on legitimate factors in imposing an aggravated sentence. People v. Hopkins No. 05SC351, on this issue:
Whether Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 126 (2004), permit a trial court to impose a discretionary aggravated range sentence based on the court’s finding of extraordinary aggravating circumstances, as authorized by section 18-1.3-401(6), C.R.S. People v. Johnson, No. 05SC408, on this question:
Whether the court of appeals erred in holding that Blakely v. Washington, 542 U.S. 126 (2004) is retroactive to the date Apprendi v. New Jersey 530 U.S. 466 (2000) was announced. In the following cases, the court granted cert. and remanded to the court of appeals for reconsideration in light of Lopez v. People, 113 P.3d 713 (Colo. 2005): People v. Starkweather (No. 05SC150), People v. Sinclair (No. 05SC200), People v. Pham (No. 05SC249--also remanded in light of C.R.S. § 18-18-405(3)(a)(III)), People v. Schulze (No. 05SC345). October 7, 2005 The supreme court will issue one decision on Monday, Ma v. People, addressing this question: Whether the court of appeals erroneously concluded that the trial court
properly denied Petitioner's statutory challenge for cause to a juror
that regularly testified as a military police officer in various cases,
including "domestic situations," without addressing the propriety
of the trial court's finding that the Petitioner waived the challenge. October 6, 2005 The court of appeals' announcements for today are here. The court issued 12 published decisions summarized below. Also, the court is now making oral arguments available on-line at this link. It was reasonable for police officers to conclude that an attack might still be in progress in an apartment complex where the police were dispatched on a 911 call, but discovered no attack at the apartment identified in the call, where the caller (the defendant) seemed confused about the his apartment number. Under the circumstances, the police could properly search the apartment complex for the victim, and therefore the search of defendant's apartment fell under the emergency aid exception to the Fourth Amendment. People v. Souva The court lacked
jurisdiction to consider the appeal of temporary orders relating to
child support and maintenance where permanent orders had entered. On
a separate issue, the court concluded that a remand was required for
additional findings to determine whether including income from the husband's
secondary employment was allowable.
In re Marriage of Salby Court may order an attorney special advocate to refund her fees, in whole or in part, under its inherent powers as punishment for violating the Rules of Professional Conduct. In so holding, the court concluded that an attorney acting as a special advocate is subject to the Rules of Professional Conduct. The court remanded, however, concluding that an evidentiary hearing was necessary to determine whether the special advocate had violated the RPC. In re Marriage of Redmond No error in trial court's ruling that intervenors' writ of garnishment gave them a priority interest in the subject stock certificates. In so holding, the court harmonized C.R.S. § 4-8-112 and C.R.C.P. 103, and concluded that stock certificates could be reached under either method. Moreland v. Alpert Moratorium on development, for purposes of developing master plan, was permissible under the local government Enabling Act C.R.S. § 29-20-102(1). The court held that the ability to impose a moratorium was necessarily implied by the Act. Droste v. Board of County Commissioners of Pitkin County Claim of ineffective
assistance of appellate counsel based on failure to perfect an appeal
does not require a showing of meritorious grounds for appeal. The court
ordered a remand to determine if appellate counsel failed to perfect
the appeal, and if so, to have the trial court re-enter the judgment
of conviction and sentence so that defendant could bring a direct appeal.
People
v. Long During final agency review, department could not consider an SSA disability determination that was never presented to or considered by the ALJ. Under the governing regulations, the agency lacks authority to consider evidence not presented to the ALJ. Martelon v. Colorado Department of Health Care Policy and Financing Health center owned by nurse midwives could not be liable for physician's negligence under respondeat superior, inherent agency power or nonservant agent theories. Center could not employ physician under Colorado law, since physicians can only be employees of hospitals oar of professional services corporations owned by physicians.Nor could the center be liable under inherent agency power, because the center is legally incapable of practicing medicine. The court rejected the nonservant agent theory because there was no evidence the physician had the power to bind the center. Daly v. Aspen Center for Women’s Health, Inc. In a condemnation action, the trial court erred in finding that damages resulting from a loss of risibility into the property (a church), are not compensable. Any damages flowing from the taking and construction of a concrete wall to block the view of the church from the road are part of "just compensation." Department of Transportation v. Marilyn Hickey Ministries C.R.S. § 31-12-601 applies only to statutory cities, not home-rule cities, therefore plaintiffs' petition to disconnect property from a home-rule city had to comply with city ordinance not statute. Allely v. City of Evans Claim for unemployment benefits was properly denied where claimant failed to actively seek work as required under C.R.S. § 8-73-107(1)(g)(I). Judge Marquez dissented, concluding that the ICAO read that statutory provision too narrowly, and that the statute did not require in every case that a claimant apply to other possible employers. McClaflin v. Industrial Claim Appeals Office In termination of parental rights proceeding, a waiver of the initial advisement of rights under C.R.S. § 19-3-202(1), includes a waiver of the right to be heard by a judge--the § 19-1-108(3)(a) advisement. Because § 19-1-108(3)(a) does not require any advisement after the initial advisement, father's waiver of his initial advisement also waived his right to a hearing before a judge. The magistrate was not required to advise the father at any other time of his right to a hearing before a judge. People in the Interest of T.E.M. October 4, 2005 Here is the superme court's oral argument calendar for October. The court will hear arguments on October 25-27. October 3, 2005 Well, big news from the U.S. Supreme Court--Chief Justice Roberts wore a plain black robe. Perhaps he feels he needs to earn his gold stripes. As for the news that Harriet Miers is the nominee to replace Justice O'Connor, it's going to be an interesting confirmation process. The lack of judicial experience is not a new thing in a nominee, and certainly some of the nation's greatest justices had no prior judicial experience. But some of the worst didn't either. I anticipate the process to be long and possibly ugly, and suspect Justice O'Connor may well still be sitting when some of this term's decisions start coming down and into next 2006. Here are today's supreme court announcements. The court issued two decisions, summarized below. The court granted cert. in one case, In the Matter of the Petition for Adoption of C.A., No. 05SC526, on these questions: Whether the court of appeals adopted the proper standard to weigh the parents’ wishes in a grandparent visitation dispute.
Whether the court of appeals erred by not remanding the case to the trial court for a hearing based upon the new standard. Evidence of mental slowness may be offered to negate the culpable mental state for a crime charged when the defendant does not plead not guilty be reason of insanity. The court also held that the trial court did not err in giving a supplement instruction to the jury, and therefore reversed the court of appeals. People v. Vanrees Victim's statements admitted as excited utterances were not testimonial in nature and therefore did not fall within the requirement from Crawford v. Washington that the defendant have a chance to cross-examine the victim. Instead, the statements needed only to comply with the requirements of Ohio v. Roberts. The court noted that the excited utterance exception is a firmly-rooted exception to the hearsay rule and thus the statements were properly admitted though the victim did not testify. Justice Rice wrote the court's opinion, while Justice Coats, joined by Justice Kourlis, specially concurred. Justice Coats agreed with the court's determinations, but noted that his views of the current state of the law in Colorado in this area differed slightly from the court's. He thought "nuance of expression" could lead to significantly different understandings in a context like this. He expressed his concern that the court's opinion suggests that after Crawford, Roberts is broad enough to govern the admissibility of non-testimonial hearsay. He noted that in addition to determining whether the hearsay is non-testimonial, at least in the state constitutional context, an inquiry is necessary into the unavailability of the declarant. For practitioners in this area, a careful reading of both the court's opinion and Justice Coats's opinion is highly recommended. Compan v. People
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