September 30, 2005 The supreme court will issue two decisions on Monday, Compan v. People, No. 04SC422, and People v. Vanrees, No. 03SC290. Compan involves the interplay between "excited utterance" testimony and Crawford v. Washington. September 29, 2005 Chief Justice Roberts has just taken the oath of office (from Justice Stevens). He'll be on the bench Monday, presiding over the first day of arguments in the October 2005 Term (as well as arguments for the next few decades, most likely). His investiture at the Court will be Monday morning before arguments. His first argument will be IBP, Inc. v. Alvarez, addressing a Fair Labor Standards Act issue about whether the time employees spend walking and waiting in line during the process of donning and doffing required safety equipment is considered compensable work that employers must pay the employees for. I wish the new Chief well. But I can't help wondering if his robe will have gold stripes. Here are today's announcements from the court of appeals. The court issued only unpublished decisions. September 28, 2005 The court of appeals will issue the following unpublished decsions tomorrow: No.: 03CA0847 People v. Ernie Lee Calbart September 27, 2005 The court of appeals' argument calendar for November is here. September 26, 2005 The supreme court's announcements for today are here. The court issued no new decisions and granted cert. in no cases. Not much for news, huh. But have no fear. Below are the summaries of the court of appeals' decisions from last Thursday (9/22). Trial court erred in concluding that it lacked jurisdiction to order restitution because the People did not file their motion within the 60-day deadline set at the sentencing hearing. The 60-day deadline is not jurisdictional. Nor did the imposition of restitution violate double jeopardy principles. The trial court's initial restitution order did not increase the amount of restitution because restitution had not been imposed at the time of sentencing. Because the initial restitution order was not a final order, the amended restitution order did not impermissibly increase the restitution amount. The court remanded for further proceedings on the People's noncompliance with the trial court's order. On remand the trial court may enter an appropriate restitution order, or conclude that the People lacked good cause and that, upon the expiration of the 60-day period, there was no evidence from which the court could conclude that the victim had suffered a pecuniary loss. In addition, if the trial court enters a restitution order, it may also impose a sanction against the People for failure to comply with the 60-day order. People v. McCann Court of appeals adopts abuse of discretion standard of review for reviewing trial court's ruling that plaintiff's affidavit was a sham affidavit. On the facts, the court found no abuse of discretion and affirmed summary judgment against the plaintiff. Andersen v. Lindenbaum Trial court did not err in holding the Director of the Division of Workers' Compensation was an indispensable party to a declaratory judgment action challenging the validity of a Department of Labor and Employment rule. But trial court erred in dismissing the case and not affording plaintiff the opportunity to join the Director. Cruz-Cesario v. Don Carlos Mexican Foods In a split decision, the court of appeals holds that C.R.S. § 8-40-202(1)(a)(I)(A) violates equal protection. That section provides that regularly employed police officers, firefighters, sheriffs, and deputy sheriffs are deemed employees under the Workers Compensation Act, as are posse members and several types of volunteers, including volunteer firefighters and members of volunteer rescue, disaster, and ambulance teams, are deemed employees. But members of volunteer police departments, volunteer police reserves, and volunteer police teams or groups in any county, city, town, or municipality, while actually performing duties as volunteer police officers, may be deemed employees at the option of the governing body of such county or municipality. The City of Florence chose not to treat members of its volunteer police reserves as employees. Claimant was an unpaid member of the police reserves. The majority, in an opinion by Judge Loeb, joined by Judge Marquez, concluded that ICAO v. Romero, 912 P.2d 62 (Colo. 1996) compelled the conclusion that the section violated equal protection. Judge Carparelli dissented, concluding the statute was not unconstitutional. The supreme court will surely grant cert. to review this decision. Pepper v. ICAO In appeal from grant of summary judgment dismissing claims arising out of alleged false reporting of child abuse, the court held that to rebut the statutory presumption of good faith in § 19-3-309, the plaintiff had to present evidence to satisfy both a subjective and objective component of good faith. The subjective component required evidence of evil motive, i.e., intent to harm, while the objective component required evidence that there was no factual basis to believe that plaintiff had engaged in activities that would require a child abuse report to be made. Plaintiff failed to present such evidence, so the reporting psychiatrist was immune from civil liability. Credit Service Company, Inc. v. Dauwe Conviction for possession with intent to distribute an imitation controlled substance does not require proof that defendant knowingly purported that the imitation substance was a controlled substance. People v. Taylor Court of appeals upholds decision denying liquor license where restaurant was determined to be located within 500 feet of a public school. The court concluded that the distance measurement should begin at the point on the school property line that is nearest to the restaurant for a pedestrian, even though another point on the property line may be closer to the restaurant as the crow flies. Mariscos Las Islitas, Inc., v. Gonzales Apprendi does not require a jury to determine whether a defendant's prior convictions were separately brought and tried under the habitual criminal statute, C.R.S. § 18-1.3-801. People v. Flowers Defendant's rights to due process and trial by jury (under Apprendi and Blakely) were not violated when sentencing court relied on prior misdemeanor convictions in imposing an aggravated sentence. The court held that Apprendi's prior conviction exception is not limited to only prior felony convictions. People v. Martinez Trial court violated defendant's confrontation rights by taking judicial notice of statements in a co-defendant's plea of guilty to attempted first degree murder and by admitting hearsay statements made by the shooting victim to a police officer. Under Crawford the co-defendant's statements were testimonial and therefore inadmissible at defendant's trial. People v. Couillard Plaintiff's contract with Denver did not require plaintiff to initiate the mandatory dispute resolution procedure within 30 days or even within one year, but instead Plaintiff could invoke the procedure just by requesting "informal discussions" within a "reasonable time." Plaintiff would have 30 days from the unsuccessful conclusion of such informal discussions to file a request for an administrative hearing under Denver Revised Municipal Code § 56-106(b). First Christian Assembly of God v. City and County of Denver September 23, 2005 According to the supreme court's case announcement link, no new decisions will be issued, but rulings on cert. petitions will be released on Monday, September 16. I'm assuming that's a typo and the court means that it will announce cert. petitions next Monday, September 26. I'll have the announcements, whatever they are, on Monday. Also, I should be able to post my summaries of yesterday's published court of appeals decisions at some point on Monday. Have a good weekend. My fingers are crossed for the Gulf Coast. September 22, 2005 The court of appeals' announcements for today are here. The court issued 11 published decisions and many more unpublished ones. I will summarize the published decisions, but unfortunately, due to my work schedule, summaries may not be posted until Monday. Thanks for your patience. September 21, 2005 The court of appeals will release the following decisions tomorrow, including 11 published decisions: Published Opinions No.: 03CA0406 People v. Ronald Taylor Unpublished Opinions No.: 03CA0732 People v. Labana Shindledecker September 19, 2005 The supreme court's announcements for today are here. The court issued no new decisions and did not grant cert. in any cases. The supreme court issued a press release late last week announcing the addition of oral argument audio to its website, an innovation I mentioned in my 9/15 post. The press release also indicated that when the court increases bandwidth it would make the arguments available in real time. No news on whether video will eventually be done as well. I've always thought that oral arguments in appellate courts should be televised (or streamed over the net), and that such broadcasting is much less troublesome than televising trial court proceedings. September 15, 2005 This is cool. The supreme court is now posting links to the audio of oral arguments. This link will take you to the oral argument schedule and the links for the arguments. The September 13 arguments are already posted here, including the argument in the Open Records Act case arising from the Columbine tragedy. What a great addition to the court's website. Today's court of appeals announcements are here. The court issued only unpublished decisions. September 14, 2005 I'm back, though not yet 100%. In this post you will find the list of cases the court of appeals will release tomorrow, followed by summaries of both the supreme court and court of appeals cases released in the past week. The supreme court summaries appears on top and the court of appeals below. The court of appeals will release the following unpublished decisions tomorrow: No.: 03CA0028 People v. Jason B. Nuness The supreme court's announcements for Monday, September 12, are here. After a long summer hiatus, the court issued nine decisions, summarized below. The court did not grant cert. in any cases. In the Tracy Baker e-mail case, the supreme court concludes that "public records" under the Open Records Act, means only those records an agency makes, maintains, or keeps for use in exercising functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds. A public record must have a demonstrable connection to the exercise of public functions or functions involving public funds. Whether e-mails relate to public functions or funds is determined by whether the context of the messages addresses public functions or funds. The court remanded for the court of appeals to address whether the e-mails at issue fell within the definition of public records announced. Denver Publishing v. Board of County Commissioners In defining
"change of water right" to include "a change in the type,
place, or time of use" and "a change in the point of diversion"
in C.R.S. § 37-92-103(5), and in defining "appropriation"
in § 37-92-103(3)(a)(I) and (II), Colorado's Water Right Determination
and Appropriation Act anticipates that an applicant for a change of
water rights will sufficiently demonstrate an actual beneficial use
that will be made at an identified location under the change decree,
if issued. Because the applicant did not identify a particularized location
or locations where the appropriation will be put to actual beneficial
use under the change decree, the supreme court affirmed the water court's
judgment dismissing the change of water right application without prejudice
to refiling. In the companion case to High Plains, see above, the court applied the High Plains ruling and upheld the water court's dismissal of the applicant's change of water rights application. ISG LLC v. Arkansas Valley Ditch Assoc. Insurance policy was not ambiguous and supreme court therefore reinstates trial court's dismissal of complaint against insurer. Insureds, a proposed class of USAA policyholders, brought suit alleging that USAA improperly charged additional premiums for newly-acquired vehicles from the date of acquisition rather than from 30 days after the acquisition. The supreme court, reversing the court of appeals, concluded that the policy language unambiguously permitted USAA to charge an additional premium from the date of acquisition, and therefore dismissal was proper. USAA Casualty Ins. Co. v. Anglum In a 4-3 decision, the supreme court held that the trial court committed plain and reversible error by failing to give a jury instruction that substantially conformed to the existing reckless child abuse resulting in death statute under which the prosecution charged the defendant. The instruction given by the trial court permitted conviction if the jury found the defendant "recklessly permitted a child under the age of sixteen to be unreasonably placed in a situation that may have endangered the child's life or health, which resulted in the death of the child." The court previously disapproved similar language in People v. Hoehl, 568 P.2d 484 (1977). The majority concluded that the instruction was reversible error. In a strident dissent, Justice Coats, joined by Justices Kourlis and Rice, disagreed that Hoehl had disapproved of the "may endanger" language, and concluded that the instruction did not rise to the level of plain error. People v. Weinreich The purpose
of the vendor-vendee exception to the adverse possession rule is to
preclude purchasers from asserting that they can adversely possess property
that they have otherwise contracted to buy. The court held that the
exception did not apply in this case because under the record the purchaser
was buying only one parcel, had no contractual rights or obligations
to a second parcel, and was not involved in a joint venture for the
parcels. The court therefore reinstated the trial court's quiet title
order. Chief Justice Mullarkey dissented. A junior creditor who successfully exposes a fraudulent transfer by filing suit takes priority over senior creditors holding judgments recorded before the junior creditor uncovered the fraud. The court noted that where the judgment debtor had neither a legal nor an equitable interest in the property, recording a judgment does not create a lien on the property because there is no interest to which the lien could attach. Where it is alleged that the property titled in the name of another has been fraudulently conveyed by the judgment debtor, the creditor must file an action to uncover the fraud. The court concluded that under the circumstances of the case, the race-notice statute did not control the priority of creditors. Justice Kourlis, joined by Justice Coats, dissented, concluding that the race-notice statute applied and that the junior creditor was not entitled to any "super-priority" in his lien merely because he exposed the fraud. Shepler v. Whalen In a Rule 21 proceeding, the supreme court reversed a trial court's disqualification of defendant's counsel. The trial court had disqualified defense counsel under RPC 1.9(a) because the attorney did not have the consent of a former client who was both an alleged coconspirator and prospective prosecution witness. The supreme court issued a rule to show cause and made the rule absolute, holding that it was not reasonable to find a substantial risk that confidential information as would normally have been obtained in the prior representation would materially advance the position of the defendant in the current prosecution. Therefore, Rule 1.9 imposed no duty on defense counsel to obtain the consent of his former client. In re People v. Frisco Trial court's suppression order reversed. The defendant was parked illegally in the middle of the street at the time the police first contacted her. The officer had a reasonable, articulable basis to believe criminal activity was occurring, and therefore the defendant was not illegally seized under the Fourth Amendment. People v. Cherry The court of appeals' case announcements for September 8 are here. The court issued 11 published decisions, summarized below. Trial court erred in concluding that the General Assembly clearly intended the 2003 amendments to the Governmental Immunity Act to apply retroactively. Powell v. City of Colorado Springs In a companion case to Powell (see preceding summary), the court upheld the trial court's determination that it had jurisdiction over Plaintiff's claims, rejecting the City's claim of governmental immunity. Speight Family Partnership v. City of Colorado Springs The fact that police did not advise defendant that a search warrant had been obtained did not undermine the voluntariness of defendant's statements to police. And while the trial court erred in instructing on attempted first degree murder, by omitting the culpable mental states of "intentionally" and "after deliberation" and by permitting defendant to be convicted upon a "mere showing" of an "attempt to attempt," the errors did not rise to the level of plain error. The court also held, in rejecting another jury instruction challenge, that the prosecution need not prove, under Apprendi, the absence of heat of passion provocation as a sentence enhancer. People v. Villarreal In a public nuisance abatement action, the trial court erred in precluding defendant from introducing evidence of county, state and federal statutes, regulations and standards for water quality and the use of agricultural chemicals. The trial court relied on its denial of defendant's motion to amend its answer and on the supreme court's refusal to review that ruling (in a Rule 21 proceeding) to justify that preclusion under the law of the case doctrine. The court of appeals noted that the supreme court's refusal to issue a rule to show cause for a Rule 21 petition has no substantive significance and therefore established no law of the case. The court of appeals also concluded that the affirmative defense of preemption could be raised for the first time in a motion for summary judgment and therefore the trial court erred in refusing to permit the defendant to present evidence and argument on preemption. The Town of Carbondale v. GSS Properties, LLC Trial court did not err in treating separation agreement as a written stipulation to extend child support beyond the age of emancipation. But the court is not bound by the specific terms regarding support set forth in that agreement. Instead, C.R.S. § 14-10-122 establishes that a child support order may be altered where substantial and continuing change circumstances exist. The court of appeals remanded for additional findings on the amount of support, concluding that the trial court's findings were insufficient to justify calculating support above the child support guidelines. Marriage of Ludwig Prosecution's interlocutory appeal was governed by C.A.R. 4(b)(3) and therefore the notice of appeal had to be filed within 10 days of the trial court's adverse ruling. Because the notice of appeal was not filed within that 10-day period, the court of appeals lacked jurisdiction, and dismissed the appeal. People v. Severin Court of appeals rejects administrative interpretation of C.R.S. § 8-42-107.2(6), and concludes that claimant was not required to file a notice and proposal to select another DIME because he had previously requested a DIME to contest the authorized treating physician's (ATP) determination of maximum medical improvement (MMI). Once claimant timely initiated the DIME process and the ATP placed him at MMI for the second time, employer had the obligation to return him to the DIME physician for a follow-up examination. The employer could not simply file an amended final admission of liability in an attempt to close the case and shift the burden to claimant to initiate and bear the cost of another DIME. Stefanski v. Industrial Claim Appeals Office District court did not err in compelling arbitration, despite failure to address the plaintiff's argument that defendants were estopped from enforcing the arbitration agreement. The enforceability of the agreement is one of the issues for the arbitrator to address. Galbraith v. Clark Trial court should have considered petition to seal juvenile delinquency records under C.R.S. § 19-1-306 of the Children's Code instead of C.R.S. § 24-72-308. Section 24-72-308 concerns sealing records in criminal cases; juvenile delinquency proceedings are statutory proceedings that are noncriminal in nature. Therefore, § 24-72-308 was inapplicable. In the Matter of the Petition of C.B. The Chilrden's Code requires the trial court itself to make visitation decisions, and the court may not delegate that function. But the trial court committed no reversible error by delegating such decisions to the children's therapists under the facts of the case. People in the Interest of B.C. Claimant was not entitled to a whole person disability award where ALJ determined that she suffered no loss or functional impairment beyond both upper extremities, which are scheduled injuries. Kolar v. Industrial Claim Appeals Office September 9, 2005 I apologize for not posting the court of appeals' announcements or doing case summaries yesterday, but I decided to have my appendix out instead. I should be back in commission sometime next week and will resume posting then. September 6, 2005 The supreme court announcements for today are here. The court issued no opinions. But the court granted cert in one case, No. 05SC364, Musick v. Woznicki, on this issue:
Whether the court of appeals was correct in finding that the trial court was not divested of jurisdiction where the petitioner filed a notice of appeal from a trial court ruling before the trial court certified its ruling under C.R.C.P. 54(b). I was saddened
by the death of Chief Justice Rehnquist. Regardless of one's level of
agreement or disagreement with his individual decisions, he was a true
champion for an independent judiciary, an institution under particular
attack of late. One
hopes that if Judge Roberts is confirmed as the 17th Chief Justice of
the United States he will similarly strive to protect, preserve and
strengthen the independence of the judiciary. September 2, 2005 I hope everyone has a safe and pleasant Labor Day Weekend, though this year it will be tough. I'm again posting the donation link for the American Red Cross, and will continue to do so in the coming weeks. The supreme court will have an announcement sheet on Tuesday, but will issue no new decisions. September 1, 2005 As the the full effect of the devastation of Hurricane Katrina becomes more apparent, the need for relief only grows. The Colorado Trial Lawyers Association and the Colorado Defense Lawyers Association have embarked on a spirited competition to see which organization can raise the most relief funds for the American Red Cross (funds will be collected by the organizations and then forwarded on to the American Red Cross). I encourage members of those organizations to contact their respective member organization and to engage in that competition. No one will lose and many will gain from it. And of course, everyone is encouraged to give. I don't claim to be an expert on relief efforts, but here is the link for donations to the American Red Cross. The court of appeals' announcements for today are here. The court issued only unpublished decisions.
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