January 30, 2004 The supreme court will issue one decision on Monday, Hammel v. Simpson, 03SA36, a water law case involving these questions: Whether the water court for division three engaged in a collateral attack on its own decree entered twenty-seven years before when it determined that appellant's well had been abandoned. Whether the water court for division three erred in determining that the state engineer had established by a preponderance of the evidence that well #3 in CW 516 had been abandoned. Whether the water court for division three erred in their findings that non-use was unjustified. Whether the water court for division three erred in its finding that
there was the intent to abandon the water right. The Rocky Mountain News reports here that the United States Supreme Court has denied a stay requested by the Republicans in the redistricting case. The Supreme Court's docket sheet for the case is here. Justice Breyer denied the General Assembly's application for a stay or injunction pending disposition of the petition for writ of certiorari. Now we just wait for the determination on the cert. petition. The case is styled Colorado General Assembly v. Salazar. January 29, 2004 Today's court of appeals' decisions are here. A summary of the published decisions follows. Additional proceedings are necessary to determine whether Columbine writings and recordings held by the Jefferson County Sheriff are subject to disclosure under the Open Records Act. The Sheriff holds certain writings and tape recordings seized from the Harris and Klebold family homes. The Denver Post filed an Open Records Act request for those items. The court of appeals did not answer the disclosure question, concluding that the case had to be remanded to the trial court for a determination of whether, on the date the Post made its request, the Sheriff held the items "for use in the exercise of functions required or authorized by law or administrative rule." If the items were so held, then the trial court must then determine whether they are subject to disclosure and inspection under the Open Records Act. If the items are not so held, then the trial court must deny the Post's request for access. In either case, the trial court's future decision is subject to another appeal. The Denver Post Corporation v. Cook Trial court did not err in consolidating into one trial three cases arising from three separate fast-food restaurant robberies. The court of appeals concluded that evidence of each offense would have been admissible in each separate trial, and therefore consolidation was not an abuse of discretion. The court also upheld an out-of-court identification challenged by the defendant on due process grounds and the admission of the defendant's confession, which the court held to be voluntary. But the court reversed the defendant's second degree kidnapping conviction due to an erroneous jury instruction on the asportation element. The court also vacated the defendant's conviction for first degree kidnapping, holding that there was insufficient evidence for that conviction. The court therefore reversed the kidnapping convictions and remanded for retrial on the second degree kidnapping charge. The court affirmed the aggravated robbery convictions. People v. Owens Double jeopardy not violated by trial court's revocation of a previously deferred judgment. The court also held that the trial court was not prohibited from imposing an aggravated range sentence when imposing a previously deferred sentence. People v. Lopez Personal injury award was subject to garnishment for unpaid child support. The court of appeals concluded that the plain language of C.R.S. § 13-54-106 excludes child support arrearages from the exemptions set forth in article 54. Drachmeister v. Brassart Workers comp claimant may not file an objection to a Final Admission of Liability (FAL) without identifying a contested issue. A claimant has thirty days after the date the employer files an FAL to file an application for a hearing. That application must contest some aspect of the FAL by stating the benefit to which the claimant is entitled. To prevail at the hearing, the claimant must overcome the Division-sponsored independent medical examination by clear and convincing evidence. If the claimant does not contest the FAL within thirty days, the case is automatically closed. Peregoy v. Industrial Claim Appeals Office Temporary total disability benefits must be paid at least every two weeks from the date compensation first becomes payable, but the date for payment of compensation need not be adjusted based on the date the insurer issues the most recent check. Otherwise, insurers who make early payments would be penalized for doing so. Jones v. Industrial Claim Appeals Office January 28, 2004 The court of appeals' case announcement list for tomorrow is here. The court will issue six published opinions, and I will have summaries of those as soon as I can tomorrow. The Rocky Mountain News reports that the Republicans have asked the United States Supreme Court to review the Colorado redistricting decision handed down by a three-judge United States District Court panel last week. Click here for the article. More information on this as it develops. January 27, 2004 Court of appeals' oral argument schedule for March is here. January 26, 2004 United States District Court's opinion in the Colorado redistricting case is here. Judge Ebel (of the Tenth Circuit) wrote the opinion for the three-judge district court panel (Judge Porfilio of the Tenth Circuit and Judge Weinshienk of the District Court were the other panel members). The court concluded that the Rooker-Feldman did not prevent the court from hearing claims challenging the contitutionality of Colo. Const. Art. V, § 44 as construed by the Colorado Supreme Court in Salazar v. Davidson. The federal court also concluded that the Colorado Supreme Court in Salazar v. Davidson decided the federal constitutional issues that were before the federal court, and therefore that if the Salazar case becomes final, the federal court will be precluded from addressing those matters anew. The court therefore ordered the federal case stayed until the Salazar opinion becomes final or until the United States Supreme Court rules in any appeal of that case. At that time, the federal court will decide how to proceed. So the redistricting saga continues. As I said earlier, I doubt the U.S. Supreme Court will review the Salazar case. But I've been wrong before, so stay tuned. Also, in case you're wondering, the Rooker-Feldman doctrine (which stems from two U.S. Supreme Court decisions bearing those names) holds that lower federal courts lack subject matter jurisdiction to consider claims that explicitly or functionally seek appellate review of prior state court judgments. Here are today's supreme court announcements. Summaries of the decisions follow. Colorado District Attorneys are subject to term limits, but Pueblo County Board of Commissioners properly referred measure to voters of Tenth Judicial District to exempt the district attorney of that district from the term limits. In other words, as the law currently stands, voters in a judicial district can vote to exempt their district attorney from term limits. In so holding, the court concluded "district attorneys are 'nonjudicial elected officials' within the meaning of [Colo. Const. Article XVIII,] section 11, and are therefore subject to the term limits of section 11. We further hold that the provision of section 11 which allows the voters to modify or eliminate term limits for a particular office is self-executing, requiring no further action by the legislature for implementation. Thus, because the boundaries of the Tenth Judicial District and Pueblo County are coextensive, with identical electors, we find that the Board validly referred the measure to the voters of the Tenth Judicial District regarding the elimination of term limits for their district attorney. Although the legislature may replace the procedure that we sanction today with one of its own choosing, section 11 remains self-executing without any further legislative action." Justice Rice wrote the majority opinion. Justice Hobbs, joined by Justice Coats, concurred in the judgment only. He concluded that term limits do not apply at all to district attorneys: "Because the office of district attorney is created by Article VI of the state constitution and located in the judicial branch of state government by that fundamental law, it was not intended to be term-limited by either [constitutional] amendment. In my view, it is unsurprising that district attorneys do not fit comfortably within the allowance for local exemption from term limits since they hold a state office that was intentionally excluded from term limits in the first instance." Davidson v. Sandstrom Trial court adequately presented defendant's theory of defense to the jury and therefore did not violate due process by refusing to instruct the jury on lesser non-included offenses that had been submitted to an earlier jury in a previous trial that had ended in a mistrial. People v. Trujillo Termination of parental rights upheld. The court held first that the court of appeals erred in concluding that it did not have jurisdiction over the appeal where the mother failed to seek a review of the magistrate's termination order within the five days allowed by C.R.S. § 19-1-108(5). The supreme court held that since the district court had discretion to entertain a late petition, and the district court had in fact done that, the court of appeals did have jurisdiction over the appeal from the district court's affirmance of the magistrate's termination order. On the merits, the supreme court affirmed the termination of parental rights, finding ample evidence in the record to support the termination. C.S. v. People The court granted cert. in two cases: Delgado v. People, No. 03SC390, Court of Appeals Case No. 01CA0807 (4/24/03), addressing this question: Whether an appellate court’s correction of an illegal sentence deprives a trial court of jurisdiction to modify the sentence. Civil Service Commission v. Carney, No. 03SC478, Court of Appeals Case No. 02CA0846 (5/22/03), addressing these issues:
Whether the court of appeals properly reversed the trial court’s order denying the respondents’ motion to amend their complaint by adding a substantive due process claim in a case that was remanded for the award of costs.
Whether the court of appeals erred in finding that it was not futile to allow respondents to assert a federal substantive due process claim (as opposed to a procedural due process claim) based on a challenge to a police promotional examination process. January 23, 2004 D.A. term limits case to be handed down Monday. The supreme court will issue three decisions on Monday, including Davidson v. Sandstrom, the D.A. term limits decision. The questions presented in that case are: Are district attorneys subject to the term limit provisions of Colo. Const. Art. XVIII, § 11? If district attorneys are subject to term limits, do the county board of commissioners have the legal authority to refer a measure to the voters of a judicial district seeking to eliminate term limits for district attorneys? Is the Secretary of State required to recognize the outcome of an election to remove term limits for district attorneys when the respective Board of County Commissioners refer the question to the voters of the county or counties that make up a judicial district? The court will also issue People v. Trujillo, which involves these issues: Whether a defendant is entitled to have a jury instructed on an offense for which he has previously been convicted where double jeopardy precludes another conviction for this offense. Whether a trial court may try a defendant for an offense for which
it cannot enter a conviction and there is no case or controversy. January 22, 2004 Today's court of appeals case announcements are here. The court issued only unpublished decisions. On March 24th, the United States Supreme Court will hear arguments in City of Littleton v. Z.J. Gifts, a case mentioned in my January 6, 2004 post. January 21, 2004 The list of decisions the court of appeals will issue tomorrow is here. Sorry folks, there'll be only unpublished decisions. January 20, 2004 Today's supreme court announcements are here. The court issued just one decision and did not grant cert. in any cases. And the decision was a disappointment. DeStefano v. Nichols affirmed by an equally divided court. The court of appeals' opinion that was affirmed is here. January 15, 2004 Reminder: The courts are closed Monday, in observance of Martin Luther King, Jr. Day. So supreme court announcements will come on Tuesday, January 20. Court of appeals case announcements for today are here. The court announced three published decisions and a whole bunch of unpublished decisions. The published decisions are summarized below. General Assembly did not meant to preclude as a matter of law abusive parents or spouses from exercising individual, and even sole, decision-making responsibility with regard to their children. Thus, the court of appeals concluded, it was not error for the trial court to award primary parental and sole decision-making responsibility to a husband who pled guilty to third-degree assault in connection with an incident where he struck his eight-year-old son in the face. The court of appeals concluded that the General Assembly, by enacting C.R.S. § 14-10-124(1.5)(b)(IV)-(V), did not intend to bar or preemptively bar an abusive parent or spouse from exercising decision-making responsibility. It'll be interesting to see if the supreme court will review this statutory interpretation or if the General Assembly will step in to amend it. In re the Marriage of Bertsch Where a settlement agreement is negotiated, one of the parties makes a unilateral mistake and the other party's only alleged misconduct is silence, the lack of any duty of disclosure precludes a finding of inequitable conduct and thus precludes reformation of the agreement. Poly Trucking, Inc. v. Concentra Health Services, Inc. Attorney fees for defending against counterclaims were recoverable in a wage claim case, where the fees for defending against the counterclaims were not separable from the fees for prosecuting the wage claim. Hartman v. Community Responsibility Center, Inc. This article in the Denver Post discusses today's supreme court argument in Auman v. People. January 12, 2004 Supreme court case announcements for today are here. The court decided two cases and granted cert. in seven cases. A summary follows. Water court properly ordered City of Golden to stop diverting water at the Church Ditch headgate during the drought of 2002. The supreme court held that the water court properly concluded that Golden's 1966 change decree was unambiguous and required Golden to cease diverting water under the conditions presented. In addition, the court rejected Golden's argument that the water court erred by dismissing Golden's complaint for injunctive relief after holding only a TRO hearing. The hearing involved extensive evidence, including experts, and when the trial court asked Golden's counsel at the end of the hearing if the city would present any additional evidence at a hearing on the merits, the attorney responded "I'm not sure there would be any." The supreme court held that no additional hearing was necessary or required to resolve the case. City of Golden v. Simpson Trial court failed to evaluate the totality of the circumstances surrounding defendant's Miranda waiver, taking into account only one factor, the defendant's intoxication. Under the totality of the circumstances, the record did not support the conclusion that the defendant did not knowingly, intelligently and voluntarily waive his rights. Therefore, the supreme court reversed the suppression of the defendant's statements. The case is of additional interest because the court appeared to give no deference to the trial court's view of the written and audio-taped statements. The supreme court noted that it was "in the same position as the trial court to review these recorded statements." This case, and the case it relied on for that proposition (People v. Al-Yousif, 49 P.3d 1165 (Colo. 2002)--a case in which I represented the defendant in the supreme court), strongly indicate that an appellate court need not give deference to a trial court when weighing recorded evidence (whether audio, video or written) in addressing suppression motions. People v. Platt The court granted cert. in the following cases: In re the Marriage of Malwitz, No. 03SC439, addressing the following question: Whether the district court has jurisdiction to order child support over a non-resident father under Section 14-5-201(5), 5 C.R.S. (2003), the long arm provision of the Uniform Interstate Family Support Act, when the father’s acts of domestic violence caused the pregnant mother to flee to Colorado where the child was born and now resides with the mother. Chadwick v. Colt Ross Outfitters, Inc., No. 03SC458, addressing the following issues: Whether the court of appeals correctly applied B&B Livery v. Riehl, 960 P.2d 134 (Colo. 1998) in light of CRS 13-21-119(4)(b)(I)(A) and (B) when it held that plaintiff released the outfitter and equine professional from all claims including those arising from the breach of these statutory duties.
Whether there was a valid release of liability from harm while riding a mule in light of the four factors in B&B Livery v. Riehl, 960 P.2d 134 (Colo. 1998). Wolford v. Pinnacol Assurance, No. 03SC472, addressing these issues:
Whether the forfeiture provision of section 8-43-402, 3 CRS (2002) applies to all workers’ compensation benefits or only those obtained by making a false statement or representation.
Whether the forfeiture of all workers’ compensation benefits pursuant to the forfeiture provision of section 8-43-402, 3 CRS (2002), rather than only those benefits obtained by making a false statement or representation, violates the excessive fines clause of the United States and Colorado constitutions.
Whether the criminal forfeiture provision of section 8-43-402, 3 CRS (2002) can be enforced after the original sentence is passed without violating the Double Jeopardy Clause when the forfeiture is not included in the judgment of conviction and sentencing order. Vigil v. Franklin, No. 03SC479, addressing these questions: Whether the court of appeals erred in concluding that the common law “open and obvious danger” doctrine survived the enactment of the Colorado premises liability statute CRS Section 13-21-115.
Whether the court of appeals erred in applying the “open and obvious danger” doctrine to affirm the trial court’s granting of summary judgment. Quintano v. People, No. 03SC567, involving these issues:
Whether the court of appeals erroneously concluded that the trial court’s failure to compel an election of counts was harmless when the prosecutor argued in closing that uncharged acts could be used to find the defendant guilty.
Whether the court of appeals erred in concluding that the five identical charges were not multiplicitous. State Farm Mut. Auto. Ins. Co. v. Brekke, No. 03SC585, addressing these issues:
Whether the court of appeals erred by holding that State Farm implicitly waived its right to a jury trial based upon an inference drawn from the absence of any language in State Farm’s insurance policy expressly guaranteeing a jury trial in litigation with its insured, and notwithstanding policy language requiring that contract benefit disputes be resolved on the basis of “an actual trial.”
Whether the court of appeals misconstrued applicable precedent in opining that it would violate public policy for an insurance company to receive a jury trial in an action brought by its insured under a policy for uninsured motorist benefits. Colorado Dep't of Transportation v. Stapleton, No. 03SC616, addressing these questions:
Whether CDOT’s authority to condemn land for “state highway purposes” pursuant to section 43-1-208, CRS, allows it to condemn land for transit parking when such parking is mandated by federal law and integral to the state highway project.
Whether a local government that can condemn land “necessary, suitable, or proper for park or recreational facilities” pursuant to section 29-7-104, CRS, can condemn to provide vehicle parking needed to serve such parks and recreational facilities.
Whether CDOT’s authority to condemn “remainder parcels” pursuant to section 43-1-210(1), CRS, authorizes CDOT’s condemnation of the parcels if CDOT cannot condemn for transit parking and the county cannot condemn for park and recreational facility parking. January 9, 2004 The supreme court will issue two decisions on Monday, January 12th. City of Golden v. Simpson, No. 02SA364, is a water law case. To view the issues in that case, click here for the link to the oral argument calendar that includes that case. People v. Platt, No. 03SA217, did not have oral argument, so I don't know what it's about. My guess is that it's an interlocutory appeal from a grant of a suppression motion. But you'll have to wait until Monday to find out. Have a good weekend. January 8, 2004 Today's court of appeals announcements--one unpublished decision and one denial of a petition for rehearing--are here. January 7, 2004 Tomorrow's court of appeals case announcement list is here. The court will issue only one decision and it's an unpublished one, People in the Interest of D.O., Jr., No. 03CA0687. January 6, 2004 Supreme court oral argument calendar for January is here. The court will hear argument in thirteen appeals, including Auman v. People (January 15th at 9 a.m.) and ZJ Gifts v. City of Littleton (January 14th at 2:30 p.m.). Auman will address whether the petitioner's arrest by police precluded her liability for felony murder (the court of appeals held that it did not). ZJ Gifts addresses whether the municipal court erred in convicting an adult business of sales tax violations where the ordinance that formed the basis of the denial of the business's sales tax license was declared unconstitutional by the Tenth Circuit. The case is of interest because the Tenth Circuit's decision declaring the Littleton ordinance unconstitutional is being reviewed by the U.S. Supreme Court. January 5, 2004 Happy New Year! I apologize for not doing any updates for awhile. I took some time off for the holidays and had an unexpected absence due to illness. But I'm back in form. No supreme court case announcements today. The court of appeals case announcements from December 31 are here. The court issued eight published opinions, including one opinion previously issued as unpublished. Here are the summaries: Motion to reconsider denial of Rule 35(b) motion amounted to a second Rule 35(b) motion. Because the motion was not brought within the 120-day deadline for filing such motions, the trial court lacked jurisdiction to rule on it. People v. Gresl Admission of evidence obtained from court-ordered sanity examination to prove guilt violated due process and the privilege against self-incrimination. Evidence first acquired from a defendant during court-ordered a sanity examination may only be used at trial to establish the defendant's capacity to form the mental state at issue. The court reversed a first degree murder conviction where the trial court permitted the examining psychiatrist to testify about the defendant's mental state at the time of the killing, including testimony that the defendant "intended to kill." The court held that such evidence "impermissibly related to defendant's guilt of the substantive offense." The court also held, consistent with precedent, that a single, unitary trial on both sanity and guilt does not violate the privilege against self-incrimination. On that point, Judge Roy specially concurred, expressing his concern that a conflict exists between unitary trials and the right against self-incrimination. Judge Roy noted that "while it may be theoretically possible to verify" that a defendant's rights were protected in a unitary trial, "it is practically impossible to verify that those rights were respected and preserved." People v. Herrera Before a defendant convicted of soliciting for child prostitution can be sentenced to an indeterminate sentence, an assessment must be made that it is likely that the defendant will commit an enumerated sexually violent predator crime under certain specific circumstances. Since the trial court did not make such an assessment, the indeterminate sentence imposed could not stand. People v. Jacobs Companion's possession of one-eighth of an ounce of methamphetamine, while he was standing in defendant's detached garage, did not justify search of defendant's residence. The court remanded for the trial court to consider whether the good faith exception to the exclusionary rule should apply. People v. Bachofer When the only
alleged basis for jurisdiction is a contract between a resident plaintiff
and a nonresident defendant, the necessary minimum contacts are not
present to confer personal jurisdiction over such a defendant.
Minimum contacts were absent because defendants (1) did not enter Colorado
in the course of the transaction at issue and had no other contacts
with Colorado, (2) plaintiff initiated the transaction with defendants
out of state, (3) the due diligence was done out of state, (4) the assets
to be purchased were located out of state, (5) a letter of intent did
not require defendants to perform any act within Colorado and was signed
out of state. New
Frontier Media, Inc. v. Freeman Discretionary,
not mandatory, parole period applies for offense with a factual basis
involving unlawful sexual behavior. The court vacated the defendant's
sentence to mandatory parole and remanded to the trial court to determine
whether the defendant was sentenced for an offense for which the factual
basis involved an offense involving unlawful sexual behavior. People
v. Rockwell Rule against
perpetuities' decision: Res judicata barred subsequent suit for reformation
under the Colorado Statutory Rule Against Perpetuities (C.R.S. §
15-11-1106(2)).
The court held that because the statutory reformation claim under §
15-11-1106(2) could have been brought in an earlier lawsuit, res judicata
barred that claim. This case is one with which I've had some involvement,
so I know this issue pretty well. Candidly, the court's treatment of
this issue was a bit disappointing because the court failed to address
the plain language of § 1106(2): "If a nonvested property
interest . . . was created before May 31, 1991, and is determined in
a judicial proceeding, commenced on or after May 31, 1991, to violate
this state's rule against perpetuities as that rule existed before May
31, 1991, a court upon the petition of an interested party shall reform
the disposition by inserting a savings clause . . . ." The plain
language of the statutory provision suggests that a petition (i.e.,
a second action) can be brought after an earlier action determines that
the property interest violated the common law rule against perpetuities,
and therefore that res judicata does not apply. Should this case receive
attention in the state supreme court, I'll let you know. As far as I
know, this is the only published case in the nation to address this
reformation provision of the Uniform Statutory Rule Against Perpetuities.
Argus
Real Estate, Inc. v. E-470 Public Highway Authority When entering an order for sanctions for discovery violations in a workers' compensation case, the ALJ is presumed to have considered the relevant legal principles, including the requirement of willfulness. Thus, it seems that no express finding of willfulness is required before the ALJ may impose sanctions. Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office
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