Cases of Note
Courts presume that the General Assembly is aware of court decisions that construe state statutes or the constitution. The OLLS will update this web page quarterly to notify the General Assembly of such court decisions. Cases that may be of particular interest because they meet certain criteria have been summarized and are listed below in chronological order. Summaries for cases older than a year are available in an archive.
People v. Hernandez, Colorado Court of Appeals No. 17CA0775 (July 25, 2019)
Holding: A defendant has a right to be present at a restitution hearing.
Case Summary: Defendant was convicted of first degree assault for stabbing the victim. The trial court imposed a sentence to the custody of the Department of Corrections and gave the prosecutor sixty days to file a notice of restitution. The prosecutor timely sought restitution to compensate the Crime Victim Compensation Fund. Defense counsel appeared at the restitution hearing without defendant. The hearing went forward and the trial court awarded the amount requested. Defendant appealed the decision arguing the trial court erred by proceeding with the restitution hearing in his absence. The Court of Appeals reasoned that Colorado Rule of Criminal Procedure 43(a) and both the United States and Colorado Constitutions guarentee the right of a criminal defendant to be present at all critical stages of the proceeding. Sentencing is considered a critical stage of a criminal proceeding and since restitution is a part of the sentencing process, the Court of Appeals held the defendant had a right to be present at the restitution hearing. The Court vacated the restitution order and remanded the case. (For more information, contact Shelby Ross.)
People v. Mazzarelli, Colorado Supreme Court No. 16SC546 (July 1, 2019)
Holding: The statute and rules governing plea agreements require the trial court to exercise its independent judgment in deciding whether to accept or reject sentence concessions in the agreement and allow the defendant, but not the prosecution, to withdraw from a plea agreement when the trial court rejects a sentence concession after the defendant has pled guilty.
Case Summary: The People (prosecution) charged defendant Christopher Mazzarelli with knowing or reckless child abuse resulting in serious bodily injury to his infant son, a class 3 felony. Defendant and the prosecution agreed to a plea agreement under which defendant pled guilty to criminally negligent child abuse resulting in serious bodily injury, a class 4 felony, and the prosecution agreed to dismiss the original charge. The plea agreement also included a sentence stipulation that the defendant would receive a prison sentence within the extraordinary risk crime range of 2 to 8 years.
The trial court accepted the defendant's guilty plea but rejected the stipulated 2 to 8 year prison sentence and instead sentenced defendant to supervised probation. The trial court also rejected the prosecution's request to withdraw from the plea agreement. The prosecution appealed, arguing that it should have been allowed to withdraw from the plea agreement because the trial court had substantially modified the terms of the agreement, and the Colorado Court of Appeals (court of appeals) affirmed. The Colorado Supreme Court (supreme court) granted certiorari to determine whether "the court of appeals erred in upholding the trial court's actions as a matter of law and finding that it could sentence the defendant outside the stipulated sentencing range contained in a plea agreement and accepted by all parties."
The supreme court vacated the court of appeals' decision in its entirety because it did not agree with its reasoning, but, like the court of appeals, upheld the trial court's decision not to allow the prosecution to withdraw from the plea agreement. The supreme court held that "the statute and rules [governing plea agreements in Colorado] (1) require the trial court to exercise its independent judgment in deciding whether to accept or reject sentence concessions in a plea agreement, and (2) allow the defendant, but not the People, to withdraw from a plea agreement when the trial court rejects a sentence concession after the defendant has pled guilty." In support of its holding, the supreme court quoted both language in section 16-7-302 (3), C.R.S., and Colorado Rule of Criminal Procedure 11 (f)(5) stating that [n]otwithstanding the reaching of a plea agreement between the district attorney and defense counsel or defendant, the judge in every case should exercise an independent judgment in deciding whether to grant charge and sentence concessions[,]" and language in Colorado Rule of Criminal Procedure 32 (d) (rule 32 (d)) stating that when a court rejects a sentence concession it "shall so advise the defendant and the district attorney and then call upon the defendant to either affirm or withdraw the plea of guilty." The supreme court clarified that in the context of plea agreements, "sentence stipulations," "sentence agreements," "sentence concessions," and other similar terms are "nothing more than sentence recommendations that the trial court is free to accept or reject, including after the defendant's guilty plea," and that the statute and rules prohibit the prosecution and a defendant from entering into a plea agreement limiting this sentencing discretion of the trial court.
The supreme court also rejected the argument that the doctrine of separation of powers, under which an executive branch prosecutor has sole discretion to make criminal charging decisions, prohibits a trial court from accepting a guilty plea, but not the punishment stipulated in the plea agreement, without allowing the prosecution an opportunity to withdraw from the agreement. The supreme court observed that defendant pled guilty to an offense chosen as part of the prosecution's charging decision to offer a plea agreement and that the court then made a separate sentencing decision that was within its judicial purview under the applicable statute and rules. Finally, the supreme court acknowledged that its holding is inconsistent with the current practice in many trial courts and indicated that if the applicable statute and rules were amended in the future, it would apply them as amended. (For more information, contact Michael Dohr.)
Jones v. Williams, Colorado Supreme Court No. 18SA189 (June 24, 2019)
Holding: The warrant requirement of section 13-45-101 (1), C.R.S., is not a jurisdictional requirement requiring summary dismissal for noncompliance.
Case Summary: Petitioner Richard Jones filed a habeas corpus petition in district court challenging the department of corrections' (DOC) calculation of his parole eligibility date. Petitioner argued that the DOC erred in calculating the date using his 2008 conviction and that the DOC instead should use his 1991 convictions to calculate his parole eligibility date. The petitioner claimed that if the DOC used his 1991 convictions to calculated his parole eligibility date, then he was already being held unlawfully past his parole eligibility date. The petitioner included the warrant for his 2008 conviction with the petition but not the warrant for the 1991 convictions. Section 13-45-101 (1), C.R.S., requires that a habeas corpus petition include the applicable warrants.
Four previous Colorado Supreme Court cases held that the warrant requirement is jurisdictional. Butler v. Zavaras, 924 P.2d 1060 (Colo. 1996), Evans v. District Court, 572 P.2d 811(Colo. 1977), Garrett v. Knight, 480 P.2d 569 (Colo. 1971), and McNamara v. People, 410 P.2d 517 (Colo. 1966). Based on those decisions, the trial court dismissed the petitioner's habeas corpus petition.
The Colorado Supreme Court reversed the trial court and overruled the previous supreme court decisions that had held the warrant requirement to be jurisdictional. The supreme court determined that the language of section 13-45-101 (1), C.R.S., does not limit a court's jurisdiction to hear habeas corpus cases and that the warrant requirement is instead simply a statutory procedural requirement. (For more information, contact Michael Dohr.)
In re Ballot Title #3, Colorado Supreme Court No. 19SA25 (June 17, 2019)
Holding: A proposed one-sentence initiative to repeal the Taxpayer's Bill of Rights, article X, section 20 of the Colorado constitution (TABOR) in its entirety has a single subject.
Case Summary: Article V, section 1 (5.5) of the Colorado constitution requires every proposed initiative to have a single subject, which must be clearly expressed in its title. Before setting a title for a proposed initiative, the title board must first find that the proposed initiative has a single subject.
Initiative proponents proposed an initiative, 2019-20 #3 (initiative #3), to repeal the Taxpayer's Bill of Rights (TABOR) in its entirety. The full text of the initiative simply states: "In the constitution of the state of Colorado, repeal section 20 of article X". The title board concluded that the initiative does not have a single subject and that it therefore lacked jurisdiction to set a title because prior Colorado supreme court cases had indicated that TABOR includes multiple subjects and that a proposed initiative to repeal a constitutional provision that includes multiple subjects itself includes multiple subjects. Proponents filed a motion for rehearing, but the title board denied the motion and again declined to set a title. Proponents appealed.
The Colorado supreme court reversed the title board, holding that initiative #3 contains a single subject, the repeal of TABOR. The supreme court first noted that the single subject requirement serves the functions of (1) forbidding the treatment of incongruous subject in the same measure, especially the practice of putting together in one measure subjects having no necessary or proper connection, for the purpose of enlisting in support of the measure the advocates of each measure, and thus securing the enactment of measures that could not be carried upon their own individual merits (i.e., preventing "logrolling") and (2) preventing surreptitious measures and apprising the people of the subject of each measure by the title, that is, to prevent surprise and fraud from being practiced upon voters. The court then concluded that the initiative satisfies both functions and therefore has a single subject because it "effectuates one and only one general objective or purpose, namely the repeal of TABOR ... and could not be written more simply or directly. It essentially asks voters a single question: should TABOR be repealed in full?"
In support of its decision, the Colorado supreme court acknowledged that it had stated in multiple prior cases that if a constitutional provision contains multiple subjects, then a proposed initiative to repeal the entire provision also contains multiple subjects. But the court characterized those statements as nonbinding dicta that lacked underlying analysis. The court specifically distinguished In re Proposed Initiative 1996-4, 916 P.2d 528 (Colo. 1996), a case in which the court had concluded that a proposed initiative that would have repealed and reenacted certain individual provisions of TABOR had multiple subjects, from the total repeal of TABOR, without reenactment of any provisions, proposed by initiative #3. The court then declined to adopt the "dicta" for the following reasons: (1) "a one-sentence initiative asking voters to decide if a constitutional provision should be repealed meets all of the requirements of a single subject;" (2) there is "no basis for creating ... a unique single subject rule for efforts to repeal constitutional provisions;" and (3) "concluding that an initiative contains multiple subjects merely because the targeted provision contained multiple subjects effectively makes the original provision impervious to challenge." Having declined to adopt the "dicta", the court concluded that initiative #3 satisfied the single subject requirement.
In a dissenting opinion, two justices rejected the majority's characterization as "dicta" of prior Colorado Supreme court statements that TABOR includes multiple subjects and that an initiative proposing to repeal a constitutional provision that includes multiple subjects itself includes multiple subjects. The dissenters concluded that initiative #3 includes multiple subjects for the following reasons: (1) the single subject requirement applies to all initiatives, including those that only repeal existing constitutional provisions; (2) TABOR includes multiple subjects; (3) the constitutional single subject requirement for initiatives was adopted in 1994 in response to the adoption of TABOR for the purpose of preventing multiple-subject initiatives like TABOR from being placed on the ballot in the future, and allowing initiative #3 to appear on the ballot is thus "directly contrary to the intent of the single subject requirement;" and (4) case law has consistently held that a proposed initiative to repeal a multiple-subject constitutional provision violates the single subject requirement, and the majority had no justification to overrule that case law. (For more information, contact Jason Gelender.)
McCoy v. People, Colorado Supreme Court No. 15SC1095 (June 3, 2019)
Holding: Sufficiency of evidence claims may be raised for the first time on appeal and are not subject to plain error review. Therefore, appellate courts should review unpreserved sufficiency claims de novo.
Case Summary: Defendant McCoy was convicted of two counts of unlawful sexual contact while engaged in the treatment or examination of a victim for other than bona fide medical purposes, pursuant to section 18-3-404(1)(g), C.R.S.. McCoy appealed, arguing the prosecution presented insufficient evidence to sustain his convictions. McCoy claimed that he is not a physician and the people were required to prove that he was a physician to sustain his conviction. The People responded that because McCoy had not preserved his sufficiency claim, the appellate standard of review was for plain error, and therefore, the conviction should be upheld.
The court of appeals had to decide what standard to apply since there was both court of appeals precedent that applied the plain error standard and precedent that applied a de novo standard to insufficient evidence claims. In a split decision, the court of appeals affirmed the conviction and applied the de novo review standard to claims of insufficient evidence. The Supreme Court granted cert and affirmed the court of appeals decision declaring that de novo review is the standard for insufficient evidence claims and also overruled all of the court of appeals decisions that applied a plain error standard. (For more information, contact Shelby Ross.)
Colo. Dept. of Labor & Employment v. Dami Hosp., Colorado Supreme Court No. 17SC200 (June 3, 2019)
Holding: The Colorado Supreme Court reversed the Colorado Court of Appeals' opinion that the Division of Workers' Compensation (DWC) abused its discretion by imposing an aggregate fine of $841,200 against a corporation for failure to maintain workers' compensation insurance without first applying a three-part test established in a Colorado case to determine whether the aggregate amount of the fines was excessive under the Excessive Fines Clause of the Eighth Amendment of the United States constitution (Excessive Fines Clause). The Colorado Supreme Court determined that the appropriate test in an Excessive Fines Clause analysis is not the test identified by the Colorado Court of Appeals, but a test that looks at whether each per diem fine is grossly disproportionate to the violation, as set forth in federal case law. The Colorado Supreme Court remanded the case to the Colorado Court of Appeals to return the case to the DWC to determine, under the federal test regarding excessive fines, if each per diem fine imposed was grossly disproportionate to the violation.
Case Summary: Dami Hospitality (Dami), the owner of a Denver motel, failed to maintain workers' compensation insurance as required under the Workers' Compensation Act for extended periods of time totaling 1,698 days. The DWC fined Dami an aggregate amount of $841,200 for the violations, and Dami appealed to the Industrial Claim Appeals Office (ICAO). The ICAO remanded the case to the DWC for consideration whether the aggregate amount of the fines was constitutionally excessive under the three-part test announced in Associated Business Products v. ICAO, 126 P.3d 323 (Colo. App. 2005). The DWC determined that the aggregate amount of the fines was appropriate and not excessive. On appeal, the ICAO affirmed. On further appeal, the Colorado Court of Appeals determined that the DWC abused its discretion by failing to apply the Associated Business Products' factors to Dami's specific circumstances. The DWC appealed to the Colorado Supreme Court.
The Colorado Supreme Court agreed with the Colorado Court of Appeals that (1) the Excessive Fines Clause applies to corporations and (2) Dami's ability to pay is an appropriate consideration in the constitutional analysis. The Court, however, disagreed with the Colorado Court of Appeals' application of the test set forth in Associated Business Products under which test the aggregate amount of the fines imposed is evaluated for excessiveness. The Court reasoned that, because each day that the law was violated is a separate and distinct violation under the relevant statute of the Workers' Compensation Act, the excessiveness of the fines should be assessed on a per diem basis. The Court concluded that the appropriate test is the test set forth in United States v. Bajakajian, 524 U.S. 321 (1998), which test evaluates each per diem fine to determine whether it is grossly disproportionate to the violation. (For more information, contact Jennifer Berman.)
People v. Ross, Colorado Court of Appeals No. 17CA0204 (May 23, 2019)
Holding: Solicitation for child prostitution is a specific intent crime.
Case Summary: Defendant was charged with four counts of soliciting for child prostitution with two girls who were minors. After the prosecution presented its case, the defendant moved for acquitals on all four counts, arguing that the prosecution had not presented any evidence to prove that the defendant had solicited or arranged a meeting for the purpose of child prostitution. The prosecution argued that section 18-7-407 prevented the defendant from raising the defense that he did not know the girls' ages. The trial court disagreed, deciding that although the defendant could not present a defense that the girls were of legal age, that did not relieve the prosecution of its burden to show the arrangement was for the purpose of child prostitution. The trial court determined that, based on the photograph of one of the girls, the defendant could have determined she was underage, but there was no photograph of the second girl. So, the court dismissed the two counts related to the second girl. The prosecution appealed.
The court of appeals reviewed the case and found that solicitation for child prostitution is a specific intent crime. The court determined that the phrase "for the purpose of" is the equivalent of "intentionally". So, the prosecution must present evidence that the defendant had the specific intent of soliciting for child prostitution. The court of appeals also agreed that section 18-7-407 prevents a defendant from raising the defense that he believed that the prostitutes were of legal age, but it does not relieve the prosecution of its burden of proving defendant's specific intent to engage in child prostitution.
The court of appeals acknowledged that a different division of the court determined that soliciting for child prostitution is a general intent crime with mens rea of knowingly, but respectfully disagreed with that opinion. See People v. Emerterio, 819, P.2s 516 (Colo.App. 1991). (For more information, contact Shelby Ross.)
People v. Perez, Colorado Court of Appeals No. 16CA0446 (May 2, 2019)
Holding: The Court of Appeals upheld the trial court's restitution order. However, even without a request by defense counsel or the prosecution, the trial court should have realized that it was requried to make a finding of extenuating circumstances before granting the prosecution additional time to present its restitution information to the court.
Case Summary: Defendant was convicted of second degree assault with a deadly weapon and sentenced to five years in the custody of the Department of Corrections. At sentencing, the trial court reserved a determination of restitution for ninety- one days pursuant to section 18-1.3-603(1)(b). Ninety-four days after the order of conviction, the prosecution moved for an extension of time to request restitution, but did not show good cause or extenuating circumstances for the delay as required by section 18-1.3-603(2). Defendant did not object to the request. The trial court ordered the restitution and defendant appealed stating the trial court erred in ordering restitution more than ninety-one days after sentencing absent a showing of good cause or extenuating circumstances. The Court of Appeals held that the assertions made by the prosecution were sufficient for a finding of extenuating circumstances so the trial court's failure to make such an explicit finding was not a substantial error. The error did not cast serious doubt on the reliability of the restitution order. In a specially concuring opinion, Judge Taubman stated the statute could be clarified by amending section 18-1.3-603(1)(b) to require the prosecution to make a showing of good cause before the trail court determines that the prosecution may be accorded time to present restitution information pursuant to section 18-1.3-603(2). (For more information, contact Shelby Ross.)
In Interest of Ray v. People, Colorado Court of Appeals No. 17CA1623 (February 21, 2019)
Holding: Certification for involuntary short-term mental health treatment entered by a professional person under section 27-65-107 is not a "court order" under section 13-5-142 (1)(c) and a person's information should not be sent to the CBI for forwarding on the National Instant Criminal Background Check System which would subject the person to federal firearms prohibitions. The court ordered that steps be taken to rescind the reporting to the National Criminal Background Check System.
Case Summary: The petitioner sought mental health treatment at a hospital and a physician certified him for involuntary mental health treatment pursuant to section 27-65-107, C.R.S. The certification was filed with the Denver probate court. As a result the Colorado bureau of investigation was notified and the petitioner was added to National Instant Criminal Background Check System (NCIS). The effect was the petitioner was prohibited from possessing a firearm. The petitioner asked the probate court for removal from NCIS, the probate court denied the petition.
Sections 13-5-142 and 13-9-123, C.R.S., require that when a court orders a person into involuntary mental health treatment pursuant to section 27-65-107, C.R.S., the name of the person must be reported to CBI to have the person listed in the NCIS. The state court administrator has also been submitting the names of persons who are certified for involuntary mental health treatment entered by a professional person, like a physician, pursuant to section 27-65-107, C.R.S., to the Colorado bureau of investigation for reporting to NCIS. The result is those persons, like the petitioner, are subject to federal firearms prohibitions.
The petitioner appealed the probate court decision arguing only persons subject to court-ordered involuntary mental treatment may be placed in NCIS. The court of appeals agreed finding the express language of the statue was limited to court orders not professional person orders. (For more information, contact Jerry Barry.)
People v. Slaughter, Colorado Court of Appeals No. 18CA0842 (February 21, 2019)
Holding: It violates a criminal defendant's constitutional right to equal protection of the laws to charge the defendant with both strangulation under section 18-3-203 (1)(i), C.R.S., and a crime of violence sentence enhancer under section 18-1.3-406 (2)(a)(I)(A), C.R.S.
Case Summary: The defendant was charged with strangulation pursuant to section 18-3-203 (1)(i), C.R.S. Later, the prosecution moved to add a crime of violence sentence enhancer pursuant to section 18-1.3-406 (2)(a)(I)(A), C.R.S., to the charge. The trial court court initially granted the motion, but later reconsidered on defendant's motion and dismissed the sentence enhancer, reasoning that it violated the defendant's constitutional right to equal protection of the laws. The prosecution filed an interlocutory appeal of the dismissal, and the Colorado Court of Appeals affirmed the trial court's decision.
The court of appeals found that a person alleged to have strangled someone can be charged with second degree assault (which unlike first degree assault does not require proof that the defendant caused serious bodily harm to the victim) under either subsection (1)(b) or subsection (1)(i) of section 18-3-203, C.R.S. Under subsection (1)(b), the prosecution must prove that the defendant intended to cause bodily injury and caused bodily injury by means of a deadly weapon. Under section (1)(i), the prosecution must prove that the defendant intended to cause bodily injury and applied sufficient pressure to impede or restrict breathing or blood flow by applying sufficient pressure to the neck, nose, or mouth to actually cause bodily injury. The crime of violence sentence enhancer provided for in section 18-1.3-406 (2)(a)(I)(A), C.R.S., requires proof that the crime was committed with a deadly weapon.
The court of appeals found that a person who is charged with strangulation pursuant to section 18-3-203 (1)(i), C.R.S., in combination with the crime of violence sentence enhancer is subject to a more significant penalty than a person charged with strangulation pursuant to section 18-3-203 (1)(b), C.R.S. In both cases, the prosecution must prove that the defendant intended to cause bodily injury, did cause bodily injury, and used a deadly weapon, in this case the defendant's hands. The court of appeals thus found that there is no meaningful distinction in the criminal conduct, but that there is a significant difference in the possible penalty because a defendant charged under subsection (1)(b) could be sentenced to probation while a defendant charged under subsection (1)(i) with the crime of violence sentence enhancer would receive a minimum five-year prison sentence. Because "if two criminal statutes provide for different penalties for identical conduct, a person convicted under the statute with the harsher penalty is denied equal protection of the laws unless there are reasonable differences between the prohibited behaviors," the court of appeals concluded that the difference in possible sentences created an equal protection violation as applied to the defendant. (For more information, contact Michael Dohr.)
Martin Trust v. Bd. of County Comm'rs, Colorado Court of Appeals No. 17CA0938 (February 7, 2019)
Holding: A parcel of land that is contiguous to a commonly owned parcel of residential land that includes a residence qualifies as residential land only if, as specified in section 39-1-102 (14.4)(a), C.R.S., the parcel "is used as a unit in conjunction with the residential improvements," and the passive use of an unimproved parcel for the preservation of unobstructed views from the residence is not a qualifying conjunctive use. The county assessor therefore properly classified the entire parcel as vacant land and the Board of Assessment Appeals erred in reclassifying a portion of the parcel as residential land.
Case Summary: The Martin Family Partnership, LLP (Petitioner) owns two adjacent parcels of land in La Plata County, the west parcel, which the Martins owned in their own names before transferring it to Petitioner in 2015, and the east parcel. The east parcel includes the Martins' residence and the west parcel is an unimproved lot that adjoins the east parcel's western boundary. Section 39-1-102 (14.4)(a), C.R.S., defines "residential land" for purposes of property taxation to include a parcel of land that is contiguous to a commonly owned parcel of residential land that includes a residence only if it "is used as a unit in conjunction with the residential improvements."
For property tax years 2014 through 2016, the county assessor classified the east parcel as residential land and the west parcel as vacant land. Petitioners appealed to the county board of equalization (CBOE) and the board of county commissioners (BCC), which respectively denied both appeals. Petitioners then appealed to the Board of Assessment Appeals (BAA), which: (1) upheld the classification of the west parcel as vacant land for 2014 because in 2014 Petitioner did not own both parcels; and (2) partly reversed the classification of the west parcel as vacant land for 2015 and 2016 by classifying the two-thirds of the west parcel that it determined was used by the Martins to preserve views from the east parcel as residential land. Petitioner appealed the BAA's decision to the extent that it classified the west parcel as vacant land, the CBOE and the BCC appealed the BAA's decision to the extent that it classified the west parcel as residential land, and the BAA argued that its decision was supported by the evidence.
In two separate opinions, a majority of a three-judge panel of the Colorado Court of Appeals held that a parcel of land that is contiguous to a commonly owned parcel of residential land that includes a residence qualifies as residential land only if, as specified in section 39-1-102 (14.4)(a), C.R.S., the parcel "is used as a unit in conjunction with the residential improvements," and that the passive use of an unimproved parcel for the preservation of unobstructed views from the residence is not a qualifying conjunctive use. In addition, one of the judges, expressly declining to apply contrary nonbinding precedents from other divisions of the court of appeals and reading section 39-1-102 (14.3), C.R.S., which defines "residential improvements" for purposes of property taxation, together with section 39-1-102 (14.4)(a), C.R.S., further concluded that "a parcel that is contiguous to one on which there is a residence can be classified as residential land only when it has a 'building[], structure[], fixture[], fence[], amenity, [or] water right[]' that is 'an integral part of the residential use' of the parcel containing the residence." (For more information, contact Jason Gelender.)
Colo. Oil & Gas Conservation Comm'n v. Martinez, Colorado Supreme Court No. 17SC297 (January 14, 2019)
Holding: The Colorado Supreme Court reversed the opinion of the Colorado Court of Appeals that section 34-60-102 (1)(a)(I), C.R.S., mandates the protection of public health, safety, and welfare, including the environment and wildlife resources, as a condition precedent to the regulation of oil and gas development. The supreme court instead found that the Colorado Oil and Gas Conservation Commission (commission) must foster oil and gas development, protecting and enforcing the rights of owners and producers, while also preventing and mitigating significant adverse environmental impacts to the extent necessary to protect public health, safety, and welfare. The supreme court concluded that the oil and gas conservation commission (commission) did not abuse its discretion when it declined to engage in rulemaking to consider a proposed rule that would require it to deny a permit for the drilling of an oil or gas well unless the "drilling can occur in a manner that does not cumulatively, with other actions, impair Colorado's atmosphere, water, wildlife, and land resources, does not adversely impact human health, and does not contribute to climate change" on the grounds that it lacked statutory authority to adopt the proposed rule and was already working with the department of public health and environment to address the concerns to which the proposed rule was directed.
Case Summary: Plaintiffs petitioned the Colorado oil and gas conservation commission (commission) to adopt a rule that would require the commission to deny a permit for the drilling of an oil or gas well unless the "drilling can occur in a manner that does not cumulatively, with other actions, impair Colorado's atmosphere, water, wildlife, and land resources, does not adversely impact human health, and does not contribute to climate change." The commission declined to engage in rulemaking to consider the proposed rule because it determined that it lacked statutory authority to adopt the proposed rule and because it was already working with the Colorado department of public health and environment (CDPHE) to address the concerns to which the rule was directed and needed to prioritize that effort over the proposed rulemaking.
The Denver district court upheld the commission's determination, concluding that section 34-60-102 (1)(a)(I), C.R.S., requires the commission to balance the development of oil and gas resources against the protection of public health, safety, and welfare. The Colorado Court of Appeals reversed based on its analysis of the statute, and concluded that protection of public health, safety, and welfare constituted a condition that must be fulfilled rather than part of a balancing test.
The Colorado Supreme Court reversed the Colorado Court of Appeals' decision and held that the commission did not abuse its discretion when it denied the rulemaking petition. The supreme court found the language of the statute to be ambiguous and based its decision primarily on the statutory history of the provision, including comments made by legislators upon the introduction of various amendments, especially those pertaining to public health and safety. The supreme court concluded that, based on the perceived legislative intent of the statute, the commission must foster the development of oil and gas resources, protecting and enforcing the rights of owners and producers, and, in so doing, prevent and mitigate significant adverse environmental impacts to the extent necessary to protect public health, safety, and welfare, but only after taking into consideration cost-effectiveness and technical feasibility. As such, the protection of public health and the environment is a factor to consider rather than a condition precedent in regulating oil and gas development. (For more information, contact Thomas Morris.)
People v. Salgado, Colorado Court of Appeals No. 18CA0885 (January 10, 2019)
Holding: The Colorado Court of Appeals reversed the Jefferson County District Court and held that: (1) An executive order does not expire when the term of the governor who issued it ends and instead remains in effect until it is revoked, modified, or superseded by subsequent legal authority; and (2) An executive order that merely instructs an executive branch agency to prosecute certain offenses already established in law is not a legislative act constituting an unconstitutional exercise of legislative power by the executive branch in violation of the principle of separation of powers set forth in article III of the Colorado constitution.
Case Summary: Section 24-31-101 (1)(a), C.R.S., requires the attorney general to "appear for the state and prosecute and defend all actions and proceedings, civil and criminal, in which the state is a party or is interested when required to do so by the governor ...." This statute grants the governor general authority to direct the attorney general to prosecute certain cases.
In 1987, Governor Roy Romer issued Executive Order No. D 0017 87 (executive order). The executive order has not been repealed, rescinded, or modified and it requires the attorney general, through the Medicaid fraud control unit (MFCU) of the office of the attorney general, to investigate and prosecute Medicaid fraud and patient abuse cases.
In December 2017, the attorney general, through the MCFU, filed a felony charge involving neglect of an at-risk adult against Jasmine Salgado, an employee of an assisted living facility, in Jefferson County District Court. The Jefferson county district attorney, who had previously determined that there was insufficient evidence to prosecute Salgado, filed a notice asserting that the attorney general did not have legal authority or jurisdiction to file and prosecute the case because: (1) The executive order was unconstitutional; and (2) Legislation had superseded the executive order.
The district court rejected the argument that legislation had superseded the executive order, but concluded that the executive order was unconstitutional because "a former governor cannot require the current attorney general to act" and because "reliance on the executive order to confer authority in 2018 would be an unconstitutional exercise of legislative power by the executive branch."The attorney general appealed to the Colorado Court of Appeals and Salgado responded.
The Colorado Court of Appeals reversed the district court, holding that the executive order had not expired and that it is not an unconstitutional legislative act. Citing case law from other jurisdictions, the court of appeals noted that the "general rule" is that "executive orders validly issued pursuant to legislative or constitutional grants of authority remain in effect until revoked, modified, or superseded by later authority, and remain in effect beyond the expiration of the term of the governor who issued them." Applying the general rule, the court then determined that neither the language of section 24-31-101 (1)(a), C.R.S., nor any other legal authority support a requirement that an executive order delegating prosecutorial authority to the attorney general include a "temporal and spatial framework" or a "conclusion that executive orders expire along with the term of the issuing governor" or "after the lapse of some undefined period deemed sufficient by a court." Observing that the power of the governor "vests in the office, not the individual person inhabiting the office at any given time" and that an executive order thus "is the mandate of the office of the Governor, not the individual holding the title," the court concluded that "an executive order remains in effect until modified, rescinded, or superseded, and it does not expire merely because the issuing governor is no longer in office." Finally, the court held that because the executive order merely instructs an executive branch agency to prosecute certain offenses already established in law, it is not a legislative act constituting an unconstitutional exercise of legislative power by the executive branch in violation of the principle of separation of powers set forth in article III of the Colorado constitution. (For more information, contact Jason Gelender.)
People v. Taylor, Colorado Court of Appeals No. 17CA0280 (December 13, 2018)
Holding: Crim. P. 35(c)(3)(VII) supersedes prior case law, which states that a defendant can file a second Crim. P. 35(c) motion raising new postconviction claims if the defendant filed an initial Crim. P. 35(c) motion pro se.
Case Summary: This case involves a postconviction review of a defendant's case. Defendants can file for postconviction relief under Crim. P. 35. Crim. P. 35 sets the procedures, rules, and matters that can be heard in postconviction motion. Prior to 2004, if a defendant filed a 35(c) motion pro se, the defendant could file a second 35(c) motion raising new postconviction claims. In 2004, Crim. P. 35(c)(3)(VII) was adopted which requires a court to deny any claim that could have been presented in an appeal or postconviction proceeding previously brought, with five exceptions. The exceptions do not give a defendant the option to file a second 35(c) motion if the defendant filed the initial 35(c) motion pro se.
Defendant filed a pro se 35(c) motion raising seven claims. The postconviction court denied defendant's 35(c) motion. Defendant then filed a second pro se 35(c) motion, in which he renewed some of the claims from his first motion and raised new claims. The postconviction court held that the duplicative claims from defendant's initial 35(c) motion were barred as successive under Crim. P. 35(c)(3)(VI). However, the postconviction court did not consider the new claims as successive and denied them on the merits. The postconviction court's ruling was appealed. The court of appeals reversed. The court of appeals found that Crim. P. 35 (c)(3)(VII) supersedes prior case law holding that a defendant can raise new postconviction claims in a second 35(c) motion if the first 35(c) motion was filed pro se. (For more information, contact Shelby Ross.)
Cowen v. People, Colorado Supreme Court No. 16SC952 (December 10, 2018)
Holding: A trial court may not impose restitution for pecuniary losses caused by acquitted conduct.
Case Summary: The defendant wrote two checks from his company's bank account to a repair shop for maintenance and repair of his semitruck. The defendant's bank account contained insufficient funds to cover the checks. The defendant was charged with two counts of fraud by check - one count for each check. The defendant admitted that he knew there were insufficient funds to cover the checks when he wrote them. He asserted he did not intend to defraud the repair shop and that he intended to transfer money from another account and get a loan to cover the amounts of the checks. The jury convicted the defendant of the charge related to the first check, but acquitted him of the charge related to the second check. As part of the defendant's sentence, the trial court imposed restitution totaling the amount of both checks.
The defendant appealed the trial court's decision, arguing the restitution related to the second check is barred because he was acquitted on that charge. The court of appeals affirmed, holding that since the defendant was convicted of at least one charge, the trial court could impose restitution for the whole amount since the underlying conduct proximately caused the victim's loss. The supreme court reversed, stating that the plain meaning of section 18-1.3-603, C.R.S., requires a defendant be found guilty of a charge in order to impose restitution. Therefore, a trial court may not impose restitution for pecuniary losses caused by acquitted conduct. The supreme court also stated that it was specifically disapproving of any previous court of appeals opinions that are in conflict with the supreme court's opinion. (For more information, contact Shelby Ross.)
People v. Ray, Colorado Court of Appeals No. 16CA0444 (November 15, 2018)
Holding: The Judicial Department may collect interest payments on a monthly basis, rather than annually pursuant to the statutory direction to collect interest on restitution at the rate of twelve percent per annum.
Case Summary: In June 2015, the Judicial Department issued a press release announcing it would begin calculating and assessing 1% interest monthly on restitution balances to ensure consistent and accurate application of the law across the state after a 2014 State Audit report noted that most judicial districts had not assessed or collected any interest since the legislature had enacted the restitution statute. Defendant sued, claiming the Judicial Department did not have the statutory authority to charge monthly interest because the plain language of the statute said otherwise by using the term "per annum". The Court of Appeals held that, although the General Assembly did not define the term "per annum" and there was no legislative history to help ascertain when interest should be collected, others jurisdictions have interpreted similar language to be intended only as a measure of the rate with respect to time and does not require the payment of interest annually. Additionally, if the General Assembly intended to limit interest payments to an annual basis, it would have done so as it did in other statutes. (For more information, contact Shelby Ross.)
In re Heine, Colorado Court of Appeals No. 17CA1219 (November 1, 2018)
Holding: Retroactively assigning a child support obligation for the obligee when a voluntary change in parenting time occurs is affirmed, though the statute remains ambiguous. The district court did not make sufficient findings to support a determination of underemployment.
Case Summary: Mother and father of two children divorced in 2008. After multiple voluntary changes to parenting time, the district court determined that the mother owed retroactive child support, despite having been the obligee of the previous order. Section 14-10-122 (5) addresses changes in parenting time and the associated child support and was amended in 2013. But, those amendments did not resolve the ambiguity as to whether an obligee can retroactively be made an obligor. The court of appeals determined the legislative intent of the 2013 amendments was that an obligee can retroactively be made an obliger. This conclusion affirms the decision of the district court to retroactively grant the father child support from the mother. (For more information, contact Courtney McDonald.)
In re Rooks, Colorado Supreme Court No. 16SC906 (October 29, 2018)
Holding: In dissolution proceedings, the couple's cryogenically frozen pre-embryos constitute marital property of a special character. Supreme Court developed a framework to balance the parties' interests regarding the disposition of a divorcing couple's cryogenically preserved pre-embryos. The consent referred to in section 19-4-106 (7)(b) refers to the former spouse's consent to legal parenthood, not to their consent to placement of a pre-embryo.
Case Summary: A divorcing couple turned to the court to resolve a dispute over the disposition of their cryogenically preserved pre-embryos. The wife wished to keep the pre-embryos for future in vitro fertilization (IVF). The husband wanted no more genetic children using the pre-embryos and wished to have them discarded. The trial court ruled that the husband's right not to be forced to become a genetic parent outweighed the wife's desire to possibly have more children and awarded the pre-embryos to him. The court of appeals determined that the trial court erred in inferring contract terms that were not explicitly stated in the couple's contracts with the IVF facility to inform their ruling, but concluded that the trial court properly exercised its discretion in balancing the parties' interests and awarding the pre-embryos to the husband.
The supreme court reversed the judgment of the court of appeals, holding that both the trial court and the court of appeals considered inappropriate factors in attempting to balance the parties' interests, and remanded the case back to the trial court. In the absence of legislation regarding the disposition of cryogenically preserved pre-embryos upon the dissolution of marriage, the supreme court provided the following framework for balancing the parties' interests: courts should first look to any existing agreement between the parties regarding the disposition of their remaining pre-embryos in the event of divorce. In the absence of any such agreement, the court should balance the parties' interests by considering the following: (1) how the party who wishes to preserve the pre-embryos intends to use them; (2) the demonstrated physical ability or inability of the party seeking to use the pre-embryos for IVF to have biological children through other means; (3) the parties' original reasons for undertaking IVF; (4) the potential hardship for the party that wishes to avoid becoming a genetic parent, including emotional, financial, or logistical factors; (5) either party's demonstrated bad faith or attempt to use the pre-embryos as unfair leverage in divorce proceedings; and (6) other factors relevant to the parties' specific situation. The court also held that the following considerations are inappropriate: (1) the ability of the party seeking to use the pre-embryos to afford a child, (2) standing alone, the number of a party's existing children, and (3) the party seeking to use the pre-embryos' ability to adopt or otherwise parent non-biological children. (For more information, contact Courtney McDonald.)
Lewis v. Taylor, Colorado Supreme Court No. 17SC241 (September 17, 2018)
Holding: The time value of money does not constitute reasonably equivalent value in an equity-type Ponzi scheme.
Case Summary: Taylor invested money in a Ponzi scheme run by Mueller. Their agreement did not provide any guaranteed rate of return or interest; rather, Taylor was to receive merely a portion of whatever profits might accrue. Taylor received several transfers of "profits" (in reality, merely subsequent investors' principal) from Mueller and later withdrew his entire principal, plus nearly half a million dollars profit. Then the enterprise was exposed as a scam. The trial court appointed Lewis as receiver, who sued to void the profit portion of the transfers to Taylor in order to return the money to investors who lost all of their principal.
Taylor argued that, under the "Colorado Uniform Fraudulent Transfer Act" (CUFTA), he had given "reasonably equivalent value" to Mueller in the form of the time-value of the invested money, and therefore the transfers to him were not voidable. The trial court held for the receiver, and the court of appeals reversed.
The supreme court reversed again, observing that this is an issue of first impression in Colorado. The supreme court found that under CUFTA, the time value of money does not constitute reasonably equivalent value in an equity-type Ponzi scheme. The court contrasted a Ponzi scheme in which an investor has been guaranteed a minimum rate of return or interest; in these situations, a transfer of "profits" or interest satisfies an antecedent debt, which makes the investment of principal a reasonably equivalent value. In these types of Ponzi schemes, a transfer of "profits" or interest is a dollar-for-dollar forgiveness of a contractual debt; such transfers are not voidable. But in an equity-type Ponzi scheme, the innocent investor who profits can point to nothing under CUFTA that ties the false profit to "value" that was provided to the debtor. Because Taylor did not provide any reasonably equivalent value, Mueller's transfers to him of "profits" were voidable. (For more information, contact Thomas Morris.)
People v. Ramirez, Colorado Court of Appeals No. 16CA1298 (September 6, 2018)
Holding: Semen does not constitute an "intimate part", defined in § 18-3-401 (2), for the purposes of establishing "sexual contact", defined in § 18-3-401 (4).
Case Summary: Defendant was convicted of sexual assault on a child (SAOC), sexual assault on a child by one in a position of trust (SAOC-POT), and indecent exposure, based on testimony that defendant ejaculated into the hands of his foster children and then required the children to swallow the semen. To commit the crimes of SAOC and SAOC-POT, the defendant must have "sexual contact" with a child, which requires the knowing touching of the actor's or victim's "intimate parts". The term "intimate parts" is defined as "the external genitalia or the perineum or the anus or the buttocks or the pubes or the breast of any person." The Court of Appeals, applying the plain language of the statute, vacated the defendant's convictions for SAOC and SAOC-POT and held that semen does not constitute an "intimate part" of the defendant's body. (For more information, contact Shelby Ross.)