May 24, 2017

Colorado Supreme Court: Use of Refusal to Consent as Evidence of Guilt Does Not Violate Fourth Amendment

The Colorado Supreme Court issued its opinion in People v. Sewick on Monday, May 15, 2017.

Searches and Seizures—Refusal to Submit to Blood-Alcohol Testing—Admission of Refusal Evidence.

In this interlocutory appeal, the supreme court considered whether the prosecution’s use of a defendant’s refusal to consent to blood-alcohol testing as evidence of guilt at trial for a drunk-driving offense, in accordance with C.R.S. § 42-4-1301(6)(d), violates his Fourth Amendment right to be free from unreasonable searches. Because the court recently held in Fitzgerald v. People, 2017 CO 26, that the use of such refusal evidence does not violate the Fourth Amendment, that holding controls here, and defendant’s challenge to C.R.S. § 42-4-1301(6)(d) fails. The court therefore reversed the trial court’s order.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: DUI Suspect’s Refusal to Consent to Blood Test May Be Used as Evidence of Guilt

The Colorado Supreme Court issued its opinion in People v. Maxwell on Monday, May 15, 2017.

Searches and Seizures—Refusal to Submit to Blood-Alcohol Testing—Admission of Refusal Evidence.

In this interlocutory appeal, the supreme court considered whether the prosecution’s use of a defendant’s refusal to consent to blood-alcohol testing as evidence of guilt at trial for a drunk-driving offense, in accordance with C.R.S. § 42-4-1301(6)(d), violates his Fourth Amendment right to be free from unreasonable searches. Because the court recently held in Fitzgerald v. People, 2017 CO 26, P.3d, that the use of such refusal evidence does not violate the Fourth Amendment, that holding controls here, and defendant’s challenge to C.R.S. § 42-4-1301(6)(d) fails. The court therefore reversed the trial court’s order.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Refusal to Consent to Blood Test for DUI May Be Used as Evidence of Guilt

The Colorado Supreme Court issued its opinion in People v. Maxwell on Monday, May 15, 2017.

Searches and Seizures—Refusal to Submit to Blood-Alcohol Testing—Admission of Refusal Evidence.

In this interlocutory appeal, the supreme court considered whether the prosecution’s use of a defendant’s refusal to consent to blood-alcohol testing as evidence of guilt at trial for a drunk-driving offense, in accordance with C.R.S. § 42-4-1301(6)(d), violates his Fourth Amendment right to be free from unreasonable searches. Because the court recently held in Fitzgerald v. People, 2017 CO 26, P.3d, that the use of such refusal evidence does not violate the Fourth Amendment, that holding controls here, and defendant’s challenge to C.R.S. § 42-4-1301(6)(d) fails. The court therefore reversed the trial court’s order.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Use of Blood Test Refusal in DUI Case Does Not Violate Fourth Amendment

The Colorado Supreme Court issued its opinion in People v. King on Monday, May 15, 2017.

Searches and Seizures—Refusal to Submit to Blood-Alcohol Testing—Admission of Refusal Evidence.

In this interlocutory appeal, the supreme court considered whether the prosecution’s use of a defendant’s refusal to consent to blood-alcohol testing as evidence of guilt at trial for a drunk-driving offense, in accordance with C.R.S. § 42-4-1301(6)(d), violates his Fourth Amendment right to be free from unreasonable searches. Because the court recently held in Fitzgerald v. People, 2017 CO 26, that the use of such refusal evidence does not violate the Fourth Amendment, that holding controls here, and defendant’s challenge to C.R.S. § 42-4-1301(6)(d) fails. The court therefore reversed the trial court’s order.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Decree Determining Water Right Only Allows Diversion at Downriver Pump

The Colorado Supreme Court issued its opinion in Select Energy Services, LLC v. K-LOW, LLC on Monday, May 15, 2017.

Water Law—Change of Water Right—Rules of Water Decree Interpretation—Nature and Extent of Right Acquired.

This appeal from the water court in Water Division No. 1 concerns the nature and extent of a water right following a recent change to its diversion point. The right initially diverted water at a headgate on the South Platte River, but pursuant yo the recently enacted simple change statute, C.R.S. § 37-92-305(3.5), its owner changed that diversion point to a pump farther downstream. Interpreting the decree recognizing the change, the water court concluded it did not include a right to divert water from a ditch historically used to convey the water right. On appeal, the supreme court reached the same conclusion. Because, by its plain language, the decree defining the water right allows its holder to divert water only at the pump downriver from the disputed ditch, and that language is not susceptible to any other reasonable interpretation, the court concluded that the decree does not include a right to divert water from that ditch. The court therefore affirmed the water court’s judgment.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Attorneys’ Charging Liens May Attach to Spousal Maintenance Awards

The Colorado Supreme Court issued its opinion in Stoorman & Associates, P.C. v. Dixon on Monday, May 15, 2017.

Attorneys’ Liens—Dissolution of Marriage.

In this case, the supreme court considered whether attorneys’ charging liens may attach to spousal maintenance awards under Colorado’s attorney’s lien statute. The court applied the plain language of the attorney’s lien statute, C.R.S. § 12-5-119, which provides that attorneys shall have a lien on “any judgment they may have obtained or assisted in obtaining,” and held that an attorney’s charging lien may attach to an award of spousal maintenance. Accordingly, the court reversed the court of appeals’ judgment and remanded this case to that court with instructions to return the case to the trial court for proceedings consistent with this opinion.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Blunt Wraps are “Kind” or “Form” of Tobacco Product Subject to Taxation

The Colorado Supreme Court issued its opinion in Colorado Department of Revenue v. Creager Mercantile Co. on Monday, May 15, 2017.

Statutory Construction—Tobacco taxation.

The supreme court granted certiorari review to determine whether Blunt Wraps, a type of cigar wrapper made in part of tobacco and designed to be filled with smoking material and smoked, may be taxed as “tobacco products,” as that term is defined in C.R.S. § 39-28.5-101(5). The court held that because Blunt Wraps are a “kind” or “form” of tobacco and are “prepared in such manner as to be suitable . . . for smoking,” they fall within the plain language of the statutory definition of “tobacco products” and are taxable accordingly. The court therefore reversed the judgment of the court of appeals.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: No Error in Convictions for Being Accessory and Complicitor to Same Crime

The Colorado Supreme Court issued its opinion in Montoya v. People on Monday, May 15, 2017.

Extreme Indifference Murder—Self-Defense—Accessory to Crime—Invited Error.

Montoya petitioned for review of the court of appeals’ judgment affirming his convictions for attempted extreme indifference murder, reckless manslaughter, criminally negligent homicide, and accessory to crime. See People v. Montoya, No. 06CA1875 (Colo. App. Sept. 13, 2012). Montoya and his cousin were tried together for the shooting death of a woman at a party, in the course of which they each fired a number of rounds in the direction of other party-goers. In a separate appeal to the court of appeals, Montoya’s homicide convictions were initially reversed for failure to properly instruct concerning self-defense against multiple assailants, but upon remand for reconsideration in light of intervening supreme court jurisprudence, all of his convictions were affirmed, not only with regard to the disputed issue of multiple assailants but against a variety of other assignments of error as well. Montoya’s subsequent petition for a writ of certiorari was partially granted by this court.

The supreme court affirmed the judgment of the court of appeals. The court held that (1) there was sufficient evidence to support Montoya’s conviction of attempted extreme indifference murder; (2) Montoya was barred from challenging on appeal the sufficiency of the evidence supporting his conviction for being an accessory to crime, a lesser non-included offense presented to the jury at his request; and (3) Montoya’s simultaneous convictions of reckless manslaughter and accessory to crime neither merged nor required concurrent sentences.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Mutuality is Necessary Element of Defensive Claim Preclusion

The Colorado Supreme Court issued its opinion in Foster v. Plock on Monday, May 15, 2017.

Claim Preclusion—Issue Preclusion—Mutuality.

In this case, the supreme court considered whether mutuality is a necessary element of defensive claim preclusion. Although multiple divisions of the court of appeals have concluded that mutuality need not be established for the defensive use of claim preclusion, the supreme court disagrees. Instead, the court concluded that mutuality is a necessary element of defensive claim preclusion. The court also concluded that mutuality existed in this case, as did the remaining elements of claim preclusion, and therefore affirmed the judgment of the court of appeals on other grounds.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Double Recovery Not Considered in Forum Non Conveniens Determination

The Colorado Court of Appeals issued its opinion in Cox v. Sage Hospitality Resources, LLC on Thursday, May 4, 2017.

Forum Non Conveniens—Judicial Inefficiency—Double Recovery.

Cox, a Colorado resident, stayed at a hotel in California owned by defendant Sage Hospitality Resources, LLC. Sage’s members are Colorado residents, and its principal place of business is in Denver. WS HDM, LLC, incorporated in Delaware and licensed to do business in California, owns and operates the hotel. Cox fell on the hotel property and fractured his femur. Cox sued Sage in Denver District Court and WS HDM in California state court. Sage’s motion to dismiss the action in Denver District Court under the doctrine of forum non conveniens was granted.

On appeal, Cox argued that the Denver District Court erred in granting Sage’s motion to dismiss because there were no unusual circumstances sufficient to overcome the strong presumption in favor of Colorado courts hearing cases brought by Colorado residents. Colorado law is clear that the doctrine of forum non conveniens has “only the most limited application in Colorado courts.” Thus, unless there are “most unusual circumstances,” a Colorado resident’s choice of a Colorado forum will not be disturbed. Cox is a Colorado resident and claims to prefer to sue Sage in Colorado. Even though Cox filed a related suit in California state court, the existence of that lawsuit does not trump Cox’s choice of forum in Colorado. Further, the California state court suit is against a different defendant, and the record does not indicate that the joinder of Sage in Cox’s California state court suit is mandatory. Nor does the risk of double recovery overcome the presumption in favor of Colorado courts hearing suits filed by Colorado resident plaintiffs. The Denver District Court erred in dismissing Cox’s action.

The judgment was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: UCCJEA Vests Issuing State with Exclusive Jurisdiction to Modify Custody Order

The Colorado Court of Appeals issued its opinion in People in Interest of M.S. on Thursday, May 4, 2017.

Dependency and NeglectAllocation of Parental ResponsibilitiesSubject Matter JurisdictionUniform Child-Custody Jurisdiction and Enforcement Act.

The Mesa County Department of Human Services (Department) assumed temporary custody of 8-year-old M.S. and initiated a dependency and neglect proceeding. Mother lived in Texas.

The court, by stipulation, adjudicated M.S. dependent or neglected. The Department then moved for a permanent allocation of parental responsibilities (APR) for M.S. to mother. The magistrate determined it was in M.S.’s best interests to be placed with mother and issued an order granting permanent APR to mother.

Father appealed, and a court of appeals division dismissed for failure to obtain district court review. Father then filed a petition for district court review, which was denied, and he appealed again.

Initially, the court of appeals addressed the Department’s argument that the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) does not apply to dependency and neglect proceedings once a child has been adjudicated dependent and neglected. The UCCJEA does not exempt any stage of a dependency and neglect proceeding from its purview.

The court, sua sponte, concluded that the magistrate lacked jurisdiction under the UCCJEA to issue the permanent APR order. Under the UCCJEA, the court that makes an initial custody determination generally retains exclusive, continuing jurisdiction. As a result, a Colorado court, absent temporary emergency jurisdiction, may only modify a custody order issued by an out-of-state court under limited circumstances. Here, a California court had issued a custody order before the initiation of the dependency and neglect proceeding. The magistrate did not confer with the California court that issued the custody order or make a determination as to whether the California court had lost exclusive, continuing jurisdiction. Consequently, the magistrate failed to acquire jurisdiction under the UCCJEA before issuing the APR order that effectively modified the California custody order.

The judgment was vacated and the matter was remanded to the district court to direct the magistrate to determine whether it has jurisdiction to issue an APR order that modifies the California custody order.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Department of Human Services Must Make “Continuing Inquiries” About ICWA Status

The Colorado Court of Appeals issued its opinion in People in Interest of A.D. on Thursday, May 4, 2017.

Termination of Parental RightsIndian Child Welfare Act of 1978Continuing Inquiries.

In 2013, the Chaffee County Department of Social Services (Department) initiated a dependency and neglect proceeding involving Tr.D. Respondents denied the child was a member or eligible for membership in an Indian tribe, and the Department represented it had determined the child was not an Indian child. The petition was later withdrawn and the case closed.

In 2015, the Department initiated another dependency and neglect proceeding concerning Tr.D. and 6-month-old A.D. after mother and father were arrested on drug charges. The children were placed in foster care and adjudicated dependent and neglected. Treatment plans were developed for both parents, but neither could overcome their addictions. The Department ultimately filed a petition to terminate parental rights and stated that the children were not Indian children. No evidence concerning the Indian Child Welfare Act (ICWA) was elicited at the termination hearing. The trial court terminated parental rights and found the provisions of the ICWA did not apply.

On appeal, mother argued that the record failed to support the court’s ICWA finding because no questions were asked about possible Indian heritage during the proceedings and therefore the Department didn’t meet its “continuing inquiry” duty under the ICWA. The Department argued that the ICWA issue was resolved in the prior case and the trial court satisfied the ICWA requirements in this case because it took judicial notice of its ICWA finding in the previous case. The Department reasoned that because A.D. is a full sibling of Tr.D., the court’s previous finding as to Tr.D. must also apply to her. The ICWA required the Department to conduct new inquiries to determine whether the children were Indian children. Because there was no evidence in the record of such inquiries, further proceedings were required.

Because the ICWA inquiry may result in the court determining that the children are not Indian children, the court of appeals addressed the other issues raised on appeal. Mother argued that the grounds for terminating her parental rights were not established by clear and convincing evidence. Based on the record before it, the court disagreed. Father argued that the record did not support the finding that reasonable efforts were made to avoid the removal of the children from their home and to promote reunification of the family. Specifically, father argued that a dispute over venue delayed his ability to participate in a drug program, averring that reasonable efforts required not just providing services, but providing services “at the right time.” The court determined that father waived his right to raise this issue when he expressly agreed to hold the motion to change venue in abeyance and therefore failed to seek a ruling from the court.

The judgment was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.