The Colorado Supreme Court issued no opinions for the week of January 29, 2012.
Colorado Supreme Court: Totality of the Circumstances of what Makes Up a Person’s Permanent Home Should Be Considered in UCCJEA Determinations
January 23, 2012 By Leave a Comment
The Colorado Supreme Court issued its opinion in In re Marriage of Brandt on January 23, 2012.
CRS §§ 14-13-202 and -203—Interpretation of the Term “Presently Reside”—Modification of an Out-of-State Child Custody Order—Uniform Child Custody Jurisdiction and Enforcement Act—Burden of Proof on Party Asserting That the Issuing State Lost Exclusive Continuing Jurisdiction.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) provides that the issuing state has exclusive continuing jurisdiction over its child custody order until it decides it no longer maintains a significant connection with the child or until it, or another state, makes a determination that the child and the child’s parents do not “presently reside” in the issuing state. Until either occurs, a different state may enforce, but may not modify, the custody order.
On May 25, 2011, the Arapahoe County District Court assumed jurisdiction to modify a Maryland child custody order on the ground that neither the child nor the child’s parents currently reside in Maryland. At the time of George Brandt’s petition, the child lived in Colorado, and the mother, Christine Brandt, lived in Texas pursuant to military assignment.
The Supreme Court disagreed with the trial court’s ruling. The statutory term “presently reside” is not equivalent to “currently reside” or “physical presence,” the two notions on which the trial court based its order assuming jurisdiction to modify Maryland’s child custody decree. Instead, the court’s determination should be based on an inquiry into the totality of the circumstances that make up a person’s permanent home—“domicile”—to which he or she intends to return to and remain. Therefore, the Court concluded that the appropriate legal standard to be applied in determining whether the issuing state lost exclusive continuing jurisdiction based on non-residency involves application of a totality of the circumstances test. Factors to be weighed in making the residency determination, a mixed question of fact and law, include but are not limited to: the length and reasons for the parents’ and the child’s absence from the issuing state; their intent in departing from the state and returning to it; reserve and active military assignments affecting one or both parents; where they maintain a home, car, driver’s license, job, professional licensure, and voting registration; where they pay state taxes; the issuing state’s determination of residency based on the facts and the issuing state’s law; and any other circumstances demonstrated by evidence in the case. The party asserting that the issuing state has lost exclusive continuing jurisdiction bears the burden of proof. Accordingly, the Court reversed and vacated the district’s court’s order assuming jurisdiction, and remanded the case for further proceedings.
Summary and full case available here.
Colorado Supreme Court: Reasonable Person in Defendant’s Position Would Not Have Felt Deprived of Freedom of Action to Degree Associated with Formal Arrest; Miranda Not Implicated
January 17, 2012 By Leave a Comment
The Colorado Supreme Court issued its opinion in Mumford v. People on January 17, 2012.
Criminal Law—Criminal Procedure—U.S. Constitution—Fifth Amendment—Miranda Warnings—Custody.
Andrew Mumford challenged his conviction for possession of one gram or less of cocaine, arguing, among other things, that an incriminating statement he made to a law enforcement officer should have been suppressed because it was obtained without proper warnings under Miranda v. Arizona, 384 U.S. 436 (1966). The court of appeals affirmed Mumford’s judgment of conviction, holding that Mumford was not in custody for purposes of Miranda at the time he made the statements.
The Supreme Court affirmed. The Court concluded that under the totality of the circumstances, at the time he made the incriminating statement, a reasonable person in Mumford’s position would not have felt deprived of his or her freedom of action to a degree associated with a formal arrest.
Summary and full case available here.
Colorado Supreme Court: Police Did Not Remove Defendant to Avoid His Objection to Searching Home; Common Law Wife Gave Valid Consent to Second Warrantless Search
January 17, 2012 By Leave a Comment
The Colorado Supreme Court issued its opinion in People v. Strimple on January 17, 2012.
U.S. Constitution—Fourth Amendment—Suppression of Evidence—Co-Tenant’s Consent to Police Search of Shared Premises in Absence of Physical Presence of Other Co-Tenant.
The prosecution charged defendant Christopher Strimple with possession of an explosive or incendiary device and other crimes after a police search of the home he shared with Gabriele Thompson, his common law wife. Police responded to the home when Thompson complained of domestic abuse. When police arrived, Strimple refused to let them in, threatened to kill officers if they entered, and engaged officers in a tense stand-off for nearly forty-five minutes. He eventually surrendered peacefully, and police took him into custody.
The police conducted an initial warrantless search of the home to locate and ensure the safety of children in the home and locate a handgun Strimple said was inside the home. Thompson consented to an additional search, during which the police discovered knives, a pipe bomb, and drug paraphernalia. The trial court suppressed this evidence on the basis that, during the stand-off, Strimple had refused consent for entry into the home.
The Supreme Court held that Thompson validly gave her consent to the second warrantless search. Strimple was not physically present at the time, and the police did not remove him from the scene to avoid his objection to the search. The order was reversed.
Summary and full case available here.
Colorado Supreme Court: Week of January 8, 2012 (No Opinions)
January 9, 2012 By Leave a Comment
The Colorado Supreme Court issued no opinions for the week of January 8, 2012.
Colorado Appellate Courts Adopt New Public Domain Case Citation Format
January 4, 2012 By Leave a Comment
The Colorado Supreme Court has adopted the proposed public domain citation format, creating a new way for parties and legal practitioners to refer to its and the Colorado Court of Appeals’ published opinions in legal briefs and other documents.
The public domain citation format will expand open access to Colorado case law by allowing practitioners and parties to cite directly to new opinions from the moment they are announced. The new format also will allow pinpoint citations by incorporating paragraph numbers. The new format became effective January 1, 2012.
Sixteen other states, including New Mexico, Wyoming and Utah, already have adopted the same format, which was recommended by the American Association of Law Librarians in the mid-1990s and is endorsed by the American Bar Association.
The courts already provide online access to published opinions free of charge on the Judicial Branch web site. Before implementation of the public domain citation format, opinions issued by Colorado’s two appellate courts were “slip opinions” which lacked a formal citation format until they were published in print in the Pacific Reporter.
“The purpose of the public domain citation format is to make it easier for practitioners and self-represented parties who lack the resources to access an electronic research database or the printed volumes of the Pacific Reporter to locate Colorado case law and to cite to that case law in all levels of Colorado’s justice system, whether in the trial or appellate courts,” Chief Justice Michael L. Bender said.
The Supreme Court adopted the new citation format after receiving public comment. The new format is implemented by the new Chief Justice Directive 12-01.
Practitioners and parties will be permitted to use the public domain citation format or to cite to the Pacific Reporter, and they will not have to provide parallel citations in either format.
The new citation format is part of a broader effort by the Colorado Supreme Court to improve access to justice by integrating court resources and electronic technology.
“Our goal is to eliminate the barriers that keep people from coming to court to exercise their rights and that prevent the courts from delivering fair and just outcomes,” Chief Justice Bender said. “Having a public domain citation format, though implicating a seemingly technical aspect of motions practice and brief writing, is actually a very important step in achieving that goal.”
A citation to an appellate opinion in the Pacific Reporter could look like this:
Smith v. Jones, 45 P.3d 1237, 1254 (Colo. 2012).
Under the new format, a citation to a Supreme Court opinion would look like this:
Smith v. Jones, 2012 CO 22, ¶¶ 44-45.
And a citation to a Court of Appeals opinion under the new format would look like this:
Jones v. Smith, 2012 COA 35, ¶¶ 44-45.
“CO” means Supreme Court and “COA” means Court of Appeals. The “22” in the first example and the “35” in the second example mean those opinions are, respectively, the 22nd and the 35thissued by each court in 2012. Both citations point to the opinion’s 44th and 45th paragraphs.
The public domain citation system will be overseen by Christopher T. Ryan, Clerk of Court for both the Supreme Court and Court of Appeals. Upon announcement, each opinion selected for publication will be assigned a public domain citation and internal paragraph numbers.
Opinions that are not designated for official publication pursuant to C.A.R. 35(f) will remain unpublished and will not be assigned a public domain citation.
Click here to read the announcement from State Judicial.
Click here to read Chief Justice Directive 12-01 and more examples of proper Bluebook citation.
Colorado Supreme Court: Week of January 1, 2012 (No Opinions)
January 3, 2012 By Leave a Comment
The Colorado Supreme Court issued no opinions for the week of January 1, 2012.
Colorado Supreme Court: Week of December 25, 2011 (No Opinions)
December 27, 2011 By Leave a Comment
The Colorado Supreme Court issued no opinions for the week of December 25, 2011.
The Life and Times of Brian Boatright: An Interview with the Newest Colorado Supreme Court Justice
December 20, 2011 By Leave a Comment
I have had the privilege of knowing the newest justice on the Colorado Supreme Court for over 17 years, since September of 1994, when I was hired as a deputy district attorney in Jefferson County. Brian Boatright was a senior deputy then, prosecuting felony cases in district court. One of the first memories I have of him was as an instructor of mine at “Baby DA School,” teaching evidence and procedure. Even then, it was obvious to me that this was a really smart guy. Scary smart. In 2006, I joined him as a colleague on the First Judicial District bench. I recently had the chance to sit down with Justice Boatright for an in-depth chat, something I wish I had done long ago.
Justice Boatright points to his father, an extremely well-respected and honored attorney, for having the biggest impact on his life. He credits his dad with teaching him humility, and passing on a work ethic that has guided and shaped his career and life. Professionally, Senior Judge Michael Villano (his godfather), played a huge role in setting the highest example for judicial temperament and demeanor for Justice Boatright to follow. Judge Villano administered the oath to Justice Boatright at his ceremonial swearing-in at the state capitol on December 13, 2011.
He mentions former Governor Bill Ritter as someone who made a significant impact on him. When Justice Boatright was nominated as a county court judge, he was told that talking to then-Denver DA Ritter regarding his upcoming interview with Governor Romer would be a good idea. Brian is still astounded that, although they knew each other only slightly at the time, DA Ritter spent over 45 minutes with him, conducting a mock interview. Having someone going out of their way for a virtual stranger like that made an impression on Brian that hasn’t faded many years later.
Justice Boatright served as a district court judge in Jefferson County for over ten years. For the last several years before his appointment to the Supreme Court, he was overseeing a dedicated juvenile docket. It is his devotion to juvenile issues and children that perhaps defines Justice Boatright the best. He will miss seeing the joy that resulted from a successful adoption or a positive end to a dependency and neglect case with a family being reunited. Being a parent had a huge impact on his handling of juvenile cases, giving perspective on virtually every decision. In recognition of his tireless work on behalf of children, Jefferson County has named a playground at the Human Services Building the Honorable Brian Boatright Playground.
From a long and varied career, Justice Boatright has several ideas regarding the legal profession and the role of the judiciary. A book he recommends to judges or those interested in the bench is Blink by Malcolm Gladwell. It deals with preconceived notions, an issue that can obviously impact decisions from the bench. Interestingly, Governor Hickenlooper has read the book, and it was mentioned during the Supreme Court appointment process by the governor. One example of the problems preconceived notions can create was a situation that came up during Justice Boatright’s juvenile docket. He was dealing with a difficult termination of parental rights case where the mother came across as “rough” with a questionable lifestyle. During the proceedings, Justice Boatright started to question his initial impressions of this woman, wondering if the way she presented herself was prejudicing him against her. He began to think the termination case might be more based upon her poverty instead of her inability to be a good parent. In the end, he denied the petition, and did not terminate this mother’s parental rights, despite his initial perception of her.
Justice Boatright would like the attorneys who will be appearing in front of him, as well as all the citizens of Colorado, to know that he respects the separation of powers so fundamental to our system. He trusts the law, and he trusts in our system of justice. He knows he’s starting a new phase of his career in which people will likely disagree with him at times, but to the Colorado legal community, he sends the following: he will apply the law to the utmost of his ability, no matter the case or issue. He is clearly honored to be appointed to the Colorado Supreme Court. I feel the honor is ours.
Little-known facts and trivia about Justice Brian Boatright:
- His dream job? General Manager of the Colorado Rockies.
- In the third grade, he appeared in a commercial for JetEx, where he was supposed to say “My dad wears a polka-dotted tie.” He couldn’t say “polka-dotted,” settling for “poka-a-dot” tie. He made $25 for the commercial, although he still seems bitter that his parents took 75% of that as his “agents.” His potential drama career sadly ended after he played Snoopy in a middle school production of “You’re a Good Man, Charlie Brown.” He seemed strangely reluctant to discuss this episode of his life.
- He can remember and sing all the words to the Schoolhouse Rock classic “I’m Just a Bill.” (“I’m just a bill, yes I’m only a bill, and I’m sitting here on Capitol Hill . . . .”). Don’t read anything into the fact that he makes no such claim about the Schoolhouse Rock song about the preamble to the U.S. Constitution. I’m sure he knows the preamble. Well, pretty sure anyway.
- Eating apples make him sweat. The tarter the apple, the more he sweats. (Good information for attorneys practicing before the Supreme Court to have. If you’re planning to bring apples to the justices, a la one for the teacher in school, best to leave Justice Boatright out. Or bring a very sweet apple.) He views this . . . ability? Talent? I’m not sure what to call it . . . as a “good party trick.” I don’t know what sort of parties he goes to. Or will get invited to now.
- Despite last season, he still thinks CU joining the Pac-12 was a good idea. Clearly, he has trouble leaving some irrational thoughts behind. (I’m guessing Governor Hickenlooper didn’t ask him this question.)
- He has thus far resisted the temptation to wear his purple Rockies robe, but doesn’t rule out wearing it if they win the World Series.
- I’m exercising some discretion, and will not disclose his response to the classic “boxers or briefs?” question. Just use your imagination here, dear reader.
- He advises trial judges that he may reverse just so they can have the same attitude he had when he was reversed. (Not that he was ever reversed.) That attitude? “Wow – the upper court really got it right!”
- His most embarrassing moment on the bench? (So far.) When he was presiding over an allocation of parental responsibilities hearing and asked to no one in particular, “Who entered the APR order in this case?” Following an awkward silence, his long-time clerk Sonya said, “You did. Two weeks ago.” His response? “Oh.”
- His favorite saying while on the bench? “Closed mouth gathers no foot.”
- He wanted me to make clear that his brother is older than he is. Much older.
- For someone who has shot to the top of his profession, he has a surprisingly lousy sense of direction. When we finished this interview at Buffalo Wild Wings after two hours or so (and, let’s be clear – no alcohol. Just iced tea and Coke. Honest.), Justice Boatright went completely the wrong way and tried to exit the restaurant through the back wall.
My deepest thanks and appreciation to the entire First Judicial District bench for their ideas for questions to their former colleague. Special acknowledgement to Judge Margie Enquist, who tipped me off about the apple issue, the “poka-a-dot,” and the Bill song. Justice Boatright expressed that his greatest regret about his appointment is leaving all these great folks behind. I understand why he feels that way.
| Bradley A. Burback is a county court judge in the First Judicial District. |
Colorado Supreme Court: Each Separately Charged Incident of Sexual Assault on a Child May Be Elevated to a Class 3 Felony, Where Each Incident is Part of a Pattern of Sexual Abuse
December 20, 2011 By Leave a Comment
The Colorado Supreme Court issued its opinion in People v. Simon; Tillery v. People on December 19, 2011.
Criminal Law—Sexual Assault on a Child by One in a Position of Trust—Pattern of Abuse.
The Supreme Court held that CRS §§ 18-3-405(2)(d) and 405.3(2)(b) unambiguously allow each separately charged incident of sexual assault on a child, or sexual assault on a child by one in a position of trust, to be elevated to a class 3 felony, where each incident is committed as part of a pattern of sexual abuse. The Court further held that these statutes, construed according to their plain language, do not violate the double jeopardy protection against multiple punishments under either the U.S. or the Colorado Constitution.
The Court therefore reversed the court of appeals’ decision in People v. Simon, reinstated Simon’s ten class 3 felony pattern convictions and sentences, and remanded the case to the court of appeals for consideration of the remaining issue raised by Simon on appeal. The Court affirmed the court of appeals’ decision in Tillery v. People and remanded with directions to return the case to the trial court for resentencing in accordance with the court of appeals’ decision.
Summary and full case available here.
Colorado Supreme Court: Attempted Assignment of LLC Member’s Rights Invalid Without Consent of Other Members under Operating Agreement
December 20, 2011 By Leave a Comment
The Colorado Supreme Court issued its opinion in Condo v. Conners on December 19, 2011.
Limited Liability Company Membership Duties and Rights—Transfer of Voting Rights.
The Supreme Court held that an attempted assignment of a limited liability company (LLC) member’s right to receive distributions and effective transfer of voting rights was invalid because it was made without the consent of the other members of the LLC, in violation of the anti-assignment clause in the LLC’s operating agreement. The Court reasoned that because the anti-assignment clause applied to the assignment of “any portion” of a membership interest, the clause applied to attempted assignments of both rights and duties. Further, because the Colorado LLC statute evinces a preference for the freedom of contract, the Court held that this anti-assignment clause rendered each LLC member powerless to make an assignment without the consent of all members and, therefore, this attempted assignment was without any legal effect.
Summary and full case available here.
Colorado Supreme Court: Approval of Ground Water Management Plan
December 20, 2011 By Leave a Comment
The Colorado Supreme Court issued its opinion in Concerning the Office of the State Engineer’s Approval of the Plan of Water Management for Special Improvement Dist. No. 1 of the Rio Grande Water Conservation Dist.: San Antonio, Los Pinos, and Conejos River Acequia Preservation Assoc. v. Special Improvement Dist. No. 1 of the Rio Grande Water Conservation Dist.; Rio Grande Water Conservation District v. San Antonio, Los Pinos, and Conejos River Acequia Preservation Assoc. on December 19, 2011.
Approval of Ground Water Management Plan—Role of State Engineer and Trial Court
The Supreme Court affirmed the judgment and decree of the Alamosa County District Court and the water court for Water Division No. 3 approving the ground water management plan adopted by the Special Improvement District No. 1 (Subdistrict), the Rio Grande Water Conservation District, and the State Engineer. The General Assembly has adopted a series of statutes applicable to confined and unconfined aquifers within the San Luis Valley and Water Division No. 3, empowering the Subdistrict to adopt and implement the plan. The plan as approved and decreed adequately addresses the replacement of well depletions that injure adjudicated senior surface water rights, along with restoring and maintaining sustainable aquifer levels in accordance with the applicable statutes. Provisions of the augmentation statutes do not govern approval of the plan. The Subdistrict bears the burden of going forward, as well as the burden of proof to demonstrate that annual replacement plans prevent material injury to adjudicated senior surface water rights caused by ongoing and past well depletions that have future impact.
Summary and full case available here.
