February 22, 2018

Colorado Supreme Court: Admission of Victim’s Out-of-Court Statements to Officer Did Not Affect Outcome of Trial

The Colorado Supreme Court issued its opinion in Pernell v. People on Tuesday, February 20, 2018.

Criminal Law—Harmless Error.

The supreme court reviewed the court of appeals’ opinion affirming defendant’s conviction for burglary, kidnapping, sexual assault, and other offenses. The court of appeals held that although the trial court erred by admitting a victim’s out-of-court statements as excited utterances under CRE 803(2), the trial court’s error did not require reversal because the statements were admissible as prior consistent statements to rehabilitate the victim’s credibility after defense counsel attacked it during his opening statement. The court concluded that any error in the admission of the victim’s out-of-court statements was harmless because there was no reasonable possibility that the admission of these statements contributed to defendant’s conviction. Accordingly, the court declined to address whether defense counsel’s opening statement opened the door to the admission of the victim’s out-of-court statements and expressed no opinion on this issue. The court therefore affirmed the judgment of the court of appeals, albeit on different grounds.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Announcement Sheet, 2/20/2018

On Tuesday, February 20, 2018, the Colorado Supreme Court issued one published opinion.

Pernell v. People

The summary of this case is forthcoming.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Supreme Court: Announcement Sheet, 2/12/2018

On Monday, February 12, 2018, the Colorado Supreme Court issued two published opinions.

Burton v. Colorado Access

Oakwood Holdings, LLC v. Mortgage Investment Enterprises, LLC

Summaries of these cases are forthcoming.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Supreme Court: Petitioners’ Tort Claims for Airborne Asbestos Injuries Not Barred by Colorado Governmental Immunity Act

The Colorado Supreme Court issued its opinion in Smokebrush Foundation v. City of Colorado Springs on Monday, February 5, 2018.

Colorado Governmental Immunity Act—Sovereign Immunity.

In this case, the Colorado Supreme Court reviewed the Colorado Court of Appeals division’s conclusion that petitioners’ claims against respondent city were barred under the Colorado Governmental Immunity Act (CGIA). Petitioners asserted a number of tort claims for alleged injuries resulting from airborne asbestos released during demolition activities on the city’s property in 2013 and from the subsurface migration of coal tar pollutants created by historical coal gasification operations on the city’s property. The division concluded that each of these claims was barred under the CGIA.

The supreme court first addressed whether petitioners’ asbestos-related claims fell within the waiver of immunity set forth in C.R.S. § 24-10-106(1)(c) for injuries resulting from the dangerous condition of a public building. The CGIA defines a “dangerous condition,” in pertinent part, as a physical condition of a facility or the use thereof that constitutes an unreasonable risk to the health or safety of the public and that is proximately caused by the negligent act or omission of the public entity in “constructing or maintaining” such facility. C.R.S. § 24-10-103(1.3). Because the complete and permanent demolition of a building does not come within the plain meaning of the terms “constructing” or “maintaining” a facility, the court concluded that the dangerous condition of a public building exception does not apply.

Next, the court addressed whether petitioners’ coal tar-related claims fell within the waiver of immunity set forth in C.R.S. § 24-10-106(1)(f) for injuries resulting from the operation and maintenance of a public gas facility when, as here, petitioners’ cause of action accrued after the CGIA’s enactment but the operation and maintenance of the facility that caused the injury occurred before that enactment. Because petitioners have established that (1) the facility at issue was a public gas facility, (2) petitioners’ claimed injuries from the coal tar contamination resulted from the operation and maintenance of that facility, and (3) petitioners’ coal tar-related claims accrued after the CGIA’s enactment, the court concluded that under the plain language of C.R.S. § 24-10-106(1)(f), the city waived its immunity for these claims.

Accordingly, court affirmed the portion of the division’s judgment requiring the dismissal of petitioners’ asbestos-related claims but reversed the portion of the judgment requiring the dismissal of petitioners’ coal tar-related claims.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: District Court Erred in Stripping Documents of Attorney-Client Privilege Without Satisfying Test

The Colorado Supreme Court issued its opinion in In re 2015–2016 Jefferson County Grand Jury on Monday, February 5, 2018.

Privileged Communications and Confidentiality—Crime–Fraud exception—Wiretapping.

A grand jury investigating M.W. and his company I.I. issued a subpoena duces tecum to I.I.’s attorney ordering her to produce all documents related to her representation of I.I. Along with the subpoena, the People served a notice of hearing to determine whether the documents were protected by the attorney-client privilege. In the notice, the People provided wiretap summaries as an offer of proof that the crime-fraud exception to the attorney-client privilege applied. Reasoning that I.I.’s entire endeavor was illegal, the district court ordered all of the attorney-client communications stripped of privilege without reviewing them in camera.

The Colorado Supreme Court held that a two-step process applies when a party seeks disclosure of attorney-client-privileged documents under the crime-fraud exception. First, before a court may review the privileged documents in camera, it must “require a showing of a factual basis adequate to support a good faith belief by a reasonable person that wrongful conduct sufficient to invoke the crime or fraud exception to the attorney-client privilege has occurred.” Caldwell v. Dist. Court, 644 P.2d 26, 33 (Colo. 1982). Second, the court may strip a communication of privilege only upon a showing of probable cause to believe that (1) the client was committing, or attempting to commit, a crime or fraud, and (2) the communication was made in furtherance of the putative crime or fraud. Because the People failed to make such a showing here, the district court abused its discretion in stripping the documents of privilege. The court also held that, based on the facts of this case, the district court should have required the People to disclose the applications and authorizations for the intercepts that it provided to support the subpoena under C.R.S. § 16-15-102(9) of Colorado’s wiretap statutes.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Foster Parents Lacked Standing to Challenge District Court Denial of Parental Rights Termination

The Colorado Supreme Court issued its opinion in People in Interest of C.W.B., Jr. on Monday, February 5, 2018.

Children’s Code—Dependency or Neglect Proceedings—Standing on Appeal.

The Colorado Supreme Court reviewed whether the foster parents in this case had standing to appeal the trial court’s denial of a motion to terminate the parent–child legal relationship. The foster parents intervened in the trial court proceedings pursuant to C.R.S. § 19-3-507(5)(a) and participated in a hearing on the guardian ad litem’s (GAL) motion to terminate the parent-child legal relationship between the mother and the child. The trial court denied the motion. Neither the state nor the GAL appealed the trial court’s ruling, but the foster parents did. The court of appeals concluded that the foster parents had standing to appeal the trial court’s ruling.

The supreme court concluded that the foster parents in this case did not have a legally protected interest in the outcome of termination proceedings, and that C.R.S. § 19-3-507(5)(a) did not automatically confer standing on them to appeal the juvenile court’s order denying the termination motion, where neither the Department of Social Services nor the GAL sought review of the trial court’s ruling. Because the GAL was statutorily obligated to advocate for the best interests of the child, including on appeal, there was no need to confer standing on the foster parents to represent the best interests of the child on appeal. The court therefore reversed the judgment of the court of appeals and remanded the case with instructions to dismiss the appeal.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Announcement Sheet, 2/5/2018

On Monday, February 5, 2018, the Colorado Supreme Court issued three published opinions.

People in Interest of C.W.B., Jr.

In re 2015–2016 Jefferson County Grand Jury

Smokebrush Foundation v. City of Colorado Springs

Summaries of these cases are forthcoming.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Supreme Court: Political Committee Must Report Payments to Law Firm as Contributions, Not Expenditures

The Colorado Supreme Court issued its opinion in Campaign Integrity Watchdog v. Alliance for a Safe and Independent Woodmen Hills on Monday, January 30, 2018.

Election Law—Constitutional Law—Political Speech.

The supreme court held that a political committee must report payments to a law firm for its legal defense as contributions, but not as expenditures. “[E]xpenditures . . . and obligations” under C.R.S. § 1-45-108(1)(a)(I) are limited to payments and obligations for expressly advocating the election or defeat of a candidate; payments for legal defense are not for express electoral advocacy. But, pursuant to Colo. Const. art. XXVIII, § 2(5)(a)(II), payments to a third-party law firm for a political committee’s legal defense count as reportable contributions because they are payments “made to a third party for the benefit of any . . . political committee.”

The court reversed the administrative law judge’s determination that the contribution-reporting requirement is unconstitutional as applied to Alliance for a Safe and Independent Woodmen Hills (Alliance). Under Buckley v. Valeo, 424 U.S. 1, 61–68 (1976), for political committees like Alliance whose major purpose is influencing elections, the governmental interests in political transparency and preventing corruption justify the First Amendment burdens of reporting and disclosure. It makes little difference that the payments here were made post-election and for legal defense; elections are cyclical and money is fungible.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Lawyer’s Donations of Legal Services Were Not “Contributions” Under Campaign Finance Law

The Colorado Supreme Court issued its opinion in Coloradans for a Better Future v. Campaign Integrity Watchdog on Monday, January 29, 2018.

Election Law—Disclosure.

A lawyer filed a report for Coloradans for a Better Future (Better Future), a political organization, without charging a fee. The supreme court reversed the court of appeals’ determination that Better Future was required to report the donated legal service as a “contribution” under Colorado’s campaign-finance laws. The constitutional definition of “contribution” does not address political organizations, and neither part of the statutory definition relied on by the court of appeals covers legal services donated to political organizations. C.R.S. § 1-45-103(6)(b) does not apply to political organizations, and the word “gift” in C.R.S. § 1-45-103(6)(c)(I) does not include gifts of service.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Announcement Sheet, 1/29/2018

On Monday, January 29, 2018, the Colorado Supreme Court issued two published opinions.

Coloradans for a Better Future v. Campaign Integrity Watchdog

Campaign Integrity Watchdog v. Alliance for a Safe and Independent Woodmen Hills

Summaries of these cases are forthcoming.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Colorado Supreme Court: Prosecution’s Withholding of Evidence was Brady Violation and Sanctions Warranted

The Colorado Supreme Court issued its opinion in People v. Bueno on Monday, January 22, 2018.

Motion for New Trial—Evidence.

In this case, the Colorado Supreme Court considered two questions. The first is whether a Crim. P. 33(c) motion for a new trial is time-barred because it was filed more than one year after the defendant’s conviction, and thus arguably more than one year after “entry of judgment.” The second is whether the trial court erred in granting a new trial after concluding that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to provide to the defense evidence that the prosecution had obtained at the outset of the investigation until after defendant’s conviction. The court held that “entry of judgment,” for the purposes of Rule 33(c), does not occur until both a verdict or finding of guilt and the imposition of a sentence. The court concluded that, applying Brady’s disclosure requirements, the trial court did not abuse its discretion in granting a motion for a new trial.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Actual Person Needs to be At Risk to Satisfy Reckless Manslaughter and Assault Elements

The Colorado Supreme Court issued its opinion in People v. Griego on Monday, January 22, 2018.

Attempted Recklessness—Attempted Reckless Manslaughter—Equal Protection.

In this case, the supreme court considered whether the requirement in the attempted reckless manslaughter and attempted second degree assault statutes that a defendant place “another person” at risk of death or serious bodily injury necessitates that an actual, discernible person be placed at risk, or whether “another person” can refer to the public at large. The court concluded that the statutes at issue require a showing of a risk to an actual, discernible person and that a risk to the public at large is insufficient. Here, because the People presented no evidence that defendant’s actions put any particular person at risk, the court affirmed the court of appeals’ judgment reversing his convictions.

Summary provided courtesy of Colorado Lawyer.