May 18, 2012

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Colorado Supreme Court: Denying Change of Water Right for Failing to Prove Historic Use Does Not Amount to Unconstitutional Taking of Property

May 16, 2012 By Leave a Comment

The Colorado Supreme Court issued its opinion in Concerning the Revised Abandonment List of Water Rights in Water Division 2 and Concerning the Protest of Thorsteinson in Pueblo County: Harrison v. Simpson, State Engineer; Concerning the Application for Change of Water Right of Harrison, Personal Representative: Harrison v. St. Charles Mesa Water District on May 14, 2012.

Water Law—Change of Diversion Point—Stipulation—Unconstitutional Taking—Abandonment of Right.

John Harrison appealed directly to the Supreme Court from adverse rulings of the Water Court for Water Division No. 2 in two separate cases. With regard to Harrison’s Application for a Change of Water Right, the water court granted the State Engineers’ motion to dismiss at the close of Harrison’s case. The water court found that he was required, but failed, to establish the historic use of the right, to which he sought a change in the point of diversion. With regard to Harrison’s protest to the inclusion of the interests he claimed in the Mexican Ditch on the Division Engineer’s decennial abandonment list, the water court granted the Engineer’s motion for abandonment, as a stipulated remedy for Harrison’s failure to succeed in his change application.

The Court affirmed the water court’s dismissal of Harrison’s application, holding that (1) Harrison neither proved historic use of the right for which he sought a change nor was excepted from the requirement that he do so as a precondition of changing its point of diversion, and (2) denying a change of water right for failing to prove the historic use of the right does not amount to an unconstitutional taking of property. The Court reversed the water court’s order granting the Engineers’ motion for abandonment, because Harrison did not stipulate to an order of abandonment as the consequence of failing to succeed in his change application, but only as the consequence of failing to timely file an application reflecting historic use, a condition with which he complied.

Summary and full case available here.

Colorado Supreme Court: Denying Change of Water Right for Failing to Prove Historic Use Does Not Amount to Unconstitutional Taking of Property

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Colorado Court of Appeals: “Colorado Day of Prayer” Proclamations Violated Preference Clause of State Constitution

May 15, 2012 By Leave a Comment

The Colorado Court of Appeals issued its opinion in Freedom From Religion Foundation, Inc. v. Hickenlooper on May 10, 2012.

Taxpayers—Religion—Proclamation—Preference Clause of the Colorado Constitution—Standing.

Plaintiffs, Freedom from Religion Foundation, Inc. (FFRF) and four of its members (taxpayers), appealed the trial court’s determination that the Governor’s proclamations did not violate the Preference Clause, which is Colorado’s equivalent of the First Amendment’s Establishment Clause. The Governor cross-appealed the trial court’s conclusion that FFRF and the taxpayers had standing to bring this case. The Court of Appeals reversed the order in part and affirmed it in part, and remanded the case.

The taxpayers are citizens of Colorado who pay Colorado taxes. FFRF is a Wisconsin nonprofit organization that is registered to do business in Colorado. Each year from 2004 to 2009, Colorado’s Governor issued an honorary proclamation for the first Thursday of May to be the “Colorado Day of Prayer.” Plaintiffs’ complaint alleged that the proclamations violated the Preference Clause of the Religious Freedom section in Colorado Constitution, Article II, § 4, and asked the court to issue an injunction enjoining the Governor from issuing such proclamations in the future.

The Governor contended on appeal that FFRF and the taxpayers do not have standing. The claim herein arises out of a legally protected interest under the Constitution. Further, there is a nexus between the taxpayers and the governmental action of issuing the Colorado Day of Prayer proclamations. Specifically, the record shows that, although the exact amount is not clear, state funds were spent each year to issue the proclamation. Such a nexus, though slight, is sufficient for standing in Colorado. Therefore, the taxpayers had standing to bring this claim.

The Court determined that the six Colorado Day of Prayer proclamations at issue here were governmental conduct that violated the Preference Clause. The Court concluded that the proclamations (1) express the Governor’s support for their content, which is predominantly religious; (2) lack a secular context; and (3) constitute a government endorsement of religion over non-religion. Accordingly, the court’s order entering summary judgment in favor of the Governor was reversed.

Summary and full case available here.

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Tenth Circuit: Courts Defer to Congress to Distinguish Between Citizens and Noncitizens and to Ensure Safety and Order

May 8, 2012 By Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in United States v. Huitron-Guizar on Monday, May 7, 2012.

The Tenth Circuit affirmed the district court’s sentence. Petitioner entered a conditional guilty plea to being an illegal alien in possession of firearms transported or shipped in interstate commerce and was sentenced to 18 months’ imprisonment. Petitioner is to be delivered upon release to an immigration official for deportation. On appeal, he argues that the statute under which he was convicted is unconstitutional and that the district court committed various sentencing errors in applying the Sentencing Guidelines.

The Court disagreed. “[C]ourts must defer to Congress as it lawfully exercises its constitutional power to distinguish between citizens and non-citizens, or between lawful and unlawful aliens, and to ensure safety and order. On this record, § 922(g)(5) withstands [Petitioner]’s Second Amendment and Equal Protection challenges.” Additionally, the district court did not abuse its discretion when it did not apply variances to Petitioner’s sentence.

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Tenth Circuit: District Court Lacked Jurisdiction to Consider whether Confinement Violated Extradition Treaty

May 2, 2012 By Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Palma-Salazar v. Davis on Tuesday, May 1, 2012.

The Tenth Circuit affirmed in part and vacated in part the district court’s decision. Petitioner “was indicted in 1995 for conspiracy to distribute cocaine; he was arrested in Mexico in 2002. After he was extradited to the United States pursuant to an extradition treaty between the United States and Mexico, [Petitioner] pleaded guilty and began serving his sentence. In 2010, [he] filed a 28 U.S.C. § 2241 petition for a writ of habeas corpus, challenging his confinement at the Administrative Maximum Prison in Florence, Colorado (ADX). He alleged his confinement at ADX violates his Fifth and Eighth Amendment rights and also the extradition treaty. The district court denied [the] petition. It concluded it lacked jurisdiction under 28 U.S.C. § 2241 to consider his Fifth and Eighth Amendment claims because they are challenges to the conditions of his confinement and must, therefore, be brought under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).” However,  it did conclude that Petitioner’s confinement at ADX does not violate the extradition treaty.

The Tenth Circuit held that the district court lacked jurisdiction under 28 U.S.C. § 2241 to consider any of Petitioner’s claims, including whether his confinement violated the treaty. “Because he seeks a change in the place of his confinement, which is properly construed as a challenge to the conditions of his confinement, [Petitioner]’s claims must be brought pursuant to Bivens.”

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Colorado Court of Appeals: Prohibition on Demonstrating with Gruesome Images on Posters Was Narrowly Tailored and Supported by Compelling Government Interest

May 1, 2012 By Leave a Comment

The Colorado Court of Appeals issued its opinion in St. John’s Church in the Wilderness v. Scott on April 26, 2012.

First Amendment—Law of the Case Doctrine.

This appeal followed the remand ordered in St. John’s in the Wilderness v. Scott, 194 P.3d 475 (Colo.App. 2008) (St. John’s I).The order was affirmed.

Plaintiffs, St. John’s Church in the Wilderness and two parishioners, Charles I. Thompson and Charles W. Berberich, brought claims for private nuisance and conspiracy to commit private nuisance against defendants Kenneth Tyler Scott and Clifton Powell. Specifically, defendants had demonstrated their opposition to abortion and homosexuality on the public street and sidewalk across the street from the church during an outdoor Palm Sunday service that began on Church property. Defendants shouted and carried signs, some of which included images of aborted fetuses.

On appeal, defendants contended that St. John’s I wrongly abridged their First Amendment rights and, because controlling law had changed since St. John’s I was decided, the Court of Appeals need not follow it as law of the case. St. John’s I expressly addressed the arguments that defendants raised here, and the new cases cited by defendants follow established precedent. Therefore, the Court declined to address those issues decided by St. John’s I.

Defendants also contended that the trial court failed to obey directions imposed in St. John’s I. On remand, the trial court removed “at all times on all days” and added “on days on which they engage in any conduct proscribed by this injunction.” Although the original prohibition was vacated, the court did not abuse its discretion with this new language.

Defendants further contended that prohibiting speech that causes parishioners “to become physically upset” and the prohibition from carrying posters “depicting gruesome images of mutilated fetuses or dead bodies” impermissibly restrict their First Amendment rights. The prohibition related to speech causing members of the congregation “to become physically upset” was vacated. Plaintiffs conceded that prohibiting “shouting or yelling . . . in a manner reasonably calculated to . . . disrupt parishioners’ ability to worship” and the church’s “ability to use its property for worship services” adequately protects their interests. On the other hand, the language prohibiting the gruesome posters was affirmed. The court determined the prohibition was narrowly tailored, and was supported by a compelling governmental interest in protecting children from disturbing images.

Summary and full case available here.

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Tenth Circuit: Petitioner Used Fifth Amendment Privilege to Manipulate Securities Fraud Litigation Process; Not Abuse of Discretion to Deny Leave to Withdraw Assertion

April 30, 2012 By Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in SEC v. Smart on Friday, April 27, 2012.

The Tenth Circuit affirmed the district court’s decision. In 2009, the SEC began investigating Petitioner, who was the sole owner of Smart Assets, for securities fraud. Petitioner appeared before the agency to provide testimony, but his counsel instructed him “to take the Fifth Amendment,” and the proceeding ended. The next day, the SEC sued Petitioner and Smart Assets, claiming Petitioner “had defrauded multiple investors because he had represented that investors’ money would be placed in low-risk financial instruments, but he then used their money to cover his and his wife’s personal expenses, pay prior investors, and engage in high-risk ventures, like hard-money lending. In the process, he commingled investor funds, fabricated account statements, refused investors’ inquiries about their money, misled investors about his affiliation with a financial-planning firm, gave promissory notes as collateral for investment funds, and gave investors bogus financial product-information sheets.” The SEC moved for summary judgment and asked the district court to draw an adverse inference against Petitioner in regard to his Fifth Amendment invocations. Petitioner sought a continuance. The district court granted summary judgment, citing Petitioner’s “failure to raise a genuine issue of fact, and it inferred from his Fifth Amendment invocation that ‘he knowingly and purposely defrauded investors.’”

On appeal, Petitioner contends that he should have been permitted to withdraw his assertion of the Fifth Amendment and have his declarations considered in opposing summary judgment. The Court disagreed, stating that the circuit has “not yet defined the parameters in a civil case for withdrawing an invocation of the Fifth Amendment privilege against self-incrimination.” However, the “circumstances of [Petitioner]’s invocation of the Fifth Amendment reveal that he was using the privilege to manipulate the litigation process. . . . Further, [Petitioner] took the Fifth during the deposition of Smart Assets after conferring with the company’s counsel. . . . Given the circumstances of this case, [the Court concluded] that the district court did not abuse its discretion in denying [Petitioner] leave to withdraw his assertion of the Fifth Amendment privilege against self-incrimination and in striking his declarations.” Additionally, Petitioner failed to provide evidence to contradict the SEC’s evidence of his frauds.

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Tenth Circuit: Inmates Lack Cognizable Liberty Interest in Avoiding Conditions of Confinement

April 23, 2012 By Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Rezaq v. Nalley on Friday, April 20, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioners are all currently incarcerated in the federal prison system and appeal the district court’s grants of summary judgment in favor of appellee Federal Bureau of Prisons (BOP). Petitioners “contend that they have a liberty interest in avoiding transfer without due process to the Administrative Maximum Prison (ADX) in Florence, Colorado, where they were formerly housed. In separate orders, the district court rejected this argument and found that [Petitioners] lack a cognizable liberty interest in avoiding confinement at ADX. While the BOP agrees with this reasoning, it also contends that all of [Petitioners]‘ claims became moot when they were transferred to other prisons.

The Court disagreed with the BOP and found that the “case presents a live controversy in which the court could afford meaningful prospective relief. . . . Yet the inmates lack a cognizable liberty interest in avoiding the conditions of confinement at ADX, so no due process protections were required before they were transferred to that facility.” The Court therefore affirmed the judgment of the district court.

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Colorado Court of Appeals: Determination that Interpreter Was Not Needed Was Not in Error; No Probative Value in Evidence of Victim’s Gang Affiliation

April 16, 2012 By Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Chavez on April 12, 2012.

Right to be Present—Right to Confront Witnesses—Right to Testify—Effective Assistance of Counsel—Interpreter—Cross-Examination.

Defendant Daniel Chavez appealed the trial court’s judgment of conviction entered on jury verdicts finding him guilty of second-degree assault and felony menacing. The judgment was affirmed.

In November 2006, Chavez and his brother Mario were driving through a parking lot when they encountered J.R.V. and D.D., with whom they had a longstanding contentious relationship. After exchanging words, Chavez got out of the passenger side of the truck and walked around the back of it, carrying a gun. Chavez pointed the gun at J.R.V. and told him to “back off.” J.R.V. got back into his truck. As J.R.V. and D.D. drove away, they heard gunshots.After driving for a short time, J.R.V. realized that he had been shot in the leg.

Chavez contended that his rights to be present, to confront the witnesses against him, to testify, and to receive the effective assistance of counsel were violated because he did not have an interpreter at trial. Chavez did not request an interpreter and the trial court was not on notice that he needed one. Therefore, the trial court’s determination that an interpreter was not needed was not error.

Chavez also contended that the trial court violated his Sixth Amendment confrontation rights by not allowing cross-examination regarding the victims’ gang affiliation. Chavez’s right to confrontation was not violated by the trial court’s limitation because the court did not excessively limit cross-examination. Although Chavez was not able to cross-examine the victims or any prosecution witnesses about the victims’ gang affiliation, he was able to elicit evidence about the animosity between Chavez and the victims, as well as other evidence showing the victims’ bias. Therefore, Chavez was able to present evidence to support his defense. Furthermore, the evidence was not relevant because there was no evidence that the incident was gang-related. Accordingly, the trial court did not abuse its discretion in determining that the probative value of the evidence of the victims’ gang affiliation was not substantially outweighed by the dangers of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence under C.R.E. 403.

Summary and full case available here.

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Tenth Circuit: State Law Requirement of Four Day Notice Period Before Grand Jury Testimony Not Entitlement under Due Process Clause

April 10, 2012 By Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Elliott v. Martinez on Monday, April 9, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioners were all targets of investigations by the Doña Ana County, New Mexico grand jury. Under New Mexico law “they were entitled to target notices that advised them of the right to testify before the grand jury.” They filed a civil-rights action, alleging that the District Attorney violated their due-process rights under the Fourteenth Amendment to the United States Constitution because the notices they received may have been untimely under state law. “The district court granted the District Attorney’s motion to dismiss on the ground that the New Mexico statute did not establish a liberty interest protected by the Fourteenth Amendment.” Petitioners appealed.

Under New Mexico law, “a target of a grand-jury investigation is entitled to notice that he or she is a target unless a district judge finds that notification may result in flight, obstruction of justice, or danger to another person. The notice must describe the alleged crime being investigated, the target’s right to remain silent, and the target’s right to counsel. It must also advise the target of the right to testify before the grand jury on a date no earlier than four days in the future if the target is in custody (and ten days if the target is not). Plaintiffs were in custody at the Doña Ana County Detention Center when they received target notices, and alleged they received them less than four days in advance of testifying.

The Court agreed with the district court and found that “a state-created interest is not protected by the procedural component of the Due Process Clause unless the interest is an entitlement — that is, unless the asserted right to property or liberty is mandated by state law when specified substantive predicates exist.” Additionally, “even if notice is an entitlement under state law, [Petitioners] have failed to state a due-process claim. That is because an entitlement is protected by the Due Process Clause only if it is an interest in life, liberty, or property; and not all entitlements are such interests. . . . The line between substance and procedure is somewhat blurry. In this case, however, there is no question that the state statute creates a procedural right,” and therefore is not protected by the Due Process Clause.

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Tenth Circuit: Panel Rehearing Granted with Amended Opinion; En Banc Suggestion Denied

April 3, 2012 By Leave a Comment

The Tenth Circuit Court of Appeals revised its opinion in Toevs v. Reid on Monday, April 2, 2012.

The Tenth Circuit granted panel rehearing on the case, which was originally decided on June 20, 2011, and directed the clerk to issue an amended opinion. The en banc suggestion was denied.

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Colorado Supreme Court: Permitting Narcotics Dogs to Sniff Around Vehicle Did Not Infringe Any Reasonable Privacy Interest

March 27, 2012 By Leave a Comment

The Colorado Supreme Court issued its opinion in People v. Esparza on March 26, 2012.

Search and Seizure—Dog Sniffs—Colo. Const., Art. II, § 7.

The People brought an interlocutory appeal assigning error to the district court’s suppression of contraband seized from defendant’s vehicle on two occasions. In each case, after defendant was arrested for driving under suspension, a police narcotics detection canine was brought to the scene and led around defendant’s truck, which had been parked and left at the location of her arrest. Also in each case, after the dog alerted to the presence of narcotics, a search of the truck’s cab revealed drug paraphernalia and suspected methamphetamine. The district court found that under these circumstances, the state constitution barred the police from bringing a trained narcotics detection dog within detection range of defendant’s vehicle without first having reasonable suspicion to believe it contained contraband, which the court found to be lacking in both cases.

The Supreme Court held that an interest in possessing contraband cannot be deemed legitimate under the state constitution any more than under the federal constitution, and that official conduct failing to compromise any legitimate interest in privacy cannot be deemed a search under the state constitution any more than under the federal constitution. Because narcotics dogs could not communicate anything more than reason to believe defendant’s truck either contained or did not contain contraband, permitting narcotics dogs to sniff around the vehicle did not infringe on any reasonable privacy interest. The Court reversed the district court’s order and remanded the case for further proceedings.

Summary and full case available here.

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Colorado Court of Appeals: Officers’ Ruse During “Knock and Talk” Was Intended to Get Occupant to Open Door, Not to Deceive into Giving Consent to Enter Apartment

March 19, 2012 By Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Nelson on March 15, 2012.

Standing—Search—Resident—Motion to Suppress Evidence—Ruse—Probable Cause—Exigent Circumstances—Independent Source Exception—Exclusionary Rule.

Defendant Harvey Nelson appealed the judgment of conviction entered on jury verdicts finding him guilty of numerous illegal substance-related offenses. The case was remanded.

On January 27, 2006, police officers went to an apartment building after receiving a tip from an anonymous informant that narcotics distribution was occurring in one of the apartments. The officers knocked on the apartment door, and Nelson answered it. Another man inside the apartment attempted to flee the apartment by running out the back door. The officers recovered a glass pipe commonly used for smoking marijuana from a table inside the apartment and methamphetamine from the other man’s pockets.

The People contended that Nelson lacked standing to challenge the search because he was not an “overnight guest” and, after the entry and search began, he stated that he did not live there. However, undisputed facts adduced at the suppression hearing showed that Nelson was living in the apartment. Thus, he had standing to challenge the entry and search.

Nelson contended that the trial court erred in denying his motion to suppress evidence based on police officers’ unconstitutional entry and search of his residence. The officers testified that they wished to conduct a “knock and talk” investigation to seek consent to enter the apartment. Their ruse of claiming to be maintenance workers was intended only to get a person inside the apartment to open the door; it was not intended or used to deceive any person into giving consent to enter or search the apartment. Therefore, the officers’ ruse was permissible. Further, the officers’ subsequent entry into the apartment was justified by probable cause and exigent circumstances. The officers knew from a reliable informant that narcotics distribution was possibly taking place at the apartment and that a large quantity of methamphetamine was reportedly inside, and the officers personally observed the glass pipe and the other man fleeing before entering the apartment.

Nelson contended that, even if the initial entry into the apartment was constitutional, his girlfriend’s subsequent consent to search was invalid as to him. Because the evidence proved that Nelson lived there, the girlfriend’s consent to search was invalid in light of Nelson’s refusal to consent. The court ruled there was probable cause for issuance of the search warrant. However, the case was remanded to determine whether the independent source exception to the exclusionary rule permitted the recovery and use at trial of the items seized pursuant to issuance of the search warrant, despite the illegality of the consent search.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 15, 2012, can be found here.

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