April 24, 2019

Archives for September 17, 2012

Colorado Court of Appeals: Street Sweeper was Mobile Machinery, Not Motor Vehicle, so City Immune Under CGIA

The Colorado Court of Appeals issued its opinion in Henderson v. City and County of Denver on September 13, 2012.

Colorado Governmental Immunity Act—Motor Vehicle—Mobile Machinery.

The City and County of Denver (City) appealed from an order denying their motion to dismiss a complaint filed by plaintiff. The order was reversed and the case was remanded.

A street sweeper operated by an employee of the City collided with a car driven by plaintiff. The driver sued the City. She alleged that the City’s immunity was waived under the Colorado Governmental Immunity Act (CGIA) because the street sweeper was a “motor vehicle” within the meaning of CRS § 24-10-106(1)(a). The City moved to dismiss the driver’s claim, arguing that the street sweeper was “mobile machinery” rather than a “motor vehicle,” and thusthe City had immunity under the CGIA. The trial court denied the motion, and the City appealed.

CRS § 42-1-102(58) defines “motor vehicle” as (1) any self-propelled vehicle (2) that is designed primarily for travel on public highways and (3) that is generally and commonly usedto transport persons or property over public highways. CRS § 42-1-102(54) defines “mobile machinery” to be (1) a self-propelled vehicle (2) that is not primarily designed for the transportation of persons or cargo over the public highways, (3) including, but not limited to, wheeled vehicles that are commonly usedin the maintenance of roadways. The evidence in the record supports the conclusion that under the CGIA, the street sweeper is mobile machinery and not a motor vehicle; therefore, the trial court erred when it concluded otherwise and the order was reversed.

A party that successfully defends an appeal of an action that was dismissed on a pretrial motion to dismiss under the CGIA is entitled to recover its reasonable appellate attorney fees under § 13-17-201. The case was remanded to determine the award of attorney fees to the City.

Summary and full case available here.

Colorado Court of Appeals: Limitations Period Tolled while Juvenile Participating in Diversion Program

The Colorado Court of Appeals issued its opinion in People in the Interest of K.W. on September 13, 2012.

Juvenile Delinquent—Diversion Program—Statute of Limitations—Tolling—Disorderly Conduct—Evidence.

K.W., a juvenile, appealed the judgment adjudicating her delinquent based on findings that she committed acts that, if committed by an adult, would constitute disorderly conduct in violation of CRS § 18-9-106(1)(a). The judgment was affirmed.

The People charged K.W. with one count of interfering with staff or students, a class 3 misdemeanor. As an alternative to prosecution, the case was diverted to the Juvenile Offender Services Program. K.W. agreed to enter the program. Subsequently, K.W. was terminated from the diversion program based on her noncompliance. The People thereafter filed a second petition in delinquency in the district court. This petition encompassed the original interference charge and the additional charge of disorderly conduct. K.W. was found to be delinquent on the disorderly conduct charge.

K.W. contended that the magistrate and the district court erred when they exercised jurisdiction over the disorderly conduct charge. A petition in delinquency must be filed in a “court of competent jurisdiction” within the applicable time period. For petty offenses, the applicable period is six months. However, CRS § 16-5-401(12) tolls the limitations period for charges “brought to facilitate the disposition of the case,” which includes a diversion program. Here, K.W. was initially charged within the six-month statute of limitations period and entered into a diversion program. After she failed the diversion program, and eleven months after the initial date she was charged, the People added a charge. Therefore, the court had jurisdiction to adjudicate the juvenile on the disorderly conduct charge, because the limitations period for bringing the charge was tolled while the Diversion Agreement concerning the same conduct was pending.

K.W. also argued that as a matter of law there was insufficient evidence to adjudicate her on the disorderly conduct offense. K.W. was hostile and threatening; refused to leave the scene; used obscene language; and attempted to reach the students, causing the security officer to intervene and push her back. Therefore, the evidence was sufficient to support the disorderly conduct adjudication.

Summary and full case available here.

Colorado Court of Appeals: As Issue of First Impression, Phrase “Agency Action Subject to Judicial Review” Construed Under C.R.S. § 24-4-106(2)

The Colorado Court of Appeals issued its opinion in Chittendon v. Colorado Board of Social Work Examiners on September 13, 2012.

Petition for Declaratory Order—Final Agency Action—Jurisdiction.

Cora Lea Chittenden, a licensed clinical social worker, attempted to appeal from an order (Order) of the State Board of Social Work Examiners (Board) that declined to rule on her petition for a declaratory order. The appeal was dismissed.

Chittenden provided court-ordered therapy to a minor child. The child’s father filed a complaint with the Board, alleging unlawful, unprofessional, and unethical conduct by Chittenden. The Board found reasonable grounds to believe that Chittenden had violated CRS § 12-43-222(1)(g), (j), and (v). Chittenden submitted a request to the Board for declaratory orders, which the Board declined to decide. Chittenden then filed this appeal.

Chittenden argued that anyorder disposing of a petition for a declaratory order is subject to immediate judicial review with respect to the meaning of § 24-4-105(11). Generally, with limited exceptions not applicable here, § 24-4-105(11) requires final agency action within the meaning of § 24-4-106(2) before an order disposing of a petition for declaratory relief is subject to judicial review. Here, the Order did not mark the consummation of the agency’s decision-making process; did not determine Chittenden’s rights and obligations—and no legal consequences flowed from it; and did not evince any intent by the Board to issue a final order. Because the Order did not constitute final agency action under § 24-4-106(2), the Court of Appeals lacked jurisdiction over this appeal. The Court therefore dismissed it.

Summary and full case available here.

Colorado Court of Appeals: Nurse Who Provided Services for El Paso County Jail on Contract Was Not Employee of Correctional Facility

The Colorado Court of Appeals issued its opinion in People v. Mulberger on September 13, 2012.

Challenge for Cause—Compensated Employee—Public Law Enforcement Agency.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of several offenses. The judgment was affirmed.

Defendant contended that the district court erred by denying his challenge for cause of a prospective juror. Specifically, during jury selection, defendant’s counsel challenged for cause a prospective juror on the ground that she was a compensated employee of a public law enforcement agency because she worked as a nurse employed by a company that provided services to the El Paso County Jail on a contract basis. The court denied the challenge, and defendant’s counsel used a peremptory challenge on that juror and exhausted defendant’s remaining peremptory challenges. Because the prospective juror worked for a third-party contractor and was not subject to the direction and control of a jail representative, she was not a compensated employee of a public law enforcement agency. Therefore, the court did not err in denying defendant’s challenge for cause.

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 9/14/12

On Friday, September 14, 2012, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

B.J.G. v. Rockwell Automation, Inc.

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.