May 23, 2019

Archives for May 14, 2013

Honorable Jane A. Tidball to Retire from First Judicial District Bench

TidballOn Monday, May 13, 2013, the Colorado State Judicial Branch announced that the Honorable Jane A. Tidball will retire from the First Judicial District court bench, effective July 31, 2013. The First Judicial District Nominating Commission will meet on June 28, 2013, to interview applicants and select nominees for appointment to the bench.

Judge Tidball was appointed to the First Judicial District Court in 1998. Prior to that, she was a District Court Magistrate in the Twentieth Judicial District. She also serves on the Colorado Supreme Court Civil Rules Committee, has written several legal articles, and has spoken at CLE programs.

Applicants for the vacancy must have been admitted to practice law in Colorado for five years, and must be qualified electors in the First Judicial District. Applications are available on the Colorado State Judicial Branch website, and must be submitted to the ex officio chair of the nominating commission, Justice Monica Marquez, no later than 4 p.m. on June 10, 2013.

For more details on the vacancy and application process, click here.

Colorado Court of Appeals: Remand to Trial Court to Determine Whether Drug Charges Harm Defendant More than they Protect the Public

The Colorado Court of Appeals issued its opinion in Cox v. People on Thursday, May 9, 2013.

Seal Records of Non-Traffic Offense Charges—CRS § 24-72-308.

Petitioner appealed a district court’s order denying his petition to seal records of non-traffic offense charges brought against him that were subsequently dismissed. The judgment was reversed and the case was remanded with directions.

Petitioner was charged in the Douglas County Court with possession of marijuana (a class 2 petty offense); possession of drug paraphernalia (a class 2 petty offense); and unsafe lane change (a class A traffic offense). He successfully completed a juvenile diversion program and all charges were dismissed with prejudice.

Petitioner then filed a verified petition requesting that the records of the case be sealed. The prosecution objected, relying on Clark v. People, 221 P.3d 447 (Colo.App. 2009). At the hearing, both parties agreed that Clarkwas controlling, but petitioner argued the dissent in that case was a better-reasoned approach to interpreting CRS § 24-72-308. The district court disagreed and petitioner appealed. The Court of Appeals reversed.

Judge Russel’s dissent in Clark agreed with the majority that the court cannot seal “records pertaining to” traffic infractions. However, he did not agree that it foreclosed relief, because (1) he saw no practical impediment to offense-specific sealing; (2) he believed that offense-specific sealing would further legislative policy; and (3) he concluded that the statute does not prohibit offense-specific sealing.

The Court stated that the purpose of the statute is to relieve a very limited number of persons charged with criminal offenses from the stigma that comes with having been charged with an offense but not convicted of it. Here, petitioner requested sealing of the entire criminal record, and the Court found that the statutory purpose could be satisfied by sealing records of non-traffic offenses in a criminal record that contained both. Petitioner lost one job and was denied another based on his criminal record, and the Court did not believe it was because of the routine traffic offense.

Therefore, the Court reversed the judgment. On remand, the district court must determine, as to the drug offenses, whether “the harm to the privacy of the petitioner or dangers of unwarranted adverse consequences to the petitioner outweigh the public interest in retaining the record” and, if so, whether the court should seal the criminal record as to those charges.

Summary and full case available here.

Colorado Court of Appeals: No Hearsay Exception Applied to Allow Introduction of Defendant’s Self-Serving Out-of-Court Statements

The Colorado Court of Appeals issued People v. Zubiate on Thursday, May 9, 2013.

Driving After Revocation Prohibited—Driving While Ability Impaired—Driving Under Restraint—Hearsay—Merger—Lesser Included Offense.

Defendant appealed her convictions entered following a jury trial for aggravated driving after revocation prohibited (aggravated DARP) and driving while ability impaired (DWAI). She also appealed her driving under restraint (DUR) conviction entered following her guilty plea to that offense, and the sentence imposed. The convictions were affirmed.

Defendant contended that the trial court erred in excluding an out-of-court statement concerning her fear of needles and, consequently, deprived her of her constitutional right to present evidence in her own defense. Specifically, defendant argued that the court erred in excluding her statement to Officer Rayside concerning her fear of needles because it was (1) offered for a non-hearsay purpose, (2) a statement against interest, and (3) a statement concerning her state of mind. Here, the statement was relevant only if it was offered for the truth of the matter asserted—namely, that defendant feared needles. Accordingly, it was hearsay. Because defendant’s statement was self-serving and the prosecution did not introduce evidence that defendant refused the test, none of the hearsay exceptions applied.

Defendant also contended that her DARP and DUR convictions should merge because DUR is a lesser included offense of DARP. The offenses do not merge, however, because proving the DARP elements does not necessarily establish DUR. DUR applies to offenses committed only on public ways. DARP, in contrast, does not require that the driver operate the vehicle on a highway. Accordingly, DARP is not limited to the highway and applies to private ways, as well. Because DUR requires proof of an additional fact that DARP does not—namely that a motor vehicle was driven on a highway—DUR is not a lesser included offense of DARP. Furthermore, because one could operate a vehicle without necessarily driving it, the offenses do not merge under the strict elements test. Therefore, DUR is not a lesser included offense of DARP. Accordingly, defendant’s convictions and sentences for both offenses do not merge.

Summary and full case available here.

Colorado Court of Appeals: Trial Court Did Not Abuse Discretion by Taking Judicial Notice of Facts in Its Own File

The Colorado Court of Appeals issued its opinion in People v. Doyle on Thursday, May 9, 2013.

Bond—Judicial Notice—Bias.

Defendant Eric Marcus Doyle appealed the judgment of conviction entered on a jury verdict finding him guilty of violating a condition of his bail bond. The judgment was affirmed.

Doyle was arrested and charged with theft and conspiracy to commit theft stemming from his involvement in an attempt to sell a water pump to a scrap metal processor. After Doyle was booked into jail, he posted a $3,000 bond. As a condition of his bond, he was required to appear in court on March 8, 2011. Doyle failed to appear on that date.

Doyle contended that the trial court abused its discretion in taking judicial notice of the facts contained in its file. Specifically, the trial court took judicial notice of the following facts: Doyle was accused of theft and conspiracy to commit theft and was required to appear in court on March 8, 2011; he failed to appear. The prosecution presented no further evidence. The trial court properly instructed the jury—both orally and in writing—that it could accept or reject the judicially noticed facts, and the court did not comment on Doyle’s mental state. Therefore, the trial court did not abuse its discretion in judicially noticing the facts contained in its own file.

Summary and full case available here.

Probate Omnibus Bill, Employee Privacy, HOA Bills Signed by Governor Hickenlooper

Although the Colorado General Assembly adjourned sine die on May 8, 2013, bills continue to be signed into law by Governor Hickenlooper. To date, the governor has signed 231 bills. Some of the most recently signed bills are summarized below.

On Thursday, May 7, Governor Hickenlooper signed one bill — HB 13-1117 – Concerning Alignment of Child Development Programs, and, in Connection Therewith, Making and Reducing an Appropriation, by Rep. Millie Hamner and Sens. Mary Hodge and Andy Kerr. The bill consolidates several child development programs in the Department of Human Services and extends  the Early Childhood Leadership Council, which was set to sunset on July 1, 2013.

Governor Hickenlooper signed 18 bills into law on Friday, May 10, 2013. Six of them are summarized here.

On Saturday, May 11, 2013, the governor signed 19 bills into law. Five of them are summarized here.

Finally, on Monday, May 13, 2013, Governor Hickenlooper signed 11 bills into law. Four of them are summarized here.

For a complete list of Governor Hickenlooper’s 2013 legislative decisions, click here.

e-Legislative Report: 5/13/13

Michael Valdez, Director of Legislative Relations for the CBA, issued his final e-Legislative Report of the 2013 Legislative Session on Monday, May 13, 2013. In this issue, he discusses the end of the session at the Capitol and gives a quick glance ahead.

At the Capitol – End of Session

The Legislature has adjourned sine die for the First Regular Session of the Sixty-ninth General Assembly. The final gavels (House and Senate) came down on Wednesday, May 8 in the late afternoon. We will provide recaps of the session in upcoming issues of The Colorado Lawyer.

My thanks to all who subscribe to the eLegislative Report. We hope the updates were useful to you throughout the 2013 legislative session.

The CBA had a good year under the dome. Our sponsored legislation has been approved by the legislature and is either already signed by or on its way to Gov. John Hickenlooper. The CBA continues its reputation for bringing well thought-out legislation that seeks to improve the legal system—for our members as well as the public.

A big thank you goes out to all the sections for their work in reviewing, amending, fixing, analyzing, killing, and helping pass numerous bills from January through May.

The Legislative Policy Committee (LPC), and in particular Committee Chairman and CBA President Mark Fogg, are to be commended for their efforts throughout the session; they meet weekly when the legislature is in session to direct our efforts at the legislature. During the “off-session” the LPC meets to reflect on the past session and prepare for the session that is always around the corner.

Finally, our contract lobbyist, Amy Redfern and our lobbying firm of Aponté-Busam, do a phenomenal job of representing the CBA at the legislature. Amy’s intellect, experience, and professionalism are tremendous assets to our Association.

A very special note of thanks to my colleague Margaret Haywood, web communications specialist at the Colorado Bar Association, for her efforts to not only get the eLegislative newsletter published each week, but for her help in making the format attractive to readers.

Well done.

Upcoming

Look for the The Colorado Lawyer in July for a quick recap of the session and important legislation; the full Legislative Update will be published in the August issue.

One last item, if something big should arise over the summer I reserve the right to bring it to your attention through this newsletter.

Have a good summer!

Regards,

Michael

Electronic Filing Rule Under C.R.C.P. 121 and Rule 305.5 Amended by Colorado Supreme Court

On May 9, 2013, the Colorado Supreme Court issued Rule Change 2013(04). The changes affect C.R.C.P. 121, § 1-26, and Rule 305.5 of the Colorado Rules of County Court Civil Procedure.

The rule change deletes language from C.R.C.P. 121 and Rule 305.5 regarding addresses and contact information in the e-service database. The rule changes clarify that service must be made pursuant to C.R.C.P. 4 and 5, and delete the requirement that the serving party or serving party’s attorney must provide the best known address for each party served.

For a redline of the changes to C.R.C.P. 121, § 1-26, and Rule 305.5 of the Colorado Rules of County Court Civil Procedure, click here. For a complete list of the Supreme Court’s 2013 rule changes, click here.