May 20, 2019

Archives for July 1, 2015

Happy Fourth of July!

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In honor of Independence Day, the CBA, DBA, and CBA-CLE offices will be closed on Friday, July 3, 2015. The CLE offices will close at 2 p.m. on Thursday, July 2. You can still register for classes, order books and homestudies, and sign up for the CLE Pass online at cle.cobar.org.

Happy Fourth of July!

Colorado Supreme Court: District Scholarship Program Violates Colorado Constitution

The Colorado Supreme Court issued its opinion in Taxpayers for Public Education v. Douglas County School District on Monday, June 29, 2015.

Standing—Aiding Religious Schools—Colo. Const. Art. IX, § 7.

Four years ago, the Douglas County School District implemented its Choice Scholarship Pilot Program (CSP), a grant mechanism that awarded taxpayer-funded scholarships to qualifying elementary, middle, and high school students. Those students could use their scholarships to help pay their tuition at partnering private schools, including religious schools. The Supreme Court granted certiorari to determine whether the CSP comports with both the Public School Finance Act of 1994, CRS §§ 22-54-101 to -135 (Act), and the Colorado Constitution. The Court first held that petitioners lacked standing to challenge the CSP under the Act. The Court further held, however, that the CSP violates Article IX, § 7 of the Colorado Constitution. Accordingly, the Court reversed the judgment of the court of appeals and remanded the case so that the trial court may reinstate its order permanently enjoining the CSP.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Admissibility of Alternate Suspect Evidence Should Be Evaluated on Case-by-Case Basis

The Colorado Supreme Court issued its opinion in In re People v. Elmarr on Monday, June 29, 2015.

Alternate Suspect Evidence—Relevance—Hearsay—CRE 403.

In this case, the Supreme Court set forth the proper framework for analyzing the admissibility of alternate suspect evidence. The Court held that the admissibility of such evidence ultimately depends on the strength of the connection between the alternate suspect and the charged crime. The touchstone of relevance in this context is whether the evidence establishes a non-speculative connection or nexus between the alternate suspect and the crime charged. Where the evidence concerns other acts by the alternate suspect, a court must look to whether all the similar acts and circumstances, taken together, support a finding that the same person was probably involved in both the other act and the charged crime. CRE 404(b) principles guide this analysis. In addition, where the evidence concerns statements by the alternate suspect, a court must determine whether the alternate suspect’s statements meet the requirements of CRE 804(b)(3) or any other applicable hearsay exception. Finally, even relevant alternate suspect evidence may be excluded if its probative value is substantially outweighed by countervailing policy considerations under CRE 403, such as the danger of confusion of the issues or misleading the jury, or by considerations of undue delay.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Exclusion of Public During Trial was More Than Fleeting Occurrence and Violated Sixth Amendment

The Colorado Supreme Court issued its opinion in People v. Hassen on Monday, June 29, 2015.

Sixth Amendment Right to Public Trial.

At respondent’s trial, the trial court completely closed the courtroom during the testimony of two undercover officers. The Supreme Court granted certiorari to consider whether this closure constituted structural error. The Court held that the closure violated respondent’s Sixth Amendment right to a public trial and rejected the People’s argument that the closure was so trivial that it did not implicate respondent’s Sixth Amendment right. Accordingly, the Court affirmed the judgment of the court of appeals.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Proper Remedy for Inadequate Batson Findings is Remand for Further Findings

The Colorado Supreme Court issued its opinion in People v. Rodriguez on Monday, June 29, 2015.

Batson Challenges.

The Supreme Court held that when a trial court conducts an inadequate inquiry into an equal protection challenge to the exercise of a peremptory strike, the proper remedy is to remand the case so that the trial court may conduct the three-part analysis announced in Batson v. Kentucky, 476 U.S. 79 (1986), as it is described in this opinion. An inquiry is inadequate when the trial court’s findings are insufficient to determine whether the challenger has proved that the proponent of the peremptory strike purposefully discriminated against a prospective juror on account of the prospective juror’s race. Here, the trial court applied an incorrect legal standard and overruled defendant’s Batson challenge for failure to demonstrate a pattern of discrimination. In so doing, the court never decided whether defendant established that the prosecutor engaged in purposeful discrimination by striking two minority venire members. Accordingly, the Court ordered the case returned to the trial court with directions to conduct the three-part Batson analysis.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 7/1/2015

On Wednesday, July 1, 2015, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Deere & Co. v. Cabelka

United States v. Jenkins

United States v. Fishman

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Finalists Selected for Vacancy on 20th Judicial District Court

On Tuesday, June 30, 2015, the Colorado State Judicial Branch announced the selection of three nominees to fill a vacancy on the bench of the Twentieth Judicial District Court, effective August 1, 2015. The vacancy will be created by the retirement of Hon. D.D. Mallard.

The three nominees are Elizabeth H. M. Brodsky of Nederland, Robert R. Gunning of Louisville, and Norma A. Sierra of Boulder. Elizabeth Brodsky is currently a Domestic Relations Magistrate in the Twentieth Judicial District. Robert Gunning is a Civil Division Magistrate in the Twentieth Judicial District. Norma Sierra is a judge on the Boulder County Court.

Under the Colorado Constitution, Governor Hickenlooper has 15 days in which to select one of the nominees for appointment to the bench. Comments about the nominees may be emailed to the governor at gov_judicialappointments@state.co.us. More information about the nominees is available here.

Colorado Supreme Court: Defendant Waived Public Trial by Not Objecting to Closed Courtroom During Voir Dire

The Colorado Supreme Court issued its opinion in Stackhouse v. People on Monday, June 29, 2015.

Sixth Amendment Right to Public Trial—Waiver.

At petitioner’s trial, the court closed the courtroom for a portion of voir dire because the large jury pool created the risk of interested members of the public intermingling with the jurors and potentially biasing them. Petitioner’s counsel did not object to the closure at that time or at any time during the trial. The Supreme Court granted certiorari to determine whether petitioner affirmatively waived his right to a public trial in accordance with Anderson v. People, 490 P.2d 47, 48 (Colo. 1971), by not objecting to the known closure. The Court held that Anderson remains controlling, and thus petitioner affirmatively waived his public trial right when he did not object to the known closure. The court of appeals’ judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Court Reviewing Batson Challenge Should Only Reverse for Clear Error

The Colorado Supreme Court issued its opinion in People v. Wilson on Monday, June 29, 2015.

Batson Challenges.

In Batson v. Kentucky, 476 U.S. 79 (1986), the U.S. Supreme Court created a three-part analysis to uncover and prevent unconstitutional discrimination in the exercise of peremptory challenges. In the instant case, the court of appeals held that the prosecutor necessarily violated Batson and engaged in purposeful discrimination because the record refutes her asserted race-neutral reason for peremptorily striking a black venire member. However, a discrepancy between a strike proponent’s justification and the record of voir dire sometimes reflects a mistaken recollection rather than purposeful discrimination.

The Supreme Court held that an error in recollection does not compel a finding of purposeful discrimination in contravention of the Equal Protection Clause as interpreted in Batson. Rather, the Batson analysis requires the trial court to assess the credibility of the proponent of a peremptory strike and determine whether to believe her race-neutral explanation. Unless the opponent of the strike can prove purposeful discrimination, the trial court should deny the Batson challenge. Because the trial court in this case did not clearly err by accepting the prosecutor’s race-neutral explanation, the Court reversed the judgment of the court of appeals.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Challenges to Water Plan Failed to Allege or Establish Injury

The Colorado Supreme Court issued its opinion in Concerning the Office of the State Engineer’s Approval of the Plan of Water Management for the Special Improvement District No. 1 of the Rio Grande Water Conservation District: San Antonio, Los Pinos and Conejos River Acequia Preservation Association v. Special Improvement District No. 1 of the Rio Grande Water Conservation District on Monday, June 29, 2015.

Water Management Plans—Groundwater Management Plans—Retained Jurisdiction of Water Management Plans.

Objectors invoked the water court’s retained jurisdiction under CRS § 37-92-501(4)(c) over a plan of water management to raise challenges to an annual replacement plan developed pursuant to that plan of water management. The Supreme Court held: (1) the water court correctly rejected challenges raising issues decided by the water court in a prior decree and approved by this Court in San Antonio, Los Pinos, and Conejos River Acequia Preservation Association v. Special Improvement District No. 1, 270 P.3d 927, 931–32 (Colo. 2011); (2) an annual replacement plan need not be stayed pending resolution of objections; (3) the annual replacement plan’s identification of Closed Basin Project water was a suitable and adequate source of replacement water; and (4) the annual replacement plan’s treatment of augmentation plan wells did not violate the plan of water management, and its failure to include a separate list of augmentation plan wells did not render the annual replacement plan invalid. The Court affirmed the water court’s pretrial orders and its judgment and decree upholding the annual replacement plan.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Attorney Fees Awarded for Vindication of Rights Pursuant to C.A.R. 39.5

The Colorado Supreme Court issued its opinion in St. Jude’s Co. v. Roaring Fork Club, L.L.C. on Monday, June 29, 2015.

Water Law—Beneficial Use.

St. Jude’s Co. appealed directly to the Supreme Court from a consolidated judgment of the water court in favor of Roaring Fork Club, L.L.C. (Club). With regard to the Club’s two applications for water rights, the water court granted appropriative rights for aesthetic, recreation, and piscatorial uses; approved the Club’s accompanying augmentation plan; and amended the legal description of the Club’s point of diversion for an already-decreed right. With regard to the separate action filed by St. Jude’s Co., the water court denied all but one of its claims for trespass; denied its claims for breach of a prior settlement agreement with the Club; denied its claims for declaratory and injunctive relief concerning its asserted entitlement to the exercise of powers of eminent domain; quieted title to disputed rights implicated in the Club’s application for an augmentation plan; and awarded attorney fees in favor of the Club according to the terms of the settlement agreement of the parties.

The Supreme Court reversed the water court’s order decreeing appropriative rights because the Club failed to demonstrate an intent to apply the amount of water for which it sought a decree to any beneficial use as contemplated by either the Colorado Constitution or statutes. The Court affirmed the remaining rulings of the water court, finding that the water court did not misinterpret the various agreements at issue or other governing law, make any clearly erroneous factual findings, or abuse its discretion concerning discovery matters or the award of attorney fees. Finally, the Court granted the Club’s request for appellate attorney fees and remanded the matter to the water court for a determination of the amount of those fees.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 6/30/2015

On Tuesday, June 30, 2015, the Tenth Circuit Court of Appeals issued three published opinions and three unpublished opinions.

United States v. Lujan-Lopez

Colburn v. Patton

Williams v. Ezell

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.