August 19, 2019

Archives for January 24, 2017

Colorado Supreme Court: Announcement Sheet, 1/23/2017

On Monday, January 23, 2017, the Colorado Supreme Court issued one published opinion.

People v. Crouse

The summary for 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Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions.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: Controlled Substances Act Preempts State Medical Marijuana Redistribution Law

The Colorado Supreme Court issued its opinion in People v. Crouse on Monday, January 23, 2017.

Robert Crouse was arrested by the Colorado Springs Police Department for cultivating and possessing marijuana with the intent to manufacture. He was charged with one felony count of cultivation of more than thirty marijuana plants and one felony count of possession of between five and one hundred pounds of marijuana with intent to distribute. At trial, Crouse asserted that he was a registered medical marijuana patient, and that state law authorized his cultivation and possession of medical marijuana. The jury acquitted him of both charges.

After trial, Crouse requested that the court order the police to return the marijuana plants and marijuana pursuant to article XVIII, § 14(2)(e) of the Colorado Constitution, which provides that “marijuana and paraphernalia seized by state or local law enforcement officials from a patient . . . in connection with the claimed medical use of marijuana shall be returned immediately upon . . . the dismissal of charges, or acquittal.” The People opposed the motion, arguing the provision conflicts with the federal Controlled Substances Act (CSA) and is therefore preempted. The district court ruled in Crouse’s favor and ordered the return of the property.

The People appealed, and the Colorado Court of Appeals affirmed the district court in a split opinion. The court of appeals ruled that returning Crouse’s property would not violate the CSA because the statute expressly provides immunity for officers lawfully engaged in the enforcement of any law relating to controlled substances. The Colorado Supreme Court granted certiorari.

On appeal, the supreme court found that the return provision necessarily required officers to violate the CSA, and therefore it “positively conflicts” with federal law. The supreme court dismissed the court of appeals’ reasoning that the officers were exempted by the language in 21 U.S.C. § 885(d) only if they were “lawfully engaged” in the practice of law enforcement. The court reasoned that because distribution of marijuana is unlawful under the CSA, the exemption would not apply. The court relied on its prior opinion in Coats v. Dish Network, 350 P.3d 849 (Colo. 2015), for the premise that any activity that is unlawful under federal law, though it may be lawful under state law, is unlawful.

The supreme court reversed the court of appeals. Justice Gabriel dissented, joined by Chief Justice Rice and Justice Hood. In his thoughtful dissent, Justice Gabriel opined that the plain language of § 885 immunized the law enforcement officers, and therefore the Colorado Constitution was not preempted by the CSA.

Colorado Rules of Civil Procedure Amended in First Rule Change of 2017

On Monday, January 23, 2017, the Colorado State Judicial Branch announced Rule Change 2017(01), effective January 12, 2017. Rule Change 2017(01) amends several rules of the Colorado Rules of Civil Procedure. The changes to Rules 17, 40, 60, 122, 305.5, and 121 §§ 1-14, 1-19, 1-23, and 1-26, as well as the changes to JDF 1111, are effective immediately. The changes to Rules 33, 103, 403, Form 20, and forms accompanying 103 and 403, are effective March 1, 2017.

The changes to Rule 33 affect pattern interrogatories and responses. The changes are quite extensive. A comment was added to Rule 33 to explain

[1] Pattern interrogatories [Form 20, pursuant to C.R.C.P. 33(e)] have been modified to more appropriately conform to the 2015 amendments to C.R.C.P. 16, 26, and 33. A change to or deletion of a pre-2017 pattern interrogatory should not be construed as making that former interrogatory improper, but instead, only that the particular interrogatory is, as of the effective date of the 2017 rule change, modified as stated or no longer a “pattern interrogatory.”

[2] The change to C.R.C.P. 33(e) is made to conform to the holding of Leaffer v. Zarlengo, 44 P.3d 1072 (Colo. 2002).

Rules 103 and 403 were amended to conform dates to the “Rule of 7” and to provide clarification regarding garnishments. The changes to Rules 103 and 403 are substantially similar. Forms 26, 28, 29, 31, 32, and 33 were also amended. The jurat or Return of Service was removed from each form, and other changes were made to conform to the changes to Rules 103 and 403.

Rule 17 was amended to remove reference to “a married woman.” A citation was updated in Rule 41. Rule 60 was updated to conform to the “Rule of 7.” Section 1-14 of Rule 121 was amended to update the citation to the Servicemembers Civil Relief Act and update the date of the comment. A citation was also updated in Rule 121, § 1-19, and a date was added to the comment.

Rule 121, § 1-23 was amended to add a paragraph (7) regarding bonding over liens. The new paragraph reads:

7. Bonding over a Lien. If a money judgment has been made a lien upon real estate by the filing of a transcript of the judgment record by the judgment creditor, the lien shall be released upon the motion of the judgment debtor or other interested party if a bond for the money judgment has been approved and filed as provided in this section 1-23. The order of the court releasing the lien may be recorded with the clerk and recorder of the county where the property is located. Once the order is recorded, all proceedings by the judgment creditor to enforce the judgment lien shall be discontinued, unless a court orders otherwise.

The comment to § 1-23 was amended to add a date and paragraph numbering. The changes to § 1-26 of Rule 121 also add dates and numbers to the comment, and a new 2017 comment was added to § 1-26.

The amendments to Rule 305.5 also add dates and numbers to the comments, and a new 2017 comment was added regarding the name of the court-authorized e-filing service provider. Rule 122 was changed to update contact information requirements for appointed judges, and to remove language from the affirmation.

JDF 1111, the Sworn Financial Statement, was updated to remove language from the Certificate of Service regarding simultaneous filing of JDF 1104.

A redline of Rule Change 2017(01) is available here. For all the court’s adopted and proposed Rule Changes, click here.

HB 17-1028: Including Domestic Unsworn Declarations in “Uniform Unsworn Declarations Act”

On January 11, 2017, Rep. Yeulin Willett and Sen. Bob Gardner introduced HB 17-1028, “Concerning the ‘Uniform Unsworn Declarations Act’.”

Colorado Commission on Uniform State Laws.
Colorado has adopted the ‘Uniform Unsworn Foreign Declarations Act’, which allows the use of foreign unsworn declarations in a wide variety of situations. The bill expands the uniform law to include domestic unsworn declarations as contemplated by the ‘Uniform Unsworn Declarations Act’.

The bill was introduced in the House and assigned to the Judiciary Committee. It is scheduled to be heard in committee on January 24, 2017, at 1:30 p.m.

HB 17-1037: Allowing the Use of Deadly Force Against an Intruder to a Business

On January 11, 2017, Rep. Justin Everett and Sen. Vicki Marble introduced HB 17-1037, “Concerning the Use of Deadly Physical Force Against a Person who has Made an Illegal Entry Into a Place of Business.”

The bill extends the right to use deadly force against an intruder under certain conditions to include owners, managers, and employees of businesses.

The bill was introduced in the House and assigned to the State, Veterans, and Military Affairs committee.

Tenth Circuit: Unpublished Opinions, 1/23/2017

On Monday, January 23, 2017, the Tenth Circuit Court of Appeals issued two published opinions and six unpublished opinions.

United States v. Dowell

United States ex rel. Hanlon v. Columbine Management Services, Inc.

Sweat v. City of Las Cruces

United States v. Guerrero

United States v. McElroy

Cvancara v. Reams

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