September 22, 2018

Archives for August 3, 2018

Colorado Court of Appeals: District Court Erred in Ruling Defendant Knew of Bond Condition Prohibiting Travel

The Colorado Court of Appeals issued its opinion in People v. Donald on Thursday, July 26, 2018.

Criminal Law—Bond Conditions—Failure to Appear—Mens Rea.

Defendant was arrested and charged with a felony. During his court appearance, the judge set bond and announced his court date. Defendant subsequently posted bond and was released from jail. The bond paperwork provided that, as a condition of his release, defendant was prohibited from leaving Colorado without court approval. Defendant failed to appear in court, and he was arrested in Mississippi five weeks later. A jury convicted defendant of knowingly violating a condition of bond by leaving Colorado and knowingly failing to appear for trial or other proceedings.

On appeal, defendant contended that the prosecution failed to establish beyond a reasonable doubt that he knew of his court date and knowingly failed to appear. However, defendant was present when the court announced the court date, and there was sufficient evidence to permit the jury to reasonably infer that defendant was aware of the court date and that he knowingly failed to appear.

Defendant also contended that the prosecution failed to establish beyond a reasonable doubt that he knew of the bond condition that prohibited him from leaving Colorado. Here, there was no evidence that the bond condition was announced or discussed in open court; it was set forth only in the bond paperwork. The prosecution failed to present any evidence showing that defendant had personally signed the bond paperwork or that he was otherwise aware of the bond condition that prohibited out-of-state travel. Therefore, the evidence was insufficient to establish defendant’s knowledge of the specific bond condition therein beyond a reasonable doubt.

The judgment and sentence were affirmed in part and vacated in part.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court Erred in Refusing to Grant Continuance

The Colorado Court of Appeals issued its opinion in People v. Senette on Thursday, July 26, 2018.

Criminal Law—Witness—Subpoena—Motion for Continuance—Bench Warrant.

The prosecution charged defendant with aggravated robbery and menacing against a single victim, M.T. When M.T., who was a necessary witness and was under subpoena, did not appear at trial, the prosecution requested that the trial court issue a bench warrant and grant a brief continuance to secure the M.T.’s attendance. The trial court denied both requests and, at defendant’s request, dismissed the charges.

On appeal, the People argued that the trial court erred by denying its motion for a continuance and dismissing the case. The trial court abused its discretion in denying the continuance because it (1) misapplied the law regarding the issuance of a bench warrant as a remedy to procure the attendance of a missing witness, and (2) failed to consider the factors relevant to the prosecutor’s motion to continue. Those factors included whether the prosecutor was diligent in securing the witness’s attendance, whether a continuance would be effective in securing the witness’s attendance, and the prejudice that a continuance would cause both parties.

The People also contended that the trial court erred in dismissing the charges after denying the continuance. Because the trial court erred in denying the motion for continuance, and the dismissal of the charges was a direct result of that erroneous decision, the trial court erred in dismissing the case.

The order was reversed and the case was remanded.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: No Violation of Open Meetings Law in Establishing Process to Refer Physicians for Disciplinary Investigations Related to MMJ Prescriptions

The Colorado Court of Appeals issued its opinion in John Doe No. 1-9 v. Colorado Department of Public Health and Environment on Thursday, July 26, 2018.

Open Meetings LawState Public BodyAdministrative Procedure Act—Colorado Open Records Act—Attorney Fees and CostsMedical MarijuanaC.R.S. § 24-4-106(8)—Final Agency Action.

The Colorado Constitution authorizes physicians to recommend the medical use of marijuana for patients with debilitating medical conditions. The Colorado Department of Public Health and Environment (CDPHE) is designated as “the state health agency” to administer Colorado’s medical marijuana program and is required to promulgate rules to administer the program. CDPHE created the medical marijuana registry to meet its requirement to establish a confidential registry of patients who are entitled to receive medical marijuana cards.

CDPHE has discretion to refer physicians to the Colorado Medical Board (the Board) for violations of medical marijuana laws. The Board, which is entirely separate from CDPHE and is housed under the Department of Regulatory Agencies, determines whether such violations exist.

Wolk, the CDPHE executive director, and Riggins, the state registrar and director of the Medical Marijuana Registry, (collectively, the Department) referred John Does 1 through 9 (collectively, the Doctors) to the Board for investigation of unprofessional conduct involving the Doctors’ certification of patients for the use of medical marijuana. The Department based its referrals on its medical marijuana policy (the Policy).

The Doctors then submitted Colorado Open Records Act (CORA) requests to the Department and the Board, seeking public records about, among other things, the Policy. The Department responded to the request, but withheld certain documents. The Doctors then brought this action against the Department and the Board, alleging violations of Colorado’s Open Meetings Law (OML) and the State Administrative Procedure Act (APA) and seeking injunctive and declaratory relief. The district court dismissed the claims against the Board and granted summary judgment on the Doctors’ OML and APA claims against the Department and, as a result, declared the Policy void.

On appeal, the Department argued for reversal of the summary judgment, contending that the entire agency cannot constitute a “state public body” under the OML, so the OML doesn’t apply. Under the OML’s plain language, the Department is not a state public body. Thus, the district court erred in granting summary judgment on the Doctors’ OML claim against the Board.

The Doctors challenged the dismissal of their OML claim against the Board. However, they did not allege that the Board had authority to enact or implement the Policy, or that it had enacted the Policy. Thus, even accepting as true the Doctors’ allegations that Board employees attended meetings to discuss and develop the Policy, the complaint failed to allege facts showing a link between the meetings and the Board’s policy-making powers. Thus, the Board is not subject to the OML.

The Doctors also challenged the denial of their request for attorney fees and costs under the OML. Given the case disposition, the court of appeals rejected the request.

The Department also argued that the district court erred in finding that the APA applied to the Department referrals because they are not a “final agency action” under the APA. Subject to an exception under C.R.S. § 24-4-106(8), only final agency action is subject to review. The referrals were not final; they didn’t determine anything, and it is uncertain whether an investigation will result in a finding of a violation or any other action. The Doctors sought to enjoin the referrals under the C.R.S. § 24-4-106(8) exception, which allows interlocutory review of agency actions in which a party will suffer irreparable harm. But to fit under the exception, the referrals must be a “proceeding” under the APA, which they are not. The district court erred in granting summary judgment on the Doctors’ APA claims against the Department based on the referrals.

The Doctors further argued that the Policy itself was a final agency action that did not comply with the APA’s rulemaking requirements. Here, the Policy was not binding and did not confer any power the Department did not already have, so it fell within the APA’s exception to the notice and hearing rulemaking requirements.

The Doctors also objected to the dismissal of the APA claims against the Board. However, they developed no argument in their opening brief about how the APA applies to the Board, and their discussion of the APA in their reply brief was too late.

The Doctors next argued that the district court erred in denying an award for attorney fees and costs associated with their request to obtain access to public documents under CORA. A party requesting an order to show cause for the disclosure of public records is not entitled to attorney fees and costs if the requesting party has filed a lawsuit against a state public body and the records relate to the pending litigation and are otherwise discoverable under the rules of civil procedure, which was the case here. The district court did not err in denying attorney fees and costs under CORA.

The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 8/2/2018

On Thursday, August 2, 2018, the Tenth Circuit Court of Appeals issued no published opinion and seven unpublished opinions.

Fletcher v. Schwartz

Arterberry v. Berryhill

Anderson v. Hebert

Otero v. Commissioner

Robinson v. American Airlines, Inc.

Rife v. Jefferson

United States v. Burr

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