April 24, 2019

Archives for January 30, 2019

Annual Update to Colorado Model Criminal Jury Instructions Released

On Tuesday, January 29, 2019, the Colorado State Judicial Branch announced the release of the Colorado Supreme Court’s annual update to the Model Jury Instructions for Criminal Trials. The update incorporates new legislation and published case law that has been announced since the last update. The update includes revisions to the instructions concerning complicity and judicial notice.

The Model Jury Instructions for Criminal Trials are available here for download in PDF and Microsoft Word format. For questions concerning the Model Jury Instructions for Criminal Trials, email the committee.

Colorado Court of Appeals: Denver Manager of Safety May Authorize a Designee to Hire, Terminate, and Discipline Employees

The Colorado Court of Appeals issued its opinion in Roybal v. City & County of Denver on Thursday, January 24, 2019.

Municipal Law—Termination—Charter of the City and County of Denver—Designated Authority.

Roybal was a deputy sheriff with the Denver Sheriff Department (DSD). After an investigation, the Department of Safety’s Civilian Review administrator (the administrator) determined that Roybal had violated multiple rules, which warranted disciplinary action, and terminated his employment. Roybal appealed the termination to a career service hearing officer, who affirmed the termination, and then to the City and County of Denver’s Career Service Authority Board (Board), which affirmed the hearing officer’s decision. Roybal appealed to the district court, which affirmed the Board’s order.

On appeal, Roybal contended that the district court erred in affirming the Board’s decision and order. He argued that under the Charter of the City and County of Denver (Charter), the authority to discipline and terminate DSD employees rests solely with the manager or the deputy, not the administrator, and therefore his termination was void as an ultra vires act. The safety manager may authorize a designee within the department, other than the deputy manager of safety, for the purposes of hiring, disciplining, and terminating DSD employees. Therefore, the Board did not err when it concluded that (1) the Charter and the Career Service Rules (CSR) do not limit the manager’s ability to designate authority solely to the deputy, and (2) the manager was permitted to delegate disciplinary authority to the administrator.

Roybal also argued that (1) two division chiefs were required to be at his hearing, and only one was present; and (2) the sheriff failed to initiate the discipline by written recommendation to the manager. Roybal claimed that in making these procedural errors, the Board effectively created a new CSR without engaging in rulemaking and applied the rule retroactively to his case to excuse the DSD’s violations of its own policies. Roybal asserted that these errors require reversal of his termination and that the Board erred in concluding otherwise. Here, the Board’s mention of existing CSR 16-72(D) was limited to explaining its reasoning in concluding that trivial deviations from pre-disciplinary regulations do not warrant the reversal of a termination decision. Simply discussing and implementing the policy behind the rule does not implicate quasi-legislative rulemaking by the Board. The Board did not err in finding that Roybal received a fair pre-disciplinary process, and any procedural irregularities are trivial.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: If More than Six Years Have Elapsed Since Entry of Judgment, Judgment Creditor Must Revive Judgment Prior to Asserting Lien

The Colorado Court of Appeals issued its opinion in Security Credit Services, LLC v. Hulterstrom on Thursday, January 24, 2019.

Civil Procedure—Creditors and Debtors—Judgments—Judgment Liens—Revival.

In 2010, the district court entered a money judgment in favor of plaintiff. In 2017, Marshall Recovery II LLC (Marshall) filed notice with the district court that it had purchased the money judgment from plaintiff. Soon thereafter, but more than six years after entry of the judgment, Marshall moved under C.R.C.P. 54(h) to revive the judgment. The district court denied the motion.

On appeal, Marshall argued that the trial court erred in denying its request to revive the judgment. A creditor may obtain a judgment lien at any time during the 20-year life of the judgment, but if more than six years have passed since entry of the judgment, the creditor must first revive the judgment and record the transcript of the revived judgment. This is true whether or not the judgment creditor previously obtained a judgment lien. Here, not more than 20 years had passed since the judgment entered, so Marshall was entitled to revive the judgment to obtain a judgment lien.

The order denying the motion was reversed and the case was remanded to address the motion

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Defendant Charged with Criminal Mischief Entitled to Self-Defense Jury Instruction

On Thursday, January 24, 2019, the Colorado Court of Appeals issued its opinion in People v. Coahran.

Criminal Mischief—Affirmative Defense—Self-Defense—Use of Physical Force in Defense of Person.

Coahran and her ex-boyfriend had an argument during which Coahran kicked the ex-boyfriend’s car door, causing damages. Coahran was charged with criminal mischief. She argued in a pretrial conference that she had kicked the door in self-defense. The trial court determined that self-defense wasn’t available for her mischief charge because her use of physical force was directed at physical property rather than a person. Coahran was convicted of criminal mischief and ordered to pay restitution.

On appeal, Coahran asserted that the trial court improperly instructed the jury on self-defense. When an individual uses force to defend herself from the use or imminent use of unlawful physical force, she is allowed to take those actions that are reasonably necessary to do so. Therefore, a defendant charged with criminal mischief may be entitled to a jury instruction on self-defense as an affirmative defense under C.R.S. § 18-1-704(1) where a defendant is charged with a property crime, uses force to defend herself from the use or imminent use of unlawful physical force by another, and takes only those actions that are reasonably necessary to do so, whether those actions are upon the other person directly or indirectly. Here, according to Coahran’s testimony, the ex-boyfriend grabbed her wrist when she tried to walk away. She asked the ex-boyfriend twice to let her go, and he refused. Even though they were in a public parking lot, Coahran worried that the situation would escalate, so she kicked the car door in an effort to get away. Under these circumstances, there was sufficient evidence presented to support a self-defense instruction. Because the trial court didn’t properly instruct the jury on self-defense as an affirmative defense, the prosecution didn’t bear the burden of disproving self-defense, and Coahran was deprived of her right to possible acquittal on that ground. The court’s error was not harmless beyond a reasonable doubt.

Coahran also argued that the evidence was insufficient to support the damage amount necessary to sustain her conviction. The prosecution presented a repair shop estimate and the testimony of the ex-boyfriend and a police officer on the amount of damage to the car door. This evidence was sufficient to sustain Coahran’s conviction of felony mischief, and she may be retried on this charge.

The conviction was reversed, the restitution order was vacated, and the case was remanded for a new trial.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 1/29/2019

On Tuesday, January 29, 2019, the Tenth Circuit Court of Appeals issued three published opinions and six unpublished opinions.

Jenkins v. Chance

United States v. Johnson

National Labor Relations Board v. Wolf Creek Nuclear Operating Corp.

Deardorff v. Commissioner, SSA

Nazario v. Allbaugh

Robinson v. Doe

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