Colorado Supreme Court Returns for September Arguments

the Colorado Supreme Court building
The Colorado Supreme Court will hear its first oral arguments of the fall session next week. Cases to be heard include several criminal matters and a case involving childhood medical bills and medical malpractice. / Law Week file.

The Colorado Supreme Court will be back in session next week. Starting Sept. 14, the justices will hear arguments in a half dozen cases, most of them criminal matters. The court will consider questions about jury strikes, felony DUI and double jeopardy, and whether to abolish the res gestae doctrine. The court will also hear a case about medical malpractice and childhood medical bills that has been closely watched by plaintiffs’ attorneys and health care groups.

In re People v. Kevin Viburg

On Sept. 14, the high court will hear arguments in a criminal case involving DUIs, double jeopardy and the Sixth Amendment.

Kevin Viburg was convicted of misdemeanor driving under the influence in 2016. Following the verdict, the trial court found, by a preponderance of the evidence, that he had three prior alcohol-related driving offenses and elevated Viburg’s misdemeanor to a felony DUI.

A division of the Court of Appeals in 2020 reversed Viburg’s conviction, finding that the prior convictions are elements of the felony DUI offense that must be proved to a jury beyond a reasonable doubt — a conclusion the Supreme Court agreed with later that year in Linnebur v. People. 

But Linnebur didn’t answer the question of whether the state may retry a defendant convicted of misdemeanor DUI for felony DUI. When prosecutors opted to retry Viburg for the felony offense on remand, he moved to dismiss, arguing that double jeopardy, due process and jury trial principles prohibit a second trial. The trial court concluded Viburg’s rights weren’t violated by the successive trial, which was set to begin May 12, 2021. Days before the trial, Viburg petitioned the Supreme Court to prevent the second trial and enter a conviction and sentence for the misdemeanor verdict.

“[T]his Petition will have widespread impact in Colorado, as recognized by the trial court in this case,” Viburg’s public defender wrote in the petition. “Since there have been many reversals under Linnebur, there are many criminal cases in an identical procedural posture to this one.”

The state argues Viburg’s conviction was reversed for a legal trial error and, “[a]s with any reversal for trial error, retrial is not barred by double jeopardy protections.” The prosecution also contends that due process doesn’t prevent retrial when a conviction is reversed due to a statutory interpretation error.

The Supreme Court will also consider whether a second trial is barred by Colorado’s mandatory joinder statute, which requires a prosecutor to bring all known offenses based on the same act or series of acts in a single trial.

Brooke Rojas V. People

In another case to be heard Sept. 14, the Colorado Supreme Court will consider whether to abolish the res gestae doctrine, which allows the admission of evidence of misconduct for which the defendant has not been charged if it is linked in time and circumstances to the charged crime.

Brooke Rojas was charged with theft for misstating her income as zero on an application for food stamps in January 2013. She said she filled out the application while she was unemployed and filed it shortly after getting a restaurant job, but before her first paycheck from the job. She didn’t report the change in income, which exceeded the eligibility threshold in some months between February and July 2013. The Department of Human Services determined that she received more than $5,600 in extra benefits.

The prosecution presented evidence that Rojas also said she had no income when filing an August 2013 food stamps application, despite her continued employment at the restaurant. The court allowed the evidence as “res gestae” without a limiting instruction because, as the state argued, it showed Rojas knowingly misstated her income on the earlier application and shed light on the investigation. During closing remarks, the prosecutor pointed to the August application as proof of intentional deception.

Rojas argued the August application was evidence of uncharged misconduct and asked that it only be admitted with a limiting instruction prohibiting the jury from considering it as character evidence, but the court refused. Rojas contended the later application was irrelevant because what mattered to proving the charges was whether she knowingly misrepresented her income in January, and she asked the court to explain how the August document was related to the case. The court maintained that the application was “part of this case,” and Rojas was convicted

A divided Court of Appeals sided with the state, finding the August application was properly admitted. But Judge David Furman dissented and asked the Supreme Court to consider abolishing the res gestae doctrine, which he said is “vague and unhelpful,” adds nothing to the rules of evidence and threatens to erode existing rules on character evidence.

The Supreme Court will take up that question and address whether Rojas’ August application should have been admissible without a limiting jury instruction.

Rudnicki v. Bianco

On Sept. 15, the high court will hear arguments in a case about childhood medical bills that has been closely watched by plaintiffs’ attorneys and health care groups.

The plaintiff, Alexander Rudnicki, suffered a serious brain injury during birth and incurred nearly $400,000 in medical expenses as a newborn. By the time his parents suspected he had suffered a permanent injury, the two-year statute of limitations for them to sue a health care institution or professional had expired and only the boy could bring the claims. Rudnicki sued Dr. Peter Bianco through his parents and was eventually awarded $4 million by a jury. But his award was later reduced by about $400,000 for his medical bills because, under common law, only his parents own the claims for childhood medical expenses.

Rudnicki argues the court should abandon the common law rule that says damages for medical expenses incurred by a child may only be recovered through a derivative claim by the parents. Rudnicki, now a teenager, also contends he is a real party in interest because he is personally on the hook for reimbursing a private insurer and the state’s Medicaid program for the amount they paid toward his medical expenses.

Bianco argues there is “no sound reason” to reject the common law doctrine. “That rule comports with the bedrock principle of tort law that the person that incurs the expense is entitled to compensation for it and encourages the faster prosecution of claims,” Bianco’s answer brief states. Adopting the “joint ownership” rule that Rudnicki proposes would create an “unworkable standard” for trial courts, Bianco argues, “leaving them to parse among family members who is entitled to which damages.” Bianco also says the Medicaid program’s lien against Rudnicki is invalid and cannot be used to argue the boy incurred the medical expenses as a minor. 

The Court of Appeals agreed with Bianco that Colorado’s Medicaid program doesn’t have a valid lien against Rudnicki’s recovery. The Colorado Supreme Court will review that conclusion and consider whether it should abandon the common law rule barring minors from recovering their childhood medical costs.

Arguments in Rudnicki v. Bianco were originally scheduled for March but were put on hold at the last minute while a bill to abolish the common law rule worked its way through the legislature. However, the bill failed to pass the Senate.

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