Court Opinions – Sep 16, 2019

Colorado Supreme Court
Sept. 9

The Luskin Daughters 1996 Trust v. Young

The Luskin Daughters 1996 Trust appealed from an order of the water court dismissing its complaint for declaratory and injunctive relief, as well as for damages. 

The water court concluded that in the absence of an application for the determination of a water right, the Trust’s claim of interference by the Youngs with its unadjudicated appropriative rights to springs that arise on the Youngs’ land could not proceed before the water court. It therefore granted the Youngs’ motion, pursuant to C.R.C.P. 12(b)(1), (2), or (5), to dismiss.

Because the water court could not provide the trust’s requested relief without the trust first having adjudicated its water rights in accordance with section 37-92-302, the water court’s dismissal of the trust’s complaint was affirmed.

Because the Youngs have successfully defended the dismissal of this tort action on appeal, they are statutorily entitled to their reasonable appellate attorney fees, and the case was remanded to the water court for a determination of the amount of those fees.

Brooks v. People

After a jury found Kyle Brooks guilty of two felonies, the trial court adjudicated him to be a habitual criminal based on his prior felony convictions, including his guilty plea to theft from a person. As a result, the court sentenced him to 24 years in prison. 

Brooks claimed that his prior theft from a person conviction was constitutionally invalid. The Supreme Court was tasked with determining if the record establishes by a preponderance of the evidence whether Brooks understood the elements of theft from a person when he previously pleaded guilty. The Supreme Court concluded that it does. Accordingly, the court held that Brooks’ prior guilty plea to theft from a person was constitutionally valid and affirmed the judgment of the Court of Appeals on different grounds.

Alliance for a Safe and Independent Woodmen Hills v. Campaign Integrity Watchdog

The Supreme Court was asked to clarify two aspects of article XXVIII, section 9(2)(a) of the Colorado Constitution: to construe the term “violation” as that term is used and decide whether the “violation” that triggers section 9(2)(a)’s one-year statute of limitations for private campaign finance enforcement actions can extend beyond the dates adjudicated and penalized in the decision being enforced; and to determine whether the attorney fees provision in section 9(2)(a) is self-executing or whether it must be read together with section 13-17-102(6), C.R.S. (2019), to limit attorney fee awards against a pro se party.

With regard to the first question, the Supreme Court concluded that the term “violation,” as used in the section, refers to the violation as adjudicated and penalized in the decision being enforced. The court concluded that the division erred in perceiving a possible continuing violation under section 9(2)(a). Therefore, the enforcement action in this case was barred by the one-year statute of limitations.

With regard to the second question, the court concluded that section 9(2)(a)’s language stating that “[t]he prevailing party in a private enforcement action shall be entitled to reasonable attorneys fees and costs” is self-executing and that section 13-17-102(6) cannot be construed to limit or nullify section 9(2)(a)’s unconditional  award of attorney fees to the prevailing party. 

The court reversed the division’s contrary determination and conclude that petitioners, Alliance for a Safe and Independent Woodmen Hills and Sarah Brittain Jack, as the prevailing parties in this case, are entitled to an award of the reasonable attorney fees that they incurred in the district and appellate courts in this case. This case is discussed in detail on page 8.

Colorado Court of Appeals
Sept. 12

People v. Burnell

Paul Burnell was living with his parents, John and Arline Burnell, when he got into an argument with John. As the argument went on, John told him to leave and threatened to call the police if he did not. Burnell then took the phone from John, grabbed him by the wrists, and made him sit down on their couch. John, who takes medication that causes him to bruise easily, was left with bruised and cracked skin where Burnell had grabbed him. After spending approximately 30 minutes yelling at John, Burnell gathered some of his belongings and left the house.

John then left to pick up Arline and tell her what had happened. They discussed the matter and first called one of Arline’s colleagues, a psychiatrist and psychologist who was familiar with Burnell, to seek outside input. Several hours after Burnell had left, they called the police and reported the incident.

Burnell was ultimately convicted of third-degree assault of an at-risk victim and harassment and sentenced to three years of supervised probation. 

Burnell appealed, contending that the trial court (1) violated his right to be present when it took the verdict in his absence; (2) erroneously admitted evidence that a medical professional recommended that his parents report him to the police; (3) inadequately responded to a jury question; and (4) improperly denied his motion for a mistrial when the prosecutor referred to his exercise of his Fifth Amendment right to remain silent. 

The Court of Appeals addressed each of his contentions and affirmed.

People v. Mosely 

Clarence Mosely appealed the judgment of conviction entered on a jury verdict finding him guilty of second-degree assault and felony menacing. He contended that the district court violated his right to due process when, in response to a juror’s question, it erroneously instructed the jurors that they need not unanimously agree on the basis on which the prosecution disproved Mosely’s affirmative defense of self-defense. 

The Court of Appeals agreed with that contention and reversed his felony menacing conviction and remanded to the district court for a new trial. The court did, however, affirm the conviction for second-degree assault because the instruction did not apply to that charge and Mosely’s other convictions fail.

People v. Leyba

Furmen Leyba appealed the district court’s judgment of conviction entered on jury verdicts finding him guilty of aggravated robbery and three counts of accessory to first-degree murder. Among other things, he argued that the district court erred by declining to suppress statements he made to police detectives during a two-hour interrogation after he invoked his right to counsel. 

The Court of Appeals concluded that the detectives stopped interrogating Leyba after he invoked his right to counsel and Leyba reinitiated the conversation about the investigation with the detectives. The court therefore affirmed the district court’s decision declining to suppress the statements. Leyba’s remaining contentions fail as well. The Court of Appeals affirmed.

People v. Avila

Is a prospective juror who is employed by the Colorado Office of Prevention and Security’s “fusion center” a “compensated employee of a public law enforcement agency?” The Court of Appeals answered “no,” and after addressing the remaining contentions of defendant, Tina Avila, the court affirmed the judgment of conviction entered on jury verdicts finding her guilty of possessing a controlled substance and resisting arrest.

Packard v. Industrial Claim Appeals Office

In this workers’ compensation action, the Court of Appeals was asked to address whether certain documents constitute a “notice of injury” such that claimant Joseph Packard beat the statute of limitations of the Workers’ Compensation Act of Colorado. 

The Court of Appeals agreed with the Industrial Claim Appeals Office that neither a notice of contest nor a first report of injury satisfies the statute of limitations and that to satisfy the statutory mandate a document must notify the Division of Workers’ Compensation and the opposing party that a claimant is “claiming compensation” within the meaning of the statute. The court affirmed the Panel’s final order.

Kissinger & Fellman v. Affiniti Colorado

The Court of Appeals was asked to decide an attorney-client privilege issue not previously addressed by Colorado courts: What happens when a client is a dissolved corporation and has no one to act on its behalf? Does the attorney-client privilege survive the corporation’s dissolution?  The district court answered that question “no,” and the Court of Appeals agreed. The court concluded that the policy reasons supporting the “posthumous” privilege for an individual client do not support the posthumous privilege for a corporate client. 

The court held that when (1) a corporation dissolves; (2) there are no ongoing post-dissolution proceedings; and (3) no one with the authority to invoke or waive the corporation’s attorney-client privilege remains, the privilege ceases to exist. Therefore, the court affirmed the district court’s order. 

Previous articleColorado’s New ‘Red Flag’ Law for Extreme Risk Protection Orders
Next articleCalifornia Privacy Law Amendments Won’t Dull Its Impact


Please enter your comment!
Please enter your name here