Court Opinions: Colorado Court of Appeals Opinions for June 8

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

State of Colorado  v. International Association of Firefighters, Local 1290

The Colorado Court of Appeals unanimously affirmed an order in part, reversed in part and remanded a case connected to Elijah McClain.

The case arose from investigations by the state of the Aurora Police Department and Aurora Fire Rescue after the death of McClain on Aug. 30, 2019. McClain died six days after an encounter with police where Aurora Fire Rescue personnel injected him with ketamine to sedate him.

In September 2021, the state of Colorado through Attorney General Phil Weiser released a report pursuant to the public integrity statute, Colorado Revised Statute 24-31-113, finding the Aurora Police Department and Fire Rescue engaged in a pattern and practice of illegal conduct.

The report found the police department had a pattern and practice of racially biased policing, using excessive force and failing to record required information about civilian encounters. The report also concluded Aurora Fire Rescue had a pattern and practice of illegally administering ketamine. The report noted individuals were routinely given ketamine in doses exceeding the maximum allowed by protocol and, once sedated, some people weren’t properly monitored, placing them at risk of life-threatening complications.

After the state released its report, the state and the city negotiated for two months and crafted a consent decree to address and remediate the state’s findings under the supervision of an independent monitor.

The consent decree established goals that included reducing racial bias in policing and creating a culture of enforcement that prioritized de-escalation. It outlined procedures that the city needed to follow, in consultation with the independent monitor, to adopt new policies and training. The decree doesn’t dictate the details of implementation, which the city would develop over a two-year period. 

Many of the decree’s requirements are specific to the Aurora Police Department. For Aurora Fire Rescue, the decree requires changes to procedures for using chemical sedatives. The decree acknowledged Aurora Fire Rescue stopped using ketamine in the field in September 2020 and the city and Aurora Fire Rescue stated they don’t intend to use ketamine again.

According to the appeals court opinion, if Aurora Fire Rescue does want to resume using ketamine, the decree provides it must first submit a medical protocol to the independent monitor and develop a procedure for analyzing incidents of ketamine use. Aurora Fire Rescue must also ensure its use of any other chemical sedatives complies with applicable law and develop a process to review their use periodically. And the policies that govern coordination between the Aurora Police Department and Fire Rescue need to ensure Aurora Fire Rescue uses chemical sedatives only under its own medical protocols and not at the suggestion of the Aurora Police Department.

The decree also required Aurora Fire Rescue to review its recruitment and hiring programs to make sure it attracts a diverse, qualified workforce. The process for hiring entry-level firefighters, which was handled by the Aurora Civil Service Commission before the decree, needed to be revised to give Aurora Fire Rescue a bigger role in hiring.

The Civil Service Commission, which has certain responsibilities for employment matters involving Aurora Fire Rescue personnel, needed to consider changes to its promotion process and revise its rules governing employee discipline to reduce the time involved in resolving disciplinary cases, require more detail in written disciplinary decisions and make the process clearer to the public.

According to the appeals court opinion, in November 2021, the state filed a civil complaint against the city of Aurora, seeking to “enjoin Aurora Fire from engaging in a pattern or practice of using ketamine or other chemical sedatives . . . in violation of the law.”  At the same time, the state and city submitted a joint motion seeking entry of the proposed consent decree.

In December 2021, the International Association of Firefighters Local 1290, which represents the firefighters and emergency medical technicians of Aurora Fire Rescue and advocates for its members in their employment, moved to intervene as a defendant in the civil case, either as of right or permissively under Colorado Rule of Civil Procedure 24. The union asked the court to not make a final decision on the consent decree until it resolved the union’s motion. 

The next day, the court approved the consent decree without addressing the motion. Later in December, the union moved to stay the motion to allow it time to discuss its concerns with the state and city. The court granted the motion to stay.

Three months later, the union filed a renewed motion to intervene. The state and city filed joint opposition, arguing the public integrity statute doesn’t allow intervention pursuant to Rule 24 and, in any event, the union failed to satisfy the requirements for intervention either as of right or permissively under Rule 24.

The court denied the union’s motion. As for the union’s request to intervene as of right, the court found the union didn’t have an interest in the litigation and, even if it did, its interest wouldn’t be impaired if it wasn’t allowed to intervene. The court didn’t address whether the public integrity statute barred intervention or the union’s request for permissive intervention.

The union appealed, contending the district court reversibly erred by denying the union’s request to intervene as a matter of right; by failing to address the union’s request for permissive intervention; and by approving the consent decree while the union’s initial motion to intervene was pending. The state and city contended the public integrity statute bars intervention and, even if the statute allowed intervention, the district court didn’t err denying the union’s motion to intervene and approving the consent decree.

The Colorado Court of Appeals found the public integrity statute allows the attorney general to bring a civil suit against a government authority when they have a reasonable cause to believe the governmental authority has engaged in a pattern or practice of conduct that deprives people of their rights, privileges or immunities protected by law.

The Colorado Court of Appeals concluded, based on the plain language of the statute and how federal courts addressed motions to intervene in cases brought under a similar federal statute, the public integrity statute doesn’t bar intervention.

The appeals court further concluded the district court didn’t err denying the union’s motion as of right under Rule 24(a), but it erred in failing to address the union’s request for permissive intervention under Rule 24(b). 

The appeals court affirmed the portion of the district court’s order denying the union’s motion to intervene as of right, reversed the portion of the order denying without addressing the union’s motion for permissive intervention and remanded the case to district court to make findings and issue a ruling under Rule 24(b). 

People v. Babcock

The Colorado Court of Appeals unanimously affirmed an order involving restitution.

On Dec. 19, 2019, Zachary Babcock pleaded guilty to child abuse resulting in serious bodily injury as part of a deferred judgment and sentence agreement. When the court accepted the plea, it reserved restitution for 91 days. On March 10, 2020, 82 days later, prosecutors filed their motion imposing restitution with supporting documentation requesting $12,258.83 for medical bills.

On March 18, 2020, 90 days after the court accepted the plea, defense counsel objected to the restitution request and asked a restitution hearing be set in June, which would have fallen outside the 91-day period because of “the current pandemic the world is facing.” The following day, the trial court set the hearing for June 11, 2020. The June hearing was continued because of COVID-19. The hearing was eventually held Aug. 14, 2020, and the trial court imposed $12,258.83 in restitution.

Babcock appealed the trial court’s restitution order, asserting the trial court lacked the authority to enter a restitution order more than 91 days after sentencing without a timely and express finding of good cause to extend that deadline.

Prosecutors contended Babcock waived his right to challenge the timeliness of the restitution order by requesting a hearing date outside the 91-day period before the expiration of the deadline.

The Colorado Court of Appeals concluded a defendant can waive the right to have restitution determined within the statutory time constraints and Babcock did so requesting a hearing outside the 91-day period. The appeals court also addressed Babcock’s challenge to the sufficiency of evidence to support the restitution award and concluded the appeals court concluded it was sufficient.

The appeals court affirmed the restitution order.

People v. Bialas

The Colorado Court of Appeals unanimously reversed a judgment and remanded a case connected to removing people from a courtroom.

In 2017, a jury found Michelle Bialas guilty of different charges related to an alleged attack on her ex-boyfriend James Bynum. A division of the appeals court reversed and the prosecution retried Bialas in 2021.

At the second trial, the jury and viewing public were dispersed throughout the courtroom as a precaution against COVID-19. Some of the members of the jury sat in the front rows of the public viewing gallery, while the public occupied the back row. Additional members of the public watched the trial in a separate courtroom via Webex, which provided a live video and audio stream of the proceedings. 

Bialas testified at trial and during her direct examination the court and counsel held a bench conference outside the courtroom. According to a footnote, because jury members were dispersed around the courtroom to keep social distancing, bench conferences were conducted outside the courtroom to avoid jurors overhearing.

When the judge and attorneys returned, a juror passed the court a note saying the spectators behind them were discussing the history of the case and the jurors could hear them. 

The court ordered the jury and public out of the courtroom and brought in individual jurors to be questioned on camera about what was heard and how it might affect the trial. The questioned jurors said they overheard there had been a previous trial with a guilty verdict and the commenting spectators believed the current trial was biased in favor of Bialas. They contended it was “obvious that [the spectators] were here for Jim [Bynum].” 

Neither party requested a mistrial, but the defense counsel asked Bialas’ family be allowed to return to the courtroom because the questioned jurors indicated it was members of Bynum’s family, not members of Bialas’ family, who were accused of making the inappropriate comments. 

Despite the prosecution expressly not objecting to Bialas’ family being in the courtroom and agreeing they hadn’t acted inappropriately, the district court denied the request. The court added all spectators were banned from the courtroom for the rest of the day but could watch via Webex. The court added it wasn’t going to inquire from each of the spectators who was at fault. The court noted the best, easiest and uniform rule was that there would be no further spectators for the rest of the trial in the courtroom.

According to the appeals court opinion, the public watched the rest of the trial, including the remainder of Bialas’ direct examination, cross-examination and re-direct and both parties’ closing arguments via live video and audio stream. The jury convicted Bialas of second-degree assault and violation of a protection order.

Bialas appealed, arguing the district court violated her right to a public trial. The challenge required the appeals court to consider whether a court’s order removing the public from the physical courtroom, while allowing the trial to be observed via live video and audio stream, constituted a partial closure violating a criminal defendant’s right to a public trial. The appeals court concluded it does.

Bialas argued the district court’s removal of her family from the courtroom, despite being able to view and hear it elsewhere, was a nontrivial partial closure of the courtroom and the closure wasn’t justified under the U.S. Supreme Court case Waller v. Georgia and thus the closure violated her right to a public trial under the U.S. and Colorado Constitution. The appeals court agreed. 

According to a footnote, Bialas didn’t challenge the initial arrangement, allowing the family members from both sides to watch within the courtroom, but requiring some members of the public to view the trial from another room, if necessary due to a lack of space and the necessity of social distancing. 

The appeals court reversed Bialas’ conviction and remanded for a new trial.

Marriage of James

The Colorado Court of Appeals unanimously dismissed an appeal involving a dissolution of a marriage.

In December 2020, David James petitioned for the dissolution of marriage to Tahlia James. The parties consented to a magistrate presiding over the permanent orders hearing held Oct. 5, 2021. The magistrate issued written permanent orders Nov. 3, 2021. Later that same day, David James filed a C.R.C.P. 59 motion for the magistrate to reconsider the permanent orders, alleging the magistrate ignored his objection to the proposed form of permanent orders filed by Tahlia James.

On Dec. 20, 2021, a district court judge issued an order dismissing David James’ C.R.C.P. 59 motion for a lack of jurisdiction. On Feb. 7, 2022, 49 days later, David James filed his notice of appeal, seeking review of the permanent orders.

The Colorado Court of Appeals issued an order requiring David James to show cause for why the appeal shouldn’t be dismissed given the notice of appeal was filed more than 49 days after the entry of permanent orders. David James filed a response to the show cause order and a motions division of the appeals court deferred consideration of the timeliness of David James’ appeal to the Colorado Court of Appeals.

The Colorado Court of Appeals concluded under the Colorado Rules for Magistrates, specifically C.R.M. 5(a) and applicable Colorado Appellate Rules, a party in a proceeding before a magistrate acting with the parties’ consent cannot file a C.R.C.P. 59 motion for reconsideration and thereby toll the 49-day deadline for filing a notice of appeal under C.A.R. 4(a)(3). 

The appeals court found the appeal of the permanent orders of the magistrate who was acting with consent of the parties was untimely because David James filed the notice of appeal more than 49 days after the entry of the magistrate’s permanent orders and since his C.R.C.P. 59 motion wasn’t permitted under C.R.M. 5(a), it didn’t toll the 49-day deadline.

The appeals court dismissed the appeal.

Editor’s note: The case heading for State of Colorado v. International Association of Firefighters, Local 1290 was updated June 8 to be more specific.

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