Court Opinions: Colorado Court of Appeals Reverses Decision Allowing Certain Immigrant Arrests and Detentions

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

People v. Rubier

In this case, the Colorado Court of Appeals examined whether a trial court errs by extending the prosecutor’s deadline to present restitution information within the time specified when the prosecutor neither requests an extension of time for submission of the information nor demonstrates that the restitution information was unavailable for the sentencing hearing. 

The appeals court held that such a ruling constitutes error, but, in this case, the error is harmless because the court entered the restitution order within the 91-day deadline and the record shows that the extension of time didn’t result in prejudice to the defendant. 

But the appeals court reversed the restitution order entered against Eredelio Martinez Rubier for another reason: the trial court erred by proceeding with a second restitution hearing in Martinez Rubier’s absence without showing that he had waived his right to attend. 

The appeals court reversed the restitution order and remanded the case. 

Nash v. Mikesell 

Berck Nash, Joanna Nash, Rodney Saunders, Paul Michael Stewart and Janet Gould appealed the declaratory judgment entered in favor of defendant Jason Mikesell, the elected sheriff of Teller County, determining that Colorado law authorizes Mikesell to enter into an agreement with federal authorities to perform certain immigration functions. 

Federal immigration authorities, through U.S. Immigration and Customs Enforcement, may request that state or local law enforcement authorities, like the Teller County Sheriff’s Office, continue to detain a person—who is otherwise eligible for release from state or local custody—when ICE believes the person is removable from the U.S. for violation of immigration laws. 

A “287(g) agreement” is a written agreement between ICE and a state, or any political subdivision of a state, under which ICE trains and certifies local law enforcement officers to perform certain immigration enforcement functions under the supervision of an ICE officer. 

At issue in this appeal is whether certain activities carried out under the Teller County Sheriff’s Office’s 287(g) agreement with ICE are prohibited by the Colorado Constitution. The Colorado Court of Appeals concluded the Colorado Constitution prohibits the arrests and detentions purportedly authorized by the agreement. The appeals court didn’t decide whether the agreement violated the Colorado Constitution. 

The appeals court reversed the judgment and remanded the case. 

Telluride Locals v. Kavannaugh

In this case, the Colorado Court of Appeals considered whether the rezoning of land covered by a planned unit development is a valid subject of a citizen’s initiative.

In 2019, Brighton Properties LLC, one of the plaintiffs, filed two proposed initiated ordinances to be submitted to a vote of the electorate. The first ordinance would amend the Telluride land use code by creating a new land use classification. The second ordinance would rezone a lot and change its land use to the new classification. 

Telluride accepted the first initiative but rejected the second. Between 2019 and 2020, Brighton submitted different versions of the second ordinance, but the town rejected each one. 

In essence, Telluride gave two reasons for the rejections, according to the opinion. First, the lot ordinance was not the proper subject of an initiative because it was not legislative in nature. Second, the lot ordinance would amend a planned unit development, and any such amendment must be approved by all lot owners within it. 

Brighton then filed a lawsuit at issue against Telluride’s clerk. Pursuant to an order of the district court, all of the PUD lot owners were added as defendants by Brighton or allowed to intervene as defendants.  

The district court granted summary judgment in favor of Telluride, concluding the initiative was administrative, not legislative, in nature. The district court was particularly concerned that, if Telluride’s voters passed the lot ordinance, it would “nullify” the other lot owners’ statutory and contractual rights to enforce the provisions of the PUD plan. Brighton appealed.

The Colorado Court of Appeals agreed with Brighton’s argument that the district court erred by concluding that the proposed initiative to rezone the lot within the PUD was administrative in character rather than legislative and a valid exercise of the initiative power. 

The appeals court also found that it was premature for it to determine if or how the proposed ordinance would affect the other owners’ rights under the PUD. That question, according to the opinion, needs to be answered only if the ordinance is actually adopted. If the ordinance is adopted, the appeals court held that the other lot owners may assert whatever rights they believe they possess to challenge the validity of the ordinance on its merits. 

The appeals court reversed the judgment and remanded the case. 

In re Marriage of McClure  

In this post-dissolution of marriage proceeding involving Riley Sinclair McClure and Jane Elizabeth Townsley, the Colorado Court of Appeals was asked to resolve a novel question in Colorado: whether a maintenance award that effectively results in the payor using some portion of his monthly social security retirement benefits to pay the other party violates the Social Security Act’s anti-assignment provision. 

The appeals court held that the district court may consider social security retirement benefits as included in the payor’s gross income when determining maintenance. 

The appeals court affirmed.

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