Court Opinions: Colorado Supreme Court Opinions for Sept. 11

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

Medina v. People

The Colorado Supreme Court en banc unanimously affirmed a judgment involving the Alford plea legal concept.

In the U.S. Supreme Court case North Carolina v. Alford, the court upheld a defendant’s guilty plea even though the defendant maintained his innocence while entering the plea. In so doing, that court noted such a scenario (an Alford plea) is functionally identical to a no-contest plea when the defendant “intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt.”

Delano Medina pleaded guilty to felony menacing even though he maintained his innocence of that charge, according to a Colorado Supreme Court opinion. Medina did so in exchange for the dismissal of several other criminal cases. The trial court found Medina’s plea was voluntary, knowing and intelligent. Because Medina agreed to waive the establishment of a factual basis for menacing under Crim. P. 11(b)(6), the trial court didn’t make a finding as to whether strong evidence of Medina’s actual guilt existed. 

Later Medina moved to withdraw his plea as violative of due process, arguing a defendant cannot waive proof of a factual basis when entering an Alford plea. The postconviction court denied his motion and a division of the court of appeals affirmed. 

The Colorado Supreme Court needed to determine whether an Alford plea requires the trial court to make a finding of strong evidence of actual guilt to pass constitutional muster. The state high court concluded there’s no such requirement. 

The Colorado Supreme Court held a defendant may enter an Alford plea while nonetheless waiving the establishment of a factual basis for the charge under Crim. P. 11(b)(6), provided the plea is voluntary, knowing and intelligent. 

The Colorado Supreme Court affirmed the division’s judgment, albeit on slightly different grounds. 

Killmer, Lane & Newman, LLP et al. v. BKP, Inc. et al

The Colorado Supreme Court en banc unanimously reversed a judgment connected to the litigation privilege.

According to the Colorado Supreme Court opinion, in 2018 two law firms, Killmer, Lane & Newman, LLP and Towards Justice (collectively, along with attorney Mari Newman of Killmer, Lane & Newman, “the attorneys”), filed on behalf of former employee and nail technician Lisa Miles and those similarly situated, a federal class action lawsuit. This lawsuit named BKP, Inc.; Ella Bliss Beauty Bar LLC; Ella Bliss Beauty Bar-2, LLC; and Ella Bliss Beauty Bar-3, LLC (the employer), among others. The employer operates three beauty bars in the Denver metro area.

The class action complaint alleged the employer’s business operation was “founded on the exploitation of its workers.” 

In support of the assertion, the class action complaint alleged that, in violation of the Fair Labor Standards Act and the Colorado Wage Claim Act, the employer: “did not pay Lisa Miles or any of the other Service Technicians at any of its three stores any amount whatsoever for the hours that they spent cleaning and performing other mandatory chores. In fact, [the employer] did not employ janitors or a cleaning service and relied exclusively on the unpaid labor of its nail technicians and other Service Technicians to clean the salon.”

The class action complaint also alleged the employer exercised substantial control over the terms and conditions of the service technicians’ work and “co-determined the policies, procedures, and rules, including those relating to compensation, benefits, and hours” governing the service technicians.

The class action complaint also alleged a number of purported illegal pay practices, including a failure to pay for downtime, a failure to pay for pre- and post-shift work, the withholding of tips to compel service technicians to finish their additional “chores,” and failure to pay contractually mandated commissions, all of which resulted in unpaid overtime. 

The class action complaint also alleged the class members were “low-wage, hourly workers . . . who are unsophisticated, are unlikely to seek legal representation, cannot realistically navigate the legal system pro se, and whose small claims make it difficult to retain legal representation if they do seek it.” 

On the same day the federal lawsuit was filed, Newman spoke at a press conference and made the following four statements:

  • “For no pay whatsoever, they [i.e., the service technicians] have to clean the business, including the bathrooms, because Ella Bliss Beauty Bar is simply too cheap to pay its workers the money they deserve.”
  • “Instead of paying the workers for every hour that they work they [i.e., the employer] pick and choose and only pay for the hours they feel like paying.”
  • “It is time for businesses to quit financially exploiting women. Oppression of vulnerable workers remains all too common, and this is a particularly audacious case.”
  • “It’s [i.e., conduct like that alleged is] fairly common in industries that employ populations they think they can take advantage of, like women or immigrants.”

The attorneys issued a press release that, in addition to repeating the third statement quoted above, stated, “Ella Bliss Beauty Bar forced its service technicians to perform janitorial work without pay, refused to pay overtime, withheld tips, and shorted commissions.”

At least two Denver-based television stations aired stories that included video clips from the press conference, and at least four Denver-based news organizations printed stories about the press conference. In each story, the media repeated one or more of the above-quoted statements. 

Exactly one year later, the employer sued the attorneys in Denver district court, asserting the five aforementioned statements were defamatory and intentionally interfered with contractual relations. The attorneys responded by moving to dismiss the employer’s claims pursuant to Colorado Rule of Civil Procedure 12(b)(5), arguing, among other things, the suit was barred by the litigation privilege. Ultimately, the district court dismissed the employer’s complaint without addressing the litigation privilege. 

The employer appealed, and a division of the court of appeals reversed the district court’s dismissal order. The appeals court began its analysis by discussing the litigation privilege, as described in the Restatement (Second) of Torts section 586 of the American Law Institute, case law from Colorado discussing the scope of the litigation privilege and case law from other jurisdictions discussing the extent to which the litigation privilege applies to attorney press statements.

Based on its reading of those authorities, the appeals court assumed without deciding that “even if Colorado were one of the states that would generally deny the litigation privilege to any and all statements that lawyers make to the press,” the cases which the attorneys relied on “would create a narrow exception to that general rule for some statements concerning class action cases.” 

The appeals court concluded, however, this narrow exception didn’t extend to press statements concerning class action lawsuits when, as here, the class action complaint “undermine[d] the need to engage in that form of communication.”

On the last point, the appeals court explained the attorneys’ purported purpose in speaking at the press conference and issuing the press release was to promote their class action and potentially reach service technicians who had worked for the employer so that such technicians “could join the suit as class members or additional class representatives, step forward as witnesses, or pursue the claims themselves outside the class action.”

In the appeals court’s view, however, the class action complaint undermined this stated purpose because it alleged “[t]he exact size of the class will be easily ascertainable from [the employer’s] records” and “[t]he contours of the class will be easily defined by reference to the payroll documents [the employer was] legally required to create and maintain.”

If this were so, the appeals court reasoned, then there would be no “need” to communicate with the public and potential class members and witnesses through the press. Specifically, because “the attorneys had a ‘feasible way’ of figuring out who in their audience had an interest in the case,” given the class action complaint’s allegation that “finding the nail technicians who had an interest in the case would be ‘easy,’” the attorneys had “no rational reason to make the statements to the general public.” The appeals court concluded the litigation privilege didn’t apply.

The attorneys petitioned the Colorado Supreme Court for certiorari review and the state high court granted their petition.

The Colorado Supreme Court explained it granted certiorari to consider whether the common law litigation privilege for party-generated publicity in pending class action litigation excludes situations in which the identities of class members are ascertainable through discovery.

The Colorado Supreme Court concluded the appeals court erred in conditioning the applicability of the litigation privilege in pending class action litigation on whether the identities of class members are ascertainable through discovery. The state high court reached this conclusion for two reasons. First, ascertainability is generally a requirement in class action litigation, and imposing such a condition would unduly limit the privilege in this kind of case. Second, the eventual identification of class members by way of documents obtained during discovery isn’t a substitute for reaching absent class members and witnesses in the beginning stages of litigation. 

The opinion explained the question remains, however, whether the litigation privilege applies to the facts before them. The state high court concluded it does and the five allegedly defamatory statements at issue, which merely repeated, summarized, or paraphrased the allegations made in the class action complaint, and which served the purpose of notifying the public, absent class members, and witnesses about the litigation, were absolutely privileged.

The Colorado Supreme Court reversed the judgment of the division below and remanded the case for further proceedings consistent with the opinion. 

H.J.B. v. People, in the Interest of Minor Child A-J.A.B.

The Colorado Supreme Court unanimously affirmed a judgment in a case involving the Indian Child Welfare Act.

A-J.A.B. tested positive at birth for methamphetamine. H.J.B., the mother, admitted methamphetamine use during her pregnancy. In March 2020, less than a month after A-J.A.B.’s birth, the Adams County Human Services Department filed a petition for dependency and neglect concerning A-J.A.B. The department’s petition noted it had no information indicating  A-J.A.B. was an Indian child or eligible for membership in an Indian tribe, although the petition didn’t identify what efforts, if any, the department took to determine whether A-J.A.B. was an Indian child. 

At the shelter hearing, H.J.B.’s counsel informed the court H.J.B. may have “some Cherokee and Lakota Sioux [heritage] through [A-J.A.B.’s maternal great-grandmother].” H.J.B. was uncertain if anyone in her family was actually registered with a tribe and acknowledged she “probably [wouldn’t] qualify” for any tribal membership herself. The juvenile court ordered H.J.B. to “fill out the ICWA paperwork,” but the court didn’t direct the department to exercise its due diligence obligation under Colorado Revised Statute 19-1-126(3) — Colorado’s ICWA implementing statute.

At the next hearing, H.J.B., who hadn’t filled out the ICWA paperwork, again stated she had “Native American heritage” through A-J.A.B.’s maternal great-grandmother. Because of those assertions, the juvenile court found the case “‘may’ be an ICWA case.” However the court didn’t order the department to take any action to investigate H.J.B.’s claim of Indian heritage. In June 2020, the juvenile court entered a dispositional order; the order didn’t address ICWA or whether A-J.A.B. may be an Indian child. 

In October 2020, “the Department’s attorney asked the court to make another ICWA inquiry because the Department had ‘not resolved that issue’ yet.” The juvenile court again stated the case “may be an ICWA case,” but didn’t expressly direct the department to exercise its due diligence obligation under section 19-1-126(3). Again, the juvenile court “ordered [M]other to submit an ICWA assessment form.” H.J.B. never did, according to the Colorado Supreme Court opinion.

In December 2020, the department moved to terminate H.J.B.’s parental rights. At the pretrial conference, H.J.B.’s attorney informed the court she spoke with A-J.A.B.’s maternal grandmother, who stated she “thought that the heritage may be Lakota.” A-J.A.B.’s maternal grandmother told H.J.B.’s attorney “if there’s heritage then the [child’s] great aunt would have the information.” Nonetheless, H.J.B.’s attorney told the court “it doesn’t sound like there’s a reason to believe that ICWA would apply” and acknowledged neither H.J.B. nor A-J.A.B. were enrolled members of any tribe. 

The juvenile court subsequently concluded “there [was] no reason to believe that this case [was] governed by [ICWA].” At the April 2021 termination hearing, the juvenile court reiterated that ICWA didn’t apply in this case “because ‘no information ha[d] been provided to the [c]ourt regarding the respondent [M]other’s enrollment [or] eligibility for enrollment in a federally recognized tribe.’” The juvenile court terminated H.J.B.’s parental rights and H.J.B. appealed. 

Before a division of the court of appeals, H.J.B. argued the juvenile court erred in finding that ICWA didn’t apply because the court had a reason to know that A-J.A.B. was an Indian child. 

According to H.J.B., her assertions of Cherokee and Lakota Sioux heritage triggered the department’s obligation under ICWA to send notice of the dependency and neglect proceeding to all Cherokee and Lakota Sioux tribes pursuant to 19-1-126(1)(b). The department and A-J.A.B.’s guardian ad litem disagreed, maintaining H.J.B. provided insufficient information to trigger the notice obligation under section 19-1-126(1)(b) when the juvenile court only provided vague assertions of tribal heritage without meaningful elaboration. 

In a published opinion, the appeals court agreed with H.J.B. in part. While it concluded there was no reason to know A-J.A.B. was an Indian child, the appeals court held the juvenile court erred by not directing the department to exercise its separate due diligence obligation under section 19-1-126(3) to assist the court in determining whether there is reason to know that A-J.A.B. is an Indian child.

The appeals court ordered a limited remand so the department could apply the appeals court’s new three-step test involving due diligence.

On limited remand, the department’s caseworker tried to contact H.J.B. using three different phone numbers, but H.J.B. never returned any of the caseworker’s calls. The caseworker also reached out to A-J.A.B.’s maternal grandmother, who informed the caseworker “the family did not have any Indian heritage.” She indicated no member of the family had been to or lived on an Indian reservation. The child’s maternal grandmother additionally signed a declaration of non-Indian heritage. 

Based on this record, the juvenile court found the department exercised its due diligence obligations under 19-1-126(3) and concluded “that there was no reason to know that the child was an Indian child.”

H.J.B. again appealed, arguing the department didn’t exercise due diligence because it didn’t send notice to or otherwise contact the tribes or the child’s maternal great-aunt. The appeals court affirmed, concluding “the Department followed the remand instructions and that the record support[ed] the [juvenile] court’s finding that the Department had exercised due diligence.” The appeals court held the department satisfied its due diligence obligations by repeatedly trying to contact H.J.B. and by successfully contacting A-J.A.B.’s maternal grandmother and obtaining a declaration of non-Indian heritage from her. 

Further, the appeals court noted the department rightly concluded its inquiries on limited remand didn’t lead to any “other persons, agencies, organizations, or tribes that might have additional information,” meaning there were no other parties the department ought to have contacted to satisfy its due diligence obligation. 

The appeals court found the “ICWA does not apply in this case.” H.J.B. sought a certiorari review from the Colorado Supreme Court, which it granted.

The Colorado Supreme Court asked what constitutes due diligence in the context of section 19-1-126(3). The state high court answered that question and identified the steps that a petitioning party must take to satisfy its due diligence obligation under section 19-1-126(3). The Colorado Supreme Court applied the framework to the facts in this case and concluded the petitioning party satisfied its statutory due diligence obligation under section 19-1-126(3). The state high court affirmed the appeals court’s decision, albeit on different grounds.

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