Court Opinions- Jan 15, 2018

Department of Revenue v. Rowland 


The Colorado Supreme Court considered whether section 42-2-126(8)(c) of the Colorado Revised Statutes requires all written statements from non-law enforcement sources to be presented in affidavit form and sworn to under penalty of perjury before they can be considered as evidence in driver’s license revocation hearings. 

Section 42-2-126(8)(c) provides that, in driver’s license revocation proceedings, a hearing officer “may consider evidence contained in affidavits from persons other than the respondent,” so long as those affidavits meet certain requirements, including the requirement that the affidavits be sworn to under penalty of perjury. 

The Colorado Supreme Court held that section 42-2-126(8)(c) does not require all written statements from non-law enforcement sources to be presented in affidavit form and sworn to under penalty of perjury before they can be considered as evidence in driver’s license revocation hearings. Specifically, the Supreme Court held that the Blood Alcohol Content test report in this case did not have to meet the affidavit requirements of section 42-2-126(8)(c) for the hearing officer to consider its contents. Accordingly, the Colorado Supreme Court reversed the judgment of the Court of Appeals. 

Brigance v. Vail Summit Resorts Inc.

During a ski lesson at Keystone Mountain Resort Teresa Brigance’s ski boot became wedged between the ground and the chairlift. She was unable to unload but the chairlift kept moving, which caused her femur to fracture. Brigance filed suit against Vail Summit Resorts, Inc., raising claims of negligence, negligence per se, negligent supervision and training, negligent hiring and violation of the Colorado Premises Liability Act. 

The district court dismissed Brigance’s negligence and negligence per se claims at the motion to dismiss stage. After discovery, the district court granted Vail Summit’s motion for summary judgment on the remaining claims, concluding the waiver  Brigance signed before participating in her ski lesson, as well as the waiver contained on the back of her lift ticket, were enforceable and barred her claims against Vail Summit Resort Inc. Exercising jurisdiction under 28 U.S. Code section 1291, the 10th Circuit Court of Appeals affirmed. 

United States of America v. Demers

Cory Demers was convicted of being a felon in possession of a firearm in violation of 18 U.S. Code section 922(g)(1). In November 2008, the district court sentenced him to 30 months in prison and three years of supervised release. On June 24, 2015, Demers’ federal probation officer filed a petition alleging violations of his federal supervised release. Following a revocation hearing on March 31, 2016, the district court found Demers had committed six violations of his supervised release and sentenced him to 18 months in prison. 

On appeal, Demers claimed that his term of federal supervision began in May 2012 when the State of Colorado placed him in a community corrections center. If Demers were correct, his term of supervised release would have expired before his probation officer filed the petition to revoke his supervision. 

The 10th Circuit ruled that the district court was correct in determining Demers’ term of federal supervised release did not commence to run until April 9, 2013, when he was released from the custody and control of the Colorado community corrections center. Thus, Defendant’s three-year term of supervised release had not expired when his probation officer filed the revocation petition. The 10th Circuit Court of Appeals exercised jurisdiction under 28 U.S. Code section 1291 and affirmed. 

Glasser v. King

After suffering delays in treatment for a heart attack while incarcerated, Colorado inmate Wayne Glasser sued prison nurse Carol King and physician’s assistant Michael Walsh. Among other rulings, the district court awarded King and Walsh immunity on Glasser’s state-law claims and denied Glasser leave to file a third amended complaint adding new defendants. Proceeding pro se, Glasser appealed from those decisions. Exercising jurisdiction under 28 U.S. Code section 1291, the 10th Circuit Court of Appeals affirmed. 

People v. Sparks

In appealing a jury verdict finding him guilty of sexual assault on a child, Allen Sparks raised an issue of first impression in Colorado: When a child victim is alleged to have initiated the sexual contact with an adult defendant, does the phrase “subjects another . . . to any sexual contact” in the sexual assault on a child statute, require the state to prove that the defendant caused the victim to become “subservient or subordinate” or to prove that the child victim initiated the sexual contact at the defendant’s directive? The Court of Appeals answered  “no.” For that reason and because the Court of Appeals rejected the other issues raised on appeal, the Court of Appeals affirmed the judgment of conviction. 

Romero v. Colorado Department of Human Services 

In this administrative law case, a division of the Court of Appeals considered the intersection of Colorado’s State Administrative Procedure Act and application of an adverse inference to a civil defendant’s invocation of his Fifth Amendment right to remain silent. 

As an issue of first impression, the division held that an agency’s determination in a final agency action to apply an adverse inference to a defendant’s invocation of his right to remain silent is an ultimate conclusion of fact under the Administrative Procedure Act. 

Consequently, the agency was required, as a matter of law, to make its own determination regarding the adverse inference and can substitute its own judgment for that of the administrative law judge regarding the inference and the weight to give the inference in light of the other evidence presented. 

Accordingly, a majority of the division reversed the district court’s judgment because it effectively precluded the Department of Human Services from making its own determination on whether to apply the adverse inference to Romero’s invocation of his Fifth Amendment right to remain silent.

The Court of Appeals also considered whether the district court’s decision overturning the department’s final agency action should be upheld because the department’s decision was based on insufficient evidence. 

A majority of the division concluded that the department’s decision was based on sufficient evidence and that the evidence was not speculative.

The majority opinion reversed the district court’s judgment and allowed the final agency decision to stand. 

L.J. v. Carricato

A division of the Court of Appeals considered whether the Colorado Governmental Immunity Act, sections 24-10-101 to -120 of the Colorado Revised Statutes, bars claims against a city and a police officer for alleged violation of the Child Protection Act of 1987, sections 19-3- 301 to -318 of the Colorado Revised Statutes. The division concluded that the two statutes do not conflict. 

Thus, the Colorado Governmental Immunity Act barred the claim against the city for alleged violation of the Child Protection Act because the claim lies or could lie in tort. Additionally, the claim against the city for vicarious liability was dismissed because public entities do not waive immunity for an employee’s willful and wanton conduct.

The division also concluded, based on Martinez v. Estate of Bleck, that the claims against the police officer must be remanded for a Trinity hearing to allow the district court to determine whether the officer’s conduct was in fact willful and wanton. Finally, the the Court of Appeals concluded that the claim for exemplary damages against the police officer was prematurely pled. Accordingly, the Court of Appeals reversed the judgment and remanded the case in part with directions.  

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