In his first year on the Supreme Court, Justice Carlos Samour stood out as one of the most active writers as well as one of the most vocal dissenters. He penned five dissents (or partial dissents), the second most of all the justices, and each of those gives some insight into his views on how the court should operate.
Samour was sworn in July 2, 2018, and previously served as a trial judge in the 18th Judicial District. He demonstrates his criminal trial experience in his opinions as well, often writing with a pragmatic discussion of the issues and an eye for areas where opinions could lead to more litigation.
A few choice lines from Samour’s written dissents might demonstrate that focus.
Casillas v. People
Issue: Whether the exclusionary rule requires the suppression of evidence derived from a juvenile probation officer’s unauthorized collection of DNA from a juvenile.
Majority: Because suppression would have a deterrent effect by removing incentives to collect DNA from ineligible juvenile offenders, the Supreme Court holds that suppression is warranted.
Samour: “Billy Joel aptly recognized in one of his hit songs that ‘we’re only human’ and are ‘allowed to make [our] share of mistakes.’ Yet, today, the majority suppresses evidence derived from a search conducted as a result of a juvenile probation officer’s mistake of law, without meaningfully analyzing whether the mistake was objectively reasonable.”
Zapata v. People
Issue: Whether a defendant in a first-degree murder case was entitled to access competency reports regarding another defendant in a factually related but separate case. The defendant alleged the reports might contain exculpatory information about his criminal offenses.
Majority: Murillo’s competency reports are protected by the physician-patient or psychologist-client privilege and Murillo did not waive the privilege as to Zapata when he put his competency in dispute in his own case. Zapata did not make a sufficient showing that the competency reports contained exculpatory evidence to justify their release to him or review by the trial court.
Samour: “[The majority] reasons that competency evaluations are privileged because they are conducted largely for the defendant’s benefit. I take issue with this supposition. While it is now axiomatic that it is unconstitutional to try an incompetent defendant, competency evaluations are ordered and completed for the benefit of the court (not the defendant), in order to afford the court an opportunity to make a fair and reliable determination regardingthe defendant’s competency to proceed.
In re Fox v. Alfini
Issue: In this original proceeding pursuant to C.A.R. 21, the court reviewed a district court’s order compelling production of a recording of the petitioner’s initial consultation with her attorney.
Majority: We … conclude that the presence of a third party during an attorney-client communication will ordinarily destroy the attorney-client privilege unless the third party’s presence was reasonably necessary to the consultation or another exception applies.
Because the record supports the district court’s finding that Fox had not shown that her parents’ presence was reasonably necessary to facilitate the communication with counsel, we perceive no abuse of discretion in that court’s ruling that the recording at issue was not protected by the attorney-client privilege. … the district court did not abuse its discretion in refusing to consider the new arguments that the Petitioner raised in her motion for reconsideration.
Samour: “In the end, while the majority concludes that there is ample evidence in the record to support the district court’s factual findings, it overlooks that there is equally ample evidence in the record to support contrary factual findings.
Given the conflicts in the exhibits, the only way to properly settle the parties’ factual dispute was to hold an evidentiary hearing.”
Colorado Department of Labor & Employment v. Dami Hospitality Group
Issue: Whether the Eighth Amendment’s prohibition on the government imposition of “excessive fines” applies to fines levied on corporations.
Majority: Remanded to determine whether the $250–$500 fine that a business was required to pay for each day that it was out of compliance with Colorado’s workers’ compensation law is proportional to the harm or risk of harm caused by each day of noncompliance.”
Samour: “… I nevertheless find it troubling that, under today’s decision, if the Director retroactively imposes a ‘staggeringly high-dollar aggregate’ fine simply because he delayed taking action to correct a potential violation, the employer’s only recourse is to argue that the daily fine amount is excessive.”
Owners Insurance v. Dakota Station II Condo Association
Issue: The interpretation of language in the appraisal provision of an insurance policy requiring each party to “select an impartial appraiser.”
Majority: Based on the plain meaning of the word “impartial,” the policy requires the appraisers to be unbiased, disinterested and unswayed by personal interest.
Samour: “According to the majority, an appraiser who advocates for a party is partial, but an appraiser who explains her position, defends her work, and attacks the other appraiser’s work is impartial. Were we living in a utopia, I might consider joining the majority. Because we are not, I cannot do so.”
— Tony Flesor, [email protected]