Michael L. Bender

This case concerned whether the Colorado Court of Appeals has jurisdiction to review a district court's dismissal of a misdemeanor charge in a case that was improperly transferred from county court in violation of a chief judge's order. The Supreme Court held that the Court of Appeals does have jurisdiction because the dismissal constitutes a final judgment from the district court. The reasoning was that the only avenue for appeal of such an order is to the Court of Appeals, as county court appeals go to district court but this originated from district court action, and denying review would leave the procedural violation unreviewable. The matter was remanded for review on the merits.

criminal lawprocedure

The case concerned whether a trial attorney violated Colorado Rule of Professional Conduct 1.8(e) by advancing fees to appellate counsel hired to represent his client, Elizabeth Flood, in appeals of her Colorado Fair Debt Collection Practices Act claim against debt collector Mercantile Adjustment Bureau. The Supreme Court of Colorado held that the payments did not violate the rule, as they constituted permissible advancement of litigation expenses that the attorney expected to recoup from any court-awarded fees. The court affirmed the award of appellate attorneys' fees but reversed the portion of the district court's ruling that applied Colorado Appellate Rules to deny fees for the current appeal from county court, and remanded for proceedings to determine Flood's entitlement to those fees.

procedurebusiness & regulatory

The case concerned the scope of prosecutorial work product protection under Crim. P. 16(I)(e)(1) in a criminal prosecution of defendant Brittney Angel for charges including vehicle eluding and evidence tampering arising from a 2011 incident. The trial court ordered the prosecution to disclose materials such as an internal PowerPoint and witness interview notes prepared during a related investigation into a deputy’s shooting of another person, ruling that the protection applies only to work product created for the case immediately before the court. The Colorado Supreme Court reversed that order, holding that the protection extends to opinion work product prepared in anticipation of any criminal prosecution. The court remanded for an ex parte in camera review to determine whether the specific materials qualify as protected work product.

criminal lawprocedure

The case concerned whether political advertisements distributed by Senate Majority Fund and Colorado Leadership Fund qualified as 'expenditures' under article XXVIII of the Colorado Constitution, which requires registration and contribution limits for political committees if the ads 'expressly advocate' for or against a candidate. The Colorado Supreme Court affirmed the dismissal of the complaints, ruling that the ads did not meet the definition because none used explicit words like 'vote for' or 'defeat' or substantially similar synonyms. The court reasoned that the constitutional provision, adopted via citizen initiative in 2002, intentionally adopted the narrow 'magic words' standard from Buckley v. Valeo to define express advocacy, and a broader 'functional equivalent' test would raise vagueness and overbreadth concerns under the First Amendment.

electionsfree speech

This case involves an interstate child custody dispute between divorced parents, with the children living in Colorado with their mother and the father residing in New York. After a New York family court referee ruled that New York had lost exclusive continuing jurisdiction because the children had not lived there for years and all relevant information was elsewhere, the New York Supreme Court nonetheless exercised jurisdiction and modified the original custody order to grant temporary sole custody to the father. The father sought to have Colorado enforce that modification order under the Parental Kidnapping Prevention Act (PKPA). The Colorado Supreme Court held that Colorado is not required to enforce the New York Supreme Court's order because it did not exercise jurisdiction consistent with the PKPA, given the prior relinquishment of jurisdiction by the family court referee under New York law. The core reasoning applied the PKPA's rule that a sister state's custody determination receives full faith and credit only if rendered by a court with proper jurisdiction under that state's own laws.

family lawfederal powerprocedure

This case involved an interstate child custody dispute between divorced parents, with the child living in Colorado with her mother and the father residing in Nebraska. After the father obtained a custody award from a Nebraska court, the mother filed in Colorado, which refused to enforce the Nebraska order on jurisdictional grounds. The Colorado Court of Appeals reversed, requiring enforcement under full faith and credit principles, but the Colorado Supreme Court reversed that decision. The court held that Colorado was not obligated to recognize the Nebraska custody determination because Nebraska had not exercised jurisdiction in compliance with the Parental Kidnapping Prevention Act. The case was remanded for further proceedings consistent with this ruling.

family law

The case involved post-conviction proceedings for Robert Ray, who was sentenced to death for murdering a prosecution witness and his fiancée from a prior case. The trial court ordered the prosecution to disclose addresses of thirteen witnesses, some in witness protection, after lifting a protective order. The Colorado Supreme Court held that the trial court abused its discretion by requiring disclosure, as the prosecution demonstrated an extraordinary threat to witness safety based on Ray's history of retaliation and witness intimidation, while post-conviction counsel made only a minimal showing of the addresses' materiality. The court vacated the order and remanded for further proceedings consistent with its opinion.

criminal lawprocedure

In Allen v. Steele, the Colorado Supreme Court reviewed a case where plaintiffs Jack and Danette Steele sued attorney Katherine Allen for negligent misrepresentation after an initial consultation about a potential negligence lawsuit; the Steeles alleged Allen gave them incorrect information about the statute of limitations, causing them to miss the deadline, though no attorney-client relationship was formed. The trial court dismissed the claim, but the court of appeals reversed, finding sufficient facts pleaded under negligent misrepresentation standards and referencing the Restatement (Third) of the Law Governing Lawyers. The Supreme Court reversed the court of appeals, holding that the Steeles failed to state a claim because an initial consultation for a potential civil lawsuit does not constitute providing information 'for the guidance of others in their business transactions,' a required element of negligent misrepresentation. The court further held that section 15(1)(c) of the Restatement, which imposes a duty of care on attorneys to prospective clients, cannot serve as the basis for a negligent misrepresentation claim against a non-client. The case was remanded for proceedings consistent with this opinion.

torts & liabilityprocedure

The case involved a criminal prosecution against Frank Daniel Glick for possession of a controlled substance, in which the trial court suppressed evidence, observations, and statements obtained after police officers responded to a 911 hang-up call, stood on Glick's front doorstep, and used flashlights to view suspected drugs and paraphernalia inside his darkened home through an open door. The Colorado Supreme Court reversed the suppression order on interlocutory appeal. It held that the officers were lawfully positioned on the doorstep to investigate the call and check on occupants' welfare, and that using flashlights from that vantage point to make plain-view observations did not constitute an unreasonable search; the subsequent seizure of the evidence was justified under the plain view doctrine to prevent its imminent destruction. The court remanded for further proceedings consistent with its opinion.

criminal lawprocedure

The case concerned a defendant charged with possession with intent to distribute a controlled substance who moved to suppress evidence and statements obtained after police searched his parked vehicle in a Kmart lot. The trial court granted suppression on grounds that the encounter was a pretextual investigatory stop lacking reasonable suspicion and that the subsequent consent was invalid. The Colorado Supreme Court reversed, holding that the officer's approach was a consensual encounter rather than a seizure because he used a conversational tone, made requests rather than commands, and did not restrict the defendant's freedom to leave. The court reasoned that the defendant's voluntary consent to the pat-down and vehicle search therefore satisfied the Fourth Amendment, rendering the discovered methamphetamine and later statements admissible. The matter was remanded for further proceedings.

criminal lawprocedure

This case arose as an original proceeding in which the prosecution sought relief from a trial court order in a retrial of defendant Spiros Vlassis, who faced charges including second-degree kidnapping and sexual assault. The trial court had directed the prosecution to automatically disclose any witness statements contained in its notes or emails under Crim. P. 16, Part I(a)(1)(I), without regard to whether they were exculpatory. The Colorado Supreme Court held that the order was erroneous and made the rule to show cause absolute. The Court reasoned that under its prior decision in People v. District Court, witness statements in a prosecutor's notes constitute work product and are not automatically discoverable under the specified rule, though they may be required to be produced if exculpatory under a separate provision or if the trial court exercises its discretion upon a proper showing by the defense.

criminal lawprocedure

This case involved the termination of Norma Jean Maggard, a certified nursing assistant at a Colorado state veterans home, by the Colorado Department of Human Services for failing to complete anger management classes, unauthorized absences, and angry outbursts at work. An administrative law judge found that termination was not within the reasonable range of disciplinary options, but the Colorado State Personnel Board split 2-2 and therefore upheld the termination because it lacked the three votes needed under statute to overturn the appointing authority's decision. The court of appeals reversed the Board, but the Colorado Supreme Court reversed the court of appeals and reinstated the termination, holding that the Board had acted properly by upholding the appointing authority due to insufficient votes and that the decision was supported by the record and not arbitrary or capricious.

labor & employmentprocedure

In Lehnert v. People, the defendant was convicted of attempted first-degree murder after being found in possession of unassembled explosive parts, and the prosecution sought a crime-of-violence sentencing enhancement under section 18-1.3-406 that requires the jury to make a specific finding that the defendant both possessed and threatened to use a deadly weapon. The jury instructions correctly stated this conjunctive requirement, but the verdict form used the disjunctive phrasing of 'possess or threaten the use,' and the defendant did not object at trial. The trial court imposed the enhanced thirty-year sentence, the court of appeals affirmed under plain-error review, and the Colorado Supreme Court reversed, holding that the mismatch between instructions and verdict created an inconclusive finding that constituted plain error affecting the defendant's substantial rights because the evidence left open a reasonable possibility the jury did not unanimously find both elements. The court therefore vacated the enhanced sentence and remanded for resentencing within the presumptive range.

criminal lawprocedure

The case concerned Felix Montes-Rodriguez's conviction for criminal impersonation under Colorado law after he used a false social security number on an automobile loan application while providing his correct name, birth date, address, and other details. The trial court denied his motion for acquittal, and the court of appeals affirmed the conviction by finding that the false number implied a false capacity to obtain the loan. The Colorado Supreme Court reversed, holding that the defendant neither assumed a false identity—because he held himself out as himself overall—nor a false capacity, since the prosecution presented no evidence that a social security number is legally required to qualify for a loan. The court remanded for entry of a judgment of acquittal.

criminal law

In this dissolution of marriage case, the wife sought to relocate out of state with the parties' two-year-old son and moved for an evaluation by a licensed mental health professional regarding allocation of parental responsibilities under section 14-10-127. The trial court denied the motion, concluding it could resolve the relocation issue using statutory factors and case law without the evaluation. The Colorado Supreme Court held that the statute mandates such an evaluation upon motion of either party in all proceedings concerning allocation of parental responsibilities, including those involving out-of-state relocation that affects parenting time and decision-making. The court found the trial court abused its discretion by denying the request absent any finding that the motion was made for delay purposes, made the rule to show cause absolute, and remanded for further proceedings.

family lawprocedure

The case concerned the City and County of Broomfield's application to change the use of certain water rights shares in several ditch companies, which Farmers Reservoir and Irrigation Company and others opposed on grounds that the change would injure existing rights. The water court found that Broomfield had shown by a preponderance of the evidence that the change would cause no injury, and the Colorado Supreme Court affirmed that determination. The court held that FRICO's post-trial tables and calculations constituted new evidence that the water court properly disregarded because they were not presented at trial or subject to cross-examination, and the trial record otherwise supported the no-injury finding. On a separate issue regarding whether accretions to a net-losing ditch should be subtracted from historic consumptive use, the court declined to review the water court's holding because FRICO sought affirmance rather than reversal or modification, providing no proper grounds for appeal under appellate rules.

propertyenvironment

In People v. Holt, the prosecution appealed a trial court order suppressing incriminating statements made by defendant Aaron Holt during a police search of his apartment for child pornography. The Colorado Supreme Court affirmed the suppression, holding that Holt was in custody when interrogated without Miranda warnings. The court based this on the totality of circumstances, including the arrival of multiple armed officers who handcuffed Holt, the lack of any statement that he was free to leave, his status as the prime suspect, his reasonable belief that arrest would follow, and his isolation during questioning in a police van. Because a reasonable person would have felt deprived of freedom in a manner equivalent to formal arrest, the statements were obtained in violation of Miranda and properly suppressed.

criminal lawprocedure

The case consolidated two workers' compensation claims in which claimants sought to have their permanent disability benefit maximum rates set according to the statutory limit in effect at the time of their disablement rather than their initial accidents. The Colorado Supreme Court overruled the portion of its prior Avalanche Industries decision that had interpreted "time of injury" to include the time of disablement, holding that this interpretation was unnecessary to the earlier ruling. The court reversed the court of appeals' remands for determining the time of disablement and directed reinstatement of the ALJ orders applying the lower maximum rates from the dates of the accidents, with one case remanded for an unrelated double-payment issue.

labor & employment

The case involved defendant James Crumb, who faced dozens of felony charges and sought to withdraw his guilty pleas after the trial judge participated in plea discussions in violation of Colorado rules prohibiting judicial involvement. The trial court denied the motion to withdraw the pleas, and the court of appeals affirmed. The Colorado Supreme Court reversed, holding that the trial judge abused discretion by making participatory comments that influenced the defendant's decision, including advising him as a human being about sentencing options, comparing maximum trial penalties to plea outcomes, and stating he would not be a happy judge without a deal. These actions improperly pressured the defendant and departed from the judge's impartial role, requiring allowance of the plea withdrawal before sentencing. The matter was remanded for further proceedings.

criminal lawprocedure

This case involves three consolidated appeals concerning the application of a new Colorado rule of civil procedure, C.R.C.P. 16.2, to marital dissolution cases filed before its effective date of January 1, 2005. The wives in each case sought to modify property divisions after discovering alleged misstatements in their husbands' financial disclosures, filing post-decree motions after the rule's effective date. The court held that the rule's five-year jurisdiction retention provision for modifying property divisions does not apply to these cases. The reasoning is that the new rule, including its extended jurisdiction and enhanced disclosure requirements, only governs disclosures made in cases or post-decree motions filed on or after January 1, 2005, and does not retroactively affect prior disclosures made under the old rule, which limited jurisdiction to six months under C.R.C.P. 60(b).

family lawprocedure