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Colorado Court of Appeals Opinions
August 30, 2012

The Court of Appeals summaries are written for the Colorado Bar Association by licensed attorneys Teresa Wilkins (Denver) and Paul Sachs (Steamboat Springs). Please note that the summaries of Opinions of the Colorado Court of Appeals are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

2012 COA 141. No.08CA2433. People v. Doubleday.
Felony Murder—Attempted Aggravated Robbery—Predicate Offense—Special Interrogatory—Duress—Second-Degree Murder—Challenge for Cause—Prosecutorial Misconduct.

Defendant appealed from the judgment of conviction entered on jury verdicts finding him guilty of first-degree felony murder and second-degree murder. The judgment was affirmed and the case was remanded.

Defendant shot and killed a clerk at a convenience store in December 2006. The jury found defendant not guilty of attempted aggravated robbery based on duress, and guilty of second-degree murder and felony murder.

Defendant contended that his felony murder conviction must be vacated because the jury acquitted him of attempted aggravated robbery, the predicate offense for the felony murder charge. The predicate offense element of felony murder requires proof beyond a reasonable doubt that the defendant committed or attempted to commit the predicate offense, and not that the defendant was convicted of the predicate offense. Here, the prosecution met the burden of proving that defendant committed the predicate offense—attempted aggravated robbery. Additionally, the prosecution does not have to disprove defendant’s affirmative defense of duress to prove that defendant committed attempted aggravated robbery. The jury’s verdict convicting defendant for felony murder was affirmed.

Defendant also argued that the trial court violated CRE 606(b) by giving a special interrogatory. The special interrogatory instructed the jurors to complete it only if they found defendant not guilty of the predicate offense; thus, it did not usurp the jury’s duty to deliver a general verdict. Additionally, the special interrogatory was necessary to ensure the validity of a guilty verdict on the felony murder charge. Further, the jury received and completed the special interrogatory before it announced its verdict; thus, it was not a “post-verdict statement.” Therefore, the trial court properly exercised its discretion by giving the special interrogatory relating to the attempted aggravated robbery charge.

Defendant further contended that the trial court erred by failing to instruct the jury that duress is a defense to felony murder and second-degree murder. Felony murder is a class 1 felony, and CRS § 18-1-708 provides that duress is not a defense to class 1 felonies. Thus, duress is not a defense to felony murder. Further, defendant entered the convenience store alone and there was no evidence that any threats motivated defendant to shoot the clerk. Therefore, there was no evidence to support a duress instruction on the second-degree murder charge. Accordingly, the trial court did not err by refusing to instruct the jury that duress was a defense to either felony murder or second-degree murder.

Defendant contended that the trial court erred by denying his challenge for cause to a potential juror because she consistently expressed doubt about her ability to be fair and impartial. Although the juror expressed some doubt about her ability to be fair and impartial and said that she might be biased against defendant, she also repeatedly said that she thought she could perform her duties and that she hoped she would be able to keep an open mind while hearing the evidence. Therefore, the trial court did not abuse its discretion in denying defendant’s challenge for cause.

Defendant also argued that the prosecution committed prosecutorial misconduct. However, the prosecutor’s voir dire statements on reasonable doubt did not lessen the prosecution’s burden; the prosecutor did not misstate the law; and the prosecution did not ask the jurors to disregard the presumption of innocence. Therefore, there were no grounds for reversal.

2012 COA 142. No.11CA1006. In re the Parental Responsibilities of D.T., and Concerning Lavattiata.
Allocation ofParental Responsibilities—Nonparent—CRS § 14-10-123(1)(c).

Crystal Lavattiata appealed from the judgment dismissing her petition for parental responsibilities for D.T., who is the child of Christina Trujillo (mother). The judgment was affirmed and the case was remanded.

Mother and Lavattiata became acquainted when mother was a teenager and she attended school with Lavattiata’s children. After mother gave birth to D.T. in 2003, she moved into Lavattiata’s home, and Lavattiata assisted her in caring for the child. Although mother moved out of Lavattiata’s home when D.T. was 6 months old, Lavattiata continued to assist mother with D.T.’s care until 2010, when mother ended Lavattiata’s time with him. Lavattiata subsequently petitioned for an allocation of parental responsibilities. The trial court concluded that Lavattiata did not have standing under CRS § 14-10-123(1)(c) and dismissed Lavattiata’s petition.

On appeal, Lavattiata contended the trial court erred by dismissing her petition for parental responsibilities. A nonparent can attain standing under CRS § 14-10-123(1)(c) if the nonparent has had the physical care of the child for six months or more and commences an action seeking parental responsibilities within six months of the termination of such care. Here, mother at all times acted as D.T.’s parent and directed his care. Lavattiata functioned in a grandmother-like role to D.T. and provided care for D.T. at mother’s direction and under her supervision. Mother remained in control of D.T.’s care by continuously monitoring and directing Lavattiata’s actions with D.T., and then terminating Lavattiata’s care of the child when Lavattiata refused to follow her directions. Thus, the trial court did not err in concluding that Lavattiata lacked standing under CRS § 14-10-123(1)(c). The judgment was affirmed, and the case was remanded to the trial court for determination of mother’s appellate attorney fee request under CSR § 14-10-119.

2012 COA 143. No.11CA1351. Hanson v. Colorado Dep’t of Revenue, Motor Vehicle Division.
Driving Under the Influence of Alcohol—Driver’s License Revocation—Express Consent Statute—Subpoena—Fourth Amendment—Exclusionary Rule.

Petitioner Andrew Hanson appealed the district court’s judgment affirming the administrative order entered by respondent, the Colorado Department of Revenue (Department), revoking Hanson’s driver’s license for one year. The judgment was affirmed.

After a citizen’s report of erratic driving, the police apprehended Hanson at his home and transported him to the hospital, where Hanson refused testing under the express consent statute. Despite the deputy’s failure to appear at the revocation hearing in response to a subpoena served on him, the hearing officer quashed the subpoena and sustained the revocation.

On appeal, Hanson contended that the revocation order should be reversed because the hearing officer erroneously denied him the opportunity to cross-examine the deputy about the circumstances surrounding his entry into the residence. The Fourth Amendment exclusionary rule does not apply to revocation hearings. Therefore, Hanson’s Fourth Amendment claim fails. Further, because Hanson had no right to challenge the validity of the initial police contact, the hearing officer did not err in concluding that the deputy’s proposed testimony was unnecessary. Thus, Hanson was not deprived of his statutory right to cross-examine the deputy.

2012 COA 144. No.11CA1825. Stulp, Colorado Commissioner of Agriculture v. Schuman.
Animal Protection Act—Permanent Injunction From Owning Livestock—Due Process.

In this action under the Animal Protection Act, defendants Dean Schuman and Schuman Cattle, LLC appealed the permanent injunction entered against them by plaintiff John Stulp, the Colorado Commissioner of Agriculture (Commissioner), enjoining defendants from owning, managing, controlling, or otherwise possessing livestock in Logan County. The order was affirmed.

The Colorado Department of Agriculture Bureau of Animal Protection inspected defendants’ property after receiving complaints of dead cattle on the ranch. The court found that defendants were not fit to provide for the health and well-being of the cattle they owned. The court ordered the Commissioner to seize all cattle from defendants’ ranch and sell them at auction, and permanently enjoined defendants from owning, managing, controlling, or otherwise possessing livestock in Logan County.

Defendants contended the trial court exceeded its authority by permanently enjoining them from owning, managing, controlling, or possessing livestock in Logan County. The Court of Appeals disagreed. Defendants were starving the cattle to death and failing to treat any injured or sick cattle. They expressed no remorse, took no responsibility for past acts or omissions, and offered no evidence of rehabilitation. The Act authorized the trial court to permanently enjoin defendants from future ownership of livestock to enforce compliance with its provisions.

Defendants also contended that the permanent injunction violates the Due Process Clause of the U.S. Constitution and article II, § 3 of the Colorado Constitution. The rights to own animals and conduct a livestock business are not unlimited and can be abrogated in appropriate circumstances. Under the circumstances presented here, including the overwhelming evidence of defendants’ unwillingness to conform to accepted methods of animal husbandry, it was not a constitutional violation for the trial court to permanently enjoin defendants from owning livestock.

2012 COA 145. No.11CA1976. Progressive Casualty Insurance Co. v. Moore.
Denial of Benefits—Statutory Notice Requirements—Commercial Versus Personal Policies.

In this declaratory judgment action, S. Bryan Moore appealed the judgment entered in favor of Progressive Casualty Insurance Company. The judgment was affirmed.

Moore was involved in a car accident. Progressive Casualty Insurance Co. (Progressive) denied his claim for insurance benefits because his automobile insurance policy had expired months earlier.

Moore contended that the trial court misapprehended the applicability of CRS § 10-4-110.5. Specifically, Moore argued that the policy had renewed automatically because Progressive had failed to comply with the statutory notice requirements. However, § 10-4-110.5 applies only to commercialautomobile insurance policies, and Moore’s policy was not commercial. Therefore, the trial court’s ruling was affirmed.

2012 COA 146. No. 11CA1988. Colorado Off-Highway Vehicle Coalition v. Colorado Board of Parks and Outdoor Recreation.
Curing an Open Meetings Law Violation—Summary Judgment.

In this action alleging violations of the Open Meetings Law (OML), plaintiffs, the Colorado Off-Highway Vehicle Coalition (COHVCo) and several nonprofit corporations and interested citizens, appealed the district court’s summary judgment in favor of defendant, the Colorado Board of Parks and Outdoor Recreation (Board). Plaintiffs also appealed the court’s order denying them costs and attorney fees. The judgment and order were affirmed.

The Board is responsible for managing all state parks and outdoor recreation areas and for administering all state park and outdoor recreation programs. One such program is the off-highway vehicle (OHV) program. Under the OHV Act, annual registration and permit fees are placed in the OHV Recreation Fund and are required to be used for specified OHV purposes. For several years, the Board has made a portion of the OHV funds available through a grant process awarded by the OHV Subcommittee, though the Board retains final authority to allocate the grant funds.

In November 2009, the Board provided notice and held a public meeting regarding possible changes to the OHV grant program and subcommittee. Notice of subsequent public meetings was made and meetings were held in January, February, March, May, and July of 2010. During the course of these proceedings, three violations of the OML occurred: (1) on March 19, following the meeting, the Board discussed proposed changes to the OHV program and the OHV Subcommittee via e-mail; (2) on April 28, the Board held a meeting via telephone and e-mail to discuss the proposed changes; and (3) on June 7, an “OHV Program Modifications Roundtable” was convened by the state Division of Parks and Outdoor Recreation to discuss the proposed changes (all Board members were notified, two attended, and one actively participated in this meeting).

After the June 7 meeting, COHVCo sent the Board a letter alleging it had violated the OML and subsequently alleged violations of the OML regarding the March 19 and April 28 meetings. On July 16, at its regularly scheduled public meeting, the Board was briefed by the Attorney General regarding the legal implications of the alleged violations. The meeting was well attended by all interested parties and numerous “key” parties commented on record. Ultimately, the Board unanimously approved the changes.

Plaintiffs sued the Board in August 2010. In its answer, the Board admitted to the three OML violations and plaintiffs moved for summary judgment and requested costs and attorney fees. The Board argued the OML violations “were all effectively remedied” by the July 16 public meeting. Following an extensive hearing, the district court granted summary judgment in favor of the Board and denied the request for costs and attorney fees, because the “Board cured any violation of the OML before the initiation of this lawsuit.”

On appeal, plaintiffs argued it was error to find that the Board “cured” the three OML violations. The Court of Appeals disagreed. The Court noted that the OML does not explicitly address whether a violation can be cured by holding a subsequent meeting that complies with the act. However, Colorado case law on the OML implies a public body may do so as long as it isn’t merely “rubber stamping” the earlier decision. The Court found that the July 16 meeting that effected the cure was not a rubber stamping of an earlier decision.

Plaintiffs also appealed the denial of their costs and attorney fees. The Court agreed with the district court that the Board “cured” the previous violation of the OML and therefore no costs or fees should have been awarded to plaintiffs. The judgment and order were affirmed.

2012 COA 147. No. 11CA2405. Colorado Common Cause v. Gessler, Colorado Secretary of State.
Rulemaking Authority—Campaign Finance Laws.

This case arose out of a challenge to the Colorado Secretary of State’s (Secretary) rulemaking authority brought by plaintiffs, Colorado Common Cause and Colorado Ethics Watch, pursuant to CRS § 24-4-106. The Secretary appealed the trial court’s order finding he exceeded his rulemaking authority in promulgating Rule 4.27. [Rule 4.27 has since been renumbered as Rule 4.1, 8 Code Colo. Regs. 1505–6.] The order was affirmed.

In 2002, Colorado voters adopted the Campaign and Political Finance Amendment (Amendment), which sets forth specific disclosure requirements that apply to various categories of participants in the elections process. The Amendment also regulates “issue committees” that advocate for or against ballot issues or questions. The Amendment incorporates the registration and disclosure requirements set forth in the Fair Campaign Practices Act (Act). In November 2010, a panel of the Tenth Circuit held in Sampson v. Buescher, 625 F.3d 1247 (10th Cir. 2010), that the financial burden of complying with the registration and reporting requirements for issue committees was substantial and the public interest in such information was minimal.

In response to Sampson, the Secretary commenced a rulemaking process to implement the decision. As part of this process, the Secretary published proposed Rule 4.27, which ultimately was adopted.Rule 4.27 states that “[a]n issue committee shall not be subject to any of the requirements of [the Amendment] or [the Act] until the issue committee has accepted $5,000 or more in contributions or made expenditures of $5,000 or more during an election cycle.” The contributions and expenditure made before reaching this threshold are not required to be reported.

Plaintiffs sued under CRS § 24-4-106. The trial court held that the Secretary had exceeded his rulemaking authority and dismissed the Secretary’s counterclaim for a declaration that the definition of issues committee is unenforceable until such a rule is adopted.

The Court of Appeals noted that an agency does not have authority to promulgate rules that modify or contravene statutory or constitutional provisions. Rule 4.27 creates a contribution and expenditure threshold of $5,000 that triggers an issue committee’s duty to register and disclose. The Act establishes a threshold of $200. On its face, Rule 4.27 conflicts with the clear requirements of Colorado law. Thus, unless Sampson abrogated the $200 threshold, the Secretary lacked the authority to promulgate the rule. The Secretary argued Sampson did just that. The Court disagreed.

The Tenth Circuit declined to address the facial challenge to Colorado’s campaign finance laws, holding only that the application of those laws under the specific facts of Sampson unconstitutionally burdened their freedom of association. The Circuit specifically acknowledged that Colorado campaign finance laws may be constitutionally applied outside the context presented in Sampson. Consequently, Rule 4.27 sweeps far too broadly. The rule was set aside as void and the order was affirmed.

2012 COA 148. No. 12CA0062. Communications Workers of America 7717 v. Industrial Claim Appeals Office.
Unemployment Compensation Benefits—“Wages.”

Communications Workers of America 7717 (employer) sought review of a final order of the Industrial Claim Appeals Office (Panel) affirming a hearing officer’s decision determining that claimant was entitled to an award of unemployment compensation benefits. The order was affirmed.

From 2003 until February 2011, claimant worked part-time for employer, serving as union president. He was supervised by employer’s executive board. He also worked full-time for another employer (Qwest).

The hearing officer found that when the union wanted claimant to work on union business during times that he would be working for Qwest, employer paid him the equivalent wage he would have received from Qwest. The officer found employee was separated from this employment when employer merged with another local union chapter. The officer found no reason that claimant should be disqualified from receiving benefits based on the reason for the separation, and no reason that employer should be exempt from paying them.

On review to the Panel, employer argued the money it paid to employee did not constitute “wages” under the statute and that employee still had his full-time job with Qwest and therefore suffered no wage loss. The Panel held the nature of the payments made did not exempt employer from paying benefits and that the issue of ongoing work for Qwest was not properly before it. The hearing officer’s decision was affirmed by the Panel.

On appeal, employer renewed its argument that it did not pay “wages” to employee. CRS § 8-70-141(1)(a) defines “wages” as “[a]ll remuneration for personal services.” The undisputed evidence established that claimant provided personal services to employer by performing work as its president and was remunerated by employer with payments. The Court of Appeals saw no error in the finding that claimant was paid “wages” under the statutory scheme.

Employer also argued that claimant suffered no wage loss because he was still employed by Qwest. The Court agreed with the Panel that this was not properly before it for review. The judgment was affirmed.

Colorado Court of Appeals Opinions

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