Castro v. People, Colorado Supreme Court No. 22SC712 (July 1, 2024) Holding: The court holds that an alternate juror may be substituted mid-deliberation.Case Summary: During jury deliberations, a juror suffered a heart attack. An alternate juror was added, and the new jury convicted the defendant. The defendant appealed, alleging that the substitution of an alternate juror after deliberations had begun required a mistrial. The Supreme Court held that substitution of a regular juror with an alternate juror during deliberations raises a presumption of prejudice to the defendant’s right to a fair trial, but that here the presumption was overcome. The Court noted, as it had previously, that the General Assembly should look at clarifying the statutes. Nat'l Ass'n of Indus. Bankers v. Weiser, United States District Court No. 1:24-CV-00812-DDD-KAS (June 18, 2024) Holding: Pending a final determination of the claims on the merits, the federal district court preliminarily enjoined the state attorney general and the uniform consumer credit code administrator from enforcing the interest rates in the Colorado Uniform Consumer Credit Code (UCCC) with respect to any loan made by members of trade associations whose members include (or partner with) state-chartered, FDIC-insured banks that engage in consumer lending, to the extent that: (a) the applicable interest rate in 12 U.S.C. § 1831d(a) exceeds the rate that would be permitted in the absence of that subsection, and (b) the loan is not "made in" Colorado within the meaning of the effective date note to 12 U.S.C. § 1831d. The state may only apply its UCCC interest rates to loans made by lenders in Colorado, regardless of the location or residence of the borrower. Case Summary: Trade associations whose members include (or partner with) state-chartered, FDIC-insured banks that engage in consumer lending sought to preliminarily enjoin the state attorney general and the uniform consumer credit code administrator from enforcing the state's lower interest-rate caps with respect to loans made by lenders that are not located in the state. A federal statute, 12 U.S.C. § 1831d, caps the interest rates that such banks may charge on loans, and that statute expressly preempts any lower interest-rate caps that may be imposed by state law. A state may, however, opt out of § 1831d's application "with respect to loans made in" that state, and Colorado has done so. Determination of where a loan is "made" under § 1831d depends on where the lender performs its loan-making functions, not the borrower's location. The consistent use of "make" and "made" throughout the statutory text indicates that the plain and ordinary answer to the question of who "makes" a loan is the bank, not the borrower. It follows, then, that the answer to the question of where a loan is "made" depends on the location of the bank, and where the bank takes certain actions, but not on the location of the borrower who "obtains" or "receives" the loan. Therefore, the state may only opt out of § 1831d for loans made by lenders in the state. It may not apply its UCCC to loans made to Colorado residents otherwise. St. Mary Catholic Par. in Littleton v. Roy, United States District Court No. 23-CV-02079-JLK (June 4, 2024) Holding: Under the free exercise clause of the first amendment, the federal district court permanently enjoined the executive director of the department of early childhood and the director of the universal preschool program, acting in their official capacities, from requiring, as a condition for participation in the universal preschool program, that the preschools agree to provide or provide eligible children an equal opportunity to enroll and receive preschool services regardless of religious affiliation for as long as the directors allow exemptions from the religious affiliation aspect of the equal opportunity requirement and in the universal preschool program service agreement. Case Summary: Two Catholic parishes that operate preschools, St. Mary Catholic Parish in Littleton and St. Bernadette Catholic Parish in Lakewood, and the parents of a preschool-aged child, Daniel and Lisa Sheley (plaintiffs), brought their claims against Dr. Lisa Roy, the executive director of the Colorado department of early childhood, and Dawn Odean, the director of the Colorado universal preschool program, in their official capacities (defendants). Plaintiffs' claims alleged among other allegations that the equity-related requirements of Colorado's universal preschool program, as the requirements are applied to them, violate their rights guaranteed by the free exercise clause of the first amendment to the U.S. Constitution. Section 26.5-4-205(2)(b) requires preschool providers receiving funding through the program to give students with certain characteristics an equal opportunity to enroll and receive services. The department must adopt the equal opportunity requirement as part of its quality standards and must ensure that each preschool provider that participates in the program meets that standard. The equal opportunity requirement does not grant the department the authority or discretion to exempt providers from complying with it. The question in this case is whether the department, in administering the program, has nevertheless created exceptions to the equal opportunity requirement that warrant granting the plaintiff preschools similar exemptions. Plaintiffs alleged that defendants' policies favor other religious denominations because they allow faith-based preschools to prioritize their congregation members. The plaintiff preschools wanted to give admissions preference to the children of all members of the Catholic Church and believed that they were unable to do so under the statute. The department had allowed faith-based providers to deny children and families equal opportunity based on their religious affiliation, or lack thereof, and cited no compelling interest for permitting that discrimination while denying plaintiffs' request for a related exemption. Thus, the creation and implementation of the congregation exception violated plaintiffs' free exercise rights. The court granted plaintiffs relief in the form of a limited permanent injunction, declaratory judgment, and nominal damages. VOA Sunset Hous. LP v. D’Angelo, ColoradoCourt of Appeals No. 23CA0458, (May 30, 2024) Holding: The court of appeals held that (1) the Strategic Lawsuits Against Public Participation statute, also known as the anti-SLAPP statute pursuant to section 13-20-1101, C.R.S., allows parties to file special motions to dismiss in county courts; (2) that the anti-SLAPP statute applies in a forcible entry and detainer proceeding so long as the conduct underlying the forcible entry and detainer claim falls within the scope of the anti-SLAPP statute; and (3) all appeals of orders on special motions to dismiss pursuant to the anti-SLAPP statute are to be filed with the court of appeals. Case Summary: In the underlying proceeding, a landlord brought a forcible entry and detainer action in county court against the landlord's tenant. The landlord sought to evict the tenant from his federally subsidized apartment unit for various reasons, some of which implicated potentially protected rights to freedom of speech and freedom to petition. Evidence included statements that the tenant posted on Facebook. The tenant filed a special motion to dismiss pursuant to the anti-SLAPP statute. The county court denied the tenant's special motion to dismiss holding that the anti-SLAPP statute does not apply in forcible entry and detainer actions and the landlord's claim was premised on a breach of contract rather than on a freedom of speech or freedom to petition claim. The tenant immediately filed an appeal with the court of appeals. As the tenant's appeal was pending with the court of appeals, the county court entered judgment for possession in favor of the landlord on grounds unrelated to the Facebook posts. The tenant appealed the county court's judgement with the district court and obtained a stay of the judgment during that appeal. The district court reversed the judgement on the basis that the landlord did not have any grounds for eviction other than the Facebook posts. The county court on remand scheduled a new trial limited to the Facebook posts. In reviewing the facts of this case, the court of appeals stated that this case created multiple proceedings and appeals at the same time in different courts, raising similar issues with respect to the same claim, which led to moot opinions, a waste of judicial resources, and significant confusion. Procedurally, rulings issued by county courts never reach the court of appeals. Instead, county courts are subject to review by district courts and to certiorari review by the Colorado Supreme Court pursuant to section 13-6-310. The General Assembly has also conferred jurisdiction on country courts that is concurrent with district courts in forcible detainer and entry and other civil proceedings pursuant to sections 13-6-102 and 13-40-109. However, the anti-SLAPP statute's references to court proceedings are very broad. The statute refers to "the court" without specifying what type of court can hear the case. The court of appeals in this case held that the anti-SLAPP statute applies to proceedings in county courts because the plain language of the anti-SLAPP statute does not exclude county courts. Additionally, the court of appeals noted that nothing in the forcible entry and detainer statute or the anti-SLAPP statute indicates that the anti-SLAPP statute cannot apply in these types of proceedings. Thus, the court of appeals held that the anti-SLAPP statute applies in forcible entry and detainer cases so long as the conduct underlying the forcible entry and detainer case falls within the scope of the anti-SLAPP statue. The court of appeals urged the General Assembly to consider amending the anti-SLAPP statute to specifically address the statute's application to county courts and forcible entry and detainer proceedings to avoid a situation in which two different courts exercise appellate jurisdiction over the same proceeding at the same time. The court of appeals reversed the county court's order denying the special motion to dismiss and remanded the case to the county court to reconsider the motion after allowing the parties an opportunity to present supporting and opposing affidavits as set forth in section 13-20-1101 (3)(b). Applying the anti-SLAPP statute's two-part analysis, the county court is to determine (1) whether the tenant showed that the landlord's claim arises from an act in furtherance of the tenant's right of petition or free speech in connection with a public issue; and (2) whether the landlord established a reasonable likelihood of prevailing on the claim. Educ. reEnvisioned v. Sch. Dist. 11, Colorado Supreme Court No. 22SC940, (May 20, 2024) Holding: A board of cooperative services (BOCES) is prohibited from locating a school within the geographic boundaries of a nonmember school district without the nonmember school district's consent. Case Summary: Education reEnvisioned BOCES and Colorado Literacy and Learning Center (petitioners) opened a school within the geographic boundaries of Colorado Springs School District 11 (respondent). The respondent is not a member of the petitioner BOCES, and did not consent to the school opening. The district court granted the petitioners' motion for summary judgment, reasoning that the statutory language at issue permits a BOCES to operate a school "at any appropriate location". See section 22-5-111 (2), C.R.S. A division of the Colorado Court of Appeals reversed the district court's ruling, concluding that the statutory language at issue prohibits a BOCES from locating a school within the geographic boundaries of a nonmember school district without the nonmember school district's consent. The Colorado Supreme Court affirmed the Court of Appeals' conclusion. The Supreme Court reasoned that there is no language in the statutory language at issue that expressly allows a BOCES to locate and operate a school extraterritorially without the nonmember school district's consent. This is significant in this instance because related statutory language expressly requires consent. Furthermore, the Supreme Court reasoned that the relevant statutory section concerns facility procurement and financing. Consequently, there is no basis to conclude that such section granted broad authority to locate a school in a nonmember school district without consent. Finally, the Supreme Court reasoned that allowing a BOCES to locate a school anywhere would circumvent the Charter Schools Act, that requires extensive procedures before opening a charter school in the district. The Supreme Court did not reach a conclusion regarding the respondents' argument that a BOCES' placement of a school in a nonmember school district without the nonmember school district's consent violates local control under article IX, section 15 of the Colorado Constitution. Miller v. Crested Butte, LLC, Colorado Supreme Court No. 23SA186, (May 20, 2024) Holding: A private release agreement signed by the father of a child injured in a ski lift accident does not absolve the ski resort of liability under a negligence per se claim that is based on alleged violations of the Ski Safety Act of 1979 (“SSA”) (sections 33-44-101 to 33-44-114, C.R.S.), the Passenger Tramway Safety Act (“PTSA”) (sections 12-150-101 to 12-150-120, C.R.S.), and related regulations. Because the father’s claim was not barred by the signed release agreement, the district court erred in dismissing father’s “negligence per se” claim. Case Summary: A father made an online purchase of EPIC ski passes for himself and his minor daughter (“child”), agreeing to a release of liability, a waiver of claims, and an assumption of risks and indemnity on the child's behalf. While at the ski resort, the child failed at an attempt to sit on a moving chair lift. Allegedly, there was no operator or attendant at the load line to stop the chair lift or slow it down, and the father and child continued to move up the mountain with the chair lift. The child ultimately fell off the chair lift and suffered injuries that left her a quadriplegic. Father filed a lawsuit in district court alleging several negligence claims. The district court granted the ski resort’s motion to dismiss the father’s negligence-highest duty of care claim and his negligence per se claim. In an original proceeding under C.A.R. 21, the supreme court determined that the SSA and the PTSA were adopted for the public’s safety and that a violation of the SSA and PTSA, and regulations adopted pursuant to those acts, constitutes negligence per se if the violation was the proximate cause of the injury. A PTSA regulation adopted the American National Standards Institute’s guideline 3.3.2.3.3., which, among other things, requires lift operators to monitor the passengers’ use of aerial lifts. Further, section 33-44-103 (3.5), C.R.S., of the SSA states that nothing in that section limits the liability of a ski area operator for injury caused by the use and operation of ski lifts, and, pursuant to section 33-44-114, C.R.S., of the SSA, if any provision of law is inconsistent with the SSA, then the SSA controls. The supreme court further held that the SSA controls over section 13-22-107 (3), C.R.S., which generally allows a parent to release or waive prospective negligence claims of a child, noting that nothing in the legislation enacting section 13-22-107, C.R.S., expressly indicates the intent of the legislature to authorize liability waivers that would eradicate the statutory and regulatory duties that the legislature codified in the SSA and PTSA. The Colorado Supreme Court made no determination regarding the merits of the father’s negligence per se claim. People v. Herold, Colorado Court of Appeals No. 22CA1265 (May 16, 2024) Holding: For a conviction of felony DUI under §42-4-1301 (1)(a), the prosecution must prove that the defendant had a previous DUI conviction. A description that a person with a prior conviction was a "Caucasian Male" with the same name and date of birth as the current defendant is, without more, insufficient to prove the prior DUI conviction. Case Summary: A Sergeant responded to a call reporting an intoxicated individual passed out behind the wheel of a van. Upon arrival, the Sergeant found the defendant in the landscaping rock bed in front of the running van. After questioning, the defendant was arrested and later charged with felony DUI under §42-4-1301 (1)(a) that require prior convictions for DUI offenses. At trial, the defense argued in closing that although the defendant was sitting in the car drinking, that he did not drive it while intoxicated. At trial, the only evidence of the defendant's prior convictions were the Sergeant's video recording stating the defendant's name and date of birth and copies of records of prior convictions of a Caucasian male with the defendant's name, date of birth. The Colorado Supreme Court held that such evidence was insufficient to prove beyond a reasonable doubt that the defendant was the same person with prior DUI related convictions. People v. Vega Dominguez, Colorado Court of Appeals No. 21CA1144 (April 4, 2024) Holding: When the identical conduct results in convictions under two distinct crimes having different penalties, equal protection requires that the conviction of the crime with the more severe penalty must be vacated.Case Summary: In this case, the defendant was convicted of both attempted patronizing a prostituted child and attempted inducement of child prostitution. The court found that the identical conduct formed the basis for both convictions. While both attempted patronizing a prostituted child and attempted inducement of child prostitution are class 4 felonies, attempted patronizing a prostituted child qualifies as a sex offense that is punishable by "indeterminate" sentencing that can mean a life sentence whereas attempted inducement of child prostitution is punishable by only four years in prison. Since the prosecution focused on the meaning of "prostitution by a child," which is language contained in the statutory definitions of both patronizing a prostituted child and inducement of child prostitution, the court of appeals found the lower court to have violated the defendant's right to equal protection under the law and vacated the attempted patronizing a prostituted child offense. Freed v. Bonfire Entm't LLC, Colorado Court of Appeals No. 23CA0965 (June 20, 2024) and Hobbs v. City of Salida, Colorado Court of Appeals No. 23CA0073 (March 7, 2024) Freed Holding: The general assembly did not intend for the exemption in subsection (11) to apply to a private entity's music festival simply because the private entity secured a local amplified noise permit. Rather, the property subject to the permit must be used by the statutorily authorized permitting entity. Lessees, licensees, and permittees are exempted from the Noise Abatement Act only to the extent that they are involved in a state's, political subdivision's, or other nonprofit entity's use of property. (Agreeing with the dissent in Hobbs v. City of Salida, 2024 COA 25.) Hobbs Holding: The plain text of section 25-12-103 (11), C.R.S., provides municipal entities, such as the city of Salida, the authority to issue amplified noise permits to private entities to hold cultural, entertainment, athletic, or patriotic events, including concerts and music festivals, on the permittee's property. Case Summary: Two recent court decisions, each involving the interpretation of an exemption to the state's Noise Abatement Act, have created an explicit conflict within the Colorado Court of Appeals. The exemption was added in 1987 but was interpreted for just the first time this year. In Hobbs v. City of Salida, 2024 COA 25, a division of the Court of Appeals concluded that the plain text of section 25-12-103 (11), C.R.S., provides municipal entities, such as the city of Salida, the authority to issue amplified noise permits to private entities to hold cultural, entertainment, athletic, or patriotic events, including concerts and music festivals, on the permittee's property. The dissent in Hobbs argued that plain text of the subsection (11), considered in context, and alternatively, the legislative history of that subsection, authorizes a political subdivision of the state, such as a municipality, to issue amplified noise permits only to entities that will use property that is used by the political subdivision. In Freed v. Bonfire Entertainment, LLC, 2024 COA 65, a different division of the Colorado Court of Appeals considered a case that was very similar to Hobbs and that also required interpretation of section 25-12-103 (11), C.R.S. Agreeing with the dissent in Hobbs, the Freed court stated that the General Assembly did not intend for the exemption in subsection (11) to apply to a private entity's music festival simply because the private entity secured a local amplified noise permit. Rather, the property subject to the permit must be used by the statutorily authorized permitting entity. Under this reading of the statute, lessees, licensees, and permittees are exempted from the Noise Abatement Act only to the extent that they are involved in a state's, political subdivision's, or other nonprofit entity's use of property. Trump v. Anderson, United States Supreme Court No. 23-719 (March 4, 2024) Holding: Section 3 of the Fourteenth Amendment to the United States Constitution prohibits persons who have previously held office and engaged in insurrection or rebellion against the United States from holding certain public offices. Responsibility for enforcing Section 3 rests with Congress and not the states. Case Summary: A group of Colorado voters contended that section 3 of the fourteenth amendment to the United States Constitution prohibited then former President Donald J. Trump, who sought the presidential nomination of the Republican Party in the 2024 election, from becoming President again due to his actions on January 6, 2021. The Colorado supreme court agreed with that contention. It ordered the Colorado secretary of state to exclude the former President from the Republican primary ballot in the state and to disregard any write-in votes that state voters might cast for him. Under the terms of the opinion of the Colorado supreme court, its ruling was automatically stayed pending United States supreme court review. The United States supreme court held that the Constitution makes Congress, rather than the states, responsible for enforcing section 3 against federal officeholders and candidates. The text of the fourteenth amendment, on its face, does not affirmatively delegate to the states the power to enforce section 3 against candidates for federal office. The terms of the amendment speak only to enforcement by Congress, which enjoys power to enforce the amendment through legislation under section 5. States may disqualify persons holding or attempting to hold state office, but states have no power under the United States Constitution to enforce section 3 with respect to federal offices, especially the Presidency. Wolven v. del Rosario Velez, Colorado Court of Appeals No. 22CA2120 (January 18, 2024) Holding: A health-care provider lien agreement is excludable from discovery and at trial pursuant to section 38-27.5-103 (2), C.R.S., if the agreement meets the requirements of sections 38-27.5-104 (1) and 38-27.5-105 (4), C.R.S., at the time the lien agreement is created. Case Summary: In this personal injury case arising from a vehicular accident, the trial court excluded evidence of the plaintiff's health-care provider lien agreement from trial pursuant to section 38-27.5-103 (2), C.R.S., over argument from the defendant that the lien did not meet the statutory requirements because it was amended to comply with the statute only five days before trial. The court of appeals held that a health-care provider lien agreement is excludable from discovery and at trial pursuant to section 38-27.5-103 (2), C.R.S., if the agreement meets the requirements of sections 38-27.5-104 (1) and 38-27.5-105 (4), C.R.S., at the time the lien agreement is created. Because the amended lien agreement replaced the original lien agreement and the amended lien agreement met the statutory requirements at the time it was created, the trial court did not err in excluding the lien agreement at issue in this case. After finding that the trial court properly excluded the amended lien agreement, the court of appeals remarked: "We, however, share the trial court’s concerns surrounding the last-minute amendment of the QSN lien agreement ahead of trial. Because section 38-27.5-104 (1) and -105 (4) compliant health-care provider liens are required to be excluded from trial and discovery per section 38-27.5-103 (2), such last-minute changes could lead to gamesmanship. In affirming the trial court’s decision to exclude evidence of the amended QSN lien at trial, as required by statute, we in no way endorse plaintiffs changing lien agreements to comply with section 38-27.5-104 (1) on the eve of trial. However, only the legislature may provide more specific timing rules to determine whether a health-care provider lien that has been amended to conform with section 38-27.5-104(1) is admissible at trial."
