Monthly Archives: October 2013

Colorado Supreme Court will hear arguments at Arapahoe High School on Wednesday, Oct. 30th

The Colorado Supreme Court will hear oral arguments in two cases on Wednesday, Oct. 30, 2013, at Arapahoe High School in Centennial before an audience of students. The public also is invited to attend.

The proceedings will begin at 8:45 a.m. Wednesday, Oct. 30, 2013, in the auditorium at Arapahoe High School, 2201 E. Dry Creek Rd., Centennial, CO 80122. A question-and-answer session, during which the students may ask questions of the attorneys, will follow the arguments in each case. At the conclusion of the second argument, the students also will have the opportunity to participate in a question-and-answer session with the Supreme Court justices.

There will be a limited number of seats for the public. Audio recordings from the two arguments will be available online within one to two days of the arguments at

Additional information on the Courts in the Community program is available at:

The two cases are both criminal cases (and so the resulting opinions will not be covered here).

12SC235: People of the State of Colorado v. Joddy Carbajal – Joddy Carbajal, who had been convicted of a felony in a previous case, was charged with three counts of possession of a weapon by a previous offender after police investigating a murder executed a search warrant at his home and found three handguns. During trial, the defense admitted Mr. Carbajal knowingly possessed the guns, but he testified he kept them to protect himself and his property. In his testimony, he said he had been threatened and later attacked in his home, and moved to a new home where he installed a security system. The trial court’s instructions to the jury said it was an affirmative defense to the possession charge if a person possesses a firearm for defense of himself, home or property from what he reasonably believed to be a threat of imminent harm. The defense objected because the typical instruction for this type of weapon-possession case does not include the element of belief of a threat of imminent harm. The trial court overruled the objection, and the jury convicted Mr. Carbajal of two of the three counts. On appeal, a Colorado Court of Appeals division unanimously concluded the “threat of imminent harm” language should not have been included in the jury instructions and ordered a new trial. Prosecutors appealed, and the Supreme Court agreed to review the case.

12SC219: Ricky Cuong Hoang v. People of the State of Colorado – Ricky Hoang was one of several men convicted of charges stemming from an armed robbery in Jefferson County. He was sentenced to 180 years in prison. The Colorado Court of Appeals affirmed his conviction, and the Supreme Court agreed to review whether Mr. Hoang’s right to a meaningful and speedy appeal was violated due to problems with the record from his trial; and whether the trial court abused its discretion by requiring him to wear leg shackles during the trial. It took nearly four years from the time Mr. Hoang filed his appeal with the Court of Appeals for the court reporter and trial court to reconstruct the record, which was missing some trial exhibits and which contained an incomplete and inaccurate transcript. About two years after the corrected transcript and record were filed with the Court of Appeals, a division of that court rejected Mr. Hoang’s claims of prejudice due to the delay and prejudice due to the leg shackles.

The documents related to these two cases are located at:

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In Re: Interrogatory Propounded by Governor John Hickenlooper Concerning the Constitutionality of Certain Provisions of Article XXI, § 3 of the Constitution of the State of Colorado, 2013CO62 (Oct. 21, 2013)

“[T]he United States Supreme Court’s precedent (and common sense) make clear that virtually no regulation that compels voters to take a position can pass constitutional muster.” – Opinion. On August 28, 2013, the Court struck down Colorado’s Constitutional provision known as the Prior Participation Requirement (PPR) as violative of the US Constitution. This opinion explains why. The Court exercised its original jurisdiction to answer an interrogatory from the Governor because a citizen’s right to vote is the essence of a democratic society. The Court then determined that the PPR violated the First and Fourteenth Amendments because it compels speech on the recall question and nullifies a vote on the successor question. The dissenters would not have answered “this hypothetical question” and disagreed that prior participation compels speech once a voter decides to vote.

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Bristol Bay Productions, f/k/a Crusader Entertainment v. Peter Lampack; The Peter Lampack Agency; Simon & Schuster; and Penguin Group USA, 2013CO60 (October 21, 2013)

“The fox chases the rabbit around the tree and down the hole. That’s how the tie works buddy.” Dirk Pitt – Sahara. Plaintiff Bristol Bay (BB) produced Sahara, based on a Clive Cussler novel. Cussler told BB he had sold over 100 million books; actually it was 40 million. The movie failed and BB lost around $50 million. BB sued Cussler in California for fraudulent inducement. A CA jury found that BB’s damages were not caused by Cussler’s lie. BB then sued different defendants – Cussler’s agents – in Colorado for the same exact claim. Defendants moved to dismiss, arguing the claims were precluded by the CA action and won. The Court agreed because the identity of the defendant is irrelevant to whether plaintiff’s reliance caused damages. But, the trial court should have converted the CRCP 12 motion to CRCP 56 because preclusion was an affirmative defense based on matters outside the pleadings.

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Annette Berenson v. USA Hockey and Colorado Ice Hockey Referees Association, 2013COA138 (Oct. 10, 2013)

“They’re saying it’s because I agreed to the latest terms and conditions on iTunes!” Kyle Broflovski – South Park. If you click “I Agree” to an online waiver, can they prove it? The Best Evidence Rule codified in CRE 1002 states that to prove the contents of a writing, the original writing is required, unless an exception applies. An amateur female hockey player registered online to play in a league online, was injured, and sued the league. The league claimed she released her claims, but did not provide the release and did not claim an exception. Instead, it submitted an affidavit stating a waiver had to be initialed to complete online registration; she had registered; so she must have released her claims. The court, over a dissent, held that because the terms of the contract were not in dispute, the original contract was not required, and thus the league’s affidavit was admissible.

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Happy First Monday!

For all you SCOTUS watchers out there, today marks the beginning of a new season of fantasy ruling. The CLR has been admittedly slow to post recently, but things will pick up again here as well. As for the Colorado Supreme Court, look for a wave of new grants and would have granted cert posts. Happy court watching.

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