Justice Monica Marquez’s appointment as chief justice to the Colorado Supreme Court brings to a close Chief Justice Brian Boatright’s three-year term. The final months of Boatright’s term saw several important decisions, as the state’s high court issued significant rulings in cases involving housing, search warrants and privileged medical records.
On the Colorado Court of Appeals side, divisions of the court decided cases that will have an impact on immigration law and insurance law across the state.
Search Warrants Extend to Unknown Areas
On the criminal law front, the Colorado Supreme Court justices concluded a search warrant can be extended to a previously unknown part of the residence.
In Dhyne v. People, the warrant obtained by the Clear Creek County Sheriff’s Department allowed a search for computer equipment and other electronic storage devices on the property, which appeared to be a single-family home and was listed as such by the county assessor’s office, according to the opinion.
But while conducting the search, Kevin Dhyne left the basement of the house. He wasn’t listed on the warrant, and until that day, police didn’t know he lived on the property. But Dhyne was using the same IP address of the residence, which was the probable cause supporting the warrant.
The lieutenant on the scene believed the basement fell within the scope of the warrant, and officers searched the apartment and seized several computers. One of those computers was found to contain sexually explicit material involving children.
The trial court allowed the evidence from the search to be admitted at trial, and Dhyne was convicted of two counts of sexual exploitation of a child. On appeal, the state’s high court held that based on Dhyne’s use of the suspect IP address, the search of his basement apartment was reasonable.
Appeals Court Rules Against Immigrant Arrests and Detentions
Earlier in July, the Colorado Court of Appeals made a consequential decision for immigrants and immigration law in the state. Sheriff Jason Mikesell in Teller County entered into a 287(g) agreement with U.S. Immigrations and Custom Enforcement, under which ICE trains and certifies local law enforcement officers to perform certain immigration enforcement functions.
Taxpayers living in Teller County sued over Mikesell’s authority to enter into this agreement. While the appeals court didn’t decide whether the agreement entered into between the sheriff’s office and ICE violated the Colorado Constitution, it did conclude that Colorado statute prohibits the arrests and detentions that were purportedly authorized under the agreement.
Tim Macdonald, legal director of the ACLU of Colorado, told Law Week via email that the decision made by the trial court allowing the detention of individuals under the agreement was wrong and needed to be reversed. Macdonald was one of the attorneys representing the Teller County residents.
“The Colorado Court of Appeals rightly concluded that Teller County Sheriff Jason Mikesell cannot hold individuals in jail based on mere requests from ICE and made clear that this harmful and anti-immigrant practice violates Colorado law,” said Macdonald. “Holding people in jail, when they should be released, does nothing to keep Coloradans safe.”
Stephen Masciocchi, a partner at Holland & Hart and another attorney on the case, said the decision was a first in the country.
“This was the first trial to examine the legality of a Sheriff’s 287(g) program with ICE and the first in the country holding that a sheriff violates state law by detaining immigrants pursuant to a 287(g) agreement,” said Masciocchi via email.
Macdonald thinks the use of these agreements is bad for Colorado communities, and asserted they lead to fear of the police, racial profiling and a reluctance to report crimes.
“We hope that this case will send the message to law enforcement in Colorado that local officers have no business acting as federal immigration agents and that 287(g) agreements do not provide authority to violate Colorado law,” said Macdonald. “This decision also reinforces our state’s strong policies protecting the liberty of all Coloradans and will force the sheriff to comply with Colorado law that forbids state and local law enforcement officers from arresting or detaining persons based on ICE documents that are not signed by a judge.”
Advocates for Victims of Illegal Alien Crime filed an amicus curiae brief in support of Mikesell.
“Local law enforcement personnel have a federal right to independently cooperate with federal law enforcement in detaining and removing criminal aliens in order to protect Coloradans from the harm inflicted by illegal and mass immigration,” the brief argued. “AVIAC supports protecting Americans and law-abiding immigrant communities. AVIAC also supports the 287(g) program, which helps ensure that criminal aliens are detained until removed to their countries of origin.”
Rental Companies as de facto Insurers
Another case that went before the Colorado Court of Appeals, Babayev v. Hertz, was a highly significant decision, according to Bradley Levin, shareholder at Levin Sitcoff. Levin Sitcoff represented Stanislav Babayev and Oleg Chikov in the case.
“Reversing the district court’s ruling, the court found that, when a rental car company such as Hertz offers uninsured/underinsured motorist coverage to a customer and collects an additional fee for that coverage, the rental car company becomes an insurer and thus subject to the laws in Colorado governing misconduct by insurers, including the common law and statutory bad faith laws,” said Levin via email. “In reaching this conclusion, the court rejected Hertz’s arguments that, based on certain legislative amendments to the statutes governing the requirements for automobile insurance policies, rental car companies could not be considered to be insurers that issue insurance contracts.”
The impact of the decision has a wide-ranging impact, Levin noted, with how ubiquitous car rental agreements are and the rental companies’ offers of insurance coverage for a fee at the time of the rental plus the duties and responsibilities owed to consumers when they purchase that insurance.
Levin found another aspect of the Babayev decision cogent. The appeals court also found disputed facts as to whether Hertz was a de facto insurer that owed the plaintiffs an insurer’s duty of good faith and fair dealing.
“In so holding, the court applied a line of cases to the effect that non-insurers, such as claim adjusting services, become de facto insurers if they perform the functions of an insurer and have a financial incentive to limit an insurer’s claims,” said Levin.
“As a whole, this decision reflects the Colorado appellate courts’ continued vigilance in ensuring that the state’s laws, including its legislative enactments, are interpreted and applied in a manner that protects purchasers of insurance and their reasonable expectations of coverage when they pay their premiums for it,” added Levin.
But the case may not be finished. Levin told Law Week that Hertz filed a petition for certiorari review by the Colorado Supreme Court, which is pending.
Supreme Court Rules on Aspect of the CFHA
An important case for tenant rights went before the Colorado Supreme Court this year, Spencer Bailey, senior attorney and appellate supervisor at the Community Economic Defense Project, told Law Week via email. Bailey represented Claire Miller in the case.
The case, Miller v. Amos, dealt with a question related to the Colorado Fair Housing Act: whether a tenant can raise a violation of the act as an affirmative defense to a forcible entry and detainer eviction.
In its ruling on the case, the Colorado Supreme Court said yes.
“By definitively answering the questions raised by this case, the Supreme Court has clearly put Colorado in line with virtually every other state that has addressed the question of whether a fair housing statute may be used defensively in an eviction,” said Bailey. “Furthermore, the Colorado Supreme Court rarely takes cases to resolve legal questions that arise in the landlord-tenant context. Practitioners and the lower courts have been needing guidance from the Colorado Supreme Court and this case provided some of that needed direction.”
Bailey knows of no other Colorado cases where CFHA was raised as an affirmative defense, which makes this the first published decision on the question in the state. Outside of Colorado, he noted that there have been other states that have held that their equivalent statute or the federal Fair Housing Act could be used to defend an eviction.
But in Colorado, Bailey said the ruling will strengthen fair housing and reduce evictions for retaliatory or discriminatory reasons.
“The Supreme Court’s decision in Miller v. Amos should give direction to the lower courts when they grapple with whether a different statute that serves to protect tenants’ interests can also be used to defend against an eviction,” said Bailey. “Too frequently, the trial courts in Colorado operate as if the expedited nature of an eviction means tenants’ due process rights are tossed aside. The Colorado Supreme Court firmly rejected that view and we hope to see the decision continue to have a broader impact.”
Clarification of the Physician-Patient Privilege in Estate Cases
Privilege is a term attorneys are very familiar with, but it’s typically related to attorney-client privilege. But in one case before the state’s high court this year, the justices were asked to decide on the admissibility of privileged medical records.
In the case of In the Matter of the Estate of Ashworth, Brian Ashworth contested the validity of his father’s most recent will. Christine Miller was ordered by the trial court to produce medical records for the final eight years of Robert Ashworth’s life for an in-camera review. She resisted this disclosure, according to the opinion, citing physician-patient privilege.
In this case, the Colorado Supreme Court held that while physician-patient privilege survives the privilege holder’s death, the testamentary exception provides for disclosure of privileged medical records if they are required to administer the estate.
Brynne Gant, the owner of Gant Law, represented Brian Ashworth in the case. She told Law Week via email that the issue brought up in this case was novel, but ancillary to similar and resolved issues. She noted that one of the main cases she and her team looked at was In Re Shapter’s Estate, a Colorado Supreme Court case decided in 1905.
“This case referenced similar treatment of both an attorney-client privilege and a physician-patient privilege in regard to the underlying purposes of the privilege, which was a much-needed bridge for applying other cases that dealt only with the attorney-client privilege but in our same context of will-contest situations,” said Gant.
She believes this case clarifies a long-standing practice and interpretation that an implied waiver of physician privilege exists.
“While practitioners have long treated the physician-patient privilege this way, a clear holding in support of the practice was needed and past-due, so we are pleased that the Supreme Court has so clarified,” said Gant. “We feel this will better safeguard the true intent of many of our most vulnerable community members by making it more difficult for third parties to exploit their compromised mental capacity without recourse.”