Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
“We can — and do — dispense with this interlocutory appeal in short order,” the Colorado Supreme Court’s seven-page per curiam opinion begins. The state brought the appeal from a trial court order to suppress cell phone evidence in a child pornography case against Joe Ramos, which the high court affirmed.
Greeley police received a tip in 2019 alleging that Ramos had child pornography on his phone. The police found unrelated outstanding warrants for Ramos and went to his home to execute the warrants and follow up on the tip. They saw cell phones sitting on a table in Ramos’ backyard and called a number the tipster said belonged to Ramos. One of the phones rang and the police seized that phone without a warrant.
Ramos was arrested and charged with numerous counts, including possession of child pornography. He filed motions to suppress phone evidence, including one that alleged the officers had “unlawfully seized” his phone and that all statements, observations and evidence obtained as a result of the unlawful seizure must be suppressed. During a hearing on the motions, the court told the parties to file simultaneous briefing on outstanding issues. The trial court suppressed the evidence obtained as a result of the warrantless seizure of the phone, finding the state failed to establish probable cause or show a warrant wasn’t needed.
In its interlocutory appeal to the Colorado Supreme Court, the state argued it was not on notice that the seizure of Ramos’ phone was at issue. “This contention cannot withstand the weight of the record,” the high court said in its opinion. At the hearing, the judge said he was “not sure what the Prosecution’s theory is for obtaining the cellphone,” and the prosecutor responded “that’s the one thing that we would definitely need to provide written argument on,” according to the opinion. Given these comments, as well as evidence presented during the hearing, the state had plenty of notice that it needed to make arguments to support the warrantless seizure of Ramos’ phone, the high court said. It affirmed the trial court’s suppression of the evidence.
In this case, the Colorado Supreme Court considered whether the state’s public pension laws allow a retiree to unilaterally remove a spouse as a cobeneficiary during a divorce and concluded it doesn’t.
Upon retirement, members of the Public Employees’ Retirement Association can choose between three options for benefit distribution. The first results in a higher monthly payment but payments cease when the retiree dies. The other two options result in lower monthly payments but allow the retiree’s named cobeneficiary to continue to receive payments.
Robert Mack started working for the City of Colorado Springs shortly after his marriage to Deborah Mack in 1987. He contributed to his retirement through his PERA plan until his retirement in 2012. He chose the third PERA payment option, which would give him a monthly benefit for his lifetime and pay the entire monthly benefit to his wife after his death.
Deborah Mack filed for divorce in 2018. Robert Mack asked for his wife to be removed as his PERA cobeneficiary and to convert to the first payment option, which would make him the sole beneficiary. The district court rejected the husband’s request, finding that the PERA account was marital property that must be divided equitably. The Macks then signed an agreement saying that Robert Mack was not allowed to remove his wife as cobeneficiary and they would split the monthly PERA payments equally.
Robert Mack filed for post-trial relief and asserted a new argument. He cited a statute about changes to PERA options and cobeneficiaries that says a judge may allow a divorcing retiree whose benefits will continue after death to remove a spouse as cobeneficiary and switch to the option with higher payments that end at death. He argued this statute gave him an “absolute right” to remove his wife as cobeneficiary and switch to a different payment option.
The district court disagreed and denied Robert Mack’s motion. A division of the Colorado Court of Appeals later affirmed the lower court’s decision in an unpublished opinion. Robert Mack appealed to the state Supreme Court.
“The question here is whether a divorcing retiree can trigger the statute’s removal-and-conversion mechanism, or whether that power lies only with the presiding court,” states the opinion by Chief Justice Brian Boatright. Robert Mack argued the statute’s language doesn’t just enable the court to remove his wife as cobeneficiary but required it to do so at his request.
The high court disagreed. The statute doesn’t obligate the court to carry out the retiree’s request, the justices concluded. The plain language of the statute gives the trial court authority to remove a former spouse as cobeneficiary, not the retiree, according to the court, which affirmed the judgment of the Court of Appeals.
Arapahoe County Department of Human Services v. Monica Velarde and Michael Moore
The Department of Human Services for Arapahoe County sued Monica Velarde and Michael Moore to recover Medicaid overpayments after a decade of trying to recoup the payments out of court.
The district court dismissed the lawsuit, finding a section of the Colorado Administrative Procedure Act requires an agency seeking judicial enforcement of one of its final orders to do so within 35 days of the order’s effective date. A division of the Court of Appeals agreed for the same reason.
However, the Colorado Supreme Court reversed, finding the division misread the 35-day deadline as applying to both proceedings brought by an agency seeking judicial enforcement and by an aggrieved person seeking judicial review of an agency’s action. The high court concluded the 35-day deadline applies to the latter, not the former.