Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Hice & Town of Olathe v. Nichele Giron
Walter Giron and Samuel Giron died when Officer Justin Hice accidentally collided with the Girons’ van as the officer pursued a suspected speeder. The Girons’ family and estate representatives, Nicole Giron, Amanda Giron and Thomas Short, brought the underlying wrongful death action against Hice and his employer, the town of Olathe.
The defendants claimed immunity under the Colorado Governmental Immunity Act. The district court dismissed the action because it determined the defendants were immune from suit under the CGIA. The district court reasoned “Officer Hice had his emergency lights illuminated in sufficient time to provide warning to Mr. Giron,” and therefore the plaintiffs failed to meet their burden of showing the defendants waived immunity. The district court also explained it “d[id] not find that [O]fficer Hice created an unreasonable risk of injury during his pursuit” because of the “favorable” driving conditions and because Hice “had to drive fast to catch a speeder,” “had specific training in driving fast” and “just before the collision was decelerating and trying to avoid a crash.”
The plaintiffs countered the defendants aren’t entitled to immunity because Hice allegedly failed to continuously use his emergency lights or siren while speeding before the accident. A division of the Colorado Court of Appeals agreed with the plaintiffs, concluding “an officer is not entitled to immunity when he does not activate his emergency lights or siren for the entire time he exceeds the speed limit and is in pursuit of an actual or suspected violator of the law,” citing the Colorado Court of Appeals decision Giron v. Hice, regardless of whether the failure to use alerts related to the eventual accident.
The Colorado Supreme Court held an emergency driver waives CGIA immunity when a plaintiff’s injuries could have resulted from the driver’s failure to use alerts while speeding in pursuit of a suspected or actual lawbreaker.
After evaluation, the Colorado Supreme Court reversed the judgment of the Court of Appeals and remanded the case to determine if Hice’s failure to use his lights or siren until the final five to 10 seconds of his pursuit could have contributed to the accident. It also ordered the Court of Appeals to analyze whether Hice waived governmental immunity by failing to satisfy the condition that emergency drivers refrain from endangering life or property while speeding.
The state Supreme Court deferred to the Court of Appeals as to whether further remand to the district court is necessary.
Sir Mario Owens appealed to the Colorado Supreme Court his convictions of two counts of first-degree murder after deliberation, one count of conspiracy to commit first-degree murder after deliberation, three counts of witness intimidation and one count of accessory to a crime. These convictions resulted in a death sentence. The general assembly abolished the death penalty and Gov. Jared Polis commuted Owens’s sentence to life in prison without the possibility of parole. Although the Colorado Supreme Court consequently determined the unitary review process no longer applied in this case, it chose to retain jurisdiction over this appeal.
Owens presented six issues for determination: whether the trial court constitutionally erred in preventing him from conducting voir dire on racial issues and in prohibiting him from informing the jury of the race of one of the victims; whether the trial court reversibly erred in rejecting his challenges under the U.S. Supreme Court decision Batson v. Kentucky after the prosecution consecutively struck two death-qualified prospective Black jurors; whether the trial court abused its discretion in admitting, under the res gestae doctrine and Section 404(b) of the Colorado Rules of Evidence, allegedly excessive evidence of prior, related shootings that occurred in Lowry Park; whether the trial court erroneously refused to declare a mistrial following a witness’s outbursts and her repeated declarations from the stand that Owens was guilty; whether the trial court’s exclusion of extrinsic evidence to impeach that same witness constituted an abuse of discretion and prevented Owens from presenting a complete defense; and whether Owens was denied a fair trial under the cumulative error doctrine.
The state Supreme Court concluded the trial court didn’t prevent Owens from conducting voir dire on potential racial bias and didn’t constitutionally err in declining to inform the jury of the race of one of the victims, properly overruled Owens’s Batson challenges, properly admitted evidence of the Lowry Park shootings under Sections 404(b) and 401–403, properly denied Owens’s mistrial motions and allowed sufficient cross-examination and impeachment of the prosecution’s key witness while reasonably excluding extrinsic evidence of collateral matters. Having determined Owens didn’t establish any individual errors warranting reversal, the state Supreme Court also concluded he didn’t establish reversible cumulative error.
The Colorado Supreme Court affirmed the conviction.
In the past 11 years, Nina Kazazian has initiated no fewer than 10 lawsuits and twice as many appeals. Her actions have resulted in admonishment, sanctions and ultimately her disbarment from the practice of law. Now, no longer constrained by the ethical obligations of attorneys, Kazazian persists as a pro se party, creating new proceedings or prolonging old ones to continue her fruitless attempts at relitigating long-decided issues. This vexatious behavior has led several petitioners to ask to permanently enjoin Kazazian from proceeding pro se in Colorado state courts.
Faced with the nature of Kazazian’s misuse of the legal system, the Colorado Supreme Court was compelled to grant the petitioners’ requested relief.
According to the opinion, Article II, Section 6 of the Colorado Constitution affords litigants the right to the administration of justice “without sale, denial or delay.” But the Colorado Supreme Court concluded this right is impeded when a pro se party “pursues myriad claims without regard to relevant rules of procedural and substantive law,” citing the Colorado Supreme Court decision Board of County Commissioners of Morgan County v. Winslow.
In those rare instances, the pro se litigant’s right of access to state courts isn’t absolute and may be curtailed to cease continued disruption of judicial administration. The state Supreme Court concluded it had “the duty and the power to protect courts, citizens and opposing parties from the deleterious impact of repetitive, unfounded pro se litigation.” By balancing a pro se litigant’s “right of access” against the interests of the public, the court heeded that duty, citing the Colorado Supreme Court decision Francis v. Wegener.
After evaluation, the Colorado Supreme Court concluded Kazazian was hereby enjoined, whether acting individually or on behalf of another entity, from proceeding pro se as a proponent of a claim in any present or future litigation in the state courts of Colorado. The chief judge of each judicial district shall notify the clerk’s offices in that judge’s district about this opinion and instruct the staff to reject any filing from Kazazian that violates this injunction.
At her eviction trial, Claire Miller tried to argue her landlord improperly terminated her tenancy and filed a forcible entry and detainer action to evict her because she refused to have sex with him, the opinion noted. It’s undisputed Miller asserted this as a defense in the written answer she filed with the county court and that, if proven, her landlord’s conduct would constitute discrimination and retaliation under Sections 24-34-501 to -509 of the Colorado Revised Statutes.
But the county court wouldn’t allow Miller to assert the alleged Colorado Fair Housing Act violation as an affirmative defense at trial, concluding a landlord can serve a notice to quit a tenancy for “no reason or any reason.” Accordingly, it entered judgment for possession in favor of Miller’s landlord. On appeal, the district court affirmed.
The Colorado Supreme Court granted certiorari to address whether an alleged violation under the CFHA can be raised as an affirmative defense to an FED action. After examining the interplay between the CFHA and the FED statute, Sections 13-40-101 to -123, the state Supreme Court concluded a tenant may assert a landlord’s alleged violation of the CFHA as an affirmative defense to an FED eviction and reversed the judgment of the district court.