By Clara Geoghegan and Matt Suoja
LAW WEEK COLORADO
Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
The Colorado Supreme Court clarified how interest should be calculated when a party appeals a monetary judgment against it. A 4-2 en banc majority of the state Supreme Court found parties that appeal a judgment against them, no matter the appeal outcome, trigger the accrual of market-rate interest on the judgment as opposed to a higher 9% interest rate set by the Colorado General Assembly that applies before the appeal.
Forrest Walker was rear-ended in 2009 while stopped in traffic in his 1998 Ford Explorer. On impact, the driver’s seat went backward which caused Walker to sustain permanent injuries. Walker sued his car’s manufacturer alleging that the car seat was defective, which caused the seat to move backward on impact, and contributed to or caused his injuries.
A jury awarded Walker $2.9 million in damages against Ford but the manufacturer appealed in 2013 based on instructions given to the jury. The Colorado Supreme Court agreed in part with Ford and a new trial was held in 2019, a decade after the original crash. The second jury also ruled in Walker’s favor and awarded him $13,000 more than the first judgment.
Walker asked the district court to award him 9% interest on the final judgment starting from the crash in 2009 through the satisfaction of the final judgment in 2020. Ford agreed that state law set the 9% interest rate from 2009 through 2013, but it argued that a lower, market-rate interest should’ve been applied during the post-judgment period starting in 2013. The district court sided with Walker. It applied the 9% interest rate set out by Colorado Revised Statutes section 13-21-101 and ordered Ford to pay $3.6 million in interest. Ford appealed the interest judgment, but the Colorado Court of Appeals affirmed the decision, citing the plain language of the statute and ruling that the 2019 award waived the original award and interest accrual.
In its appeal to the Colorado Supreme Court, Ford argued that while the first section of the interest on damages statute says interest must accrue at 9% from the filing of the action until satisfaction of the judgment, another section says that a market-based post-judgment rate applies when a judgment is affirmed, modified or reversed with a direction for a judgment to be entered by the trial court. The statute doesn’t specify what should happen if the judgment is reversed and remanded for a new trial, as in Ford’s case.
The state Supreme Court agreed with Ford that the statute is ambiguous.
Within the statute are three subsections that lay out circumstances when the statutorily mandated 9% interest rate shifts to a market interest rate. “The interplay among this trio of provisions requires us to navigate a jurisprudential Bermuda Triangle — all the while ensuring that none of the provisions mysteriously disappear,” wrote Justice Carlos Samour in the majority opinion. Both Walker and Ford had reasonable interpretations of the statute, the court found, meaning the statute is ambiguous.
The Colorado Supreme Court added that the Court of Appeals incorrectly sidestepped whether or not the statute was ambiguous. The Court of Appeals reasoned that a plain-language reading supported Walker’s position, but, the state Supreme Court found, it could also support Ford’s position. The Court of Appeals’ interpretation of the statute was contradictory, the state Supreme Court added.
Next, the Colorado Supreme Court turned to the General Assembly’s intent to interpret the ambiguous statute. Based on the statute’s amendments, statements from the bill’s sponsors and court interpretation, the court held the market-rate exception of the statute is meant to neutralize any economic incentives or disincentives to appeal a court’s decision.
The only reading that preserved legislative intent and didn’t contradict itself, the Supreme Court held, requires a 9% statutory interest rate during the pre-judgement period that shifts to a market rate once a party appeals. “We conclude that the market-based post-judgment interest rate controls during the period between entry of the appealed judgment and satisfaction of the final judgment,” wrote Samour, joined by Justices Brian Boatright, William Hood and Richard Gabriel.
The case was remanded for recalculated interest.
Dissenting from the majority, Justice Monica Márquez, joined by Justice Melissa Hart, wrote in support of the Colorado Court of Appeals’ finding. The subsequent judgment overrode the original judgment, Márquez found, and therefore there wasn’t a period to trigger the market-rate interest rate specified by state law.
“Because the 2013 judgment was reversed and the case was remanded for a new trial, the judgment that was entered was nullified; it ceased to exist. The only legally valid judgment in this litigation to which any interest can attach is the judgment that entered in 2019,” wrote Márquez.
By factoring in the general assembly’s presumed intent of the statute, the dissenting justices found, “the majority ignores the fundamental legal principle that a judgment that is reversed is void and of no effect” and defined the phrase “judgment” inconsistently.
They added that the Colorado Supreme Court has previously tried to understand legislative intent behind the statute, and has only made the issue less clear.
“How to fashion an interest scheme that neutralizes the financial incentives (or disincentives) to appeal while ensuring that a successful tort plaintiff is fully compensated is a complex policy issue,” wrote Márquez. “However, I would leave the role of balancing these competing legislative objectives where it properly belongs, with the General Assembly, and simply apply the statute as written.”
Nathanael Owens is serving three consecutive prison sentences totaling 24 years with the Colorado Department of Corrections: a four-year sentence for vehicular eluding and two 10-year sentences for aggravated robbery.
As required by state law, the DOC treats the three separate sentences like one long, continuous sentence for the purpose of calculating parole. But the two sentences carry different parole eligibility standards. A prisoner is eligible for parole after serving 50% of a vehicular eluding sentence, but after 75% of an aggravated robbery sentence.
The DOC used a hybrid method to find Owens’ would be eligible for parole after 17 years, which it calculated by adding 75% of his aggravated robbery sentences to 50% of his eluding sentence.
Owens sued DOC officials seeking a writ of mandamus, taking issue with the application of the 75% rule to his robbery sentences. He argued that the 75% rule only applied to inmates with a previous conviction for a crime of violence and urged the court to apply the 50% rule to all three sentences.
In a motion to dismiss, the DOC disputed Owens’ claim and stated that it recalculated his parole eligibility period by applying the 75% rule to the total sentence, resulting in a new date of 18 years. The DOC used a 2017 Colorado Supreme Court decision where the court held the one-continuous-sentence mandate applied to parole calculation eligibility to support the new parole period.
A district court granted the motion to dismiss and found Owens didn’t establish a “clear right” to have his parole date calculated entirely with the 50% rule. The Colorado Court of Appeals affirmed in 2020, holding that the DOC had the discretion to apply the 75% rule to Owens’ continuous sentence.
In a special concurrence, Colorado Court of Appeals Judge Michael Berger expressed concern over the wide discretion given to the DOC and proposed a hybrid method, the one originally used in Owens’ case, that could calculate an inmate’s parole eligibility without violating the one-continuous-sentence mandate. The DOC recalculated Owens’ parole eligibility using its original hybrid method.
Owens once again appealed and the Colorado Supreme Court considered if the DOC must factor in different parole eligibility statutes in consecutive sentences or if it has the discretion to apply one eligibility state to an entire sentence. Owens again asserted that the 50% rule should be applied to his sentence, but alternatively, that the DOC is required to employ a hybrid method. The Colorado Attorney general in response argued the latest calculation made the appeal moot, but alternatively, the Court of Appeals was correct.
The state Supreme Court rejected Owens’ argument that the 50% rule should’ve been applied to his aggravated robbery sentence but it agreed that the DOC was required to apply the hybrid model.
While the DOC has broad discretion to determine parole eligibility, the Colorado Supreme Court found, its discretion doesn’t extend over the state or constitutional rights of inmates or legislative intent. In Owens’ case, the DOC didn’t follow statutory requirements for calculating parole eligibility. The Colorado Supreme Court found the original, hybrid system used by the DOC was in-line with statutory requirements. “This system at once honors the two different calculation rules and the one-continuous-sentence requirement,” the unanimous en banc opinion explained.
Since Owens’ parole eligibility was successfully recalculated, no further action was necessary in the case, the state Supreme Court found.
In re Parental Responsibility of E.K.
Steven Cook and Holly Cook married in 2013. They went on to have two children. Holly Cook had a child, named in court documents as E.K., from a previous marriage who she shared custody of with E.K.’s biological father Martin Kristiseter. E.K. spent increasing amounts of time with Steven Cook and Holly Cook after the couple moved farther from Kristiseter and Steven Cook played an active role in E.K.’s life, transporting her to school, showing up for her parent-teacher conferences, helping her with homework, paying for daily expenses and taking her on family vacations. He was also involved in discussions about paying for private school and college tuition for E.K.
Steven Cook and Holly Cook separated in 2021 and E.K. lived with Steven Cook in the marital residence for the rest of the school year. Learning that the couple filed for divorce, Kristiseter removed E.K. from the home later that year.
Steven Cook filed for allocation of parental responsibilities over E.K. as a psychological parent in the Arapahoe County District Court. Holly Cook and Kristiseter filed in opposition, arguing that the relationship with E.K. was incidental to the marriage and that, during the separation, Steven Cook never had exclusive care of the child.
The district court found that Steven Cook played only a supportive role to Holly Cook and declined to factor in the eight years E.K. lived with Steven Cook to determine if he had standing for allocation of parental responsibilities. The court dismissed the petition and ordered Steven Cook to pay for attorneys fees for his pursuit of what the court deemed a frivolous action.
Steven Cook filed a C.A.R. 21 petition to the Colorado Supreme Court seeking a rule to show cause, which it granted. The Supreme Court found Steven Cook did in fact have standing to bring an allocation of parental responsibilities petition, which the district court incorrectly dismissed.
“Despite this narrow focus, the district court, in finding that [Steven Cook] did not meet the standing requirements as outlined in section 14-10-123(1)(c), read into that provision an exclusivity requirement and a consent requirement, both of which this court has rejected,” explained the unanimous en banc opinion.
Under state law, “physical care” of a child means both literal physical care as well as the psychological bonds developed between an adult and child. The state Supreme Court noted that an adult’s physical care of a child doesn’t need to be exclusive for a court to consider it. The court also noted that a parent doesn’t need to consent to a non-parent assuming or sharing a child’s physical care.
Steven Cook only needed to prove he had physical care of E.K. for a 182-day period, the state Supreme Court held. When he co-parented E.K. with Holly Cook, Steven Cook met this requirement. He didn’t need parental consent during this time to establish standing, the court added.
In arguing Steven Cook only had a relationship with E.K. through his relationship with Holly Cook, E.K.’s biological parents disregarded “the nature, frequency and duration of contacts between E.K. and [Steven Cook],” explained the state Supreme Court. By deeming he wasn’t the primary caregiver, the district court also failed to factor in the factors around Steven Cook’s relationship with E.K., the Colorado Supreme Court held.
Based on Steven Cook’s relationship with E.K. prior to the divorce, he was more like a co-parent than a temporary caregiver, the court added.
The Arapahoe County Court incorrectly dismissed the petition for lack of standing and therefore also incorrectly awarded attorneys fees against Steven Cook, the Colorado Supreme Court found, and remanded the case for further proceedings.
The People of Colorado v. Yolanda Ursula Vialpando
The Colorado Supreme Court en banc has unanimously reversed a court of appeals decision in an auto theft case where a prosecutor was accused of making improper comments in closing arguments connected with the suspect’s Sixth Amendment right to a jury trial. The defense also argued that numerous errors lead to the suspect not having a fair trial.
Yolanda Vialpando was charged with vehicular assault, vehicular eluding, first-degree aggravated motor vehicle theft and driving under restraint. During closing arguments, the prosecutor said her flight “continues to this moment … has continued up and to this point.” The jury then convicted her, but Vialpando appealed, based on those comments and other alleged errors by the prosecutor.
The appeals court ruled these above comments were in error because they could suggest to the jury the suspect was running from responsibility by having a jury trial. The appeals court also ruled that even if the prosecutor’s comments were not in error, there were additional errors found: mischaracterization of evidence; prompting an officer to improperly provide opinion on a suspect’s guilt; asking the suspect to opine on a witness; expressing personal belief improperly during opening statements and rebuttals; and making inappropriate analogies to reasonable doubt during voir dire.
The Supreme Court looked at the first comments and concluded, among many things, they did not draw a direct path to Vialpando’s right for a jury trial. The court also held that the effect of errors in Vialpando’s trial were slight, when considering all the evidence against Vialpando. The Supreme Court remanded to the appeals court for consideration of the remaining issues.
The Colorado Supreme Court en banc upheld a district court ruling granting a motion to dismiss in a case involving the Paid Family and Medical Leave Insurance Act.
The case centers around the Act, which authorizes the Division of Family Medical Leave Insurance to collect premiums from employees and employers to fund the state’s paid family and medical leave insurance program. The Supreme Court looked into whether this premium collection is unconstitutional when considering section (8)(a) of the Taxpayer’s Bill of Rights. Under that bill, it states any income tax law change should require any taxable net income to be taxed at one rate, with no additional tax or surcharge. The Supreme Court held that since the Act is not an income tax law, and instead is a fee, the Division’s collection of the premium doesn’t violate (8)(a).
This case goes back to the 2020 election, when Coloradans approved Proposition 118, which established the Act. Proposition 118’s goal was to increase paid leave opportunities and also provide job protections for employees that take family or medical leave. It applies to a variety of areas including those that give birth, those taking care of a sick family member or those sick themselves.
The Act makes employers provide medical and family insurance to employees. Employers do this by getting the public insurance option that was created by the division or under a private plan that has the same protections. If a company doesn’t get a private plan, the state will be collecting premiums from employers and employees in January 2023. During the first two years of the program, premiums are 0.9% of an employee’s wage. After that premiums can be raised to a max of 1.2%. Employers with nine or less employees pay 50% of the premium and can deduct that amount from an employee’s wages. An employer with 10 or more workers has to pay the full premium, but can deduct up to 50% of that from an employee’s wage.
The petitioner in this case, Chronos Builders, which builds custom homes in Grand Junction and has fewer than 10 employees, sued, saying the collection of premiums is unconstitutional under section (8)(a).
“Specifically, Chronos contends that because the Act’s premiums are fees that are assessed as a percentage of employees’ taxable wages, the Division’s collection of premiums are unconstitutional surcharges that run afoul of section (8)(a),” wrote Justice Monica Marquez. “For several reasons, we are unpersuaded.”
A district court held the Act is not an income tax law, thus section (8)(a) doesn’t apply — the Supreme Court agreed. The court also said the funding collected is used for specific services rather than being collected to defray government expenses.
Timothy Robert McBride v. The People of Colorado
The Colorado Supreme Court en banc reversed a decision focused on a tail light law and whether it can emit more than just a red light.
The case focuses on Mesa County authorities surveilling an area near a hotel looking for illegal drug trafficking. Eventually, they saw a town car with two occupants pull into the parking lot of the hotel. Another deputy followed the vehicle looking for a reason to pull it over. The trailing deputy noticed the car’s tail lights were broken and someone tried fixing them with red tape, which had since melted, and the bulb emitted some white light. The deputy also said they saw the driver fail to use a turn signal. The car was then stopped by a third deputy, who saw the tail lights were damaged, but emitted a white light. Driver Timothy McBride was then arrested for an outstanding warrant. A police dog subsequently searched the vehicle as officers found meth and a gun. Passenger M.S. also had drug paraphernalia on her.
McBride was subsequently charged with possession of a controlled substance, a special offender sentence enhancement for possessing a firearm during the commission of the first offense, possession of a weapon by a previous offender, a tail lamp violation and a traffic infraction for the failure to signal for a turn.
McBride filed a motion to suppress all evidence, statements and police observations, arguing the stop was unlawful because the deputies didn’t have enough suspicion to pull him over for the traffic offenses. McBride said section 42-4-206(1) requires a vehicle’s tail lamps to emit a red light from a distance of 500 feet. He continued his argument saying if the deputies observed a white light, there’s no way they couldn’t have seen the red light. The trial court denied his motion saying the red tape was pulling away and ragged, thus it’s possible the deputies could not see the red light from 500 feet away.
McBride was convicted of possessing a weapon by a previous offender and the two traffic offenses, but acquitted of being in possession of a controlled substance. McBride appealed, arguing there wasn’t enough evidence to convict on the traffic violations, the trial court erred by denying the suppression motion and there wasn’t enough evidence to support the POWPO conviction. That division agreed, saying there wasn’t enough evidence to support the traffic infraction for failure to signal or the POWPO conviction, but did affirm the tail light finding, citing that the law is specific to the color of red and no other colors.
The Supreme Court ruled that section 42-4-206(1) doesn’t mean only a red light can be showing. From this, the Supreme Court ruled that there wasn’t enough evidence to convict McBride of the tail lamp violation, adding that none of the deputies testified at trial that the tail lamps failed to emit a visible red light. Another point from the Supreme Court is the prosecution never showed only white light emitting from the tail lamps.
The judgment was reversed and the case was remanded.
Justice William Hood was joined by Justice Brian Boatright in dissent, arguing this ruling could cause all sorts of problems with traffic violations and safety issues, including having a litany of other lights used for tail lamps, as long as one of them is red.
The People of Colorado v. Isaiah Cain Trujillo-Tucson
In this case, the Colorado Supreme Court en banc ruled that an offender did not invoke his right to counsel, which allowed for authorities to question him without an attorney present and his statements should not be suppressed, which reverses a trial court’s ruling.
This case connects back to Isaiah Trujillo-Tucson who was waiting with an officer while the interrogator went to get the suspect a soda. The suspect was arrested after he was accused of being involved in a shooting in February 2021. The non-interrogating officer was patting the suspect down and not asking for information. Shortly after the suspect asked that same officer “Am I able to get a phone call? … To my lawyer, [E.K.]?”, to which the officer said “yeah.” There was then a brief silence and casual conversation continued. The interrogating officer then came back to the room to ask the suspect questions who made incriminating statements for about 90 minutes, before asking for his lawyer. Trujillo-Tucson was eventually charged with multiple crimes including three counts of criminal attempt to commit murder in the first degree.
After the suspect was charged, he moved to suppress his statements because he says he invoked his right to counsel, which the trial court agreed with. The People then filed an interlocutory appeal, arguing that the suspect did not make a request for counsel. The Supreme Court reversed the trial court’s decision, arguing that the suspect asked the question to an officer who already said he wasn’t in charge of the investigation and that the question was from a casual context which lead to the further summation that the suspect was familiar with the criminal justice system and his ability to directly ask for counsel.
Justice Maria Berkenkotter was joined by Justice Monica Marquez in dissent. They said that they perceive no equivocation or ambiguity in the suspect’s request, adding that not only did he ask for his lawyer, he identified them by name. They also said that although the suspect may have had confidence with the detective and was familiar with the criminal justice system, that doesn’t change the meaning of the suspect’s request.
The dissenting judges continued, saying any reasonable officer would have understood it as a request for a lawyer, adding that it’s difficult to come up with another interpretation for what the suspect said.
The case was remanded for further proceedings consistent with the opinion.