Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Matter of Complainant: The People and John Scipione
In this judicial disciplinary proceeding against now-former Arapahoe County District Court Judge John Scipione, the Colorado Supreme Court considered the updated recommendations of the Colorado Commission on Judicial Discipline filed March 22.
First, the commission recommended the court adopt the parties’ stipulation for public censure dated Jan. 19, 2023. Under this stipulation, the parties agreed Scipione would be publicly censured for violating the Colorado Code of Judicial Conduct by using his position as a judicial officer to seek intimate relationships with lower-ranking or subordinate Judicial Department employees or court personnel; abusing the prestige of his judicial office and initiating ex parte communications with another judge and that judge’s clerk to expedite a probate matter involving Scipione’s father’s estate; and failing to disclose on his judicial applications or during the course of the disciplinary proceeding an unreported, intimate relationship with a judicial assistant while serving as a district court magistrate.
Second, the commission recommended the state Supreme Court adopt the findings of fact and conclusions of law in the special masters’ recommendation for discipline dated Aug. 24, 2023, which recommends Scipione pay the commission’s attorney fees for the disciplinary portion of the proceedings.
Scipione hasn’t filed exceptions to the commission’s recommendations, according to the Supreme Court opinion. The court adopted the recommendations.
Specifically, the court noted in light of Scipione’s admissions to knowingly engaging in conduct that violated eight rules of the code of conduct, it issued this public censure and ordered Scipione to pay the commission’s $51,189.50 in attorney fees for the disciplinary portion of these proceedings. The opinion was delivered per curiam and Chief Justice Brian Boatright and Justice Carlos Samour Jr. didn’t participate.
Marriage of Barbara Green and Jeffry Green
In this dissolution of marriage case, Jeffry Howard Green appeals the trial court’s ruling he’s subject to general personal jurisdiction in Colorado. The Colorado Supreme Court held that for a court to exercise general personal jurisdiction over an individual, the individual must be domiciled within the state. Because Green isn’t domiciled in Colorado, he isn’t subject to general personal jurisdiction here, the state’s high court found.
It made the rule to show cause absolute and remanded the case.
Chief Justice Brian Boatright delivered the opinion of the court, in which Justices Monica Márquez, William Hood III, Richard Gabriel, Melissa Hart, Carlos Samour Jr. and Maria Berkenkotter joined.
The Colorado Supreme Court noted in its opinion the parties in this case already agree first-degree criminal trespass of a dwelling is a lesser-included offense of second-degree burglary. Taunia Marie Whiteaker’s overlapping convictions would then violate the double jeopardy clauses of the federal and state constitutions. While the parties agree about the error, they dispute the remedy.
The prosecution urges traditional plain error review: leave Whiteaker’s convictions intact, the state says, because the district court’s error wasn’t obvious. Whiteaker counters double jeopardy sentencing errors always require reversal and merger of the greater offense with the lesser-included offense, even if the error wasn’t obvious to the district court.
The state Supreme Court agreed with Whiteaker. Double jeopardy sentencing errors require automatic reversal even when the error isn’t obvious to the district court. Whiteaker’s convictions for trespass and burglary should merge.
Justice William Hood III delivered the opinion of the court, in which Chief Justice Brian Boatright and Justices Monica Márquez, Richard Gabriel, Melissa Hart, Carlos Samour Jr. and Maria Berkenkotter joined.
This case required the Colorado Supreme Court to determine whether the improper joinder of charges is a structural error requiring reversal of a criminal conviction or trial error that can be reviewed for harmless error. Joseph Wayne Washington argued the high court answered this question more than 50 years ago in Norman v. People, and that he is entitled to reversal of his convictions because his charges for murder, drug possession, witness tampering, violation of a protection order and solicitation of murder shouldn’t have been tried together.
The state Supreme Court clarified Norman didn’t create a rule of automatic reversal and harmless-error review applies to misjoinder. It also concluded if there was any error in joining the various charges in Washington’s case, that error was harmless. It affirmed the division’s decision, albeit on slightly different grounds.
Justice Melissa Hart delivered the opinion of the court, in which Chief Justice Brian Boatright and Justices Monica Márquez, William Hood III, Richard Gabriel, Carlos Samour Jr. and Maria Berkenkotter joined.
University of Denver v. John Doe
According to the opinion, John Doe took legal action against the University of Denver after the school expelled him for allegedly engaging in nonconsensual sexual contact with another student, Jane Roe. Specifically, through claims for breach of contract, breach of contract based on the covenant of good faith and fair dealing, promissory estoppel and negligence, Doe challenged DU’s investigation and adjudication of Roe’s accusation. The district court granted DU’s request for summary judgment and Doe appealed. A division of the Colorado Court of Appeals affirmed in part and reversed in part.
The Colorado Supreme Court affirmed the division’s judgment in part and reversed in part. Like the division, the Supreme Court held the promise in DU’s Office of Equal Opportunity Procedures of a “thorough, impartial and fair” investigation, when considered in conjunction with the specific investigation requirements listed in those procedures, is sufficiently definite and certain to be enforceable under contract law.
Further, in lockstep with the division, the court concluded the record doesn’t permit the entry of summary judgment for DU on Doe’s general contract claim or on Doe’s contract claim premised on the covenant of good faith and fair dealing. As the division determined, there are genuine disputes of material fact as to whether DU adhered to the specific investigation provisions in the OEO Procedures and, by extension, whether DU fulfilled its promise of a “thorough, impartial and fair” investigation.
But the state Supreme Court parted ways with the division on Doe’s tort claim. The court held DU doesn’t owe its students an extra-contractual duty to exercise reasonable care in adopting and implementing fair procedures related to the investigation and adjudication of sexual misconduct claims. It found DU is entitled to judgment as a matter of law on Doe’s tort claim.
Justice Carlos Samour Jr. delivered the opinion of the court, in which Chief Justice Brian Boatright and Justices William Hood III, Richard Gabriel, Melissa Hart and Maria Berkenkotter joined.
Justice Monica Márquez concurred in part and dissented in part. Márquez agreed with the majority that, in order to determine whether DU’s OEO procedures are sufficiently definite to be enforceable, the court needed to consider the specific provisions of those procedures. Márquez also agreed those “specific provisions delineate precisely what the parties contemplated when they agreed to a ‘thorough, impartial and fair’ investigation.”
But Márquez asserted the majority then erroneously concluded a genuine dispute of material fact exists as to whether these judicially created, additional duties were breached. Márquez also noted in a dissenting opinion the disputed facts the majority identified aren’t material to Doe’s breach-of-contract claim but were relevant only to Doe’s good faith and fair dealing claim.
Great Northern Properties v. Extraction Oil and Gas
Over 125 years ago, the Colorado Supreme Court adopted the centerline presumption, a common law rule of conveyance which provides that a “conveyance of land abutting a highway or street is presumed to carry title to the center of that roadway to the extent that the grantor has any interest therein, unless a contrary intent appears on the face of the conveyance,” according to the 1898 decision in Olin v. Denver & Rio Grande R.R. Co.
In the decades since, the state Supreme Court has consistently applied this standard. But it’s never explicitly addressed the question presented in this case: When the presumption applies, is the conveyance of land abutting a road or highway presumed to carry title to the centerline of both the surface and the mineral estates beneath a dedicated right-of-way?
A division of the Colorado Court of Appeals answered this question by holding that, when the centerline presumption applies, the conveyance is presumed to carry title to the centerline of both the surface and mineral estates beneath a dedicated right-of-way to the owners of land abutting that right-of-way. The division also concluded that, for the centerline presumption to apply, the grantor must divest all the property it owns abutting the right-of-way.
The Colorado Supreme Court affirmed in part and reversed in part the division’s judgment.
The court affirmed the portion of the judgment holding that, when the centerline presumption applies, a conveyance is presumed to carry title to the centerline of both the surface and mineral estates beneath a dedicated right-of-way to the owner of land abutting that right-of-way. But the court reversed the portion of the judgment concluding the centerline presumption doesn’t apply unless and until the grantor divests itself of all property it owns abutting a subject right-of-way. The high court held the centerline presumption applies irrespective of whether the grantor owns other property abutting the right-of-way if the party claiming ownership to land abutting a dedicated right-of-way establishes that the grantor conveyed ownership of land abutting a right-of-way; the grantor owned the fee to both the surface estate and the mineral rights underlying the right-of-way at the time of conveyance; and no contrary intent appears on the face of the conveyance document.
Justice Maria Berkenkotter delivered the opinion, in which Chief Justice Brian Boatright and Justices Monica Márquez, William Hood III, Richard Gabriel, Melissa Hart and Carlos Samour Jr. joined.