Court Opinions- Nov 30, 2020

United Water & Sanitation District v. Burlington Ditch Reservoir & Land Co.

Since 2013, special water district United Water and Sanitation District has sought to secure various water rights in Weld County. 

United’s original applications for water  rights were consolidated in a set of four cases after being opposed by Farmers Reservoir and Irrigation Company. The district court for Water Division 1 then concluded that United’s applications failed to demonstrate nonspeculative intent to appropriate water. 

In response to this ruling, United withdrew its applications in the consolidated cases and filed a new application for a conditional water  right that was the subject of this appeal. United sought to appropriate water for use in a proposed residential development in another county. In support of its new application for a conditional storage right, United offered a new, purportedly binding contract with the landowners of the proposed development. United also claimed for the first time that its status as a special district qualified it for the governmental planning exception to the anti-speculation doctrine.

After FRICO filed another motion for determination of questions of law, the water court concluded that United’s new application also failed to demonstrate a non-speculative intent to appropriate water. The water court found that United was acting as a water broker so that it could  sell to third parties for their use and not as a governmental agency seeking to procure water to serve its own municipal customers. Consequently, the water court held, United did not qualify for the governmental planning exception to the anti-speculation doctrine. Applying instead the anti-speculation standards applicable to private appropriators, the court held that United’s application failed because it did not have a binding contract or an agency relationship with the end users of the water. 

United challenged the water court’s ruling denying in part its application for conditional water rights. In a unanimous decision, the court concluded that United was ineligible for the governmental planning exception to the anti-speculation doctrine because it had no governmental agency relationship with the end users proposed to be benefited by its appropriation. 

The court concluded that the contract between United and the end users was insufficiently binding to satisfy the anti-speculation standards for private appropriators. The court affirmed the judgment of the water court.

People v. Lee

This case required the supreme court to determine whether, under prevailing Colorado equal protection principles, a defendant may be charged with second-degree assault based on conduct involving strangulation under both the deadly weapon subsection of the second-degree assault statute and the strangulation subsection of that same statute. 

The state initially charged Dearies Deshonne Austin Lee with, among other things, two counts of second-degree assault-strangulation following an incident in which he was alleged to have twice strangled his former girlfriend. Eight months later, prosecutors added two counts of second-degree assault-bodily injury with a deadly weapon based on the same conduct. On Lee’s motion, the trial court dismissed the two charges of second-degree assault-bodily injury with a deadly weapon on equal protection grounds. The state appealed, and in a unanimous, published opinion, a division of the court of appeals affirmed the dismissal order.

The supreme court granted certiorari to consider the equal protection question. In a split decision in which justices Carlos Samour and Brian Boatright and Chief Justice Nathan Coats dissented, the court concluded that, under prevailing Colorado equal protection principles, a defendant may not be charged with second degree assault based on conduct involving strangulation under both the deadly weapon subsection of the second-degree assault statute and the strangulation subsection of that statute. Instead, the defendant must be charged under the strangulation subsection. Accordingly, the court affirmed the judgment of the Court of Appeals.

Galvan v. People

The Colorado Supreme Court revisited a 2018 case to answer a question left open in Castillo v. People: When a trial court instructs the jury on  self-defense, what amount of proof is required to be present before the court can instruct the jury about an exception to that defense? The state urged the court to adopt “some evidence” as the controlling standard. The defendant, Jose Galvan Sr., advocated for a heightened standard — substantial and sufficient evidence necessary for a reasonable juror to conclude that there are facts establishing the exception beyond a reasonable doubt. 

The court held that when a trial court instructs the jury on the affirmative defense of self-defense, it should instruct the jury on an exception to that defense if there is some evidence to support the exception. In determining whether the trial court properly instructed the jury on the provocation exception here, a division of the state’s court of appeals correctly found that there was some evidence to support the exception.

The lower appeals court also ruled correctly that the trial court did not plainly err in failing to specify that all the references in the provocation instruction to “another person” meant the same person. Like the state Court of Appeals, the Supreme Court held that the trial court’s provocation instruction made clear to the jury that for Galvan to forfeit the affirmative defense of self-defense, he had to have provoked the same person as to whom he was asserting self-defense.

The Court of Appeals determined that it did not need to decide whether the provocation exception may be triggered by mere words because, in this case, both words and conduct supported application of the exception. The panel of judges  decided, without briefing, whether the First Amendment prohibited Galvan’s words from being considered, along  with his physical acts, as evidence in support of the provocation exception. The division reasoned that the state regulated Galvan’s speech when the trial court instructed the jury on the provocation exception, and that, therefore, his First Amendment rights were implicated. Reviewing the issue through a constitutional prism, the Court of Appeals judges found that most of Galvan’s speech was properly submitted as evidence in support of the provocation exception because that speech was “fighting words” not shielded by the First Amendment.

Before the Supreme Court, Galvan maintained that his words alone could not justify giving the provocation instruction. He argued that the exception requires a physical act — at minimum “a hostile act or gesture.” 

Additionally, Galvan contended for the first time that allowing “mere words” to vitiate the right to the affirmative defense of self-defense would render the provocation exception unconstitutionally vague and overbroad and expose a defendant to criminal liability for speech protected by  the First Amendment. The state responded with a claim that, since the exception requires a course of calculated criminal conduct, Galvan cannot  use the First Amendment to shield himself from liability for it. 

Because the evidence in support of the provocation exception in this case was not limited to “mere words,” four of the justices concluded that Galvan advanced hypothetical arguments that called for advisory opinions and refused  to consider them.

Justices Monica Márquez, Richard Gabriel and Melissa Hart dissented.The court concluded that the Court of Appeals had erred by  resolving the First Amendment issue and vacated its opinion.

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