The Colorado Supreme Court recently signaled it may intervene in four ongoing cases in the trial courts on subjects that include a tenant's right to a jury trial in eviction proceedings, whether defendants should remain incarcerated pending a sanity evaluation and a judge's decision to sanction prosecutors for late-disclosed evidence.
Although most of the Supreme Court's decisions come at the conclusion of a case and after the Court of Appeals has rendered its ruling, the justices sometimes elect to immediately hear appeals from the trial courts when the standard appellate process does not provide adequate relief or the legal issues have significant public importance.
In those instances, at least four of the seven justices must agree to take up an appeal.
Jury trials for evictions
When Naomi Bermudez's landlord moved to evict her this year from her apartment in Denver's Clare Gardens, she asked for a jury trial. She intended to challenge the reasons her landlord cited in its eviction notice.
Initially, County Court Judge Isaam Shamsid-Deen said he would hear arguments at the scheduled bench trial about whether to allow for a jury trial, leading Bermudez's attorney to protest that she needed to know in advance whether to prepare for a jury trial. In a two-sentence order, Shamsid-Deen responded simply, "In Colorado, there is no constitutional right to a jury trial in civil matters."
He denied the request.
Bermudez appealed directly to the Supreme Court, saying there was no precedent in Colorado holding that tenants lack the right to a jury trial when contesting the facts of their eviction.
"Despite this, Colorado’s county courts have consistently denied tenants a jury trial over recent years, just like the Denver County Court has done in Ms. Bermudez’s case — without analysis," wrote attorney Spencer Bailey.
He citedtwoCourt of Appeals casesthat recognized tenants' right to a jury trial on factual disputes. Bailey warned trial courts were ignoring those directives and few tenants have the resources to appeal contrary rulings in their cases.
On May 17, the Supreme Court orderedShamsid-Deen and Bermudez's landlord,Mercy Housing Management Group, to respond to the appeal. The court explicitly invited outside entities to submit friend-of-the-court briefs. Chief Justice Brian D. Boatright did not participate in the case.
The case isMercy Housing Management Group, Inc. v. Bermudez.
Defendant in custody
In November, Mario Arellanodrove his car into the food court of the Pueblo Malland claimed he had planted bombs. He stands accused of several counts of attempted murder, assault and related charges. The arresting officer's affidavit alleged Arellano communicated during his interrogation that he was hearing voices, having hallucinations, had not slept in days and "says a lot of things that he doesn't mean when he is not taking his medication."
Arellano posted bond in January and complied with his conditions until April 24, when he appeared in court to enter a plea of not guilty by reason of insanity. Over the defense's objection, District Court Judge Amiel Markenson ordered Arellano "committed to the Pueblo County jail" for a sanity evaluation until at least Sept. 2 and possibly beyond.
In a written order, Markenson elaborated that Colorado law requires judges to commit a defendant for evaluation when they plead not guilty by reason of insanity, with preference given to the place where the defendant is in custody.
"Nowhere in this statute does it say anything about a defendant being out of custody," he wrote. "The Court agrees it does not have to mean jail in all situations. However, pursuant to statute (it) can include jail."
Arellano appealed to the Supreme Court, arguing other trial judges routinely allow defendants to undergo sanity evaluations out of custody. His attorneys contended Markenson had not "committed" Arellano to a mental health facility, but rather "incarcerated" him in jail, where he is allegedly deteriorating.
"Defense counsel has seen him start to experience a manic episode due to his isolation in jail and the multiple triggers associated to him being in custody," wrote Arellano's public defenders. "However, unlike a hospital, he is not afforded the additional supports and protections for his mental health in the jail."
The Supreme Court directed Markenson on May 14 to explain why Arellano should remain jailed for potentially four months until a sanity evaluation is completed.
The case isPeople v. Arellano.
Excluded evidence
Ashton Michael Whittington is one of three defendants charged in the alleged rape of a teenage girl in May 2023at the home of Ouray police Chief Jeff Wood.
In March, Whittington was scheduled for a preliminary hearing, in which prosecutors must demonstrate probable cause of a crime to proceed to trial. At the hearing, County Court Judge Sean K. Murphy barred prosecutors from introducing evidence disclosed to the defense after January 17, 2024,ostensibly in violation of the criminal rulerequiring timely disclosure after a defendant's initial appearance.
The hearing was continued to another date, but the prosecution filed an appeal of Murphy's order to the Supreme Court. Deputy District Attorney Ryan L. Hess explained Whittington was not alleged to have raped the victim himself, but prohibiting the evidence due to a "technical violation" affected the prosecution's ability to show Whittington's involvement.
"The size of files, IT issues with the public defender office, broken files within disclosures, and the mass of the overall case, were all expressed to the county court," Hess wrote. "Exclusion of evidence is punitive. The court made no finding of the need for a punitive sanction."
The Supreme Court ordered a response to the prosecution’s appeal.
The case isPeople v. Whittington.
Disclosure order gone too far?
Hill Hotel Owner, LLC is constructing a 189-room hotel in Boulder. In 2022, damage occurred to the concrete garage floor at the construction site. Hill Hotel claimed rain was responsible, which its insurance policy covered. Hanover Insurance Company, meanwhile, believed the loss was not covered because construction workers' negligence was to blame.
After Hanover denied coverage, Hill Hotel sued for breach of contract. In investigating the damage, Hanover had turned to a structural engineer, who believed contractor negligence was the issue. After Hill Hotel retained a law firm, Hanover hired another structural engineer, whose conclusions Hanover used to again deny the insurance claim.
In March, the parties notified Denver District Court Judge Jill D. Dorancy of a dispute over emails and other documents involving the two engineers. Hanover claimed they were shielded by attorney-client privilege, but Hill Hotel argued documents "generated by an insurer before its denial of coverage" were not protected because they were not prepared "in anticipation of litigation."
Dorancy agreed with that argument and ordered Hanover to disclose communications with the engineers.
Hanover immediately appealed to the Supreme Court, arguing Dorancy's order was partly illogical because it allegedly encompassed communications between the structural engineers and Hanover's lawyers after litigation had started. More fundamentally, the standard she applied — whether litigation is anticipated— is not what governs attorney-client privilege.
"It is well-settled across the U.S. that the attorney-client privilege does not require anticipation of litigation," Hanover's lawyers argued. "The district court’s ruling in this matter is symptomatic of the increasing confusion among trial courts regarding the basic test for privilege."
The Supreme Court on April 30 ordered Hill Hotel and Dorancy to explain why it should not require her to redo her disclosure ruling as Hanover requested.
The case isHill Hotel Owner, LLC v. Hanover Insurance Company.
