Volume 192 — Colorado Reports

1. <bold>PROBATION AND PAROLE</bold> — <italic>Payment — Costs — Legal Representation — Failure</italic><italic>to Make Finding — Ability to Pay — Revocation — Vacated</italic>. Where trial court made a finding that, at time conditions for probation were set, defendant could and would be able to pay costs for legal representation by public defender, and where court then revoked defendant's probation based upon its written findings that defendant did not pay, nor did he make any reasonable effort to pay, <italic>held</italic>, under these circumstances, trial court's order revoking probation would be vacated and cause remanded where court failed to make finding of defendant's ability to make such payments at time of revocation hearing. 2. <italic>Revocation — Costs — Failure to Pay — Requirements</italic>. The requirement that — before a defendant's probation be revoked based upon a finding that defendant failed to pay proper costs under conditions of probation — defendant have present ability to pay contemplates that: (1) a job for which the probationer is qualified is available; (2) the job would produce an income adequate to meet his obligations; and (3) the probationer unjustifiably refuses to take it.

1. <bold>UNEMPLOYMENT COMPENSATION</bold> — <italic>Termination of Employment — Marital —</italic><italic>Work — — Thirteen Weeks — New — Violation — Equal Protection —</italic><italic>Unconstitutional</italic>. Unemployment compensation statute (section<cross_reference>8-73-108</cross_reference>(8)(a), C.R.S. 1973) — which requires that persons who terminate employment because of "marital, parental, filial or domestic obligations," work in new employment for thirteen weeks before they are entitled to receive benefits — creates an impermissible classification and is therefore unconstitutional as a violation of the equal protection clause of the Fourteenth Amendment. 2. <italic>Termination of Employment — Marital — Statute — Impinge — Fundamental</italic><italic>Right — Negative</italic>. Unemployment compensation statute — which requires that persons who terminate employment because of "marital, parental, filial or domestic obligations," work in a new employment for thirteen weeks before they are entitled to receive benefits — did not impinge on a "fundamental right" for purpose of determining level of review in action to challenge statute as violative of equal protection. 3. <italic>Legitimate State Interest — Absence — Class — Thirteen Weeks —</italic><italic>Equal Protection — Statute</italic>. In the absence of the fostering of a legitimate state interest by unemployment compensation statute, which created a class of persons who were required to work at new employment for thirteen weeks before they could receive benefits, statute could not be sustained against constitutional challenge of equal protection clause.<page_number>Page 173</page_number> 4. <italic>Separation — Denial of Benefits — Some Benefits — Scheme — Rational</italic><italic>Basis</italic>. Even though state could constitutionally deny any benefits to those who voluntarily separate from employment, nevertheless, once the state has chosen to provide some benefits under such circumstances, the scheme by which the benefits are determined must have a rational basis. 5. <italic>Thirteen Weeks — Additional Burden — Eligible — Benefits — Lack of</italic><italic>Requirement — Irrational Classification — Equal Protection — Negative</italic>. Unemployment compensation statute requiring additional burden of thirteen weeks of work at new employment after separation from former employment because of "marital, parental, filial or domestic obligations" in order to be eligible for benefits, as opposed to lack of such requirement for those who terminate for no reason recognized by statute as justifiable, created an irrational classification which served no legitimate state purpose, and was therefore impermissible under equal protection clause. 6. <italic>Benefits — Conscientious Persons — Claimant — Available — Actively</italic><italic>Seeking Employment</italic>. Even though state has legitimate interest in providing unemployment benefits only to conscientious persons, yet, that interest is preserved by the statutory requirement that in order to receive benefits a claimant must be available for work and actively seeking employment. 7. <italic>Scheme — Quits — No Reason — Family Circumstances — Impermissible —</italic><italic>Equal Protection — Negative</italic>. Unemployment compensation scheme that offers benefits to one who quits employment for no reason but refuses benefits to person who is forced to quit because of family circumstances until he or she can find another job is not only illogical, but is an impermissible classification under the equal protection clause of the Fourteenth Amendment.

1. <bold>COURTS</bold> — <italic>Forum Non Conveniens — Limited Application — Disapproval —</italic><italic>Court of Appeals</italic>. The doctrine of <italic>forum non conveniens</italic> has only the most limited application in Colorado courts, and except in most unusual circumstances the choice of a Colorado forum by a resident plaintiff will not be disturbed; to the extent that statements contained in <italic>Allison</italic><italic>Drilling Co. v. Kaiser Steel Corp.</italic>, <cross_reference>31 Colo. App. 355</cross_reference>, <cross_reference>502 P.2d 967</cross_reference>, conflict with instant opinion, they are disapproved. 2. <italic>Forum — Inconvenience and Expense — Oust — Plaintiff — Jurisdiction —</italic><italic>— Negative</italic>. Factors of inconvenience and expense being inherent in all litigation are insufficient to oust a resident plaintiff from his chosen forum.

1. <bold>ARREST</bold> — <italic>Speedy — Indictment — Not Included — Right to Speedy Trial</italic>. The constitutional right to a speedy trial does not include the right to a speedy arrest or indictment. 2. <bold>INDICTMENT AND INFORMATION</bold> — <italic>Pre-Arrest Delay — Prejudice — Due Process</italic><italic>— Dismissal — Showing</italic>. Due process and fundamental fairness may, at times, require a dismissal of charges if a pre-arrest delay causes substantial and actual prejudice to appellee's right to a fair trial; however, a showing of specific prejudice is required.<page_number>Page 205</page_number> 3. <bold>ARREST</bold> — <italic>Warrant — Delay — Conjecture — Memories — Witnesses —</italic><italic>Prejudice — Negative</italic>. Mere conjecture by the trial court as to relative strength of memories of defense witnesses and prosecution witnesses constituted insufficient basis for finding that defendant was actually prejudiced by five-month delay in issuing arrest warrant. 4. <bold>INDICTMENT AND INFORMATION</bold> — <italic>Dismissal of Charges — Unjustified — Delay</italic><italic>— Arrest Warrant</italic>. Mere displeasure on part of trial court with delay in district attorney's issuance of arrest warrant did not justify dismissal of charges against defendant, at least in the absence of a showing that the delay was an intentional device to gain a tactical advantage over the defendant at trial. 5. <italic>Delay by State — Purposeful — Prejudicial — Dismissal of Charges</italic>. Defendant's allegation in his motion to dismiss that informer — a potential key defense witness — might no longer be available to testify because of a purposeful delay by the state, if true, might be sufficiently prejudicial to defendant to require dismissal of charges against defendant.

1. <bold>JUDGES</bold> — <italic>Municipal Court — Powers — Contempt — Patience —</italic><italic>Self-Restraint</italic>. In Colorado a municipal court judge has all judicial powers relating to the operation of his court; one such power, implied by the need to maintain the order and decorum indispensable to judicial proceedings, is the contempt power, and, like other inherent judicial powers, this power must be exercised with patience and self-restraint.<page_number>Page 342</page_number> 2. <bold>CONTEMPT</bold> — <italic>Power to Punish — Protection — Rights of Litigants —</italic><italic>Public — — Justice</italic>. A judge's power to punish contempt committed in his presence is not designed to protect his own dignity or person, but to protect the rights of litigants and the public by ensuring that the administration of justice shall not be thwarted or obstructed. 3. <bold>JUDGES</bold> — <italic>Avoid — Overreacting — Minor Commotions</italic>. Judges must use caution to avoid overreacting when persons not familiar with court procedures, through ignorance or frustration, unintentionally cause minor commotions. 4. <bold>CONTEMPT</bold> — <italic>Invoked — Judicial Process — Affronted or Disrupted</italic>. Since the contempt power is rooted in the necessity to maintain the respectful atmosphere appropriate to efficient administration of justice, it should be invoked only when the judicial process has been seriously affronted or disrupted; only then is there a need to vindicate the dignity and authority of the court or to reestablish the respect owed to it. 5. <italic>Comment to Wife — Lack of Evidence — Obstruction of Justice</italic>. Where defendant was convicted of contempt for having made comment to his wife as he was leaving municipal court after arraignment on traffic charge during which he became agitated when judge refused to hear evidence as to alleged police misconduct at time of arrest, <italic>held</italic>, under the circumstances involved in instant case, there was insufficient evidence to support the contempt conviction, since there was no evidence to support a finding that the defendant's remarks to his wife caused any obstruction of justice. 6. <bold>WITNESSES</bold> — <italic>Husband-Wife Privilege — Lack of Evidence — Content —</italic><italic>Comment — Privacy — Conviction — Contempt — Negative</italic>. Where there was no evidence that anyone else overheard content of defendant's comment to his wife as he was leaving courtroom after arraignment on traffic charge, <italic>held</italic>, absent such evidence, which might have shown waiver of the husband-wife privilege, the circumstances in instant case justified a reasonable expectation of privacy in the husband-wife communication, and defendant could not be convicted of contempt for declining to reveal to judge what he had told his wife; defendant's comment to his wife was protected by the statutory privilege. 7. <bold>CONTEMPT</bold> — <italic>Negative — Declination — Order — Beyond Court's Authority</italic>. One cannot be convicted of contempt for respectfully declining to comply with an order which is beyond the court's authority.

1. <bold>EVIDENCE</bold> — <italic>Expert — Opinion — Qualifications — Court — Discretion</italic>. Broad discretion is vested in the trial court in considering the qualifications of an expert and the admissibility of expert opinion. 2. <bold>EMINENT DOMAIN</bold> — <italic>Market Value — Probability of Rezoning —</italic><italic>Consideration</italic>. The probability of rezoning property being condemned may be considered by the commissioners insofar as it would reasonably be reflected in present market value. 3. <italic>Evidence — Likelihood of Rezoning — Probability — Present Value —</italic><italic>Admissibility</italic>. In view of fact that a totally speculative or conjectural estimate of future use of property being condemned would not and should not be reflected in determination of present value of property, hence, unless the evidence relating to the likelihood of rezoning rises to the level of probability, it is inadmissible in a condemnation proceeding. 4. <italic>Role of Commission — Determination — True Market Value — Condemned</italic><page_number>Page 397</page_number><italic>Property</italic>. The role of the commission in a condemnation proceeding is simply to determine the true market value of the property being condemned. 5. <italic>Advantageous Use in Future — Considered — Market Value</italic>. The owner of condemned property is entitled to have considered the most advantageous use in the future to which the land may be reasonably applied, not with the view of allowing him speculative or prospective damages or values, but only as such evidence may bear upon or affect or assist in arriving at the present market value. 6. <italic>Probability of Rezoning — Expert Testimony — Refusal to Admit —</italic><italic>Speculative — Erroneous Legal Test</italic>. In condemnation proceeding, where trial court not only refused to admit expert testimony regarding the probability of rezoning at the <italic>in limine</italic> hearing, but also allowed testimony that opinion on the probability of rezoning was nothing more than speculation, <italic>held</italic>, in so ruling, trial court erred; record clearly reflects an erroneous legal test as the basis for the court's ruling. 7. <bold>WITNESSES</bold> — <italic>Expert — Property Values — Familiarity — Qualified —</italic><italic>Probability of Rezoning</italic>. Condemnee's expert witnesses, who were familiar with property values, as well as zoning history and practices in community, were clearly qualified to give their opinion as to the probability of rezoning the property being condemned. 8. <italic>Commissioners — Confine — Evaluation — Market Value — Evidence</italic>. Commissioners in an eminent domain proceeding must confine their evaluation of market value to the evidence before them. 9. <italic>Market Value — New Determination — Evidence — Likelihood — Rezoning —</italic><italic>— Probability</italic>. In eminent domain proceeding, it was necessary for commissioners to make a new determination of market value of property being condemned, insofar as evidence relating to likelihood of rezoning property rose to the level of a probability; and this should be before a new commission.

1. <bold>DETECTIVES</bold> — <italic>"Detective Business" — Statute — Vague — Failure to Define</italic><italic>— Unconstitutional</italic>. Where statute (section <cross_reference>12-21-101</cross_reference>, C.R.S. 1973) — which precludes a person, firm or corporation from carrying on a "detective business" without first being licensed — failed to define the term "detective business" and failed to identify the persons on whom it imposed the licensing requirement, <italic>held</italic>, under these circumstances, detective licensing statute was unconstitutionally vague and violative of due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and by Article II, section 25 of the Colorado Constitution. 2. <bold>CONSTITUTIONAL LAW</bold> — <italic>Fair Notice — Essence — Due Process</italic>. Fair notice is the essence of substantive due process required of penal and regulatory statutes. 3. <bold>STATUTES</bold> — <italic>Regulatory — Sanctions — Due Process — Clear — Conduct —</italic><italic>Scope</italic>. When a regulatory statute imposes criminal or civil sanctions, due<page_number>Page 429</page_number> process requires that it make reasonably clear to those intended to be affected what conduct is within its scope. 4. <bold>LICENSES</bold> — <italic>Fair Notice — Regulatory — "Detective Business" — Statute —</italic><italic>Compliance — Business — Destroyed — Injunction</italic>. Fair notice of a duty to comply with a regulatory statute licensing a "detective business" is particularly essential where the value of an existing business or investment may be destroyed by injunction for failure to so comply.

1. <bold>PROSECUTING ATTORNEYS</bold> — <italic>Prosecutor — Witness for Defense — Potential</italic>. The fact that every prosecutor may potentially be a witness for the defense insofar as he has interviewed other witnesses and investigated the facts of the case cannot alone be a sufficient basis to prevent execution of his office as prosecutor since it would allow prosecution only by unprepared counsel. 2. <bold>WITNESSES</bold> — <italic>Defendant — Right — Prevent — Prosecutor — Act — Witness</italic><italic>and Officer</italic>. A defendant has a right to call witnesses on his own behalf and to prevent the prosecutor from adding to the weight or credibility of the evidence by acting as both witness and officer of the court. 3. <bold>PERJURY</bold> — <italic>First Degree</italic>. The charge of perjury in the first degree involves the elements of making a materially false statement, in an official proceeding, under a legally-required oath, with the belief that the statement is untrue. 4. <bold>PROSECUTING ATTORNEYS</bold> — <italic>State of Mind — Lack of Probative Value —</italic><italic>Dismissal — Improper</italic>. Where any evidence regarding the prosecutor's state of mind would not have probative value as to the fact in issue, namely, the defendant's state of mind, and prosecutor's possible role as a witness in laying a foundation for admission of grand jury transcript or as a witness in corroborating the contents of transcript would be cumulative and relevant only to an uncontested matter, <italic>held</italic>, under these circumstances, testimony of prosecutor would not play a significant role in posture of case and would not prevent a fair trial; hence, prosecutor should not have been dismissed on motion by defendant who alleged he intended to call prosecutor as witness to alleged crime of perjury.