People ex rel. K.S-E.
| Decision Date | 08 July 2021 |
| Docket Number | Court of Appeals No. 19CA1948 |
| Citation | 497 P.3d 46,2021 COA 93 |
| Parties | The PEOPLE of the State of Colorado, Appellee, IN the INTEREST OF K.S-E., a Child, and Concerning Alan Rosenfeld, Attorney-Appellant. |
| Court | Colorado Court of Appeals |
Philip J. Weiser, Attorney General, Leeann Morrill, First Assistant Attorney General, Denver, Colorado, for Appellee
Kilmer, Lane & Newman, LLP, David A. Lane, Liana Gerstle Orshan, Denver, Colorado, for Attorney-Appellant
Opinion by JUDGE TAUBMAN*
¶ 1 Alan Rosenfeld, an attorney licensed to practice law in Colorado, appeals the district court's order holding him in direct contempt for conduct during his representation of S.S. (mother) in a dependency and neglect proceeding.
¶ 2 To resolve this appeal, we must examine the lawfulness of a court order implicating mother's Fifth Amendment rights, the violation of which gave rise to Rosenfeld's contempt citation. Specifically, we are asked to determine, as a matter of first impression, whether the court could lawfully prohibit Rosenfeld from contemporaneously advising mother, on a question-by-question basis, to invoke her privilege against self-incrimination as she was testifying. Because we conclude that the Fifth Amendment's concomitant right to advice of counsel encompasses contemporaneous advice, we conclude that Rosenfeld was entitled to advise mother about her Fifth Amendment rights on a question-by-question basis.
¶ 3 Moreover, applying the exception from Maness v. Meyers , 419 U.S. 449, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975), for the first time in Colorado, we conclude that the risk of irreparable harm from the court's unlawful order was sufficient to excuse Rosenfeld's noncompliance. Accordingly, we vacate the district court's order holding Rosenfeld in direct contempt and its imposition of punitive sanctions.
¶ 4 Mother retained Rosenfeld to represent her in Arapahoe County District Court Case No. 18JV969, a dependency and neglect proceeding involving her child, K.S-E.
¶ 5 On January 24, 2019, before trial, the People and the guardian ad litem (GAL) appointed to represent K.S-E.’s interests filed a joint motion seeking the appointment of a GAL to represent mother's interests. As grounds therefor, they alleged that mother was not competent to understand the proceedings. Mother opposed the motion.
¶ 6 On January 31, 2019, the district court judge, Judge Natalie Chase, conducted a pretrial readiness conference with the parties and counsel. That same day, Rosenfeld filed a motion in limine to exclude "any mention in front of the jury in this matter of pending criminal charges against the mother," which arose from an incident in which mother allegedly kidnapped K.S-E.
¶ 7 At the pretrial conference, the district court addressed the joint motion to appoint a GAL to represent mother's interests, for which it decided to conduct and on-the-spot " Sorensen -type hearing."1 The People called mother as a witness. Before beginning direct examination, the People informed the court that mother "has a pending criminal action that's attendant to these proceedings and the factual allegations overlap" and asked that she be advised about her Fifth Amendment rights. The court agreed and gave a "full advisement" to mother.
¶ 8 Following the advisement, the People and the child's GAL asserted that Rosenfeld should not be allowed to "stand up and invoke [the Fifth Amendment] on [mother's] behalf." Rosenfeld responded that "I will stand up and advise her to invoke," to which the court responded, "No" and "I don't think you get to do that."
¶ 9 The People then began direct examination, during which the following exchanges occurred:
¶ 10 After a short recess, and before the People resumed their examination of mother, the court reiterated its order:
[The Court]: So, I'm going to go with the original, like, here's the deal though. You don't get to stand up and say, "I'm advising her to take the Fifth." She's been out — out in the hall with you multiple times today. It will be her decision and it will be a voluntary decision if she's going to answer the question. Per question. Okay?
¶ 11 During the remainder of direct examination, mother invoked her Fifth Amendment privilege against self-incrimination in response to several questions without Rosenfeld verbally advising her to do so. After cross and redirect examination, but while mother was still on the witness stand, the court asked mother: "Did your counsel advise you out in the hall that he would knock on the table for you [to invoke your] Fifth Amendment right, to plead the Fifth." Rosenfeld objected on the basis of attorney-client privilege, and mother responded by stating "[a]ttorney-client privilege." The following exchange then occurred:
¶ 12 After another short recess, the court informed the parties that "[w]e're going to proceed right now forthwith with direct contempt whether it happened or not." The court characterized its earlier order as directing Rosenfeld "not to stand or give any communication to [mother] — on whether she was going to plead the Fifth or not." The court and Rosenfeld then had a lengthy discussion about whether his knocking violated the court's earlier order. Rosenfeld expressed some confusion as to the scope of the order, stating that he was under the impression he had only been ordered not to stand and object on Fifth Amendment grounds. However, he acknowledged that he was, "in a variety of forms, sometimes trying to get her attention ... [and] [t]rying to protect her Fifth Amendment rights and advise her about whether or not the questions were potentially in violation of her Fifth Amendment [rights]."
¶ 13 Ultimately, the court found Rosenfeld in direct contempt for violating its order:
She's on the witness stand. You don't get to tell her what to say or not to say. That's the whole point of why I issued the order. And if you had confusions as to the order, you should have addressed it instead of trying to be sneaky behind this Court's back, which is exactly what you just admitted to. You and your actions, this Court is finding is so extreme that this is absolutely something this Court would never expect from any lawful attorney practicing law in this court or any other court. And that this Court warned you. And I don't even need to warn you now, you've admitted to it, that your conduct is so offensive to the authority and dignity of this Court that I have no choice but to find you in direct contempt. To think that just because I said no standing up — if that's what I really said — you don't get to advise her, you know the intent. You were trying to be sneaky behind this Court's...
To continue reading
Request your trial
- People v. Landis
-
People ex rel. K.P.
...is within the juvenile court's discretion and may not be reversed absent an abuse of that discretion. People in Interest of K.S-E. , 2021 COA 93, ¶ 18, 497 P.3d 46. A court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, unfair, or contrary to law. Id. ¶ 22 "How......
-
Summaries of Published Opinions
...sentence and completing rehabilitation. Therefore, they do not infringe on defendant's constitutional rights. The sentence was affirmed. 2021 COA 93. No. 19CA1948. People in the Interest of K.S-E. Fifth Amendment—Right to Advice of Counsel—Direct Contempt. Mother retained Rosenfeld to repre......