2025 CO 13
Colo.2025Background
- Ashley Hernandez was charged in El Paso County, Colorado, with one count of retaliation against a judge based on statements she made to a judge in a courthouse elevator.
- Hernandez filed a motion to dismiss, arguing her statements were protected by the First Amendment.
- Prosecutors amended the charge but maintained that Hernandez’s statements constituted true threats unprotected by the First Amendment.
- The district court reviewed an audio recording of the incident, found no threats of violence had been made, and dismissed the charge on as-applied First Amendment grounds.
- The People appealed the dismissal to the Colorado Supreme Court, citing statutes they believed gave the Court jurisdiction over constitutional rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper appellate venue for as-applied constitutional ruling | Dismissals on constitutional grounds (facial or as-applied) go to Supreme Court | As-applied constitutional rulings must go to the Court of Appeals | Appeals from as-applied constitutional dismissals must go to the Court of Appeals |
| Effect of filing in wrong appellate court | Dismissal is not required; transfer is permissible | Filing in wrong court requires dismissal | Case should be transferred, not dismissed, when filed in the wrong appellate court |
| Interpretation of statutes and court rules for appeals | Any constitutional basis for dismissal triggers Supreme Court jurisdiction | Only facial constitutional rulings trigger Supreme Court jurisdiction | Only facial unconstitutionality brings case within Supreme Court jurisdiction |
| Application of First Amendment to facts | Hernandez’s speech was a true threat, thus not protected | Speech was non-threatening, thus protected | District court correctly treated the ruling as as-applied, not facial, for jurisdiction |
Key Cases Cited
- Counterman v. Colorado, 600 U.S. 66 (2023) (discusses when speech constitutes a "true threat" and is unprotected by the First Amendment)
- Bucklew v. Precythe, 587 U.S. 119 (2019) (distinguishes between facial and as-applied constitutional challenges)
- Developmental Pathways v. Ritter, 178 P.3d 524 (Colo. 2008) (clarifies difference between facial and as-applied constitutional challenges)
- People v. Lee, 477 P.3d 732 (Colo. App. 2019) (affirmed district court's dismissal of charges on as-applied constitutional grounds)
- Keystone, a Div. of Ralston Purina Co. v. Flynn, 769 P.2d 484 (Colo. 1989) (every tribunal can determine its own jurisdiction)
- Well Augmentation Subdistrict of Cent. Colo. Water Conservancy Dist. v. City of Aurora, 221 P.3d 399 (Colo. 2009) (statutory interpretation canon)