1
The People of the State of Colorado, Plaintiff-Appellant v. Ashley Hernandez, Defendant-Appellee
No. 24SA213
Supreme Court of Colorado, En Banc
April 14, 2025
Appeal from the District Court El Paso County District Court Case No. 23CR4830 Honorable Dinsmore Tuttle, Senior Judge
Appeal Transferred
Attorneys for Plaintiff-Appellant: Michael J. Allen, District Attorney, Fourth Judicial District Amanda Velazquez, Deputy District Attorney Doyle Baker, Senior Deputy District Attorney Colorado Springs, Colorado
Attorneys for Defendant-Appellee: Gehring Law Firm Ltd. Christopher Gehring Denver, Colorado
PER CURIAM
¶1 The People appeal from the district court's order dismissing a single-count complaint and information against Ashley Hernandez. We do not reach the merits of the district court's ruling. Instead, we conclude as a threshold jurisdictional matter that, because the district court's order dismissed Hernandez's criminal count on as-applied constitutional grounds, this case should have been appealed to the court of appeals under section 16-12-102(1), C.R.S. (2024), and C.A.R. 4(b)(6)(A). We therefore transfer this case to the court of appeals.
¶2 The People initially charged Hernandez with one count of retaliation against a judge-harassment under section 18-8-615(1)(a), C.R.S. (2024), based on statements she made to a judge while the two were riding in a courthouse elevator. Hernandez moved to dismiss the charge, arguing that her statements were protected speech under the First Amendment. The People amended the complaint to charge one count of retaliation against a judge-credible threat under section 18-8-615(1)(b). The People also responded to the motion to dismiss, arguing that Hernandez's statements constituted true threats of violence and, therefore, were not protected by the First Amendment.
¶3 The district court sided with Hernandez and dismissed the
charge on First Amendment grounds. In a written order, the
court noted that an audio recording
of the incident had been entered into the record during a
pretrial motions hearing. Having reviewed that recording, the
court acknowledged that Hernandez's language might have
been disrespectful and the judge may have felt threatened. However, the court found that no threats of violence were
uttered. Citing Counterman v. Colorado,
¶4 The People then appealed to this court, citing section 16-12-102(1) and C.A.R. 4(b)(6)(B) as the basis for our jurisdiction. After the parties submitted briefs on the merits of the district court's ruling, we ordered supplemental briefing to address whether the appeal had been properly filed. Specifically, we asked the parties to discuss whether the district court's order determined "that a statute, municipal charter provision, or ordinance is unconstitutional" under Rule 4(b)(6)(B).
¶5 The People argue that section 16-12-102(1) and Rule 4(b)(6)(B) require rulings that address constitutional challenges, whether facial or as applied, to be appealed to this court. Hernandez disagrees and argues that as-applied constitutional rulings must be appealed to the court of appeals. Further, she asserts that because the People failed to do so here, this court lacks jurisdiction and must dismiss the case with prejudice.
¶6 We conclude that dismissal of a criminal count on the grounds that it is unconstitutional as applied must be appealed, if at all, to the court of appeals under section 16-12-102(1) and C.A.R. 4(b)(6)(A). However, a party's erroneous filing in this court does not require dismissal of the appeal. Rather, the case must be transferred to the court of appeals under section 13-4-110(2) and (3), C.R.S. (2024).
¶7 We have the power, as a threshold matter, to determine
whether we have jurisdiction in a case. Every tribunal has
jurisdiction to determine its own jurisdiction. Keystone,
a Div. of Ralston Purina Co. v. Flynn,
¶8
Although we transfer the merits of this appeal to the court
of appeals, we issue this opinion under our "plenary
authority to promulgate and interpret" Colorado court rules, including the rules of appellate
procedure. People v. Steen,
¶9
Whether interpreting a statute or a court rule, "[w]e
employ the same interpretive rules." Steen,
¶ 10,
¶11 This interpretation is reinforced by C.A.R. 4(b)(6), which outlines the procedure for prosecutorial appeals. Rule 4(b)(6)(A) says, "Unless otherwise provided by statute or these rules, when an appeal by the state or the people is authorized by statute, the notice of appeal must be filed in the court of appeals within [forty-nine] days after the entry of judgment or order appealed from." C.A.R. 4(b)(6)(A) (emphasis added). Although Rule 4(b)(6)(B) provides procedures that apply if the appealed order "dismiss[ed] one or more but less than all counts of a charging document," C.A.R. 4(b)(6)(B) (emphasis added), here, all of Hernandez's charges were dismissed, and the appeal is authorized by section 16-12-102(1). Therefore, Rule 4(b)(6)(A) controls, and the appeal must be filed in the court of appeals.
¶12 The People point to language in Rule 4(b)(6)(B) requiring an appeal to be filed in the supreme court if the appealed order "is based on a determination that a statute . . . is unconstitutional." This language mirrors section 13-4-102(1)(b), which excludes from the court of appeals' jurisdiction "[c]ases in which a statute . . . has been declared unconstitutional." The People contend that because Hernandez's counts were dismissed on constitutional grounds, the appeal must be filed with this court.
¶13
However, this argument relies on an overbroad interpretation
of the phrase "[c]ases in which a statute . . . has been
declared unconstitutional." If this phrase were
construed to encompass any constitutional ruling
dismissing charges, the court of appeals would lack
jurisdiction to consider many of the cases it regularly
decides dealing with as-applied constitutional challenges. See, e.g., People v. Lee,
¶14
A facial constitutional challenge is "a claim that the
law or policy at issue is unconstitutional in all its
applications." Bucklew v. Precythe, 587 U.S.
119, 138 (2019). By contrast, an as-applied constitutional
challenge contends that a provision is unconstitutional under
the specific circumstances in which a party has acted or is
planning to act. Developmental Pathways v. Ritter,
¶15 This case clearly exemplifies this point. The district court did not declare section 18-8-615(1), which defines the offense of retaliation against a judge, to be unconstitutional in every possible scenario. Rather, the court concluded that the charge against Hernandez was unconstitutional because it sought to criminalize protected nonthreatening speech. The People's appeal from this ruling was therefore not required to be filed in this court under C.A.R. 4(b)(6)(B).
¶16 Finally, the fact that the People erroneously filed their appeal in this court does not result in dismissal, as Hernandez contends. Under section 13-4-110(2), "Any case within the jurisdiction of the court of appeals which is filed erroneously in the supreme court shall be transferred to the court of appeals by the supreme court." Section 13-4-110(3) further specifies that "[n]o case filed either in the supreme court or the court of appeals shall be dismissed for having been filed in the wrong court but shall be transferred and considered properly filed in the court which the supreme court determines has jurisdiction." Because jurisdiction in the court of appeals is proper, this appeal must be transferred to that court.
¶17 IT IS THEREFORE ORDERED that jurisdiction of this appeal is transferred to the court of appeals under sections 13-4-110(2) and (3).