Original Proceeding Pursuant to C.A.R. 21 Adams County
District Court Case No. 12CR3445 Honorable Stephen Enderlin
Howard, Senior Judge
Attorneys for Plaintiff: Brian Mason, District Attorney,
Seventeenth Judicial District Cameron Munier, Senior Deputy
District Attorney Brighton, Colorado
Attorneys for Defendant: Zobel Law, LLC Cassandra Zobel
Denver, Colorado
Attorneys for Respondent Adams County District Court: Philip
J. Weiser, Attorney General Emily Burke Buckley, Senior
Assistant Attorney General
2
Joseph
G. Michaels, Assistant Solicitor General Denver, Colorado
Attorney for Amicus Curiae Office of Alternate Defense
Counsel: Nathan S. Eagan Denver, Colorado
JUSTICE SAMOUR delivered the Opinion of the Court, in which
CHIEF JUSTICE MARQUEZ, JUSTICE BOATRIGHT, JUSTICE HOOD,
JUSTICE GABRIEL, JUSTICE HART, and JUSTICE BERKENKOTTER
joined.
3
Order
Made Absolute
OPINION
SAMOUR
JUSTICE
¶1
A trial court enjoys ample discretion as it fills its
case-management canvas. People v. Kilgore, 2020 CO
6, ¶ 1, 455 P.3d 746, 747. But that discretion is not
unfettered and does not permit coloring outside certain
lines. Id.
¶2
Roberto C. Silva-Jaquez petitions this court, pursuant to
C.A.R. 21, for relief from the district court's
postconviction order (the "discovery order")
directing him to make certain disclosures to the prosecution
regarding an expert witness he endorsed in connection with a
Crim. P. 35(c) ineffective assistance of counsel claim (the
"disclosures"). Although the postconviction court
acknowledged its lack of authority under Crim. P. 16 to order
discovery in a postconviction proceeding, it nonetheless
believed that it could rely on its "inherent authority
to manage its cases" to order Silva-Jaquez to provide
discovery consistent with, and modeled after, that same rule.
¶3
We now hold that a trial court may not rely on its inherent
authority to order discovery in a postconviction proceeding.
In Colorado, a trial court has no freestanding authority to
order discovery absent authorization by a constitutional
provision, statute, or rule. Thus, we make absolute the order
to show cause and remand the case to the postconviction court
for further proceedings consistent with this opinion.
4
I.
Facts and Procedural History
¶4
In 2014, following a jury trial, Silva-Jaquez was convicted
of two counts of first degree murder, two counts of attempted
first degree murder, and one count of second degree assault
with a deadly weapon. A division of the court of appeals
affirmed his convictions.
¶5
Thereafter, Silva-Jaquez filed a pro se Crim. P. 35(c) motion
seeking postconviction relief. The postconviction court
appointed alternate defense counsel, who supplemented the
motion. The supplemented motion alleged, generally, that
Silva-Jaquez's trial counsel failed to provide effective
assistance.
¶6
After the parties briefed the supplemented motion, the
postconviction court set the matter for an evidentiary
hearing. Before the hearing, the prosecution filed a request
to compel disclosures related to the defense's expert
witness. Silva-Jaquez objected.
¶7
The postconviction court granted the prosecution's
request in a written order. In its analysis, the court relied
largely on People v. Owens, 2014 CO 58M, ¶ 16,
330 P.3d 1027, 1032, where we stated in passing that, in
order to avoid surprise and any resulting delay at a
postconviction evidentiary hearing, trial courts possess
"the inherent authority to manage their dockets through
scheduling orders" addressing the endorsement of
witnesses and other timely disclosures. The postconviction
court acknowledged that Owens dealt specifically
with the
5
prosecution's discovery obligations in a
postconviction proceeding and was not necessarily
dispositive, but it nevertheless ruled that the
above-referenced observation applied more generally and
supported the prosecution's request to compel. Thus, the
court found that it could require postconviction discovery
pursuant to its inherent case-management authority.
¶8
Beyond the aforementioned comment from Owens, the
postconviction court leaned on the purpose behind Crim. P.
16(II)(b), which, subject to constitutional limitations,
permits trial courts to require defendants to make pretrial
expert disclosures "to allow the prosecution sufficient
meaningful information to conduct effective cross-examination
under CRE 705." Crim. P. 16(II)(b)(2). In the
court's view, this goal applies with equal force in
postconviction proceedings.
¶9
After a status hearing, the court issued another order
clarifying its ruling. The court conceded that, by its own
terms, Crim. P. 16 is inapplicable in the postconviction
context. But it reiterated that a court's inherent
authority, along with the rationale for discretionary
pretrial disclosures regarding defense experts under Crim. P.
16(II)(b), justified the discovery order:
As noted in the Owens case, the court has the
inherent authority to manage its cases through scheduling
orders requiring the endorsement of witnesses and other
timely disclosures, as deemed necessary to avoid
delay-causing surprise at evidentiary hearings on
post-conviction claims. To that end, the court has ordered
the defense to provide expert disclosures consistent with the
discretionary disclosure provisions of Crim. P. 16, Part
II(b).... The court recognizes that Rule 16 does not, by its
terms, apply to post-conviction
6
proceedings but concludes, as noted above, that it has
authority to order disclosures consistent with the provisions
of Rule 16, Part II(b).
¶10
Silva-Jaquez sought our intervention pursuant to C.A.R. 21,
and we issued an order to show cause.[1] We now explain why the
exercise of our original jurisdiction is warranted.
II.
Jurisdiction Under C.A.R. 21
¶11
"The exercise of our original jurisdiction under C.A.R.
21 rests within our sole discretion." People v.
Tafoya, 2019 CO 13, ¶ 13, 434 P.3d 1193, 1195. An
original proceeding pursuant to C.A.R. 21 is "an
extraordinary remedy that is limited in both purpose and
availability." Kilgore, ¶ 8, 455 P.3d at
748 (quoting People in Int. of T.T., 2019 CO 54,
¶ 16, 442 P.3d 851, 855-56). We have exercised our
original jurisdiction before "when an appellate remedy
would be inadequate, when a party may otherwise suffer
irreparable harm, and when a petition raises 'issues of
significant public importance that we have not yet
considered.'" Id. (citations omitted)
(quoting Wesp v. Everson, 33 P.3d 191, 194 (Colo.
2001)).
¶12
Silva-Jaquez contends that relief under C.A.R. 21 is
appropriate because (1) he is facing irreparable harm and no
other appellate remedy is adequate, (2) the
7
issue he raises is one of first impression, and (3) our
resolution of the parties' dispute is of significant
public importance. We agree on all three scores.
¶13
First, Silva-Jaquez possesses no other adequate appellate
remedy to avert irreparable harm because, as the saying goes,
you can't put the genie back in the bottle. That is, once
Silva-Jaquez complies with the discovery order, his
disclosures cannot be unseen, unheard, or unknown, and he
cannot be returned to his original position. Of particular
concern, a portion of the disclosures is allegedly protected
by the attorney-client and work-product privileges.
¶14
Immediate review is appropriate where, as here, "the
damage that could result from disclosure would occur
regardless of the ultimate outcome of an appeal from a final
judgment." Kilgore, ¶ 11, 455 P.3d at 749
(quoting Ortega v. Colo. Permanente Med. Grp., P.C.,
265 P.3d 444, 447 (Colo. 2011)). We have recognized that
discovery orders implicating issues of privilege can cause
irreparable harm. Id.; Hoffman v. Brookfield
Republic, Inc., 87 P.3d 858, 861 (Colo. 2004).
¶15
Second, this issue is one of first impression. As
Silva-Jaquez notes in his petition, this court has considered
issues relating to a defendant's discovery obligations in
pretrial proceedings but has not yet passed judgment
on whether a defendant has any discovery obligations in
postconviction proceedings.
8
¶16
Third, Silva-Jaquez's petition raises a matter of
significant public importance. Trial courts handling criminal
dockets throughout the state regularly hold postconviction
proceedings. According to Silva-Jaquez, it is not uncommon
for the prosecution to request discovery in those
proceedings. And, asserts Silva-Jaquez, there is no
uniformity in how trial courts are currently resolving such
requests.
¶17
Having explained our decision to accept Silva-Jaquez's
C.A.R. 21 petition, we are ready to address the merits of the
contentions advanced by the postconviction court and the
parties. Before we set sail, however, we consider the
standard of review that guides our voyage.
III.
Standard of Review
¶18
Typically, discovery orders in criminal cases are reviewed
for an abuse of discretion. People in Int. of E.G.,
2016 CO 19, ¶ 6, 368 P.3d 946, 948. The question we are
faced with today, however, is a legal one: Whether the
postconviction court improperly relied on its inherent
authority in ordering Silva-Jaquez to provide discovery
mirroring that permitted by Crim. P. 16(II)(b). See
Kilgore, ¶ 13, 455 P.3d at 749. Thus, our review is
de novo. Id. With that matter settled, we cast off.
IV.
Analysis
¶19
"'The right of discovery in criminal cases is not
recognized at common law,'" and thus, "district
courts have 'no freestanding authority to grant criminal
9
discovery beyond what is authorized by the Constitution, the
rules, or by statute.'" Id. at ¶ 15,
455 P.3d at 749 (quoting E.G., ¶¶ 11, 13,
368 P.3d at 949-50). Accordingly, we must look to these three
(and only these three) sources to determine whether any of
them authorizes the discovery order. We take up each source
in turn.
¶20
Neither the postconviction court nor the prosecution contends
that the disclosures were authorized by a constitutional
provision. Rightly so. After all, "it is well
established that '[t]here is no general constitutional
right to discovery in a criminal case.'"
E.G., ¶ 23, 368 P.3d at 952 (alteration in
original) (quoting Weatherford v. Bursey, 429 U.S.
545, 559 (1977)). And while a defendant's
constitutional rights may nevertheless require the
prosecution to disclose certain information in a
postconviction proceeding, see Owens, ¶ 2, 330
P.3d at 1029 (explaining in a unitary postconviction review
of a death penalty case that due process required the
prosecution to disclose material information favorable to the
defense), in this postconviction proceeding, we deal with
information a defendant was ordered to disclose.
10
¶21
Likewise, neither the postconviction court nor the
prosecution cites any statute that could have supported the
disclosures. And we're aware of no such
statute.[2] Thus, we do not linger on this possible
source of authority.
¶22
Finally, the postconviction court and the prosecution agree
that no rule of criminal procedure expressly
authorized the disclosures.[3] Here, again, we are on the same
page. Still, the rules warrant a more detailed discussion
because both the postconviction court and the prosecution
draw guidance from them.
11
¶23
The first logical port of call is Crim. P. 16,
"Discovery and Procedure Before Trial," which
controls discovery in criminal cases. Kilgore,
¶ 16, 455 P.3d at 750. But Crim. P. 16 is altogether
inapplicable here because, as its title reflects, it
authorizes and outlines discovery before or during
trial. Indeed, we have confirmed that "the requirements
of Crim. P. 16 have not been extended beyond the facial
applicability of that rule to information and material
acquired prior to and during trial." Owens,
¶ 22, 330 P.3d at 1034. The postconviction court
realized as much. While it modeled the discovery order after
Crim. P. 16, it correctly acknowledged that the rule had no
application here. Cf. Kilgore, ¶ 26, 455 P.3d
at 751 (cautioning that a trial court's "inherent
discretion to manage cases" may not "expand the
contours" of Crim. P. 16).
¶24
Crim. P. 35 is the next intermediate port on our itinerary.
This rule, which controls procedures in the postconviction
context, affords no safe harbor for the discovery order
either. As the prosecution admits, Crim. P. 35 nowhere
mentions discovery. Since Crim. P. 35 does not grant
authority to order discovery in postconviction proceedings,
it cannot sanction the disclosures.
¶25
There are no other ports for us to explore. That is, we are
aware of no other relevant rule, and the postconviction court
and the prosecution have been unable to dredge one up.
12
¶26
The rules' silence on postconviction discovery is
deafening. Such silence creates a limitation, not an
opportunity. See Kilgore, ¶ 26, 455 P.3d at 751
("Thus, an omission from Rule 16 signifies something a
district court lacks authority to order, not
something it has authority to order.").
¶27
Despite the lack of constitutional, statutory, or rule-based
authority for postconviction discovery, the court
nevertheless ordered the disclosures based on its inherent
authority. And that brings us to the question front and
center here: Does a postconviction court possess inherent
authority to grant the prosecution's request for
discovery? The answer is a simple "no."
¶28
Of course, a trial court has inherent authority to carry out
its duties, including as reasonably required to allow it to
efficiently perform its judicial functions; to protect its
dignity, independence, and integrity; and to effectuate its
lawful actions. Laleh v. Johnson, 2017 CO 93, ¶
21, 403 P.3d 207, 211-12 (relying on Pena v. Dist.
Ct., 681 P.2d 953, 956 (Colo. 1984)). "These powers
are inherent in the sense that they exist because the court
exists; the court is, therefore it has the powers
reasonably required to act as an efficient court."
Id., 403 P.3d at 212 (quoting Pena, 681
P.2d at 956).
¶29
But inherent powers are not unlimited, and a trial court must
proceed "cautiously" when invoking them.
Id. (quoting Pena, 681 P.2d at 957).
"Because of their very potency, inherent powers must be
exercised with restraint and
13
discretion." Chambers v. NASCO, Inc., 501 U.S.
32, 44 (1991). Certainly, in no instance may a trial court
exercise its inherent authority to contradict statutes or
court rules. People v. Justice, 2023 CO 9, ¶
40, 524 P.3d 1178, 1186; see also Carlisle v. United
States, 517 U.S. 416, 426 (1996) ("Whatever the
scope of this 'inherent power,' . . . it does not
include the power to develop rules that circumvent or
conflict with the Federal Rules of Criminal
Procedure.").
¶30
Importantly, although we have endorsed a trial court's
invocation of its inherent authority based on a wide range of
rationales-from determining and compelling the payment of
funds reasonably necessary to discharge its responsibilities,
see Smith v. Miller, 384 P.2d 738, 741-42 (Colo.
1963), to setting pretrial deadlines, see People v.
Jasper, 17 P.3d 807, 815 (Colo. 2001)-we have never done
so unless it is "necessary for its proper
functioning." Pena, 681 P.2d at 957. Compelling
expert disclosures (particularly from a defendant) in the
context of a postconviction proceeding is simply not the sort
of function necessary for the effective operation of a court.
Thus, in addition to failing to comport with our longstanding
jurisprudence on the availability of criminal discovery, the
postconviction court's invocation of its inherent
authority lacked the necessary function-related foundation.
¶31
In fairness, the postconviction court is not the first trial
court to improperly rely on its inherent authority to support
a pretrial order. By our count, this is the
14
third time in the last five years that we disavow a trial
court's exercise of its inherent authority.
¶32
In 2020, in Kilgore, we rejected the
prosecution's contention that the trial court's
inherent authority to manage cases supported an order
requiring the defendant to disclose his exhibits before
trial. ¶¶ 25-26, 455 P.3d at 751. Two terms ago, in
Justice, the shoe was on the other foot: It was the
defendant urging us to uphold an order predicated on the
trial court's inherent authority. ¶ 41, 524 P.3d at
1186. We reversed, concluding that, whatever a trial
court's inherent authority in a criminal case, it did not
include ordering compulsory mediation. Id. We
reasoned that such authority could not contravene the
statutes granting sole discretion to the prosecution over
plea bargaining. Id.
¶33
Here, the postconviction court justified the exercise of its
inherent authority with a comment we made in Owens,
¶ 16, 330 P.3d at 1032. We said there that "it is
undisputed that district courts have the inherent authority
to manage their dockets through scheduling orders requiring
the endorsement of witnesses and other timely disclosures, as
they deem necessary to avoid delay-causing surprise at
evidentiary hearings on post-conviction claims, just as at
criminal trials." Id. For several reasons, we
are not persuaded that this statement can bear the extreme
weight the postconviction court rested on its slender
shoulders.
15
¶34
For starters, the remark in question is obiter
dictum (Latin for "something said in
passing"), i.e., "[a] judicial comment made while
delivering a judicial opinion, but one that is unnecessary to
the decision in the case and therefore not precedential
(although it may be considered persuasive)."
Dictum, Black's Law Dictionary (12th ed. 2024)
(defining "obiter dictum"). Colorfully
characterized in 1617 by Sir Francis Bacon as the
"vapours and fumes of law," Francis Bacon, The
Lord Keeper's Speech in the Exchequer, in 2
The Works of Francis Bacon 478 (Basil Montagu ed.,
1887), dictum has been recognized for centuries as
nonbinding. See, e.g., Carroll v. Lessee of
Carroll, 57 U.S. (16 How.) 275, 287 (1853) ("[T]his
court . . . has never held itself bound by any part of an
opinion, in any case, which was not needful to the
ascertainment of the right or title in question between the
parties."). Our passing reference to a trial court's
inherent authority in Owens is textbook dictum.
Inherent authority played no part in our ultimate holding.
Rather, we determined that Owens's constitutional right
to due process required the prosecution to disclose
constitutionally material information favorable to him.
Owens, ¶ 23, 330 P.3d at 1034.
¶35
Owens is also distinguishable. There, it was the
defense seeking information in the possession of the
prosecution. Here, it's the prosecution seeking
information in the possession of the defense. Of course, the
prosecution doesn't have the
16
constitutional rights a criminal defendant enjoys. In fact,
the prosecution does not (and cannot) cite any constitutional
provision in support of the discovery order. ¶36
Further, Owens involved a postconviction motion
filed in a death penalty unitary proceeding. Id. at
¶ 1, 330 P.3d at 1028-29. The unique circumstances of
death penalty litigation are plainly not present here.
¶37
In any event, the excerpt in Owens to which the
postconviction court anchored its ruling was an unremarkable
observation: A trial court may issue scheduling orders
pursuant to its inherent case-management authority. In
support, we cited Jasper, 17 P.3d at 812.
Owens, ¶ 16, 330 P.3d at 1032. There, we noted
that "the setting of deadlines for pretrial matters
constitutes an integral part of a trial court's case
management authority." Jasper, 17 P.3d at 812.
We wholeheartedly stand by that proposition today, just as we
did in Owens, but it falls woefully short of
permitting the discovery order.
¶38
True, in Owens, we didn't simply refer to
"scheduling orders"; we referred to
"scheduling orders requiring the endorsement of
witnesses and other timely disclosures." ¶ 16, 330
P.3d at 1032. But we meant nothing more than orders setting
timeframes for disclosures that are already authorized by a
constitutional provision, statute, or rule. The
postconviction court, instead, thought we meant orders
requiring disclosures not otherwise authorized. Hence, the
postconviction court misunderstood the passage in
Owens to which it moored its decision.
17
¶39
We now reaffirm that a trial court may not rely on its
inherent authority to order discovery in a postconviction
proceeding. Rather, a court's authority to order
discovery must be rooted in a constitutional
provision, statute, or rule. Kilgore, ¶ 15, 455
P.3d at 749 (relying on E.G., ¶ 13, 368 P.3d at
950).
¶40
Still, the postconviction court urges that, since Crim. P.
35(c) contemplates the introduction of new evidence without
providing guidelines for the management of discovery, trial
courts must necessarily possess the inherent power to manage
discovery, including by compelling expert disclosures. The
postconviction court and the prosecution further contend that
such power would vindicate the court's truth-finding
function and promote judicial efficiency by eliminating
surprise. We are unmoved.
¶41
As a preliminary matter, the fact that Crim. P. 35(c) is
silent on discovery does not reinforce the discovery order;
it undermines it. As a division of the court of appeals
recently pointed out, had our court "intended to allow
such discovery in connection with a Crim. P. 35(c) motion, it
easily could have said so. It did not." People v.
Thompson, 2020 COA 117, ¶ 32, 485 P.3d 566, 572;
see also Kilgore, ¶ 26, 455 P.3d at 751
(explaining, in the context of Crim. P. 16, that the absence
of a provision authorizing a particular pretrial disclosure
didn't mean the district court was free to order it;
rather, it signified a restriction on what the court could
order).
18
¶42
Moreover, the practical consequences of having no discovery
in a postconviction proceeding do not register on our concern
barometer. Before a postconviction court may hold an
evidentiary hearing, the defense must first show that the
claim has colorable merit. See, e.g., People v.
Segura, 2024 CO 70, ¶¶ 7, 26 n.8, 558 P.3d
234, 237, 240 n.8; Crim. P. 35(c)(3)(V) (stating that a
postconviction court may dispose of a Crim. P. 35(c) claim
without a hearing if appropriate, and that if the court holds
a hearing, it must take only that evidence necessary to
dispose of the motion). Consequently, prior to any
postconviction evidentiary hearing, the prosecution will
necessarily have advance notice of the contentions supporting
the claim. There is little risk of surprise.
¶43
At any rate, in the unlikely event the prosecution is
genuinely surprised at a postconviction evidentiary hearing,
it may ask the court to pause the proceedings for a
reasonable period of time. As the postconviction court
recognized, if a "defense expert [were] to testify to
matters that the prosecution was surprised by, the court, in
the interests of justice, [could] continue the hearing to
allow the prosecution time to reasonably respond."
Nobody disputes that a postconviction court has the inherent
authority to take this type of action.
¶44
We are not unsympathetic to the postconviction court's
efforts to avoid potential delay. But asking us to bless the
discovery order based on that court's inherent authority
seems a bit like asking Pandora to open her box. Disregarding
19
the legal boundaries of discovery in criminal cases in the
name of expediency via a trial court's inherent authority
at once invites chaos and undermines the Judicial
Branch's interest in the uniform administration of
justice. Cf. Dietz v. Bouldin, 579 U.S. 40, 48
(2016) ("Because the exercise of an inherent power in
the interest of promoting efficiency may risk undermining
other vital interests related to the fair administration of
justice, a district court's inherent powers must be
exercised with restraint."). If discovery were left to
the unguided and rudderless exercise of a trial court's
inherent authority, what mechanism would we employ to ensure
that defendants seeking postconviction relief are treated
equally in different judicial districts or even among
different judges within the same judicial district?
¶45
This is to say nothing of the discovery litigation that would
ensue as a matter of course in many postconviction
proceedings. Hearings would abound, not only on the
entitlement to discovery in the first instance, but on its
proper scope as well, vitiating the very
virtue-expediency-that the postconviction court sought to
redeem. We decline to follow the prosecution into such
uncharted waters.
V.
Conclusion
¶46
In sum, trial courts have no freestanding authority to order
discovery in criminal proceedings; such authority must stem
from a constitutional provision, statute, or rule. When, as
here, those sources do not provide for discovery, their
silence is a limitation that may not be circumvented through
a trial court's inherent authority. Because the
postconviction court relied on its inherent authority in
requiring the disclosures, it erred. Accordingly, we make
absolute the order to show cause and remand the case to the
postconviction court for further proceedings consistent with
this opinion.
---------
Notes:
[1] Here's the sole issue raised in
Silva-Jaquez's petition:
1. Did the Adams County District Court err in ordering
the defense to provide discovery disclosures mirroring those
required by Crim. P. 16 in a postconviction
proceeding?
[2] Section 18-1-410, C.R.S. (2024), which
addresses postconviction remedies, does not provide for
discovery.
[3] The prosecution argues that Crim. P.
57(b) impliedly authorized the disclosures. That
rule states that:
If no procedure is specifically prescribed by rule,
the court may proceed in any lawful manner not inconsistent
with these Rules of Criminal Procedure or with any directive
of the Supreme Court regarding the conduct of formal judicial
proceedings in the criminal courts, and shall look to the
Rules of Civil Procedure and to the applicable law if no Rule
of Criminal Procedure exists.
Id. However, the prosecution did not advance
this contention below, so it is not properly before us.
See Lambdin v. Dist. Ct., 903 P.2d 1126, 1132 (Colo.
1995) (refusing, in an original proceeding, to address
arguments not presented to the trial court). Besides, we have
never interpreted Crim. P. 57(b) as permitting discovery when
there is no constitutional provision, statute, or rule
expressly authorizing it. Were we to read Crim. P. 57(b) as
the prosecution proposes, it would risk eviscerating the
parameters currently in place regarding discovery in criminal
cases in Colorado. What's more, the approach championed
by the prosecution would foster disparate discovery practices
throughout the state-and not just in postconviction
proceedings.