The Colorado Supreme Court announced on Monday it will hear cases addressing the severity of sentences for vehicular homicide caused by intoxication and the level of information about child abuse reports that can be disclosed in open records requests.

At least three of the seven justices must agree to take up an appeal.

‘Grave and serious’

The Eighth Amendment’s prohibition on cruel and unusual punishment means sentences cannot be “grossly disproportionate” to the crime. Courts examining a sentence’s constitutionality first look at whether the offense was grave and serious, then at the harshness of the punishment. The Supreme Court has recognized that if an offense is “per se” grave and serious — meaning serious in all scenarios — and the sentence is within the authorized limits, it is “nearly impervious” to a challenge.

Kari Mobley Kennedy was driving extremely intoxicated in Larimer County when she hit another car head-on and killed Benjamin Shettsline. She pleaded guilty to DUI-based vehicular homicide and vehicular assault, with the prosecution and defense agreeing Kennedy’s maximum sentence for both counts would be 33 years in prison.

Chief Judge Susan Blanco sentenced Kennedy to 24 years for vehicular homicide and five years for vehicular assault, citing Kennedy’s prior drunk driving offenses, her repeated bond violations and the danger Kennedy presented to the community. Kennedy then moved for Blanco to reconsider, alleging the sentence was unconstitutional.

Blanco responded that vehicular homicide caused by intoxication is a per se grave and serious offense because it involves a person’s death, and she further concluded the 24-year sentence imposed for the crime was not grossly disproportionate.

A three-judge panel for the Court of Appeals partly agreed. It parted ways with Blanco’s characterization of Kennedy’s vehicular homicide charge, believing it was “not one of those rare crimes” that is always grave and serious.

“By way of example, imagine an individual who exceeds the prescribed dosage of a prescription medication and then crashes a golf cart into an infirm, elderly man thereby causing his death,” wrote Judge Terry Fox in the September 2023 opinion. “Now imagine another individual with a history of drinking and driving who intentionally drinks to the point of severe intoxication before driving his car and fatally running over that same man.”

She elaborated that the different ways of committing the same crime weighed against deeming it grave and serious in all circumstances. The panel concluded, however, Kennedy’s particular offense was extremely serious and the sentence Blanco imposed was constitutional.

Both sides appealed to the Supreme Court. The government raised a red flag on the appellate court’s determination that DUI-based vehicular homicide is not grave and serious across the board. Senior Assistant Attorney General Melissa D. Allen noted the Supreme Court’s landmark 2019 decision on grave and serious offenses deemed robbery the “perfect example” of an always-serious crime.

“It’s hard to imagine how robbery could automatically be more grave or serious than a crime where someone drinks or does drugs to such an excess that they are under the influence, and then that person makes the conscious decision to get behind the wheel of a car, drive, and kills someone as a result,” she argued.

Kennedy, meanwhile, maintained her combined 29-year sentence was “the harshest by a wide margin” compared to similar cases arising from Larimer County.

The Supreme Court will evaluate the issues raised by both sides.

The case is People v. Kennedy.

Child abuse data

In 2021, the Colorado Sun and 9News filed open records requests with the Colorado Department of Human Services seeking the number of calls made to the child abuse hotline over a three-year period from three facilities: Tennyson Center, Mount Saint Vincent and Cleo Wallace. The state offered to provide the total number of reports and tips investigated, but alleged breaking the data down by facility could improperly reveal identifying information for a child or informant.

On appeal, the news outlets contended it would be impossible to identify individuals through the information they sought.

By 2-1, a Court of Appeals panel concluded the law broadly shielding child abuse and neglect reports from disclosure is ambiguous. Confidentiality applies to the reports themselves, as well as the “name and address of any child, family, or informant,” plus other identifying information. The state believed the open records requests implicated the address component of the law, and the panel acknowledged that view to be reasonable.

But the court’s majority ultimately sided with the news outlets’ interpretation that the law did not categorically bar the information they were seeking — so long as it did not identify a particular person. Judge Elizabeth L. Harris, writing for the majority, suggested the withholding of even non-identifying information “could be an unconstitutional restriction on free speech.”

Judge Neeti V. Pawar, writing in dissent, deemed it “unreasonable” for addresses on child abuse and neglect reports to be disclosable sometimes, but not when they could identify the people involved with the alleged abuse.

“In my view, the only reasonable reading is that names and addresses in child abuse reports are always confidential,” she wrote.

The Supreme Court will review the majority’s conclusion that the law is open to multiple interpretations.

The case is Brubaker v. Colorado Sun et al.