text:
    William KUTZLY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
    Supreme Court Case No. 15SC877
    Supreme Court of Colorado.
    June 17, 2019
    Attorneys for Petitioner: Megan A. Ring, Public Defender, Tracy C. Renner, Deputy Public Defender, Denver, Colorado
    Attorneys for Respondent: Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney General, Denver, Colorado
    En Banc
   JUSTICE BOATRIGHT delivered the Opinion of the Court.

¶1 William Kutzly was charged with several crimes involving sexual assault on a child. During his trial, the court qualified a social worker as an expert witness in child sexual assault and victim dynamics; the witness then testified about behaviors common among sexually abused children, as well as traits common among sex offenders. Prior to trial, Kutzly moved the trial court to hold a Shreck hearing to determine the reliability of the social worker's proposed testimony. The trial court held a hearing on that motion, determined that the testimony was reliable, and ultimately denied the motion to hold a full evidentiary Shreck hearing on that issue. Kutzly argues that this was in error. We conclude that the trial court made specific findings of reliability such that its decision not to hold a Shreck hearing was not an abuse of discretion. Hence, we hold that the trial court did not abuse its discretion in concluding that the expert's testimony was reliable under CRE 702. We therefore affirm the court of appeals' decision.

I. Facts and Procedural History

¶2 Kutzly helped his wife run her daycare. J.S. attended that daycare between the ages of two and three. During that time, J.S.

described to his mother how Kutzly had sexually assaulted him which, combined with J.S.'s newly sexualized behavior, prompted J.S.'s mother to contact the police. Following an investigation, Kutzly was charged with sexual assault on a child, sexual assault on a child by one in a position of trust, and a habitual sexual offender count. Kutzly's theory of defense was that J.S.'s mother fabricated the story after learning that Kutzly was a registered sex offender to explain away J.S.'s behavior.

¶3 Prior to trial, the People filed a notice endorsing Gayle Christensen, a social worker, as an expert witness in child sexual assault and victim dynamics who would testify in the areas of perpetrator dynamics, victim dynamics, and rape trauma syndrome. The primary basis of Christensen's expert qualification was his 31 years of experience counseling (1) over 1,000 children who were reportedly victims of sexual abuse, and (2) over 250 suspected sex offenders. In response to the endorsement of Christensen as an expert, Kutzly filed a motion requesting an evidentiary hearing pursuant to People v. Shreck , 22 P.3d 68 (Colo. 2001), i.e., a Shreck hearing, to determine the admissibility of Christensen's proposed testimony. The trial court held a motions hearing to determine if a Shreck hearing was warranted. During that motions hearing, Kutzly argued that Christensen should not be permitted to testify about common characteristics of child sex abuse victims or sex offenders. According to Kutzly, such testimony was unreliable because (1) it could not be confirmed that Christensen's previous clients were actually victims or perpetrators of abuse, and (2) his opinions were not supported by studies. The People responded that a Shreck hearing was unnecessary because experience-based expert testimony does not need to be supported by a scientific foundation to be reliable and Kutzly's arguments did not relate to admissibility but rather to the strength of the evidence. Ultimately, the trial court adopted the People's arguments and denied Kutzly's motion to hold a Shreck hearing.

¶4 At trial, the court accepted Christensen as an expert in the dynamics of sexual abuse and sexual offenders. In so doing, the trial court noted that Christensen held a master's degree in social work and an undergraduate degree in psychology, and that he had participated in continuing education throughout his career. It also noted that Christensen is a licensed clinical social worker and was approved as a full-treatment provider by the Sex Offender Management Board, and that he had 31 years of experience working with over 1,000 child victims of sexual abuse and over 250 sex offenders.

¶5 On direct examination, Christensen testified about common behaviors in sexual abuse relationships, including that sex offenders: (1) often gain access to children through supervisory roles; (2) sometimes target more vulnerable children, such as those with a high level of emotional need, or those who lack adult attention or supervision; (3) exploit children by identifying their emotional needs; and (4) gradually gain a child's compliance through grooming, i.e., by beginning with ordinary touching and progressing to inappropriate touching. Christensen also testified that it is common for child victims to: (1) delay reporting; (2) only tell part of the story when they initially report, then gradually disclose more information; (3) act out sexually themselves; and (4) react differently than adults to abuse.

¶6 On cross-examination, the defense questioned Christensen about how he can tell whether the people he treats are actual victims or perpetrators of sexual abuse. Christensen answered that sometimes abuse is clearly confirmed because of an admission or additional evidence but other times it is difficult to assess and he can never be one hundred percent certain that abuse actually occurred in each circumstance. The defense also asked if Christensen's opinions about common behaviors in sexual abuse relationships were scientifically validated through comparisons with control groups, to which Christensen responded no.

¶7 Kutzly was found guilty as charged. He appealed his convictions, arguing, as relevant here, that Christensen's testimony was unreliable under Shreck and was thus improperly admitted at trial. The court of appeals held that the trial court did not commit reversible error in permitting Christensen to testify about common characteristics of child sex abuse victims and sex offenders because this type of testimony is well recognized as admissible in Colorado. People v. Kutzly , No. 11CA2471, slip op. at 14, 2015 WL 5210837 (Colo. App. Sept. 3, 2015). We granted certiorari to determine whether the court of appeals properly applied Shreck and whether Christensen's testimony was reliable under CRE 702. We now affirm.

II. Standard of Review

¶8 We review a lower court's application of a legal standard de novo. LaFond v. Sweeney , 2015 CO 3, ¶ 12, 343 P.3d 939, 943. We review a trial court's determination of the admissibility of expert testimony for an abuse of discretion. People v. Rector , 248 P.3d 1196, 1200 (Colo. 2011).

III. Analysis

¶9 We begin by examining the Shreck standard for determining the admissibility of expert testimony. Next, we decide whether the lower courts properly applied Shreck and, more specifically, whether the trial court abused its discretion when it concluded that Christensen's testimony was reliable under CRE 702. We conclude that the trial court made specific findings of relevance, reliability, and that CRE 403 was satisfied such that its decision not to hold a Shreck hearing was not an abuse of discretion. Hence, we hold that the trial court did not abuse its discretion in concluding that Christensen's testimony was reliable under CRE 702.

A. Law

¶10 In Shreck , we explained that the admissibility of expert testimony is governed by CRE 702 and CRE 403. 22 P.3d at 68. We further clarified that, under these evidentiary rules, admissibility of expert testimony requires that the testimony be relevant and reliable, and that the probative value of the evidence not be substantially outweighed by any of the countervailing considerations contained in CRE 403. Id. at 70, 77-78. No one disputes that Shreck applies in this case. And our decision in Ruibal v. People confirmed as much. 2018 CO 93, ¶ 12, 432 P.3d 590 (explaining how Shreck made clear that CRE 702, rather than the antiquated "general acceptance" standard of Frye v. United States , 293 F. 1013 (D.C. Cir. 1923), governs the admissibility of all expert testimony in Colorado, including experience-based expert testimony).

¶11 A party may move the trial court to conduct a pretrial evidentiary hearing, i.e., a Shreck hearing, to decide the admissibility of an expert witness's proposed testimony. Rector , 248 P.3d at 1201. A trial court, however, may decide that a Shreck hearing is unnecessary. Id. A trial court need not conduct a Shreck hearing if there is sufficient information to make an admissibility determination without one, but the trial court must nonetheless address the testimony and make specific findings regarding its challenged admissibility. Id. ; Ruibal , ¶ 13. Notably, a trial court fails to make a specific finding if such a finding must be inferred. Ruibal , ¶ 14. If the trial court fails to make a specific finding, then it abuses its discretion in not holding a Shreck hearing unless the record not only supports admission of the contested testimony, but virtually requires it, or if Colorado has already properly accepted the basis of the expert's testimony. Id.

¶12 Regarding a specific finding of reliability of expert testimony, a trial court should apply a liberal standard that only requires proof that the underlying scientific principles are reasonably reliable. Shreck , 22 P.3d at 77. Determining if expert testimony is reasonably reliable requires considering the totality of the circumstances surrounding the proposed expert testimony and is not contingent on any specific list of factors. Id. at 77-78. Therefore, certain factors-such as whether the technique has been tested, whether it has been subjected to peer review and publication, whether it has been generally accepted, its known or potential rate of error, and the existence and maintenance of standards controlling its operation-will be crucial in some cases but inapposite in others. See id. (explaining that the factors significant to making a CRE 702 reliability determination will vary depending on the particular subject matter at hand). Moreover, a trial court's reliability determination should consider whether the witness is qualified as an expert regarding the proposed testimony. Id. at 77.

B. Application

¶13 The first issue we must address is whether the trial court correctly applied Shreck when it denied Kutzly's motion to hold a Shreck hearing. We conclude that it did because it made specific findings of relevance, reliability, and that CRE 403 was satisfied. Second, we must consider whether the trial court abused its discretion in concluding that Christensen's testimony was reliable under CRE 702. We conclude that it did not.

1. The Trial Court Made Specific Relevance, Reliability, and CRE 403 Findings

¶14 Kutzly argues that the trial court failed to make specific findings of relevance, reliability, and that CRE 403 was satisfied. But the record in fact proves otherwise. Prior to trial, the People filed a notice endorsing Christensen as an expert witness. In response, Kutzly filed a motion requesting an evidentiary hearing under Shreck to determine the admissibility of Christensen's testimony. The trial court held a hearing on that motion, heard arguments from both sides, and concluded that an evidentiary hearing under Shreck was unwarranted. The issue is therefore whether the trial court's conclusion that an evidentiary hearing under Shreck was unwarranted included specific findings of relevance, reliability, and that CRE 403 was satisfied. We conclude that it did.

¶15 At the hearing on Kutzly's motion for a Shreck hearing, the court expressly found that Christensen's proposed testimony was relevant. Additionally, although the court did not explicitly cite CRE 403, it applied that rule's test when it acknowledged that the proposed testimony was prejudicial but that any risk of unfair prejudice could be combatted during cross-examination. Therefore, there was a specific finding that CRE 403 was satisfied.

¶16 We also conclude that the trial court made a specific finding that Christensen's proposed testimony was reliable. We reach this conclusion because of two statements made by the trial court. First, the trial court disagreed with Kutzly's argument that Christensen's testimony was inadmissible because it was based on an inadequate scientific foundation. Second, the trial court incorporated the People's argument for admissibility into its finding, which emphasized Christensen's experience working with both victims and perpetrators of sexual assault. Taken together, we conclude that, while not ideal, the trial court's specific finding regarding the reliability of Christensen's testimony was sufficient.

2. The Trial Court Did Not Abuse Its Discretion

¶17 We now review whether the trial court abused its discretion when it concluded that Christensen's testimony was reliable under CRE 702. Kutzly argues that Christensen's testimony about the behavior of sexually abused children and offenders was unreliable because (1) it was not based on confirmed cases of abuse, and (2) the prosecution offered no evidence that Christensen's opinions were supported by studies. The core theme in Kutzly's argument is that experience-based expert testimony must be based on some level of statistical analysis. In this instance, however, statistical analysis is not required because Christensen's testimony is reasonably reliable under the totality of the circumstances. See Shreck , 22 P.3d at 77-78.

¶18 Here, Christensen based his opinions on his educational background in conjunction with his experience counseling over 1,000 purported child victims of sexual abuse and over 250 purported sex offenders. Kutzly contends that if it had been confirmed that each suspected victim had been abused and that each suspected offender had committed abuse, Christensen's testimony would have been reliable. But the trial court did not need this certainty to find Christensen's testimony reliable. Again, the question is whether the testimony is reasonably reliable, so it only matters that it was reasonably likely that the suspected victims had been abused and that the suspected offenders had committed abuse. The suspected victims and offenders who formed the bases of Christensen's opinions were not randomly selected people but were individuals who were referred to Christensen from entities such as the Sex Offender Management Board. Under these circumstances, it was not an abuse of discretion to conclude that it was reasonably likely that Christensen's patients were actual victims and offenders. Additionally, as the trial court pointed out, the inability to absolutely confirm the reported abuse or victimization is a ground for cross-examination rather than a bar to Christensen's qualification as an expert. The possibility of false reporting was pointed out to the jury, and the jury gave that evidence the weight it determined it was due. We therefore conclude that the district court did not abuse its discretion when it found that Christensen's testimony was reliable under CRE 702.

IV. Conclusion

¶19 We conclude that the trial court made specific findings of relevance, reliability, and that CRE 403 was satisfied. Moreover, we hold that the trial court did not abuse its discretion in concluding that Christensen's testimony was reliable under CRE 702, and thus admitting it at trial. For the foregoing reasons, we affirm the judgment of the court of appeals.

      We granted certiorari to review the following issues:
      1. Whether the court of appeals erred in applying People v. Shreck , 22 P.3d 68 (Colo. 2001), in evaluating the admissibility of experience-based testimony under CRE 702.
      2. Whether expert testimony by a licensed social worker regarding the common characteristics of (1) child sexual assault victims and (2) adult sexual offenders was inadmissible because it was not reliable.

      The People clarified that Christensen's testimony would not address whether an actual syndrome exists, but rather the individual attributes that make up the syndrome, such as delayed reporting, recantation, and grooming.

      The court of appeals opinion did not address whether the trial court made specific findings, and instead held that the trial court did not err in denying a Shreck hearing because expert testimony about the behavior of sexual assault victims and expert testimony on sex offender characteristics has been regularly admitted in Colorado. Kutzly , slip op. at 12-15. Since we conclude that the trial court made specific findings, we need not address whether such testimony had been properly admitted in previous cases.

      The trial court noted that Kutzly "is arguing that the scientific foundation is inadequate, but that is a point for cross-examination. The Court is satisfied that ... Mr. Christensen is allowed to testify in this area." The court further stated that Kutzly's arguments "are excellent [for] cross-examination, but ... [don't] get past the foundation as to whether Mr. Christensen can be qualified as an expert."

      In the People's response to Kutzly's motion to hold a Shreck hearing, it argued that testimony of this type is reliable assuming the witness can be qualified as an expert. This argument was incorporated by the trial court, which stated that it found the arguments cited by the People "persuasive" and incorporated them into its finding. Therefore, the trial court made a specific finding that Christensen was qualified to opine on the matter, which is a factor that trial courts should consider when making a reliability determination. Shreck , 22 P.3d at 77.

      We do not opine that statistical analyses are never appropriate for experience-based testimony. We only determine that the trial court did not abuse its discretion here.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Petitioner, v. Israel CHAVEZ-TORRES, Respondent.
    Supreme Court Case No. 17SC61
    Supreme Court of Colorado.
    June 17, 2019
    Attorneys for Petitioner: Philip J. Weiser, Attorney General, Carmen Moraleda, Assistant Attorney General, Denver, Colorado
    Attorneys for Respondent: The Noble Law Firm, LLC, Antony Noble, Matthew Fredrickson, Lakewood, Colorado
    En Banc
   JUSTICE SAMOUR delivered the Opinion of the Court.

¶1 Is a noncitizen defendant entitled to a hearing on the timeliness of his Crim. P. 35(c) postconviction motion when he invokes the justifiable excuse or excusable neglect exception and alleges that plea counsel provided him no advice regarding the immigration consequences of his plea? The answer generally depends on the specific allegations set forth in the motion. However, when the plea agreement or the plea hearing transcript is submitted, the trial court should consider it in conjunction with the allegations advanced.

¶2 In this case, we hold that Israel Chavez-Torres is entitled to a hearing. The factual allegations in his motion (which we must assume are true), when considered in conjunction with the plea agreement and the plea hearing transcript, are sufficient to establish justifiable excuse or excusable neglect for failing to collaterally attack the validity of his felony conviction within the applicable three-year limitations period. Chavez-Torres alleged that he had no reason to question or investigate his plea counsel's failure to advise him regarding the immigration consequences of his plea. Further, although he was not required to do so, Chavez-Torres submitted the plea agreement and the plea hearing transcript with his motion, and neither references the immigration consequences of his plea.

¶3 In the companion case we announce today, People v. Alvarado Hinojos , 2019 CO 60, --- P.3d ----, we reach the opposite conclusion because we determine that the immigration advisement contained in the plea agreement, at a minimum, gave Alvarado Hinojos reason to question the accuracy of his plea counsel's allegedly erroneous advice regarding the immigration consequences of the plea. Thus, even taking at face value the allegations in Alvarado Hinojos's motion, he was on notice at the time of his plea that he needed to diligently investigate his counsel's advice and, if appropriate, file a timely motion challenging the validity of the conviction.

¶4 The court of appeals ruled in this case that Chavez-Torres's motion merited a hearing on the applicability of the justifiable excuse or excusable neglect exception. We agree and therefore affirm its judgment. We remand with instructions to return the case to the trial court for a hearing.

I. Factual and Procedural History

¶5 Chavez-Torres was born in Mexico. He immigrated to the United States with his mother and three sisters in 1991 when he was thirteen years old. In August 1996, while in high school, Chavez-Torres pled guilty to first-degree criminal trespass (a class 5 felony). He received a sentence to probation, which he completed successfully. In 2013, seventeen years after his conviction, the United States Department of Homeland Security ("DHS") notified Chavez-Torres that it had initiated removal proceedings against him based on his conviction. Chavez-Torres promptly consulted an immigration attorney who advised him that his conviction made him ineligible for cancellation of removal proceedings. The immigration attorney thus opined that plea counsel may have provided Chavez-Torres ineffective assistance by failing to provide an advisement about the immigration consequences of the plea.

¶6 In May 2015, based on the advice from his immigration attorney, Chavez-Torres sought postconviction relief by filing a motion pursuant to Crim. P. 35(c) attacking the validity of his conviction. Chavez-Torres asserted that his plea counsel had provided him ineffective assistance by failing to advise him of the immigration consequences of his plea, even though she was aware of his immigration status. He acknowledged that his motion was untimely, as it was not filed within the applicable three-year limitations period in section 16-5-402(1), C.R.S. (2018). But he argued that the untimeliness resulted from circumstances constituting justifiable excuse or excusable neglect because he had no reason to question the effectiveness of his plea counsel's assistance-and, correspondingly, the constitutional validity of his conviction-until he was informed that DHS had initiated removal proceedings against him. He contended that when he learned his conviction prevented him from remaining in the United States, he realized that his plea counsel may have provided him ineffective assistance and that his conviction may be constitutionally infirm.

¶7 Although the prosecution did not respond to Chavez-Torres's motion, the trial court summarily denied it as untimely. It found that the motion was filed beyond the three-year limitations period in section 16-5-402(1), that the facts alleged were insufficient to trigger the justifiable excuse or excusable neglect exception set forth in section 16-5-402(2)(d), and that granting the requested relief would greatly prejudice the prosecution's case given the lengthy passage of time since the conviction. The trial court reasoned that the decision in People v. Martinez-Huerta , 2015 COA 69, 363 P.3d 754, foreclosed a hearing to determine the applicability of the justifiable excuse or excusable neglect exception to the statutory time bar. In Martinez-Huerta , the court of appeals held that the defendant's allegation that he accepted the prosecution's plea offer based on his plea counsel's "affirmative, but erroneous" advice regarding the immigration consequences of the plea entitled him to a hearing to determine whether there were circumstances amounting to justifiable excuse or excusable neglect for failing to file a timely Rule 35(c) motion. Id. at ¶ 2, 363 P.3d at 755. Because Chavez-Torres's claim was based on his plea counsel's failure to advise him regarding the immigration consequences of his plea, not on his plea counsel's erroneous advice regarding such consequences, the trial court ruled that Chavez-Torres was not entitled to a hearing as a matter of law.

¶8 Chavez-Torres appealed, and a division of the court of appeals reversed. The division read Martinez-Huerta differently than the trial court and concluded that Chavez-Torres had asserted facts which, if true, would establish justifiable excuse or excusable neglect for failing to bring his Rule 35(c) motion within three years of the date of his conviction. The division also agreed with Chavez-Torres's argument that there was no support in the record for the trial court's determination that the prosecution would suffer great prejudice if the relief requested were granted. Therefore, the division concluded that Chavez-Torres is entitled to a hearing to determine the applicability of the justifiable excuse or excusable neglect exception to the three-year time bar.

¶9 The prosecution then petitioned for certiorari review, and we granted the petition.

II. Analysis

¶10 We begin by articulating the controlling standard of review. We then examine the time bar in section 16-5-402(1) and the justifiable excuse or excusable neglect exception in section 16-5-402(2)(d). After reviewing these provisions, we pivot to discuss our decision in People v. Wiedemer , where we interpreted the subsection (2)(d) exception. 852 P.2d 424, 440-42 (Colo. 1993). We end by applying Wiedemer to the facts alleged by Chavez-Torres, which we must assume are true, and conclude that, when considered in conjunction with the plea agreement and the plea hearing transcript, they would establish justifiable excuse or excusable neglect. Accordingly, we hold that Chavez-Torres is entitled to a hearing.

A. Standard of Review

¶11 Whether the facts alleged, if true, would constitute justifiable excuse or excusable neglect pursuant to section 16-5-402(2)(d) so as to entitle the defendant to a hearing is a question of law. Close v. People , 180 P.3d 1015, 1019 (Colo. 2008). Therefore, our review is de novo. Id.

B. Sections 16-5-402(1), (2)(d)

¶12 Section 16-5-402(1) establishes a three-year limitations period to bring a collateral attack against the validity of all felony convictions that are not class 1 felonies. Subsection (2) provides four exceptions to that time bar, one of which is relevant here:

(d) Where the court hearing the collateral attack finds that the failure to seek relief within the applicable time period was the result of circumstances amounting to justifiable excuse or excusable neglect.

Chavez-Torres invoked this exception, asserting justifiable excuse or excusable neglect for filing his motion after the limitations period expired.

C. People v. Wiedemer

¶13 In Wiedemer , we observed that a defendant who invokes the justifiable excuse or excusable neglect exception in subsection (2)(d) is not required to provide evidentiary support for his allegations. 852 P.2d at 440 n.15. Instead, his motion must allege facts which, if true, would entitle him to relief from the time bar. Id. To determine the applicability of this exception, the trial court has to consider "the particular facts of [the] case," mindful of "the overriding concern" under the Due Process Clause that defendants must "have a meaningful opportunity to challenge their convictions." Close , 180 P.3d at 1019.

¶14 We have identified a nonexhaustive list of factors that are relevant to the justifiable excuse or excusable neglect exception in subsection (2)(d):

• whether circumstances or outside influences prevented a timely challenge to a conviction;
• the extent to which the defendant, having reason to question the constitutionality of a conviction, timely investigated its validity and took advantage of available avenues of relief;
• whether the defendant had any previous need to challenge a conviction and either knew it was constitutionally infirm or had reason to question its validity;
• whether the defendant had other means of preventing the government's use of a conviction, so that a postconviction challenge was previously unnecessary; and
• whether the passage of time affects the prosecution's ability to defend against the challenge.

Id. at 1019-20 (citing Wiedemer , 852 P.2d at 441-42 ).

¶15 But the question here is not whether Chavez-Torres was justifiably excused in filing his Rule 35(c) motion late or whether any neglect in his failure to file a timely motion is excusable. The question is narrower: Is Chavez-Torres entitled to a hearing on the timeliness of his motion?

¶16 Wiedemer provides guidance on this point as well. There, we said that "a Crim. P. 35(c) motion must allege facts that if true would establish justifiable excuse or excusable neglect in order to entitle the moving party to a hearing on the applicability of this exception to the time bar of § 16-5-402(1)." Wiedemer , 852 P.2d at 440 n.15. Consistent with Wiedemer , in Close , we determined, as a matter of law, that Close's Rule 35(c) postconviction motion merited a hearing because it "alleged facts which, if true, would establish justifiable excuse or excusable neglect." 180 P.3d at 1022. Thus, whether a defendant who invokes the subsection (2)(d) exception to the applicable time bar is entitled to a hearing will generally depend on the specific factual allegations advanced in his motion.

¶17 However, we now conclude that, while a defendant is not required to provide evidentiary support for his allegations regarding justifiable excuse or excusable neglect, the trial court may rely on the plea agreement or the plea hearing transcript in denying his Rule 35(c) motion without a hearing on timeliness grounds. Cf. Kazadi v. People , 2012 CO 73, ¶ 17, 291 P.3d 16, 22 ("A court must hold an evidentiary hearing on a Crim. P. 35(c) motion unless the motion, the files, and the record clearly establish that the allegations in the motion lack merit and do not entitle the defendant to relief."). In the companion case we decide today, Alvarado Hinojos , we determine that Alvarado Hinojos is not entitled to a hearing on the applicability of the subsection (2)(d) exception because his plea agreement gave him reason to question and investigate his plea counsel's allegedly erroneous advice about the immigration consequences of the plea. Hence, when the plea agreement or the plea hearing transcript is submitted, the trial court should consider it in conjunction with the allegations set forth in the Rule 35(c) motion.

¶18 With these principles in mind, we examine Chavez-Torres's motion. Our inquiry is whether he alleged facts which, taken at face value and considered in conjunction with the plea agreement and the plea hearing transcript, establish justifiable excuse or excusable neglect and therefore entitle him to a hearing on the applicability of the subsection (2)(d) exception.

D. Application

¶19 Chavez-Torres advanced factual allegations related to some of the Wiedemer factors. See Wiedemer , 852 P.2d at 441-42. He asserted that:

• he told his plea counsel that he was not a citizen of the United States, but she nevertheless advised him to accept the prosecution's plea offer;
• his plea counsel failed to advise him that his plea would prevent him from becoming a lawful permanent resident or from applying for cancellation of removal proceedings;
• he was unaware that his plea would prevent him from remaining lawfully in the United States;
• he relied on and heeded his plea counsel's advice in accepting the plea offer;
• he did not learn that his conviction carried immigration consequences until removal proceedings were initiated against him;
• he would have rejected the plea offer and would have insisted on proceeding to trial if his plea counsel had properly advised him about the immigration consequences of the plea;
• he had no reason to question the validity of his conviction or the effectiveness of his plea counsel's assistance until he learned that his conviction prevented him from remaining in the United States; and
• his plea counsel is still an attorney practicing in Colorado (and is presumably available to testify at a hearing).

¶20 Thus, Chavez-Torres's motion set forth factual assertions related to four of the five Wiedemer factors. These factual assertions, if true, would establish that: (1) there were circumstances or outside influences that prevented him from filing his motion in a timely fashion; (2) he had no reason to question the constitutionality of his conviction during the three-year limitations period; (3) although he had a present need to challenge his conviction, see People v. Mershon , 874 P.2d 1025, 1036-37 (Colo. 1994), he neither knew his conviction was constitutionally infirm nor had reason to question its validity; and (4) the passage of time would not affect the prosecution's ability to respond to his challenge because his plea counsel is still a practicing attorney in Colorado (and could presumably be subpoenaed to testify at a hearing). Notably, Chavez-Torres submitted the plea agreement and the plea hearing transcript with his motion, and neither document contains any references to immigration consequences. In other words, both documents corroborate Chavez-Torres's factual allegations.

¶21 Moreover, according to Chavez-Torres's motion, the time that elapsed between the day he learned of his plea's immigration consequences and the day he filed his motion did not exceed the amount of time prescribed in section 16-5-402(1) to collaterally attack his conviction (three years). While this is not one of the factors we included in the nonexhaustive list in Wiedemer , we find it relevant to the analysis. After all, the justifiable excuse or excusable neglect exception was never intended to give defendants who invoke its protection an unfair advantage.

¶22 Under these circumstances, we conclude that Chavez-Torres's allegations (which we must assume are true), when considered together with the plea agreement and the plea hearing transcript, are sufficient to establish justifiable excuse or excusable neglect for failing to file his Rule 35(c) motion within the three-year limitations period. Therefore, we hold that he is entitled to a hearing on the applicability of the subsection (2)(d) exception to the time bar in subsection (1).

¶23 In summarily denying Chavez-Torres's motion, the trial court concluded that the court of appeals' decision in Martinez-Huerta foreclosed a hearing. To the extent that the court in Martinez-Huerta suggested that a defendant who alleges that his plea counsel failed to advise him about the immigration consequences of the plea-as opposed to alleging that his plea counsel provided erroneous advice about the immigration consequences of the plea-can never be entitled to a hearing, ¶ 17, 363 P.3d at 757, we disagree with it.

¶24 The prosecution argues that an attorney's failure to advise a client does not generally establish justifiable excuse or excusable neglect. We agree. But the cases from the court of appeals on which the prosecution relies are inapposite because the scope of our analysis in this case is quite narrow-it is limited to Rule 35(c) claims in which a noncitizen defendant alleges justifiable excuse or excusable neglect under subsection (2)(d) based on his plea counsel's purported failure to fulfill her legal duty to provide proper advice about the immigration consequences of his plea. In People v. Slusher , 43 P.3d 647, 651 (Colo. App. 2001), the court concluded that counsel's failure to advise his client about the provisions of the Uniform Mandatory Disposition of Detainers Act did not amount to justifiable excuse or excusable neglect, and in People v. Alexander , 129 P.3d 1051, 1056 (Colo. App. 2005), the court determined that appellate counsel was not required by law to advise his client about the time limitations to file a postconviction motion. Neither of those cases involved plea counsel's alleged failure to provide proper advice to a noncitizen client about the immigration consequences of a plea.

¶25 There is a compelling reason why we chart a carefully circumscribed course today related to the immigration consequences of a plea. Changes to the immigration-law landscape "have dramatically raised the stakes of a noncitizen's criminal conviction" and have rendered removal from the country "an integral part-indeed, sometimes the most important part -of the penalty that may be imposed" when such a defendant pleads guilty to certain crimes. Padilla v. Kentucky , 559 U.S. 356, 364, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (emphasis added).

¶26 Recognizing that it is the courts' responsibility to ensure that no criminal defendant "is left to the 'mercies of incompetent counsel,' " id. at 374, 130 S.Ct. 1473 (quoting McMann v. Richardson , 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) ), the U.S. Supreme Court explained in Padilla that "[t]he weight of prevailing professional norms supports the view that [constitutionally effective] counsel must advise her client regarding the risk of" removal from the country, id. at 367, 130 S.Ct. 1473. See also People v. Pozo , 746 P.2d 523, 529 (Colo. 1987) ("When defense counsel in a criminal case is aware that his client is an alien, he may reasonably be required to investigate relevant immigration law" because "thorough knowledge of fundamental [immigration] principles" may have a "significant impact on a client's decisions concerning plea negotiations and defense strategies."). "The severity of deportation-'the equivalent of banishment or exile'-... underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation." Padilla , 559 U.S. at 373-74, 130 S.Ct. 1473 (quoting Delgadillo v. Carmichael , 332 U.S. 388, 390-91, 68 S.Ct. 10, 92 L.Ed. 17 (1947) ). The Sixth Amendment can require nothing less of an attorney representing a noncitizen criminal defendant than "to provide advice about the risk of deportation arising from a guilty plea." Chaidez v. United States , 568 U.S. 342, 344, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013).

¶27 Characterizing deportation as "uniquely difficult to classify as either a direct or a collateral consequence" of a criminal conviction, Padilla , 559 U.S. at 366, 130 S.Ct. 1473, the U.S. Supreme Court has placed counsel's obligation to inform a "client whether his plea carries a risk of deportation," id. at 374, 130 S.Ct. 1473, in virtually a class by itself. We see no reason why this same consideration should not be taken into account in assessing the entitlement of a criminal defendant to a hearing concerning a claim of justifiable excuse or excusable neglect for failing to challenge the validity of a conviction within the statutorily prescribed period.

¶28 The prosecution insists, however, that we should reverse the division's judgment based on court of appeals cases addressing ignorance of the law, lack of legal assistance, and the recent discovery of a legal basis to collaterally attack a conviction. The prosecution misses the mark here too. Neither People v. White , 981 P.2d 624, 626 (Colo. App. 1998), where White sought a finding of justifiable excuse or excusable neglect based on his ignorance of the time bar in subsection (1), nor People v. Vigil , 955 P.2d 589, 591-92 (Colo. App. 1997), where Vigil relied on his indigence, ignorance of the law, and lack of legal assistance to attempt to establish justifiable excuse or excusable neglect, dealt with plea counsel's legal duty to advise a noncitizen client about a plea's immigration consequences.

¶29 Finally, the prosecution maintains that an ineffective assistance of counsel claim can constitute justifiable excuse or excusable neglect for purposes of subsection (2)(d) only when postconviction counsel fails to timely file a Rule 35(c) motion or to otherwise pursue postconviction relief. Since Chavez-Torres's ineffective assistance claim is based on plea counsel's advice, the prosecution contends that he cannot show justifiable excuse or excusable neglect under subsection (2)(d). We are unpersuaded because the cases on which the prosecution leans do not support its position. True, in People v. Valdez , the court of appeals held that ineffective assistance of postconviction counsel can constitute justifiable excuse or excusable neglect pursuant to subsection (2)(d). 178 P.3d 1269, 1279 (Colo. App. 2007). It is likewise true that in People v. Chang , the court of appeals concluded that a finding of ineffective assistance of postconviction counsel would "satisfy defendant's obligation to establish justifiable excuse or excusable neglect to avoid the time bar contained in § 16-5-402." 179 P.3d 240, 243-44 (Colo. App. 2007). But in neither case did the court of appeals say that ineffective assistance by postconviction counsel is the only type of ineffective assistance of counsel that may constitute justifiable excuse or excusable neglect under subsection (2)(d). Nor has that court ever held that ineffective assistance by plea counsel cannot establish the justifiable excuse or excusable neglect exception in subsection (2)(d) under any circumstances. And we have never suggested such a rule either.

¶30 In sum, since the plea agreement and the plea hearing transcript were submitted to the trial court, Chavez-Torres's factual allegations must be considered in conjunction with both documents. Doing so leads us to conclude that Chavez-Torres's motion merits a hearing on the applicability of the subsection (2)(d) exception.

III. Conclusion

¶31 We conclude that the division correctly held that the trial court erred in summarily denying Chavez-Torres's postconviction motion. Accordingly, we affirm its judgment and remand with instructions to return the case to the trial court so that it may hold further proceedings consistent with this opinion.

      We granted certiorari to review the following issue:
      Whether the court of appeals erred when it held that a non-citizen defendant's allegation that plea counsel failed to advise him of the adverse immigration consequences of a guilty plea was sufficient to warrant a hearing on whether he established justifiable excuse or excusable neglect for the untimely filing of his Crim. P. 35(c) motion.

      We recognize that our case law articulates the governing standard as both whether the facts alleged, if true, would constitute justifiable excuse or excusable neglect and whether the facts alleged, if true, could constitute justifiable excuse or excusable neglect. See, e.g., Close , 180 P.3d at 1019 (using "would"); id. (using "could"). We clarify today that the correct standard is whether the facts alleged, if true, would constitute justifiable excuse or excusable neglect. See Wiedemer , 852 P.2d at 440 n.15.

      The limited number of exceptions reflects the General Assembly's "recognition of the difficulties attending the litigation of stale claims and the potential for frustrating various statutory provisions directed at repeat offenders, former offenders, and habitual offenders." § 16-5-402(2).

      Chavez-Torres did not file a direct appeal. Therefore, his conviction became final for purposes of subsection (1) in 1997 when the deadline to file a direct appeal expired. See People v. Hampton , 876 P.2d 1236, 1239-40 (Colo. 1994). Because Chavez-Torres was convicted of a class 5 felony, he was required to file any collateral attack on his conviction within three years of the conviction becoming final.

      We do not address whether the trial court may rely on any other part of the record (or on any other evidence) to reject without a hearing an assertion related to justifiable excuse or excusable neglect.

      The trial court found that "the prejudice to the state's case would be great" because of the passage of time. (Emphasis added.) But the passage-of-time factor relates to the effect on the prosecution's ability to defend against the Rule 35(c) motion , not to the effect on the prosecution's ability to retry the case in the event the requested relief is granted. Close , 180 P.3d at 1020.


text:
    In re: The PEOPLE of the State of Colorado, Petitioner,
    IN the INTEREST OF T.T., Respondent.
    Supreme Court Case No. 18SA221
    Supreme Court of Colorado.
    June 17, 2019
    Attorney for Respondent: James C. Recht, Castle Rock, Colorado
    Attorneys for Christopher Ryan, State Court Administrator; Shana Kloek, Clerk of the Arapahoe County Court; and the Honorable Theresa Slade: Philip J. Weiser, Attorney General, Emily B. Buckley, Assistant Attorney General, Denver, Colorado
    En Banc
   JUSTICE MÁRQUEZ delivered the Opinion of the Court.

¶1 Under section 27-65-107(7), C.R.S. (2018), when a person is released from short-term treatment for a mental health condition, the clerk of the district court shall seal the record in the case and omit the name of the person from the court's "index of cases." The key question in this original proceeding is whether "Eclipse," the user interface of the judicial branch's computerized case management system, is an "index of cases" as contemplated by section 27-65-107(7).

¶2 This case comes before us in a rather complicated procedural posture. T.T. seeks to ensure that his name is not linked to the record of his earlier short-term commitment for treatment of a mental health condition. In a published, split decision issued in 2017, the court of appeals held that Eclipse is an "index of cases" for purposes of section 27-65-107(7) and directed the district court to order that T.T.'s name be omitted from the Eclipse system and any lists generated from the system's data. People in the Interest of T.T. , 2017 COA 132, ¶¶ 23, 26, 410 P.3d 792, 797-98. T.T. later attempted to enforce the court of appeals' decision by petitioning the district court for an order certifying that it had complied with the court of appeals' directive. The district court declined to issue such an order and instead invited T.T. to set the issue for a hearing at which testimony could be taken about the feasibility of compliance with the court of appeals' mandate. T.T. instead filed a motion to enforce the mandate with the court of appeals, which denied relief for lack of jurisdiction. T.T. then sought C.A.R. 21 relief in this court, asking us to direct the district court to comply with the court of appeals' mandate.

¶3 We issued a rule to show cause but decline to grant T.T.'s requested relief. As discussed in this opinion, the reference to "index of cases" in section 27-65-107(7) contemplates a list of matters before the court that can be used to locate the actual court records for those matters. But the Eclipse user interface itself contains no data, and neither Eclipse nor its underlying database, ICON, functions as an "index" or list of cases. Thus, contrary to the court of appeals' ruling, section 27-65-107(7) does not require the court clerk to remove T.T.'s name from the ICON/Eclipse case management system. Moreover, to remove an individual's name from this case management system would thwart the court's statutory obligations to link the record of a short-term mental health case with subsequent cases involving that individual and to share certain information with the federal government. Because the district court's compliance with the court of appeals' mandate is neither warranted nor feasible, we discharge the rule to show cause, and disapprove of the court of appeals' opinion in T.T.

I. Facts and Procedural History

¶4 In January 2014, T.T. was placed in involuntary short-term mental health treatment. His case was sealed at filing and, under sections 3.07 and 4.60(b)(5) of Chief Justice Directive (CJD) 05-01, was accessible only to judges, court staff, and other authorized department staff unless otherwise directed by court order. T.T. was released seven days later.

¶5 A little over two years after his release, T.T. visited the Arapahoe County Justice Center and asked the clerk if his name had been omitted from the index. Although it is unclear from the record and previous rulings in this case exactly what information was conveyed to T.T., it appears that, at a minimum, someone in the clerk's office confirmed that the case existed. T.T. was upset that his name was still linked to his mental health case and requested that the clerk remove it from the court's index of cases. When the clerk declined to do so, T.T. filed a motion with the district court seeking an order requiring the clerk to remove his name.

¶6 T.T. argued that Eclipse is an "index of cases" for purposes of section 27-65-107(7) and therefore, once T.T.'s mental health case was closed, the clerk was required to seal the record in the case and remove T.T.'s name from Eclipse. The district court denied the motion. T.T. appealed, and the court of appeals ordered a limited remand directing the district court to conduct a hearing and enter findings of fact and conclusions of law. On remand, the county attorney argued that the "index of cases" contemplated by section 27-65-107(7) is the list of open and closed cases that can be generated using Eclipse, but not Eclipse itself. Following remand, the district court issued an order granting T.T.'s motion in part and denying it in part.

¶7 First, the district court observed that mental health cases are sealed at filing, and that such files are accessible only to judges and authorized staff unless the court orders otherwise. In this case, the file was also accessible by T.T.'s appointed counsel and the county attorney. The district court explained that the court clerk had properly sealed and closed T.T.'s case, that the file was physically removed from the mental health case file room and taken to a locked storage facility, and that it is not accessible to anyone except certain supervisors without a court order. The court acknowledged that there exists an "index" of names and case numbers that is used only to search the locked storage facility. But it noted that section 4.60 of CJD 05-01 specifically states that mental health cases are not accessible to the public unless the court orders otherwise.

¶8 Next, the district court found that Eclipse is not an "index of cases" for purposes of section 27-65-107(7), but rather a "searchable database" that can be used to generate open and closed case reports, daily dockets, and other reports. The court rejected T.T.'s argument that the statute required his name to be "deleted" from any database altogether. It reasoned that section 27-65-107(7) does not require the clerk to omit the respondent's name from "all court record[s]," but only from the "index of cases." The court concluded that the "index" meant any list of cases generated by the Eclipse system. It also noted that if Eclipse were deemed the "index of cases," removing T.T.'s name from the system would prevent compliance with section 27-65-107(7)'s requirement that the respondent's short-term treatment record be re-opened and made part of the record in a subsequent long-term care and treatment case. Thus, the district court granted the motion in part and ordered that T.T.'s name be omitted from any list generated or produced by Eclipse (even for purposes of storage), but denied the motion to the extent T.T. requested his name be removed from Eclipse. T.T. appealed.

¶9 In a published, split opinion, the court of appeals reversed, concluding that the Eclipse system is the "index of cases" contemplated by section 27-65-107(7). T.T. , ¶¶ 23, 26, 410 P.3d at 797. The division majority rejected the county attorney's argument that omitting T.T.'s name from Eclipse would "obliterate" the record in the case and make it impossible to re-index T.T.'s name as required by statute should T.T. become subject to an order of long-term care. Id. at ¶ 25, 410 P.3d at 797. The majority reasoned that mental health cases could be managed without including the names of those committed, noting that the names of sexual assault victims are omitted from records in criminal cases and that juvenile defendants' names are typically replaced with initials in case captions and opinions. Id. at ¶¶ 24-25, 410 P.3d at 797.

¶10 In dissent, Judge Bernard concluded that the "index of cases" contemplated by section 27-65-107(7) means a list of matters before the court that is available for public inspection. Id. at ¶¶ 33-37, 410 P.3d at 798 (Bernard, J., dissenting). He reasoned that Eclipse is not an "index" as contemplated by section 27-65-107(7) because he surmised that the Eclipse system is not accessible to the public, given that it contains confidential information. Id. at ¶¶ 38-40, 410 P.3d at 798.

¶11 The court of appeals remanded with directions to "omit T.T.'s name from the Eclipse system and lists generated from the Eclipse system's data by use of T.T.'s initials or any other method omitting identifying information that the district court chooses to employ consistent with this opinion." Id. at ¶ 28, 410 P.3d at 798. The county attorney did not seek certiorari review of the court of appeals' ruling.

¶12 T.T. later filed a request in the district court, asking it to certify that it had removed his name from Eclipse. In a written order, the district court declined to do so, stating that it could not both be a fact finder and provide the facts. Instead, it offered to hold a testimonial hearing to allow T.T. to call witnesses to answer questions about compliance with the court of appeals' order. Instead of requesting a hearing, T.T. filed a motion to enforce the mandate with the court of appeals, which denied relief for lack of jurisdiction. T.T. then filed this petition under C.A.R. 21, seeking enforcement of the court of appeals' mandate. We issued a rule to show cause, naming the state court administrator, the clerk of the Arapahoe County Court, and the district court judge as respondents.

II. Analysis

¶13 T.T. effectively seeks a writ of mandamus compelling the district court to omit his name from the Eclipse system in compliance with the court of appeals' mandate. See Bd. of Cty. Comm'rs v. Cty. Road Users Ass'n , 11 P.3d 432, 437 (Colo. 2000) ("Mandamus lies to compel the performance of a purely ministerial duty involving no discretionary right and not requiring the exercise of judgment."). He argues that based on the plain language of section 27-65-107(7), his name should have been removed from Eclipse when he was released from treatment. Because a court clerk confirmed the existence of his mental health case, he concludes that his name has not been removed from the "index of cases" and asks this court to compel the district court to remove it from Eclipse.

¶14 Respondents contend that Eclipse is not an "index of cases" as contemplated by section 27-65-107(7), and therefore removal of T.T.'s name from Eclipse is not required. Moreover, Respondents contend, removal of T.T.'s name from the ICON/Eclipse case management system is not feasible without causing significant disruption of judicial records management and the ability of the judicial branch to comply with federal and state statutes.

¶15 Examining the plain language of section 27-65-107(7) and associated statutes referencing an "index of cases," we conclude that this term contemplates a list of matters before the court that can be used to locate the actual court records for those matters. But the Eclipse user interface itself contains no data, and neither Eclipse nor its underlying database, ICON, functions as an "index" or the kind of master list of cases contemplated by section 27-65-107(7). Thus, contrary to the court of appeals' ruling, section 27-65-107(7) does not require the court clerk to remove T.T.'s name from the ICON/Eclipse case management system. Moreover, the removal of names from the ICON/Eclipse case management system would thwart the court's statutory obligations to link the record of a short-term mental health case with subsequent cases concerning the long-term treatment of that individual and to share certain information with the federal government. See 18 U.S.C. § 922(g)(4) (2018) ; §§ 13-9-123 to - 124, C.R.S. (2018); § 24-33.5-424, C.R.S. (2018). Because the district court's compliance with the court of appeals' mandate is neither warranted nor feasible, we discharge the rule to show cause, and disapprove of the court of appeals' opinion in T.T.

A. Jurisdiction under C.A.R. 21

¶16 The exercise of original jurisdiction under C.A.R. 21 lies within this court's sole discretion. Fognani v. Young , 115 P.3d 1268, 1271 (Colo. 2005). Relief under C.A.R. 21 is "an extraordinary remedy that is limited in both purpose and availability." Villas at Highland Park Homeowners Ass'n, Inc. v. Villas at Highland Park, LLC , 2017 CO 53, ¶ 22, 394 P.3d 1144, 1151. We may exercise our original jurisdiction when the normal appellate process provides an inadequate remedy. Fognani , 115 P.3d at 1271. We may also grant relief under C.A.R. 21 in the exercise of our general superintending authority over all courts as provided in article VI, section 2 of the Colorado Constitution. C.A.R. 21(a)(1). Here, T.T. seeks compliance with the court of appeals' mandate. The district court has instead invited T.T. to hold a hearing to take testimony on the feasibility of compliance and the court of appeals has denied T.T.'s request to enforce the mandate for lack of jurisdiction. Given the unique circumstances, we conclude that exercise of our original jurisdiction is appropriate, both as a matter of our general superintending authority over all courts and because no other adequate remedy is available.

B. Court Records in Mental Health Cases Are Not Accessible to the Public

¶17 As a preliminary matter, we note that under both statute and court rule, mental health records held by the court are not accessible to the public.

¶18 The care and treatment of persons with mental health disorders is addressed in article 65 of title 27. The legislature has declared that the purposes of article 65 include, as relevant here, providing "the fullest possible measure of privacy, dignity, and other rights to persons undergoing care and treatment for a mental health disorder." § 27-65-101(1)(c), C.R.S. (2018). Under section 27-65-121(1), C.R.S. (2018), all information obtained and records prepared in the course of providing services under article 65 are "confidential and privileged matter" and may be disclosed only to certain individuals or agencies listed under that provision.

¶19 Relevant here, section 27-65-107 addresses certification for short-term treatment of persons who, as a result of a mental health disorder, present a danger to themselves or others or are gravely disabled. § 27-65-107(1). Subsection (7) of the statute requires that records and papers in proceedings under section 27-65-107"shall be maintained separately" by court clerks. § 27-65-107(7). This provision further mandates that when an individual is released from short-term treatment, the facility shall notify the court clerk within five days, and the clerk shall "seal the record in the case and omit the name of the respondent from the index of cases" unless and until the individual "becomes subject to an order of long-term care and treatment pursuant to section 27-65-109 or ... the court orders [the record in the short term-involuntary hold case] opened for good cause shown." Id.

¶20 In addition to these statutory provisions, court rule also makes clear that mental health records are not publicly accessible. Pursuant to its independent constitutional authority to "make and promulgate rules governing the administration of all courts," Colo. Const. art. VI, § 21, this court has adopted rules governing public access to court records and administrative records of the judicial branch. See Public Access to Information and Records Rules (P.A.I.R.R.) 1-2. P.A.I.R.R. 1 authorizes the Chief Justice to issue directives regarding public access to documents and materials made, received, or maintained by the court, and refers specifically to CJD 05-01, which addresses public access to court records. Under CJD 05-01, court records in mental health cases are not accessible to the public unless the court orders otherwise. CJD 05-01, § 4.60(b)(5). Additionally, any sealed record is not accessible to the public and, absent a court order, may be accessed only by judges, court staff, and authorized judicial department staff. Id. §§ 3.07, 4.60(c).

C. Eclipse Is Not an Index for Purposes of Section 27-65-107(7)

¶21 The critical question here is whether Eclipse is, as the court of appeals concluded, an "index of cases" as contemplated by section 27-65-107(7). We conclude that it is not.

¶22 As described above, section 27-65-107(7) requires the clerk to do two things: (1) "seal the record in the case," and (2) "omit the name of the respondent from the index of cases." These separate commands make clear that the court's "record" of the case itself is distinct from the court's "index of cases." The question then becomes, what is the "index" contemplated by the statute?

¶23 As the court of appeals recognized, several other statutory provisions governing the administration of the courts help shed light on the meaning of the term "index." First, section 13-1-101, C.R.S. (2018), mandates that clerks of court "keep in their respective offices suitable books for indexing the records of their said offices, one to be known as the direct index and one as the inverse index." This provision was enacted in 1889, see 1889 Colo. Sess. Laws 107, and has remained essentially unchanged over the last 130 years. Section 13-1-102, C.R.S. (2018), also enacted in 1889, see id. , describes the information to be included "in said indexes," namely, the title and case number of each cause or matter instituted in that court. § 13-1-102. Taken together, these nineteenth century provisions contemplated a physical book, kept in the office of the clerk of court, containing a master list of cases in that court. The index was to contain information that allowed the clerk to locate a particular record kept at the court but did not contain the record itself. Today, section 13-1-102 provides that a case number reference in the index may be to a physical file or a computer record. § 13-1-102.

¶24 Although technology has advanced significantly since these provisions were enacted 130 years ago, the purpose of the index was to facilitate the location of the records of the cases before the court. As we explain below, ICON/Eclipse is not such a list of cases and therefore does not constitute an "index" for purposes of section 27-65-107(7).

D. Compliance with the Court of Appeals' Mandate to Remove T.T. from Eclipse Is Neither Warranted nor Feasible

¶25 Based on the limited record before it, the court of appeals mistakenly concluded that the Eclipse system is an index of cases for purposes of section 27-65-107(7). But Eclipse is not an "index" akin to a list of cases, nor does Eclipse itself even contain any data. Rather, Eclipse is a user interface used to access the judicial department's master database of court records, called ICON. Eclipse allows authorized employees to search for, compile, and review information from the ICON database in an understandable format. It is a search tool used by court staff and is not available to the general public. T.T.'s name and its link to his mental health case are contained in the underlying ICON database, not in Eclipse itself. To the extent that the ICON/Eclipse case management system can be used to generate a list of cases, the district court properly ordered that T.T.'s name be omitted from any such list. But as a practical matter, the district court cannot "omit T.T.'s name from the Eclipse system" in compliance with the court of appeals' mandate because Eclipse itself is simply the user interface of the case management system; it is not an "index" or list of cases generated by that system used to locate court records.

¶26 The court of appeals reasoned that "omitting T.T.'s name from the Eclipse system" would not be problematic, noting that "identifying information ... is often omitted from court records and case names as required in the interest of privacy." T.T. , ¶¶ 24-25. But this statement is only partly accurate.

¶27 It is true, for example, that section 24-72-304(4)(a), C.R.S. (2018), requires removal of the names of sexual assault victims in certain criminal court records before such records may be released to any individual or agency other than a criminal justice agency, and that section 19-2-903, C.R.S. (2018), requires juveniles to be identified by initials in the record on appeal. But provisions like these have no bearing on how the ICON/Eclipse case management system is used to track information related to mental health cases and do not support the relief that T.T. seeks here. The names of crime victims (including sexual assault victims) cannot be searched for or otherwise retrieved using Eclipse. The omission of a crime victim's name from other criminal justice records has no impact on how a case can be retrieved using Eclipse or connected to other cases stored in ICON. And although juveniles are identified by their initials in appellate captions, their full names are maintained in the ICON database and can be retrieved by authorized users of Eclipse. By contrast, T.T. effectively seeks removal of his name from the ICON database itself. But section 27-65-107(7) does not require this.

¶28 The judicial branch's ability to search for and track data in ICON using the Eclipse interface is only as good as the information in that system. Removing T.T.'s name (or even simply replacing it with initials) from the underlying database effectively prevents authorized users of the Eclipse user interface from properly tracking cases involving him in the future. Parties' initials are not specific enough forms of identification to serve as acceptable substitutes for full names in the underlying database, particularly given that the ICON/Eclipse system is used to access tens of thousands of cases involving short-term commitments that have been initiated over the last two decades under section 27-65-107.

¶29 Moreover, without the ability to link an order for short-term commitment for mental health treatment to an order of long-term care and treatment, a court could not, as required by section 27-65-107(7), open the short-term commitment record and make it a part of the record in a subsequent long-term treatment case. Similarly, removing names from the ICON database would hinder the State's ability to share required information with the National Instant Criminal Background Check System (NICS) to ensure that individuals with mental health issues who pose a danger to themselves or others cannot purchase firearms. See 18 U.S.C. § 922(g)(4) ; §§ 13-9-123 to - 124 ; § 24-33.5-424 ; Ray v. People , 2019 COA 24, ¶ 2, --- P.3d ---- (explaining the complex interplay between Colorado statutes and the federal Brady Handgun Violence Prevention Act, which mandates that certain Colorado persons and entities provide names of those involuntarily certified for short-term treatment of mental health disorders under Colorado's section 27-65-107 for inclusion in the NICS database). If the full names of individuals who have been subject to short-term commitment for mental health treatment are not contained in ICON, the court system cannot share them with NICS, frustrating the purposes of applicable state and federal law.

¶30 In sum, we conclude that compliance with the court of appeals' mandate to omit T.T.'s name from Eclipse is neither warranted nor feasible. We emphasize, however, that T.T.'s short-term mental health case is sealed and inaccessible to the public. See CJD 05-01, §§ 3.07, 4.60(b)(5), (c).

III. Conclusion

¶31 We hold that neither Eclipse nor its underlying database, ICON, functions as an "index of cases." Thus, contrary to the court of appeals' ruling in T.T. , section 27-65-107(7) does not require the court clerk to remove T.T.'s name from the ICON/Eclipse case management system. Because the district court cannot comply with the relief directed by the court of appeals, we discharge the rule to show cause. Further, because the lack of an adequate record led to the court of appeals' mistaken understanding about the nature of the ICON/Eclipse case management system, and because the court of appeals' opinion in T.T. may undermine administration of the judicial branch's recordkeeping system, we disapprove of that opinion.

JUSTICE SAMOUR does not participate.

      Although the record before us sheds no light on this point, it is possible that the clerk did not consider T.T. to be a member of the "public" because he was a primary party to the case. See CJD 05-01, § 2.00(b)(4) (providing that the "public" does not include "the primary parties to a case as defined by the custodian, their lawyers, other authorized representative, or persons appointed by the court regarding access to the court record in their specific case").

      The district court's invitation to hold a hearing appears to be in response to the court of appeals' suggestion in a footnote of its opinion that an evidentiary hearing would have created a more useful record for the court to review. T.T. , ¶ 27 n.2, 410 P.3d at 798 n.2.

      The CJD notes that the release of court records sealed under part 7 of article 72 of title 24 is governed by those statutory provisions rather than by the CJD, and that judges and court staff should respond to requests for a statutorily sealed court record by stating that no such record exists. CJD 05-01, § 3.07.

      We may take judicial notice of facts "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." CRE 201(b)(2). Given the unusual circumstances and posture of this case, we choose to take judicial notice of the recordkeeping system used by the Colorado courts as presented in Respondents' offer of proof in their brief to this court, which T.T. does not contest. To remand for a hearing to present the same information by testimony would be an unnecessary waste of judicial resources. For purposes of resolving this C.A.R. 21 petition, we accept the facts presented in Respondents' offer of proof as true.


text:
    In re N.A. RUGBY UNION LLC and Douglas Schoninger, Plaintiffs: v. UNITED STATES OF AMERICA RUGBY FOOTBALL UNION, Rugby International Marketing, Nigel Melville, Daniel Payne, and Robert Latham, Defendants
    Supreme Court Case No. 19SA22
    Supreme Court of Colorado.
    June 17, 2019
    Formerly Represented by Counsel (Counsel Permitted to Withdraw after Briefing Complete): N.A. Rugby Union LLC, Douglas Schoninger
    Attorneys for Defendant Rugby International Marketing: Hutchinson Black and Cook, LLC, Daniel D. Williams, Christopher W. Ford, Lauren E. Groth, Boulder, Colorado
    No appearance on behalf of United States of America Rugby Football Union, Nigel Melville, Daniel Payne, or Robert Latham.
    En Banc
   JUSTICE GABRIEL delivered the Opinion of the Court.

¶1 In this original proceeding pursuant to C.A.R. 21, we must determine whether a nonsignatory to an arbitration agreement can be required to arbitrate under that agreement by virtue of the fact that it is a purported agent of a signatory to the agreement. Specifically, we are asked to decide whether the district court erred when it entered an order requiring petitioner Rugby International Marketing ("RIM"), which is a defendant below and a nonsignatory to a Professional Rugby Sanction Agreement (the "Sanction Agreement"), to arbitrate pursuant to an arbitration provision in that Agreement that covered the parties and their agents. The court found that because RIM was an agent for United States of America Rugby Football Union ("USAR"), a signatory of the Sanction Agreement, RIM fell "squarely within the broad language of the arbitration provision."

¶2 We issued a rule to show cause and now make the rule absolute. Although we have not yet opined on the issue, the weight of authority nationally establishes that, subject to a number of recognized exceptions, only parties to an agreement containing an arbitration provision can compel or be subject to arbitration. Here, because RIM was not a party to the Sanction Agreement and because respondents N.A. Rugby Union LLC d/b/a Professional Rugby Organization ("PRO Rugby") and Douglas Schoninger, who are the plaintiffs below, have not established that any of the recognized exceptions apply, we conclude that the district court erred in determining that RIM is subject to arbitration under the Sanction Agreement.

I. Facts and Procedural History

¶3 Schoninger, a New York financier, was interested in launching a professional rugby league in the United States. Toward that end, he formed PRO Rugby and approached USAR, which was the national governing body for rugby in the United States.

¶4 Ultimately, PRO Rugby and USAR entered into the Sanction Agreement, which authorized PRO Rugby to establish a professional rugby league in the United States.

¶5 As pertinent here, section 2.1 of the Sanction Agreement provided:

g. N.A. Rugby Union LLC agrees to appoint Rugby International Marketing as its exclusive Player Representation agency through which it will contract with all Players and Coaching staff on a to be agreed fee basis (it being understood that such agency shall be the subject of an agency agreement and shall not be effective until such agency agreement has been executed by N.A. Rugby Union LLC and Rugby International Marketing)....
h. N.A. Rugby Union LLC agrees to appoint Rugby International Marketing as a non-exclusive agency to present the commercial rights of the Competition to potential sponsors on a to be agreed fee basis (it being understood that such agency shall be the subject of an agency agreement and shall not be effective until such agency agreement has been executed by N.A. Rugby Union LLC and Rugby International Marketing).

¶6 Notably, it appears undisputed that as of the date of this Agreement, RIM did not yet exist (it was not established until two months later).

¶7 The Sanction Agreement also contained an arbitration provision that stated, in part:

[T]he parties agree that any claim or dispute between them or against any agent, employee, successor, or assign of the other, whether related to this Agreement or otherwise, and any claim or dispute related to this agreement or the relationship or duties contemplated under this Agreement, including the validity of this arbitration clause, shall be resolved by binding arbitration by the American Arbitration Association under the Commercial Arbitration Rules then in effect.

¶8 RIM was not a party to the Sanction Agreement. Moreover, notwithstanding the fact that the Agreement states that PRO Rugby agreed to appoint RIM as its agent for player representation and commercial rights, no such agreement was ever executed.

¶9 After allegedly investing six million dollars of his personal funds, Schoninger folded the league after its first season. He and PRO Rugby then filed suit in Boulder County District Court, naming nine different defendants, including USAR and RIM, and alleging that the defendants had engaged in a concerted effort to force PRO Rugby out of business.

¶10 In their complaint, plaintiffs asserted an array of tort and contract claims, the latter arising out of alleged breaches of the Sanction Agreement.

¶11 RIM subsequently moved to dismiss plaintiffs' breach of contract claims against it based on the undisputed fact that it was not a party to the contract. Plaintiffs responded that the above-quoted provisions of the Sanction Agreement demonstrated that USAR had assigned to RIM the obligations under that Agreement to act as PRO Rugby's exclusive player representation agency and to be the nonexclusive agency to present the commercial rights of the competition to potential sponsors. Based on this alleged assignment, plaintiffs contended that RIM was bound by the Agreement.

¶12 The district court disagreed with plaintiffs' assertion, noting that (1) a party to a contract cannot delegate duties to a nonparty without the nonparty's consent; (2) plaintiffs had conceded that RIM did not affirmatively agree to any promises in the Sanction Agreement; and (3) plaintiffs cited no evidence of any other agreement by RIM to assume any of the Sanction Agreement's obligations. The court thus dismissed plaintiffs' contract claims against RIM.

¶13 After further pretrial proceedings resulted in orders compelling arbitration as to certain defendants and dismissing for lack of personal jurisdiction the claims against certain other defendants, RIM became the sole remaining defendant in the lawsuit. Plaintiffs then moved to stay the proceedings against RIM to allow plaintiffs to arbitrate their claims against it. In support of this motion, plaintiffs argued that the plain language of the Sanction Agreement's arbitration provision, which bound the parties and agents of the other, bound RIM because it was allegedly USAR's agent. Plaintiffs further contended that, in any event, any dispute as to whether the claims at issue were arbitrable was to be decided by the arbitrator. RIM opposed the motion to stay, arguing that it was not a party to the Sanction Agreement and that it had never manifested an agreement to be bound by that Agreement's terms, including the arbitration provision. In light of this position, RIM did not directly respond to plaintiffs' assertion that RIM was bound by the arbitration provision because it was USAR's agent.

¶14 Notwithstanding its prior order dismissing the contract claims against RIM on the ground that RIM was not a party to the Sanction Agreement, the district court granted plaintiffs' motion to stay the case pending arbitration. In support of this ruling, the court did not rely on any claim that RIM was a party to the Sanction Agreement or that it had a prospective agency agreement with PRO Rugby. Instead, the court focused on the purported agency relationship between RIM and USAR. Specifically, the court found that the arbitration provision is phrased broadly and plainly subjects agents of both PRO Rugby and USAR to resolution by arbitration of any disputes brought by the other that are related to the Sanction Agreement. The court further found that USAR's control of and delegation of obligations to RIM (notwithstanding the court's prior finding that USAR had not delegated any obligations to RIM) established that RIM was USAR's agent "and thus squarely within the broad language of the arbitration provision." The court therefore ordered a "full stay of this case pending the completion of arbitration."

¶15 RIM then filed the present C.A.R. 21 petition, and we issued a rule to show cause.

II. Analysis

¶16 We begin by discussing our jurisdiction to hear this matter. After setting forth our standard of review, we proceed to analyze whether and in what circumstances a signatory can compel a nonsignatory to arbitrate by virtue of an arbitration provision contained in an agreement to which the nonsignatory is not a party. We conclude that the district court erred in compelling RIM to arbitrate here because RIM was not a party to the Sanction Agreement and because plaintiffs have not established that RIM fell within any of the recognized principles under which a contract signatory may compel a nonsignatory to arbitrate.

A. Original Jurisdiction

¶17 The exercise of our original jurisdiction under C.A.R. 21 rests within our sole discretion. Fognani v. Young , 115 P.3d 1268, 1271 (Colo. 2005). An original proceeding under C.A.R. 21 is an extraordinary remedy that is limited in purpose and availability. Wesp v. Everson , 33 P.3d 191, 194 (Colo. 2001). It provides a remedy when an appellate remedy would be inadequate. Fognani , 115 P.3d at 1271.

¶18 Here, we conclude that RIM lacks an adequate appellate remedy. Under prevailing statutory and case law, RIM has no right to file an interlocutory appeal from an order granting a motion to compel arbitration. See § 13-22-228(1)(a)-(b), C.R.S. (2018); see also Lane v. Urgitus , 145 P.3d 672, 679 (Colo. 2006) ("[A] trial court order granting a motion to stay the proceedings and to compel arbitration is an 'interlocutory order' that is not immediately appealable."). Accordingly, absent our intervention, RIM could be required to expend significant resources completing arbitration and confirming any arbitration award before it would have the opportunity to appeal. Because requiring RIM to do so would effectively deny it the relief that it seeks, we deem it appropriate to exercise our original jurisdiction in this case. See Radil v. Nat'l Union Fire Ins. Co. , 233 P.3d 688, 691-92 (Colo. 2010) ("Because a trial court order compelling arbitration is not immediately appealable, we may exercise our original jurisdiction to review such an order.").

B. Standard of Review and Applicable Law

¶19 The scope of an arbitration agreement is a question of law that we review de novo, applying principles governing contract interpretation. Id. at 692. In construing an arbitration agreement, we look to the plain and ordinary meaning of the terms of that agreement, and we construe the agreement to effectuate the parties' intent and the purposes of the agreement. Id. In general, we will resolve ambiguities in favor of arbitration, which is a preferred method of dispute resolution in Colorado. Id.

¶20 It is well-settled that "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." United Steelworkers of Am. v. Warrior & Gulf Navigation Co. , 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960) ; accord Lane , 145 P.3d at 679 ; see also Smith v. Multi-Fin. Sec. Corp. , 171 P.3d 1267, 1272 (Colo. App. 2007) ("Generally, when the requirement to arbitrate is created by an agreement, it can be invoked only by a signatory of the agreement, and only against another signatory.").

¶21 Although we do not appear to have spoken on the issue, other courts, including divisions of our court of appeals, have recognized certain exceptions to this general rule. For example, courts have observed that ordinary principles of contract and agency law may apply to bind a nonsignatory to an arbitration agreement. See, e.g. , Covington v. Aban Offshore Ltd. , 650 F.3d 556, 558 (5th Cir. 2011) ; Smith , 171 P.3d at 1272. Specifically, these courts have recognized the following theories for binding a nonsignatory to an arbitration agreement: (1) incorporation of an arbitration provision by reference in another agreement; (2) assumption of the arbitration obligation by the nonsignatory; (3) agency; (4) veil-piercing/alter ego; (5) estoppel; (6) successor-in-interest; and (7) third-party beneficiary. See Bridas S.A.P.I.C. v. Gov't of Turkm. , 345 F.3d 347, 356 (5th Cir. 2003) ; Thomson-CSF, S.A. v. Am. Arbitration Ass'n , 64 F.3d 773, 776 (2d Cir. 1995) ; Smith , 171 P.3d at 1272.

¶22 We agree that the foregoing general rule and the above-described exceptions to it comport with settled principles of contract and agency law, and we now adopt that rule and those exceptions. Having done so, we turn to the merits of RIM's contentions.

C. Application

¶23 RIM contends that neither general contract principles nor any of the above-described exceptions apply to require it to arbitrate here.

¶24 Plaintiffs respond that under the plain language of the Sanction Agreement, RIM is bound by the arbitration clause and that, in any event, the Agreement delegated all issues of arbitrability to the arbitrator. Based on this, plaintiffs contend that we should discharge our order to show cause without reaching the above-described exceptions. Plaintiffs argue in the alternative, however, that should we reach the exceptions, then RIM is still bound by the arbitration provision of the Sanction Agreement because it was a third-party beneficiary of that Agreement, it was USAR's agent, and it is bound under a theory of equitable estoppel because it is seeking to enforce the rights and benefits that it received under the Agreement.

¶25 We view plaintiffs' contentions as framing the issues now before us, and we address each of those contentions in turn.

¶26 Plaintiffs first contend that the Sanction Agreement clearly and unambiguously required arbitration of any claim or dispute between PRO Rugby and USAR or against "any agent, employee, successor, or assign of the other, whether related to [the Sanction] Agreement or otherwise." Plaintiffs further contend that because RIM is USAR's agent, it is bound by the arbitration provision's above-quoted plain language. Plaintiffs never explain, however, how a party to a contract can bind a nonparty to the terms of that contract without establishing legal or equitable grounds for doing so (e.g., assumption by the nonsignatory of obligations under the agreement, applicable agency principles, veil-piercing, equitable estoppel, or the nonsignatory's status as a successor-in-interest to a party to the contract or as a third-party beneficiary of the contract).

¶27 Nor are we persuaded by plaintiffs' reliance on our decision in Allen v. Pacheco , 71 P.3d 375 (Colo. 2003). Although we said in that case that "a non-party may be bound by the terms of an agreement if the parties so intend," id. at 379, that statement must be read in context. In that case, the plaintiff brought a wrongful death action against medical providers, including a health maintenance organization ("HMO"), arising out of the death of her husband. Id. at 377. Her late husband's agreement with the HMO contained an arbitration clause that applied to claims asserted by "a Member [i.e., of the HMO], or by a Member's heir or personal representative, or by a person claiming that a duty to him or her arises from a Member's relationship with [the HMO] incident to this Agreement." Id. We were thus called on to decide, as pertinent here, whether the scope of the agreement included nonparty spouses. Id. at 379.

¶28 It is in this context that we said that the agreement applied to nonparty spouses because "(a) a non-party may be bound by the terms of an agreement if the parties so intend and because (b) a spouse is an 'heir' under the meaning of the agreement." Id. In so stating, we emphasized, "So long as [the nonparty spouse] is within the category of heirs, personal representatives, or persons claiming special duties, she is bound by the arbitration agreement." Id. at 380. And we further pointed out that we were construing an arbitration provision that expressly purported to bind certain nonparties "who are in privity with the signatory, namely an 'heir or personal representative or ... a person claiming that a duty to him or her arises from a Member's relationship with [the HMO].' " Id. at 380 n.4.

¶29 Accordingly, notwithstanding plaintiffs' assertion to the contrary, Allen does not create a novel (and seemingly unlimited) principle that a nonsignatory to a contract can be bound to an arbitration clause whenever the signatories to the contract so intend. That broad a principle would lead to absurd results (e.g., applied literally, such a principle would allow a signatory to argue successfully that a complete stranger to the agreement and to the parties thereto was bound because the parties to the agreement intended to bind the stranger). Rather, our statements in Allen must be read in context. When thus construed, they are fully consistent with the settled contractual and equitable principles set forth above because the plaintiff in Allen (1) was asserting rights under her late husband's agreement with the HMO and therefore was equitably estopped from disclaiming her obligations under that same agreement; (2) was in privity with her late husband; and (3) was an heir and thus a successor-in-interest and third-party beneficiary under the agreement.

¶30 The cases that we cited in Allen , 71 P.3d at 379-80, in support of the proposition that a nonparty may fall within the scope of an agreement if the parties so intend confirm this point. For example, Jefferson County School District No. R-1 v. Shorey, 826 P.2d 830, 843 (Colo. 1992), concerned whether an employee who was a third-party beneficiary to a collective bargaining agreement had standing to sue for benefits under that agreement (we said she did but concluded that her claim should be stayed pending exhaustion of the grievance process established by the collective bargaining agreement). Parker v. Center for Creative Leadership, 15 P.3d 297, 298 (Colo. App. 2000), concerned whether a third-party beneficiary who was seeking to enforce a contract was bound by the arbitration provision of that same contract (the division said he was). And both Everett v. Dickinson & Co. , 929 P.2d 10, 12 (Colo. App. 1996), and Eychner v. Van Vleet, 870 P.2d 486, 489 (Colo. App. 1993), concerned whether a nonsignatory to an arbitration agreement could compel a signatory to arbitrate, a scenario not at issue here. Notably, in Everett , the nonsignatory sought to enforce the arbitration provision at issue based on the very types of contract principles set forth above. See Everett , 929 P.2d at 12-13 (concluding that the nonsignatory could not enforce an arbitration provision to which it was not a party because it was not a third-party beneficiary of that agreement).

¶31 In short, neither Allen nor the cases on which it relied support the proposition that a nonsignatory like RIM can be compelled to arbitrate merely because the signatories to an arbitration agreement, without more, intended to bind the nonsignatory. Rather, the signatory must establish one of the recognized legal or equitable bases to compel the nonsignatory to arbitrate.

¶32 For similar reasons, we reject plaintiffs' contention that we should uphold the district court's order requiring RIM to arbitrate because, even if there were a dispute as to whether plaintiffs' claims against RIM are arbitrable, under the Sanction Agreement, issues of arbitrability are to be decided by the arbitrator. Although plaintiffs contend that when contracting parties empower an arbitrator to determine issues of arbitrability, this constitutes "clear and unmistakable evidence of intent to delegate those issues to the arbitrator," Ahluwalia v. QFA Royalties, LLC , 226 P.3d 1093, 1098 (Colo. App. 2009), plaintiffs again do not explain how the contracting parties' intent can bind a nonparty to a contract, absent a legal or equitable basis for doing so.

¶33 We therefore must proceed to consider plaintiffs' alternative arguments that RIM is bound by the arbitration provision at issue because (1) it was a third-party beneficiary of the Sanction Agreement; (2) it was USAR's agent; and (3) it is equitably estopped from avoiding the arbitration provision because it is seeking to enforce rights and benefits conferred on it by the Sanction Agreement. We address and reject each of these arguments in turn.

¶34 The " 'critical fact' that determines whether a nonsignatory is a third-party beneficiary is whether the underlying agreement 'manifest[s] an intent to confer specific legal rights upon [the nonsignatory].' " Ouadani v. TF Final Mile LLC , 876 F.3d 31, 39 (1st Cir. 2017) (quoting InterGen N.V. v. Grina , 344 F.3d 134, 147 (1st Cir. 2003) ). Nonsignatories who are intended third-party beneficiaries of an agreement containing an arbitration clause are bound by that agreement. See id. ; see also Everett , 929 P.2d at 12 ("A third-party beneficiary may enforce a contract only if the parties to that contract intended to confer a benefit on the third party when contracting; it is not enough that some benefit incidental to the performance of the contract may accrue to the third party.").

¶35 Here, the Sanction Agreement did not confer-and could not have conferred-specific legal rights on RIM because at the time that Agreement was signed, RIM did not exist. Moreover, to the extent that the Sanction Agreement envisioned a future conferral of rights or benefits on RIM, those rights or benefits would have been bestowed by way of a separate agreement between RIM and PRO Rugby, not by way of the Sanction Agreement. Accordingly, the record does not support plaintiffs' assertion that RIM was a third-party beneficiary of the Sanction Agreement and therefore is bound by that Agreement's arbitration provision.

¶36 Nor is RIM bound by the Sanction Agreement's arbitration provision based on plaintiffs' assertions that RIM was an agent of USAR's and that USAR bound RIM to that provision. The agency exception to the general principle that a party cannot be required to arbitrate any dispute that it has not agreed to arbitrate is premised on traditional principles of agency law. Thomson-CSF , 64 F.3d at 777. Under those principles, an agent may bind a principal to a contract. Great W. Fin. Co. v. Davis , 84 Colo. 538, 272 P. 11, 11 (1928) ; accord Covington , 650 F.3d at 559 ; Walker v. Collyer , 85 Mass.App.Ct. 311, 9 N.E.3d 854, 864 (2014) ; Restatement (Third) of Agency § 6.01 (Am. Law Inst. 2006). A principal, however, cannot bind an agent. Great W. Fin. Co. , 272 P. at 11 ; accord Covington , 650 F.3d at 559 ; DK Joint Venture 1 v. Weyand , 649 F.3d 310, 317 (5th Cir. 2011) ; Walker , 9 N.E.3d at 864 ; Restatement (Third) of Agency, at § 6.01.

¶37 Here, assuming without deciding that RIM and USAR had an agency relationship, USAR was the principal and RIM was the agent. Accordingly, under the above-noted principles, USAR could not bind RIM to the Sanction Agreement's arbitration provision, and thus, RIM is not bound by that provision.

¶38 Finally, with respect to plaintiffs' assertion that RIM is equitably estopped from avoiding the arbitration provision at issue, we note that the principle of equitable estoppel can bind a nonsignatory to an arbitration provision in an agreement when the nonsignatory has knowingly exploited that agreement, as, for example, by claiming or accepting direct benefits of the agreement. See Ouadani , 876 F.3d at 38 ("Equitable estoppel 'precludes a party from enjoying rights and benefits under a contract while at the same time avoiding its burdens and obligations.' ") (quoting InterGen N.V. , 344 F.3d at 145 ); Smith , 171 P.3d at 1274 ("We conclude that the beneficiaries are estopped from avoiding the arbitration provisions of the same agreements whose benefits they seek to enforce.").

¶39 Here, although plaintiffs assert that RIM has received multiple benefits under the Sanction Agreement, plaintiffs again ignore the fact that at the time the Agreement was signed, RIM did not even exist. Moreover, as noted above, RIM received no benefits under the Sanction Agreement. Rather, it received a promise of a subsequent agreement that would have provided benefits, but PRO Rugby and RIM never consummated that agreement. And contrary to plaintiffs' assertions, RIM is not seeking to enforce any right or benefit under the Sanction Agreement. Indeed, it has asserted no claims or counterclaims under that Agreement. To the contrary, it successfully argued that the contract claims against it should be dismissed because it is not a party to the Agreement. Having asserted no claim for rights or benefits under the Agreement, the equitable estoppel doctrine does not apply to bind RIM to that Agreement's arbitration provision. See Ouadani , 876 F.3d at 38 ; Smith , 171 P.3d at 1274.

¶40 For all of these reasons, we conclude that RIM, as a nonsignatory to the Sanction Agreement, is not bound by that Agreement's arbitration provision, and therefore, the trial court erred in concluding that RIM was required to arbitrate the claims against it.

III. Conclusion

¶41 In general, when a requirement to arbitrate is created by an agreement, it can only be invoked by and enforced against a signatory to that agreement. This general rule, however, is subject to certain exceptions, and a nonsignatory to an agreement containing an arbitration provision can be compelled to arbitrate when, as pertinent here, the nonsignatory is a third-party beneficiary of the agreement, traditional agency principles bind the nonsignatory to the arbitration provision, or the nonsignatory is equitably estopped from denying the applicability of the arbitration provision because, among other things, it is seeking to enforce rights or benefits conferred on it by the agreement containing the arbitration provision at issue.

¶42 Here, plaintiffs have not established that any of the foregoing exceptions apply. Accordingly, we conclude that the district court erred in determining that RIM is required to arbitrate the claims against it. We therefore make the rule to show cause absolute.