author: Justice BENDER

text:
    Kathleen M. BUSSE, Irene Oliver, and Virginia L. Cusack, Plaintiffs-Appellants, v. The CITY OF GOLDEN, a Colorado municipal corporation; and the City Council of the City of Golden, Defendants-Appellees.
    No. 02SA356.
    Supreme Court of Colorado, En Banc.
    June 30, 2003.
    As Modified on Denial of Rehearing July 28, 2003.

      Victor F. Boog & Associates, P.C., Victor F. Boog, Lakewood, Colorado, Attorneys for Plaintiffs-Appellants.
    Windholz & Associates, David S. Williamson, James A. Windholz, Boulder, Colorado, Attorneys for Defendants-Appellees.
   Justice BENDER

delivered the Opinion of the Court.

I. Introduction

This appeal involves challenges to a bond issue approved by voters in the City of Golden contesting the validity of the ballot title and seeking declaratory and equitable relief because the City spent bond funds on projects not authorized by the purpose of its referendum.

The trial court ruled that the ballot title challenge was time-barred and dismissed plaintiffs' additional claims on the basis that they raised political questions. Because municipal election contests are excluded from the court of appeals' jurisdiction, we transferred plaintiffs' appeal to us. We affirm the trial court's ruling that plaintiffs' challenge to the ballot title is time-barred. Concerning plaintiffs' alternate theories of relief, we reverse the trial court's ruling and hold that these claims do not present political questions.

Because the trial court will need clarification of Colorado law to address the contentions of the parties, either by summary judgment or at trial, we review the law governing a municipality's discretion concerning the expenditures of bond proceeds. We hold that a city's expenditures are appropriate provided that the expenditures do not materially depart from the purpose of a bond measure and that necessary expenditures incidental to an authorized purpose are within a city's discretion, and therefore permissible. The ques tion of whether the City's expenditures and modifications are within its discretion is to be resolved by the trial court. Hence, we affirm in part and reverse in part and return this case to the trial court to conduct further proceedings consistent with this opinion.

II. Facts and Proceedings Below

The City of Golden held an election in which it submitted Referred Issue 2A for voter approval. The issue proposed $26.5 million in bond sales to acquire and construct park and recreation facilities. - Voters passed the measure by a majority vote.

After the passage of Referred Issue 24, the City Council passed an ordinance to authorize the issuance of sales and use tax revenue bonds to fund the acquisition, development, and construction of land, recreational facilities, and open space. Subsequently, the City issued $21.6 million of bonds to finance the construction of a golf course, an aquatic park, and to purchase land for the park system. Although not specifically enumerated in Referred Issue 2A, the City also undertook several tasks to prepare the property for these uses.

Soon after the City issued the bonds, it heard recommendations from the Parks and Recreation Advisory Board on the projects to be funded by the remaining $4.8 million of bonds authorized by voters and conducted a series of public Council meetings to review the recommendations. Based upon the recommendations and meetings, the City Council concluded that it could provide the same amenities to the public by enhancing existing facilities instead of building a stand-alone satellite community center. The Council therefore adopted a resolution to issue the remaining $4.8 million of bonds in part to enhance the existing community center and gymnasium instead of building a satellite community center as originally provided for in Referred Issue 2A.

Nearly a year after the election, plaintiffs, who are residents of and taxpayers to the City of Golden, filed a declaratory judgment action in the trial court alleging that Referred Issue 2A was invalid because it included multiple, separate purposes on a single ballot title. Alternatively, plaintiffs sought a declaratory judgment that (1) the City must spend bond proceeds only on express .enumerated purposes, and (2) that the ordinance and the resolution were invalid to the extent that they authorized the expenditure of bond proceeds for purposes not enumerated in Referred Issue 2A. Finally, plaintiffs sought relief based upon promissory or equitable estoppel to require the City to expend the bond proceeds as represented by the City.

The City filed a motion to dismiss claiming that the ballot title challenge was untimely and therefore, the court lacked jurisdiction to review it,. Additionally, it argued that plaintiffs' alternate theories for relief did not present claims for which relief could be granted because the contested expenditures were within the City's discretion. In support of its motion, the City submitted several affidavits of city officials and contracts concerning the City's land use and acquisition. In response to the motion, plaintiffs submitted an affidavit and a copy of the City Council's ordinance authorizing the issuance of the bonds.

Concerning plaintiffs' challenge to the ballot title, the trial court held that the claim was time-barred pursuant to the election contest statute of limitations provisions of see-tions 1-11-208.5 and 218(4), 1 C.R.S. (2002) and dismissed the claim because it lacked jurisdiction. Concerning plaintiffs alternate remedies, in which they sought to restrict the City Council's discretion in authorizing specific expenditures, the trial court concluded that plaintiffs' claims were nonjusticiable political questions and because it lacked jurisdiction, dismissed these claims as well.

Plaintiffs appealed the trial court's ruling to the court of appeals. Because the court of appeals' jurisdiction excludes municipal election contests, we accepted this case for review upon referral from that court.

III. Analysis

A. Plaintiff's first claim is a ballot title contest and therefore time-barred by the statute of limitations

We first address plaintiffs' claim that Referred Issue 2A is invalid because it includes four separate purposes, thereby requiring voters to vote for all of them collectively, against all of them collectively, or none at all. Because we construe this claim to be a challenge to the content of the ballot itself on the basis of multiple subjects, the statute of limitations forecloses suit.

Pursuant to section 1-11-201(8), a party may contest the results of a ballot question on several grounds. Among the causes listed in that section are the inclusion of illegal votes in election results, errors by election judges, and an election official's misconduct which changed the result of the election.

In addition to the causes listed in section 1-11-201(8) to challenge election results, seetion 1-11-208.5 provides parties with a way to contest a ballot title itself. Included in this section is a statute of limitations provision which requires that the contestor file a complaint within five days after the title of the ballot issue or ballot question is set by the political subdivision. § 1-11-208.5(2), 1 CRS. (2002). The procedure provided in this section is the exclusive means to contest or otherwise challenge the order of the ballot or the form or content of the ballot title. § 1-11-208.5(5).

Plaintiffs concede that the time to challenge Referred Issue 2A had long since passed by the time they filed their complaint. However, plaintiffs argue that none of the grounds upon which a party may contest an election result on a ballot issue included in section 1-11-201(8) is applicable here. Because their challenge is not a ballot title contest, they contend that the statute of limitations in section 1-11-208.5(2) does not apply to bar the claim. Plaintiffs additionally argue that our holding in City of Denver v. Hayes, 28 Colo. 110, 63 P. 311 (1900), renders the failure to challenge the content of the ballot title within the five day statute of limitations period irrelevant and immaterial

Reviewing the statutory language of see-tions 1-11-201(8) and 1-11-208.5, we disagree with plaintiffs' argument for two reasons. First, section 1-11-201(8) states that a ballot question may be contested on the enumerated grounds provided. Use of the word "may" suggests that the list of permissible purposes to contest the result of a ballot issue is not exhaustive. See, eg., People v. Miller, 890 P.2d 84, 98 n. 15 (Colo.1995). Second, section 1-11-208.5 specifically provides parties with a way to challenge the form or content of a ballot title and provides exclusive procedures-including a five day statute of limitations period-which govern such challenges.

Nor do we find persuasive plaintiffs' argument that Hayes is controlling. In Hayes, we held that bonds issued for several purposes are invalid unless each purpose and the amount proposed are separately submitted for voter approval or rejection. 28 Colo. at 115, 68 P. at 818. However, the timeliness of filing a ballot title challenge was not at issue in Hayes, which we decided nearly a century before the general assembly enacted section 1-11-208.5. See Contests concerning ballot order or ballot title-ballot issue or ballot question elections, ch. 200, § 64, 1994 Sess. Laws 1176. Thus, under our current statutory scheme, the statute of limitations is a threshold requirement any party contesting a ballot title must observe. See Molleck v. City of Golden, 884 P.2d 725, 727 (Colo.1994).

Plaintiffs' argument that the ballot issue was invalid because it contained multiple purposes is clearly a challenge to the form or content of the ballot title. Because section 1-11-208.5(2) requires that all challenges to the form or content of a ballot title must be filed within five days after the title of the ballot issue is set, and because plaintiffs filed their claim long after the statute of limitations period expired, we hold that plaintiffs claim challenging the content of the ballot title is time-barred.

B. Plaintiffs' remaining claims do not present political questions

Plaintiffs additionally contend that the City's expenditures of bond proceeds were contrary to the voter-approved purpose and were not within the City's discretion. According to plaintiffs, the City not only failed to spend bond proceeds on enumerated purposes in Referred Issue 2A, but also spent proceeds on non-enumerated purposes when it (1) purchased land for the development of the golf course; (2) used bond funds for numerous purposes not included in Referred Issue 2A; and (8) failed to construct a satellite community center despite the fact that Referred Issue 2A provided for the construction of that facility.

The trial court concluded that because these claims were political questions, it lacked jurisdiction to address them and granted the City's motion to dismiss. We disagree.

While courts must refrain from reviewing controversies concerning policy choices and value determinations that are constitutionally committed for resolution to the legislative or executive branch, the trial court need not invade the City Council's province to resolve the issues in this case. Instead, plaintiffs' arguments require a determination of whether the City's choices to expend bond proceeds were properly within its discretion, which does not require formulating of legislative policy or developing standards not legal in nature. In addition, we have previously resolved questions concerning a City's discretion to spend bond proceeds without running afoul of the political questions doctrine. See, eg., McNichols v. City & County of Denver, 120 Colo. 380, 209 P.2d 910 (1949); City & County of Denver v. Currigan, 147 Colo. 125, 362 P.2d 1060 (1961); Abts v. Bd. of Educ., 622 P.2d 518 (Colo.1980). For all of these reasons, the trial court had jurisdiction to consider plaintiffs' claims and the City's motion to dismiss.

Because the parties submitted materials outside of the pleadings, including affidavits and contracts, the trial court may review these documents and if it determines that no genuine issue as to any material fact exists, convert the City's motion to dismiss to a motion for summary judgment as a matter of law. Alexander v. Morrison-Knudsen Co., Inc., 166 Colo. 118, 123, 444 P.2d 397, 399-400 (1968); Wheeler v. Hurdman, 825 F.2d 257, 260 (10th Cir.1987)(notice requirement satisfied when both parties submit materials beyond pleadings in support of or opposing a motion to dismiss).

Thus, we remand this case to the trial court to resolve plaintiffs' claims originally dismissed for lack of jurisdiction because of the political question doctrine, either on summary judgment or at trial. To guide the trial court's review of plaintiffs' claims and because both parties briefed and argued this issue to us, we review the law governing a municipality's discretion concerning the expenditures of bond proceeds.

C. Expenditures that do not materially depart from the purpose of a bond measure and necessary expenditures incidental to an authorized purpose are permissible

We have always taken an expansive view of a municipality's discretion to expend bond proceeds. Considering our precedent on this subject, and because modern times require a degree of discretion for municipalities financing and supervising complex projects, we hold that expenditures that do not materially depart from the purpose of a bond measure and necessary expenditures incidental to an authorized purpose are properly within a municipality's discretion, and therefore permissible.

That discretion is limited in part by Article XI, § 6 of the Colorado Constitution, which provides that "no such debt shall be created unless the question of incurring the same be submitted to and approved by a majority of the qualified taxpaying electors voting thereon," with certain exceptions not applicable here. In Hayes, we construed a similar constitutional provision concerning the creation of municipal debt to preclude the submission of separate and distinct purposes on a single ballot proposition, on the theory that the voter is deprived of the right to vote for one purpose and against others. 28 Colo. at 114-15, 68 P. at 818 (addressing Colorado Constitution Art. XI, § 8 (repealed 1970); Abts, 622 P.2d at 523.

In addition to constitutional and charter restrictions, a city must observe several requirements to issue bonds and expend proceeds: (1) the question submitted to voters must be specific and apprise them of the particular purpose for which the bonds are proposed to be issued; (2) the purpose must not be misleading; (8) the proceeds of the bonds must be spent for the purpose for which they were voted; and (4) if the city expends bond proceeds for the approved purpose, the judgment and discretion concerning those expenditures are reserved for city officials, not the courts. McNichols, 120 Colo. at 385, 209 P.2d at 912-13; Friends of Chamber Music v. City and County of Denver, 696 P.2d 309, 319 (Colo.1985).

We have applied these requirements and on several occasions, held that a city's decision to expend bond proceeds for a use that materially departs from either an approved purpose or the terms of an authorizing ordinance exceeds its discretion. For example, in McNichols, the City of Denver issued voter-approved bonds to improve and equip a hospital but instead, used the funds to build a facility for Bureau of Public Welfare employees. 120 Colo. at 382, 209 P.2d at 911. Because the approved purpose to construct hospital facilities was entirely different from the modified use to house administrative staff, such a modification did not fall within the range of reasonable discretion and was improper. Id. at 391, 209 P.2d at 915.

Additionally, in Currigan we reviewed a bond proceed expenditure for fifteen specific public improvements. If the city completed all fifteen improvements and did not exhaust the bond proceeds, it could apply the balance of the funds to a group of five additional enumerated public improvements. 147 Colo. at 127, 362 P.2d at 1062. The city completed the first fourteen of the fifteen projects, but determined that the fifteenth was not only undesirable, but also would have created a public hazard and amounted to a waste of public funds. As a result, the city abandoned the fifteenth project and substituted it for one of the five additional public improvements. However, the projects were not interchangeable, and the completion of the primary projects was a condition precedent to the secondary projects. Accordingly, project substitution was a material departure from the terms of its own authorizing ordinance submitted to voters and therefore not within the city's discretion. Id. at 182-83, 362 P.2d at 1064-65. See also Friends of Chamber Music, 696 P.2d at 320 (use of admissions tax proceeds to retire bonds was not an illegal change in the bond ordinance even though voters approved ad valorem property taxes to retire the bonds).

Although a city may not materially depart from an approved purpose, we have never so narrowly limited municipalities to prohibit expenditures for uses that are necessary and incidental to that purpose. We find Johnson v. McDonald, 97 Colo. 324, 49 P.2d 1017 (1935) persuasive support for this principle. In that case, the state issued interest-bearing warrants for funds advanced by the federal government to be used for the construction, maintenance, and supervision of highways. We held that the payment of bank and trust company charges was not a diversion of the funds from other than road purposes, and therefore, the state's payment of charges was allowable. Id. at 346, 49 P.2d at 1028.

If we were to hold otherwise, municipalities would be required to itemize all conceivable expenses in ballot titles. Some of these expenses are foreseeable, while others inevitably are not. Precluding a city from making expenditures properly within its discretion would hamper a city's ability to fulfill its obligations to its residents, implement plans, and adapt to constantly changing cireum-stances. As we are reminded by the United States Supreme Court, "We must remember that the machinery of government would not work if it were not allowed a little play in its joints." Bain Peanut Co. v. Pinson, 282 U.S. 499, 501, 51 S.Ct. 228, 75 L.Ed. 482 (1931).

Whether modifications materially depart from the purpose of a bond measure and whether necessary expenditures are incidental to an approved purpose are to be resolved by the trial court. Hence, considering our review of applicable law, the task for the trial court on remand is to determine whether the City's expenditures challenged by plaintiffs were properly within the City's discretion.

IV. Conclusion

For the reasons stated, we affirm the judgment of the trial court that plaintiffs' ballot title challenge is time-barred and reverse the judgment of the trial court that plaintiffs' remaining claims are political questions. We remand this case to the trial court to resolve plaintiffs' remaining claims consistent with this opinion.

      . Specifically, the issue posed the following to voters:
      Shall the City of Golden's debt be increased up to $26,420,000 with a repayment cost not to exceed $53,940,875, with no increase in any city tax or city tax rate, by the issuance of sales and use tax revenue bonds in a principal amount not to exceed $26,420,000, bearing interest at a net effective interest rate not to exceed 7.5% and maturing not later than 20 years after their date of issuance, to acquire and construct park and recreational facilities, including a satellite community center, family aquatic park, golf course with clubhouse and open space land for recreational purposes, such bonds to be secured by a pledge of all or a portion of the revenues from the City's sales and use taxes (which taxes shall not be repealed or reduced as to rate until the bonds and any refunding bonds are paid) deposited in the City's sales and use tax capital improvement fund, supplemented in part with available golf course revenues, all of which revenues, bond proceeds and any investment earnings thereon may be spent without regard to any other limitation on the collection or spending of revenues in the Colorado Constitution or any other law? (Emphasis added.)

      . These tasks, as alleged in plaintiffs' complaint, were the reclamation of a solid waste dump, . flood control, rock stabilization on private property, grading, reclamation and seeding of private property, storm water detention for private property, relocation of power lines across private property, and the purchase of land for the golf course. However, several of these tasks were contested by the City in affidavits filed in conjunction with its motion to dismiss.

      . § 13-4-102(1)(g), 5 C.R.S. (2002) provides:
      (1) Any provision of law to the contrary notwithstanding, the court of appeals shall have initial jurisdiction over appeals from final judgments of the district courts, the probate court of the city and county of Denver, and the juvenile court of the city and county of Denver, except in:
      (g) Summary proceedings initiated under articles 1 to 13 of title 1 and article 10 of title 31, CRS.

      . Plaintiffs raised the following issues on appeal:
      1. Whether the trial court erred in dismissing the Resident Taxpayers' claims for declaratory, injunctive, and equitable relief, based on its conclusion that such claims presented nonjusticiable political questions?
      2. Whether the trial court erred in dismissing the Resident Taxpayers' claim that the bonds issued pursuant to Referred Issue 2A and Ordinance No. 1538 were invalid, based on its conclusion that such claim was barred by the statutes of limitation applicable to election contests?
      3. Whether the trial court erred in dismissing the Resident Taxpayers' claim that the City's proposed use of bond proceeds, as set forth in Resolution No. 1210, was contrary to the purposes approved by the voters and not within the City's discretion?
      4. Whether the trial court erred in dismissing the Resident Taxpayers' claim that the City was estopped from using the bond proceeds in a manner contrary to its representations and promises?

      . Plaintiffs additionally argue that the ordinance authorizing the issuance and sale of bonds is invalid because it authorizes expenditures for multiple subjects enumerated in the referendum. This challenge concerns the scope of a city's discretion to expend bond proceeds, which we address in Part C of this opinion.

      . § 1-11-201(3) provides:
      The result of any election to determine a ballot issue or ballot question may be contested on any of the following grounds:
      (a) That illegal votes were received or legal votes were rejected at the polls in sufficient numbers to change the result of the election;
      (b) That an election judge or canvass board has made an error in counting or declaring the result of an election that changed the result of the election; or
      (c) That an election judge, canvass board, or member of a canvass board has committed misconduct, fraud, or corruption that changed the result of the election.

      . - Accordingly, we limit our analysis to the statute of limitations in § 1-11-203.5(2) despite the trial court's reference to the statute of limitations provision in § 1-11-213(4) in holding that the plaintiffs' claim was time-barred.

      . We clarify that our analysis here does not invalidate our holding in Hayes. On the contrary, if a contest is timely, a party is free to argue our reasoning in that case.

      . See Japan Whaling Ass'n v. American Cetacean Society, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986); Colorado Common Cause v. Bledsoe, 810 P.2d 201, 205 (Colo.1991)(citing Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962))("Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made.").

      . - For summary judgment, the nonmoving party is entitled to the benefit of all favorable inferences that may be drawn from the undisputed facts, and all doubts as to the existence of a triable issue of fact must be resolved against the moving party. See, eg., Martini v. Smith, 42 P.3d 629, 632 (Colo.2002).

      . This is consistent with approaches of other jurisdictions. See, eg., Coggins v. City of Asheville, 278 N.C. 428, 180 S.E.2d 149, 153-54 (1971)("in planning large permanent improvements the governing authorities look ahead to the future fulfillment of the construction plans. The authorities will inspect and examine the work as it progresses and minor changes from time to time are expected if conditions change and unforeseen developments occur."); State ex. rel. Traeger v. Carleton, 242 Minn. 296, 64 N.W.2d 776, 778 (1954)("It is probably true that the city may make minor changes in the plans but may not radically alter them so as to construct an entirely different system from that voted upon by the people."); Arkansas-Missouri Power Corp. v. City of Kennett, 348 Mo. 1108, 156 S.W.2d 913, 917 (1941)("where a corporation, private or municipal, is given power to perform a certain act, it is necessarily left with large discretion as to the method to be adopted and the manner in which such act is to be performed ... [the exact terms and provisions to be inserted therein must, in the nature of things, vary with the particular conditions surrounding this specific project.").

      . One such exception accommodates provisions to the contrary provided by a city's charter. Section 12.3 of the Charter for the City of Golden, which is consistent with Article XI, § 6, provides:
      No bonds or other evidence of indebtedness payable in whole or in part from the proceeds of general property taxes or to which the full faith and credit of the city are pledged, shall be issued, except in pursuance of an ordinance, nor until the question of their issuance shall at a special or general election, be submitted, to a vote of the taxpaying electors and approved by a majority of those voting on the question....

      . In Abts, we set forth the test to determine what constitutes more than more purpose. We review whether there exists a natural relationship between the various structures or objects united in one proposition so that they form one rounded whole. 622 P.2d at 523. In that case, we held that expenditures to construct, equip, and furnish two school buildings and to acquire additional school grounds and improvements constituted a single, permissible purpose. Id. at 525.

      . We distinguish here terms from the purpose of a bond measure. Terms include specific conditions related to borrowing and repayment of bonds, as well as the sequence in which money can be expended, see Currigan, 147 Colo. at 127, 362 P.2d at 1062, whereas a purpose is the object for which the measure is passed. At issue in this case is whether the City's expenditures materially departed from the voter approved purpose of the bond.

      . Although plaintiffs' challenge to the ballot measure itself is time-barred, we note that the trial court must address the underlying issue of whether the projects included in the referendum constitute more than one purpose before it can reach plaintiffs' claims on remand.


source: Caselaw Access Project

author: Chief Justice MULLARKEY

license: Public Domain

text:
    Karen K. BEACH, Petitioner, v. Mary L. BEACH, Respondent.
    No. 02SC166.
    Supreme Court of Colorado, En Banc.
    June 30, 2003.
    Rehearing Denied July 28, 2003.
    Michael J. Frederick, Colorado Springs, Colorado, Attorney for Petitioner.
    Hanes & Schutz, P.C., Richard W. Hanes, Timothy J. Schutz, Elana L. Sabovie, Colorado Springs, Colorado, Attorneys for Respondent.
   Chief Justice MULLARKEY

delivered the Opinion of the Court.

I. Introduction

This case involves a property dispute between a mother and daughter. The mother is the holder of a life estate interest in a 3-room addition to the daughter's house. The daughter holds the remainder interest in the addition, and the mother seeks to partition her life estate interest from the remainder. The court of appeals held that, as a life tenant, the mother has a right to seek partition from the daughter's non-concurrent remainder interest pursuant to section 38-28-101, 10 C.R.S. (2002). We reverse. Section 88-28-101 does not abrogate the common law rule that a life estate interest cannot be partitioned from a successive, non-concurrent remainder interest in the same property. Because we hold that partition under these circumstances is prohibited as a matter of law, we do not address the issue of whether the parties in this case impliedly waived their partition rights.

II. Facts and Procedural History

In 1998, Karen K. Beach ("the daughter") entered into an oral agreement with her parents Mary L. Beach ("the mother") and Ralph W. Beach ("the father"). The agreement arose when the father's health began to fail and the daughter offered the parents the option of building an addition to her own home where they could live for the rest of their lives. The daughter's home is a modest log house located on a 19-acre lot where the daughter runs a small working ranch. In return for the daughter's offer to let the parents build an addition to her home, the parents agreed to pay for the addition and agreed that the daughter would acquire the addition, at no cost, upon their deaths. The addition is equivalent to a small apartment, and consists of two bedrooms, a bathroom, and a living room with a kitchen. The addition is connected to the side of the daughter's house and the two areas share a common hallway.

After the father's death, the relationship between the mother and daughter deteriorated and the mother eventually sued the daughter to partition her interest in the addition from the daughter's property interests. At trial, the court found that the parties' oral agreement regarding the addition implicitly created a limited life estate in the parents measured by their joint lives, and that the daughter held the remainder interest. The court also found that because the parties impliedly intended for only the parents to occupy the addition during their lifetimes, the agreement prohibited either party from selling her interest in the addition. As a result of the above findings, the court held that the mother impliedly waived any partition rights when she entered into the contract because partition would be "a violation of the intent of the original agreement."

The court of appeals reversed. First, the court held that the mother had a statutory right to compel partition, interpreting section 38-28-101, 10 C.R.S. (2002), to allow partition between the mother's life estate in the addition and the daughter's successive, non-concurrent remainder interest in the addition. Beach v. Beach, 56 P.3d 1125, 1127 (Colo.App.2002). Second, the court held that the mother had not impliedly waived her partition rights. Id. at 1129. The court reasoned that partition would not violate the intent of the original agreement because the daughter would retain her contractual right to the monetary value of her remainder interest in the addition when their property interests were liquidated. See id.

We reverse the decision of the court of appeals. Section 38-28-1011 does not abrogate the common law rule that a life estate interest cannot be partitioned from a successive, non-concurrent remainder interest in the same property. Therefore, as a matter of law, the mother cannot partition her life estate in the addition from the daughter's remainder interest in the addition.

III. Analysis

A. The Common Law Rule

Under the common law, partition applies only to concurrent interests, meaning interests that are held simultaneously in time. Thus, a present life estate cannot be partitioned from a future remainder interest because the holders of the two interests possess the property successively, rather than concurrently. See, e.g., 3 Richard R. Powell, Powell on Real Property § 21.05[8][b], at 21-78 (Michael Allan Wolf ed., 2008) ("Historically, partition serves to sever concurrent interests and is not to be used for an attempted severance of successive interests."); Restatement (First) of Prop. § 172, erat. b (1936) (The rule that holders of successive interests cannot compel partition is an "aspect of the general rule that concurrent ownership is a prerequisite for partition") .

The overwhelming majority rule among the states conforms with the common law rule, namely that the parties to a partition action must have concurrent interests in the property. Most state statutes effectuate this rule by explicitly limiting partition to present estates held by joint tenants, tenants in common, or other concurrent owners. Seq, eg., Nev.Rev.Stat. § 89.010 (2002) ("When several persons hold and are in possession of real property as joint tenants or as tenants in common ... an action may be brought by one or more of such persons for a partial partition thereof"); Va.Code Ann. § 8.01-81 (2002) ("Tenants in common, joint tenants, executors with the power to sell, and copar-ceners ... may compel partition"); see also Whitby v. Overton, 243 Va. 20, 413 S.E.2d 42, 44 (1992) (holding that where a life tenant is not also a tenant in common with the remain-dermen, "he has no right to compel partition of the property against the owners of the remainder interest").

Other state statutes are slightly more expansive and allow partition between life estates and future interests, but only to the extent that some kind of concurrent interest exists. See, e.g., Peters v. Robinson, 636 A.2d 926, 931 (Del.Supr.1994) (interpreting Delaware's partition statute to allow the holder of a life estate to compel partition, but "no further than is necessary to sever the concurrent co-tenancy"); Dodd v. McGee, 354 Mo. 644, 190 S.W.2d 281, 288 (1945) (holding that although the owner of an undivided life estate interest may bring partition, the owner of an exclusive life estate cannot because there is nothing to partition and "[the objects of partition are to avoid the inconveniences resulting from common ownership").

A concurrent interest is a prerequisite for partition because the purpose of partition is to sever unity of possession. See Keith v. El-Kareh, 729 P.2d 377, 379 (Colo.App.1986). There is no unity of possession to sever when the property interests at stake are not concurrent in time.

By definition, the holder of a present life estate and the holder of a future remainder interest do not own concurrent interests because each holder uses the property exclusively during her respective time of posses-gion. - Although the holders of the life estate and successive remainder interest do share a common interest in the property, "[this variety of simultaneously existent interests does not constitute the concurrent ownership, the splitting of which is the function of partition." Restatement (First) of Prop. § 172 (1936) (emphasis added). Therefore, as holders of a life estate and successive remainder interest, the mother and daughter in this case do not share the necessary concurrent interest in the addition as required by common law.

B. The Colorado Partition Statute

The court of appeals acknowledged the above common law rule that life estates are not subject to partition from remainder interests, but then went on to hold that Colorado statute abrogates the common law rule. Beach, 56 P.3d at 1127. To test the validity of the court of appeals' conclusion, we turn first to Colorado's partition statute. Section 838-28-101, 10 C.R.S. (2002), provides:

Actions for the division and partition of real or personal property or interest therein may be maintained by any person having an interest in such property.

The plain language of the statute makes no reference to the common law. However, the court of appeals reasoned that, because the statute allows "any person" having any interest in real or personal property to maintain an action for partition, and because a life estate is an interest in real property, the mother must be able partition her life estate from the daughter's non-concurrent remainder interest. Beach, 56 P.3d at 1127. The court also noted that even though partition would cause the daughter to lose her actual remainder interest in the addition, she would still retain the liquidated value of her remainder interest when the addition was sold. See id. at 1129.

In interpreting a statute, we must give effect to the intent of the legislature. Lagae v. Lackner, 996 P.2d 1281, 1284 (Colo.2000). Although the General Assembly possesses the authority to abrogate common law remedies, statutes may not be interpreted to abrogate the common law absent a clear expression of intent. See Preston v. Dupont, 35 P.3d 433, 440 (Colo.2001). A statute is not presumed to alter the common law except to the extent that such statute expressly provides. See id.

In this case, we conclude that section 38-28-101 does not abrogate the common law rule requiring concurrent ownership in partition actions. We base this conclusion on two grounds. First, section 38-28-101 is silent as to whether successive, non-concurrent property interests are partitionable. Second, the partition of non-concurrent interests would run counter to the ordinary meaning of partition and destroy the parties' property interests.

First, section 38-28-101 contains no clear expression of intent by the General Assembly to abrogate the common law rule. The very general language of section 38-28-101 stands in sharp contrast to the clear and specific language of other state statutes explicitly overriding the common law rule requiring concurrent ownership. For example, California's partition statute expressly provides: "[plartition as to successive estates in the property shall be allowed if it is in the best interest of all the parties." Cal. Civ. Pro. § 872.710(c) (2002) (emphasis added). Similarly, Rhode Island's statute explicitly contemplates partition between present and future interests, providing: "[plartition may be made of any lands, tenements, or heredita-ments between the person or persons who hold the fee of any share ... and the person or persons who hold or are or may be entitled to any share or shares thereof, for life or in reversion or remainder." RI. Gen. Laws § 34-15-20 (2002) (emphasis added). See DeLisi v. Caito, 463 A.2d 167, 168 (R.I.1983) (interpreting the Rhode Island statute to allow partition between a life tenant and a remainderman even though no co-tenancy existed).

In contrast to the California and Rhode Island statutes, Colorado's statute is silent as to the availability of partition between successive property interests where the parties share no concurrent ownership or possession of the property. Although the statute has been in effect for over fifty years, it has never before been interpreted as overturning the settled expectations created by the common law of future interests. The language of the statute provides only a general declaration of who has standing to bring a partition action, and does not substantively extend a right of partition to holders of non-coneur-rent property interests. Absent a clearer and more specific statutory indication that the General Assembly actually intended to abrogate the fundamental common law rule that non-concurrent interests are not parti-tionable, we must presume that the General Assembly did not intend to change the common law rule. See Preston, 35 P.8d at 440.

Second, we conclude that the General Assembly did not intend to abrogate the common law rule that a life estate cannot be partitioned from a non-concurrent remainder interest because such partition would be incongruous with the meaning and purpose of partition. As discussed earlier, a court's function in a partition action is to sever unity of possession by physically dividing a parcel of property. See Keith 729 P2d at 379. Here, where the addition is not concurrently owned at any point in time, there is simply no unity of possession to physically sever-partition is logically impossible.

The practical result of allowing partition where physical division is inherently impossible due to a lack of concurrent interests is that partition becomes nothing more than an automatic foreed sale-one party's "partition" right becomes the right to force another party to liquidate her property interests entirely. As a result, a party's right to actually enjoy her respective interest in the property is destroyed and the only available "remedy" for the lost interest is some inadequate dollar amount.

Here, for example, the daughter's remainder interest is destroyed upon sale of the addition because onee the addition is liquidated, there is nothing left in which to have a remainder. As a practical matter, "partition" via liquidation then leaves the daughter with no choice but to either buy the present value of the mother's life estate interest for approximately $48,000, or have the court sell the addition to strangers and divide the proceeds according to the mother and daughter's present and future interests in the addition. Because the addition in this case is attached to the daughter's own home and located on her own private property, it may be impossible to sell only the addition. If so, the end result of the "partition" would be the sale of the daughter's entire property in order to provide the mother with the proper monetary value of her present life estate interest.

The above result exactly illustrates the drastic consequences of requiring partition where physical partition is inherently impossible due to the lack of concurrent interests between the parties Because nothing in section 38-28-101 evidences a clear intent of the General Assembly to abrogate the common law and achieve this result, we reject the court of appeals' reading of section 38-28-101 and reject the notion that the statute requires partition on demand between a life estate and a non-concurrent remainder interest. «

IV. Conclusion

In sum, we hold that section 38-28-101 does not abrogate the common law rule that, as a matter of law, a life estate and non-concurrent remainder interest cannot be partitioned. We therefore reverse the holding of the court of appeals and do not reach the issue of whether the parties in this case impliedly waived their partition rights by virtue of their oral contract. We remand this case to the court of appeals with directions to return this case to the trial court.

      . We granted certiorari on the following two issues:
      1) Whether the court of appeals erred by holding that the owner of a life estate interest may compel partition from a successive, non-concurrent remainder interest in the same property.
      If partition is proper, whether the court of appeals erred by refusing to accept the trial court's finding that the parties impliedly waived their partition rights because partition would violate the intent of the parties' original contract. 2 w

      . Because the parties do not dispute the trial court's characterization of the parties' respective interests in the addition as a life estate and remainder, we accept this characterization for purposes of this appeal.

      . The court of appeals held that if the daughter chose not to purchase the mother's life estate interest in the addition, the trial court should order a sale of the addition and distribute the proceeds according to the parties' respective interests in the addition. Id. at 1131-32.

      . Although subsequent Restatements of Property have since been published, the language of section 172 has not changed.

      . This provision was enacted in 1949 and no legislative history is available to help determine the General Assembly's intent. The title of the Act is also unhelpful, stating only that it is "An Act Concerning Actions and Proceedings in Partition."

      . The full property value of the addition is approximately $90,000. The court of appeals calculated the mother's life estate interest at the time of trial to be $47,834.10, and the court also went into great detail regarding the proper methodology of valuating a life estate interest. Beach, 56 P.3d at 1130-31. This valuation issue was not raised before this court, therefore we do not address the issue here.


author: LILE, Vice Presiding Judge: CHAPEL, Judge,

text:
    2003 OK CR 14
    Justin Ryan LONG, Appellant, v. STATE of Oklahoma, Appellee.
    No. F-2001-1452.
    Court of Criminal Appeals of Oklahoma.
    July 16, 2003.

      Don J. Gutteridge, Jr., Indigent Defense System, OKlahoma City, OK, Attorney for Defendant at trial.
    Robert Eugene Christian, District Attorney, Sue Taylor, Assistant District Attorney, Duncan, OK, Attorneys for State at trial.
    Lisbeth L. McCarty, Appellant Defense Counsel, Indigent Defense System, Norman, OK, Attorney for Appellant on appeal.
    W.A. Drew Edmondson, Attorney General, Kellye Bates, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee on appeal.
   OPINION ON REHEARING

LILE, Vice Presiding Judge:

1 Appellant, Justin Ryan Long, was convicted after a non-jury trial of First Degree Malice Aforethought Murder in violation of 21 0.8.8upp.1998, § 701.7(A), in the District Court of Stephens County, Case No. CF-2000-145. The Honorable George W. Lind-ley, District Judge, sentenced Appellant to life imprisonment without the possibility of parole. Appellant has perfected his appeal to this Court.

T2 On May 1, 2000, Appellant, then 15 years of age, stabbed his adoptive father, Hoyt Long, to death.

T3 Appellant first challenges his waiver of jury trial on the grounds that the record is insufficient to show a competent, knowing and intelligent waiver by a minor of average intelligence who had suffered horrific physical and sexual abuse resulting in various mental illnesses and a history of immature thinking. Our case law establishes that "the right of trial by jury can be waived only if there is a clear showing that such waiver was competently, knowingly and intelligently given." Bench v. State, 1987 OK CR 191, 743 P.2d 140; Kerr v. State, 1987 OK CR 136, 738 P.2d 1370; Colbert v. State, 1982 OK CR 174, 654 P.2d 624; See also Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429 (1966). Appellant relies for this argument on a sketchy court minute that memorializes the appearance, waiver and setting of a non-jury trial date. However, an examination of the transeripts on appeal discloses an appearance by Appellant, with counsel, before the trial judge for the specific purpose of considering a waiver of jury trial. The trial court properly questioned both counsel and Appellant concerning the waiver, Appellant's competency and understanding, and the voluntariness of the waiver. The trial court made a finding consistent with our law and the facts of record, which we see no reason to disturb. This proposition is denied.

T4 Appellant next complains, for the first time on appeal, that the trial judge improperly heard a taped confession, which he later suppressed. We do not review the admissibility of the taped confession but rather the non-jury trial procedure used here. This procedure is not unusual. The trial court heard the recording as part of the motion to suppress and then granted the motion. We presume, when a trial court operates as the trier of fact, that only competent and admissible evidence is considered in reaching a decision. Borden v. State, 1985 OK CR 151, 710 P.2d 116; Fox v. State, 1976 OK CR 307, 556 P.2d 1281. There is certainly nothing in the record nor raised by Appellant's arguments to overcome that presumption. This was an experienced trial judge, Appellant confessed again at trial, and evidence independent of any confessions overwhelmingly supported the verdict. This proposition is denied.

15 Appellant asserts that there was insufficient evidence to establish he intended to kill his father. We review the evidence in the light most favorable to the State and determine if a rational fact-finder could have found the elements of the crime beyond a reasonable doubt. Spuehler v. State, 1985 OK CR 132, 709 P.2d 202. Here, Appellant considered what to do as he sat by his sleeping father with weapons in hand. He admitted that he knew his father would probably die. He stabbed his father twice in the chest with a dagger and when his father awoke he stabbed him three times in the neck with a knife. As his mother approached, Appellant told her to let him die. This proposition is denied.

16 Appellant asserts that the sentence is excessive. We examine under the rule of Rea v. State, 2001 OK CR 28, 34 P.3d 148, and decades of similar precedent. If the sentence is within the range prescribed by the statute and if it does not shock the conscience of the Court, we will not modify the sentence. The State recommended a life sentence and Appellant asserts that the trial judge improperly gave a harsher sentence. The recommendation of the State is just that, a recommendation. Sentencing, in a non-jury trial, is the duty of the trial judge. The extreme hardship suffered by this Appellant was a strong mitigating influence. The fact that the possibility of rehabilitation was very slim and the utter brutality of this crime were strong aggravators. We are unable to say, under all of the facts of this case, that the sentence should be modified. This proposition is denied.

T7 Appellant asserts that he was denied the right of closing argument and cites statutory authority that requires the court to allow closing argument in a jury trial 12 ©.S.1991, § 577, and 22 0.8.1991, § 831. These statutes, on their face, apply to jury trials and not trials by a judge. Appellant also cites Oklahoma Constitution, Art. II, § 20, which provides that an accused "shall have the right to be heard by himself and counsel...." This constitutional provision has never been interpreted to require a trial judge to hear closing arguments in a non-jury trial.

18 It is true that "a trial judge may not deny absolutely the opportunity for any closing summation at all." Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975). In Herring, a New York statute allowed a judge presiding over a non-jury criminal trial to refuse to hear any closing argument on behalf of a defendant. Acting under that authority, the trial judge in Herring denied the request of counsel for the defendant to make a closing argument. The United States Supreme Court found the absolute denial to violate the Sixth Amendment guarantee of "assistance of counsel." Herring, 422 U.S. at 865, 95 S.Ct. at 2556.

T9 The facts of the case before us lead to a different result. Here, the defendant did not request closing argument and did not object when the trial court began to pronounce its verdict at the close of the evidence. Where Appellant did not request closing argument or object when the trial court did not ask for same, the right to argue is waived. See Moore v. State, 1987 OK CR 68, 736 P.2d 161 (waiver of closing as sound trial strategy). At most we examine for plain error in such an event and we find none here. Simpson v. State, 1994 OK CR 40, 876 P.2d 690.

{10 Appellant next complains that his trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and our cases applying the rule of Strickland. Appellant asserts that his trial counsel should have raised the defense of duress, because he "suffered from corporal punishment, and the reason he stabbed his adoptive father was to prevent further corporal punishment." This presents a claim in the nature of self-defense, not a claim of duress.

111 In the case of the battered woman syndrome, we treat the defense as one in the nature of self-defense. Bechtel v. State, 1992 OK CR 55, 840 P.2d 1. Likewise, where the victim is also the same person claimed to be exerting duress, the issue is self-defense. The duress defense envisions a third person compelling the defendant by the threat of immediate physical violence to commit a erime against another person or the property of another.

{12 Additionally, duress is not a defense to the intentional taking of an innocent life by a threatened person. Tully v. State, 1986 OK CR 185, 730 P.2d 1206.

113 Clearly, the defense of duress has its origin in the common law and is "based on society's realization that a person, when faced with the choice of two evils, should not be punished for accomplishing the lesser evil, and thereby avoiding the crime of greater magnitude." Tully, 730 P.2d at 1209.

T 14 Equally clear is the common law limitation of the defense as stated by Blackstone, that when the harm contemplated by the defendant is greater than, or equal to, the threatened harm, "he ought rather to die himself than escape by the murder of an innocent." 4 W. Blackstone, Commentaries 30.

15 It is generally accepted that duress is not a defense to taking the life of an innocent person. Annot., 40 ALR.2d 906-07. As stated at Wharton's Criminal Law, 15th Edition, § 52: "At common law ... a defendant is not allowed to take the life of an innocent third person even when he is ordered to do so under a threat of instant death."

16 Any other rule is simply repugnant to nearly universal standards of decency developed over many decades of human experience. Oklahoma has specifically delineated those legally acceptable justifications and excuses for homicide, which are set forth at 21 ©.9.2001 §§ 731 & 733. Duress is neither an exeuse for nor a justification of homicide under Oklahoma law.

T 17 The reasoning set forth in Tully was compelling then and remains compelling today. As we said in Tully, "[Tlhe rationale for denial of this defense to intentional killing is premised on the theory that one should risk or sacrifice one's own life rather than take the life of an innocent person." Tully, 730 P.2d at 1210.

1 18 This long-standing rule of the common law, unmodified by statutory enactment, was improperly modified in Spunaugle v. State, 1997 OK CR 47, 946 P.2d 246, which we today overrule to the extent that it conflicts with this pronouncement.

T19 Since the defense of duress was not appropriate under the facts of this case and since we find a valid waiver of the right to jury trial and we find that that trial counsel's failure to preserve the right to closing argument was sound trial strategy, we can find no ineffective assistance of trial counsel by reason of counsel not pursuing these matters. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

120 Appellant's claim of cumulative error must be denied because we find no error in any of Appellant's propositions. Alverson v. State, 1999 OK CR 21, 983 P.2d 498.

DECISION

121 Appellant, Justin Ryan Long, was convicted at jury trial of First Degree Malice Aforethought Murder in violation of 21 O0.S§.Supp.1998, § 701.7(A), in the District Court of Stephens County, Case No. CF-2000-145. The Honorable George W. Lind-ley, District Judge, sentenced Appellant to life imprisonment without the possibility of parole. The Judgment and Sentence of the district court are AFFIRMED.

JOHNSON, P.J., and LUMPKIN, J., concur.

STRUBHAR, J., concurs in results.

CHAPEL, J., dissents.

CHAPEL, Judge,

dissenting:

{1 I dissent from today's Court opinion based upon its resolution of Long's claim regarding his right to present a closing argument, as well as the opinion's discussion of the legal defense of duress.

12 In Herring v. New York, the Supreme Court held that a defendant has a constitutional right to make a closing argument, even in a bench trial. The Court wrote, "There can be no doubt that closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial." The Court likewise recognized closing arguments as being critical to the "ultimate objective" of the criminal trial process:

The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free. In a criminal trial, which is in the end basically a factfinding process, no aspect of such advocacy could be more important than the opportunity finally to marshal the evidence for each side before submission of the case to judgment.

13 In light of Herring and its recognition of the critical importance of a defendant's right to present closing arguments, I dissent from today's holding that this constitutional right will be presumed waived if a defendant merely fails to object when a trial court begins to announce its judgment immediately after the close of evidence. While this right, like most constitutional rights, can certainly be waived, waiver should be found only where a defendant or his counsel actually announces a decision not to present closing argument. Waiver should be found only where the defendant affirmatively waives his right to present a closing argument, not merely from silence or inaction.

{4 Furthermore, the Court's conclusory finding, at the conclusion of today's opinion, that "trial counsel's failure to preserve the right to closing argument was sound trial strategy" is not supported by the record in this case-from which it does not appear that the failure was even a "strategy," let alone a sound one. Nor is the finding supported by any argument or legal authority.

4 5 In addition, while I agree that counsel was not ineffective in this case for failing to raise the defense of duress, I strongly disagree with the majority's decision with respect to that defense. The Oklahoma legislature has set forth the defense of duress, exonerating defendants who commit crimes while involuntarily subject to the power of a superior. The Legislature has specifically provided that a person is entitled to assert duress as a defense if he commits a prohibited act because he has a reasonable belief that he, a spouse, or a child, is in imminent danger of death or great bodily harm from another. In Spunaugle v. State, a case of first impression, this Court examined the clear language of the statute, concluded that the Legislature meant what it said, and reaffirmed the principle that duress is a defense to malice murder. Today the majority ignores the letter and spirit of the statutes and overrules Spunaugle, because it finds any other result would be "repugnant to nearly universal standards of decency." This displays a contempt for our precedent and the legislative process with which I cannot agree.

T 6 Underlying the majority's decision is a belief that "duress is not a defense to taking the life of an innocent person." This belief is directly contradicted by the statutory language, which makes no exception for an "innocent" victim where the statutory requirements are met. In order to bolster this belief, the majority relies on dicta from Tully v. State. As we noted in Spunaugle, the discussion of duress in Tully focused solely on justification and did not take into account the explicit language of Oklahoma's statutes, which focus on the legal theory of excuse. Rather than acknowledge this, the majority treats Tully as binding precedent. This is simply not the case.

7 The majority's legal analysis appears to be driven not by principles of legal interpretation but by "moral" principles. In short, the majority simply believes that it is indecent for a murderer to claim he acted under duress. Whether or not that is true, it is not the question before us. Nothing has changed since Spunaugle that would suggest the Legislature intended a different interpretation of the duress statutes. This Court ought not amend or repeal a clear expression of Legislative intent because it does not agree with the outcome.

      . The original opinion issued herein was withdrawn following motion for rehearing on May 14, 2002.

      . 422 U.S. 853, 95 S.Ct. 2550, 45 LEd.2d 593 (1975). The Herring holding was first raise on rehearing and is the reason this Court granted a rehearing in the case.

      . Id. at 865, 95 S.Ct. 2550 (holding that denial of defendant's request to make closing argument, based upon New York statute making presentation of such arguments discretionary in bench trials, violated defendant's Sixth Amendment right to the assistance of counsel). I do not understand the inclusion of Paragraph 7 in today's Court opinion, which is a holdover from the opinion originally issued in this case-before the significance of Herring was raised on rehearing. Whether the right to present closing argument in a bench trial exists under state law is a purely academic issue at this point, since Herring compels our recognition of this right under federal law.

      . Id. at 858, 95 S.Ct. 2550.

      . Id. at 862, 95 S.Ct. 2550.

      . The majority opinion cites Moore v. State, 1987 OK CR 68, 736 P.2d 161, in support of its waiver holding. Moore is a capital case in which the defendant, at the conclusion of the State's second-stage closing argument, affirmatively stated that he wanted to waive closing argument. The trial court then warned the defendant that it still had discretion to allow the State a second closing argument. Nevertheless, the defendant again "stated that he wished to follow his counsel's advice and waive closing argument." Id. at 166 Hence the Moore case involved a defendant who twice explicitly waived his right to present a closing argument. It provides no support for the Court's current holding regarding implied waiver.

      . 21 0.$.2001, §§155, 152(7).

      . 21 0.9.2001,§156.

      . 21 0.5.2001,§ 156.

      . 1997 OK CR 47, 946 P.2d 246.

      . Spunaugle, 946 P.2d at 250. The Oklahoma statutes focus on the actor and individual characteristics which may excuse his actions, rather than on the moral justification for the actions themselves.


text:
    2003 OK JUD ETH 5
    JUDICIAL ETHICS ADVISORY PANEL
    Oklahoma Judicial Ethics Advisory Panel.
    Aug. 6, 2003.
   JUDICIAL ETHICS OPINION 2008-5

T1 QUESTION 1; May a municipal judge retain that office after the judge's spouse is elected to the city council?

T2 QUESTION 2: If, in the future, the spouse becomes Mayor with the right to appoint the municipal judge, must the judge resign?

T3 FACT SITUATION:

1. The judge seeking an opinion has been a municipal judge in a rural community since 1996. The term of office is two years and the appointment is made by the May- or.
2. The judge was last reappointed in 2002. Since that appointment, the judge's spouse has become a member of the city council.

T4 Canon 2: "A Judge Should Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities.

(A) A judge should respect and comply with the law at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

15 WE ANSWER:

Question 1: Yes
Question 2: No, but may not be re-appointed by spouse.

DISCUSSION:

T6 The answer to these questions involve not only Canon 2 and the appearance of impropriety, but also the provision of 11 0.8. § 8-106 dealing with the subject of nepotism and Canon 2A as it requires a judge to comply with the law at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

T7 Title 11 0.8. § 8-106 provides, "No elected or appointed official or other authority of the municipal government shall appoint or elect any person related by affinity or consanguinity within the third degree to any . office or position of profit in the municipal government. The provisions of this seetion shall not prohibit an officer or employee already in the service of the municipality from continuing in such service or from promotion therein."

T8 It is not our function to construe statutes but it appears that the statute in question is so clear and unambiguous as applied to the fact situation that no interpretation is necessary and our answers comply with the provisions of Canon 2 of the Code of Judicial Conduct.

T9 ROBERT L. BAILEY, Chairman, ROBERT D. SIMMS, Vice Chairman, MILTON C. CRAIG, Secretary.