Introduction

In People v. Hernandez, the Colorado Supreme Court did not resolve the First Amendment merits of a dismissed criminal charge. Instead, it announced a clear and practically important rule of appellate routing in criminal cases: when a district court dismisses a criminal count on as‑applied constitutional grounds, the People’s appeal must be filed in the Colorado Court of Appeals under section 16‑12‑102(1) and C.A.R. 4(b)(6)(A). The Supreme Court’s direct appellate jurisdiction is reserved for decisions that declare a statute unconstitutional on its face, not merely as applied. Further, if the People mistakenly file such an appeal in the Supreme Court, the case must be transferred to the Court of Appeals under section 13‑4‑110(2)–(3), rather than dismissed.

The case arises from a single‑count prosecution for “retaliation against a judge” based on statements made by defendant Ashley Hernandez to a judge in a courthouse elevator. The district court dismissed, concluding the statements did not constitute “true threats” and that the statute was unconstitutional as applied to Hernandez’s speech. The People appealed to the Supreme Court, prompting the Court to examine whether the appellate route was proper. The Court’s answer provides a definitive procedural map for Colorado prosecutors and defense counsel confronting constitutional dismissals in criminal cases.

Summary of the Opinion

• Appeals by the People from pretrial orders dismissing one or more criminal counts constitute final, immediately appealable orders under section 16‑12‑102(1). But absent a statute or rule expressly directing an appeal to the Supreme Court, those appeals must be filed in the Court of Appeals. C.A.R. 4(b)(6)(A).
• The statutory phrase “cases in which a statute has been declared unconstitutional” in section 13‑4‑102(1)(b) refers to facial unconstitutionality—not as‑applied unconstitutionality. Therefore, as‑applied constitutional rulings fall within the Court of Appeals’ initial jurisdiction.
• C.A.R. 4(b)(6)(B)’s direction to file in the Supreme Court when an order “is based on a determination that a statute is unconstitutional” similarly tracks facial invalidations; it does not sweep in as‑applied rulings.
• An erroneous filing in the Supreme Court is not jurisdictionally fatal. Under section 13‑4‑110(2)–(3), the Supreme Court must transfer the case to the Court of Appeals; dismissal is improper.
• Exercising its constitutional authority to interpret court rules, the Supreme Court transferred this appeal to the Court of Appeals, leaving the First Amendment merits for that court to resolve.

Case Background

The People charged Hernandez with retaliation against a judge under section 18‑8‑615. The charge was initially brought as “harassment” under subsection (1)(a) and later amended to “credible threat” under subsection (1)(b). Hernandez moved to dismiss, asserting her statements were protected by the First Amendment. The district court reviewed an audio recording of the elevator encounter and found the statements, while perhaps disrespectful and perceived as threatening by the judge, did not constitute threats of violence. Citing Counterman v. Colorado, 600 U.S. 66 (2023), it further concluded the People had not shown Hernandez recklessly disregarded the threatening nature of her words. The court dismissed the charge as unconstitutional as applied to Hernandez’s speech.

The People filed a direct appeal in the Supreme Court and, after full merits briefing, the Court ordered supplemental briefing on whether the district court’s order “determined that a statute, municipal charter provision, or ordinance is unconstitutional” for purposes of C.A.R. 4(b)(6)(B). The Supreme Court resolved the threshold jurisdictional question and transferred the appeal to the Court of Appeals.

Analysis

Precedents and Authorities Cited

• Keystone, a Div. of Ralston Purina Co. v. Flynn, 769 P.2d 484, 488 n.6 (Colo. 1989): Affirms the principle that every tribunal has jurisdiction to determine its own jurisdiction, a threshold necessary to decide whether to retain or transfer this case.
• People ex rel. Union Trust Co. v. Superior Court, 488 P.2d 66, 68 (Colo. 1971): Recognizes the Supreme Court’s power to determine the jurisdiction of lower courts, under Colo. Const. art. VI, § 1.
• Colorado Constitution art. VI, § 21; People v. Steen, 2014 CO 9, ¶ 10, 318 P.3d 487, 490: Confirms the Supreme Court’s plenary authority to promulgate and interpret Colorado court rules, including appellate rules. This power anchors the Court’s issuance of a jurisdictional opinion while transferring the merits.
• People v. Manzo, 144 P.3d 551, 554 (Colo. 2006): Supports the Court’s plain‑language interpretive approach to statutes and rules.
• Well Augmentation Subdistrict of Central Colorado Water Conservancy District v. City of Aurora, 221 P.3d 399, 419 (Colo. 2009): Embodies the canon that when the General Assembly includes language in one part of a statute but omits it from another, courts presume the difference is purposeful—here, the explicit reference to “in the supreme court” in section 16‑12‑102(2) (interlocutory appeals) but not in section 16‑12‑102(1) (final orders).
• People v. Lee, 2019 COA 130, ¶ 2, 477 P.3d 732, 734: Illustrates that the Court of Appeals routinely adjudicates as‑applied constitutional challenges; a contrary reading would strip the Court of Appeals of cases it regularly handles.
• Bucklew v. Precythe, 587 U.S. 119, 138 (2019): Defines facial challenges as claims that a law is unconstitutional in all its applications.
• Developmental Pathways v. Ritter, 178 P.3d 524, 533–34 (Colo. 2008), and Sanger v. Dennis, 148 P.3d 404, 411 (Colo. App. 2006): Explain that as‑applied challenges target a statute’s operation in specific circumstances; success bars similar applications without rendering the statute inoperative across the board.
• Counterman v. Colorado, 600 U.S. 66, 73 (2023): Cited by the district court for the “true threats” doctrine requiring at least recklessness. The Supreme Court here did not reach Counterman’s merits application; it is noted only as background.

Legal Reasoning

The Court applied a straightforward textual and structural analysis across the relevant statutes and appellate rules:

• Section 16‑12‑102(1) authorizes the prosecution to appeal “any decision of a court in a criminal case upon any question of law” and states that pretrial orders dismissing one or more counts are final and immediately appealable. Critically, the subsection does not specify the Supreme Court as the proper forum.
• By contrast, section 16‑12‑102(2) expressly authorizes interlocutory appeals “in the supreme court” from certain trial court rulings. The presence of that forum‑designating language in subsection (2), and its absence in subsection (1), signals that appeals from final dismissal orders under subsection (1) belong in the Court of Appeals in the first instance, consistent with section 13‑4‑102(1) (“the court of appeals shall have initial jurisdiction over appeals from final judgments of the district courts”).
• C.A.R. 4(b)(6) implements this allocation. Rule 4(b)(6)(A) commands that, unless otherwise provided by statute or rule, the People’s authorized appeal must be filed in the Court of Appeals within 49 days. Rule 4(b)(6)(B) supplies special procedures for two situations: (a) appeals from orders dismissing fewer than all counts, and (b) appeals “based on a determination that a statute is unconstitutional.”
• The State argued that Rule 4(b)(6)(B), in tandem with section 13‑4‑102(1)(b) (excluding from the Court of Appeals’ jurisdiction “cases in which a statute has been declared unconstitutional”), requires direct Supreme Court review of any constitutional dismissal, whether facial or as applied. The Court rejected that reading as overbroad and incompatible with the Court of Appeals’ established role in deciding as‑applied challenges.
• To harmonize the statutory and rule frameworks, the Court construed “cases in which a statute has been declared unconstitutional” to mean facial invalidations—where a trial court holds a statute unconstitutional in all its applications. As‑applied rulings, by definition, do not “declare” a statute unconstitutional across the board; they prohibit enforcement only in the specific circumstances presented.
• This case exemplifies the distinction: the district court did not hold section 18‑8‑615(1) categorically invalid. It concluded only that prosecuting Hernandez for her particular statements would violate the First Amendment. That is an as‑applied ruling squarely within the Court of Appeals’ initial jurisdiction.
• Finally, the Court invoked section 13‑4‑110(2)–(3) to hold that a misfiled appeal must be transferred to the proper appellate court and deemed properly filed there; dismissal is not an option. Exercising its constitutional authority to interpret the appellate rules, the Supreme Court issued this jurisdictional decision and transferred the merits to the Court of Appeals.

Impact and Practical Consequences

Hernandez clarifies, in bright‑line terms, the appellate path for constitutional dismissals in Colorado criminal cases:

• Appeals from as‑applied constitutional dismissals must be filed in the Court of Appeals under section 16‑12‑102(1) and C.A.R. 4(b)(6)(A). This is true even when the dismissal resolves all counts and terminates the prosecution as to the defendant.
• Direct appellate jurisdiction in the Supreme Court based on a constitutional ruling is limited to cases where the trial court declares a statute facially unconstitutional. Reading “declared unconstitutional” to mean facial invalidation preserves the Court of Appeals’ core role and avoids eviscerating its jurisdiction over the many as‑applied cases it routinely decides.
• Prosecutors and defense counsel should precisely frame the nature of constitutional challenges at the trial level and accurately characterize trial court rulings in notices of appeal. Mislabeling an as‑applied ruling as a facial ruling (or vice versa) could send the appeal to the wrong court and delay review—even though transfer, rather than dismissal, will correct the forum.
• Erroneous filings are not fatal. Section 13‑4‑110(2)–(3) mandates transfer, not dismissal, ensuring that litigants are not punished for forum mistakes and that appellate rights are preserved.
• For First Amendment “true threats” prosecutions post‑Counterman, Hernandez means that the Court of Appeals will typically be the first appellate tribunal to assess whether specific statements meet the recklessness‑based “true threats” standard and how those standards interact with Colorado’s “credible threat” and similar statutes. Supreme Court review would occur, if at all, via discretionary certiorari after the Court of Appeals’ decision.
• Beyond criminal law, the opinion’s construction of section 13‑4‑102(1)(b) has system‑wide significance: the Court of Appeals retains initial jurisdiction unless a lower court has declared a statute facially unconstitutional. This promotes uniformity and docket balance and provides clear guidance to practitioners and courts.

Complex Concepts Simplified

• Facial vs. As‑Applied Challenges:
  • Facial: The law is invalid in all its applications; it cannot be constitutionally enforced against anyone in any circumstance.
  • As‑Applied: The law is valid generally but unconstitutional as applied to the particular facts or party; it bars enforcement in similar fact patterns without invalidating the statute wholesale.
• Final Orders vs. Interlocutory Appeals:
  • Final Order (section 16‑12‑102(1)): Pretrial dismissal of one or more counts is a final, immediately appealable order.
  • Interlocutory Appeal (section 16‑12‑102(2)): Certain non‑final rulings (e.g., suppression orders) may be appealed directly to the Supreme Court before trial by specific statutory grant.
• “True Threats” and Counterman:
  • Speech qualifies as an unprotected “true threat” only if the speaker, at minimum, acted with recklessness regarding the threatening nature of the communication. The district court applied this standard; the Supreme Court did not address it on the merits here.
• Transfer vs. Dismissal:
  • If an appeal is filed in the wrong appellate court, section 13‑4‑110(2)–(3) requires transfer to the proper court. The case is deemed properly filed upon transfer; dismissal for misfiling is prohibited.
• Supreme Court’s Rule‑Interpretation Authority:
  • Under Colo. Const. art. VI, § 21, the Supreme Court may promulgate and interpret appellate rules. That authority allows it to decide where an appeal belongs and to issue a controlling interpretation even while transferring the merits elsewhere.

Conclusion

People v. Hernandez establishes a clear and administrable rule for appellate routing in Colorado criminal cases: appeals from as‑applied constitutional dismissals of criminal counts belong in the Court of Appeals under section 16‑12‑102(1) and C.A.R. 4(b)(6)(A). The Supreme Court’s direct appellate jurisdiction is triggered only when a trial court declares a statute facially unconstitutional. Misfiled appeals must be transferred, not dismissed, safeguarding parties’ appellate rights.

By clarifying the meaning of “cases in which a statute has been declared unconstitutional” in section 13‑4‑102(1)(b) and harmonizing C.A.R. 4(b)(6), the Court preserves the Court of Appeals’ central role in as‑applied constitutional adjudication and provides practitioners with a reliable roadmap for where and how to file. The decision also ensures that important First Amendment and other constitutional questions arising in individual prosecutions are developed in the Court of Appeals in the first instance, with Supreme Court review available via certiorari as appropriate. The opinion thus advances clarity, efficiency, and fairness in Colorado’s appellate process.