Jurisdictional Rule for Appeals from As-Applied Constitutional Dismissals: Supreme Court Transfers to Court of Appeals

Introduction

This commentary examines the Colorado Supreme Court’s decision in The People of the State of Colorado v. Ashley Hernandez (2025 CO 13), focusing on the jurisdictional principles governing prosecutorial appeals from criminal counts dismissed on as-applied constitutional grounds. In this case, the People of the State of Colorado appealed the district court’s order dismissing a retaliation charge under Colo. Rev. Stat. § 18-8-615(1) as unconstitutional as applied to defendant Ashley Hernandez’s speech. Before reaching the merits of the First Amendment challenge, the Supreme Court addressed whether the appeal was properly filed in that court or should have been filed in the court of appeals.

Summary of the Judgment

The Colorado Supreme Court, sitting en banc, concluded that:

An order dismissing one or more criminal counts on as-applied constitutional grounds is a final appealable order under § 16-12-102(1), C.R.S., but must be filed in the court of appeals pursuant to C.A.R. 4(b)(6)(A).
Rule 4(b)(6)(B), which refers to Supreme Court appeals when a statute is declared unconstitutional, applies only to facial challenges, not to as-applied dismissals.
An appeal erroneously filed in the Supreme Court does not warrant dismissal; instead, it must be transferred to the proper tribunal under § 13-4-110(2)–(3), C.R.S.
Accordingly, the Supreme Court transferred jurisdiction of the appeal to the Colorado Court of Appeals without deciding the underlying First Amendment issue.

Analysis

Precedents Cited

Counterman v. Colorado, 600 U.S. 66 (2023): Defined the mens rea standard for true‐threat claims under the First Amendment and guided the district court’s evaluation of whether defendant’s speech was protected.
People v. Steen, 2014 CO 9: Affirmed the Supreme Court’s authority to interpret appellate rules and statutes.
Keystone, a Div. of Ralston Purina Co. v. Flynn, 769 P.2d 484 (Colo. 1989): Established that courts have the power to determine their own jurisdiction.
Well Augmentation Subdistrict v. City of Aurora, 221 P.3d 399 (Colo. 2009): Applied the rule of statutory inclusion and exclusion to deduce legislative intent.
People v. Lee, 2019 COA 130: Demonstrated that the court of appeals routinely decides as-applied constitutional challenges.
Bucklew v. Precythe, 587 U.S. 119 (2019): Provided the definition of a facial challenge (“unconstitutional in all its applications”).
Developmental Pathways v. Ritter, 178 P.3d 524 (Colo. 2008) & Sanger v. Dennis, 148 P.3d 404 (Colo. App. 2006): Contrasted facial and as-applied constitutional challenges in Colorado jurisprudence.

Legal Reasoning

The Court’s reasoning proceeded in three steps:

Statutory Interpretation of § 16-12-102(1) vs. § 16-12-102(2): Subsection (1) authorizes prosecutorial appeals from final orders dismissing counts for any question of law but does not specify filing in the Supreme Court, whereas subsection (2) expressly authorizes interlocutory appeals in the Supreme Court. The omission in (1) implied that appeals under that provision belong in the court of appeals by default jurisdictional scheme (§ 13-4-102(1), C.R.S.).
Appellate Rule 4(b)(6): Rule 4(b)(6)(A) governs appeals authorized by statute unless otherwise provided, requiring filing in the court of appeals. Rule 4(b)(6)(B) addresses partial dismissals or declarations of unconstitutionality—but its reference to “statute… declared unconstitutional” aligns with § 13-4-102(1)(b), which excludes facial challenges from the court of appeals’ jurisdiction. The Court held this exception inapplicable to as-applied rulings.
Transfer Remedy for Erroneous Filing: Under § 13-4-110(2)–(3), appeals filed in the wrong court are not dismissed but transferred to the proper court, ensuring cases are heard on the merits rather than on technical jurisdictional defects.

Impact

This decision clarifies and cements several jurisdictional principles:

Prosecutors appealing dismissals on as-applied constitutional grounds must file in the court of appeals, preserving docket clarity and reducing forum disputes.
Rules and statutes distinguishing “facial” from “as-applied” challenges are given concrete effect in appellate venue decisions.
Erroneous filings will no longer lead to dismissals, thus safeguarding appellate review of constitutional issues on their merits.
Lower courts and practitioners must carefully identify the nature of a constitutional challenge when charting appellate strategy.

Complex Concepts Simplified

Facial vs. As-Applied Challenges: A facial challenge asserts that a law is invalid in every possible circumstance, whereas an as-applied challenge claims it is unconstitutional only in the specific context of a party’s conduct.
Final vs. Interlocutory Appeal: A final appeal follows a final judgment or dismissal of all counts; an interlocutory appeal addresses specific pretrial rulings before the case concludes.
Statutory Construction: When a statute includes a provision in one subsection but omits it from another, the omission is presumed intentional (expressio unius est exclusio alterius).
Transfer vs. Dismissal: Colorado law favors transferring appeals filed in the wrong court over outright dismissal, promoting substantive review and judicial efficiency.

Conclusion

The People v. Hernandez establishes a clear jurisdictional framework: appeals from district court dismissals on as-applied constitutional grounds belong in the court of appeals, not the Supreme Court, and erroneous filings must be transferred rather than dismissed. By distinguishing facial and as-applied challenges and applying longstanding principles of statutory interpretation and appellate procedure, the Court ensures that prosecutorial appeals are routed properly and that constitutional issues receive their intended judicial scrutiny.