Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 16CA210, 16CA211
Attorneys for Petitioner: Beth McCann, District Attorney,
Second Judicial District Robert M. Russel, Senior Chief
Deputy District Attorney Denver, Colorado.
Attorneys for Respondents: Killmer, Lane & Newman, LLP
David A. Lane Andrew McNulty Denver, Colorado
Attorneys for Amicus Curiae American Civil Liberties Union:
American Civil Liberties Union Foundation of Colorado Sara R.
Neel Denver, Colorado.
American Civil Liberties Union Foundation Naomi Gilens New
York, New York.
Attorney for Amicus Curiae Cato Institute: Millennial Policy
Center Joseph Greenlee Denver, Colorado.
OPINION
GABRIEL, JUSTICE.
¶1
This case, which requires us to construe Colorado's jury
tampering statute, section 18-8-609(1), C.R.S. (2019),
implicates both significant issues of individual rights to
free speech and the state's also significant interest in
ensuring the fair and orderly administration of justice.
¶2
Defendants Mark Iannicelli and Eric Brandt stood in the plaza
square adjacent to the Lindsey-Flanigan Courthouse in Denver
and asked people entering the courthouse whether they were
reporting for jury duty. If any of these people answered
affirmatively, then Iannicelli and Brandt would hand them one
or more brochures discussing the concept of jury
nullification, which the brochures defined as the process by
which a jury in a criminal case acquits the defendant
regardless of whether he or she has broken the law in
question. As a result of this conduct, the People charged
Iannicelli and Brandt with multiple counts of jury tampering
under section 18-8-609(1), which provides that a person
commits jury tampering if "with intent to influence a
juror's vote, opinion, decision, or other action in a
case, " he or she attempts "directly or indirectly
to communicate with a juror other than as a part of the
proceedings in the trial of the case."
¶3
Iannicelli and Brandt moved to dismiss these charges,
contending that section 18-8-609(1) violates the First
Amendment both on its face and as applied to them because,
among other reasons, the statute results in an
unconstitutionally overbroad restriction on free speech. The
district court ultimately granted this motion, concluding
that the jury tampering statute was unconstitutional as
applied to Iannicelli and Brandt, and the People appealed.
¶4
A division of the court of appeals affirmed the dismissal
orders, although it did so without reaching the
constitutional question. The division concluded instead that,
as properly interpreted, the jury tampering statute's
prohibitions did not cover the conduct of which Iannicelli
and Brandt were accused because that statute applies only to
(1) "attempts to improperly influence jurors or those
selected for a venire from which a jury in a particular case
will be chosen" and (2) attempts to influence such a
juror's "vote, opinion, decision, or other action in
a specifically identifiable case." People v.
Iannicelli, 2017 COA 150, ¶¶ 8, 31, __ P.3d
__.
¶5
We now must determine whether the division properly
interpreted the jury tampering statute.[1] Although we deem
too narrow the division's conclusion that the statute
prohibits only attempts to influence seated jurors or those
selected for a venire from which a jury in a particular case
will be chosen, we agree with the division that the statute
requires that a defendant's effort to influence a juror
must be directed to a specifically identifiable case. Because
the People did not charge Iannicelli and Brandt with such
conduct, we affirm the division's judgment, although our
reasoning differs in some respects from that of the division
below.
I.
Facts and Procedural History
¶6
Iannicelli and Brandt went to the Lindsey-Flanigan Courthouse
hoping to find jurors who were sitting on cases, in order to
give them information about jury nullification. The People
allege that Iannicelli and Brandt were on the plaza adjacent
to the courthouse and that they asked people entering the
courthouse whether they were jurors or potential jurors. If
any of these people answered affirmatively, then Iannicelli
and Brandt would give them one or more pamphlets concerning
jury nullification.
¶7
An organization called the Fully Informed Jury Association
produced the pamphlets that Iannicelli and Brandt
distributed. As pertinent here, the pamphlets instructed
jurors that "[j]uror nullification is your right to
refuse to enforce bad laws and bad prosecutions." The
pamphlets also contained a number of other statements and
purported advice, including, among other things, the
following:
• "Judges say the law is for them to decide.
That's not true. When you are a juror, you have the right
to decide both law and fact. American jurors have a proud
tradition of saying 'no' and 'not guilty'
when bad and corrupt laws are used against people."
• "It is the responsibility of the jury to judge
not just the facts of the case but also the law in
question."
• "When you're questioned during jury
selection, just say you don't keep track of political
issues. Show an impartial attitude. Don't let the judge
and prosecution stack the jury by removing all the thinking,
honest people!"
• "[J]udges only rarely 'fully inform'
jurors of their rights, especially their right to judge the
law itself and vote on the verdict according to
conscience."
• "The jury has the power to nullify any law . . .
. [T]he jury has the power to ignore previous rulings by the
Supreme Court and still find the defendant not guilty if they
judge the law and previous court rulings to be wrong."
• "Instructions and oaths are designed to bully
jurors and protect political power. Although it all sounds
very official, instructions and oaths are not legally
binding, or there would be no need for independent thinking
jurors like you."
• "You cannot be forced to obey a 'juror's
oath.'"
• "If the law violates any human rights, you
must vote no against that law by voting 'not
guilty.'"
¶8
A deputy district attorney observed Iannicelli and Brandt
distributing these pamphlets and reported their activity to
the police. The police arrived and arrested the two men, and
the People charged them with multiple counts of jury
tampering pursuant to section 18-8-609(1).
¶9
Iannicelli and Brandt subsequently moved to dismiss these
charges. They argued, among other things, that (1) they had
been engaging in speech protected by the First Amendment; (2)
they had been doing so on the courthouse plaza, which, they
asserted, is a designated public forum for free speech; and
(3) section 18-8-609(1) was unconstitutionally overbroad in
violation of the First Amendment. The People responded that
the First Amendment did not cover the alleged conduct and
that the State could adopt safeguards that were necessary and
proper to ensure that the administration of justice at all
stages was free from outside control and influence.
¶10
The district court ultimately granted Iannicelli and
Brandt's motion. The court initially concluded that
section 18-8-609(1) is not unconstitutional on its face
because it serves the legitimate purpose of protecting the
legal system, and particularly the jury trial process, from
corruption. The court went on to conclude, however, that
because Iannicelli and Brandt had been engaged in an activity
that constituted speech and because they were engaged in this
activity in a public place, the statute was unconstitutional
as applied to them. The court therefore dismissed the
charges.
¶11
The People appealed, and in a unanimous, published opinion, a
division of the court of appeals affirmed.
Iannicelli, ¶¶ 2, 32. In doing so, the
division did not address the question of the statute's
constitutionality. Id. at ¶ 8. Instead, the
division concluded that as properly interpreted, the
statute's terms did not proscribe Iannicelli and
Brandt's conduct. Id. at ¶¶ 8, 31.
¶12
As pertinent here, the division began by examining section
18-8-609(1)'s use of the words "juror" and
"a case, " as well as the definition of the word
"juror" found in section 18-8-601(1), C.R.S.
(2019), which includes persons who have merely been summoned
for jury duty. Id. at ¶ 13. The division
acknowledged that generally, when the legislature defines a
statutory term such as "juror, " that definition
governs unless a contrary intention plainly appears.
Id. at ¶ 14. The division perceived such a
contrary intention here, based on the language of section
18-8-609(1). Id.
¶13
Specifically, the division noted first that the statute
proscribes attempts to influence a juror in "a
case" but that "[o]ne who has merely been summoned
for jury duty is not serving in 'a case, ' and indeed
may ultimately not serve." Id. at ¶ 15. In
contrast, a person who is serving as a juror or who has been
selected for a venire from which a jury in a particular case
will be chosen is serving in "a case."
Id.
¶14
The division next pointed out that in the same sentence as
the reference to "a case, " "the General
Assembly limited prohibited communications to those
'other than as a part of the proceedings in the trial
of the case.'" Id. at ¶ 16
(quoting section 18-8-609(1)). The division explained,
"In twice using the definite article 'the, ' the
General Assembly intended to limit the statute's reach to
conduct relating to a trial of a particular case."
Id.
¶15
Lastly, the division observed that although the defendant
must intend to influence a juror's action in a case, a
person who has merely been summoned for jury duty and who
sits in a room waiting to be called is in no position to take
action in any case. Id. at ¶ 17.
¶16
Read together, the foregoing observations convinced the
division that section 18-8-609(1) limits prosecution to
attempts to influence persons who have been chosen as jurors
or who have been selected as part of a venire from which a
jury in a particular case will be chosen. Id. at
¶ 24. Even if the statute could be said to be ambiguous,
however, the division opined that the result would be the
same. Id. at ¶¶ 25, 30. In the
division's view, were a court to construe the statute as
applying to communications with summoned jurors about matters
unrelated to a particular case, "there [would be] a real
danger the statute could encroach on a substantial amount of
protected speech." Id. at ¶ 25. Under
settled principles of statutory construction, the division
construed the statute as it did to avoid that result.
Id. at ¶¶ 25, 30.
¶17
The People then petitioned for certiorari, and we granted
their petition.
II.
Analysis
¶18
We begin by discussing the applicable standard of review. We
then consider the language of sections 18-8-601 and 18-8-609,
and although we agree with the People that the division's
construction of the term "juror" was too narrow, we
ultimately agree with the division's conclusion that the
statute's reach is limited to those who attempt to
influence a juror in a specific, identifiable case. Because
the People did not charge Iannicelli and Brandt with having
done so, we conclude that the trial court properly dismissed
the charges at issue.
A.
Standard of Review
¶19
We review issues of statutory interpretation de novo.
Doubleday v. People, 2016 CO 3, ¶ 19, 364 P.3d
193, 196. In construing a statute, our primary purpose is to
ascertain and give effect to the legislature's intent.
Id. To do so, we look first to the language of the
statute, giving its words and phrases their plain and
ordinary meanings. Id. We read statutory words and
phrases in context, and we construe them according to the
rules of grammar and common usage. Id.
¶20
We must also endeavor to effectuate the purpose of the
legislative scheme. Id. at ¶ 20, 364 P.3d at
196. In doing so, we read that scheme as a whole, giving
consistent, harmonious, and sensible effect to all of its
parts. Id. We must avoid constructions that would
render ...