November 18, 2017

Archives for October 27, 2017

Colorado Court of Appeals: Trial Court Must Make Inquiry Into Whether Indian Child Welfare Act Applies in Dependency and Neglect Proceeding

The Colorado Court of Appeals issued its opinion in People in Interest of C.A. on Thursday, October 19, 2017.

Dependency and Neglect—Termination of Parental Rights—Indian Child Welfare Act Inquiry Provisions.

The Montrose Department of Health and Human Services (Department) initiated a dependency and neglect petition on behalf of C.A. At the initial hearing, the trial court asked the parties generally if the child was a Native American and if the child had any Native American heritage. Father said he did not, and mother offered no response. Father and mother were not represented by counsel at this time. The Department ultimately moved to terminate mother’s and father’s parental rights. The Department’s motion did not state the efforts the Department made to determine if C.A. is an Indian child and the trial court did not inquire on the record whether the child is an Indian child. Following a contested hearing, the trial court terminated parental rights and determined that the child was not subject to the Indian Child Welfare Act (ICWA).

On appeal, mother contended that the trial court did not comply with the ICWA’s inquiry provisions. The Colorado Court of Appeals concluded that when a trial court inquires at an initial temporary custody hearing at the commencement of a dependency and neglect proceeding whether there is a reason to know that a child is an Indian child, it must make another inquiry when termination is sought, at least when the court has not already identified the child as an Indian child and the petitioning party has not disclosed what efforts it has made to determine if the child is an Indian child.

Because the record did not show that the trial court made the proper inquiry at the termination proceeding, the case was remanded for the limited purpose of making the ICWA inquiry. The trial court was further directed to make appropriate findings and proceed accordingly with any actions necessary to comply with ICWA. In addition, court of appeals gave the parties detailed directions to take further actions, based on the trial court’s determination, within a specified timeframe.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Hunting and Fishing Club, Not Individual Members, is True Landowner and Bears Tax Burden

The Colorado Court of Appeals issue its opinion in HDH Partnership v. Hinsdale County Board of Equalization on Thursday, October 19, 2017.

Taxation of Hunting and Fishing Memberships—County Assessment—Real Property Taxes.

Owners of fishing and hunting memberships (petitioners) were taxed on the parcels of real estate allocated to them in their membership agreements. The parcels are part of a larger tract of land used as a hunting and fishing club (club). Membership in the club is granted to those who hold a deed to one of the parcels that collectively comprise the club grounds. Members cannot make improvements on their parcels or exclude other club members. The club retains control over the grounds and grants all members equal access, regardless of the parcel to which they hold title. A member’s right to access the grounds can be revoked if the member owes money or violates club rules.

Petitioners initiated this action after they disagreed with the county’s assessment of their parcels. The Hinsdale County Board of Equalization (BOE) affirmed the assessor’s valuation. Petitioners appealed to the Board of Assessment Appeals (BAA), which affirmed the BOE’s decision.

On appeal, petitioners argued that the law permits the court to look beyond the title to the substance of the parties’ rights when determining ownership. The Colorado Court of Appeals concluded that the club was the true property owner because it enjoyed the most significant incidents of ownership. The members effectively had a license to use club grounds, even though they held bare legal title to the parcels. Therefore it was the club, and not the members, that had to bear the real property tax burden. Further, the BAA erred in affirming the assessor’s valuation because it was based on the personal property value of petitioners’ licenses to use club grounds rather than the value of the parcels as real property.

The order was reversed and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: C.R.C.P. 106 Time Limit for Filing is Constitutional As Applied

The Colorado Court of Appeals issued its opinion in Adams v. Sagee on Thursday, October 19, 2017.

Citizen Right of Initiative—Filing Deadline.

Plaintiffs petitioned to present a ballot initiative to the residents of Sheridan. Sheridan’s City Clerk, Sagee, rejected some of the signatures plaintiffs had collected, leaving them short of the number required for the initiative to be considered. Plaintiffs contested the decision, and the City Clerk upheld it after a protest hearing. Plaintiffs filed a complaint in district court 35 days later pursuant to C.R.S. § 31-11-110(3). The district court dismissed the case for lack of subject matter jurisdiction because plaintiffs failed to file within the C.R.C.P. 106 28-day time limit.

On appeal, plaintiffs conceded that the 28-day jurisdictional bar applied and they filed 35 days after the relevant final decision. They argued that strict application of the time limit to them as pro se parties deprived them of their constitutional right of initiative. The Colorado Court of Appeals construed plaintiffs’ argument to be an as-applied challenge to the constitutionality of the statutory time bar. The court found plaintiffs pro se status irrelevant; pro se parties must comply with procedural rules to the same extent as parties represented by attorneys. The court concluded that applying C.R.C.P. 106(b)’s jurisdictional deadline to plaintiffs’ Rule 106(a)(4) petition does not deprive them of or unduly burden their constitutional right of initiative.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 10/26/2017

On Thursday, October 26, 2017, the Colorado Court of Appeals issued no published opinion and 17 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Unpublished Opinions, 10/26/2017

On Thursday, October 26, 2017, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

Gadd v. Campbell

Ellis v. Oliver

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.