February 19, 2017

Colorado Court of Appeals: Lessee of Real Property Lacks Standing to Challenge Property Tax Determination

The Colorado Court of Appeals issued its opinion in Traer Creek-EXWMT LLC v. Eagle County Board of Equalization on Thursday, February 9, 2017.

Traer Creek-EXWMT (Traer) has been a lessee of property in Eagle County since 2002. Traer has reimbursed the property owner for property taxes each year since assuming the lease. On May 1, 2015, the Eagle County Assessor mailed a notice of valuation to the property owner. Traer initiated the statutory protest and adjustment process to challenge the 2015 valuation. The assessor declined to adjust the valuation, and Traer appealed to the Board, which also upheld the valuation. Traer appealed to district court.

The Board moved to dismiss under C.R.C.P. 12(b)(1) on the theory that a mere lessee does not have standing to challenge a property tax valuation of the sort issued by the assessor. The district court agreed and dismissed the case.

On appeal, Traer argued that because it “owns” a leasehold interest in the subject property, it has standing to protest the valuation. The Colorado Court of Appeals disagreed, finding that the relevant statutes convey standing only to the property owner/taxpayer. The court similarly rejected Traer’s argument that C.R.S. §§ 39-1-102(16) and (14) could be read to grant authority to a lessee to challenge a property valuation. The court concluded that the county assessor did not value Traer’s “property” — i.e., its leasehold interest — instead, the assessor valued the fee interest in the property. Therefore, Traer was not a “person” whose “property has been valued too high.”

Traer also argued it had common law standing because it pays taxes on the property and because the owner had granted it agency authority to challenge the valuation. The court noted that Traer’s argument failed at the outset because when a statute limits standing, the court may not disregard the statute by employing common law notions.

The district court judgment was affirmed.

Roberto Ramirez Appointed to 17th Judicial District Court

On Thursday, February 16, 2017, the Colorado State Judicial Branch announced the governor’s appointment of Roberto Ramirez to the Seventeenth Judicial District Court. Ramirez will fill a vacancy created by the appointment of Hon. Craig Welling to the Colorado Court of Appeals, effective January 16, 2017.

Ramirez is currently the City of Arvada’s litigation counsel and United States Air Force’s Reserve Chief Senior Prosecutor. He is also an adjunct professor at the University of Denver Sturm College of Law. For the City of Arvada, Ramirez handles all civil litigation matters for city council, city divisions and departments, and individual employees. For the United States Air Force, he has worked legal issues as an Air Force federal prosecutor, criminal defense counsel, trial consultant, or instructor in several U.S. cities and foreign countries. He received his undergraduate degree at the University of Texas, San Antonio and his law degree at South Texas College of Law, Houston.

For more information about the appointment, click here.

HB 17-1148: Expanding Registration Requirements for Industrial Hemp Cultivators

On February 2, 2017, Rep. Jeni Arndt and Sen. John Cooke introduced HB 17-1148, “Concerning Applications for Registration to Cultivate Industrial Hemp.”

Current law requires persons who wish to cultivate industrial hemp to apply to the department of agriculture for a registration. The bill adds a requirement that applicants to cultivate industrial hemp for commercial purposes provide the names of each officer, director, member, partner, or owner of 10% or more in the entity applying for registration and any person managing or controlling the entity. Applicants for a registration may be denied registration for up to 3 years if any individual or entity listed in the application was previously subject to discipline, or the individual or entity was previously listed by an entity that was subject to discipline. When a registration is suspended, revoked, or relinquished, a new application for registration may be denied for up to 3 years after the effective date of discipline.

The bill was introduced in the House and assigned to the Agriculture, Livestock, & Natural Resources Committee. It is scheduled for hearing in committee on February 13, 2017, at 1:30 p.m.

HB 17-1176: Modifying PERA Service After Retirement Provisions to Benefit Rural Areas

On February 6, 2017, Rep. Jon Becker and Sen. Jerry Sonnenberg introduced HB 17-1176, “Concerning an Extension of the Employment after Retirement Limitations for Retirees of the Public Employees’ Retirement Association Employed by a Rural School District After Retirement.”

Current law allows a service retiree of any division of the public employees’ retirement association (PERA) to work for a PERA employer for limited periods and to receive a salary without reduction in benefits under certain circumstances. Several rural school districts in the state have recently experienced a shortage of teachers, school bus drivers, and school food services cooks and would ideally address the shortages by hiring service retirees. PERA’s employment after retirement provisions, including the limitation on the number of days in a calendar year that a service retiree may work for a PERA employer without a reduction in benefits, make it difficult for school districts to fill their vacancies with retired teachers, school bus drivers, and school food services cooks.

The bill modifies the current PERA employment after retirement provisions for certain retirees hired by an employer in the school division if:

  • The employer that hires the service retiree is a rural school district as determined by the department of education based on certain criteria and the school district enrolls 6,500 students or fewer in kindergarten through 12th grade;
  • The school district hires the service retiree for the purpose of providing classroom instruction or school bus transportation to students enrolled by the district or for the purpose of being a school food services cook; and
  • The school district determines that there is a critical shortage of qualified teachers, school bus drivers, or school food services cooks, as applicable, and that the service retiree has specific experience, skills, or qualifications that would benefit the district.

A service retiree who is a teacher, a school bus driver, or a school food services cook and who is hired by an employer in the school division that satisfies the criteria above may receive salary without a reduction in benefits for any length of employment in a calendar year if the service retiree has not worked for any PERA employer during the month of the effective date of retirement.

In addition, the bill requires the employer that hires the service retiree to provide full payment of all PERA employer contributions, disbursements, and working retiree contributions.

A service retiree may not receive salary without reduction in benefits and without limitation in a calendar year for more than 6 consecutive years.

The bill was introduced in the House and assigned to the Finance and Appropriations committees.

HB 17-1142: Allowing Court Clerks to Use Electronic Notice

On February 1, 2017, Rep. Dominique Jackson and Sen. Bob Gardner introduced HB 17-1142, “Concerning Certain Court Proceedings.”

Under current law, the clerk of the court mails notice of the filing of certain petitions and the date and time of hearings on the petition to specified interested parties by registered mail. The bill changes the process so the clerk of the court may send the notice by first-class mail or electronically using the e-filing system of the judicial department.

Under current law, if a respondent in a domestic relations action cannot be personally served and is served by publication, the clerk of the court is required to post a copy of the process on a bulletin board in the clerk’s office for 35 days after the date of publication and may post the notice online on the court’s website. The bill gives the clerk the option of posting the notice online on the court’s website rather than on a bulletin board.

The bill also updates the time frame for holding certain hearings to multiples of 7 days.

The bill was introduced in the House and assigned to the Judiciary Committee. It is scheduled for hearing in committee on February 14, 2017, at 1:30 p.m.

Tenth Circuit: Unpublished Opinions, 2/16/2017

On Thursday, February 16, 2017, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Gerald H. Phipps, Inc. v. Travelers Property Casualty Co. of America

Moorer v. Fulwood

United States v. Anderson

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

HB 17-1147: Adding a Statutory Definition of the Purpose of Community Corrections

On February 2, 2017, Rep. Lang Sias and Sen. Daniel Kagan introduced HB 17-1147, “Concerning Defining the Purposes of Community Corrections Programs.”

The bill provides the purposes of community corrections programs.

The bill was introduced in the House and assigned to the Judiciary Committee.

HB 17-1146: Allowing School Employees to Dispense Over-the-Counter Medications to Students

On February 2, 2017, Rep. Patrick Neville introduced HB 17-1146, “Concerning Parents’ Rights for Children.”

The bill allows qualified, per school district policy, employees to dispense over-the-counter medications to a student if the student’s parent or legal guardian provided the school district with written general authorization to dispense such over-the-counter medications during a specified academic year. The bill grants criminal and civil immunity to such school employees if they acted with written authorization from the student’s parent or legal guardian. The same authority and immunity is granted to child care providers, including employees or relatives in nonlicensed facilities, provided the person dispensing the over-the-counter medication has written general authority for a specific time period from the child’s parent or legal guardian.

The bill allows a parent or legal guardian to opt out of the collection and storage by a local education provider of any type of data related to his or her child.

The bill was introduced in the House and assigned to the Health, Insurance, & Environment and Appropriations committees. It is scheduled for hearing in the Health, Insurance, & Environment Committee on February 23, 2017, at 1:30 p.m.

HB 17-1109: Expanding Permissible Venues for Prosecution of Child Sexual Assault Pattern Offenses

On January 20, 2017, Reps. Terri Carver & Jessie Danielson and Sens. John Cooke & Rhonda Fields introduced HB 17-1109, “Concerning Prosecuting in One Jurisdiction a Person who has Committed Sexual Assaults Against a Child in Different Jurisdictions.”

In current law, several sex-assault-on-a-child crimes are designated ‘pattern’ offenses, meaning that the defendant has a pattern of sexually assaulting the same child repeatedly. When such assaults occur in more than one jurisdiction, the district attorney in each such jurisdiction must prosecute a case for the incident that occurred in his or her jurisdiction.

The bill allows a prosecutor to charge and bring a pattern-offense case for all such assaults in any jurisdiction where one of the acts occurred. The bill allows the prosecution of a defendant charged with sex-assault-on-a-child pattern offense or sex-assault-on-a-child-in-a-position-of-trust pattern offense to be tried:

  • In a county where at least one or more of the incidents of sexual contact occurred;
  • In a county where an act in furtherance of the offense was committed; or
  • In a county where the victim resided during all or part of the offense.

The bill was introduced in the House and assigned to the Judiciary Committee. It is scheduled for hearing in committee on February 21, 2017, at 1:30 p.m.

Colorado Court of Appeals: Announcement Sheet, 2/15/2017

On Wednesday, February 15, 2017, the Colorado Court of Appeals issued no published opinion and 39 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, 2/15/2017

On Wednesday, February 15, 2017, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

McZeal v. Ocwen Loan Servicing, LLC

Dennis v. Fallin

Huggins v. Reilly

Johnson v. Berryhill

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

Application Period Open for Vacancy on El Paso County Court

On Monday, February 13, 2017, the Colorado State Judicial Branch announced a vacancy on the El Paso County Court in the Fourth Judicial District. The vacancy will be created by the retirement of Hon. Jonathan Walker, effective February 15, 2017.

Applications are now being accepted for the vacancy. Eligible applicants must be qualified electors of El Paso County and must have been admitted to practice law in Colorado for five years. Application forms are available from the State Judicial website, or from the ex officio chair of the Fourth Judicial District Nominating Commission, Justice William Hood, III. Applications must be received no later than February 27, 2017. Anyone wishing to nominate another must do so no later than February 21, 2017.

For more information about the vacancy and application process, click here.