November 22, 2017

Colorado Court of Appeals: Expert Witness Need Not Recite Exact Statutory Language for ICWA Finding

The Colorado Court of Appeals issued its opinion in People in Interest of D.B. on Thursday, November 2, 2017.

Dependency and Neglect—Indian Child Welfare Act—Termination—Expert Witness—Hearsay.

This dependency and neglect proceeding was governed by the Indian Child Welfare Act (ICWA). Mother’s parental rights were terminated after the trial court determined that continued custody of the child by one of the parents would likely result in serious emotional or physical damage to the child due to the parents’ extensive substance abuse, extensive domestic violence, lack of housing, and lack of income to meet the child’s needs.

On appeal, mother contended that the trial court erred in terminating her parental rights without testimony from a qualified expert witness that her continued custody of the child would likely result in serious emotional or physical damage to the child, as required by the ICWA. The ICWA provides that a court may only terminate parental rights if it determines that there is proof beyond a reasonable doubt that the child is likely to suffer serious emotional or physical damage if the child remains in the parent’s care. Such determination must be supported by evidence that includes testimony from qualified expert witnesses. The statute does not mandate, however, that an expert witness specifically opine that the child is likely to suffer emotional or physical damage in the parent’s custody. Rather, the expert testimony must constitute some of the evidence that supports the court’s finding of the likelihood of serious emotional or physical damage to the child. Here, although the expert witness’s testimony did not track the ICWA language, the record as a whole contains sufficient evidence, including testimony from a qualified expert witness, to support the trial court’s determination that the child would likely suffer serious emotional or physical damage if placed in mother’s care.

Mother also contended that the trial court erred in relying on inadmissible hearsay statements in the termination report to conclude that she had failed to maintain sobriety and that the child would thus likely suffer serious emotional or physical damage if he remained in her custody. The trial court, however, had access to other admissible evidence to support its determination that mother had failed to maintain sobriety. Further, this was not the sole basis to terminate mother’s parental rights.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

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.

Tenth Circuit: Jurisdiction Over Crimes Committed in Indian Country is Properly Under the Federal Government

The Tenth Circuit of Appeals issued its opinion in Murphy v. Royal on Tuesday, August 8, 2017.

Petitioner-Appellant Murphy challenged the jurisdiction of the Oklahoma state court in which he was convicted of murder and sentenced to death. He contended he should have been tried in federal court because he is an Indian and the offense occurred in Indian country. The Tenth Circuit Court of Appeals agreed and remanded to the district court to issue a writ of habeas corpus vacating his conviction and sentence.

The Tenth Circuit addressed four issues in determining whether the state court had jurisdiction: (1) federal habeas corpus review; (2) Indian county jurisdiction generally; (3) Indian reservations; and (4) how a reservation can be disestablished or diminished.

The court found that Murphy’s crime occurred on the Indian Reservation, and therefore, the Oklahoma court lacked jurisdiction. The court reviewed the Antiterrorism and Effective Death Penalty Act (AEDPA). Section 2254(d) provides three ways to overcome AEDPA deference. The court focused on §2254(d)(1), which states that a state prisoner can qualify for habeas relief by showing a state court decision was “contrary to” federal law that was clearly established by the Supreme Court.

When a state court adjudicates a prisoner’s federal claim on the merits, review under § 2254(d)(1)’s contrary to clause proceeds in three steps: (1) whether there is clearly established federal law that applies to the claim; (2) whether the state court’s decision was contrary to that law; and (3) if the state court rendered a decision that was contrary to clearly established Supreme Court precedent by applying the wrong legal test, applying the correct law. The Circuit assumed that AEDPA supplied the standard of review, therefore the substantive law governing Indian country jurisdiction applies to these claims.

The Major Crimes Act is the jurisdictional statute at the heart of this case and applies to enumerated crimes committed by Indians in Indian country. The jurisdiction is exclusively federal, meaning the State of Oklahoma does not have jurisdiction over crimes committed by or against an Indian in Indian Country.

Congress has provided that “Indian Country” includes all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation. Therefore, all lands within the boundaries of a reservation have Indian country status.

Only Congress can disestablish or diminish a reservation. As Congress possesses plenary power over Indian affairs, including the power to modify or eliminate tribal rights, Congress also has the power to eliminate or reduce a reservation against a tribe’s wishes and without consent. Having recognized this power, the Supreme Court has developed a framework to determine whether Congress has exercised its power with respect to a given reservation.

First, there is a presumption against disestablishment and diminishment, and courts do not lightly infer that Congress has exercised this power. The Supreme Court has required that the congressional determination to terminate be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history.

Next is Congress’s pursuit of a policy called allotment and its relationship to reservation borders. Congress has historically adopted the view that the Indians tribes should abandon their nomadic lives on the communal reservations and settle into an agrarian economy on privately-owned parcels of land. This policy involved Congress dividing, or “allotting,” communal Indian lands into individualized parcels for private ownership by tribal members. Allotment on its own, however, does not disestablish or diminish a reservation, but may alter the boundaries of some reservations.

To distinguish congressional acts that changed a reservation’s borders from those that simply offered non-Indians the opportunity to purchase land within established reservation boundaries, the Supreme Court has developed a three-part framework:

  1. Courts must examine the text of the statute purportedly disestablishing or diminishing the reservation. No particular form of words, however, is necessary to diminish a reservation.
  2. Courts must consider events surrounding the passage of the statute. Courts have found that Congress altered the borders if evidence at step two unequivocally reveals a widely-held understanding that the affected reservation would shrink as a result of the proposed legislation.
  3. Courts must consider events that occurred after the passage of the statute. Evidence to be considered can include Congress’s own treatment of the affected areas, as well as the manner in which the Bureau of Indian Affairs and local judicial authorities dealt with unallotted open lands.

The Tenth Circuit applied the three-part framework described above and concluded that Congress did not disestablish the Reservation at issue in this case. The court found that the most important evidence, the statutory text, failed to reveal disestablishment at step one. Instead, the relevant statutes contain language affirmatively recognizing the Reservation’s borders. The evidence of contemporaneous understanding and later history, which was considered at steps two and three, is mixed and falls far short of unequivocally revealing a congressional intent to disestablish. Because the application of the framework shows Congress has not disestablished the Reservation, the crime in this case occurred within the Reservation’s boundaries. The State of Oklahoma accordingly lacked jurisdiction to prosecute Murphy.

After applying the three-part framework, the court concluded that Congress has not disestablished the Indian Reservation at issue in this case. The crime in this case occurred in Indian country, Murphy is an Indian, and the federal court has exclusive jurisdiction, not Oklahoma. Murphy’s state conviction and death sentence are thus invalid. The decision whether to prosecute Murphy in federal court rests with the United States and decisions about the borders of the Indian Reservation remain with Congress.

The Tenth Circuit Court of Appeals REVERSED the district court’s judgement and REMANDED with instructions to grant Murphy’s application for writ of habeas corpus.

Tenth Circuit: Sexual Assault Victim’s Prior Mental Health History Not Even Marginally Relevant to Assault at Issue

The Tenth Circuit Court of Appeals issued its opinion in United States v. John on February 27, 2017.

Defendant and the victim were related. At trial, the victim testified to the following facts: The victim was in the shower when Defendant showed up at her house. He started undressing in front of the shower door while the victim was still in the shower. Defendant moved towards the victim and the victim struggled to get away. Defendant pulled the towel away from the victim and pushed her head toward his “private parts.” The victim was able to get away from Defendant and grabbed a blanket before running outside. When outside, the victim called the police. Officers arrived after Defendant had left. The officers found the shower door tilted and the bathroom trashcan turned over. No forensic testing occurred. Defendant was convicted on one count of attempted aggravated sexual abuse in Indian country and one count of abusive sexual contact in Indian county after a jury trial.

At trial, Defendant wanted to cross-examine the victim about an incident that occurred in Phoenix. The district court did not allow the line of questioning and the Defendant challenged the courts ruling on appeal claiming it violated his Confrontation Clause rights under the Sixth Amendment and his right to present a complete defense under the Fifth and Sixth Amendments.

The Tenth Circuit summarized the facts of the Phoenix incident that it obtained from police reports. The victim had visited her sister in Phoenix. She alleged that her sister pressured her to drink. After the two argued, the victim tried to cut her writs. She was then taken to the hospital where she was transferred to an inpatient behavioral-health unit after telling the staff that she had been having suicidal thoughts for two years. During intake, she denied using any illicit substances, even though she told emergency staff that she used marijuana. The intake staff determined she had a mood disorder, but she was discharged without any medication needed. The victim’s sister denied to police that she gave the victim alcohol or coerced her to drink. Because the police could not determine how the victim got the alcohol, they closed the case.

On appeal, the Defendant argued that the Phoenix incident showed that the victim would falsely accuse him of sexual assault given her poorly controlled behavior and drug use revealed by the incident. It also would show her propensity to lie and accuse family members. These facts could have led the jury to draw “vital inferences” in his favor.

The Tenth Circuit held that because the Defendant only argued at trial that the Phoenix incident would show that the victim had an impaired ability to perceive events, and not the reasons given on appeal, Defendant was precluded from arguing such reasons on appeal. In fact, the Tenth Circuit points to the fact that Defendant’s counsel rejected the possibility of using the Phoenix incident for the reasons stated on appeal, which the Tenth Circuit held was an “intentional relinquishment or abandonment of a known right.”

The Tenth Circuit held that Defendant’s Sixth Amendment right to confrontation was not violated because that right is not unlimited. The Supreme Court has held that trial judges retain wide latitude to impose reasonable limits on cross-examination based on concerns about harassment, prejudice, and confusion of the issues. The Tenth Circuit held that the Phoenix incident was not even marginally relevant to the victim’s ability to remember or relate the shower incident. It would not show that the victim was on drugs at the time of the shower incident. Therefore, the Tenth Circuit held that no lay person could draw those inferences.

Next, the Tenth Circuit addressed the Defendant’s challenges to three jury instructs concerning the assessment of evidence.

The first challenged instruction stated: “The testimony of the complaining witness need not be corroborated if the jury believes the complaining witness beyond a reasonable doubt.” Defendant argued that the instruction did no accurately reflect the government’s burden of proving each element of the charged offenses beyond a reasonable doubt. The Tenth Circuit held that the district court did not abuse its discretion by giving this instruction because it properly informed the jury that it could convict on the basis of the testimony of a single witness, only if they believed that witness. Further, another instruction told the jurors that they could not convict unless they found each element of each offense beyond reasonable doubt.

The second challenged instruction stated: “An attorney has the right to interview a witness for the purpose of learning what testimony the witness will give. The fact that a witness has talked to an attorney does not reflect adversely to the truth of such testimony.” Defendant argued that this instruction insulated from the jury’s scrutiny the cross-examination of the victim about being improperly influenced by the prosecutor. The Tenth Circuit held that the district court did not abuse its discretion by giving this instruction because it did not prevent defense counsel from making a commonsense suggestion that inappropriate coaching influenced the witness, which the counsel actually made.

The final challenged instruction stated: “You may infer, but you are certainly not required to infer, that a person intends the natural and probably consequences of acts knowingly done or knowingly omitted.” Defendant argues that this instruction was ambiguous, because it was not stated which element the instruction was meant to modify, and that it was confusing because it created uncertainty as to the requisite level of intent. The Tenth Circuit held that the district court did not abuse its discretion by issuing this instruction because the court made clear to the jury that the burden was on the government to prove the requisite intent beyond a reasonable doubt.

Finally, the Tenth Circuit held that the district court did not err in declining to instruct the jury that it could consider the lesser-included charge of simple assault, rather than just the charges of attempted aggravated sexual abuse and abusive sexual contact. The district court held that there was no evidence that the encounter was anything but sexual. The Tenth Circuit affirmed this decision holding that the jury could reasonably have found that the alleged incident did not occur, but that there was no reasonable grounds for believing that Defendant assaulted the victim but with no sexual intent.

The Tenth Circuit affirmed the district court’s judgment.

Tenth Circuit: No Sixth Amendment Violation where Court Disallowed Questioning Regarding Victim’s Mental Health

The Tenth Circuit Court of Appeals issued its opinion in United States v. John on February 27, 2017.

Defendant and the victim were related. At trial, the victim testified to the following facts: The victim was in the shower when Defendant showed up at her house. He started undressing in front of the shower door while the victim was still in the shower. Defendant moved towards the victim and the victim struggled to get away. Defendant pulled the towel away from the victim and pushed her head toward his “private parts.” The victim was able to get away from Defendant and grabbed a blanket before running outside. When outside, the victim called the police. Officers arrived after Defendant had left. The officers found the shower door tilted and the bathroom trashcan turned over. No forensic testing occurred. Defendant was convicted after a jury trial of one count of attempted aggravated sexual abuse in Indian country and one count of abusive sexual contact in Indian county.

At trial, Defendant wanted to cross-examine the victim about an incident that occurred in Phoenix. The district court did not allow the line of questioning and the Defendant challenged the courts ruling on appeal claiming it violated his Confrontation Clause rights under the Sixth Amendment and his right to present a complete defense under the Fifth and Sixth Amendments.

The Tenth Circuit summarized the facts of the Phoenix incident that it obtained from police reports. The victim had visited her sister in Phoenix. She alleged that her sister pressured her to drink. After the two argued, the victim tried to cut her writs. She was then taken to the hospital where she was transferred to an inpatient behavioral-health unit after telling the staff that she had been having suicidal thoughts for two years. During intake, she denied using any illicit substances, even though she told emergency staff that she used marijuana. The intake staff determined she had a mood disorder, but she was discharged without any medication needed. The victim’s sister denied to police that she gave the victim alcohol or coerced her to drink. Because the police could not determine how the victim got the alcohol, they closed the case.

On appeal, the Defendant argued that the Phoenix incident showed that the victim would falsely accuse him of sexual assault given her poorly controlled behavior and drug use revealed by the incident. It also would show her propensity to lie and accuse family members. These facts could have led the jury to draw “vital inferences” in his favor.

The Tenth Circuit held that because the Defendant only argued at trial that the Phoenix incident would show that the victim had an impaired ability to perceive events, and not the reasons given on appeal, Defendant was precluded from arguing such reasons on appeal. In fact, the Tenth Circuit points to the fact that Defendant’s counsel rejected the possibility of using the Phoenix incident for the reasons stated on appeal, which the Tenth Circuit held was an “intentional relinquishment or abandonment of a known right.”

The Tenth Circuit held that Defendant’s Sixth Amendment right to confrontation was not violated because that right is not unlimited. The Supreme Court has held that trial judges retain wide latitude to impose reasonable limits on cross-examination based on concerns about harassment, prejudice, and confusion of the issues. The Tenth Circuit held that the Phoenix incident was not even marginally relevant to the victim’s ability to remember or relate the shower incident. It would not show that the victim was on drugs at the time of the shower incident. Therefore, the Tenth Circuit held that no lay person could draw those inferences.

Next, the Tenth Circuit addressed the Defendant’s challenges to three jury instructs concerning the assessment of evidence.

The first challenged instruction stated: “The testimony of the complaining witness need not be corroborated if the jury believes the complaining witness beyond a reasonable doubt.” Defendant argued that the instruction did no accurately reflect the government’s burden of proving each element of the charged offenses beyond a reasonable doubt. The Tenth Circuit held that the district court did not abuse its discretion by giving this instruction because it properly informed the jury that it could convict on the basis of the testimony of a single witness, only if they believed that witness. Further, another instruction told the jurors that they could not convict unless they found each element of each offense beyond reasonable doubt.

The second challenged instruction stated: “ An attorney has the right to interview a witness for the purpose of learning what testimony the witness will give. The fact that a witness has talked to an attorney does not reflect adversely to the truth of such testimony.” Defendant argued that this instruction insulated from the jury’s scrutiny the cross-examination of the victim about being improperly influenced by the prosecutor. The Tenth Circuit held that the district court did not abuse its discretion by giving this instruction because it did not prevent defense counsel from making a commonsense suggestion that inappropriate coaching influenced the witness, which the counsel actually made.

The final challenged instruction stated: “You may infer, but you are certainly not required to infer, that a person intends the natural and probably consequences of acts knowingly done or knowingly omitted.” Defendant argues that this instruction was ambiguous, because it was not stated which element the instruction was meant to modify, and that it was confusing because it created uncertainty as to the requisite level of intent. The Tenth Circuit held that the district court did not abuse its discretion by issuing this instruction because the court made clear to the jury that the burden was on the government to prove the requisite intent beyond a reasonable doubt.

Finally, the Tenth Circuit held that the district court did not err in declining to instruct the jury that it could consider the lesser-included charge of simple assault, rather than just the charges of attempted aggravated sexual abuse and abusive sexual contact. The district court held that there was no evidence that the encounter was anything but sexual. The Tent Circuit affirmed this decision holding that the jury could reasonably have found that the alleged incident did not occur, but that there was no reasonable grounds for believing that Defendant assaulted the victim but with no sexual intent.

The Tenth Circuit affirmed the district court’s judgment.

Colorado Court of Appeals: Department of Human Services Must Make “Continuing Inquiries” About ICWA Status

The Colorado Court of Appeals issued its opinion in People in Interest of A.D. on Thursday, May 4, 2017.

Termination of Parental RightsIndian Child Welfare Act of 1978Continuing Inquiries.

In 2013, the Chaffee County Department of Social Services (Department) initiated a dependency and neglect proceeding involving Tr.D. Respondents denied the child was a member or eligible for membership in an Indian tribe, and the Department represented it had determined the child was not an Indian child. The petition was later withdrawn and the case closed.

In 2015, the Department initiated another dependency and neglect proceeding concerning Tr.D. and 6-month-old A.D. after mother and father were arrested on drug charges. The children were placed in foster care and adjudicated dependent and neglected. Treatment plans were developed for both parents, but neither could overcome their addictions. The Department ultimately filed a petition to terminate parental rights and stated that the children were not Indian children. No evidence concerning the Indian Child Welfare Act (ICWA) was elicited at the termination hearing. The trial court terminated parental rights and found the provisions of the ICWA did not apply.

On appeal, mother argued that the record failed to support the court’s ICWA finding because no questions were asked about possible Indian heritage during the proceedings and therefore the Department didn’t meet its “continuing inquiry” duty under the ICWA. The Department argued that the ICWA issue was resolved in the prior case and the trial court satisfied the ICWA requirements in this case because it took judicial notice of its ICWA finding in the previous case. The Department reasoned that because A.D. is a full sibling of Tr.D., the court’s previous finding as to Tr.D. must also apply to her. The ICWA required the Department to conduct new inquiries to determine whether the children were Indian children. Because there was no evidence in the record of such inquiries, further proceedings were required.

Because the ICWA inquiry may result in the court determining that the children are not Indian children, the court of appeals addressed the other issues raised on appeal. Mother argued that the grounds for terminating her parental rights were not established by clear and convincing evidence. Based on the record before it, the court disagreed. Father argued that the record did not support the finding that reasonable efforts were made to avoid the removal of the children from their home and to promote reunification of the family. Specifically, father argued that a dispute over venue delayed his ability to participate in a drug program, averring that reasonable efforts required not just providing services, but providing services “at the right time.” The court determined that father waived his right to raise this issue when he expressly agreed to hold the motion to change venue in abeyance and therefore failed to seek a ruling from the court.

The judgment was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Bills Signed Regarding Amending State Constitution, Revising Victim Rights Laws, and More

On Friday, April 28, 2017, the governor signed 29 bills into law and vetoed one bill. To date, he has signed 195 bills and vetoed one bill this legislative session. Some of the bills signed Friday include a bill to implement voter-approved changes to make it more difficult to amend the state constitution, a bill changing reporting requirements from the State Judicial Department to the General Assembly, a bill revising victim rights laws, a bill mandating minimum sentences for persons convicted of sex trafficking, and more. The bills signed Friday are summarized here.

  • HB 17-1158“Concerning the Regulation of Charitable Solicitations by the Secretary of State, and, in Connection Therewith, Modifying and Clarifying Filing Requirements and Enforcement of the ‘Colorado Charitable Solicitations Act,’ by Rep. Hugh McKean and Sens. Beth Martinez Humenik & Jim Smallwood. The bill clarifies that a charitable organization’s registration with the secretary of state must be renewed on an annual basis if the charitable organization intends to solicit donations in Colorado, and an organization may not continue to solicit if it fails to renew its registration. The bill also requires an organization to update information in its registration within 30 days after any change.
  • HB 17-1172“Concerning Criminal Penalties for Persons who Commit Human Trafficking of a Minor for Sexual Servitude,” by Reps. Terri Carver & Clarice Navarro and Sen. John Cooke. The bill requires a court to sentence a person convicted of a class 2 felony for human trafficking of a minor for sexual servitude to the Department of Corrections for a term of at least 8 years.
  • HB 17-1189“Concerning the Limit on the Number of Terms a Member of the Colorado Wine Industry Development Board may Serve,” by Reps. Jessie Danielson & Dan Thurlow and Sen. Ray Scott. The bill allows a member of the Colorado Wine Industry Development Board to serve two full 4-year terms insteat of one. Members may also continue to serve after the expiration of their terms until the appointment of a successor.
  • HB 17-1205“Concerning Changing the Definition of ‘Salvage Vehicle,’ by Rep. Jovan Melton and Sen. Beth Martinez Humenik. The bill changes the definition of ‘salvage vehicle’ to add another test of when an insurer determines the vehicle to be a total loss. The bill also adds theft damage as an exclusion to the types of damage that can cause a vehicle to be a salvage vehicle.
  • HB 17-1218“Concerning an Expansion of the State’s Ability to Share Information about State Financial Institutions with Other Governmental Regulators,” by Rep. Alec Garnett and Sen. Kevin Priola. The bill allows the banking board and the state bank commissioner to share records and other information about banks, trust companies, and money transmitters with banking or financial institution regulatory agencies of other states or United States territories if the governmental agency is required to maintain the confidentiality of the records and shares similar information with the division of banking.
  • HB 17-1241: “Concerning the Nonsubstantive Relocation of Laws Related to Indian Arts and Crafts Sales from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Rep. Leslie Herod and Sen. Bob Gardner. The bill relocates Article 44.5 of Title 12, which imposes requirements and penalties pertaining to the sale or offering for sale of authentic Indian and other arts and crafts, to a new Part 2 in Article 15 of Title 6 of the Colorado Revised Statutes, governing consumer and commercial affairs.
  • HB 17-1272“Concerning the Scheduled Repeal of Reports by the Department of Labor and Employment to the General Assembly,” by Rep. Edie Hooten and Sen. Dominick Moreno. The bill amends repeal dates and reporting requirements from the Department of Labor and Employment to the General Assembly.
  • HB 17-1316“Concerning Delaying the Implementation of House Bill 16-1309,” by Rep. Susan Lontine and Sen. Vicki Marble. The bill delays the implementation of HB 16-1309, which was enacted by the 2016 General Assembly and concerns a defendant’s right to counsel in certain cases considered by municipal courts, until July 1, 2018.
  • SB 17-051“Concerning the Rights of Crime Victims,” by Sens. Bob Gardner & Rhonda Fields and Reps. Polly Lawrence & Mike Foote. The bill makes several amendments to victim rights statutes, including amendments to the definitions of “crime,” “critical stages,” and “modification of sentence”; creation of a right for a victim to be informed of parole or pardon decisions; and more.
  • SB 17-083: “Concerning Implementation of Recommendations of the Committee on Legal Services in Connection with Legislative Review of Rules and Regulations of State Agencies,” by Sen. Daniel Kagan and Rep. Mike Foote. The bill extends all state agency rules and regulations that were adopted or amended on or after November 1, 2015, and before November 1, 2016, with the exception of the rules and regulations specifically listed in the bill.
  • SB 17-152“Concerning the Implementation of Voter-Approved Changes to the Colorado Constitution that Make it More Difficult to Amend the State Constitution, and, in Connection Therewith, Prohibiting a Petition for an Initiated Amendment to the State Constitution from Being Submitted to Voters Unless the Petition is Signed by the Constitutionally Required Number of Registered Electors who Reside in Each State Senate District and Total Number of Registered Electors, Requiring at Least Fifty-Five Percent of the Votes Cast on Any Amendment to the State Constitution to Adopt the Amendment Unless the Amendment Only Repeals in Whole or in Part a Provision of the State Constitution, in Which Case Requiring a Majority of the Votes Cast on the Amendment to Adopt the Amendment, and Making an Appropriation,” by Sen. Lois Court and Rep. Chris Kennedy. The bill implements changes to the Colorado constitution approved by voters at the 2016 general election that make it more difficult to amend the state constitution.
  • SB 17-179“Concerning the Limitation on the Amount of Fees that Can be Assessed for Allowing Solar Energy Device Installations, and, in Connection Therewith, Extending the Repeal Date,” by Sens. Andy Kerr & Bob Gardner and Reps. Lang Sias & Leslie Herod. The bill extends the repeal date of existing laws that limit the amount of permit, plan review, or other fees that counties, municipalities, or the state may charge for installing solar energy devices or systems.
  • SB 17-220“Concerning the Continuation of the Restorative Justice Coordinating Council,” by Sen. Lois Court and Rep. Jeni James Arndt. The bill extends the Council and moves it from Title 19, Colorado Revised Statutes, which relates to the juvenile code, to Title 13, Colorado Revised Statutes, which relates to the judicial code, since restorative justice use has expanded from juvenile cases to adult cases.
  • SB 17-223“Concerning the Nonsubstantive Relocation of Laws Related to the Treatment of Human Bodies After Death from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Sen. Bob Gardner and Rep. Leslie Herod. The bill relocates Parts 1 and 2 of Article 34 of Title 12 of the Colorado Revised Statutes related to anatomical gift and unclaimed human bodies to new Parts 2 and 3 of Article 19 of Title 15.
  • SB 17-224“Concerning the Nonsubstantive Relocation of Laws Related to Commercial Driving Schools from Title 12 of the Colorado Revised Statutes as Part of the Organizational Recodification of Title 12,” by Sen. Daniel Kagan and Rep. Pete Lee. The bill relocates the statutes governing commercial driving schools to part 6 of article 2 of title 42.
  • SB 17-226: “Concerning the Nonsubstantive Relocation of Laws Related to the Regulation of Financial Institutions from Title 12, Colorado Revised Statutes, as Part of the Organizational Recodification of Title 12,” by Sen. Daniel Kagan and Rep. Mike Foote. The bill relocates Article 13 of Title 12, pursuant to which the Commissioner of Financial Services and the Financial Services Board regulate life care institutions, to Article 49 of Title 11, and Article 52 of Title 12, pursuant to which the Banking Board and the State Bank Commissioner regulate money transmitters, to Article 110 of Title 11.
  • SB 17-231“Concerning the Scheduled Repeal of Reports by the Department of Transportation to the General Assembly,” by Sen. Dominick Moreno and Rep. Dan Thurlow. The bill amends repeal dates and reporting requirements from the Department of Transportation to the General Assembly.
  • SB 17-233“Concerning the Scheduled Repeal of Reports by the Department of Law to the General Assembly,” by Sen. Jack Tate and Rep. Jeni James Arndt. The bill amends repeal dates and reporting requirements from the Department of Law to the General Assembly.
  • SB 17-234“Concerning the Scheduled Repeal of Reports by the Department of Human Services to the General Assembly,” by Sen. Andy Kerr and Rep. Dan Thurlow. The bill amends repeal dates and reporting requirements from the Department of Human Services to the General Assembly.
  • SB 17-241“Concerning the Scheduled Repeal of Reports by the Judicial Department to the General Assembly,” by Sen. Jack Tate and Rep. Edie Hooten. The bill amends repeal dates and reporting requirements from the State Judicial Department to the General Assembly.
  • SB 17-246“Concerning the Treatment of Persons with Mental Health Disorders in the Criminal and Juvenile Justice Systems and Making a Corresponding Change to the Name of the Associated Task Force,” by Sen. Beth Martinez Humenik and Reps. Jonathan Singer & Dafna Michaelson Jenet. The bill changes the name of the ‘Legislative Oversight Committee Concerning the Treatment of Persons with Mental Illness in the Criminal and Juvenile Justice Systems’ to the ‘Legislative Oversight Committee Concerning the Treatment of Persons with Mental Health Disorders in the Criminal and Juvenile Justice Systems’. The bill makes a corresponding change to the associated task force and cash fund. The bill also modernizes terminology related to mental health disorders.
  • SB 17-255“Concerning the Creation of the Technology Advancement and Emergency Fund in the Office of Information Technology, and, in Connection Therewith, Making an Appropriation,” by Sen. Kent Lambert and Rep. Bob Rankin. The bill creates the Technology Advancement and Emergency Fund in the Office of Information Technology. Subject to annual appropriation by the General Assembly, the Office may expend money in the fund to cover one-time costs associated with emergency information technology expenditures, to address deferred maintenance of state agency information technology assets, and to provide additional services to address unforeseen service demands.
  • SB 17-257“Concerning the Creation of the Community Museums Cash Fund for the Administration of Revenues Generated by Community Museums Operated by the State Historical Society, and, in Connection Therewith, Making an Appropriation,” by Sen. Dominick Moreno and Rep. Bob Rankin. The bill deposits revenues from the community museums in a new community museums cash fund which would be appropriated specifically for the activities of the community museums.
  • SB 17-260“Concerning Transfers to the General Fund from Cash Funds with Severance Tax Revenues,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill requires the state treasurer to make certain transfers from the cash funds to the general fund on June 30, 2018.
  • SB 17-261“Concerning the Creation of the 2013 Flood Recovery Account in the Disaster Emergency Fund,” by Sen. Kevin Lundberg and Rep. Dave Young. The bill creates the 2013 flood recovery account in the disaster emergency fund and requires the state treasurer to transfer $12.5 million from the general fund to the account on July 1, 2017.
  • SB 17-262“Concerning the Transfer of Money from the General Fund to Cash Funds that are Used for the State’s Infrastructure,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill requires the state treasurer to make transfers for this fiscal year and the next three fiscal years from the general fund to the capital construction fund and the highway users tax fund, and requires percentage-based transfers after that.
  • SB 17-263“Concerning Capital-related Transfers of Money,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill makes certain transfers from the general fund.
  • SB 17-265“Concerning a Transfer of Money from the State Employee Reserve Fund to the General Fund,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill requires the state treasurer to transfer $26.3 million from the state employee reserve fund to the general fund on July 1, 2017.
  • SB 17-266“Concerning a Reduction in the Amount of the General Fund Reserve Required for the Fiscal Year 2016-17,” by Sen. Kent Lambert and Rep. Millie Hamner. The bill reduces the statutorily required general fund reserve from 6.5% to 6% of the amount appropriated for expenditure from the general fund.

Additionally, the governor vetoed one bill on Friday. That bill was SB 17-139, “Concerning the Extension of the Credit for Tobacco Products that a Distributor Ships or Transports to an Out-of-State Consumer.” The governor stated that he was unpersuaded there would be a significant economic impact, and he was concerned about educating Colorado consumers on the dangers of tobacco use.

For a list of the governor’s 2017 legislative actions, click here.

Colorado Court of Appeals: Dependency and Neglect Court Should Have Followed ICWA’s Notice Requirements

The Colorado Court of Appeals issued its opinion in People in Interest of L.L. on Thursday, March 30, 2017.

Dependency and NeglectIndian Child Welfare ActNoticeBurden of Proof.

In this dependency and neglect case concerning L.L., his mother, A.T., told the juvenile court at a shelter hearing that she had possible Apache Native American ancestry. Later, A.T. filed written information that included tribal card numbers and roll numbers. The Denver Department of Human Services (Department) did not send notice of the proceedings to any of the Apache Tribes. A.T. again stated that she had Indian heritage at a pretrial hearing, but the juvenile court did not address whether the Department used due diligence to identify and work with an Apache Tribe to verify whether L.L. is a member or is eligible for tribal membership. The court also did not treat L.L. as an Indian child pending verification from the tribe. Following a jury verdict, the court adjudicated L.L. dependent and neglected.

On appeal, A.T. contended that the order should be reversed because the Department did not comply with the Indian Child Welfare Act (ICWA) notice requirements. First, when there is “reason to know” the child is an Indian child, the juvenile court must ensure that the Department sends notice to any identified Indian Tribe. Second, the court must “[t]reat the child as an Indian child, unless and until it is determined on the record that the child does not meet the definition of an ‘Indian child.’” Here, the Department did not meet its obligation to provide notice of the proceedings to any of the Apache Tribes. The juvenile court did not address whether the Department used due diligence to identify and work with an Apache Tribe to verify whether L.L. was a member or was eligible for membership and did not treat L.L. as an Indian child pending the Tribes’ verification.

A.T. also contended that the juvenile court violated ICWA by not requiring the jury to base its findings on a heightened clear and convincing evidentiary standard. There is no language in ICWA or associated rules or guidelines that indicates a heightened burden of proof for the adjudicatory hearing in a dependency and neglect proceeding. Thus, the state is only required to prove the allegations in the petition by a preponderance of the evidence in all adjudications, whether involving Indian or non-Indian children. The juvenile court did not err when it instructed the jury regarding the Department’s burden of proof.

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

Summary provided courtesy of The Colorado Lawyer.

Colorado Gives: Volunteers Needed for Sturm College of Law’s Tribal Wills Project

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 6, 2016. These charities, and many, many others, greatly appreciate your donations of time and money.

Each year, students from the Sturm College of Law at the University of Denver participate in the Tribal Wills Project (TWP). In January, March and May, TWP participants travel to a tribal reservation in Colorado, Utah, New Mexico, Arizona or Montana for a week to draft wills, medical powers of attorney, living wills, and burial instructions for tribal members on a pro bono basis. This work is extremely important for the following reasons.

Under the American Indian Probate Reform Act (AIPRA), if a tribal member dies without a will and his or her interests in trust land total less than specified amount, such interests automatically pass to the tribal member’s oldest living descendant to the exclusion of his or her remaining descendants. If the tribal member is not survived by any descendants, such interests pass back to the tribe. This is often in contravention of the tribal member’s intent. In some instances, tribal members are unaware of these default provisions under AIPRA; in other instances, tribal members may be aware of the default provision but are without the means or resources to have a will prepared to avoid the foregoing results. TWP gives tribal members a voice so that desired family members are not excluded from inheriting interests in trust land.

Additionally, TWP provides a unique opportunity for law students to gain hands-on experience with real clients. Initially, a student is paired with a client to conduct an interview. Thereafter, the student prepares initial drafts of the desired documents, which are then reviewed by a Colorado supervising attorney. The student and attorney work through the revision process together, which provides an essential learning opportunity for the student. Once the documents appear to be in order, the documents are further reviewed by an attorney who is licensed in the particular state where the reservation is location. Once the documents receive final approval, the student participates in the execution process.

TWP was initially developed in February 2013 by John Roach, who is a Fiduciary Trust Officer for the Southern Ute Agency of the Office of the Special Trustee for American Indians; former Colorado Supreme Court Justice Gregory J. Hobbs, Jr.; and University of Denver Professor Lucy Marsh, among others. The first trip occurred in March 2013 when the students and supervising attorneys travelled to the Southern Ute and Ute Mountain Ute Reservations in southern Colorado. Since then, TWP has grown exponentially. Each year, students apply for limited positions on the TWP team; many must be turned away based on the limited availability of funds and supervising attorneys.

In January 2017, twenty students and four supervising attorneys will travel to two reservations outside of Phoenix, Arizona. Similar groups will travel to New Mexico in March and Montana in May. It costs approximately $15,000 to fund each trip, which is funded primarily by donations.

TWP is actively seeking volunteer supervising attorneys to assist with future trips. If you are unable to serve as a supervising attorney for any reason, you can still help by making a tax-deductible donation to TWP.

For more information, please contact Lucy Marsh at (303) 871-6285 or lmarsh@law.du.edu.

Tenth Circuit: Historical Mandates Regarding Criminal Prosecutions on Ute Tribal Lands Must Be Enforced

The Tenth Circuit Court of Appeals issued its opinion in Ute Indian Tribe of the Uintah and Ouray Reservation v. Myton on Tuesday, August 9, 2016.

Beginning in the 1860s, members of the Ute Tribe were forced onto a new reservation. By 1905, Congress authorized the Secretary of the Interior to break up the Ute reservation by assigning individual plots to tribal members and alloting any leftover land to homesteaders. In 1945, Congress ordered all unalloted lands returned to tribal jurisdiction. In 1975, the Ute Tribe filed a federal lawsuit alleging that the State of Utah and several local governments were prosecuting tribal members for crimes committed on tribal land, despite a federal mandate requiring prosecution by federal or tribal authorities. In 1985, the Tenth Circuit issued a decision known now as Ute III in which it ruled that all lands encompassed by the original boundaries of the Ute reservation were tribal lands.

Unsatisfied with this outcome, state and local officials “went shopping for a ‘friendlier forum'” in which to litigate their disputes. State officials argued in Utah state courts that their criminal prosecutions for crimes committed on tribal lands could proceed because the 1905 legislation carved out those lands that passed to non-tribal members. The Utah Supreme Court and U.S. Supreme Court agreed. The Tenth Circuit reconsidered Ute III‘s mandate in light of Hagen v. Utah, 510 U.S. 399 (1994), and issued Ute V to reconcile its earlier ruling with the Supreme Court’s decision.

Utah and several of its counties again began prosecuting tribal members in state courts for crimes committed on tribal lands, leading the Tribe to request a permanent injunction from the district court in 2013. However, in a one line order containing no explanation, the district court denied the Tribe’s request. In Ute VI, the Tenth Circuit once again found that the lands in question were undeniably tribal and the state and localities were again attempting to undo the tribal boundaries settled by Ute III and Ute V. While Ute VI was pending, the municipality of Myton filed a motion to dismiss the Tribe’s suit. The district court granted Myton’s motion to dismiss

The Tribe and the federal government requested the Tenth Circuit to give effect to Ute V‘s mandate by overturning the district court, and the Tenth Circuit felt “obliged to do exactly that.” Myton disputed the facts in the complaint, arguing that none of the lands within its bounds was subject to the 1945 restoration order. The Tenth Circuit remarked that a motion to dismiss is not proper when facts are contested. The Tenth Circuit found it undisputed that nearly half of the town’s land remained tribal trust land. Although Myton pointed to a sentence in Hagen that the crime in question had been committed in the town on non-tribal land, the Tenth Circuit declined to extend that holding to mean that all lands in the town were non-tribal. Myton also argued it would be inequitable for the town’s administration to have parcels where it could not exercise criminal jurisdiction. The Tenth Circuit found this argument unavailing, noting that “checkerboard jurisdiction” is a fact of daily life in the West, where many municipalities have successfully navigated similar congressional mandates. Myton also appealed to laches, contending that since the Tribe waited so long to assert claims against it, Myton fairly believed its township to be all non-tribal lands. The Tenth Circuit disagreed, noting first that laches cannot be asserted against the United States and also finding that the Tribe has vigorously defended its rights since the first suit in 1975.

The Tribe also requested that the Tenth Circuit assign the case to a different district judge on remand. The Tenth Circuit remarked that it reserves reassignment for only the most extreme cases, of which this was one. The district court judge “twice failed to enforce” the Tenth Circuit’s mandate in Ute V and the Tenth Circuit found little hope that things would change on remand.

The Tenth Circuit reversed the district court’s order granting Myton’s motion to dismiss, and ordered that this case and all related matters be reassigned on remand.

Tenth Circuit: Descendants of Sand Creek Massacre Victims Not Entitled to Reparations Accounting

The Tenth Circuit Court of Appeals issued its opinion in Flute v. United States on Tuesday, December 22, 2015.

As described by the Tenth Circuit, this case arose “out of an ignominious event in the history of this Nation.” In 1864, the United States Army conducted an unprovoked attack on a group of unarmed Indians of the Arapaho and Cheyenne Tribes, who had relocated to an area next to the Sand Creek River in the Territory of Colorado at the direction and under the protection of the Territorial Governor and Superintendent of Indian Affairs, John Evans. When what has become known as the Sand Creek Massacre was over, most of the Indians were dead, including many women and children.

After an investigation, the United States publicly acknowledged its role in the tragedy and agreed to pay reparations to certain survivors of the massacre. On October 14, 1865, the United States entered into the Treaty of Little Arkansas, which expresses the United States’ condemnation of “the gross and wanton outrages perpetrated against certain bands of Cheyenne and Arrapahoe Indians . . . at Sand Creek, Colorado Territory.” On July 26, 1866, the U.S. Congress appropriated funds to pay the reparations detailed in the Treaty of Little Arkansas.

According to Plaintiffs, the funds appropriated by Congress were insufficient to compensate all the victims of the massacre. Moreover, instead of paying reparations directly to the affected individuals as directed, the Secretary of the Interior paid some of the money directly to the Tribes. What funds were not distributed to the Tribes were returned to surplus on August 30, 1872. The United States has never provided an accounting of the reparations paid or attempted to identify the individuals to whom reparations were still owed.

Plaintiffs are descendants of the victims of the Sand Creek Massacre. They brought a class action on behalf of themselves and others similarly situated, alleging the United States acted in the capacity of a trustee over the funds appropriated under the Treaty of Little Arkansas and the 1866 Appropriations Act. Plaintiffs argue the Defendants are in breach of their trust obligations for failing to provide an accounting of the reparations funds held in trust for Plaintiffs’ ancestors. The district court dismissed Plaintiffs’ complaint under Rule 12(b)(1), finding it lacked jurisdiction because the United States had not waived sovereign immunity. This appeal followed.

The Tenth Circuit began its analysis with a discussion of sovereign immunity. The sovereign immunity enjoyed by the United States and its officers extends to injunctive relief, and therefore, it bars the relief sought by Plaintiffs here—an order directing the government to provide an accounting. Thus, to proceed against the government, the Plaintiffs must identify some statutory text that expressly and unequivocally waives sovereign immunity.

The Plaintiffs argued the United States’ waiver of sovereign immunity can be found in a series of statutes enacted by Congress appropriating funds to the Department of Interior (the most recent of which occurred in a 2009 appropriations act, hereinafter “2009 Act”), including some funds specifically appropriated for programs associated with Indian tribes (hereinafter collectively referred to as “the Appropriations Acts”). The Tenth Circuit held the 2009 Act, standing alone, does not waive sovereign immunity as the text of the 2009 Act never mentions sovereign immunity, nor does the 2009 Act relieve a plaintiff of the independent obligation to identify an express waiver of sovereign immunity in order to maintain an action against the government.

Second, despite the complete absence of an express waiver of sovereign immunity, Plaintiffs insisted that the 2009 Act constitutes a waiver of sovereign immunity, relying on the Federal Circuit Case Shoshone II. The court rejected Plaintiffs’ interpretation of Shoshone II, reasoning a plaintiff must satisfy two separate requirements to pursue a claim against the government: (1) identification of an express waiver of sovereign immunity, and (2) initiation of the suit before the statute of limitations for the plaintiff’s claim runs and effectively negates that waiver. Even if the 2009 Act were applicable here, the Tenth Circuit reasoned, Plaintiffs could meet only one of these requirements because the 2009 Act contains no express waiver of sovereign immunity.

Third, the Plaintiffs argued that the Treaty of Little Arkansas, in combination with the Appropriations Acts, created an enforceable trust relationship such that they are now entitled to an accounting from the Secretary of the Interior. The court rejected this argument, noting the Appropriations Acts are limited to claims for misappropriation of trust assets, and neither the Treaty of Little Arkansas nor the 1866 Appropriations Act imposes fiduciary trust obligations on the government. And in the absence of such a trust relationship, any purported waiver of immunity contained in the 2009 Act is inapplicable to Plaintiffs’ claims. As such, even if we agreed with Plaintiffs that the 2009 Act expressly waives the United States’ immunity, the court stated, it could not do so in this case. Accordingly, Plaintiffs were unable to identify a waiver of the United States’ sovereign immunity. Absent such a waiver, the courts lack the power to grant Plaintiffs relief, the Tenth Circuit held, thereby affirming the district court’s dismissal of the action for lack of subject matter jurisdiction.

Tenth Circuit: Remand Order Non-Reviewable Where Based on Lack of Unanimity

The Tenth Circuit Court of Appeals issued its opinion in Harvey v. Ute Indian Tribe of the Uintah and Ouray Reservation on Thursday, August 13, 2015.

Ryan Harvey and other plaintiffs filed a complaint in Utah state court against the Ute Indian Tribe of the Uintah and Ouray Reservation, seeking a declaration regarding the authority of the Tribe over non-Indian businesses operating on certain categories of land. Plaintiffs also alleged three individuals affiliated with the Uintah Tribal Employment Rights Office had harassed and extorted Plaintiffs. Defendants filed a motion to dismiss, arguing that service of process had been insufficient, the state court lacked jurisdiction in the absence of a valid waiver of tribal immunity, the Tribe and its officers were immune from suit but were indispensable parties, and Plaintiffs failed to exhaust administrative remedies in tribal court. Following a hearing on the motion to dismiss, the state court ordered further briefing regarding whether the defendants’ motion constituted a general appearance. The court granted Plaintiffs’ motion to amend its complaint to add defendants.

Defendants filed a notice of removal in the U.S. District Court for the District of Utah, stating that certain defendants consented to removal and the others would consent. All except one eventually consented to removal. Plaintiffs then filed a motion to remand, arguing the initial defendants waived their right to remove by litigating in state court, removal was untimely, the defendants had not unanimously consented to removal, and the federal court lacked subject matter jurisdiction. The district court granted the motion to remand, finding the initial defendants waived their right to consent to removal because they manifested an intent to litigate in state court, and the unanimity requirement could not be met.

The Tenth Circuit first noted that 28 U.S.C. § 1447(d) specifies that a district court order remanding to state court is “not reviewable on appeal or otherwise.” Following Supreme Court precedent establishing that some orders are reviewable despite the statute’s plain language, the Tenth Circuit noted that § 1447(d) has been interpreted to preclude review only for lack of subject matter jurisdiction or defects in removal procedure. The Tenth Circuit commented that although the circuits are split on whether remand based on waiver is reviewable, it would only address remand for lack of unanimity. The Tenth Circuit evaluated whether the remand was based on lack of unanimity and found that it was. The Tenth Circuit declined to review the remand order.

The Tenth Circuit granted appellees’ motion to dismiss and dismissed the appeal.