The Colorado Supreme Court issued its opinion in Larson v. Sinclair Transportation Co. on May 21, 2012.

Real Property—Eminent Domain—Condemnation.

The Supreme Court held that the Colorado General Assembly did not grant, either expressly or by clear implication, condemnation authority to companies to construct petroleum pipelines. Accordingly, Sinclair Transportation Company was not entitled, under CRS § 38-5-105, to immediate possession of easements for the construction of its gasoline pipeline. The judgment of the court of appeals was reversed.

Summary and full case available here.

The Colorado Court of Appeals issued its opinion in Radcliff Properties Limited Partnership, LLLP v. City of Sheridan on May 10, 2012.

Real Property—Municipality—Petition for Disconnection—Procedural Elements—Findings of Fact—Evidence.

Plaintiffs appealed the district court’s order denying their petition for disconnection from the City of Sheridan. Sheridan and its City Council (defendants) cross-appealed certain aspects of the order. The Court of Appeals affirmed the order.

Plaintiffs own eight parcels of property located within Sheridan, a Colorado home rule municipality. The properties were annexed into Sheridan in 1977, and Radcliff Street (Radcliff) provides the only access to the properties. On July 6, 2010, plaintiffs filed a petition seeking to disconnect certain of their properties from Sheridan pursuant to CRS § 31-12-119, which permits qualifying landowners to disconnect their property from a municipality when the municipality has failed to provide certain essential services. Plaintiffs’ petition ultimately was denied.

Plaintiffs argued that the trial court erred by requiring a petition to disconnect filed under § 31-12-119 to contain all of the statutory elements required in a similar petition filed under § 31-12-601. The trial court did not err by requiring that plaintiffs’ petition contain all of the statutory elements required in a petition filed under § 31-12-601, because those procedural elements are incorporated by reference in § 31-12-119.

Defendants argued that plaintiffs’ petition was precluded by § 31-12-603(1). A petition filed under § 31-12-119 only has to follow the procedures “set forth in parts 6 and 7,” not the substantive provisions of parts 6 and 7. Therefore, plaintiffs’ petition to disconnect was not precluded by § 31-12-603(1).

Plaintiffs also argued that the trial court erred by denying their petition to disconnect for failure to meet the statutory requirements of § 31-12-119. The record supports the court’s denial of plaintiffs’ petition because plaintiffs failed to show that Sheridan “does not, upon demand, provide the same municipal services on the same general terms and conditions as the rest of the municipality receives.”

Plaintiffs’ contention that the district court erred by making certain findings of fact that were not supported by any competent evidence was not successful. Plaintiffs’ contention that the trial court erred by failing to admit more than 100 photographs into evidence also was not successful, because they were not relevant.

Summary and full case available here.

On April 20, 2012, Sen. Mike Johnston and Rep. Dan Pabon introduced SB 12-174 – Concerning the Creation of a Pilot Alternate Property Tax Valuation Protest and Appeal Procedure for the City and County of Denver. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Currently, the county board of equalization receives and hears petitions for appeal regarding the valuation for assessment of taxable property. The county board of equalization process has multiple filing deadlines and addresses valuation appeals in a single year. The board of county commissioners also receives and hears petitions for appeal and has jurisdiction over petitions for abatement or refund of taxes, including assessment of taxable property overvaluation. The board of county commissioners process has one filing deadline and can address valuation appeals, abatements, and refunds over multiple years.

The bill creates a pilot program that authorizes the governing body of the city and county of Denver, at the request of the assessor, to elect to use an alternate protest and appeal procedure that combines the multiple steps in the annual valuation dispute process through the county board of equalization into the single hearing and appeal process conducted by the board of county commissioners. The filing deadlines for tax petitions and for resolving valuation disputes are specified for the city and county of Denver to use the alternate protest and appeal procedure.

The bill also authorizes the city and county of Denver board of equalization and the board of county commissioners to request that the taxpayer that filed a petition, or the taxpayer’s representative, to be present at the hearing and requires each board to dismiss the petition with no right to appeal if the taxpayer or the taxpayer’s designee fails to be present at the hearing absent good cause. Assigned to the Finance Committee; the bill has not been scheduled for committee review.

Summaries of other featured bills can be found here.

The Colorado Bar Association Ethics Committee has been working on updating their Formal Ethics Opinions in order to reflect changes in the law, including the 2008 revision to the Colorado Rules of Professional Conduct. As part of that effort, the Ethics Committee released an updated version of Formal Opinion 68, “Conflicts of Interest; Propriety of Multiple Representation” in December 2011, and it was published in the March 2012 issue of The Colorado Lawyer.

Formal Opinion 68 addresses four specific conflict situations:

1) representation of both a husband and wife in negotiating a property settlement before dissolution proceedings commence;
2) representation of both the buyer and seller in a residential real estate transaction;
3) representation of both the buyer and seller of a business; and
4) representation of individuals in drafting an entity agreement, and representation of solely an entity in its formation.

The Ethics Committee opines that, in the first scenario, the dual representation would be impermissible under the Colorado Rules of Professional Conduct (Colo. RPC or Rules) because even if the divorce settlement agreement is uncontested, it must be approved by the court, and counsel cannot represent two parties whose interests are adverse under Colo. RPC 1.7.

In the second, third, and fourth scenarios, which are all transactional, the Ethics Committee declines to issue a blanket prohibition on representing both parties to the proposed transactions, but rather notes that each individual situation will require a thorough analysis of the propriety of the representation.

Opinion 68 provides a thoughtful and detailed evaluation of Colo. RPC 1.7 and its comments. It thoroughly examines informed consent, including when and whether it is appropriate, what can be consented to, how to obtain informed consent, the need to obtain new consent when there are situational changes, and confirmation in writing. Each scenario listed above is explored in depth, and the propriety of dual representation is examined for all for sample scenarios. The message of the Ethics Committee is clear: an attorney must examine the specific scenario involving a concurrent conflict of interest with the utmost scrutiny and caution prior to undertaking representation of conflicting parties.

The Ethics Committee develops its formal opinions as a means for providing Colorado attorneys with guidance. However, they issue the following caveat:

Formal Ethics Opinions are issued for advisory purposes only and are not in any way binding on the Colorado Supreme Court, the Presiding Disciplinary Judge, the Attorney Regulation Committee, or the Office of Attorney Regulation Counsel, and do not provide protection against disciplinary actions.

On March 21, 2012, Rep. Ray Scott introduced HB 12-1329 – Concerning the County Treasurer Becoming the Public Trustee in Certain Counties Where the Public Trustee is Currently Appointed by the Governor. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Currently, the 11 counties designated as counties of the first or second class for purposes of the public trustee law have a public trustee who is appointed by the governor. In counties of the third class, the county treasurer serves as the public trustee. On January 1, 2013, certain counties of the second class change to counties of the third class. In such counties, the term of the public trustee appointed by the governor expires on December 31, 2012, and the county treasurer of the county becomes the public trustee on January 1, 2013. Under the bill, certain counties shall no longer have a separate office of the public trustee with the trustee appointed by the governor. The bill is assigned to the Local Government Committee; the bill is scheduled for committee review on Monday, April 16 at 1:30 p.m.

Since this summary, the House Committee on Local Government laid over the bill unamended–their amendments failed.

Summaries of other featured bills can be found here.

On March 9, 2012, Rep. Jerry Sonnenberg and Sen. Scott Renfroe introduced HB 12-1322 – Concerning the Disposition of Federal Agricultural Public Lands. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires the United States to sell agricultural public lands on or before December 31, 2014, and provides that any agricultural public lands that the United States does not sell as of that date will no longer be exempt from property tax. The bill further requires the United States to pay the state 5% of the net proceeds of the sales of any agricultural public lands and specifies that these revenues be deposited into an internal improvements fund, a portion of which is dedicated to the state education fund. Assigned to the Education Committee; the bill is on the committee calendar for action on Monday, April 16 at 1:30 p.m.

Summaries of other featured bills can be found here.

As part of its continuing efforts to keep JDF forms up-to-date, the Colorado State Judicial Branch revised several instructions and a few forms in March. Practitioners should begin using the new forms and instructions immediately.

All forms are available in Adobe Acrobat (PDF) and Microsoft Word formats. Download the new forms from State Judicial’s individual forms pages or below.

Adoption

• JDF 495 – “Instructions for Second Parent Adoption” (revised 3/12)
• JDF 497 – “Instructions for Validation of Foreign Adoption” (revised 3/12)
• JDF 498 – “Instructions for Kinship Adoption” (revised 3/12)
• JDF 499 – “Instructions for Custodial Adoption” (revised 3/12)
• JDF 500 – “Instructions for Stepparent Adoption” (revised 3/12)
• JDF 506 – “Notice of Adoption Proceeding and Summons to Respond” (revised 3/12)

Appeals

• JDF 126 – “Instructions to File a County Court Civil or Small Claims Appeal” (revised 3/12)

County Civil / District Civil

• JDF 86  – “Instructions for Issuing a Subpoena in Support of an Action Outside the State of Colorado” (revised 3/12)
• JDF 96 – “Instructions for Filing an Answer and/or Counterclaim in County Court” (Money Demand) (revised 3/12)
• JDF 100 – “Instructions for Forcible Entry and Detainer (FED) / Evictions” (revised 3/12)
• JDF 110 – “Instructions for County Court Civil Cases (Money Demand)” (revised 3/12)
• JDF 112 – “Instructions for Reviving a Judgment” (revised 3/12)
• JDF 115 – “Instructions for Replevin” (revised 3/12)
• JDF 122 – “Instructions for Issuance of Contempt Citation” (revised 3/12)
• JDF 137 – “Instructions for Filing a Foreign Judgment” (revised 3/12)
• JDF 385  – “Instructions for Filing a Change of Name to Obtain Identity-Related Documents” (revised 3/12)
• JDF 420 – “Instructions for Filing for a Change of Name (Minor)” (revised 3/12)
• JDF 432 – “Instructions for Filing a Change of Name (Adult)” (revised 3/12)
• JDF 605 – “Instructions for Appealing Property Tax Assessments with the District Court” (revised 3/12)
• JDF 611 – “Instructions to Seal Criminal Conviction Records” (revised 3/12)
• JDF 620 – “Instructions for Filing a Response to a Rule 120 Notice” (revised 3/12)

Criminal

• JDF 323 – “Instructions to File a Petition to Seal Underage Alcohol Conviction” (revised 3/12)
• JDF 385 – “Instructions for Filing a Change of Name to Obtain Identity-Related Documents” (revised 3/12)
• JDF 416 – “Instructions to File a Petition to Seal Arrest and Criminal Records” (revised 3/12)

Domestic

• JDF 1215 – “Evaluation of a Foreign Decree, Foreign Custody-Determination, and Foreign Support Order” (revised 3/12)
• JDF 1220 – “Instructions to Register a Foreign Decree” (revised 3/12)
• JDF 1800 – “Instructions/Options to Enforce Orders” (revised 3/12)
• JDF 1801 – “Instructions for Completing an Income Assignment Based on Child Support and/or Maintenance Orders” (revised 3/12)

Juvenile

• JDF 323 – “Instructions to File a Petition to Seal Underage Alcohol Conviction” (revised 3/12)
• JDF 385 – “Instructions for Filing a Change of Name to Obtain Identity-Related Documents” (revised 3/12)
• JDF 476 – “Instructions to Discontinue Sex Offender Registration for a Colorado and Non-Colorado Juvenile Adjudication or Disposition” (revised 3/12)

Paternity

• JDF 1500  – “Instructions to Establish Paternity” (revised 3/12)
• JDF 1502 – “Summons in Paternity” (revised 3/12)
• JDF 1513 – “Instructions to Disclaim Paternity” (revised 3/12)
• JDF 1515 – “Summons to Disclaim Paternity” (revised 3/12)

Probate

• JDF 782 – “Instructions to File Petition to Accept Adult Guardianship and/or Conservatorship in Colorado From Sending State” (revised 3/12)
• JDF 786 – “Instructions to File Petition to Transfer Adult Guardianship and/or Conservatorship From Colorado to Receiving State” (revised 3/12)
• JDF 820 – “Instructions for Appointment of Guardian for Minor by Will or Other Signed Writing” (revised 3/12)
• JDF 823 – “Instructions for Appointment of a Guardian – Minor” (revised 3/12)
• JDF 840 – “Instructions for Appointment of a Guardian – Adult” (revised 3/12)
• JDF 860 – “Instructions for Appointment of a Conservator – Minor” (revised 3/12)
• JDF 875 – “Instructions for Appointment of a Conservator – Adult” (revised 3/12)
• JDF 887 – “Instructions to File a Petition to Terminate Conservatorship” (revised 3/12)
• JDF 906 – “Instructions for Probate With a Will” (revised 3/12)
• JDF 907 – “Instructions for Probate Without a Will” (revised 3/12)
• JDF 957 – “Instructions for Closing an Estate Formally” (revised 3/12)
• JDF 958 – “Instructions for Closing a Small Estate Informally” (revised 3/12)
• JDF 959 – “Instructions for Closing an Estate Informally” (revised 3/12)
• JDF 989 – “Instructions for Re-Opening an Estate” (revised 3/12)

Protection Orders

• JDF 395 – “Instructions for Restrained Person – Motion to Modify/Dismiss Protection Order” (revised 3/12)
• JDF 400 – “Instructions for Obtaining a Civil Protection Order” (revised 3/12)

Small Claims

• JDF 248 – “Instructions for Filing a Small Claims Case” (revised 3/12)

Governor Hickenlooper has signed 111 bills into law this legislative session, including fourteen bills that he signed on Friday, April 6, and one on April 9, 2012. A complete list of the bills he signed Friday can be found here. Five of these bills are highlighted below.

• HB 12-1181 – Concerning a Supplemental Appropriation to the Department of Corrections
  Sponsored by Rep. Cheri Gerou and Sen. Mary Hodge. This Joint Budget Committee bill changes the appropriations to the Department of Corrections for several services. This was one of three bills from the Joint Budget Committee to be signed by the governor on April 6.
• HB 12-1229 – Concerning Publication Requirements for a Newspaper In Which a Legal Notice or Advertisement is Printed
  Sponsored by Rep. Carole Murray and Sen. Mark Scheffel. The bill creates a definition for “published” for legal notices that are required to be published in legally recognized newspapers, and creates a contingency for counties that do not have a newspaper.
• HB 12-1269 – Concerning the Threshold Amount of Campaign Activity By a Candidate Committee In Connection With a Special District Election that Triggers Disclosure Requirements Under the “Fair Campaign Practices Act.”
  Sponsored by Rep. Jim Kerr and Sen. Ellen Roberts. This bill increases the amount that a candidate committee in a special district election must spend in order to trigger reporting requirements under the FCPA.
• HB 12-1285 – Concerning Modifications to Statutory Provisions Governing Intergovernmental Cooperation to Address Wildland Fire Mitigation Where a Municipality Owns Land Inside a County for Utility Purposes
  Sponsored by Rep. Cheri Gerou and Sen. Cheri Jahn. The bill requires municipalities that own land for utility purposes inside a county but outside the municipal boundaries to enter into an Intergovernmental Agreement with the county or the Colorado State Forest Service in order to mitigate wildfires.
• SB 12-066 – Concerning Expanding Those Persons Eligible as Guardians in the Guardianship Assistance Program to Include Persons Ascribed By the Family as Having a Family-Like Relationship With the Child
  Sponsored by Sen. Jeanne Nicholson and Rep. Bob Gardner. The bill allows non-family members to receive guardianship assistance if they are guardians and foster parents of a child and are committed to the child’s permanency.

Additionally, on Monday, April 9, Governor Hickenlooper signed HB 12 -1295 “Colorado Rockies Vehicle License Plate,” sponsored by Rep. Kevin Priola and Sen. Lois Tochtrop. The governor signed the bill into law at Coors Field before the Colorado Rockies home opener. The bill creates a specialty license plate for the Colorado Rockies that benefits the Colorado Rockies Baseball Club Foundation.

For a complete list of legislation signed into law by Governor Hickenlooper on April 6, 2012, click here.

For a complete list of Governor Hickenlooper’s 2012 legislative decisions, click here.

The Colorado Supreme Court issued its opinion in Town of Minturn v. Sensible Housing Co. on April 9, 2012.

Priority of Jurisdiction—Annexation—CRS § 31-12-116—Judicial Review of Annexation Proceedings.

The Supreme Court reversed the judgment of the court of appeals, holding that the priority rule may not be applied to municipal annexation proceedings because those proceedings are a legislative function. The priority rule states that, where two courts may exercise jurisdiction over the same parties and subject matter, the second action should be stayed until the first action has been determined.

In 2008, the Town of Minturn annexed nine parcels of property for which the parties petitioning for annexation claimed 100% ownership. Sensible Housing Co., Inc. (Sensible) petitioned for judicial review of the annexation proceedings under CRS § 31-12-116, claiming that, due to an ongoing quiet title dispute regarding two of the annexed parcels, Minturn’s annexation was improper. The court of appeals reversed a district court order dismissing Sensible’s judicial review action and voided the annexation, reasoning that Minturn should not have adopted its annexation ordinances pending the outcome of the quiet title litigation.

The Court concluded that the priority rule may not be applied to void Minturn’s annexation ordinances because annexations are legislative in nature. Such application is inconsistent with the purpose of the priority rule and the proper judicial and legislative roles in annexation proceedings. Because judicial review of the annexation proceedings commenced after the quiet title litigation and both actions involved the same parties and subject matter, the Court held that the proper remedy here was to stay judicial review of the annexation proceedings pending the outcome of the quiet title litigation. The case is remanded to the district court.

Summary and full case available here.

On March 19, 2012, Sen. Lois Tochtrop introduced SB 12-162 – Concerning Verification of Remediation Performed on Property Contaminated by an Illegal Drug Laboratory. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates a verification process for remediation of properties contaminated by illegal drug laboratories. A local governing body:

• Reviews documentation of a property owner’s remediation;
• Retests a property to confirm that the property owner’s remediation complied with the clean-up standards established by the state board of health;
• Issues a certificate of compliance to a property owner whose remediation meets the clean-up standards; and
• Files an action to abate a public nuisance against a property that the property owner fails to remediate upon receiving notice that prior remediation efforts did not meet the clean-up standards.

The bill imposes a surcharge on persons convicted of methamphetamine-related offenses to fund implementation of the verification process. The bill creates the methamphetamine laboratory clean-up cash fund.

The bill is scheduled on the Senate Business, Labor, and Technology Committee calendar for Monday, March 26 at 1:30 p.m.

Since this summary, the Business, Labor, and Technology Committee heard witness testimony and had committee discussion only.

Summaries of other featured bills can be found here.