Recent reaction to a judicial decision in Boulder dealing with a claim of adverse possession appears to be missing an important aspect about how our court system functions in Colorado.
Because this case involves personal issues that can be emotional, it is understandable that the community has become engaged on the topic. However, it is important to examine this issue on a broader scale, as well as to analyze the particulars of this decision.
Adverse possession is a legal doctrine that has been around for hundreds of years. In Colorado, it has been codified into statutes adopted by the legislature. Far from being rare, this doctrine is routinely applied across Colorado every year to resolve boundary disputes.
In this particular case, the judge heard three days of testimony presented by the attorneys from both parties.
Both sides in this dispute appear to be people of means and repute who were represented by highly respected and capable Boulder law firms. The judge’s responsibility was to hear the evidence, weigh the credibility of the witnesses and apply the law adopted by the Colorado legislature.
Part of the heat that has been generated from the case as reported in the media carries an implication that there was some favoritism between the trial judge and the plaintiff, who is a former judge. If a lawyer or party believes a judge may have a bias, they can file a motion to remove that judge from the case. In cases in which judges perceive even the appearance of bias, they routinely take that action, without being asked to do so.
No such motion was filed in this case by the defendants’ attorneys.
In the course of the trial, some decisions benefited the plaintiffs and some benefited the defendants. In short, there is absolutely nothing in the record that would support any assertion that the trial judge was biased toward one party or the other.
We have a proven process in Colorado and the United States based on the rule of law, not on popular opinion.
The defendants have a right to appeal the decision to the Court of Appeals, and they have indicated that they intend to do so. In addition, if there is a need perceived by the people and their representatives in the legislature to examine the law of adverse possession, that examination can and should be done in a deliberate and fully informed fashion.
Wm. David Lytle is president of the Colorado Bar Association.
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