# Opposition Brief — Taylor v. Lobato

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 1073

## Text

No. 03-364

t

In The tia
Supreme Court of the Cnited States

ZACHARY TAYLOR, AS EXECUTOR OF THE
ESTATE OF JACK T. TAYLOR, JR., AND
THE TAYLOR FAMILY PARTNERSHIP,

Petitioners,

V.

EUGENE LOBATO, EMILIO.LOBATO, JR.,
MICHAEL J. VIGIL, NORMAN MAESTAS,
KUGENE MARTINEZ, CORPUS GALLEGOS
BY AND THROUGH HIS CONSERVATOR
YVETTE GALLEGOS, AND ZACK BERNAL,

Respondents.
-

On Petition For A Writ Of Certiorari
To The Supreme Court Of Colorado

‘
BRIEF IN OPPOSITION

+
JEFFREY A. GOLDSTEIN NORMAN D. HAGLUND*
BRAUER, BUESCHER, KELLY | HAGLUND |
GOLDHAMMER & KELMAN, P.C. GARNSEY + KAHN LLC
1563 Gaylord Street 1441 18th Street,
Denver, CO 80206 Suite 300
(303) 333-7751 Denver, CO 80202

WATSON GALLEHER (303) 296-9412
DON, HILLER & GALLEHER, P.C. WILLIAM F. SCHOEBERLEIN

1737 Gaylord Street LITTLER MENDELSON, P.C.
Denver, CO 80206 1200 17th Street,
(303) 572-1668 Suite 2850

Denver, CO 80202
(303) 575-5866

Counsel for Respondents
November 6, 2003 *Counsel of Record
[Additional Counsel Listed On Inside Cover]

COCKLE LAW BRIEF PRINTING CO (800) 225-6964
OR CALL COLLECT (402) 342-2831

JULIA T. WAGGENER ELISABETH ARENALES

WALTERS & JOYCE, P.C. 4508 Quitman Street
2015 York Street Denver, CO 80212
Denver, CO 80205 (303) 573-3719

(303) 322-1404 ———

DAVID MARTINEZ 1610 Gaylord Street
2000 Perry Street Denver, CO 80206
Denver, CO 80212 (303) 377-4449

(303) 477-8021

RESPONSE TO PETITIONERS'
STATEMENT OF THE PARTIES

The caption on the Petition for a Writ of Certiorari
lists only seven of the Plaintiffs that were contained in the
caption on the two Lobato decisions that are the subject of
the Petition. See Petition Appendix (“Pet. App.”) la and
49a. For reasons set forth below, this Court should deny
the Petition for a Writ of Certiorari. However, should this
Court grant the Petition, Respondents reserve the right to
object, including jurisdictional challenges, to any effort by
Petitioners to join additional parties that should have been
included as parties in the Petition, or to file future peti-
tions as to parties not included in the caption.

* Further, Petitioners are aware that two of the parties listed on
the caption on the Petition, Corpus Gallegos and Zach Bernal, are
deceased and the subject properties are owned by their successors.

ii

TABLE OF CONTENTS

Page

RESPONSE TO PETITIONERS’ STATEMENT OF
FED CORNET ERIE secncetninnneypahatnresnnndiccinneinianinniteentinsiitonntc

REE CIE ALT ERIE BBM sonenvepnsansseciansacsansntnensemeneninoes
RESPONSE TO PETITION FOR A WRIT OF CERTI-

Aer EET sischsesinkicnevatenciiihesucentinahunseisenetinuenamuneisaaesenapenstene
RESPONSE TO STATEMENT OF JURISDICTION...
STATEMENT OF THE CASE. ....s:ccssessosssonsecssossosssesesenss

i, nic uncitstaiienicnciniinainaiaaiis

B. Response to Taylor’s Background Statement
Regarding Mexican Law and the History of the
Sangre Ge Cristo Grant .....:..ccssssossccoesesceessensesones

C. Response to Taylor’s Background Statement
Regarding the Torrens Action ................ccceseeeeees

D. Response to Taylor’s Background Statement
Regarding the Proceedings ...................sssssesseeees

PIP RRIETE whi intitennigneidesasinnnbcneiinnsannianvintninaatanvieiin

A. The Petition Is Untimely to the Extent That It
Seeks Review of the Rael Decision...................++

B. The Petition Should Be Denied Because It
Seeks Review of Due Process Issues That Were
Not Pressed or Passed upon in the Colorado
SII CANIS i ncntudssensinsecmmndcahenehaninsebianaiaanahenstaas

17

ili

TABLE OF CONTENTS -— Continued
Page

1. Taylor Did Not Argue That the Colorado
Supreme Court Should Not Have Consid-
ered Whether Taylor and His Torrens At-
torney Had Exercised Due Diligence to
Ascertain the Identities of Interested Par-
ties In Determining the Effectiveness of

CIT. .cccnsiinnsosdsciieieiaceinnminadandinaiaainaaasicnianalas 20

2. Taylor Did Not Argue to the Colorado Su-
preme Court That a Successor Cannot As-
sert the Due Process Rights of a Prior
SAE viicscictsnicstecesnemcineaniandns 21

C. The Colorado Supreme Court Properly Decided
That Taylor Did Not Comply with the Notice
Provisions of the Colorado Torrens Title Regis-
CD Bi recisciscsissiecnnesneisnasenssesdinensaianinicesanamiias 22

D. The Decisions of the Colorado Supreme Court
Do Not Conflict with this Court’s Due Process
I a icccctnsicvntnevinniicieiaiaidalaiainn caidas 23

E. The Second and Third Questions Do Not
Present Any Issues for Review Because the
Colorado Supreme Court Ruled Against Plain-
tiffs on Their Mexican Law Claim ...................+ 24

F. Supreme Court Review in this Case Would Add
Another Unnecessary Layer of Appellate Liti-
gation That Would Delay Final Resolution and
Cause Injustice to Plaintiffs...................::eesseeeees 25

OIC EA FIIEN sircniiersesnssinctsdsaintereaensssairenannuntnonarers 27

iv

TABLE OF AUTHORITIES
Page
CASES
American Land Co. v. Zeiss, 219 U.S. 47 (1911)................ 21
Bankers Life & Casualty Co. v. Crenshaw, 486 U.S.
FA (RIED + onvssesrcssinsinsapiiiametinaeaanaaan aaa 20
Cardinale v. Louisiana, 394 U.S. 437 (1969) ................... 20

Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975)..2, 17, 18, 19
FEC v. NRA Political Victory Fund, 513 U.S. 88 .

I onnseniorsionninninsstieneiidalaaldaeaeiaaaai: DY
Gibson Distributing Co. v. Downtown Development

Rae's, GO UB. TOGO CIF csvccisiemndiivinnin 2,17
Green v. Lindsey, 456 U.S. 444 (1982)... eeeeeeeeeee 21, 24
Hathorn v. Lovorn, 457 U.S. 255 (1982)... eeeeeeeeeees 18
Hewitt v. Glaser Land & Livestock Co., 626 P.2d

Be CROO, BD BD cen veresssiinssssescenvainintansianiasonaniaaneniieainl 22
Illinois v. Gates, 462 U.S. 213 (1983) 0... eee eeeee 2, 20
Kemmerer Coal Co. v. Brigham Young University,

Tae FW GE (UGG Caw, WB) acovacenescnessovenessesacssinssssnecenests 22
Leitensdorfer v. Webb, 61 U.S. 176 (1857) .............ceeeeeeeeeees 5
Lobato v. Taylor, 71 P.3d 938 (Colo. 2002)................. passim
Lobato v. Taylor, 70 P.3d 1152 (Colo. 2003)............... passim
Mennonite Bd. of Missions v. Adams, 462 U.S. 791

CBB) vrnsinsensssscenessnnscencedansniielindhecieniaiaaianegianseeaeeiaaaaaia 24
Mullane v. Cent. Hanover Bank & Trust Co., 339

She BG CI vacsnaceressnsenvssietstsinenioteabintsnenmiemaammnal 23
Rael v. Taylor, 876 P.2d 1210 (Colo. 1994) ..........0.... passim

Sanchez v. Taylor, 377 F.2d 733 (10th Cir. 1967).......... 9,13

TABLE OF AUTHORITIES — Continued

Page
Schroeder v. City of New York, 371 U.S. 208 (1962)......7, 23
Shelledy v. Lore, 836 P.2d 786 (Utah 1992) ....c.cssssssssssssee 22
Tameling v. United States Freehold and Emigration

i, UF rie I Cee ei ersinctcccnninnincnsictssnceiilcmmncicnausians 10, 11
Taylor v. Jaquez, Civ. No. 96-Z-776 (D. Colo. August

ees TE ssxatiseenaierncbensepnnciiannnaenieiinceniens 1, 14, 18, 24, 25
Taylor v. Jaquez, 126 F.3d 1294 (10th Cir. 1997).......... 1, 14
Taylor v. Jaquez, 523 U.S. 1005 (1998) ......... eee eeeeee 2, 15
United States v. Haddon, 550 F.2d 677 (1st Cir.

SIO) cciraicistnsiinnaseeninciniagpisenniesstnaieatenislananidaiaeeapianiiaueébanaiain 22
Walker v. City of Hutchinson, 352 U.S. 112 (1956)............ 23
STATUTES
Be ee FT eeitiisenseresiecinctincinataiaiin 2, 3, 15, 23
Be GE Bdie © ie Racicncntinnincntininnininaeinias 2,17, 19
GR BE cece ncrensecensninnicentiaicnssssaniieinistitnniibiianmunminasaaaan 1
OTHER
Act of Confirmation, ch. 167, 12 Stat. 71 (1860)....... 3, 5, 16
Colorado Torrens Title Registration Act, Colo. Rev.

eek... F SS NGL, OF GOR. eccsrennadeneeninesinseennscneensccesies 5, 6, 15

Tom Faxon, “An Oral History: Raphael J. Moses,”
The Colorado Lawyer, March 1998, Vol. 27, No. 3,
TDD ssvssitsnsndontiitinantidedanninianmapindiiiadeagmeiaanaaniaaa 12

RESPONSE TO PETITION FORA
WRIT OF CERTIORARI

The Respondents submit this Response to Petition for
a Writ of Certiorari.’

r -

OPINIONS

The listing of opinions in the Petition, pursuant to
Sup. Ct. R. 14(d), fails to include the opinions in a related
federal action filed by Taylor to enjoin this state court
action after the Colorado Supreme Court issued its opinion
in Rael v. Taylor, 876 P.2d 1210 (Colo. 1994) (hereinafter
referenced as the “Rael decision.”).’ Rather than filing a
timely petition for a writ of certiorari after the Rael
decision, Taylor made the tactical decision to file a sepa-
rate federal lawsuit. The ruling of the United States
District Court for the District of Colorado in Taylor v.
Jaquez, Civ. No. 96-Z-776 (D. Colo. August 22, 1996),
dismissing that action is not published, but is appended in
Respondents’ Appendix, (hereinafter “Res. App.”) at 9a-
14a. The opinion of the Tenth Circuit Court of Appeals
affirming the dismissal of that action is reported at Taylor
v. Jaquez, 126 F.3d 1294 (10th Cir. 1997). Res. App. la-8a.

* For ease of reference, the Respondents shall be referenced as
“Plaintiffs” and the Petitioners shall be referenced as “Taylor.” Jack T.
Taylor was the principal defendant when this quiet title action was filed
in 1981. After his death, he we succeeded by his son, Zachary Taylor,
as estate executor, who subsequently sold the Taylor property to the
current owners while the case was pending before the Colorado courts.

* Lobato v. Taylor, 71 P.3d 938 (Colo. 2002) is hereinafter refer-
enced as “Lobato I,” and Lobato v. Taylor, 70 P.3d 1152 (Colo. 2003) is
hereinafter referenced as “Lobato II.”

This Court’s denial of the Petition for Writ of Certiorari in
that action is reported at Taylor v. Jaquez, 523 U.S. 1005
(1998). Res. App. 15a.

4
-

RESPONSE TO STATEMENT OF JURISDICTION

As explained in greater detail below, to the extent that
the Petition purports to seek review of claimed errors in
the 1994 Rael decision, it is untimely. Under the holding of
Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975), that
decision was a final judgment for the purposes of 28 U.S.C.
§ 1257. The ninety day time limit for filing the petition set
forth in 28 U.S.C. §2101(c) is mandatory and jurisdic-
tional. FEC v. NRA Political Victory Fund, 513 U.S. 88
(1994); Gibson Distributing Co. v. Downtown Development
Ass’n, 439 U.S. 1000 (1978).

Further, the due process issues that are asserted in
the Petition (Questions Nos. 1A and 1B) were never raised
by Taylor in his arguments to the Colorado Supreme
Court. Therefore, based on the “not pressed or passed
upon” rule, this Court does not have appellate jurisdiction
under 28 U.S.C. § 1257, or, alternatively, this Court should
deny the Petition as a “prudential restriction.” See Illinois
v. Gates, 462 U.S. 213 (1983).

Questions Nos. 2 and 3 in the Petition are not prop-
erly raised under 28 U.S.C. § 1257 because the Colorado
Supreme Court ruled in favor of Taylor on those issues.“

* Further, Taylor’s argument in Question No. 2 is a change of
position from his previous arguments to the Colorado Supreme Court,
(Continued on following page)

3

See Lobato I in Petitioners’ Appendix (hereinafter “Pet.
App.”) at 58a-59a; see also (1) the trial court’s summary
judgment against Plaintiffs on their claim based on
Mexican law, concluding that any rights that the Plaintiffs’
predecessors had under Mexican law were extinguished by
the 1860 Act of Confirmation, Pet. App. 218a-219a, and (2)
decision of the Colorado Court of Appeals, affirming
summary judgment on that claim, Pet. App. 179a-184a.

Finally, this Court lacks jurisdiction under 28 U.S.C.
§ 1257 because Taylor has failed to identify any federal
questions. The Rael decision was the Colorado Supreme
Court’s interpretation of the notice provision of a state
statute. Pet. App. 153a; Res. App. 7a, 8a. Further, while in
Lobato I the Colorado Supreme Court denied Plaintiffs’
alternative claims under Mexican and international law, it
ruled for them on their Colorado state property law claims.
Pet. App. 56a-8la. This Court does not have jurisdiction
under 28 U.S.C. § 1257 to review the Colorado Supreme
Court’s state law determinations.

ee
v

STATEMENT OF THE CASE
A. Introduction

This state court quiet title action arises from a land
rights dispute between private landowners in Costilla
County, Colorado. The Plaintiffs are successors in title of
original Mexican settlers, who, in the nineteenth century,

and, therefore, there is no jurisdiction for this Court to consider that
question.

4

settled in a region of southern Colorado known as the San
Luis Valley.” The Petitioners, collectively referenced herein
as Taylor, are the former and current owners of a large
tract of land known today as the Taylor Ranch,’ encom-
passing approximately 80,000 acres located next to Plain-
tiffs’ properties.’ The trial court in this action made the
factual determination that for more than one hundred
years after the original Mexican settlement of the San
Luis Valley, Plaintiffs’ predecessors in title, and then
Plaintiffs themselves, continuously exercised their rights
to graze their pasture animals, remove timber and gather
firewood (hereinafter collectively referenced as “access
rights”) on the land that is now known as the Taylor
Ranch. Pet. App. 50a, 63a. In the last forty years, since
Jack T. Taylor purchased the La Sierra portion of the
Taylor Ranch in 1960, and then the Salazar tract in 1973,
Taylor has disputed these rights and, in so doing, has
attempted to re-write Colorado history. Taylor has argued
that, although the rights had admittedly been exercised

* In Lobato I, the Colorado Supreme Court concluded that this
period of settlement occurred after jurisdiction over this land was ceded
by Mexico to the United States in the 1848 Treaty of Guadalupe
Hidalgo. Pet. App. 58a, n.4.

* The mountainous portion of the Taylor Ranch is commonly
referenced as “La Sierra,” and a tract of approximately 2,500 acres that
is the access point to the mountain is known as the “Salazar tract.”

" The Plaintiffs’ properties are small farms, ranches and town lots
in the historic communities adjacent to the Taylor Ranch.

* Plaintiffs and their predecessors also hunted, fished and
recreated on what is now the Taylor Ranch for over a century. In a well-
reasoned, concurring opinion in Lobato I, Justice Martinez wrote that,
in his view, Plaintiffs established at trial that they were entitled to
these rights as well as the rights to graze, timber and gather firewood.
Pet. App. 83a-95a.

5

for over a century, they had been technically extinguished
in 1860 by a congressional act (the 1860 Act of Confirma-
tion) that confirmed a Mexican land grant claim of Charles
(Carlos) Beaubien. However, three years after this Act,
Beaubien executed the 1863 Beaubien Document which
guaranteed that “all inhabitants will have enjoyment of
benefits of pastures, water, firewood and timber, always
taking care that one does not injure the other.” Pet. App.
52a.” In its opinion in Lobato I, the Colorado Supreme
Court applied state property law to bring reason and
history onto the same page.

Question No. 1A in the Petition challenges what
Taylor now characterizes as a “novel” application of the
Due Process Clause by the Colorado Supreme Court in its
1994 Rael decision. However, in the nine years since that
opinion was issued, not a single court in the country —
state or federal — has issued a published decision criticiz-
ing or otherwise disagreeing with it. In short, Taylor
argues that this state quiet title action is barred by a
previous action filed in 1960 by Jack T. Taylor, under the
Colorado Torrens Title Registration Act in the United
States District Court for the District of Colorado. In 1986,
the trial court in the present litigation agreed with Taylor,
granting his motion for summary judgment (Pet. App.
231a), even though Plaintiffs had submitted affidavits and
other evidentiary materials which established that, in

* The execution of the Beaubien Document, in 1863, occurred two
years after Colorado became a Territory. Before Colorado became a
Territory, the property in question was part of the Territory of New
Mexico, Pet. App. 252a, which Territory was established in 1850.
Leitensdorfer v. Webb, 61 U.S. 176, 181 (1857).

6

1960, Taylor and his Torrens attorney had actual knowl-
edge that claims to the access rights were asserted by all
landowners in Costilla County, and, yet, Taylor had
utilized service by newspaper publication to notify Plain-
tiffs of the Torrens action. Pet. App. 125a-128a. In Rael,
the Colorado Supreme Court directly construed the provi-
sions of the Colorado Torrens Title Registration Act, Colo.
Rev. Stat. § 38-36-101, et seqg., Pet. App. 255a-268a, and
concluded as follows:

When construed together, these sections [of the
Colorado Torrens Title Registration Act] disclose
the [Colorado] General Assembly’s intent to re-
quire applicants to exercise reasonable diligence
in ascertaining the names and addresses of per-
sons having any interest in the subject property
and therefore required to be listed in the applica-
tion and personally served.

Pet. App. 153a.

Based on this interpretation of Colorado’s Torrens Act,
the Colorado Supreme Court reversed the summary
judgment and remanded the case for a factual determina-
tion of whether Taylor exercised reasonable diligence in
ascertaining the names and addresses of persons claiming
an interest in the subject property. The portion of the Rael
opinion in which the Colorado Supreme Court considered
this Court’s prior due process case law was a correct and
well-supported analysis. As the evidence before the Court
established that Taylor and his attorney had actual
knowledge of the claims of all landowners in the county,
and that landowners in the county were all readily ascer-
tainable from county tax rolls, this Court’s prior due
process case law, as well as the state Torrens Act, clearly

precluded service by newspaper publication. See e.g.,
Schroeder v. City of New York, 371 U.S. 208 (1962).

The treatment of the Torrens action in Lobato II
shows the reasonableness and balance in the Colorado
Supreme Court’s approach to this case. In that decision,
the Colorado Supreme Court partially agreed with Taylor.
Applying res judicata,” it ruled that the Torrens action
barred the claims of any persons who were personally
named and served in that action and any persons whose
1960 predecessors in title were personally named and
served. Pet. App.25a. However, with respect to those
Plaintiffs who were served by newspaper publication or
whose 1960 predecessors were served by publication, res
judicata does not bar their claims. Jd. That conclusion was
a fact-driven analysis, based on the Colorado Supreme
Court’s review of the voluminous factual record of this
case, which supports the finding that Taylor did not
exercise reasonable diligence in ascertaining the names
and addresses of persons claiming an interest in the
subject property. Pet. App. 16a-25a.

The property law issues decided by the Colorado
Supreme Court in favor of the Plaintiffs in Lobato I were
also based on the application of state law to facts and
circumstances that are unique to this case. Questions Nos.
2 and 3 in the Petition purport to raise complex issues of
Mexican and international law. However, the Colorado
Supreme Court ruled against Plaintiffs and in favor of

* In Lobato II, the Colorado Supreme Court expressed its
preference for the term “claim preclusion” but used the term “res
judicata” to be consistent with its 1994 decision. Pet. App. 4a.

8

Taylor on Plaintiffs’ claims under Mexican and interna-
tional law. Pet. App. 58a-59a, 218a-219a, 179a-184a.
Although it is unclear in the Petition, the only claims that
the Colorado Supreme Court decided for the Plaintiffs
were their state law claims for prescriptive easements,
easements by estoppel, and easements from prior use. Pet.
App. 59a-8la. Those claims are largely based on the
factual circumstances surrounding the execution of the
Beaubien Document in 1863 — three years after the 1860
Act of Confirmation that is the centerpiece of Taylor’s
argument No. 3 that this case turns on the application of a
federal statute. Taylor’s principal argument against these
state law claims is the factual assertion that the Beaubien
Document was intended to grant access rights on lands
located elsewhere than on what is now known as the
Taylor Ranch. Petition at 13. However, after a full analysis
of the record in this case, the Colorado Supreme Court
decided that the evidence presented at trial “resolves any
doubt that the access rights were meant to burden Taylor’s
land.” Pet. App. 63a-64a. Although the Petition barely
mentions the 1863 Beaubien Document, the Lobato I
decision is, at bottom, an analysis and application of state
property law to facts surrounding the execution of that
Document and more than one hundred years’ usage of the
access rights after it was executed. This fact-based, state
property law decision does not present any issues that are
appropriate for review by this Court.

B. Response to Taylor’s Background Statement
Regarding Mexican Law and the History of
the Sangre de Cristo Grant.

Even though the Colorado Supreme Court denied
Plaintiffs’ Mexican law claim, Taylor asserts that the

9

Colorado Supreme Court erred in Lobato I and II by not
applying Mexican law to determine the validity of Plain-
tiffs’ access rights. This is a stunning reversal of position
for Taylor, who, throughout the litigation, has asserted
that Mexican law and custom do not apply because the
Plaintiffs have been unable to establish that Mexican
settlers arrived in the San Luis Valley prior to the Treaty
of Guadalupe Hidalgo in 1848." Even back in the Torrens
action, the Tenth Circuit Court of Appeals’ decision was
largely based on an interpretation of Colorado property
law advocated by Taylor (Sanchez v. Taylor, 377 F.2d 733,
737-39 (10th Cir. 1967)) which the Colorado Supreme
Court has now found to be incorrect. In any event, if
nineteenth century Mexican law and custom were to be
applied in this case to determine the validity of the access
rights, Plaintiffs would have prevailed on that alternative
claim, in addition to their state law claims. The Colorado
courts were provided expert legal analysis of nineteenth
century Mexican law and custom — never rebutted by
Taylor other than by argument of counsel — which estab-
lished both the validity and enforceability of Plaintiffs’
rights under nineteenth century Mexican law.

In sum, Plaintiffs’ Mexican law position was based on
promises that the original grantees made in their 1843
petition to the Mexican government for the Sangre de
Cristo land grant. The grant petition promised that the

" The Colorado Supreme Court accepted Taylor’s argument
against the Mexican law claim stating: “We agree that landowners
cannot claim rights under Mexican law. Their predecessors in title did
not settle on the Sangre de Cristo grant until after the land was
ceded... .” Pet. App. 58a.

10

original grantees would commence settlement of the grant
“until the colony shall be established and permanently
fixed, . . .” See Tameling v. United States Freehold and
Emigration Co., 93 U.S. 644, 647 (1876). Plaintiffs’ experts
explained that under Mexican law, this promise required
that land be set aside for the communal use of settlers to
graze, gather firewood and timber. Pet. App. 64a. In
reliance on the belief that these were enforceable rights,
Mexican families moved hundreds of miles into the wil-
derness and, without these rights, these settlers would not
have survived. Pet. App. 80a.

Taylor argues that these rights, to the extent they
were established under Mexican law, were extinguished
because the original Mexican settlers failed to present
claims in a process under an 1854 statute designed to
comply with the United States’ obligation under the Treaty
of Guadalupe Hidalgo to protect Mexican land rights.
However, when Carlos Beaubien presented his claim to the
Sangre de Cristo grant under this statute, he was not
seeking to extinguish these settlers’ rights. In his petition
to the surveyor general, he asserted that he had complied
with Mexican law by establishing permanent settlements
on the grant. See Tameling, 93 U.S. at 654 (“Claimant is
prepared further to prove, if deemed necessary, that since
the said grant came into his possession he has had made
extensive settlements on the same, and that it is becoming
under his ownership rapidly populated.”). While Plaintiffs
and Taylor disagree about the legal effect of the confirma-
tion process on the access rights, that dispute does not
present an issue for review by this Court because the

11

Colorado Supreme Court agreed with Taylor and ruled
that Plaintiffs cannot claim the rights under Mexican law.
Pet. App. 58a.” _

C. Response to Taylor’s Background Statement
Regarding the Torrens Action.

After the access rights had been exercised for more
than a century, Jack Taylor purchased the La Sierra
portion of the Taylor Ranch in 1960, and he promptly
commenced the Torrens action to try to extinguish the
rights. Taylor spends two pages of the Petition purporting
to explain the Colorado Torrens Act. This discussion
neglects to mention that in Rael, the Colorado Supreme
Court explicitly interpreted this state statute as requiring
Torrens applicants to exercise reasonable diligence in
ascertaining the names and addresses of persons having
any interest in the subject property and personally serving
those persons. Pet. App. 153a. The essence of the subse-
quent Lobato II decision was the Colorado Supreme
Court’s analysis of the factual record of this case, leading
to the Court’s conclusion that Taylor did not exercise
reasonable diligence in ascertaining the names and

* In Tameling, this Court affirmed the decision of the Colorado
Supreme Court that the Sangre de Cristo grant was a valid grant under
Mexican law. See 2 Colo. 411 (Colo. 1874). That case does not affect
Plaintiffs’ state law property claims that were the basis of the decision
in Lobato I. The fact that the Sangre de Cristo grant was a valid grant
under Mexican law did not preclude Beaubien from conveying the
access rights to Plaintiffs’ predecessors after the confirmation process.
As well, it did not preclude Plaintiffs from acquiring the rights by
prescription based on undisputed continuous use for more than a
century after the confirmation process.

12

addresses of persons having claims to the access rights on
the Taylor Ranch. This determination was a factual
analysis, based on Taylor’s and his attorneys knowledge
that all landowners in Costilla County” had claims to the
disputed access rights and that the identity of every
landowner in the county was readily ascertainable from
county tax rolls.

As set forth in both Rael and Lobato II, the record in
this case is replete with evidence that supports this factual
determination. First, Taylor knew from the Beaubien
Document, the 1864 Gilpin Agreement (in which
Beaubien’s immediate successor agreed to recognize the
access rights) and Taylor’s own deed that landowners in
Costilla County had an interest in the Taylor Ranch. Pet.
App. 17a-18a, 125a-126a. Second, the lawyer who repre-
sented Taylor in the Torrens action had previously repre-
sented Costilla County landowners and had written a
formal opinion letter rendering the opinion that land-
owners were entitled to the rights by virtue of their
status as landowners. Pet. App.18a, 127a. Third, the

* The boundaries of Costilla County roughly encompass the same
area that was the Colorado portion of the Sangre de Cristo grant.

“* Taylor’s lawyer in the Torrens action published an interview in
1998 in which he acknowledged that the 1960 Torrens action was filed
in federal district court in Denver — roughly 250 miles from Costilla
County — to avoid “possible conflicts.” Pet. App. 19a; see Tom Faxon, “An
Oral History: Raphael J. Moses,” The Colorado Lawyer, March 1998,
Vol. 27, No. 3, 115. That published interview disclosed an ex parte
meeting between Taylor’s Torrens attorney and a federal judge in
Denver to develop the legal strategy for bringing the case in federal
court. That same judge later signed the order for service by newspaper
publication. It also reveals other conflicts that further tainted the
Torrens action.

13

court-appointed examiner of title issued a report as part of
the record in the Torrens action stating that the rights
were claimed by “all owners of land in Costilla County.”
Pet. App. 19a, 126a-127a.

In addition to this evidence, the record in this case
contains the actual 1959 and 1960 Costilla County tax
rolls from the County Assessor’s Office. Pet. App. 23a
(“According to the record, the Costilla County tax rolls
provided the names and addresses of every landowner in
Costilla County.”). Based on an exhaustive study of the
record, the Colorado Supreme Court determined in Lobato
II that, as a whole, when taking into account expert
testimony and information at Taylor’s disposal at the time
he. filed his Torrens application, Taylor did not exercise
reasonable diligence in ascertaining the names and ad-
dresses of persons having claims to the access rights on
the Taylor Ranch. Pet. App. 25a.

Finally, with regard to the original Torrens action, this
Court should note that the United States District Court
for the District of Colorado and the Tenth Circuit Court of
Appeals decided the case based, in part, on federal law
and, in part, on Colorado property law. See Sanchez v.
Taylor, 377 F.2d 733. In Lobato I, the Colorado Supreme
Court agreed with the federal courts’ analyses of federal
law, but differed with those courts’ application of state law,
both in the analysis of the Beaubien Document and in the
application of the Colorado law of prescription.

D. Response to Taylor’s Background Statement
Regarding the Proceedings.

In his discussion of the “proceedings below” (Petition
at 11), Taylor describes the Rael decision, without

14

explaining that, at its core, that decision is the Colorado
Supreme Court’s interpretation of a Colorado statute. Pet.
App. 153a. The Colorado Supreme Court did not rule that
any provision-of the Colorado Torrens Act is unconstitu-
tional. To the extent that it took into account due process
considerations in construing the state legislature’s inclu-
sion of notice requirements in the Colorado Torrens Act,
the Colorado Supreme Court properly understood this
Court’s due process case law.

While the Rael decision does not raise any constitu-
tional issues that are appropriate for review by this Court,
the due process issues that the Petition now seeks to raise
are all issues that should have been pursued in 1994.
Taylor’s case statement does not mention that, rather than
filing a petition for writ of certiorari at that time,” Taylor
filed a separate federal lawsuit to enjoin the Colorado
courts from proceeding with the remand. In dismissing the
Taylor v. Jaquez action, the Honorable Zita L. Weinshienk,
of the United States District Court for the State of Colo-
rado, stated as follows:

... [T]he issue is whether we’ve got an im-
portant state interest here that has to be decided
and should therefore require this court to abstain
in favor of letting the state decide some of these
issues.

It appears to me that in these areas that
have been pointed out, the access to courts for

* Both the United States District Court for the District of Colorado
and the Tenth Circuit Court of Appeals specifically noted in their
Jaquez decisions that Taylor had failed to timely seek review of the
Rael decision by this Court. Res. App. 3a, lla.

15

state citizens, the interpretation of the state Tor-
rens Act as it goes to notification, who should be
notified and how they should be notified in thiis
type of action — these are indeed important state
issues. But perhaps the — one of the most impor-
tant state issues in this court’s view is the — is
the state citizen’s access to state lands and the
issues concerning access to land, and the state
interest in access to the land is a great state is-
sue, certainly isn’t a federal issue, unless we’ve
got federal parks involved.

But in all of these areas, the access to courts,
the access to lands, the interpretation of Torrens
as it goes to notification of parties, all of these, it
seems to me, involve strong state issues. And ba-
sically, I think this is what the Colorado Su-
preme Court said. And they did not take their
ruling lightly. They gave the decision more than
20 pages of discussion, so it was something which
has been very deeply considered by the Colorado
Supreme Court.

Res. App. 12a.

In its review of the dismissal, the Tenth Circuit Court
of Appeals — which had also issued the final decision in the
Torrens action that Taylor sought to enforce — echoed
Judge Weinshienk’s conclusion that this case raises
compelling state interests thiat should be decided by
Colorado courts. Res. App. 7a-8a. Finally, this Court then
denied Taylor’s petition for writ of certiorari, seeking
review of the Tenth Circuit’s unfavorable Jaquez decision.
Res. App. 15a.

After the remand to Costilla County district court
following the Rael decision, over Plaintiffs’ objections,
there were two separate trials — one on the adequacy of

16

publication notice in the Torrens action” and the other on
the merits of Plaintiffs’ claims. Taylor was given every
opportunity to present whatever evidence he had in
support of his positions.

When the case returned to the Colorado Supreme
Court for Lobato I, initially the only issue before the Court
was review of the rulings against Plaintiffs on the merits
of their three property law claims — a claim based on the
Beaubien Document, a claim based on Colorado law of
servitudes, and a claim based on Mexican and interna-
tional law. With respect to the first two claims, the only
arguments asserted by Taylor were based on the applica-
tion of Colorado law to the evidence in the extensive record
of this case. Taylor did not argue — as he does now -— that
Mexican law and the 1860 Act of Confirmation somehow
bar these state law claims.

In Lobato I, after determining, based on its review of
the evidence, that Plaintiffs prevailed on their state law
claims, the Colorado Supreme Court elected to retain
jurisdiction to resolve Plaintiffs’ remaining issues on
appeal regarding the misapplication of res judicata by the
trial court. The Court stated: “As a matter of judicial
economy, and as a matter of fairness, given the forty-one
year denial of access to the Taylor Ranch and this twenty-
one year litigation, we decline to remand this case to the
court of appeals for a determination of this issue.” Pet.
App. 82a.

* The trial court also considered the adequacy of service by
publication in the 1960 Salazar quiet title action in state district court
in Costilla County.

17

In his brief to the Colorado Supreme Court pertaining
to Lobato II, Taylor did not argue, as he now asserts in the
Petition, that the Rael decision was an erroneous analysis
of due process. Instead, he argued that the trial court
properly applied the Rael test by determining that Taylor
exercised reasonable diligence except in his failure to
name and serve those Plaintiffs (or their 1960 predeces-
sors in title) who were identifiable from grazing activity on
Taylor Ranch that was easily discernible from a visible
inspection of his land in 1960.

Following Lobato II, the Colorado Supreme Court
denied Taylor’s petition for rehearing and Taylor’s sepa-
rate motion for recall and stay of mandate. After twenty-
two years of litigation, this case is now in its final stage of
resolution in the Costilla County district court.

+

ARGUMENT

A. The Petition Is Untimely to the Extent That It
Seeks Review of the Rael Decision.

The time limit for seeking Supreme Court review in
civil cases is mandatory and jurisdictional. 28 U.S.C.
§ 2101(c); FEC v. NRA Political Victory Fund, 513 U.S. 88;
Gibson Distributing Co, v. Downtown Development Ass’n,
439 U.S. 1000 (1978). Pursuant to 28 U.S.C. § 2101(c), a
petition for a writ of certiorari must be filed within ninety
days of a judgment or decree. The Rael decision, rendered
in 1994, was clearly a judgment or decree within the
meaning of this statute, and, therefore, to the extent that
the Petition seeks review of that decision, it is barred.

In Cox Broad. Corp. v. Cohn, 420 U.S. 469, this Court
determined when a state court decision is a final judgment

18

under 28 U.S.C. § 1257 for purposes of seeking Supreme
~ Court review. This Court included, as final judgments:

... those situations where the federal issue has
been finally decided in the state courts with fur-
ther proceedings pending in which the party
seeking review here might prevail on the merits
on nonfederal grounds, thus rendering unneces-
sary review of the federal issue by this Court,
and where reversal of the state court on the fed-
eral issue would be preclusive of any further liti-
gation on the relevant cause of action rather
than merely controlling the nature and character
of, or determining the admissibility of evidence
in, the state proceedings still to come. In these
circumstances, if a refusal immediately to review
the state court decision might seriously erode
federal policy, the Court has entertained and de-
cided the federal issue, which itself has been fi-
nally determined by the state courts for purposes
of the state litigation.

420 U.S. 469, 482-3.

Clearly, to the extent the Rael decision involved
federal due process issues that Taylor now raises in his
Petition, under Cox Broad. Corp. v. Cohn, it was a final
decision that should have been appealed in 1994.” After
missing the opportunity to file a petition nine years ago,
Taylor made the tactical decision to file the Taylor v.

” The Rael decision, which was clearly “final” under Cox, is
distinguishable from Hathorn v. Lovorn, 457 U.S. 255 (1982), in which
the earlier decision of the Missouri Supreme Court was not a final
decision.

19

Jaquez action. In dismissing that case in 1996, Judge
Weinshienk stated as follows:

And it seems to me that the way this is normally
done — and I’m not going to say that it should
have been done because there may have been
many reasons why it was not — is that if plaintiff
did not — plaintiffs did not like the decision in
Rael v. Taylor — and let’s make sure we've got
that on record: 876 P.2d 1210, which is the 1994
Colorado case, the Supreme Court of Colorado —
it should have been appealed.

Res. App. lla. The Tenth Circuit Court of Appeals also
noted that Taylor had failed to seek review of the Rael
decision. Res. App. 3a.

As stated by this Court in Cox at 478: “immediate
rather than delayed review would be the best way to avoid
‘the mischief of economic waste and of delayed justice.’”
Certainly, the history of this litigation shows the wisdom
of that policy. Since the Rael decision, this case has been
litigated for nine years, in both the Colorado state and
federal court systems, with full appellate review of every
trial court determination. To now allow Supreme Court
review of the 1994 Colorado decision would encourage
enormous inefficiencies that the mandatory and jurisdic-
tional time requirement of 28 U.S.C. § 2101(c) is designed
to avoid.

20

B. The Petition Should Be Denied Because it
Seeks Review of Due Process Issues That
Were Not Pressed or Passed upon in the Colo-
rado Supreme Court.

“Comity to the States, and ... a constellation of
practical considerations” cause this Court to review only-
issues that were pressed or passed upon by state courts.
Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71, 79
(1988). To meet this threshold, the issues asserted in a
petition for a writ of certiorari must have been raised or
squarely considered and resolved by the state court.
Illinois v. Gates, 462 U.S. at 218 n.1; Cardinale v. Louisi-
ana, 394 U.S. 437 (1969). In this case, Taylor raises two
due process issues that were neither pressed nor passed
upon by the Colorado Supreme Court, and, therefore, the
Petition should be denied.

1. Taylor Did Not Argue That the Colorado
Supreme Court Should Not Have Consid-
ered Whether Taylor and His Torrens At-
torney Had Exercised Due Diligence to
Ascertain the Identities of Interested Par-
ties In Determining the Effectiveness of
Newspaper Publication in the Torrens Ac-
tion.

Taylor’s first due process issue (Petition at 18) is
based on the assertion that, in the Rael decision, the
Colorado Supreme Court erred in considering whether
Taylor and his attorney had exercised due diligence to
ascertain the identities of interested parties in evaluating
the effectiveness of the service by newspaper publication.
However, Taylor never made this argument to the Colo-
rado Supreme Court. The Petition principally relies upon

21

an asserted conflict between Rael and this Court’s deci-
sions in Green v. Lindsey, 456 U.S. 444 (1982) and Ameri-
can Land Co. v. Zeiss, 219 U.S. 47 (1911), yet neither of
those two cases were even cited in Taylor’s briefing in
Rael. Although Taylor referenced the Zeiss decision in
passing during his briefing in Lobato II, his arguments
presented there were that the trial court had properly
applied the Rael test, without challenging the propriety of
the test itself. This due process issue that Taylor now
frames for review by this Court was never pressed by him
in the proceedings in the Colorado Supreme Court.

2. Taylor Did Not Argue to the Colorado Su-
preme Court That a Successor Cannot As-
sert the Due Process Rights of a Prior
Landowner.

Likewise, the second due process issue now framed by
Taylor for review by this Court was never argued to nor
considered by the Colorado Supreme Court. The Petition
states that there is “a deep and mature 4-2 split over this
important issue of constitutional law.” Petition at 25. This
portion of the Petition cites 10 cases — and not one of them
was cited in all of the briefing before the Colorado Su-
preme Court. Nor do the Colorado Supreme Court opinions
in any way address this issue. Based on the “not pressed
or passed upon” doctrine, this Court lacks jurisdiction to
review this issue, or alternatively should decline to utilize

22

this case, where the issue has never been addressed, as a
vehicle for now considering it.”

C. The Colorado Supreme Court Properly De-
cided That Taylor Did Not Comply with the
Notice Provisions of the Colorado Torrens Ti-
tle Registration Act.

The linchpin of Taylor’s due process argument is that,
in determining the validity of the service by publication in
the Torrens Act, the Colorado courts in this litigation
should have looked only to the notice provisions of the
state statute and not to the reasonableness of Taylor’s
conduct in failing to identify persons that claimed the
access rights. This argument fundamentally misappre-
hends the Rael decision. In Rael, the Colorado Supreme
Court construed the Colorado Torrens Act and determined

* In any event, the four cases that are asserted to establish
Taylor’s argument are either flawed because of misplaced reliance or
else they are readily distinguishable from the Rael decision. Kemmerer
Coal Co. v. Brigham Young University, 723 F.2d 54 (10th Cir. 1983) and
Shelledy v. Lore, 836 P.2d 786 (Utah 1992) were decided based on
statutes of limitation under Utah law. In the case at bar, the Colorado
courts have squarely rejected all of Taylor’s failed statutes of limitation
arguments. In United States v. Haddon, 550 F.2d 677 (1st Cir. 1977),
the discussion of due process right of predecessors was dicta in a case
that turned on the condemnor’s compliance with the notice provisions of
the statute at issue. In the case at bar, the Colorado Supreme Court
determined that Taylor did not comply with the notice provisions of the
Colorado Torrens Act. Finally, Hewitt v. Glaser Land & Livestock Co.,
626 P.2d 268 (Nev. 1981) is factually distinguishable because it involved
a prior case where the predecessor lost his title after his property was
attached and executed upon by a judgment creditor. In contrast, in the
present case, the Plaintiffs’ predecessors had exercised rights for over a
century and then — without any notice — those rights were purportedly
extinguished in the Torrens action.

23

that the Colorado General Assembly intended to “require
[Torrens] applicants to exercise reasonable diligence in
ascertaining the names and addresses of persons having
any interest in the subject property and therefore required
to be listed in the application and personally served.” Pet.
App. 153a. Since this decision is a state court’s construc-
tion of a state statute, the Petition fails to state grounds
for review under 28 U.S.C. § 1257.

D. The Decisions of the Colorado Supreme Court
Do Not Conflict with this Court’s Due Process
Decisions.

At its core, the Rael decision was the Colorado Su-
preme Court's interpretation of a Colorado statute. After
deciding, in Rael, that the notice provisions of the Colo-
rado Torrens Act require Colorado Torrens applicants to
exercise reasonable diligence in ascertaining the names
and addresses of persons having any interest in the
subject property, the Court in Lobato IJ examined the
extensive trial record and concluded that Taylor failed to
meet this standard. The record in this case amply supports
the conclusion that Taylor knew that claims to the access
rights were asserted by all landowners in Costilla County
and that all landowners in the county were readily ascer-
tainable from county tax rolls. His own attorney had
previously rendered a legal opinion that supports that
conclusion, and the court-appointed title examiner stated
in his report that claims were asserted by all landowners
in the county. The inadequacy of service by newspaper
publication under these circumstances is firmly supported
by Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S.
306 (1950), and its progeny. See Walker v. City of Hutchin-
son, 352 U.S. 112 (1956); Schroeder v. City of New York,

24

371 U.S. 208 (1962); Greene v. Lindsey, 456 U.S. 444;
Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983).
Had the Colorado Supreme Court ruled, as Taylor now
argues, that Taylor’s own lack of due diligence should not
be considered in determining the validity of service by
publication, the very essence of due process would have
been turned on its head. There is no conflict between the
Rael or Lobato decisions and this Court’s well-developed
body of law addressing due process in the context of
service by newspaper publication.

E. The Second and Third Questions Do Not
Present Any Issues for Review Because the
Colorado Supreme Court Ruled Against
Plaintiffs on Their Mexican Law Claim.

There are no federal questions for this Court to
consider with respect to the Colorado Supreme Court’s
determination of the merits of this case. The second and
third issues set forth in the Petition are not properly
raised because in Lobato I the Colorado Supreme Court
ruled against the Plaintiffs on their Mexican law claim. In
Lobato I, the Colorado Supreme Court reviewed the
extensive record of this case and applied Colorado prop-
erty law to conclude that Plaintiffs have established their
access rights. This opinion is precisely what the federal
courts in Taylor v. Jaquez concluded should be left to the
Colorado courts to decide.

25

F. Supreme Court Review in this Case Would

Add Another Unnecessary Layer of Appellate
Litigation That Would Delay Final Resolution
and Cause Injustice to Plaintiffs.

This Court should not grant the Petition because to do
so would result in even more unnecessary delay and
expense in litigation that has been pending for over
twenty years. In reaching its decisions in this case, the
Colorado Supreme Court carefully considered factual
history that is unique to Colorado. The Court recognized
that a grave injustice has been perpetrated against the
Plaintiffs, who are from a historic community located in
the poorest part of the poorest county in Colorado. In
Lobato I, the Colorado Supreme Court took the extraordi-
nary measure of retaining jurisdiction to address the
issues decided in Lobato II so that further delay in these
proceedings could be avoided. Pet. App. 82a.

For their part, Petitioners, who are among the
wealthiest landowners in Colorado, have used every
procedural device that money can buy to derail this
litigation. For twenty years Petitioners vigorously pursued
meritless Rule 11 sanctions in satellite proceedings,
appealing the denial of sanctions to the Colorado Supreme
Court in Rael (Pet. App. 156a), and then persisting with
their sanctions campaign even after the Rael decision, up
through the appellate decision that preceded Lobato I. Pet.
App. 199a. On a separate track, after Rael, Petitioners
initiated and pursued the Taylor v. Jaquez action through
the federal courts, up through a petition for a writ of
certiorari. Res. App. 15a. At the same time, in Costilla
County District Court, Taylor demanded bifurcated pro-
ceedings that further delayed resolution and added unnec-
essary layers of litigation expense. This Court should not

26

reward tactics that have the effect of making this litiga-
tion as lengthy, cumbersome and expensive as possible.

In the final analysis, U. S. Supreme Court review in
this case would not be appropriate because the Colorado
Supreme Court’s decisions in Rael and Lobato I and II are
carefully considered and well-reasoned opinions, based on
state law, that reach a proper result. Plaintiffs and their
predecessors exercised the access rights for more than a
century until Taylor bought his ranch and then com-
menced his efforts to re-write history. The Colorado Su-
preme Court has properly determined that the unique
facts and circumstances of this case, considered through
the lens of Colorado property law, compel the conclusion
that Plaintiffs have established their access rights. While
this result is far-reaching in its implications for the
Plaintiffs, its precedential effect and potentia! impact on
other land titles is limited because of the unusual factual
context in which the case arises. In short, there are no
good reasons for this Court to grant the Petition. Instead
of adding further delay and expense of an appeal, in which
this Court would surely affirm the decisions of the Colo-
rado Supreme Court, this Court should leave these state
court proceedings to continue to their conclusion.

&
7

27

CONCLUSION

For the foregoing reasons, the Petition should be

denied.

JEFFREY A. GOLDSTEIN
BRAUER, BUESCHER,
GOLDHAMMER & KELMAN, P.C.
1563 Gaylord Street

Denver, CO 80206

(303) 333-7751

WATSON GALLEHER

DON, HILLER & GALLEHER, P.C.
1737 Gaylord Street

Denver, CO 80206

(303) 572-1668

JULIA T. WAGGENER
Walters & Joyce, P.C.
2015 York Street
Denver, CO 80205
(303) 322-1404

DAVID MARTINEZ

Respectfully submitted,

NORMAN D. HAGLUND*

KELLY | HAGLUND |
GARNSEY + KAHN LLC

1441 18th Street,
Suite 300

Denver, CO 80202

(303) 296-9412

WILLIAM F. SCHOEBERLEIN
LITTLER MENDELSON, P.C.
1200 17th Street,

Suite 2850
Denver, CO 80202
(303) 575-5866

ELISABETH ARENALES
4508 Quitman Street
Denver, Co 80212
(303) 573-3719

2000 Perry Street ROBERT MAES
Denver, CO 80212 1610 Gaylord Street
(308) 477-8021 Denver, CO 80206
(303) 377-4449
Counsel for Respondents

November 6, 2003

*Counsel of Record

la

APPENDIX A

OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE TENTH CIRCUIT
FILED OCTOBER 10, 1997

No. 96-1426

ZACHARY TAYLOR, as Executor of the Estate of Jack T.
Taylor, Jr., deceased; TAYLOR FAMILY PARTNERSHIP,

Plaintiffs-Appellants,
v.

CHARLIE JAQUEZ, JR.; PETE E. ESPINOZA, ELMER
MANUEL ESPINOZA, JOE A. GALLEGOS, ROBERT
ROMERO, Individually and as representatives of a pro-
posed class of some 110 plaintiffs in civil action No. 81CV5
now pending in the District Court of Costilla County,
Colorado,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLORADO
(D.C. No. 96-Z-776)

Albert B. Wolf, Woif & Slatkin, P.C., Denver, CO, for
Plaintiffs-Appellants.

Jerry P. Gordon, Esq. (Jeffrey A. Goldstein, Esq., Denver,
CO, and Watson W. Galleher, Esq., Don, Hiller & Galleher,
PC, Denver, CO, with him on the briefs), Boulder, CO, for
Defendants-Appellees.

Before PORFILIO, ANDERSON, and BALDOCK,
Circuit Judges.

2a

PORFILIO, Circuit Judge.

This appeal presents the question of whether the
United States District Court of the District of Colorado
properly abstained from enforcing a judgment entered in a
federal quiet title action because of pending state court
litigation over the rights of individuals challenging appel-
lants’ interest in the land. We conclude these circum-
stances require abstention by federal courts and affirm the
judgment of dismissal.

I. BACKGROUND

In the beginning, the 77,524 acre Taylor Ranch was
part of an 1844 grant of a million acres of land bestowed
by -the Mexican governor of New Mexico upon Narcisco
Beaubien and Stephen Luis Lee.’ After the grantees’
deaths, much of the land in the Sangre de Cristo Grant,
particularly parcels in an area designated the Rito Seco,
were conveyed, although the land at issue here, “La
Sierra,” the Mountain Tract, was not sold until 1960 when
Jack Taylor, a resident of North Carolina, purchased it.
Located southwest of the town of San Luis in Costilla
County, Colorado, the tract contains the only privately
owned 14,000 foot mountain in the state. Mr. Taylor’s deed
to La Sierra recognized all existing rights-of-way and was
“also subject to claims of the local people by prescription or
otherwise to right to pasture, wood, and lumber and so-
called settlements [sic] rights in, to and upon said land,
but not subject to rights granted by the party of the first

* A more comprehensive history is detailed in Rael v. Taylor, 876
P.2d 1210 (Colo. 1994).

3a

part or its predecessors from and after January l,
1900.... ” Rael v. Taylor, 876 P.2d 1210, 1214 (Colo.
1994) (Rael). The representation and substance of the
“claims of the local people” dating back to the original
grant impel the litigation presently pending in the state
district court of Costilla County albeit the federal court’s
order quieting title granted to Jack Taylor in his 1960
Torrens Title Registration diversity action. Sanchez uv.
Taylor, 377 F.2d 733 (10th Cir. 1967) (Taylor I).

To preserve that judgment, Zachary Taylor, as Execu-
tor of the Estate of Jack C. Taylor, and the Taylor Family
Partnership (Taylor, collectively) filed the present action,
Taylor II, under 28 U.S.C. § 2283 in the United States
District Court for the district of Colorado to enjoin the 110
plaintiffs in the Costilla County lawsuit from attacking
the validity of the Final Decree of Confirmation of Title
and Registration entered in 1965 (the Decree). The Decree
had become imperiled by a 1994 Colorado Supreme Court
decision which construed the notice requirements of the
Colorado Torrens Title Act and concluded, as a matter of
state law, the 1960 federal action may not have provided
constitutionally adequate publication notice sufficient to
constitute a binding judgment on those not served. The
Colorado Supreme Court thus reversed a state court order
dismissing the case on res judicata grounds and remanded
for resolution of the factual issues surrounding plaintiffs’
due process claims. Rael, 876 P.2d at 1227. Taylor did not
seek further review of that decision, and it now stands as
the law of the case.

As such, defendants here, as individuals and class
representatives of “some 110 Plaintiffs in Civil Action No.
81CV5 now pending in the District Court of Costilla
County, Colorado,” moved to dismiss Taylor II under Fed.

4a

R. Civ. P. 12(b)(6) on the grounds that Younger abstention,
Younger v. Harris, 401 U.S. 37 (1971), application of the
principles of Parsons Steel, Inc. v. First Alabama
Bank, 474 U.S. 518 (1986), and the sound policies under-
lying the Anti-Injunction Act compel a federal court to
avoid interfering with pending state proceedings.

At the close of a hearing, the district court ruled from
the bench after converting the motion to dismiss into one
for summary judgment under Fed. R. Civ. P. 56(c) because
matters outside the pleadings had been presented. The
court agreed two of the requisites for Younger abstention
were present, the parties having conceded there are
ongoing state proceedings and Taylor has an opportunity
to raise his federal claims in that forum. It further con-
cluded, as a matter of law, important state interests
involving the access to the courts for state citizens, the
interpretation of the notification provisions of the Colorado
Torrens Act, the state’s interest in access to lands, and
citizens’ access to state lands precluded it from adjudicat-
ing the claim before it. In addition, the court held Rael
explicitly determined the preclusive effect of the state
judgment, and on that basis, the principles of federalism
and comity articulated in Parsons Steel, Inc. demanded
noninterference. Summary judgment of dismissal was
entered, and Taylor appealed.

II. STANDARD OF REVIEW

Although what the district court did amounts to
denying a preliminary injunction, an order we review for
abuse of discretion, Lundgrin v. Claytor, 619 F.2d 61, 63
(10th Cir. 1980), more precisely, we have before us a
motion for dismissal under Fed. R. Civ. P. 56(c) which is

5a

predicated on Younger abstention. We have not previously
addressed the applicable standard of review’ although
other circuits have and provide guidance. Recognizing the
elusiveness of the standard often applied to review
Younger abstention, the Seventh Circuit observed because
“application of the Younger doctrine is absolute... when a
case meets the Younger criteria,” there is no discretion for
the district court to exercise. Trust & Inv. Advisers, Inc.
v. Hogsett, 43 F.3d 290, 294 (7th Cir. 1994). Review,
therefore, of the decision to abstain is de novo, the Seventh
Circuit held. We agree. Although positioned on the tip of
Rule 56(c) which also merits plenary review, that exami-
nation is sharpened by the legal determination of whether
the requisites of Younger abstention have been satisfied.
See also Brooks v. New Hampshire Supreme Court, 80
F.3d 633, 637 (1st Cir. 1996); Kenneally v. Lungren, 967
F.2d 329, 331 (9th Cir. 1992), cert. denied, 506 U.S. 1054
(1993); Traughber v. Beauchane, 760 F.2d 673, 675-76
(6th Cir. 1985). To insure they have, we must be sensitive
to the competing tension between protecting federal
jurisdiction and honoring principles of Our Federalism
and comity. Our review therefore is de novo.

? In Ramos v. Lamm, 639 F.2d 559, 564 n.4 (10th Cir. 1980), the
court described the decision to abstain as “largely committed to the
discretion of the district court,” in concluding “there was no error or
abuse of discretion by the district court in declining to abstain from
hearing this constitutional case....” Id. at 565. We thus affirmed the
exercise of jurisdiction based on the final judgment for injunctive relief
the district court had entered under Fed. R. Civ. P. 54(b).

6a

Ill. YOUNGER ABSTENTION

“Since the beginning of this country’s history Congress
has, subject to few exceptions, manifested a desire to
permit state courts to try state cases free from interfer-
ence by federal courts.” Younger v. Harris, 401 U.S. 37,
43 (1971). To assure this end, Younger articulated a nar-
row exception now applied to state criminal, Younger, 401
U.S. at 37; civil, New Orleans Public Serv., Inc. v.
Council of City of New Orleans, 491 U.S. 350 (1989); or
administrative proceedings, Ohio Civil Rights Commis-
sion v. Dayton Christian Schools, Inc., 477 U.S. 619
(1986), which commands a federal court to abstain from
exercising jurisdiction when three conditions have been
established. First, there must be ongoing state criminal,
civil, or administrative proceedings. Second, the state
court must offer an adequate forum to hear the federal
plaintiff’s claims from the federal lawsuit. Third, the state
proceeding must involve important state interests, mat-
ters which traditionally look to state law for their resolu-
tion or implicate separately articulated state policies.
Seneca-Cayuga Tribe of Oklahoma v. State of Okla-
homa ex rel. Thompson, 874 F.2d 709, 711 (10th Cir.
1989). In this case, the parties agree the first two requi-
sites are present. However, the absence of the third ele-
ment of an important state interest presented, Taylor
contends, requires the district court to exercise jurisdiction
and grant injunctive relief.

Taylor portrays the state proceeding as one involving
“only claims of private individuals to engage in activities
upon the privately-owned land of the Taylor Family.”
Based on this characterization, Taylor urges state citizens
access to the courts, resolution of property claims, and
access to land are not cognizable for Younger abstention

bd

7a

and would render meaningless the relitigation exception to
the Anti-Injunction Act. 28 U.S.C. § 2283. Instead, Taylor
maintains, we should enforce the thirty-two year old
judgment quieting title based on application of Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306
(1950), which ascertained that constitutionally sufficient
notice was afforded all interested parties.

Nonetheless, it is critical to recognize the prior federal
action was premised on diversity jurisdiction in which
Jack Taylor, a resident of North Carolina, notified citizens
residing around his property in southern Colorado of his
intention to register his title to the 77,524 acre tract in
compliance with the statutory scheme set out in Colorado’s
Torrens Title Registration Act, now codified at Colo. Rev.
Stat. §§ 38-36-101 through 38-36-198 (1982 & 1993 Supp.).
The federal court applied state law in that action and
principally focussed on whether the alleged prescriptive
rights of defendants vested any legal rights in them
adverse to establishing Taylor’s clear title. In that deci-
sion, the court made only passing reference to the question
of notice, indicating the number of residents served and
the defendants against whom default judgments were
entered for failure to respond to interrogatories. Taylor I,
377 F.2d at-734. However, since that decision, the Colorado
Supreme Court has comprehensively addressed the Tor-
rens Act’s notice requirements and ordered the state trial
court to apply its announced prescription in proceedings
the Supreme Court held were improperly dismissed. Rael,
876 P.2d at 1210. As the federal district court noted here,
what more important state interest is there for the state
court to address than the enforcement of its method of
registering good title to privately owned lands within the
state. That individual citizens may raise these issues does

8a

not transform the state interest into a private one. As the
Court observed in Pennzoil Co. v. Texaco, Inc., 481 U.S.
1, 13 (1987), “the importance to the States of enforcing the
orders and judgments of their courts” represents an
important state interest in administering certain aspects
of their judicial systems. Under these circumstances, to
ignore the pronouncement of the Colorado Supreme Court
by enjoining the very proceeding it reinstated to determine
whether state law was properly followed would intolerably
interfere with the judgments of state courts.

Moreover, contrary to Taylor’s suggestion, the state
court is surely competent to decide whether the notice
requirements of the Torrens Act were satisfied as to those
plaintiffs presently challenging the prior action. Indeed,
Rael demands the federal plaintiffs receive a full and fair
opportunity to litigate the constitutional claim of due
process.

IV. CONCLUSION

Our conclusion that Younger abstention applies ends
the matter. It was unnecessary for the district court to
couch dismissal on the additional ground of the preclusive
effect of the state court judgment. When equitable re-
straint is warranted, we defer to the state proceeding. We
therefore AFFIRM the order dismissing the action based
on Younger abstention.

9a

APPENDIX B

EXCERPTED HEARING
ON MOTION TO DISMISS OF THE
UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLORADO
DATED AUGUST 22, 1996

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 96-Z-776
ZACHARY TAYLOR, et al.,
Plaintiffs,
vs.

CHARLIE JAQUEZ, JR., et al.,
Defendants.

REPORTER’S TRANSCRIPT
(Hearing on Motion to Dismiss)

Proceedings before the HONORABLE ZITA L. WEIN-
SHIENK, Judge, United States District Court for the
District of Colorado, commencing at 8:50 a.m., on the 22nd
day of August, 1996, Courtroom C-400, United States

Courthouse, Denver, Colorado.

APPEARANCES

ALBERT B. WOLF and RAYMOND P. MICKLE-
WRIGHT Attorneys at Law, 745 Ptarmigan Place, 3773
Cherry Creek North Drive, Denver, Colorado, 80209,

appearing for the plaintiffs.

WILLIAM F. SCHOEBERLEIN, Attorney at Law, 950
17th Street, Suite 1600, Denver, Colorado, 80202, appear-

ing for the defendants.

10a

[33] We’d ask the Court to issue an order which will
dismiss this action, allow the action in the county of
Costilla to proceed. And we believe that it’s probably
appropriate to issue that order pursuant both to Rule 12
and to Rule 56.

Thank you very much, your Honor.

THE COURT: If the Court had indicated this as a
motion for summary judgment under 56, would there have
been anything else that would have been presented I think
we've had an considered many attachments on both sides.

MR. WOLF: The only matter is if the Court would
have a question with respect to irreparable damage or
irreparable harm, we would submit some more informa-
tion to the Court, if the Court were to make an adverse
determination based upon that issue.

THE COURT: Yes. If we get to the preliminary
injunction issue, then certainly that must be shown.

MR. WOLF: Sure.

RULING

THE COURT: Well, the argument has been very
forcefully made on both sides, both by the written material
and verbally here in court. And apparently there is cer-
tainly considerable interest, judging from a few visitors to
the courtroom. And I hope that the quality, the high
quality of this argument certainly shows to those that are
listening that [34] the legal profession certainly does take
matters such as this very seriously and that this matter
has been very fully briefed and fully argued.

lla

I'm concerned about this case, because what we
basically have is a decision of the Colorado Supreme
Court. It was not appealed. There is no request for cert. by
the plaintiffs. And basically what the plaintiffs have done
is come into the Federal Court and asked the Federal
Court to second guess the Colorado Supreme Court, and
the same issues that were presented to the Colorado
Supreme Court.

And it seems to me that indeed the way this normally
is done — and I’m not going to say should have been done
in this case because there may have been many reasons
why it was not — is that if plaintiff did not —plaintiffs did
not like the decision in Rael vs. Taylor — and let make
sure we've got that on the record: 876 P.2d 1210, which is
a 1994 Colorado case, the Supreme Court of Colorado — it
should have been appealed.

The case now is before this court, and the motion to
dismiss is on two major areas. One is Younger abstention
and the other is pursuant to the Anti-Injunction Act,
which is a federal act, saying that federal courts do not
enjoin state coverts in the — and the circumstances are
there in the exception, basically to protect its own judg-
ment, the relitigation exception which has been discussed.

[35] And the Parsons Steel case examines the
tension between the relitigation exception and the Full
Faith and Credit Act and provides what the Supreme
Court of the United States says is a way of reading both of
these consistently.

First of all, looking at Younger, it is pretty much
admitted that there is an ongoing state court proceeding
and that there is opportunity to raise the federal claims in
the state court proceeding; and the issue is whether we’ve

12a

got an important state interest here that has to be decided
and should therefore require this court to abstain in favor
of letting the state decide some of these issues.

It appears to me that in these areas that have been
pointed out, the access to courts for state citizens, the
interpretation of the state Torrens Act as it goes to notifi-
cation, who should be notified and how they should be
notified in this type of action — these are indeed important
state issues. But perhaps the — one of the most important
state issues in this court’s view is the — is the state citi-
zen’s access to state lands and the issues concerning
access to land, and the state interest in access to the land
is a great state issue, certainly isn’t a federal issue, unless
we've got federal parks involved.

But in all of these areas, the access to courts, the
access to lands, the interpretation of Torrens as it goes to
notification of parties, all of these, it seems to me, involve
[36] strong state issues. And basically, I think this is what
the Colorado Supreme Court said. And they did not take
their ruling lightly. They gave the decision more than 20
pages of discussion, so it was something which has been
very deeply considered by the Colorado Supreme Court.

Therefore, it would seem to me that on the basis of
Younger, the Younger abstention doctrine does indeed
apply; that not only is there ongoing state proceedings —
not only are there ongoing state proceedings with oppor-
tunity to raise these federal claims, because indeed they
were raised in the Colorado Supreme Court, but there are
important state interests, more than one, as pointed out.

However, in addition to the Younger case, I think
that this case falls within the Parsons Steel doctrine.
And the fact that where a state court makes a decision on

ida

res judicata as stated by Parsons Steel — and I want to
given the cite on that, too: 414 U.S. 518. On page 524 of
that decision, it says that once the state court has finally
rejected a claim of res judicata, then the Full Faith and
Credit Act becomes applicable and federal courts must
turn to state law to determine the preclusive effect of the
state court’s decision.

In Rael vs. Taylor, we do have, as I’ve indicated,
extensive consideration of whether the lower decision on
res judicata should be upheld. And on page 1229 of the
Rael decision, the Supreme Court of Colorado says the
following: [37] First of all, it says that the judgment of the
Court of appeals is affirmed insofar as it uphe!d the trial
court’s denial of attorney’s fees. Then it goes on to say that
it’s reversed insofar as it held the petitioner’s claims are
barred by the doctrine of res judicata; so to that extent, the
Colorado Supreme Court is making a ruling reversing a
lower court holding that claims were barred by res judi-
cata and then of course sending the case down to be
determined concerning these reasonably ascertainable
persons with identifiable interests.

The Court’s view is that both under the Parsons
Steel doctrine and under Younger, this court should not
interfere with what has been ruled on by the Colorado
Supreme Court; and accordingly, the motion to dismiss the
complaint will be granted at this time and the complaint
will be dismissed so that the state proceeding can proceed.

The motion for preliminary injunction therefore is
moot.

Is there anything else that either side would like to
have put on the record?

l4a

MR. WOLF: Thank you, your Honor.
MR. GORDON: Thank you, your Honor.

THE COURT: Thank you. And I hope maybe there
can be some efforts at this point among the attorneys to
see if there can be there can be something that can be
worked out between the parties. If not, then I have great
confidence in the state [38] court system.

* * *

15a

APPENDIX C
SUPREME COURT OF THE UNITED STATES

Zachary TAYLOR, Executor of the Estate of Jack T.
Taylor, Jr., Deceased, et al,
petitioners,

v.

Charlie JAQUEZ, Jr., et al.

No. 97-1132
March 9, 1998.

Petition for writ of certiorari to the United States
Court of Appeals for the Tenth Circuit denied.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2090%3A2. Public record. Not legal advice.