Rocky Mountain Appellate Blog

Getting a Seat for the Nacchio Hearing

The Tenth Circuit today published an order setting forth the protocol for the December 18 oral argument in the Nacchio appeal.  The doors of Courtroom I will be opened at 1 p.m. (an hour before argument begins), and seating is on a first come first served basis.  Two rows of seats are reserved for the media. 

Courtroom I has the most seating available of the four courtrooms at the Tenth Circuit, but I would guess that general members of the public will still have to show up very early in the day to get a seat.

Interestingly, the court's order will permit media representatives -- but apparently not members of the general public -- to bring laptops with them into the courtroom.  I assume this means that the average member of the public will be turned away at the door if he or she shows up with a laptop, which strikes me as entirely unfair, particularly in an age when the line between citizen journalists and "credentialed" old-fashioned media types is increasingly blurred.

The Single Subject Debate Continues

The Colorado Supreme Court continues to struggle with the "single subject" requirement. In 2006, the Court took a tremendous amount of heat for invalidating Initiative #55, the measure banning public benefits for illegal immigrants. Earlier this year, Initiative #31, the Colorado Civil Rights Initiative, addressing affirmative action, was affirmed on a 3-3 (affirmed by an equally divided court) vote. Justice Bender did not participate.

On November 19, the Colorado Supreme Court, by a 4 to 3 vote, invalidated a measure that would have created a new state department and elected board of "Environmental Conservation."

The majority relied upon an earlier case that held that a conservation measure that adopted the "public trust" doctrine in addition to other changes in the law violated single subject. Here, Justice Hobbs, writing for the majority, held that the "Environmental Conservation" measure called for adoption of the "public trust doctrine" in addition to creating a new state department and commission.

The dissent, authored by Justice Eid, opined that the conservation policies mandated by the measure, that the majority characterized as the "public trust doctrine," were connected to the creation of the department and the commission and did not constitute a separate subject.

Proponents beware. The Court’s single-subject jurisprudence remains in flux. Moreover, it seems that the more controversial the measure, the more likely there are votes on the Court for finding a violation.

Abuse of Process

The plaintiffs in Maul v. City of Langston, No. 07-6007 were arrested and charged with rape.  Following a jury trial, they were acquitted.  They then sued the investigating officer, the police chief, and various political entities for malicious prosecution, abuse of process and other violations of their constitutional rights.  The plaintiffs claimed that the investigating officer included a false statement and omitted exculpatory evidence in his probable cause affidavits. The district court determined, among other things, that even if the facts alleged by plaintiffs were true, there was still probable cause to bring charges against them, and granted summary judgment on the malicious prosecution claim. The plaintiff appealed this determination, and the Tenth Circuit affirmed by simply adopting the district court’s reasoning.  

Three Cheers for Brevity

The Tenth Circuit issued four published opinions last night.  Average length of each opinion:  10.5 pages.

U.S. Supreme Court Grants Cert to Review Second Amendment Decision

The U.S. Supreme Court granted cert this morning to review the D.C. Circuit's decision in Parker v. District of Columbia (the case before the Supreme Court is captioned District of Columbia v. Heller) -- thus marking the first time since 1939 that the Court has agreed to address whether the Second Amendment guarantees an individual right to keep and bear arms.  If there were any doubt about whether the Court intends to address this issue, it erased this doubt entirely in framing the question presented, which strikes me as very precise:

“Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

The actual order granting cert is here.  I'll leave for others the task of analyzing the case; on a less substantive note, what really caught my eye was that the Court used a question mark at the end of its question presented -- even though it used the "whether" formulation, which isn't really a question at all.  This is something of a pet peeve of mine, and I'm aghast to see this erroneous punctuation in a U.S. Supreme Court order.

Arbitration in Arizona

Scheehle v. Justices of the Supreme Court of Arizona, No. 05-17063, is not technically within the scope of the Rocky Mountain Appellate Blog, but I saw it on Decision of the Day and could not resist writing about it.

Maricopa County Arizona required all experienced lawyers in the county to serve as arbitrators up to two days a year upon request from the court. Lawyers were compensated $75 for each day on which they actually conducted a hearing (which the Ninth Circuit referred to as “minimal compensation”). The plaintiff, an Arizona lawyer, challenged this requirement as, among other things, an unconstitutional taking under the Fifth Amendment.  The case took a complicated procedural path, including two certified questions to the Arizona Supreme Court.  Ultimately, however, the Ninth Circuit rejected the plaintiff’s claim

The court held, among other things, that the economic impact on plaintiff was “negligible,” that the requirement did not interfere with a “distinct investment-backed expectation” of plaintiff, who, upon becoming a member of the bar had an obligation to render services to the court when requested, and did not outweigh the benefits conferred by his license to practice law.

While I have some sympathy for the plaintiff, there appears to be a long tradition of courts forcing lawyers to provide legal services.   I am more concerned about parties who are forced into arbitration (and it appears that in Arizona any case with an amount in controversy under $65,000 goes to arbitration) before an arbitrator who is so clearly serving against his will.

U.S. Supreme Court to Hear Oral Argument in Begay Case January 15

Last year the Tenth Circuit held in United States v. Begay that drunk driving constitutes a violent felony for purposes of the Armed Career Criminal Act (ACCA), thus subjecting the defendant in that case to a minimum 15-year sentence.  Judge Hartz, joined by Judge Lucero, authored the opinion, while Judge McConnell dissented on statutory intrepretation grounds. 

I discussed the court's decision here, and again here after the U.S. Supreme Court granted Begay's cert petition.  Oral argument in the case is now scheduled for January 15. 

Begay filed his brief on the merits last week.  The first half of the brief appears to be a rather dry discussion of statutory interpretation, but one of the later arguments in the brief caught my eye:  Begay argues that DWI as defined by New Mexico law "does not present a serious potential risk of physical injury to another," as required by the ACCA, because in New Mexico one can commit DWI merely by driving under the influence of liquor to the "slightest degree" or by driving a car with a .08 blood or alcohol level regardless of actual impairment.  This strikes me as a rather technical and tone-deaf argument.  New Mexico defines the crime of DWI so strictly precisely because of the serious risks posed by driving while intoxicated.  I'll be interested in seeing how the government responds to this argument in particular.

Tenth Circuit's November Term of Court Begins Today

The November session of oral argument starts today in Denver.  Once again, no en banc arguments will be held this session -- nor will there be any in January when the court hears oral argument in Oklahoma for Judge Henry's swearing-in as the Tenth Circuit's new chief judge.  I don't have access to past oral argument calendars, but by my reckoning not a single en banc hearing has been held in the Tenth Circuit this entire year.  I'd love to know how many times the Tenth Circuit has gone through an entire calendar year without holding a single en banc hearing.

This week's oral argument calendar also seems relatively light.  It's a four-day week of argument because of Veterans Day, and by my count, only three judges -- Murphy, Hartz, and Holmes -- hear argument all four days.  And six active judges -- Tacha, Henry, Lucero, Briscoe, O'Brien, and McConnell -- hear argument on only two days.

Tenth Circuit Finds Genuine Issue of Material Fact in ADEA Claim

In Hare v. Denver Merchandise Mart, No. 06-1270, the Tenth Circuit, among other things, overturned a grant of summary judgment in favor of the defendant and held that the plaintiff employee has pointed to sufficient inconsistencies in the employer’s explanation for his termination to create a genuine issue of material fact.

The plaintiff attempted to state a prima facie case as required by McDonnell Douglas by showing that his termination occurred under circumstances that would give rise to an inference of unlawful discrimination.  Plaintiff pointed to some blatant age related remarks made by one superior in the corporate hierarchy who (in the course of a single meeting) asked plaintiff how old he was, how long he expected to continue working, and whether plaintiff would assist in locating a younger replacement for his position. The District Court noted that these remarks were made more than a year before the plaintiff was fired, and thus held that they were insufficient to state a prima facie case.  The Tenth Circuit, however, noted that a search for plaintiff’s replacement began less than a month after the comments were made, and that the bonus program that made up half of plaintiff’s compensation was also suspended shortly after the remarks. Thus, the Tenth Circuit held that plaintiff had been able to state a prima facie case.

Plaintiff was then required to show that a genuine issue of material fact existed as to whether the articulated reasons for his termination were pretextual.  Plaintiff met this burden by showing that one decision maker testified that his termination was unrelated to his performance while another testified that he was terminated due to his performance. The Tenth Circuit held that the contradictory nature of these explanations was sufficient to establish pretext for the purpose of summary judgment.

Finally, and perhaps most significantly, the Tenth Circuit explicitly held that MacDonald v. E. Wyo. Mental Health Ctr., 941 F.2d 115 (10th Cir. 1991) was no longer good law, having been implicitly overturned by Randle v. City of Aurora, 69 F.3d 441 (10th Cir 1995), which established that discriminatory animus may be inferred from the simple showing of pretext.

Tenth Circuit Holds That There Is No Constitutional Right to “A Federal Workforce Free From Corruption and Criminals”

The plaintiff in Schoenrogge v. Brownback, No. 07-3216, appealed the dismissal of a mandamus action by which he sought to compel Senator Sam Brownback to call for the investigation and prosecution of certain Department of Justice employees. The District Court held that the plaintiff could establish neither a clear duty on the part of the defendant nor a clear right to the relief sought. In response, the plaintiff argued that the Senator’s refusal to pursue an investigation violated his Constitutional right to a federal workforce free from corruption and criminals and misprision of a felony under 18 U.S.C. § 4. The Tenth Circuit held that the proposed constitutional right was not a “‘clear right’ sufficient to be a basis for a mandamus action.” The court further noted that the only knowledge that the Senator was alleged to have of crimes by DOJ employees came from the plaintiff. The court held that “[a]ccusations against a third party in a letter are insufficient to provide knowledge of the actual commission of a felony” required to trigger a duty under § 4. Plaintiff’s request for a writ of mandamus was denied.