Rocky Mountain Appellate Blog

Supreme Court Upholds Voter ID Law

The Supreme Court, in Crawford v. Marion County Election Board, upheld an Indiana law requiring voters to present government issued photo identification to vote in person.  This law has evoked strong emotions on the part of those who believe that is unconstitutional.  Judge Evans, of the Seventh Circuit Court of Appeals, characterized the law as a “a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.” The dissenting opinion by Justice Souter similarly concludes that the law:

crosses a line when it targets the poor and the weak. If the Court’s decision in Harper v. Virginia Bd. of Elections, 383 U. S. 663 (1966), stands for anything, it is that being poor has nothing to do with being qualified to vote . . . . The State’s requirements here, that people without cars travel to a motor vehicle registry and that the poor who fail to do that get to their county seats within 10 days of every election, likewise translate into unjustified economic burdens uncomfortably close to the outright $1.50 fee we struck down 42 years ago. Like that fee, the onus of the Indiana law is illegitimate just because it correlates with no state interest so well as it does with the object of deterring poorer residents from exercising the franchise.

On the other hand, Justice Scalia (concurring) was of the opinion that

The universally applicable requirements of Indiana's voter-identification law are eminently reasonable. The burden of acquiring, possessing, and showing a free photo identification is simply not severe, because it does not “even represent a significant increase over the usual bur­dens of voting.” And the State’s interests are sufficient to sustain that minimal bur­den. That should end the matter.

(internal citation omitted).  It will be interesting to see what the outcome of Indiana’s law is over time, and whether other States enact similar laws.

Where Have All the En Bancs Gone?

The May oral argument calendar is available on the Tenth Circuit website, and once again there won't be any en banc arguments, nor are there any en banc arguments scheduled during any of the special sessions over the summer.  The Tenth Circuit went through the entire 2007-2008 term without holding a single en banc argument.  Indeed, as far as I can tell the last en banc argument held in the Tenth Circuit was back in November 2006, in the Zamora v. Elite Logistics case.

I've speculated in earlier posts that this paucity of en bancs may be the result of the Tenth Circuit judges losing their appetite for the deeply divided decisions that have resulted from recent en banc rehearings.  Cortez v. McCauley, for example, resulted in four separate opinions covering nearly 75 pages, and the back-and-forth between Judge Kelly's majority opinion and Judge Gorsuch's dissenting opinion seemed far more heated than we're used to seeing in this circuit.

Officer Doe

The plaintiff in Fogarty v. Gallegos, Nos. 06-2283 & 2279 was shot with a “less-than-lethal” projectile and then arrested while participating in an anti-war protest.  Unfortunately for him, the officers who arrested him wore “face-concealing gas masks” and uniforms that “did not have any identifying marks such as the officers’ names or badge numbers.”  Moreover no arrest report was ever completed regarding Fogarty’s arrest.  As a result, despite, a videotape of the arrest, twenty-seven volumes of discovery, and thirty depositions, “no witness could positively identify the arresting officers” or the officer who shot Fogarty. (This apparently “perplexed” the district court but I don’t find it at all surprising).  A footnote observes that “[a]s a result of an investigation in . . . response to the . . . protest, the department now requires identifying information on E[mergency] R[esponse] T[eam] uniforms.”

Fogarty brought claims for unlawful arrest and excessive use of force under § 1983.  The core of the opinion is naturally directed at these claims, particularly issues of supervisory liability and failure to intervene.  However, I am still hung up on the facts.  The situation reminds me a little of Summers v. Tice, in which the plaintiff was negligently shot by one or both of his hunting companions.  In Summers, both shooters are potentially liable.  In the present case, however, the fact that the arresting officers’ identity was deliberately concealed appears to have allowed them to escape liability (and leave their supervisors and fellow officers on the hook).

Supreme Court Reverses Tenth Circuit DUI Decision

This morning the Supreme Court issued its decision in Begay v. United States, No. 06-11543.  By a 6-3 decision, the Court reversed the Tenth Circuit's holding that drunk driving constitutes a "violent felony" for purposes of the Armed Career Criminal Act.  (We summarized the Tenth Circuit's opinion here.)  Justices Souter, Thomas and Alito dissented.

I have not had the chance to read the case thoroughly, but first things first: congratulations to Margaret Katze of the New Mexico Federal Public Defender's Office.  She represented Begay at every level, and ably argued the case to the Supreme Court.

The More Things Change, the More They Stay the Same

I thought it might be interesting to look back at some of the old cases from the Tenth Circuit.  I intended to blog on the first decision issued by the Tenth Circuit, but Ramsey v. Commissioner of Internal Revenue, 41 F.2d 1011 (10^th Cir. June 5, 1929), which was the first case I could find on Westlaw, did not give me much to work with.  It is a single sentence per curiam opinion holding, in its entirety, “[r]eversed on confession of error and consent to judgment.”  Skipping ahead a few weeks to June 26, 1929 however, I found Tingley v. United States, 34 F.2d 1 (10^th Cir. 1929).  The appellant in Tingley had been convicted of several counts of knowingly purchasing stolen merchandise.  The Tenth Circuit held that the trial court had properly allowed evidence of similar uncharged offense to be submitted to the jury to show that the defendant knew that the goods he had purchased were stolen.   This reinforced for me that, for all of the changes in the law (and in style of opinion writing) most of the questions courts are wrestling with now have been around for a very long time. 

SLUSA Preclusion Applied

In 1998 Congress enacted the Securities Litigation Uniform Standards Act of 1998 (“SLUSA”), which precludes certain securities class actions brought under state law. The plaintiffs in Anderson v. Merrill Lynch Pierce Fenner & Smith, Inc., No 07-2132, brought a securities action in New Mexico state court.   This action was removed and dismissed under SLUSA, and the Plaintiffs appealed, arguing that SLUSA only precluded state law claims that are virtually identical to a federal securities fraud claim.  Plaintiffs argued that because none of their claims included elements of scienter and reliance, which are elements of the federal claim, they were not precluded by SLUSA. The Tenth Circuit affirmed the dismissal. It concluded that the weight of authority, including the United States Supreme Court decision in Merrill Lynch Pierce Fenner & Smith v. Dabit, 547 U.S. 71 (2006), favored a broad construction of SLUSA.  

"Cold Hard Cash"

In U.S. v. $148,810 in U.S. Currency, David Austin was stopped for speeding in New Mexico and issued a citation.  When the officer asked for Austin's consent to search the car, Austin refused and the officer then summoned an officer with a drug-sniffing dog.  The dog supposedly "alerted" to the presence of drugs, but none was found.  The officers did find, however, $148,840 in cash.  Suspecting that it was drug money, the officers seized it, gave Austin a receipt for it, and allowed Austin to continue driving on. 

The government then filed a civil forfeiture action against the money, and Austin, as the purported owner of the money, submitted a claim in opposition.  In deposition, however, Austin refused to answer specific questions about the money, invoking the Fifth Amendment.  The district court then granted summary judgment against Austin on the grounds that because Austin's claim was based solely on "naked, unexplained possession," he lacked the requisite injury in fact to have Article III standing.  The Tenth Circuit, per Judge Lucero, reversed, holding that Austin's claim of personal ownership, combined with the fact that the money was in his possession and control when seized, are sufficient to establish his standing.

I found the decision interesting, if largely uncontroversial based on precedent in this circuit and elsewhere.  And it doesn't take a genius to see that although Austin may now have standing, he's sure to lose on the merits.  What really got my attention, though, was the court's use of the phrase "cold hard cash."  While that phrase is somewhat tired and cliched, I've never seen it put to better use than in this passage:

Although [the officers] found nothing of interest in the suitcase, [one officer] noticed several plastic bags containing bundles wrapped in aluminum foil under the ice in the cooler.  [The officers] removed the plastic bags and the aluminum foil covering, and discovered $148,840 in cold hard cash.

Supreme Court Grants Cert in Yet Another Tenth Circuit Case

The Tenth Circuit doesn't often have cases taken up by the Supreme Court, but in the space of one week the Supreme Court has taken up two.

Just one week after the Supreme Court granted cert in the Millard County case, the Court granted cert in Summum v. Pleasant Grove City, which Aaron wrote about last year.  In a pair of decisions, Summum v. Duchesne City, No. 05-4162, and Summum v. Pleasant Grove City, No. 06-4057, the Tenth Circuit upheld the right of Summum to place monuments bearing the Seven Aphorisms of Summum in city parks that also have private Ten Commandments monuments.

Pleasant Grove's cert petition, which was filed by lawyers at the American Center for Law & Justice, can be found here.  The questions presented by Pleasant Grove's petition are as follows:

1. Did the Tenth Circuit err by holding, in conflict with the Second, Third, Seventh, Eighth, and D.C. Circuits, that a monument donated to a municipality and thereafter owned, controlled, and displayed by the municipality is not government speech but rather remains the private speech of the monument’s donor?

2. Did the Tenth Circuit err by ruling, in conflict with the Second, Sixth, and Seventh Circuits, that a municipal park is a public forum under the First Amendment for the erection and permanent display of monuments proposed by private parties?

3. Did the Tenth Circuit err by ruling that the city must immediately erect and display Summum’s “Seven Aphorisms” monument in the city’s park?

Sometimes, You Really Can’t Win

The plaintiff in Robinson v. Colorado State Lottery Division, No. 06SC385, alleged that the State Lottery continued to sell scratch lottery tickets for months after all of the available prizes had been awarded.  The plaintiff (proceeding as a purported class representative) framed her claims as ones arising in contract or quasi-contract, arguing that she did not receive the chance to win a prize for which she had contracted by buying the tickets.  The Colorado Supreme Court found that, for purposes of the Colorado Government Immunity Act (“CGIA”) the plaintiff’s claims could lie in tort because they were based on alleged misrepresentations by the Lottery.  The Court thus concluded that the claims were barred by the CGIA.    It also held, as a matter of first impression, that an unjust enrichment claim is to be analyzed on a case-by-case basis to determine the applicability of the CGIA. 

This case puts a new twist on the Lottery slogan “you can’t win if you don’t play.”  Apparently, at least in some cases, you can’t win even if you do play. Interestingly, however, you don’t have to take that risk.  The Colorado Lottery posts the number of prizes remaining in its scratch games on its website.