Rocky Mountain Appellate Blog

The Leonard Peltier Legal Battle Continues

Leonard Peltier was convicted of the murder of two FBI agents in 1977.  (Click here for a summary of the factual background).   In Kahl v. United States, No. 06-3348/06-3370 Peltier and another plaintiff (in a related case) argued that § 235(b)(3) of the Sentencing Reform Act of 1984 gave them a right to specific parole release dates and that their continued incarceration violated the Due Process Clause, the Ex Post Facto Clause, and the Bill of Attainder Clause.   Their arguments were rejected by the Tenth Circuit as relying on previously rejected statutory interpretations of the Sentencing Reform Act.  The court also noted that because there was in upper guideline range for the Plaintiff’s conduct, the Sentencing Reform Act was inapplicable.

A Stimulus Plan for Construction Law

This week, the Colorado Supreme Court issued Copper Mountain, Inc. v. Indus. Systems, Inc, 08SC28, holding that waiver of subrogation clause in a standard American Institute of Architects ("AIA") contract did not bar Copper Mountain's lawsuit against its contractor, and subcontractor, for damages to a ski lodge that was undergoing renovation.  This case resolves a panel split on the Colorado Court of Appeals. However, perhaps the most interesting aspect of this case is that it leaves Colorado out of step with the majority rule regarding the interpretation of this contract clause.  The majority position with respect to this issue is that, in situations where the owner opts to insure the work with a general property insurance policy that also covers non-work, the subrogation waiver covers damage to all property covered under the owner's property insurance, regardless of whether the property is work or non-work.  This is consistent with the general purpose of waiver of subrogation clauses -- to reduce the risk of litigation and place the risk of loss on a single payer.  However, that is no longer the case in Colorado.  Under Copper Mountain, the subrogation waiver is only limited to the work.  Thus, in situations where work and non-work property are damaged, litigation will likely follow.  Given that these standard AIA contracts are widely used throughout the country, contractors need to be careful when entering into such a contract in Colorado

Quasi-Judicial Immunity

In Moss v. Kopp, No. 07-4098, the Tenth Circuit addressed, among other things, the issue of whether sheriff’s deputies who conduct a search pursuant to a court order in a civil case are entitled to quasi-judicial immunity.   One of the plaintiffs in Moss was involved in a civil suit, and the opposing party obtained an ex-parte order allowing the seizure of various computer disks and other materials from his home by sheriff’s deputies.  The plaintiffs first brought a § 1983 suit against the opposing party, but this case was dismissed because the opposing party was found to not be a state actor.  Plaintiff then brought the present action naming the deputies who conducted the search and other entities as defendants.  The  Tenth Circuit noted that, as a general matter, absolute immunity is provided to officials carrying out court orders but “there are limits to how unlawful an order can be and still immunize the officer executing it.”  More concretely, both the judge and the executing official must act within their jurisdiction and the executing official must “only act as prescribed by the order.”  In this case, the Tenth Circuit found that all of these elements had been met and upheld the dismissal of the claim.  

 

As a side note, while the facts of this case may appear egregious, they are not nearly as shocking as those in Stump v. Sparkman, 453 U.S. 349 (1978) in which judicial immunity for a judge who ordered an involuntary sterilization was upheld by the Supreme Court.

Tenth Circuit Issues New General Order on ECF

The Tenth Circuit today issued a new General Order entitled "In re: Electronic Submission of Documents and Conversion to Electronic Case Filing."  The order, which hasn't yet been posted to the court's website, reiterates the March 31 date for voluntary conversion to ECF filing and June 1 date for mandatory ECF.  A few points from the order:

• The new order continues the requirement that attorneys file seven hard copies of any brief (as well as 18 copies of any petition for rehearing en banc) within two days of electronic filing.
• Appendices and addenda cannot be filed via ECF.  Any appendix or addendum to a brief must be filed within two days of the electronic filing of the corresponding brief.
• Any document file containing more than 10 megabytes will be bounced, so really large pleadings may have to be filed in increments of up to five uploads per docket entry.
• Parties will not be allowed to initiate appeals via ECF.  Instead, the clerk’s office will open all appeals upon receipt of materials from the district courts.

10th Circuit to Adopt ECF March 31

The Tenth Circuit has announced on its website that it will begin electronic case filing (ECF), on a voluntary basis, on March 31.  ECF will become mandatory on June 1, regardless of when the appeal was initially filed.  Oddly, even after June 1, the Tenth Circuit's General Order will continue to require attorneys to file seven hard copies of a brief within two days of its electronic filing.

The registration for Appellate ECF is here and takes less than a minute.  Apparently you need to register for an appellate ECF account even if you already have an ECF account for district court.

Colorado Wins on Expert Fees in the Supreme Court

The State of Colorado scored an important victory today in the United States Supreme Court on the issue of witness fees.  The underlying (and long-running action) was an original proceeding brought by Kansas in 1985 regarding the Arkansas River Compact.  The Court held (in 1995) that Colorado had breached the Compact, and experts were extensively utilized in calculating damages.Kansas then sought over $9 million in expert witness fees from the State of Colorado as costs. Colorado argued that the $40 a day cap of 28 U.S.C. § 1821 should apply to cases brought originally in the Supreme Court, which would have capped the witness fees sought at approximately $163,000.

The Court held, in Kansas v. Colorado (No. 105), that even “[a]ssuming for the sake of argument that Kansas is correct . . . that this Court has the authority to determine the amount that Kansas could recover in expert witness fees” the § 1821 cap should still be applied in the absence of any “good reason why the rule regarding the recovery of exert witness fees should differ markedly depending on whether a case is originally brought in a district court or in this Court.”

Justices Roberts and Souter concurred specially to be clear that the Court was not holding that it was bound by § 1821.

Colorado Wins Supreme Court Case

Last fall I noted the oral argument in Kansas v. Colorado, in which the Supreme Court addressed whether, in a water dispute between the two states, Kansas's expert fees were limited to $40/day under 28 U.S.C. § 1821(b).  Kansas argued that the $40/day limitation does not apply to cases in which the Supreme Court has original jurisdiction.  Colorado's Attorney General, John Suthers, ably argued the case to the Court.

The Supreme Court today announced its decision, deciding uanimously in favor of Colorado's position that the $40/day limitation applies.  In an extremely short opinion, the Court held that, even assuming  Kansas was correct in arguing that the Court has the discretion to determine the amount of fees that Kansas should recover, the $40/day limitation set out in §1821 is nevertheless the appropriate fee.

Are Bounty Hunters State Actors?

The Tenth Circuit's decision in United States v. Poe, issued on Tuesday, addresses an interesting Fourth Amendment question:  Do bounty hunters constitute state actors when they conduct a search in the course of hunting down a bail-jumper?

The answer, according to the court, is no -- so long as they act without the assistance of law enforcement and for their own pecuniary interests.  In this case, the bounty hunters apprehended the defendant in his girlfriend's house, where they also found incriminating drugs and drug paraphernalia. (The court noted that one of the bounty hunters was attacked by a pit bull while wrestling the defendant to the floor, although it has nothing to do with the analysis.)  The defendant moved to suppress the evidence, arguing that the bounty hunters were "state actors" conducting a warrantless search.  The evidence, however, showed that the bounty hunters were not cooperating with law enforcement and had simply been hired by the bail bonds company that had posted bond on the defendant's behalf.

Although this specific question was a matter of first impression in the Tenth Circuit, existing precedent (particularly United States v. Souza, 223 F.3d 1197, 1201 (10th Cir. 2000)) provided a fairly straightforward answer to the question, at least under the facts presented.  (This decision piqued my interest mostly because it called to mind my favorite bail-jumper movie.  Actually, it might be the only bail-jumper movie there is, but it's still a good one.)

Supreme Court Issues Important Decision on Standing

The U.S. Supreme Court this morning issued its decision in Summers v. Earth Island Institute, which addressed whether environmental plaintiffs have standing to challenge regulations in the absence of a live dispute over a concrete application of those regulations.

In a 5-4 decision, with Justice Scalia authoring the majority opinion, the Court held that under those circumstances, such plaintiffs do not have standing.  In Summers, the plaintiffs challenged the lawfulness of the Forest Service's application of a regulation to a portion of the Sequioa National Forest.  The regulation provided that salvage-timber sales on areas of less than 250 acres were excluded from the requirement to file an environmental impact statement (EIS).  One of the plaintiffs submitted an affidavit setting forth his interests in viewing the flora and fauna of the affected area, and how those interests would be harmed if the Forest Service proceeded with the sale absent an EIS.  All the parties conceded that this affidavit was sufficient to confer standing to challenge the application of the regulation to the particular salvage-timber sale.

However, in the district court the plaintiffs settled with the Forest Service concerning the sale, but contended that they had standing to continue to challenge the regulation in the abstract.  The Court disagreed:

We know of no precedent for the proposition that when a plaintiff has sued to challenge the lawfulness of certain action or threatened action but has settled that suit, he retains standing to challenge the basis for that action (here, the regulation in the abstract), apart from any concrete application that threatens imminent harm to his interests.  Such a holding would fly in the face of Article III's injury-in-fact requirement.

Justices Breyer issued a dissenting opinion and was joined by Justices Ginsburg, Souter and Stevens.  One issue that irked Justice Breyer was that although the plaintiffs submitted new affidavits addressing how application of the regulation in other settings will harm their personal interests, the majority dismissed those affidavits as a post-judgment attempt to resurrect their case.  Justice Stevens argued that no rule or statute prohibited the filing of such affidavits, which "more than adequately show a 'realistic threat' of injury to plaintiffs brought about by reoccurrence of the challenged conduct — conduct that the Forest Service thinks lawful and admits will reoccur."