Rocky Mountain Appellate Blog

DOJ Files Cert Petition in ACA Litigation

Today, the Department of Justice filed a petition for certiorari seeking U.S. Supreme Court review of the Eleventh Circuit's decision striking down portions of the Affordable Care Act.  SCOTUSblog has a post on the filing, along with a link to the petition.  It appears the Court may hear the case this term and hand down a decision in the middle of the 2012 presidential race.

Preview of the New Supreme Court Courtroom

The Denver Infill Blog has two posts, here and here, on the construction of the Ralph J. Carr Judicial Center.  One of the (many) pictures in the posts is a view of the Supreme Court's new courtroom.

 

Colo. Supreme Court Addresses Colorado Campaign Finance Law

The Denver Post has this article on yesterday's oral argument in Riddle v. Hickenlooper, which involves a challenge to Colorado's campaign finance law.  The plaintiff claims that the law discriminates against minor party candidates because it provides that candidates who do not run in primary elections (which includes most minor party candidates) limits them to a $200-per-person donation. Major-party candidates, on the other hand, who may be incumbents or who run unopposed in a primary, can still collect $400.

The Slow Death of Mens Rea

Today's Wall Street Journal has this compelling article on the explosion of federal crimes laws passed in the last two decades, many of which weaken or even eliminate the requirement of criminal intent.  Among the anecdotes recounted in the article is this story:

In 1998, Dane A. Yirkovsky, a Cedar Rapids, Iowa, man with an extensive criminal record, was back in school pursuing a high-school diploma and working as a drywall installer. While doing some remodeling work, Mr. Yirkovsky found a .22 caliber bullet underneath a carpet, according to court documents. He put it in a box in his room, the records show.

A few months later, local police found the bullet during a search of his apartment. State officials didn't charge him with wrongdoing, but federal officials contended that possessing even one bullet violated a federal law prohibiting felons from having firearms.

Mr. Yirkovsky pleaded guilty to having the bullet. He received a congressionally mandated 15-year prison sentence, which a federal appeals court upheld but called "an extreme penalty under the facts as presented to this court." Mr. Yirkovsky is due to be released in May 2013.

Use of Cell Phone Tracker Gives Rise to Fourth Amendment Debate

The Wall Street Journal has this lengthy front-page story on law enforcement use of so-called "stingrays," which are devices used to track the location of a cell phone even when it's not being used.  The use of the devices naturally gives rise to the question of whether such use requires a warrant.  A criminal case in federal district court in Arizona, in which law enforcement finally tracked down the target of an investigation through the use of a stingray, seems likely to result in an opinion on this issue from the Ninth Circuit Court of Appeals.  Meanwhile, the United States Supreme Court will hear oral argument in November in United States v. Jones, which focuses on whether law enforcement must obtain a warrant before installing a GPS device on a suspect's car and tracking him/her for an extended period.

Tenth Circuit Punts on “Manifest Disregard”

The Circuits are severely split on the issue of whether “manifest disregard” of the law remains a basis on which to vacate an arbitration award. The Second and Ninth Circuits have held that it is. The Fifth Eighth and Eleventh Circuits have held otherwise. In Abbott v. Law Office of Patrick J. Mulligan, the Tenth Circuit “decline[ed] to decide whether the manifest disregard standard should be entirely jettisoned." Instead, the Court concluded that the “exceedingly narrow circumstances” that would support vacature on that basis were not present because the case did not involve “willful inattentiveness” to the governing law, that is, “something substantially different from a misunderstanding or misapplication of the law.”

Additional Comment on Glenelk Decision

My co-blogger, Amanda Bradley, has a short post on the Supreme Court's decision in The Glenelk Ass'n v. Lewis, Case No. 10SC275.  I wanted to pick up on Amanda's discussion regarding footnote 3 and the Court's signal that it may reconsider existing caselaw as to the trial court's authority to assess the feasibility of the proposed project necessitating the condemnation.

One of the frustrating aspects of defending landowners in private condemnation proceedings is that Colorado courts have largely imported the procedural and substantive law governing public condemnations to assess the vaidity of proposed private condemnations.  This places the responding landowner at a significant disadvantage because the courts' review of public takings is limited in many important respects. 

For example, within public condmenation law it is axiomatic that a court may not assess the feasibility of a proposed project.  E.g., Silver Dollar Metropolitan Dist. v. Goltra, 66 P.3d 170, 172 (Colo. App. 2002) ("Whether an enterprise is feasible or practicable, and whether it will be a financial success, cannot be questioned in determining necessity, and such questions are not for the court's determination." (citing Mortensen v. Mortensen, 309 P.2d 197 (Colo. 1957); Gibson v. Cann, 66 P. 879 (Colo. 1901))).  Courts are unwilling to review the feasibility of a project because they view this as exclusively a legislative determination.  Id.

In the context of public condemantions, this rule makes some amount of sense.  Before a public condemnation can be initiated, a public agency must authorize the condemnation.  Thus, there is some degree of political accountability for the decision which operates as a check on the power of the public agency.  (Of course, in the wake of the controversial Kelo decision, there is a growing body of legal scholarship which argues that this political check is modest at best, and that public agency decisions on eminent domain unduly impact low-income and minority communities.)

However, in the context of a private condemnation, this rule makes no sense.  In a private condemnation, there is no legislative determination.  Instead, the condemnation is initiated at the exclusive discretion of a private party.  By refusing to address the feasibility of the project prompting the private condemnation, the courts are effectively placing unlimited discretion in the hands of the private condemnor.  This is an inexcusable abdication of the judiciary's obligation to safeguard the private property rights of the responding landowner.  See Akin v. Four Corners Encampment, 179 P.3d 139, 144 (Colo. App. 2007) (“Because the power to condemn private property is in derogation of the right to own and keep property, the exceptions in art. II, § 14 must be interpreted narrowly, with any uncertainty in the ambit of the power to condemn resolved against the person asserting that power.”).

In footnote 3 of the Glenelk opinion, the Court strongly indicated that it would permit a trial court to apply the "can and will" standard, imported from water law, to assess the feasibility of the development underlying a proposed private condemnation.   Such a rule would be a dramatic departure from the status quo; it has the potential to rectify the existing  power imbalance in private condemnation proceedings.

Interesting Colo. Supreme Court Lineup

On Monday, the Colo. Supreme Court issued its first case announcements for the upcoming term.  The alignment of justices in one case, People v. Pickering, Case No. 10SC446, is interesting in at least two respects.

First, Justice Hobbs ended his non-dissenting streak which stretched back at least as far as the beginning of last term.  He joined Justice Martinez and Chief Justice Bender in dissent.

Second, Justice Marquez voted in the majority along with Justices Rice, Eid, and Coats.

Over the past decade or so, my sense of the Court's breakdown on criminal justice issues is that, in general, Justices Eid, Rice, and Coats have formed a three member conservative bloc that has been counterbalanced by a liberal bloc of Justices Martinez, Bender, and then-Chief Justice Mullarkey.  Justice Hobbs has often been the swing vote, alternately voting with the liberal or conservative bloc depending on the specific issue.

The replacement of Chief Justice Mullarkey with Justice Marquez may have altered this dynamic.  While one vote is clearly an insufficient sample, it does indicate that Justice Marquez may be inclined to be a conservative vote on criminal justice issues.   This could have the effect of positioning her as the swing vote on these matters and shift the Court's rulings on criminal justice issues to the right.

Colorado Supreme Court Upholds Private Property Rights

Over the past six months I have posted several updates on the private takings case pending before the Colorado Supreme Court - Glenelk v. Lewis.  We received the Court's unanimous ruling yesterday, in which it reversed the Court of Appeals and reinstated the trial court's dismissal of the case.  The opinion is here.  Aside from the favorable holding, there are various facets to the opinion that will make for interesting application in future private takings cases, not the least of which is the Court's discussion in footnote 3 about the ability of the trial court to inquire into the feasibility of the proposed project.   

10th Circuit Hears Oral Argument in Sharia Case

John Ingold of the Denver Post has this story on yesterday's oral argument in
Awad v. Ziriax, the case involving a challenge to an Oklahoma law that would prohibit Oklahoma courts from basing their decisions on Islamic law.  The Tenth Circuit panel consists of two Utah judges -- Judges McKay and Matheson -- and Judge O'Brien of Wyoming.  The article only mentions one specific question (Judge Matheson asked, "doesn't [the statute] disfavor Islam?"), but the overall tone of the questions apparently suggested that Oklahoma will not prevail.