Rocky Mountain Appellate Blog

More on the Boatright Appointment

This morning's Denver Post carries an editorial on the appointment of Judge Brian Boatright to the Colorado Supreme Court.  "In making the pick, Democratic Gov. Hickenlooper deserves credit for seemingly putting qualifications for the job above party politics," the editorial says.  "Boatright is a registered Republican who replaces a Democratic appointee viewed as being part of the court's liberal wing. Given several 4-3 decisions in recent years, he could tilt the balance of the court in a different direction."

Judge Brian Boatright Appointed to Colorado Supreme Court

The CBA's "Legal Connection" has this brief report.

Colorado Supreme Court Headed Back to School

As part of  the Colorado judiciary's "Courts in the Community" program, this Thursday the Colorado Supreme Court will hit the road to hear oral argument in two cases at Evergreen High School.  The Court's recent press release describes the two cases as follows:

• 10SC295: Andrew Wayne Mumford v. People of the State of Colorado: The Colorado Supreme Court agreed to review this case after Mr. Mumford was convicted of felony possession of cocaine and sentenced to two years of probation. Mr. Mumford argues he should be granted a new trial because he had not been advised of his Miranda rights before he made an incriminating statement to a police officer who questioned him. Both the trial court and the Court of Appeals concluded Mr. Mumford was not in custody when he made the statement, and therefore, the statement was admissible. Two members of the Court of Appeals panel that reviewed the case agreed the statement was properly admitted into evidence, but the third member dissented, saying a reasonable person in Mr. Mumford’s position would have believed he was in police custody when the statement was made.

•  10SC276: Colorado Ethics Watch v. Senate Majority Fund LLC, Colorado Leadership Fund LLC, and Office of Administrative Courts: This case involves Colorado campaign finance laws that limit certain political groups’ spending on advertisements “expressly advocating the election or defeat of a candidate.” The Supreme Court granted Colorado Ethics Watch’s petition to review the case after the Court of Appeals concluded the Senate Majority Fund and Colorado Leadership Fund did not violate campaign-finance laws with their advertising during the 2008 election cycle. The Court of Appeals had agreed with an administrative law judge that the two groups did not expressly advocate the election or defeat of a candidate and therefore were not subject to the spending limits that an “express advocacy” group would have to observe. Colorado Ethics Watch argued the groups did engage in express advocacy because the language they used in advertisements was functionally equivalent to language that would expressly advocate the election or defeat of a candidate.

 

Tenth Circuit to Review Battle Over San Juan Generating Station

On the front page of yesterday's Albuquerque Journal was this terrific article on the battle over what kind of pollution control technology should be implemented at the San Juan Generating Station near Farmington, New Mexico.  The EPA has ordered that a technology called selective catalytic reduction (SCR) be implemented, but PNM, New Mexico's electric utility company, argues that SCR will cost $750 million, and that the same pollution reduction can be achieved with a different technology at a fraction of the cost.

The generating station's emissions are within air quality standards for health, but the Clean Air Act contains provisions requiring states to reduct the visible haze that affects national parks in the West, including sites such as the Grand Canyon, Mesa Verde National Park, and Bandelier National Monument.  According to the article, New Mexico is the first state to have a federal plan imposed on it for haze.

PNM has challenged the EPA' s ruling in the Tenth Circuit.  Public Serv. Co. of N. Mex. v. Environmental Protection Agency, No. 11-9557.  The petition for review of the EPA's ruling was filed last month, and several environmental groups have moved to intervene (click here, for example, for the Sierra Club's press release on its involvement in the case).  Briefing on the matter will be completed sometime early next year, which means oral argument will most likely be held in the May 2012 term of court.

Cert Granted in 10th Circuit Case

In Wood v. Milyard (2010 WL 4813580), the Tenth Circuit held that the existence of an eight year period in which a federal habeas petitioner had taken no action on his petition was, in conjunction with other circumstances, sufficient to constitute an abandonment of that petition and render a subsequent petition untimely. The court held that “where, as here, a petitioner's inaction and subsequent statements on the limitations issue indicate that he stopped ‘attempting ... to exhaust state court remedies,’ and abandoned a state postconviction application, AEDPA’s tolling provision will deactivate, and the limitations period will run.” (Internal citation omitted).

The Supreme Court recently granted cert in this case on the following questions: “1) Does an appellate court have the authority to raise sua sponte a 28 U.S.C. 2244(d) statute of limitations defense? 2) Does the State’s declaration before the district court that it will not challenge, but [is] not conceding, the timeliness of Wood’s habeas petition, amount to a deliberate waiver of any statute of limitations defense the State may have had?”

Interestingly, these issues are only addressed in a footnote in the 10th Circuit opinion. As to the first issue, the Tenth Circuit interpreted current Supreme Court law to bar it from raising a waiver of limitations sua sponte. As to the second issue, it concluded, that no waiver had occurred. The court held that the ‘neither challenge nor concede’ language used by the government “is not a deliberate waiver, given that it follows an argument as to why Wood’s habeas petition would be untimely, and concludes with a refusal to concede that the petition is timely.”

Tenth Circuit Holds That License Plates Must Be Attached With a Screw While In Kansas

In United States v. Lopez-Estrada (No. 10-3327) the Tenth Circuit effectively held that an improvised repair to a license plate, however secure, provides probable cause to stop a vehicle. In this case the plaintiff was driving a pickup truck with a license plate attached by one screw and one wire loop. (See illustration below from the opinion).

A Highway Patrol Trooper stopped the pickup on suspicion that (among other things) it violated a statute which required that a license plate "at all times be securely fastened to the vehicle to which it is assigned so as to prevent the plate from swinging.” A consensual search resulting in the Trooper locating meth in a toolbox followed.

Note that the Trooper never actually saw the license plate swinging (even though the vehicle was driving on the Interstate), he just suspected that it might. And that, held the Tenth Circuit, was good enough. “[I]t was certainly reasonable for the trooper to think that a jury-rigged job of affixing a license plate might leave it poorly fastened and cause it to swing in violation of Kansas law.”  The problem with this is that if the legislature intended to require a license plate to be screwed to a vehicle, it would have said so.  Using the language “secularly fastened . . . so as to prevent the plate from swinging” appears intended to provide some leeway in the manner of the fastening.  But the Tenth Circuit held that any “jury-rigged” fastening constituted a potential violation, and a basis to stop a vehicle.  And because one of the major uses of such a law is its use to justify a vehicle stop, the court effectively required screws.

As a side note, dusting off old law school memories, doesn’t this sort of a law raise potential commerce clause issues (sort of like laws requiring special mud flaps in one State) if it is interpreted in such a fashion?

Colorado Supreme Court Finalists Announced

This morrning the Colorado Supreme Court issued a press release announcing the three finalists to fill the vacancy created by Justice Martinez's retirement.  The finalists are Judge Brian D. Boatright of the First Judicial District; Frederick T. Martinez of Hall & Evans; and Patrick T. O'Rourke of the Office of University Counsel.

Governor Hickenlooper now has 15 days from today to select one of these three finalists.

A Momentous Term for the Supreme Court

In the ABA Journal, Dean Erwin Chemerinsky has this preview of the upcoming U.S. Supreme Court term.  His bottom line:

It seems likely that the court will consider the constitutionality of SB 1070 [Arizona's immigration law], revisit the permissibility of affirmative action by colleges and universities, and decide the constitutionality of the individual mandate in the Affordable Care Act. That would truly make this term as momentous as any in recent memory.