Rocky Mountain Appellate Blog

A Primer on the Consequences of an Inadequate Record

Earlier this week the Tenth Circuit issued a decision in United States v. Brody, involving a criminal defendant's challenge to his sentence and conviction for failure to file a tax return.  The court rejected all of the defendant's issues, holding that the appellate record was insufficient for the court to adequately review them. The opinion is a crisp 14 pages, and it returns again and again to the theme of the appellant's responsibility to provide a record adequate for the court's review of the issues on appeal. 

The decision is also instructive concerning the dangers of relying on the appellee to provide portions of the transcript. The defendant's attorney intended to challenge only the 10-month sentence, and limited the preparation of the transcript accordingly. But when the government decided to order and pay for the entire transcript, Brody's counsel attacked the conviction on multiple grounds. The problem was that by the time the opening brief and related appendix were due (after multiple extensions), the transcript still had not been prepared. The court denied Brody's motion to "defer or dispense with" an appendix for the brief, observing: "This is the appellant's appeal, and it is the appellant's -- and not the appellee's -- responsibility to prepare an appendix that will permit adequate review by this court and that is in accordance with our rules."

Wyoming AG Nominated for Tenth Circuit Seat

The White House issued a press release today announcing the nomination of Gregory Alan Phillips to the Tenth Circuit.  Phillips has been the Wyoming Attorney General since March 2011.  The press release mentions that as an Assistant United States Attorney he argued 19 cases in the Tenth Circuit.

Word Counts and Word Processors

Word counts are terribly important to appellate lawyers, whose briefs are forever bumping up against the appellate courts' word limits. Eugene Volokh at the Volokh Conspiracy has noted that the Supreme Court of Texas recently put up a blog post about the different ways word processors count words in a document. Turns out there is a substantial difference among different word processing programs. The conclusion: Microsoft Word's word-count function is the most generous to appellate lawyers. The court's blog post is here. 

Infill's Final Post on the Ralph Carr Judicial Center

The Ralph Carr Judicial Center is finally open for business, and the folks at Denver Infill have put up the last of a series of many posts chronicling the construction of the new courthouse.   In addition to the photos posted by Denver Infill, last week the Denver Post posted a series of photos of the finished building, which you can see here.

Tenth Circuit Denies Hobby Lobby a Temporary Injunction

The Daily Oklahoman has this story on a Tenth Circuit order, issued today, which denies a motion for a temporary injunction pending Hobby Lobby's appeal of an Oklahoma district court's dismissal of its challenge to a provision of Obamacare.  Hobby Lobby challenged the Obamacare requirement that employers provide certain types of contraceptive drugs and devices, which Hobby Lobby claims violates its right of free exercise of religion under the First Amendment and the Religious Freedom Restoration Act.

The Western District of Oklahoma dismissed Hobby's Lobby's lawsuit just over a month ago, on November 19.  Hobby Lobby promptly moved for an injunction pending resolution of its appeal to prevent the implementation of the Obamacare requirement, which otherwise takes effect January 1, 2013.

The two-judge panel (Judge Ebel and Lucero) addressing Hobby Lobby's motion adopted the district court's analysis in an order that spans less than seven pages.  The panel pointed out that in ruling on the motion, it  assessed the same factors that will control the merits panel's review of the underlying appeal.  Having rejected Hobby Lobby's motion for an injunction pending appeal using the same factors that will control on the merits, it might seem unlikely that Hobby Lobby will succeed on the merits.  However, it is also likely that the merits panel will comprise a different group of Tenth Circuit judges, and equally likely that the merits panel does a far more thorough and penetrating analysis of the parties' competing arguments.

Hobby Lobby's challenge to the Obamacare mandate is being handled by the Becket Fund for Religious Liberty, which posted a press release on the Tenth Circuit's ruling here.  The next step for Hobby Lobby is to seek an emergency injunction from the Supreme Court, which will almost certainly be denied.

U.S. Supreme Court Accepts Cert in Gay Marriage Cases

The Wall Street Journal and other outlets are reporting that the Supreme Court has granted cert in a case involving whether a federal law denying benefits to same-sex spouses violates the Constitution.  The Court also granted cert in the California Prop 8 case.

UPDATE:  The WSJ has an article here.

Colorado Supreme Court to Hold Oral Argument in Lobato Case in March 2013

The Colorado Supreme Court has just issued an order in the Lobato case indicating that it will hear oral argument in March of next year.  The Court's order states that it will be issuing an order "in the near future" setting a specific date and time.  Briefing was completed earlier this month.

Colorado Supreme Court Rejects Conditional Guilty Pleas

A common practice in criminal cases is for a defendant to plead guilty to a crime, conditioned upon his right to appeal an unsuccessful pretrial motion to suppress evidence.  In most jurisdictions, this practice is allowed by statute or rule. In federal court, for example, Fed. R. Crim. P. 11(a)(2) provides that "with the consent of the court and the government, a defendant may enter a conditional plea of guilty . . . reserving the right to have an appellate court review an adverse determination of a specified pretrial motion."

Colorado does not have such a statute or rule, and in Neuhaus v. People, issued today, the Colorado Supreme Court declined to create a judicial exception authorizing conditional guilty pleas, holding that the reservation of the right to appeal an unsuccessful pretrial motion "is better created by statute or court rule, if at all."

The decision is available here.

Tenth Circuit Announces 2013 Bench & Bar Conference

After canceling the 2012 Bench & Bar Conference due to budgetary constraints, the Tenth Circuit has announced that the Conference is back on for 2013.  Next year's conference will take place from August 28-31 at the Broadmoor in Colorado Springs.  Registration opens in May.  This is welcome news indeed.  The court invariably puts on a tremendous program for members of the Tenth Circuit bar.

U.S. Supreme Court Term Starts Today

The Associated Press has this story on the significant cases the Court will be addressing this term.