Analysis and commentary on the practice of appellate law and on news, events and decisions from the Colorado Supreme Court, Colorado Court of Appeals, Tenth Circuit Court of Appeals and United States Supreme Court
The Colorado Supreme Court just issued a press release announcing that Justice Sotomayor will join Chief Justice Bender and Governor Hickenlooper in a dedication ceremony for the new Judicial Center. The dedication will be held on Thursday, May 2 from 1:30 to 2:30, and public tours will be held immediately afterwards from 2:30 to 3:30. The Court's full press release is here.
Over the weekend the Daily Oklahoman carried this story on Hobby Lobby's motion to expedite its appeal concerning the Affordable Care Act's requirement that employers cover the cost of certain emergency contraceptives for its employees. The basis for the motion is Hobby Lobby's assertion that as of July 1, it will face millions of dollars in fines absent a decision from the Tenth Circuit.
Hobby Lobby's motion, which is unopposed, asks the court to set oral argument as soon as practicable after April 4, 2013, which is when briefing will be completed. Interestingly, the motion cites to the Tenth Circuit's practitioner's guide, which states that "[t]he median time from filing appellee’s brief until oral argument is 2.3 months," and "[f]rom hearing to disposition the median time is 3.7 months."
The Colorado Supreme Court just issued a press release announcing that it has agreed to make available a live video stream of oral argument in Lobato v. State of Colorado. The argument is scheduled for March 7 at 9:30 a.m. The live video stream can be access through this website: http://www.courts.state.co.us/lobatovstate
The Court's press release, which you can view here, states that "[a]ny news media organizations wishing to record audio and/or video, or take still photographs, of the proceedings must receive prior approval from the Supreme Court."
For those unfamiliar with the case, the Colorado Attorney General has a summary of the case, along with links to variuos pleadings from the case, at this link.
Karen Auge has this story in today's Denver Post concerning yesterday's Court of Appeals decision in Taxpayer for Public Education v. Douglas County School District. In a 2-1 decision, a division of the court held that Douglas County's school voucher program is constitutional both as a matter of state and federal law. Judge Jones, joined by Judge Graham, wrote the majority opinion, which spans a whopping 59 pages. Judge Bernard dissented in an even longer opinion. Both can be found here. The Associated Press's coverage of the decision is here.
Justice Thomas recently visited Harvard Law School as part of a lecture series. The law school's report on his visit includes this lead paragraph:
Justice Clarence Thomas has become known as a quiet presence on the
Supreme Court. But on Jan. 29, members of the Harvard Law School
community got to hear him speak—and he did so with great humor and
The report, along with an hour-long video of his remarks, is here. The Harvard students gave him a standing ovation as he arrived in the room. Professor Ann Althouse has some interesting additional observations, which are here.
NPR broadcast a story this morning about the case of Millbrook v. United States, which involves whether federal law waives the sovereign immunity of
the United States for the intentional torts of prison guards when they
are acting within the scope of their employment but are not exercising
authority to "execute searches, to seize evidence, or to make arrests
for violations of Federal law."
The Supreme Court heard argument on the case this morning, and as the NPR report points out, the case is an exceedingly rare instance in which the Court, "in the longest of long shots," granted a pro se handwritten petition. SCOTUSblog's coverage of the case is here.
On Monday the Colorado Supreme Court issued an important opinion for appellate practitioners. In Northstar v. DLR Group, Inc., a breach of contract case, the appellant challenged the jury's verdict on sufficiency-of-evidence grounds. The appellant designated only part of the trial transcript, and the appellee argued before the Court of Appeals that the appellant had failed to comply with C.A.R. 10(b) by failing to designate the entire transcript.
The Court of Appeals disagreed, holding that the designated portions of the transcript were adequte to review the appellant's sufficiency challenge, and further that it was incumbent on the appellee to designate additional portions of the record that it deemed necessary to refute the appellant's sufficiency argument.
The Colorado Supreme Court disagreed. In an analysis that spans all of four pages, the unanimous Court held that the plain language of Rule 10(b) squarely places on the appellant the burden of designating "all evidence relevant" to the finding challenged on sufficiency-of-the-evidence grounds. Because the sole issue tried before the trial court was breach of contract, the Court concluded that all of the evidence presented at trial was necessarily relevant to the question of sufficiency. The apellant's failure to designate the entire trial transcript therefore resulted in the dismissal of the appeal.
The Colorado Supreme Court issued an opinion today ruling in favor of bicyclists who had challenged the City of Black Hawk's ban on bicycles. The plaintiffs had been ticketed for riding their bikes on Gregory Street, the only street providing access through town from the state highway to Central City. The court held that Black Hawk’s ordinance banning bicycles on city streets is in conflict with a state statute which requires any municipal bike prohibition to have an available alternate path within 450 feet.
Black Hawk's ban had drawn enormous negative attention locally, as well as nationally; in one footnote the Court cited articles on the ban in the Los Angeles Times and Bicycling Magazine.
The decision, authored by Justice Hobbs, also contains a short, interesting history of the Black Hawk area, including a long footnote about the Central City Opera House.
The court's decision is here; a short Denver Post report is here.
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."
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.