Rocky Mountain Appellate Blog

Justice Thomas at Harvard

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 warmth.

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.

Supreme Court Grants Handwritten Petition, Hears Argument Today

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.

For Sufficiency-of-the-Evidence Arguments, Designate the Entire Trial Transcript

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 Court's decision is here.

Colorado Supreme Court Strikes Down Black Hawk Bicycle Ban

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.

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."