Rocky Mountain Appellate Blog

Hick Appoints Court of Appeals Judge to Supreme Court

Lynn Bartels of the Denver Post is reporting that Governor Hickenlooper intends to appoint Judge Richard Gabriel to the Colorado Supreme Court, replacing the retiring Justice Gregory Hobbs.

Judge Gabriel's appointment to the Supreme Court should be quite a boost to the morale of the Court of Appeals, which hasn't seen one of its own appointed to the Supreme Court bench in decades.

Colorado Supreme Court Upholds Employee's Termination for Use of Medical Marijuana

In a decision receiving national attention, the Colorado Supreme Court unanimously ruled today that employers can fire employees who are licensed by the state to use medical marijuana.

Colorado's Lawful Activities Statute makes it illegal for employers to fire employees based on their "lawful" activity outside the workplace. The plaintiff was fired by Dish Network for violating the company's drug policy, despite the fact that he had a state-issued license for medical marijuana use. The plaintiff therefore claimed his termination violated the Lawful Activities Statute.

The Court, however, addressed whether the word "lawful" as used in the statute means permitted by both state and federal law. Because marijuana use remains unlawful as a matter of federal law, the Court held that the plaintiff's use of marijuana did not constitute "lawful" activity within the meaning of the statute. "Nothing in the language of the statute limits the term 'lawful' to state law. Instead, the term is used in its general, unrestricted sense, indicating that a 'lawful' activity is that which complies with applicable 'law,' including state and federal law."

The full text of the decision is here.

Tenth Circuit to Tackle Second Amendment Appeal

Last week, briefing was completed in Colorado Outfitters Ass'n v. Hickenlooper, a Tenth Circuit appeal involving Second Amendment challenges to two Colorado gun laws. One  law bans magazines of more than 15 rounds. The other requires, among other things, that if a law-abiding citizen wishes to loan a firearm to a friend, they must first go to a gun store together for a background check; when the firearm is returned, they must repeat the process.

In May 2013, a group comprising 55 Colorado sheriffs and numerous nonprofit organizations, gun stores, manufacturers, and individuals sued in federal court. A ten-day bench trial was held in April 2014 -- the first such trial since the Supreme Court's landmark decision in District of Columbia v. Heller.(In other post-Heller cases, courts have decided the case at summary judgment before trial.) The court subsequently rejected the Plaintiffs' claims, holding neither law violates the Second Amendment.

Plaintiffs appealed to the Tenth Circuit. The parties and numerous amici have now completed hundreds of pages of briefing, and oral argument will be held before a three-judge panel this fall.

The appeal gives the Tenth Circuit its first opportunity to consider the constitutionality of generally applicable gun laws. In the two Second Amendment cases the Tenth Circuit has considered since Heller was decided in 2008, the challenged laws applied not to the law-abiding, but to a subset of the population. United States v. Huitron-Guizar, 678 F.3d 1164 (10th Cir. 2012) ( illegal aliens); United States v. Reese, 627 F.3d 792 (10th Cir. 2010) (subjects of domestic protection orders).

Hale Westfall represents several nonprofits and individuals in the case, including the Colorado Farm Bureau, Colorado Youth Outdoors, and the Colorado Outfitters Association.