Rocky Mountain Appellate Blog

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.

Lawyer Files Cartoon Amicus Brief

I wouldn't recommend this style of written advocacy, but it sure has garnered a lot of attention.  You can see the full five-page brief here.  No word on whether the court has sanctioned the author.

TABOR Under Attack

Colorado's Taxpayer Bill of Rights (TABOR) -- on the books now for two decades -- is being attacked in Colorado federal court on the grounds that it violates what is known as the Guarantee Clause, the provision of the federal constitution that guarantees to each State "a Republican Form of Government." According to the challengers, because TABOR will not let legislators raise taxes without obtaining voter approval, the State of Colorado's government is not "Republican in form."

When news of the case first surfaced, constitutional law types (myself included) thought it was frivolous. The United States in a 1912 case involving Pacific Gas and Electric held that a challenge of Oregon's initiative process as violating the Guarantee Clause was a non-justiciable political question. The challenge here of Colorado's TABOR amendment, adopted by the Citizens of Colorado through the initiative process, certainly seemed to be equally non-justiciable.

After the case was filed, Colorado Attorney General John Suthers moved to dismiss it, as he should. In what can only be described as perhaps the judicial shocker of the decade, Judge Martinez, the newest Colorado federal district court judge appointed by President Obama, in a 73-page opinion, refused to dismiss the Guarantee Clause claim and further turned back a challenge to the standing of certain individual legislators to bring the case. On this latter point, it should be noted that the General Assembly itself is not bringing this case, nor did it vote to authorize the particular legislators to bring the case.

Just exactly what is a Republican Form of Government that the federal court held could at least theoretically be violated by TABOR? We have a General Assembly, consisting of a state House of Representatives and a State Senate. They enact all sorts of laws and exercise the State's police power that is the core of state sovereignty. They enact legislation appropriating approximately $20 billion in state and federal funds annually. Is this not "Republican in form"?

There is no measuring stick except for the fact that, per Judge Martinez, the legislators have alleged that they should be allowed to raise taxes without first seeking voter approval and the denial of such power is denial of a "core" legislative power that they should enjoy.

The Attorney General just filed a motion asking the court to certify the case for an interlocutory appeal. In other words, the AG is asking the district court to allow the Tenth Circuit to weigh in before this goes off on the frolic and detour that will ensue if the case is allowed to proceed to trial. Let us hope that the State and Colorado's citizens who support having a voice in the raising of their taxes get the second look they deserve.