December 10, 2017

Archives for August 13, 2012

Brett Barkey Appointed as New District Attorney in Fourteenth Judicial District

On Monday, August 13, 2012, Governor John Hickenlooper appointed Brett Barkey as district attorney in the Fourteenth Judicial District, which covers Moffat, Routt, and Grand counties.

Barkey is now the assistant district attorney in the Fourteenth Judicial District. He will replace Elizabeth Oldham, who resigned earlier this month to take a job as senior deputy district attorney in Arapahoe County.

Barkey had a distinguished career in the U.S. Marines and served as legal counsel to senior U.S. commanders during three tours of duty in Iraq. He joined the District Attorney’s Office in the Fourteenth Judicial District in August 2011 after an earlier stint as the chief deputy district attorney in Craig. He is a fourth-generation Coloradan and now lives in Hayden.

Barkey earned his bachelor’s degree from the University of Denver and his law degree from Georgetown University.

Bennet Morris Appointed as New Judge in Montrose County

On Friday, August 10, 2012, Governor John Hickenlooper announced his appointment of Bennet Morris to serve as a Montrose County Court judge. Morris will fill the vacancy created by the resignation of the Honorable Jerry Montgomery. His appointment is effective immediately.

Morris is currently the Senior Assistant City Attorney for the city of Montrose, a position he has held since 2003. In this role, he provides a range of legal advice to the City Council, senior staff, the Planning Commission, and other city boards. He previously worked as an indemnity and claims evaluator at the Land Title Guarantee Company.

Morris earned his bachelor’s degree from the University of Cincinnati and his law degree from the University of Idaho.

Tenth Circuit: State Employment and Tort Claims Barred by Federal Enclave Doctrine

The Tenth Circuit Court of Appeals published its opinion in Allison v. Boeing Laser Tech. Servs. on Friday, August 10, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner “was a civilian employee of [Respondent], a federal contractor located on Kirtland Air Force Base. Kirtland Air Force Base is a federal enclave: it is located on land that New Mexico ceded to the federal government in 1952 and 1954. Since that time the federal government has exercised exclusive jurisdiction within the boundaries of the Base. [Petitioner] was terminated . . . [and] filed suit in state court, alleging that [Respondent] discharged him in retaliation for reporting corporate fraud to the Air Force. His claims were all based on state law theories—wrongful discharge, breach of implied contract, breach of covenant of good faith and fair dealing, retaliatory discharge, prima facie tort, and defamation.”

“It is well-established that after a state has transferred authority over a tract of land creating a federal enclave, the state may no longer impose new state laws on these lands. But state laws enacted before the cession continue to apply unless Congress specifically overrides them. The question here is whether state common law causes of action recognized after the state ceded the enclave to the federal government are available on federal enclaves. This question is governed by a long string of Supreme Court precedent that makes it clear that the law on a federal enclave is the state law that governed the land at the time the federal government established the enclave, not state law enacted thereafter—unless that law was expressly adopted by the enclave’s new sovereign, the federal government.”

“[Petitioner]’s causes of action arose from conduct on Kirtland Air Force Base, a federal enclave established in 1954. Because [Petitioner]’s state law claims are based on legal theories created by common law after that date, they are barred unless federal statutory law allows them to go forward. Because no federal statute authorizes state employment and tort claims of the sort here to be asserted against federal contractors, [Petitioner]’s suit is barred by the federal enclave doctrine.”

Tenth Circuit: Alleged Clean Air Act Violations Could Not Be Expected to Recur, so Case Is Moot

The Tenth Circuit Court of Appeals published its opinion in WildEarth Guardians v. Public Service Co. of Colorado on Friday, August 10, 2012.

The Tenth Circuit dismissed the appeal. Petitioner claims that Respondent’s “construction of a new coal-fired power plant in Pueblo, Colorado violated the [Clean Air Act] because [Respondent] failed to obtain a valid construction permit. . . . Although the project initially complied with all applicable federal and state laws when construction commenced in 2005, the regulatory landscape changed in 2008. A decision of the D.C. Circuit required regulators to impose additional Clean Air Act requirements upon new power plant construction. After the decision, [Respondent] worked with the relevant agencies to come into compliance with the modified regulatory regime while construction of the plant continued. [Petitioner] sued [Respondent] pursuant to the Act’s citizen-suit provisions, seeking civil penalties and an injunction to halt construction until [Respondent] complied with the Act.”

“While this litigation was pending, [Respondent] finished constructing the plant and came into compliance with the new regulatory regime. The district court dismissed the suit, reasoning that to find a Clean Air violation under the circumstances would be to give unwarranted retroactive effect to the decision of the D.C. Circuit. [Respondent] argues that [the Court lacks] jurisdiction to hear this appeal. It contends that since it is now in compliance with the Act, a court ruling could not redress any injuries [Petitioner] has suffered as a result of [Respondent]’s alleged violation. [Respondent] also argues [Petitioner] in effect has received the injunctive relief it requested because [Respondent] is now in compliance.”

Although the Court found redressability to be an inappropriate basis for dismissal here, Petitioner’s “claims nonetheless should be dismissed under the related jurisdictional doctrine of constitutional mootness. In most Clean Air citizen suits, mootness is difficult to establish because the plaintiff’s interest in deterring the defendant from future violations is sufficient to sustain a constitutional case or controversy between the parties. Under the unusual circumstances of this case, however, [the Court found Respondent]’s alleged Clean Air violations could not reasonably be expected to recur, and thus no deterrent effect could be achieved.”

Tenth Circuit: Unpublished Opinions, 8/10/12

On Friday, August 10, 2012, the Tenth Circuit Court of Appeals issued two published opinions and one unpublished opinion.

Hooper v. Jones

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.