September 18, 2014

Colorado Court of Appeals: Remand to Determine Whether Defendant Hired Specific Attorney or Entire Firm

The Colorado Court of Appeals issued its opinion in People v. Stidham on Thursday, September 11, 2014.

Sentencing Hearing—Sixth Amendment—Right to Counsel—Continuance.

A jury found defendant guilty of multiple sex offenses involving three minor children. The district court convicted him, adjudicated him a habitual criminal based on various prior convictions, and sentenced him to forty-eight years to life in the custody of the Department of Corrections. At a resentencing hearing, the court denied defendant’s request for a continuance based on his objection that an associate from the firm, R.T., instead of the attorney from the firm he had hired, H.S., was there to represent him. The resentencing hearing proceeded, and the district court ultimately imposed the same sentence.

Defendant argued that the trial court violated his Sixth Amendment right to counsel when it denied his request for a continuance of his resentencing hearing. It is unclear from the record whether defendant hired H.S. personally or the firm. Therefore, the case was remanded to make this determination and for further findings. If defendant hired H.S. personally, the court will need to vacate the current sentence and set a resentencing hearing at which H.S., defendant’s current counsel, or defendant’s retained counsel can appear. If defendant hired the firm, the court should consider and make a record of the appropriate factors in deciding whether it should have continued the resentencing hearing to allow defendant to be represented by H.S. If it finds it should have granted defendant’s requested continuance, the court should vacate the sentence and reset the resentencing hearing.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: No Confrontation Clause Violation where Defendant Not Allowed to Elicit Testimony Regarding Victim’s Truthfulness

The Colorado Court of Appeals issued its opinion in People v. Wilson on Thursday, September 11, 2014.

Sexual Assault—Challenge for Cause—Impeachment—Veracity—Collateral Issue—Prosecutorial Misconduct.

A.M. claimed she was sexually assaulted by defendant and his friend in a parking garage. Defendant claimed the sex was consensual. A jury convicted defendant of two counts of sexual assault.

On appeal, defendant contended that the trial court erred in denying one of his challenges for cause and granting two of the prosecution’s challenges for cause. All three of the challenged jurors expressed a possible bias. Because Juror R indicated that she thought she could fulfill her duties as a fair and impartial juror, the court did not abuse its discretion in denying defendant’s challenge for cause as to this juror. The court also acted within its discretion in removing Jurors W and S based on its conclusion that it was not satisfied that they would render an impartial verdict after expressing bias.

Defendant also contended that the trial court erred in not allowing him to impeach A.M.’s testimony that she had truthfully answered all of a detective’s questions in an interview regarding a previous narcotic’s arrest. However, because the subject of A.M.’s narcotics arrest raised a collateral issue, the trial court acted within its discretion in precluding defendant from inquiring of A.M. whether she had been truthful to the detective on that subject. It follows that defendant’s constitutional right to confront adverse witnesses was not violated.

Defendant further argued that reversal was required because of prosecutorial misconduct in closing argument. However, the prosecutor was drawing reasonable inferences from the evidence rather than professing her personal opinion as to A.M.’s veracity. Although asking the female jurors to conduct an experiment to determine whether the evidence was credible was improper, no plain error occurred. In asking the jury to evaluate the evidence, based on the experience of its female members, the prosecutor was not asking the jury to decide the case on impermissible grounds.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: No Fourth Amendment Violation where Officers had Reasonable Suspicion for Pat-Down

The Colorado Court of Appeals issued its opinion in People v. Martin on Thursday, August 28, 2014.

Motion to Suppress—Investigatory Stop—Pat Down—Fourth Amendment—Search and Seizure—Right to Testify—Waiver.

After defendant refused to exit a restroom at a convenience store, police officers ordered him to face the wall and put his hands behind his back for a pat down search. During the pat down, defendant’s actions caused the officers to think he was attempting to flee. A struggle between defendant and the officers ensued, during which defendant and one of the officers were injured. A jury found defendant guilty of attempting to disarm a peace officer and resisting arrest.

On appeal, defendant asserted that the trial court erred by denying his motion to suppress evidence because the investigatory stop and subsequent pat down violated his Fourth Amendment right to be free from unreasonable searches and seizures. The Court of Appeals disagreed. The officer had reasonable grounds to initiate contact with defendant, both on the basis of conducting an inquiry into defendant’s welfare and on reasonable suspicion that he was unlawfully trespassing on the property when defendant remained in the bathroom for more than twenty minutes and subsequently refused to exit the bathroom after the police arrived. Additionally, even if the pat down was unlawful, defendant’s conduct of pulling away from the officers, attacking them, and resisting arrest constituted new offenses justifying a pat down.

Defendant contended that the trial court erred by denying his request to testify. Defendant requested to testify after he had waived the right to do so and defense counsel had rested the case. Although a defendant’s constitutional right to testify is not absolute, a defendant is not prohibited from testifying after waiving the right to do so and resting his or her case. Therefore, the case was remanded for hearing to reconsider defendant’s request.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Life Sentence Without Parole Unconstitutional for Juvenile Offender

The Colorado Court of Appeals issued its opinion in People v. Gutierrez-Ruiz on Thursday, August 28, 2014.

Ineffective Assistance of Counsel—Sentence—Juvenile—Life Without Parole—Eighth Amendment.

While defendant was driving a car, his passenger (co-defendant) shot at a truck, wounding the driver. Co-defendant later shot at another car, killing the driver. Defendant was a juvenile at the time of his arrest. A jury convicted defendant of first-degree murder after deliberation and first-degree assault with a deadly weapon. The trial court sentenced him to life without parole on the murder count and to ten years and one day on the assault count.

Defendant raised a number of claims of ineffective assistance of trial counsel. However, these claims were procedurally barred. Defendant further contended that his appellate counsel failed to advise him of the one-year limitation period for filing a section 2254 petition. This did not warrant relief because appellate counsel did not have an obligation to advise appellant of this post-conviction option.

Defendant asserted, the People agreed, and the Court of Appeals concurred that defendant’s mandatory sentence to life imprisonment without the possibility of parole was unconstitutional. Defendant’s sentence of life without parole violates the Eighth Amendment because it was imposed without any opportunity for the sentencing court to consider whether this punishment is just and appropriate in light of defendant’s age, maturity, and the other factors. Accordingly, the case was remanded for resentencing.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Constitutional Right to Counsel Applies at All Critical Stages of Criminal Proceeding

The Colorado Court of Appeals issued its opinion in People v. Fritts on Thursday, August 14, 2014.

Sexual Assault—Child—Sentence—Consecutive—Right to Counsel—Crim.P. 35(a).

Defendant was charged with sixteen counts of sexual assault-related offenses based on allegations that he molested his minor stepdaughter. In 2000, in exchange for dismissal of the remainder of the charges, defendant pleaded guilty to two counts of sexual assault on a child by one in a position of trust. Defendant was sentenced to two concurrent sentences of twenty years to life. Defendant later filed a Crim.P. 35(a) motion to correct an illegal sentence. After a hearing, the court sentenced defendant to two consecutive sentences of ten years to life.

On appeal, defendant argued that the post-conviction court erred in holding that a defendant has no constitutional or statutory right to appointed counsel at a resentencing hearing occasioned by a successful Crim.P. 35(a) motion. Here, although defendant had a right to appointed counsel because the motion involved resentencing and the court erred in ruling otherwise, the error was harmless beyond a reasonable doubt because defendant was represented by privately retained counsel at the resentencing hearing.

Defendant also argued that the consecutive sentences imposed by the post-conviction court on resentencing were unconstitutional and illegal. However, the aggregate sentence imposed on resentencing was not harsher than defendant’s original sentence. Further, the record supports the court’s finding that two factually distinct offenses occurred. Therefore, the post-conviction court did not abuse its discretion by imposing consecutive sentences, and the consecutive sentences imposed on resentencing did not deprive defendant of due process of law. In addition, defendant’s rights against double jeopardy were not violated. The sentences were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: En Banc Rehearing Denied in TABOR Case

The Tenth Circuit Court of Appeals issued its opinion in Kerr v. Hickenlooper on Tuesday, July 22, 2014.

This appeal was a request for en banc rehearing on the previously published decision in Kerr v. Hickenlooper. Rehearing by the original panel was denied. The petition was circulated to all the judges of the court, excluding Judge Matheson, who recused, and a majority of the court voted to deny rehearing. Four judges would have allowed en banc rehearing – Judges Hartz, Tymkovich, Gorsuch and Holmes. Judges Hartz, Tymkovich, and Gorsuch wrote dissents to the denial.

Tenth Circuit: Oklahoma’s Same-Sex Marriage Ban Ruled Unconstitutional

The Tenth Circuit Court of Appeals issued its opinion in Bishop v. Smith on Friday, July 18, 2014.

Sally Smith, the County Clerk for Tulsa County, Oklahoma, appealed the district court’s decision that Oklahoma’s same-sex marriage ban is unconstitutional. Smith also challenged the standing of the plaintiffs to bring the action, and whether the Oklahoma court clerk is a proper defendant as to Oklahoma’s non-recognition provision concerning same-sex marriages performed in another state. The Tenth Circuit determined that the plaintiffs had standing, affirmed the district court’s decision, and determined that the Oklahoma court clerk was an improper party regarding the non-recognition provision. In affirming, the Tenth Circuit applied its ruling in Kitchen v. Herbert, the Utah same-sex marriage case, in which it held that plaintiffs who wish to marry a partner of the same sex seek to exercise a fundamental right and state justifications for banning such marriages that hinge on the procreative potential of opposite sex marriage do not satisfy a narrow tailoring test applicable to laws that impinge upon fundamental liberties.

Mary Bishop and Sharon Baldwin are Oklahomans who are in a long-term relationship and wish to marry. They sought a marriage license from the Tulsa County Court Clerk in 2009 but were denied because they are both women. They have suffered harms from the denial, including incurring legal fees to prepare estate planning documents to confer upon each other the same rights they would have in marriage. Susan Barton and Gay Phillips were married in Canada in 2005 and again in California in 2008. They have suffered adverse tax consequences as a result of Oklahoma’s refusal to recognize their marriage, and say that Oklahoma treats them as inferior to their opposite-sex counterparts.

In November 2004, Bishop, Baldwin, Barton, and Phillips filed suit against the Oklahoma governor and  attorney general, challenging Oklahoma’s state constitutional ban on same-sex marriage. The governor and attorney general filed a motion to dismiss in 2006, which was denied, and appealed that denial to the Tenth Circuit. A panel of the Tenth Circuit determined in 2009 that plaintiffs failed to name a defendant having a causal connection to their injury, such as a court clerk. On remand, the district court allowed plaintiffs to amend their complaint to add Smith in her official capacity as Tulsa County Court Clerk, and to add challenges to §§ 2 and 3 of DOMA against the United States ex rel. Eric Holder. In 2011, the United States notified the district court that it would no longer defend § 3 of DOMA on the merits, and the Bipartisan Legal Advisory Group was allowed to intervene to defend the law. The case proceeded to summary judgment, and Smith submitted an affidavit that she had no authority to recognize out-of-state marriages, be they of same-sex or opposite-sex couples.

After the U.S. Supreme Court’s decision in United States v. Windsor, the district court entered an opinion and order disposing of the defendants’ motion to dismiss and the cross-motions for summary judgment. The district court ordered that Phillips and Barton lacked standing to challenge DOMA because state law resulted in the non-recognition of their marriage; any challenge to DOMA was moot in light of the Windsor decision; Phillips and Barton lacked standing to challenge Oklahoma’s non-recognition provision because Smith is not involved in recognition; and Oklahoma’s ban on same-sex marriage (Part A of SQ 711) violates the Equal Protection Clause. Smith appealed the decision regarding Part A and Barton and Phillips cross-appealed the conclusion that they lacked standing. The DOMA issues were not challenged.

Smith first contends that plaintiffs lack standing to challenge Part A of SQ 711 because they do not simultaneously contest a state statute to the same effect. However, the Tenth Circuit determined that a constitutional amendment would have the effect of superseding all previous statutes. The statute is not enforceable independent of SQ 711.

In addressing the merits of Smith’s appeal regarding Part A, the Tenth Circuit applied its reasoning from the Kitchen case. The Tenth Circuit opined that the Supreme Court’s dismissal in Baker v. Nelson is not controlling, plaintiffs seek to exercise a fundamental right to marry, and state justifications against same-sex marriage based on procreation fail to satisfy a strict scrutiny test. The Tenth Circuit first rejected Smith’s Baker arguments that lower courts are not free to reject summary dismissals, stating that her argument is undermined by the explicit language of the case creating the rule. Next, the Tenth Circuit evaluated her contention that children have an interest in being raised by their biological parents. The Tenth Circuit ruled that this contention is contradicted by statutes allowing adoption, egg and sperm donation, and other non-biological means for child-rearing. The Tenth Circuit noted that the state failed to raise arguments why same-sex marriage proposes a greater threat than other non-biological child-raising scenarios. Further, the Tenth Circuit stated that Oklahoma’s ban sweeps too broadly, because not all opposite-sex couples are able to procreate or are interested in procreation, and they are not denied the ability to marry.

As to the challenge to the non-recognition provision, the Tenth Circuit determined that Phillips and Barton lacked standing in this area because Smith is not a proper party. Smith submitted an affidavit to the effect that she is not able to recognize any marriages in her official capacity, and the affidavit is sufficient to establish that Smith is not a proper party regarding non-recognition. The Tenth Circuit sympathized with the plaintiffs, who have been litigating the issue for ten years, but suggested instead that if they attempted to file a joint tax return and were denied, they would be able to sue the Tax Commission regarding the denial.

The judgment of the district court was affirmed.

Tenth Circuit: Utah’s Ban on Same-Sex Marriage and Refusal to Recognize Same Is Unconstitutional

The Tenth Circuit Court of Appeals issued its opinion in Kitchen v. Herbert on Wednesday, June 25, 2014.

In 2004, Utah legislators and citizens amended their statutes and state constitution (collectively referred to in the opinion as Amendment 3) to ensure that Utah “‘will not recognize, enforce, or give legal effect to any law’ that provides ‘substantially equivalent’ benefits to a marriage between two persons of the same sex as are allowed for two persons of the opposite sex.” Three same-sex couples filed suit under 42 U.S.C. § 1983 against the Governor and Attorney General of Utah, and the Clerk of Salt Lake County, challenging the constitutionality of the two statutes and the constitutional provision. The plaintiffs sought a declaratory judgment that Amendment 3 is unconstitutional and an injunction prohibiting its enforcement.

The district court granted summary judgment for the plaintiffs, holding that the statutes and amendment violated the fundamental right to liberty and denied plaintiffs equal protection because it classified based on sex and sexual orientation without a rational basis. The court permanently enjoined enforcement of the provisions. The U.S. Supreme Court stayed the district court’s decision pending appeal to the Tenth Circuit.

The Tenth Circuit first considered the issue of standing because the Salt Lake County Clerk had not appealed the district court’s decision. The court held that because the governor and attorney general have actual supervisory power to compel county clerks to comply with Amendment 3, they had standing to appeal.

Next, the court held that the Supreme Court’s 1972 summary dismissal of Baker v. Nelson was not controlling precedent, especially after United States v. Windsor. In Baker, the Court dismissed, for lack of a substantial federal question, the appeal of a decision affirming Minnesota’s ban on same-sex marriage. Judge Kelly dissented from the portions of this decision regarding Baker v. Nelson and holding that the Fourteenth Amendment requires Utah to permit same-sex marriage and to recognize same-sex marriages entered into in other states.

In holding that the right to marry is a fundamental liberty interest, the court rejected the arguments that only opposite-sex marriage is a fundamental right and marriage is only a fundamental right because of procreation. The court also rejected the argument that the definition of marriage by its nature excludes same-sex couples. In describing a liberty interest, “it is impermissible to focus on the identity or class-membership of the individual exercising the right.” Fundamental rights do not change based on who is seeking to exercise them.

After deciding that the right to marry is a fundamental liberty, the court applied strict scrutiny to Amendment 3. The appellants contended Amendment 3 “furthers the state’s interests in: (1) “fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children”; (2) “children being raised by their biological mothers and fathers—or at least by a married mother and father—in a stable home”; (3) “ensuring adequate reproduction”; and (4) “accommodating religious freedom and reducing the potential for civic strife.” The court found Amendment 3 was not narrowly tailored to further the first three interests as the state permitted marriage by many nonprocreative couples. It noted these same arguments were rejected in Windsor. As to the fourth alleged interest, the court pointed out that public opposition cannot provide cover for a violation of fundamental rights.

The Tenth Circuit held that “under the Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny. . . . A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.”

The court affirmed the district court and stayed its mandate pending the disposition of any petition for writ of certiorari.

Tenth Circuit: No First Amendment Violation for Non-Mandatory Attendance Order

The Tenth Circuit Court of Appeals issued its opinion in Fields v. City of Tulsa on Thursday, May 22, 2014.

Paul Fields was a captain in the Tulsa, Oklahoma police department (TPD). At the time of the events in question, Captain Fields commanded 26 officers and five supervisors. The chain of command above him was Major Julie Harris, Deputy Chief Webster, and Chief Jordan. After the FBI reported a threat against Tulsa’s Islamic Society, TPD provided protection for the mosque and the school next door. The Society decided to host a “Law Enforcement Appreciation Day” on March 4, 2011, to thank law enforcement for its protection during the threat, and distributed a flyer offering refreshments, mosque tours, and presentations about Islam upon request. The event was not mandatory but RSVPs were requested. When there were no RSVPs by February 17, Major Harris forwarded an email from Webster ordering each shift to send two officers and a supervisor or commander to the event.

Fields responded with an email to his lawyer, Webster, Harris, Jordan, and several of his subordinates, indicating that he would not follow the directive to attend the event and that he felt the requirement to attend the Society event violated his civil rights. Webster responded the following day, noting that the Islamic Society was going to great pains to host the event, Fields was not himself required to attend because he could order his subordinates to attend, and if he continued with his refusal, Fields would be subject to discipline. Fields responded that he had conferred with his counsel and would not attend. He also refused to order subordinates to attend. He was then served with discipline papers transferring him to another division and stating that he would be investigated by TPD Internal Affairs.

Fields filed a complaint, naming Webster as the only defendant, but subsequently amended it to include the City of Tulsa and Chief Jordan. Fields alleged violations of his First Amendment right to free exercise of religion, the Establishment Clause, his right to free association, and the Equal Protection Clause. Fields sought damages, a declaration that his rights had been violated, an injunction prohibiting the enforcement of the policies that led to his punishment, and the expungement from his personnel file of all references to the incident. After some litigation, the district court granted summary judgment for defendants, and Fields appealed to the Tenth Circuit.

First, the Tenth Circuit evaluated Fields’ claim that defendants violated his right to free exercise of religion because of the attendance order. However, Fields was not personally required to attend the Society program — he could have ordered a subordinate to attend in his place — therefore his rights were not violated. Because the attendance order did not violate Fields’ right to free exercise of religion, he was rightly subjected to punishment for his refusal to comply with the attendance order: “An invalid religious objection to an order that does not burden your free exercise of religion does not immunize you from punishment for violation of the order.”

Next, the Tenth Circuit evaluated Fields’ Establishment Clause argument. Fields claimed that the attendance order constituted an official endorsement of Islam by TPD. But the Tenth Circuit responded that Fields’ interpretation was unreasonable given the history, purpose, and context of the order. The Tenth Circuit then analyzed Fields’ free association violation claims, and rejected them because the attendance order did not require Fields to associate with the Islamic Society; he was not required to attend at all. The Tenth Circuit likewise rejected Fields’ claim of violation of the Equal Protection Clause, noting that Fields raised essentially the same arguments for his free exercise claim.

The judgment of the district court was affirmed on all counts.

Colorado Supreme Court News: Two New Cases to Decide Seven Issues

Stuart-StullerBy Stuart Stuller

The Colorado Supreme Court agreed to review two cases covering seven different issues, six of them raised in one case.

Criminal Sentencing Based on Prior Offenses

The case with one issue, Jarrod Ralph Rutter v. The People of the State of Colorado (No. 13SC523), focuses on Colorado’s habitual criminal sentencing statute under which the sentence of a person convicted of a crime is quadrupled if the person has three prior convictions of a certain class of crimes. Because the multiplier is formulaic, there is a possibility that the resulting sentence could be grossly disproportionate to the underlying criminal conduct, violating the Eighth Amendment’s prohibition against cruel and unusual punishment. As a result, such a sentence is subject to a proportionality review to determine whether it is constitutional.

Jarrod Rutter was convicted on charges relating to the manufacture of methamphetamine. Rutter had three prior convictions for possession and use of controlled substances, exposing him to the habitual criminal sentence enhancement. In the interim, the Colorado General Assembly had reduced possession and use drug crimes to misdemeanors, but if the crimes were felonies at the time of the fourth offense, they still would be counted toward habitual criminal status. With only the manufacture conviction, Rutter would have faced a 24-year sentence. Because of the possession and use offenses, Rutter’s sentence was quadrupled to 96 years.

Rutter argued that while the possession and use convictions could be counted toward the statutory sentence enhancement, the fact that the General Assembly had reduced the possession and use crimes to misdemeanors should be considered in the proportionality inquiry. The court of appeals, in an unpublished opinion by Judge Hawthorne, Judge Taubman concurring, rejected the argument. Judge Graham concurred in part and dissented in part.

School Vouchers

The six-issue case, Taxpayers for Public Education et al. v. Douglas County School District et al, (No. 13SC233), arises out of a statutory and constitutional challenge to a private school voucher program funded by the Douglas County School District under which public school funding is used to pay some students’ tuition at private schools, many of which are religious schools.

The statutory challenges are brought under the Public School Finance Act, which regulates the sourcing and distribution of funding for public education. The initial question is whether citizens have the ability, or standing, to raise such a challenge, an issue that the court held turned on whether the Finance Act gives rise to an implied private right of action.

If the Finance Act challenge is permitted, the next question will be whether the voucher program violates the Act by allowing the school district to include students who are enrolled in private schools in the enrolled student count that the district submits to the state for funding.

The remaining four questions focus on constitutional challenges brought under three different provisions of the Colorado Constitution.

One question extends to all three provisions, that is, whether the voucher program is entitled to a presumption of constitutionality that can be rebutted only by proof “beyond a reasonable doubt.”

The first constitutional challenge is that the voucher program violates the constitutional provision that money from the state public education fund shall remain “inviolate and intact.” The trial court’s Judge Michael Martinez determined that state fund money, which comprises 2 percent of the funding received by the district, was diverted to private schools; therefore, this violated the constitution. The court of appeals, in an opinion by Judge Jones with Judge Graham concurring and Judge Bernard dissenting, relied on the constitutional presumption to assume that the voucher program was funded entirely with the remaining 98 percent of the district’s funding.

The second challenge arises from a provision in Colorado’s Bill of Rights that lacks both the brevity of the federal constitution’s religious clauses and the well-developed case law. The pertinent part of the provision states that no person shall be “required to attend or support any ministry, or place of worship, religious sect or denomination against his consent.” The trial court held that the program violated the Bill of Rights by using taxpayer money to support religious instruction. The court of appeals reversed, holding that the federal constitution forbids state constitutional law from turning on inquiries into the extent to which private schools are religious in character.

The final constitutional challenge is anchored to a provision that prohibits public entities from using public funds to support sectarian purposes using terms that go well beyond the usual constitutional proscription of “shall,” that is, the provision states in pertinent part that no public entity “shall ever make any appropriation, or pay from any public fund . . . anything in aid of any church or sectarian society, or for any sectarian purpose . . . whatsoever.”

Motions to exceed word and page limits are expected.

Stuart Stuller practices appellate, litigation, constitutional, employment discrimination, and education law. He regularly appears before both state and federal appellate courts and has played a substantial role in more than 30 cases that resulted in published decisions. He can be reached at sstuller@celaw.com.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Tenth Circuit: Summary Judgment for Prison Officials in RLUIPA Sweat Lodge Case Vacated

The Tenth Circuit Court of Appeals published its opinion in Yellowbear v. Lampert on Thursday, January 23, 2014.

Andrew Yellowbear is in a Wyoming prison for murdering his daughter. He is an enrolled member of the Northern Arapaho Tribe and seeks access to the prison’s existing sweat lodge to facilitate his religious exercises. The prison’s sweat lodge is located in the general prison yard and Yellowbear is housed in a special protective unit because of threats against him. Prison officials refused to allow his use of the sweat lodge, saying that the cost of providing the necessary security to take Yellowbear from the special protective unit to the sweat lodge and back is “unduly burdensome.” Yellowbear filed suit against prison officals and sought injunctive relief under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The district court entered summary judgment for the defendants.

The Tenth Circuit held that Yellowbear had satisfied his burden under RLUIPA to show his use of the sweat lodge would be a religious exercise motivated by sincere religious belief. He also met his summary judgment stage burden of showing the prison substantially burdened that exercise by prohibiting him from any access to the sweat lodge.

For the government to prevail, it had to show prohibiting access serves a compelling state interest and is the least restrictive means of furthering that interest in this case. The court found the government had not met its burden. It did not quantify the costs it would incur in providing security to take Yellowbear to and from the sweat lodge. Additionally, prison lockdowns already occurred daily for nonreligious reasons, such as transporting other specially housed inmates to the medical unit. The defendants did not address this evidence so the inference that the prison would not perform lockdowns for religious exercise because of a discriminatory reason was not countered.

The defendants also argued that granting Yellowbear’s request would lead to a flood of requests from other specially housed inmates but provided no information to back up that speculative claim.

The court held that the prison also failed to meet its burden of showing its policy of prohibiting Yellowbears’s access was the least restrictive means necessary to further its compelling interest. The prison did not demonstrate that Yellowbear’s suggested alternatives were ineffective in meeting the prison’s goals. Showing that he refused the prison’s suggested alternatives was not enough.

The court explained that its decision was made on the basis of absolutes (no access granted) at the summary judgment stage and that the relative strengths of the parties’ positions may change. The court vacated summary judgment for the defendants.

Tenth Circuit: Disparity in Contribution Limits Among Candidates for Same Office Violated Equal Protection of Contributors

The Tenth Circuit Court of Appeals published its opinion in Riddle v. Hickenlooper on Thursday, January 23, 2014.

In 2010, three individuals ran for the Colorado House of Representatives, House District 61: Kathleen Curry, Roger Wilson, and Luke Korkowski. Curry was a write-in candidate, Wilson was the Democratic nominee, and Korkowski was the Republican nominee. Under Colorado law, individual contributions to Curry were capped at $200, and individual contributions to each of her opponents were capped at $400. Contributors to Curry’s campaign (along with others) sued state officials under 42 U.S.C. § 1983, claiming violation of the First Amendment and the Fourteenth Amendment’s Equal Protection Clause. The district court rejected the claims and granted summary judgment to the state officials.

Amendment 27 of the state constitution limits campaign contributions to state office candidates from single contributors to $200 for the primary and $200 for the general election. In 2004, the legislature removed time limits as to when a candidate could accept and spend contributions when a primary is involved. Because Republican and Democratic candidates must run in a primary to get on the ballot even if unopposed, but minor party, unaffiliated, or write-in candidates are only required to run in a primary when multiple candidates seek the nomination, the Secretary of State interprets the amendment and statute to allow candidates with a primary to accept $400 and those without to accept only $200.

The plaintiffs made an as applied argument to the statute and challenged the disparity rather than the amount of the limit. The Tenth Circuit focused on the contributors, not the candidates, in finding that contributors to all three candidates were similarly situated. It then applied the intermediate level of scrutiny the U.S. Supreme Court applied in the First Amendment context of contribution limits — whether the limits are closely drawn to a sufficiently important governmental interest.

The court found that the defendant’s asserted interest of anticorruption was not advanced by the statute so it was not closely drawn. It held that the statutory classification violates the right to equal protection for individuals wishing to contribute to write-ins, unaffiliated candidates, and minor-party candidates when each candidate runs unopposed for the nomination. The court reversed and remanded for summary judgment to be awarded to the plaintiffs.