May 19, 2013

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Colorado Court of Appeals: Animal Protection Act Authorizes Court to Permanently Prohibit Abusive Cattle Owners from Future Ownership of Livestock

September 4, 2012 by Leave a Comment

The Colorado Court of Appeals issued its decision in Stulp, Colorado Commissioner of Agriculture v. Schuman on August 30, 2012.

Animal Protection Act—Permanent Injunction From Owning Livestock—Due Process.

In this action under the Animal Protection Act, defendants Dean Schuman and Schuman Cattle, LLC appealed the permanent injunction entered against them by plaintiff John Stulp, the Colorado Commissioner of Agriculture (Commissioner), enjoining defendants from owning, managing, controlling, or otherwise possessing livestock in Logan County. The order was affirmed.

The Colorado Department of Agriculture Bureau of Animal Protection (CDA) inspected defendants’ property after receiving complaints of dead cattle on the ranch. The court found that defendants were not fit to provide for the health and well-being of the cattle they owned. The court ordered the Commissioner to seize all cattle from defendants’ ranch and sell them at auction, and permanently enjoined defendants from owning, managing, controlling, or otherwise possessing livestock in Logan County.

Defendants contended the trial court exceeded its authority by permanently enjoining them from owning, managing, controlling, or possessing livestock in Logan County. The Court of Appeals disagreed. Defendants were starving the cattle to death and failing to treat any injured or sick cattle. They expressed no remorse, took no responsibility for past acts or omissions, and offered no evidence of rehabilitation. The Act authorized the trial court to permanently enjoin defendants from future ownership of livestock to enforce compliance with its provisions.

Defendants also contended that the permanent injunction violates the Due Process Clause of the U.S. Constitution and article II, § 3 of the Colorado Constitution. The rights to own animals and conduct a livestock business are not unlimited and can be abrogated in appropriate circumstances. Under the circumstances presented here, including the overwhelming evidence of defendants’ unwillingness to conform to accepted methods of animal husbandry, it was not a constitutional violation for the trial court to permanently enjoin defendants from owning livestock.

Summary and full case available here.

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Colorado Court of Appeals: Fourth Amendment Exclusionary Rule Does Not Apply to Driver’s License Revocation Hearings; No Right to Challenge Validity of Initial Police Contact

September 4, 2012 by Leave a Comment

The Colorado Court of Appeals issued its decision in Hanson v. Colorado Dep’t of Revenue, Motor Vehicle Division on August 30, 2012.

Driving Under the Influence of Alcohol—Driver’s License Revocation—Express Consent Statute—Subpoena—Fourth Amendment—Exclusionary Rule.

Petitioner Andrew Hanson appealed the district court’s judgment affirming the administrative order entered by respondent, the Colorado Department of Revenue (Department), revoking Hanson’s driver’s license for one year. The judgment was affirmed.

After a citizen’s report of erratic driving, the police apprehended Hanson at his home and transported him to the hospital, where Hanson refused testing under the express consent statute. Despite the deputy’s failure to appear at the revocation hearing in response to a subpoena served on him, the hearing officer quashed the subpoena and sustained the revocation.

On appeal, Hanson contended that the revocation order should be reversed because the hearing officer erroneously denied him the opportunity to cross-examine the deputy about the circumstances surrounding his entry into the residence. The Fourth Amendment exclusionary rule does not apply to revocation hearings. Therefore, Hanson’s Fourth Amendment claim fails. Further, because Hanson had no right to challenge the validity of the initial police contact, the hearing officer did not err in concluding that the deputy’s proposed testimony was unnecessary. Thus, Hanson was not deprived of his statutory right to cross-examine the deputy.

Summary and full case available here.

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Tenth Circuit: Experts As Lay Witnesses; Exclusion of Experts; No Prosecutorial Misconduct

September 4, 2012 by Leave a Comment

The Tenth Circuit published its opinion in United States v. Orr on August 29, 2012.

William Orr, a creator of an alternative fuel, was convicted of wire and mail fraud, tax evasion, and making false statements to investors and the federal government. Orr hired scientists to perform tests on his fuel at his request. These scientists testified at trial as lay witnesses for the prosecution. Orr objected to the admission of their testimony because the government did not qualify them as expert witnesses under FRE 702. The Tenth Circuit found no abuse of discretion in allowing them to testify as lay witnesses. “It makes no difference if the court qualified these witnesses as experts because Orr engaged them to perform the precise services and provide the information which was the subject of their testimony. . . . The trial court walked a careful line between allowing these witnesses to testify based on first-hand knowledge and disallowing opinions based on their expertise.” The court also disposed of Orr’s argument that “the admission of the non-expert testimony violated his Sixth Amendment right to confront the witnesses and his Fifth Amendment right to a fair trial. . . .” Claiming defense counsel could not ask certain questions of the witnesses with no way to ascertain what those questions might be was too speculative to be an error.

Orr also objected to the exclusion of some of his proffered experts. The Tenth circuit found Orr failed to meet his burden of showing one expert’s methodology was reliable. Other witnesses were properly excluded because their testimony would confuse the issues. A defendant’s “right to present a complete defense must ‘bow to accommodate other legitimate interests in the criminal trial process.’”

Orr claimed government misconduct based on the prosecutor’s hypothetical questions to investor witnesses. The court disagreed. “[T]he prosecutor here was required to show that Orr deliberately misrepresented material facts to his investors. The prosecutor’s question went to the material nature of Orr’s statements. The question focused on the investor’s willingness to supply money if he discovered the tests did not show the promised advantages over other fuels. The prosecutor did not express her personal beliefs about these matters and the question was based on testimony presented to the jury.”

The court also denied Orr’s prosecutorial misconduct claims that the prosecution implicitly called Orr and his defense counsel liars in closing argument by saying the investors relied on Orr’s “false statements and his lies to invest a second time.” Where some of the charges required proof the defendant lied to his investors and the government, this was acceptable language. “In the proper context, such as where the testimony conflicts on key aspects of a case and the jury must determine credibility, it is not misconduct to refer to the defendant’s statements as lies.”

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Tenth Circuit: Failure to Swear in Jury Not Plain Error

August 31, 2012 by Leave a Comment

The Tenth Circuit published its opinion in United States v. Turrietta on August 29, 2012.

Turrietta’s attorney knew the jury was not sworn in but deliberately failed to object until after the verdict convicting his client was in and the jury had been excused. The failure to contemporaneously object meant the court analyzed the unsworn jury issue for plain error. The court did not decide whether failure to give the oath violated the defendant’s Sixth Amendment right to a jury trial as alleged because even if it did, it was not plain error. There is “no binding authority, whether in the form of a constitutional provision, statute, rule, or judicial decision, addressing whether the Sixth Amendment right to trial by jury necessarily requires the jury be sworn.” Therefore, failure to give the oath could not be an “obvious” error.

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Tenth Circuit: Leave of Absence as ADA Reasonable Accommodation Has Limits

August 31, 2012 by Leave a Comment

The Tenth Circuit published its opinion in Robert v. Board of County Commissioners on August 29, 2012.

Catherine Robert was terminated from her offender supervision officer position after being out on FMLA leave for surgery. She sued the county, its commissioners, and her supervisor for FMLA leave retaliation, ADA discrimination, breach of contract, and violation of due process rights. Summary judgment was granted on all claims in favor of all defendants and the Tenth Circuit affirmed.

At the time of her termination, the plaintiff was unable to perform an essential function of her job: offender site visits. A few weeks after her FMLA leave expired, she was still unable to walk unassisted. The Tenth Circuit stated that a leave of absence can be a reasonable accommodation under the ADA, but an open-ended leave may not be reasonable. “The employee must provide the employer an estimated date when she can resume her essential duties.” A second limitation on leaves is duration. “A leave request must assure an employer that an employee can perform the essential functions of her position in the ‘near future.’” The court did not define a reasonable duration , but did reference an Eighth Circuit case that held six months to be unreasonable. The court mentioned the small size of the plaintiff’s department and the strain her inability to perform site visits and other duties put on her co-workers.

The Tenth Circuit held Robert’s prima facie FMLA retaliation claim had been overcome by the employer’s legitimate reason for her termination: she failed to return to work with a required release at the end of her FMLA leave. Robert’s other claims failed because public employees in Kansas are at-will.

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Tenth Circuit: Student’s Restrictive Desk Not a Violation of Equal Protection, the Fourth Amendment, or the Fourteenth Amendment

August 29, 2012 by Leave a Comment

The Tenth Circuit issued its opinion in Ebonie S. v. Pueblo School Dist. 60 on August 28, 2012.

This appeal required the Tenth Circuit to decide whether the use of a particular desk in special education classrooms is permissible under the United States Constitution. The desks in question wrap around the student on the front and the sides and have a securing bar that  runs behind the student’s chair. A student can only remove herself by sliding under or crawling over the desk’s surface when the bar is in place. In a kindergarten special education classroom in Pueblo, Colorado, Ebonie S., a young girl with multiple disabilities, was often required to sit in this type of desk. Ebonie’s mother, Mary S., filed suit on her behalf  contending that the use of the  desk violated the Fourth Amendment, the Due Process Clause, and the Equal Protection Clause. The district court granted summary judgment to defendants on the constitutional claims. Plaintiff appealed the grants of summary judgment, and the Tenth Circuit affirmed.

The Court noted that, although students do not shed their constitutional rights at the schoolhouse gate, federal courts have long recognized that government action impermissible in other spheres may be proper in the school setting. The Court further stated that the rights of students in the public schools are not automatically coextensive with the rights of adults in other settings. The Court also stated that some in-school disciplinary measures that restrict a student’s movement present only a de minimis level of imposition with which the Constitution is not concerned.

In light of this precedent and the record, the Court concluded that the desk’s limitation on Ebonie’s movement did not significantly exceed that inherent in every-day, compulsory school attendance. Accordingly, it held that Ebonie failed to demonstrate a cognizable seizure under the Fourth Amendment.

Plaintiff also contended that the desk violated Ebonie’s Fourteenth Amendment rights by restricting her liberty without due process. In light of its conclusion that the restrictions placed on Ebonie did not substantially exceed those inherent in compulsory education, the Court concluded that Ebonie’s liberty interest in freedom from bodily restraint was not implicated.

Finally, Plaintiff made an Equal Protection claim contending that the desk infringed on Ebonie’s fundamental right to be free from bodily restraint. Since Plaintiff cited no case holding that an in-school limitation of movement, especially one that was not significantly more restrictive than those imposed on all students, implicates this fundamental right, it was unwilling to subject every teacher’s order that limits the freedom of a student to strict constitutional scrutiny. AFFIRMED.

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

August 13, 2012 by Leave a Comment

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.”

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

August 13, 2012 by Leave a Comment

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.”

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Tenth Circuit: Grand Jury Proceedings Fundamentally Fair Because Petitioner Could Comprehend Questioning and Communicate Adequately

August 1, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in United States v. Hasan on Tuesday, July 31, 2012.

The Tenth Circuit affirmed the district court’s conviction. The Tenth Circuit has reviewed these proceedings twice before. “In 2005, Petitioner was convicted after a jury trial on three counts of perjury before a grand jury. The conviction was appealed and remanded because [the Court] concluded that Petitioner may not have been able to communicate effectively in English in violation of the Court Interpreters Act. [It]remanded to the district court so the court could make findings related to [Petitioner]’s comparative ability to understand the grand jury proceedings. After remand, [Petitioner] again appealed, this time arguing the court had not adequately followed [the Tenth Circuit's] directions spelled out in Hasan I. [The Court] agreed, leading to a second remand for more specific findings. The district court then entered additional findings and conclusions, based on its review of the grand jury transcripts and its observations of the trial proceedings, that [Petitioner] could sufficiently comprehend and communicate in English at the grand jury proceedings, and that whatever linguistic limitations he had were not so great as to make the proceedings fundamentally unfair. The question presented in this appeal is whether the district court’s findings and conclusions satisfy [the Tenth Circuit's] directions in Hasan I and Hasan II.”

The Court concluded the district court did satisfy the directions handed down from the prior two appeals. “Based on its conclusion that [Petitioner] could comprehend the questioning at the grand jury hearing and communicate adequately, the district court did not err in finding the grand jury proceedings fundamentally fair.”

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Tenth Circuit: Lane Change on Highway Without Use of Signal Is Justifiable Basis for Stopping Vehicle; Drug Evidence Found in Subsequent Search Is Admissible

July 26, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in United States v. Burciaga on Wednesday, July 25, 2012.

The Tenth Circuit reversed and remanded the district court’s decision. The government appeals the district court’s determination that an officer’s stop of Respondent’s vehicle was not justified after pulling the vehicle over for failing to use a turn signal. As a result, drug evidence found after a search of the vehicle was excluded from trial. “Where ‘other traffic may be affected,’ § 66-7-325 of the New Mexico Statutes requires a motorist changing traffic lanes to signal ‘continuously during not less than the last one hundred feet traveled by the vehicle’ before the change. The New Mexico Supreme Court has construed § 66-7-325 to require ‘a signal even when there is only a reasonable possibility that other traffic may be affected by the signaling driver’s movement.’”

The Tenth Circuit disagreed with the district court and found that a New Mexico highway patrol officer lawfully stopped Respondent’s vehicle based on a suspected violation of § 66-7-325, where Respondent, “without timely engaging his directional signal, changed from the left to the right lane on the interstate after passing the officer’s patrol car.” While the district court found that the stop violated Respondent’s Fourth Amendment right to be free from unreasonable seizures because the officer’s testimony failed to establish that traffic “could have been affected” by Respondent’s lane change absent facts not in evidence, the Court held that “§ 66-7-325 as applied to the facts provided the officer with an objectively justifiable basis for stopping [Respondent]’s vehicle.”

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Colorado Court of Appeals: Prohibitions on Sexual Contact and Possessing Pornography Reasonably Related to Rehabilitation and Purposes of Probation

July 23, 2012 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Lientz on July 19, 2012.

Probation—Revocation—Sexual Exploitation of a Child—Sexual Assault—Unconstitutional—Due Process—Aggravated Sentencing.

Defendant appealed the district court’s order revoking his probation and the sentences imposed. The order was affirmed, the sentences were vacated, and the case was remanded.

Defendant pleaded guilty in Case No. 01CR1323 to two counts of sexual exploitation of a child and one count of sexual assault on a child by one in a position of trust. Defendant also pleaded guilty in Case No. 01CR1348 to sexual exploitation of a child. Defendant’s probation was revoked for failing to comply with the requirements of his probation, and the court sentenced defendant to two concurrent indeterminate terms of fifteen years to life imprisonment in the custody of the Department of Corrections (DOC).

Defendant contended that the district court committed plain error in failing to conclude at the probation revocation hearing that two of the probation conditions he violated—the conditions prohibiting sexual contact without prior approval and possessing pornography—are not statutorily or constitutionally authorized. By possessing pornography and engaging in sexual relationships plainly relate to sex, defendant committed sex crimes, and the testimony of defendant’s treatment provider and probation officer supported these conditions. Accordingly, the district court did not commit error by failing to conclude that the two challenged probation conditions were not reasonably related to defendant’s rehabilitation and the purposes of probation under CRS § 18-1.3-204(2)(a)(XV). Further, defendant failed to assert any facts to support his claim that the challenged conditions violated his constitutional rights to liberty, privacy, and freedom of association, nor did he present any argument to show that the prohibition of possession of pornography was unconstitutionally overbroad. Finally, the probation requirements prohibiting “sexual contact” and “possession of pornography” were not unconstitutionally vague.

Defendant also contended that the district court violated his right to due process by not stating the reasons for revoking his probation or citing the evidence on which the court relied. However, the court specifically cited the evidence it relied on—the testimony of defendant’s probation officer and his treatment provider. Although lacking specificity, the court’s findings were sufficient under these circumstances because the evidence was uncontroverted. Accordingly, the court did not violate defendant’s right to due process.

Defendant further argued, the People conceded, and the Court of Appeals agreed that the sentences must be vacated and the case remanded for resentencing because the district court imposed aggravated sentences without making the necessary findings under CRS § 18-1.3-401(6) and (7). Therefore, the sentences were vacated and the case was remanded to the court to determine whether aggravated sentencing was appropriate.

Summary and full case available here.

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Tenth Circuit: After Supreme Court Decision, Stolen Valor Act Is Unconstitutional; Original Opinion and Judgment Vacated

July 3, 2012 by Leave a Comment

The Tenth Circuit Court of Appeals revised its opinion in United States v. Strandlof on Monday, July 2, 2012.

The Tenth Circuit vacated the opinion and judgment it originally issued on January 27, 2012. In light of the United States Supreme Court’s decision in United States v. Alvarez, 567 U.S.___, (2012)(No. 11-210), the July 16, 2010 order of the district court dismissing the amended information and charges against Petitioner for making false claims about military service is affirmed. See United States v. Strandlof, 746 F. Supp. 2d 1183 (D. Colo. 2010).

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