October 18, 2017

Tenth Circuit: Social Workers Held to Have Qualified Immunity on Foster Child’s Special-Relationship Claims

The Tenth Circuit Court of Appeals issued its opinion in Dahn v. Amedei on Monday, August 14, 2017.

This case concerns an exception to the general rule that states are not liable for harm caused by private actors. This exception, called the special-relationship doctrine, makes a state or its agents liable under 42 U.S.C. § 1983 for failing to protect people from harm if they have deprived those people of liberty and made them completely dependent on the state for their basic needs. In this case, the Tenth Circuit Court of Appeals decided whether the geographical reach of the special-relationship doctrine crosses state lines.

A foster child, James Dahn, sued two Colorado social workers responsible for investigating reports that he was being abused. Dahn had been in Oklahoma’s custody until, in 2008, a Colorado adoption agency (Adoption Alliance) placed him for adoption with a foster father, Jeremiah Lovato, in Colorado. The foster father physically abused Dahn before and after adopting him. Many reports of suspicious abuse were reported to employees of the Moffat County Department of Social Services, Audrey Amedei and Amanda Cramer. Amedei and Cramer responded to the reports from Dahn’s school regarding Dahn’s suspicious bruising and significant, twenty-eight-pound weight loss, by interviewing Dahn and speaking with Lovato, via telephone. The reports of abuse were then determined to be unfounded. After further reports of suspicious bruising, Cramer chose not to speak with Dahn or Lovato, but instead called Vicki little, an independent contractor hired by Adoption Alliance to act as Dahn’s caseworker. Little visited the home, only speaking with Dahn alone for a few minutes, and shrugged off the concerns, determining Dahn was doing well. After two more visits where Little failed to speak to Dahn alone, she recommended that Lovato be allowed to adopt Dahn.

In 2010, the physical abuse from Lovato had escalated to the point where Dahn had to protect himself by running away. Dahn was taken to the hospital, where it was discovered that Lovato had broken Dahn’s arm months earlier, there was still ongoing abuse resulting in bruising, internal injuries, and bleeding, as well as open lesions. Lovato was tried and convicted of criminal child abuse in Colorado and sentenced to 119 ½ years-to-life in prison.

In 2013, Dahn sued Adoption Alliance, Little, Tem (Little’s supervisor), Amedei, and Cramer for his injuries. Dahn alleged (1) all defendants violated his Fourteenth Amendment substantive due process rights, under a special-relationship theory; (2) all defendants violated his Fourteenth Amendment substantive due process rights, under a state-created-danger theory; and (3) that defendants Adoption Alliance, Tem, and Amedei failed to properly train and supervise their employees in evaluating, monitoring, and investigating the prospective adoptive placement for abuse, resulting in violations of Dahn’s Fourteenth Amendment substantive-due-process rights. Dahn also brought state-law claims for negligence and outrageous conduct against all defendants. The issue decided by the Circuit was whether the district court erred in concluding that Amedei and Cramer had a special relationship with Dahn, and whether the law on this issue was clearly established.

Due process claims built on the special-relationship doctrine have four elements. First, the plaintiff must demonstrate the existence of a special relationship, meaning that the plaintiff completely depended on the state to satisfy basic human needs. Second, the plaintiff must show that the defendant knew that the plaintiff was in danger or failed to exercise professional judgment regarding that danger. Third, the plaintiff must show that the defendant’s conduct caused the plaintiff’s injuries. And, fourth, the defendant’s actions must shock the conscience. The question the Circuit decided was whether a foster child in the custody of one state can, after being placed by a private adoption agency with a foster father in a different state, establish a special custodial relationship with that second state when the second state takes on the duties to investigate evidence suggesting abuse.

The Tenth Circuit found that the law does not clearly extend constitutional liability under the special-relationship doctrine to employees of a state that did not deprive Dahn of his liberty or supply his basic needs, even though they were social workers in the county where he resided. Although the Circuit stated that Amedei and Cramer owed some duty to Dahn, as they investigated the suspected abuse but failed to take any action to remove Dahn from Lovato’s custody, the court found that Dahn had failed to show clearly established law that created a special-relationship between him, Amedei, and Cramer. This conclusion comes from a previous case which noted that the affirmative duty to protect arises not from the state’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitations which it has imposed on his freedom to act on his own behalf. Because the state had not deprived the child of his liberty, it did not have a custodial relationship with him that required the state to protect him from harm. The Circuit declined to address the other element of his claim, which is whether Amedei and Cramer acted in an unprofessional and conscience-shocking manner.

The Tenth Circuit Court of Appeals REVERSED the district court’s order denying Amedei and Cramer’s motion to dismiss Dahn’s special-relationship claim against them, and REMANDED for further proceedings.

Colorado Court of Appeals: No Constitutional Violation by Using ALJs in Workers’ Compensation Proceedings

The Colorado Court of Appeals issued its opinion in Sanchez v. Industrial Claim Appeals Office on Thursday, May 18, 2017.

Workers’ Compensation Act of Colorado—Constitutionality—Separation of Powers—Equal Protection.

Claimant sustained a back injury at work lifting a hydraulic unit from his truck. Within two months he was back to work and placed at maximum medical improvement. Soon thereafter he complained of excruciating lower back pain, but both his original doctor and a specialist concluded that this new lumbar strain was not work-related but related to normal age-related degenerative changes.

Claimant sought temporary partial disability (TPD) benefits from the date of his injury and temporary total disability (TTD) benefits from when his low back pain flared up. An  administrative law judge (ALJ) rejected the request for benefits, finding that (1) his lower back pain was unrelated to his work injury, and (2) because he had continued working, claimant had not suffered a wage loss and was not entitled to either TPD or TTD benefits. The ALJ dismissed his requests. The Industrial Claim Appeals Office (Panel) affirmed but remanded the case to the ALJ to determine whether claimant was entitled to change his physician.

On appeal, claimant argued the separation of powers doctrine is violated by having workers’ compensation cases heard in the executive branch. In rejecting this argument, the court of appeals followed Dee Enterprises v. Industrial Claim Appeals Office, which held that the statutory scheme for deciding workers’ compensation cases does not violate the separation of powers doctrine.

Claimant then argued his equal protection claims should be analyzed under the strict scrutiny standard. The court held that the rational basis test applies to equal protection challenges in the workers’ compensation context. Under that test, “a statutory classification is presumed constitutional and does not violate equal protection unless it is proven beyond a reasonable doubt that the classification does not bear a rational relationship to a legitimate legislative purpose.”

Claimant argued that his and other workers’ compensation litigants’ rights to equal protection were violated because workers’ compensation cases are not heard by judges. The court concluded that legitimate governmental goals provide a rational basis for employing executive branch ALJs and the Panel to decide workers’ compensation cases. The court rejected claimant’s contention that his right to equal protection was violated because his claim was heard by an ALJ and the Panel.

Claimant then contended that the Panel’s dual role as decision-maker and then-named litigant if a case is appealed “reeks of impropriety.” The requirement that the Panel be added as a party is not arbitrary and serves the purpose of the Workers’ Compensation Act of ensuring thorough and expeditious review and enforcement of ALJ and Panel orders.

Claimant also challenged on equal protection grounds C.R.S. § 8-43-404(5)(a)(II)(A), which exempts governmental entities and health care providers from providing an injured worker with a list of four physicians from whom the worker may seek medical care for his injury. The court concluded that a rational basis exists for excluding employees of those two types of employers from the four-physician referral requirement. Thus, there was no equal protection violation.

The court rejected claimant’s three non-constitutional arguments, which were that: (1) the exemption from the four-physician referral requirement did not apply because claimant’s employer did not meet the requirements of C.R.S. § 8-43-404(5)(a)(II)(A); (2) substantial evidence did not support the ALJ’s factual findings; and (3) the ALJ made numerous evidentiary errors.

The Panel’s order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Pattern of Abuse Convictions were Sentence Enhancers to Substantive Acts

The Colorado Court of Appeals issued its opinion in People v. Wiseman on Thursday, April 20, 2017.

Sexual Assault on a ChildIllegal SentencingConsecutive Sentences—Concurrent Sentences—Sentence EnhancersColorado Sex Offender Lifetime Supervision Act of 1998—Double Jeopardy—Due Process—Laches—Speedy Sentencing—Cruel and Unusual Punishment.

A jury found Wiseman guilty of acts constituting sexual assault on a child under the age of 15 by one in a position of trust. Wiseman received four sentences, three of which were to run consecutively, and one to run concurrent to two others. While Wiseman was incarcerated in the Department of Corrections (DOC), the district court, at the DOC’s request, reviewed his sentence and determined that consecutive terms were mandated by law on all four of his sentences. The effect of the court’s order was to increase Wiseman’s sentence to 46 years imprisonment.

On appeal, Wiseman contended that he was subject to, at most, two convictions and sentences in this case, and that the district court erred in determining that consecutive sentences were statutorily required. Counts seven and eight did not encompass “additional” substantive crimes for which one or more separate sentences could be imposed; they acted as mere sentence enhancers for counts one and three. Consequently, in entering separate convictions and sentences for counts seven and eight, the district court erred. As to the types of sentences, concurrent sentencing is required when offenses are supported by identical evidence. Here, Wiseman’s convictions were not supported by identical evidence and arose out of different incidents. Under the circumstances, Wiseman was subject to concurrent or consecutive sentencing, in the court’s discretion. The district court, therefore, erred in concluding that it was statutorily required to impose consecutive sentences.

Wiseman requested that the case be remanded for reinstatement of the original judgment of conviction and sentences. But Wiseman’s crimes were punishable by indeterminate sentencing under the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA). Thus, Wiseman’s original and revised sentences were both illegal, and a remand for the imposition of a “legal” indeterminate sentence under SOLSA is required: Wiseman must be sentenced for each conviction to an indeterminate sentence having a minimum term of a certain number of years and a maximum term of life imprisonment.

Wiseman objected to the imposition of another sentence that could expose him to the potential of serving life in prison. He asserted that imposing an indeterminate sentence at this point in time, over 15 years after he was initially sentenced, violated double jeopardy, due process, laches, speedy sentencing, and cruel and unusual punishment principles. Because Wiseman was put on notice by the statute that his offense would be subject to an indeterminate sentence, he lacked a legitimate expectation of finality in his original sentence. Thus, correcting the illegal sentence does not violate double jeopardy. There is no due process violation because Wiseman has no fundamental right to avoid serving a lawful sentence of which he should have been aware, and the State of Colorado has legitimate interests in the correct application of its laws and avoiding the precedential risk of irregular enforcement of its laws. The doctrine of laches is not applicable in the context of a Crim. P. 35(a) motion to correct an illegal sentence. The court of appeals found no basis on which Wiseman may assert that resentencing him would violate a constitutional right to speedy sentencing under Crim. P. 32(b). Lastly, the court disagreed that the imposition of a legal, indeterminate sentence would constitute cruel and unusual punishment because (1) Wiseman’s premise that he had an expectation that he would be immediately released on parole under his original sentence is wrong, and (2) such a claim cannot be predicated on the negligence of executive agencies or the courts in failing to impose or correct a sentence at a much earlier date.

The sentence was vacated and the case was remanded with instructions.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: C.R.C.P. 12(b)(5) Motions Disfavored and Should Only Be Granted If No Facts Support Plaintiff

The Colorado Court of Appeals issued its opinion in Masters v. School District No. 1 in the City & County of Denver on Thursday, November 5, 2015.

Teacher Employment, Compensation, and Dismissal Act—Contract Clause—Due Process.

Plaintiffs were employed as full-time teachers by Denver Public Schools and had achieved non-probationary status under the Teacher Employment, Compensation, and Dismissal Act (TECDA). Plaintiffs brought the underlying action in district court, alleging that TECDA violated their rights under the Colorado Constitution’s contract clause and due process clause. The trial court granted defendant’s motion to dismiss both claims.

On appeal, plaintiffs contended that the district court erred by dismissing their contract clause claim. TECDA created a contractual relationship between school districts and teachers. Non-probationary status is achieved under TECDA after a teacher completes a probationary teaching period, and that status conferred on the teacher protections against dismissal. Therefore, the district court erred by dismissing plaintiffs’ contract clause claim under CRCP 12(b)(5) for failure to state a claim upon which relief can be granted.

Plaintiffs also contended that the district court erred by dismissing their due process challenge to the mutual consent provisions of TECDA. TECDA provides that non-probationary teachers may be dismissed only for statutorily specified reasons constituting “good and just cause” and only after certain procedures are followed. Before Senate Bill (SB) 191 was passed, TECDA required a school district to find a new position for a displaced non-probationary teacher, and the receiving school was required to accept the teacher. Such for-cause dismissal provisions create a constitutionally protected property interest in continued employment. Through SB 191, the legislature replaced this procedure with a “mutual consent” procedure whereby a displaced non-probationary teacher may be assigned to a position at another school only with the receiving principal’s consent and input from at least two teachers at the school, and the school district was authorized to place on unpaid leave any displaced non-probationary teacher who has not secured a mutual consent position in the district within 12 months or two hiring cycles, whichever is longer. Before being placed on unpaid leave, however, non-probationary teachers have a due process right to a hearing in which the teacher may attempt to show that the purported reason for which she was placed on unpaid leave was not the actual reason or that the placement was effected in an arbitrary or unreasonable fashion. Therefore, the district court erred in dismissing the plaintiffs’ due process claim for failure to state a claim upon which relief can be granted. The judgment was reversed and the case was remanded with directions.

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

Colorado Court of Appeals: Defendant Had Right to Be Present at Competency Hearing but Was Not Prejudiced by Absence

The Colorado Court of Appeals issued its opinion in People v. Wingfield on Wednesday, December 31, 2014.

Attempted Escape—Competency Hearing—Due Process—Waiver—Choice-of-Evils Defense.

Wingfield shared a cell with two other inmates at the Arapahoe County Jail. The three men were caught by the guards digging a trench around the perimeter of the window in an attempt to escape. The guards found a crutch that had a flattened end, metal bars, a portion of a metal drain or grate, and a shank. Wingfield was convicted of possession of contraband. The court adjudicated him a habitual offender and sentenced him to eighteen years in the custody of the Department of Corrections.

The Court of Appeals agreed with Wingfield that the trial court improperly allowed his defense counsel to waive his right to presence at the competency hearing. However, Wingfield failed to show how his presence would have been useful to his defense. Therefore, the trial court did not violate his constitutional rights by holding the competency hearing in his absence.

Further, the trial court did not abuse its discretion or violate Wingfield’s due process rights by denying his request for a second competency examination. First, Wingfield never made an offer of proof about what evidence could be presented to establish his incompetence. Second, the trial court had ample opportunity to observe Wingfield’s actions and general demeanor throughout trial to determine his compentency.

Wingfield also contended that the trial court erred when it denied his choice-of-evils defense. He argued that because his cellmates threatened to kill him if he did not assist in their escape attempt, he was justified in assisting them. The trial court found that, although Wingfield faced an imminent threat, he had viable alternatives to going along with the escape. Therefore, the trial court did not err in denying the defense. The judgment was affirmed.

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

Tenth Circuit: Constitutional Claims Impermissible in Sentence Reduction Hearing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Gay on Wednesday, November 12, 2014.

In 1998, Alondo Gay was indicted on eight counts, including having distributed 245.3 grams of cocaine base. He pled guilty to that charge in exchange for dismissal of the remaining charges. The probation office prepared a presentence report using the 1998 sentencing guidelines, which held Mr. Gay accountable for 9,636.88 grams of cocaine base. He qualified for a base offense level of 38. The final PSR added four additional levels for a total offense level of 42. Initially, Mr. Gay objected to several factual findings in the PSR, but withdrew his factual objections at the sentencing hearing for a 3-level reduction. His guidelines sentencing range was 262 to 327 months’ imprisonment, and he was sentenced to 262 months.

In 2007, the Sentencing Commission adopted Amendment 706, which reduced the sentencing disparity between cocaine base and cocaine powder from a 100:1 ratio to a 33:1 ratio. In 2008, Amendment 706 was made retroactively applicable. Then, in August 2010, Congress enacted the Fair Sentencing Act, which further reduced the sentencing disparity ratio to 18:1. The Sentencing Commission adopted another retroactive amendment in response to the Fair Sentencing Act, which reduced the offense levels for offenses involving between 2.8 and 8.4 kg of cocaine base from 38 to 36.

In light of the sentencing changes, Mr. Gay filed a motion under § 3582(c)(2) to reduce his sentence. The district court denied his motion, finding him ineligible for relief because his sentence was based on a greater quantity of cocaine base than was affected by the amendments. Mr. Gay appealed, contending the application of his sentence under the 100:1 ratio violated his Fifth Amendment Due Process rights, and that the length of his sentence violated the Eighth Amendment’s prohibition against cruel and unusual punishment.

The Tenth Circuit characterized his appeal as an impermissible attempt to collaterally attack his sentence. The only relief allowed in a § 3582(c)(2) proceeding is sentence modification, not argument of constitutional claims. Mr. Gay should have raised his constitutional arguments in direct appeal. The Tenth Circuit conducted a plain error review and found none. Mr. Gay’s sentence was affirmed.

Tenth Circuit: Plaintiff Denied Due Process When Not Allowed Hearing on Allegations of Sexual Harassment

The Tenth Circuit Court of Appeals issued its opinion in McDonald v. Wise on Tuesday, October 28, 2014.

Wayne McDonald was a Special Assistant to Denver Mayor Michael Hancock in 2011 and 2012. He was appointed by the mayor to serve “at the pleasure of the Special Assistant,” and in his official duties, he worked closely with Denver police officer Leslie Wise, who provided security to the mayor. He communicated with Ms. Wise on and off duty, discussing both work-related and personal matters. Between September 2011 and March 2012, Ms. Wise called Mr. McDonald at least 41 times on his personal phone, with calls as early as 6:26 a.m. and as late as 7:39 p.m. On November 3, 2011, unbeknownst to Mr. McDonald, Ms. Wise recorded two of these calls. At least 3/4 of the calls from Ms. Wise to Mr. McDonald occurred after November 3, 2011. She also gave him a Christmas gift, attended church with him, and met his family. They last spoke on March 14, 2012, when Ms. Wise telephoned Mr. McDonald.

On May 18, 2012, the mayor’s deputy chief of staff and the city attorney informed Mr. McDonald that Ms. Wise had accused him of sexual harassment and produced the two recorded phone calls from November 3, 2011. Mr. McDonald denied the allegations and agreed to participate fully in an investigation. He left the meeting with the understanding that he was suspended pending the outcome of an investigation and hearing. At a subsequent meeting on May 21, Mr. McDonald was told he could either resign or be fired due to the allegations. Mr. McDonald requested an investigation and opportunity to defend himself, but was fired on the spot. The mayor and his staff subsequently informed the news media that Mr. McDonald was fired for sexual harassment. Mr. McDonald applied for unemployment compensation benefits, but was denied based on his termination for sexual harassment. He appealed to the Colorado Department of Labor, and the hearing officer determined Mr. McDonald was not responsible for the separation from employment. Mr. McDonald has not been able to find subsequent employment, and has been told by potential employers that his termination for sexual harassment is the reason. He brought suit against the city, the mayor, and the mayor’s press secretary for due process violations, breach of contract, and unlawful disclosure of confidential information. He sued Ms. Wise for defamation. The district court rejected all of his claims, and this appeal followed.

The Tenth Circuit first addressed Mr. McDonald’s claims that he was deprived due process of the law for both property and liberty interests. The Tenth Circuit found that Mr. McDonald did not have a property interest in his continued employment, because he served at the pleasure of the mayor and as such was an at-will employee. He could not have had a property interest in continued employment because of his at-will status, and the district court correctly dismissed this claim. The Tenth Circuit reached a different outcome as to Mr. McDonald’s liberty interest in his good name and continued employment. The mayor said at a press conference that Mr. McDonald was terminated for sexual harassment, not because of allegations, thus effectively affirming the allegations in a public forum. The statements called Mr. McDonald’s good name into question, and Mr. McDonald has been unable to secure further employment due to the statements. The Tenth Circuit determined that Mr. McDonald’s liberty interest was infringed upon, and next turned to the question of whether he had a chance to clear his name at a proper name-clearing hearing. Because Mr. McDonald received no hearing at all on this issue, the Tenth Circuit found a serious deprivation of due process related to his protected liberty interest, and reversed the district court. However, the Tenth Circuit found that the mayor’s press secretary need not be named in her official capacity in the suit, since the mayor and the city were named. On remand, the proper parties for this issue are solely the mayor and the city.

Mr. McDonald also contended that his termination was a breach of his employment contract with the city. The Tenth Circuit disagreed, finding as above that his employment was at will, and his claim is not one for which relief can be granted. The Tenth Circuit likewise disposed of his claim regarding non-disclosure of personnel records under the Colorado Open Records Act, because there is no private right of action under CORA and he did not allege sufficient reason to amend his complaint.

Finally, the Tenth Circuit turned to Mr. McDonald’s defamation claim against Ms. Wise. The district court dismissed his defamation claim, finding qualified immunity for Ms. Wise, and that even if she were not immune, Mr. McDonald failed to allege a viable defamation claim. The Tenth Circuit disagreed with the trial court’s reasoning, finding instead that Ms. Wise was not entitled to qualified immunity since her actions were willful and wanton. Mr. McDonald’s complaint alleged sufficient facts to support an inference of willful and wanton conduct, including the numerous phone calls made to him by Ms. Wise after the date of the alleged sexual harassment, and he was entitled to a trial on the merits. As to the defamation claim, the Tenth Circuit found that Ms. Wise held no qualified privilege since she made the allegedly defamatory statements with actual malice, and the district court erred by concluding Ms. Wise was immune from liability.

The Tenth Circuit affirmed the district court’s dismissal of Mr. McDonald’s property interest due process claim, breach of employment contract claim, and CORA violation claim. The Tenth Circuit reversed the district court’s dismissal of Mr. McDonald’s liberty interest due process claim and defamation claim against Ms. Wise, and remanded for further proceedings.

Colorado Court of Appeals: Deported Defendant’s Appeal Not Moot Where He is Not Barred from Reentry

The Colorado Court of Appeals issued its opinion in People v. Calderon on Thursday, October 23, 2014.

Probation Revocation—Due Process.

In 2012, defendant pleaded guilty to attempted first-degree trespass of an automobile with the intent to commit a crime. He was sentenced to two years of intensive supervised probation, with ninety days in jail.

A few months later, defendant’s probation officer filed a probation revocation complaint. At the revocation hearing, the officer testified she had never met with defendant because he had been released to jail directly into the custody of Immigration Customs Enforcement (ICE). The district court found that defendant had violated the terms of his probation and resentenced him to two years of intensive supervised probation. Defendant filed a motion for reconsideration, which was denied.

On appeal, defendant argued that his due process rights were violated when his probation was revoked based on a violation of a condition of probation. He claimed he did not receive either notice of the probation conditions when he was sentenced to probation, or written notice of those conditions in the revocation complaint. It was undisputed that defendant did not receive written notice of his probation conditions, and there was no evidence that defendant had actual notice of the probation conditions. Therefore, the Court of Appeals reversed the order revoking probation.

The Court further held that defendant was deprived of his due process right to written notice in the revocation complaint of the condition of probation he allegedly violated. Defendant had a due process right and a statutory right to such notice. The orders were reversed and the case was remanded to the district court to reinstate defendant’s original sentence to probation.

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

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.

Colorado Supreme Court: No Due Process Requirement for Crim. P. 11 Advisement When Defendant Statutorily Waives Right to Advisement

The Colorado Supreme Court issued its opinion in Finney v. People on Tuesday, May 27, 2014.

Criminal Law—Sentencing and Punishment—Alternative Dispositions—Pre-Sentence Penalty Advisements at Revocation Hearings.

CRS § 16-11-206 requires a court to advise a probationer, at or before a hearing on a revocation complaint, of the possible penalties he or she may face. Here, the Supreme Court considered whether, to satisfy due process, Crim.P. 11(b) independently requires such an advisement. The record demonstrates that defendant waived his statutory right to a penalty advisement under CRS § 16-11-206. The Court concluded that, even if defendant had not waived his statutory right to an advisement, the requirement of CRS § 16-11-206 was met here because defendant was advised on several occasions of the potential penalties he faced. The Court further held that CRS § 16-11-206 does not incorporate Crim.P. 11(b) or otherwise embody a constitutional right to be advised of the possible penalties when a defendant admits to a violation of a deferred judgment agreement. Thus, where, as here, a defendant waives his or her statutory right under CRS § 16-11-206 to a penalty advisement at a revocation hearing, neither Crim.P. 11(b) nor constitutional due process independently requires such an advisement. Accordingly, the Court affirmed the court of appeals’ decision upholding the trial court’s denial of post-conviction relief.

Summary and full case available here.

Colorado Court of Appeals: Defendant Timely Files Motion to Dismiss Even on Day of Trial if Filed Prior to Any Hearing

The Colorado Court of Appeals issued its opinion in People v. Desantiago on Thursday, May 22, 2014.

Speedy Trial—CRS 18-1-405(5)—Motion to Dismiss—Timeliness.

At his arraignment in this case on November 4, 2010, defendant entered a not-guilty plea, and the court set a trial date of April 6, 2011. Because defendant was in federal custody and his presence could not be secured by the prosecution through a writ to federal authorities, defendant did not appear in court for a hearing in this case until July 14, 2011. A new trial date was set for September 7, 2011. Though a motions hearing was held on August 5, 2011, defendant did not then move to dismiss based on the speedy trial statute. However, on August 26, 2011, before the September 7 trial setting, defendant moved to dismiss the charges against him, asserting violation of his statutory speedy trial right, which was denied by the court as untimely filed.

On appeal, defendant contended that the trial court should have granted his motion to dismiss for violation of his statutory right to speedy trial. Under Colorado’s speedy trial statute, if a defendant has not been brought to trial within six months from the date of entry of a plea of not guilty, charges against him or her must be dismissed with prejudice. Under the plain meaning of CRS § 18-1-405(5), a defendant timely files a motion to dismiss even if it is filed on the day of trial, as long as it is filed before any hearing on any pretrial motion that is set for hearing on that date. Therefore, defendant’s motion to dismiss was timely filed. However, the trial court’s findings were insufficient to determine whether dismissal of the case was warranted on speedy trial grounds with regard to whether the prosecution made diligent efforts to secure defendant’s presence. Accordingly, the case was remanded to the trial court for the limited purpose of having the court make findings of fact and conclusions of law on that issue.

Summary and full case available here.

Tenth Circuit: Grant of New Trial Reversed Because Undisclosed Evidence Immaterial Under Brady

The Tenth Circuit Court of Appeals published its opinion in United States v. Reese on Wednesday, March 19, 2014.

Rick Reese owned a federally licensed firearms store and ran it with his wife, Terri, and two sons, Ryin and Remington. In August 2012, a jury convicted Rick, Terri, and Ryin under 18 U.S.C. §§ 2 and 924(a)(1)(A) for aiding and abetting straw purchases of firearms from the store. Unbeknownst to them, however, at the time of trial the FBI was investigating one of the government’s witnesses, Deputy Batts, for his alleged involvement in various criminal activities. Arguing that the government’s failure to disclose that information before trial violated Brady v. Maryland, Defendants filed a motion for a new trial. The district court concluded that the government had withheld favorable, material evidence from Defendants and granted their motion. The government appealed.

Before reaching the merits of the appeal, the Tenth Circuit clarified that de novo is the standard of review of a district court’s ruling on a Brady claim asserted in the context of a new-trial motion. It also clarified that the test for materiality of withheld evidence does not change based on whether the government withheld it negligently or intentionally.

The court focused on the materiality element of the Brady claim and concluded that the Deputy Batts investigation was immaterial because there was not a reasonable probability that the outcome of Defendants’ trial would have been different had the government disclosed the investigation. The government’s evidence on the counts of conviction was sufficiently strong that the court was confident in the jury’s verdict. The court rejected Defendants’ arguments that Deputy Batts was a critical witness or that this was a close case and reversed the district court.