September 21, 2017

Colorado Court of Appeals: Petition for Mandamus Relief Should Have Been Transferred to Executive Director

The Colorado Court of Appeals issued its opinion in Gandy v. Raemisch on Thursday, August 10, 2017.

C.R.C.P. 106—Dismissal—Transfer of Canadian Prisoner to Canada to Serve Life Sentence—Mandamus Relief.

Gandy is a Canadian citizen serving a habitual criminal life sentence in the custody of the Colorado Department of Corrections (DOC). Gandy applied numerous times to DOC to be transferred to serve the remainder of his sentence in the Canadian penal system. In 2016, the DOC prisons director (director) denied Gandy’s 2015 application in writing. The director stated that under DOC Administrative Regulation 550-05, Gandy would be eligible to reapply in two years. The director did not forward Gandy’s application to DOC’s executive director.

Gandy filed a complaint in district court seeking mandamus relief under C.R.C.P. 106, requesting the court to direct DOC to “process and submit” his application for transfer to the U.S. Department of Justice and asking for nominal punitive damages for alleged violations of his constitutional rights. The court granted defendants’ motion to dismiss for failure to state a claim on which relief can be granted.

On appeal, Gandy contended he was entitled to mandamus relief, arguing that he was entitled to final review of and decision on his transfer application by the executive director.  DOC’s transfer application process imposed a duty on the director to process Gandy’s application and then send it to the executive director for his final review and decision. Because this duty is clear, mandamus relief was appropriate.

Gandy also argued that the two-year reapplication waiting period was improperly imposed. The Colorado Court of Appeals agreed, finding that DOC regulations do not require or provide for the imposition of a two-year waiting period before permitting an offender to reapply.

Gandy further argued that the district court erred when it dismissed his constitutional claims for failure to state a claim because the regulation conflicts with federal treaties and thus violates the Supremacy Clause. However, the court found no conflict between DOC regulations and international treaties.

Gandy next argued that defendants discriminated against him by refusing to process his transfer request due to his national origin. The court agreed with the district court that Gandy did not plead any facts supporting this allegation.

The judgment dismissing Gandy’s constitutional claims was affirmed. The judgment dismissing the complaint seeking mandamus relief was reversed, and the case was remanded with directions to enter an order directing the director to forward the transfer application and recommendations to the executive director for final review and decision.

Summary available courtesy of Colorado Lawyer.

Tenth Circuit: Mandamus Unavailable when Appeal in Normal Course will Supply Remedy

The Tenth Circuit Court of Appeals issued its opinion in Feinberg v. Commissioner of Internal Revenue on Friday, December 18, 2015.

Petitioners Neil Feinberg, Andrea Feinberg, and Kellie McDonald operate Total Health Concepts, or THC, an authorized Colorado marijuana dispensary. After the Internal Revenue Service (“IRS”) disallowed their business expense deductions and sent them a large bill, on the ground that their conduct violates federal criminal drug laws, the petitioners challenged that ruling in tax court. In the tax court proceedings, the IRS issued discovery requests asking the petitioners about the nature of their business in order to establish that petitioners are indeed trafficking in marijuana. The petitioners resisted these requests by asserting that their Fifth Amendment privilege against self-incrimination relieved them of the duty to respond. In response, the IRS filed with the tax court a motion to compel production of the discovery it sought, arguing because the Department of Justice’s memorandum on the legalization of marijuana by the states generally instruct federal prosecutors not to prosecute cases like this one, the petitioners should be forced to divulge the requested information. The tax court granted the motion to compel and ordered the petitioners to produce the requested discovery. In seeking to overturn this ruling, because the tax court proceedings were ongoing, the petitioners sought a writ of mandamus from the Tenth Circuit Court of Appeals.

The Tenth Circuit ultimately denied the petition for a writ of mandamus made by petitioners. The court based this denial on two independent grounds. First, the court invoked the rule that a writ of mandamus isn’t available when an appeal in the normal course would suffice to supply any necessary remedy, and more specifically, the rule established in Mid-America’s Process Service v Ellison, that any error in a court’s order compelling production of civil discovery that the petitioners believed protected the Fifth Amendment could be satisfactorily redressed in an appeal after final judgment. The court found the rule in Mid-America’s Process Service is controlling and dispositive of the issue.

Alternatively, the Tenth Circuit determined even if Mid-America’s Process Service didn’t control this case at bar, the petitioners offered no persuasive reason for thinking an appeal after final judgment would fail to remedy any wrong they might suffer. The court left open the possibility that a future party in this context may be able to put fourth a convincing argument as to why the immediate remedy of mandamus is necessary to prevent an irreparable injury. However, the petitioners here were unable to do so. And that by itself, the court reasoned, supplies an independent reason – beyond the controlling precedent of Mid-America’s Process Service – to withhold the extraordinary remedy of mandamus in this case.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Colorado Court of Appeals: Multiple Sentences Treated as One Continuous Sentence for Parole Eligibility Date Calculation

The Colorado Court of Appeals issued its opinion in Fetzer v. Colorado Department of Corrections on Thursday, January 14, 2016.

Fetzer v. Colorado Department of Corrections explored the application of C.R.S. § 17-22.5-101 to parole eligibility dates (PEDs) when an inmate has multiple concurrent and consecutive sentences that were imposed at different times. Fetzer was convicted of seven crimes between August 1988 and March 2000. In 2014, the Colorado Supreme Court issued Nowak v. Suthers, 320 P.3d 340 (Colo. 2014), in which it determined that for purposes of computing an inmate’s PED, C.R.S. § 17-22.5-101 requires the DOC to consider all of an inmate’s sentences as one continuous sentence.

Relying on Nowak, Fetzer requested that the DOC review his PED. The supervisor of time and release computations for the DOC determined Nowak was not applicable to Fetzer’s case and computed his PED based on the start date of his longest concurrent sentence. Fetzer filed a petition for mandamus relief in the trial court. The DOC filed a motion to dismiss, attaching an affidavit from the supervisor. The trial court did not timely receive Fetzer’s response to the DOC’s motion, although it was timely filed through the prison’s mail system, and the court granted the DOC’s motion to dismiss.

Fetzer appealed to the Colorado Court of Appeals, contending the trial court erred in dismissing his petition for mandamus and failing to construe his several sentences as one continuous sentence. The court of appeals agreed. The court concluded the trial court misapplied C.R.S. § 17-22.5-101, finding that it applies to concurrent and consecutive sentences alike and the sentences must be construed as one continuous sentence with an effective date of the date the first sentence became effective.

The court of appeals reversed the trial court’s judgment and remanded for recalculation of Fetzer’s PED.

 

Tenth Circuit: Writ of Mandamus Inappropriate Absent Clear and Indisputable Injury

The Tenth Circuit Court of Appeals issued its opinion in In re RBS Securities, Inc. on Thursday, September 4, 2014. The panel decided, sua sponte, that its original order dated August 25, 2014, be published with a slight modification.

The National Credit Union Administration Board brought a number of actions against RBS Securities and other defendants in the District of Kansas, the Central District of California, and the Southern District of New York. RBS and the other defendants moved to centralize the litigation in the District of Kansas, but the Judicial Panel on Multidistrict Litigation (JPML) denied the request due to dissimilarities between litigants. However, the JPML offered alternatives to consolidation, including informal cooperation between the attorneys to minimize duplicative discovery. The parties developed a Master Discovery Protocol (MDP) at a joint hearing between the three districts. Judge Cote from New York relayed that she would be the coordination judge for the MDP. RBS objected.

RBS petitioned the Tenth Circuit to strike Section 2 of the MDP, in which Judge Cote was designated the coordination judge, through a mandamus petition. The Tenth Circuit found that mandamus was a drastic remedy which it could not support. Referring to the MDP, the Tenth Circuit noted that the Kansas court required signature of a Kansas judge on all orders, and RBS’s right to mandamus was therefore not clear and indisputable. The motion was denied.