August 23, 2017

Colorado Supreme Court: Controlled Substances Act Preempts State Medical Marijuana Redistribution Law

The Colorado Supreme Court issued its opinion in People v. Crouse on Monday, January 23, 2017.

Robert Crouse was arrested by the Colorado Springs Police Department for cultivating and possessing marijuana with the intent to manufacture. He was charged with one felony count of cultivation of more than thirty marijuana plants and one felony count of possession of between five and one hundred pounds of marijuana with intent to distribute. At trial, Crouse asserted that he was a registered medical marijuana patient, and that state law authorized his cultivation and possession of medical marijuana. The jury acquitted him of both charges.

After trial, Crouse requested that the court order the police to return the marijuana plants and marijuana pursuant to article XVIII, § 14(2)(e) of the Colorado Constitution, which provides that “marijuana and paraphernalia seized by state or local law enforcement officials from a patient . . . in connection with the claimed medical use of marijuana shall be returned immediately upon . . . the dismissal of charges, or acquittal.” The People opposed the motion, arguing the provision conflicts with the federal Controlled Substances Act (CSA) and is therefore preempted. The district court ruled in Crouse’s favor and ordered the return of the property.

The People appealed, and the Colorado Court of Appeals affirmed the district court in a split opinion. The court of appeals ruled that returning Crouse’s property would not violate the CSA because the statute expressly provides immunity for officers lawfully engaged in the enforcement of any law relating to controlled substances. The Colorado Supreme Court granted certiorari.

On appeal, the supreme court found that the return provision necessarily required officers to violate the CSA, and therefore it “positively conflicts” with federal law. The supreme court dismissed the court of appeals’ reasoning that the officers were exempted by the language in 21 U.S.C. § 885(d) only if they were “lawfully engaged” in the practice of law enforcement. The court reasoned that because distribution of marijuana is unlawful under the CSA, the exemption would not apply. The court relied on its prior opinion in Coats v. Dish Network, 350 P.3d 849 (Colo. 2015), for the premise that any activity that is unlawful under federal law, though it may be lawful under state law, is unlawful.

The supreme court reversed the court of appeals. Justice Gabriel dissented, joined by Chief Justice Rice and Justice Hood. In his thoughtful dissent, Justice Gabriel opined that the plain language of § 885 immunized the law enforcement officers, and therefore the Colorado Constitution was not preempted by the CSA.

Colorado Supreme Court: Municipal Fracking Ban Preempted by State Law

The Colorado Supreme Court issued its opinion in City of Fort Collins v. Colorado Oil and Gas Association on Monday, May 2, 2016.

Moratoria—Preemption.

The Colorado Supreme Court concluded that Fort Collins’s five-year moratorium on fracking and the storage of fracking waste within the city is a matter of mixed state and local concern and, therefore, is subject to preemption by state law. Applying well-established preemption principles, the court further concluded that the moratorium operationally conflicts with the effectuation of state law. Accordingly, the court held that the moratorium is preempted by state law and, therefore, is invalid and unenforceable. The court thus affirmed the district court’s order invalidating the moratorium and remanded the case for further proceedings.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Constitutional Inalienable Rights Provision Does Not Save Fracking Ban from Preemption

The Colorado Supreme Court issued its opinion in City of Longmont v. Colorado Oil and Gas Association on Monday, May 2, 2016.

Preemption—Inalienable Rights Provision.

Applying well-established preemption principles, the Colorado Supreme Court concluded that the City of Longmont’s ban on fracking and the storage and disposal of fracking wastes within its city limits operationally conflicts with applicable state law. Accordingly, the court held that Longmont’s fracking ban is preempted by state law and, therefore, is invalid and unenforceable. The court further held that the inalienable rights provision of the Colorado Constitution does not save the fracking ban from preemption by state law. The court thus affirmed the district court’s order enjoining Longmont from enforcing the fracking ban and remanded the case for further proceedings.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: ADA Not Defense to Termination of Parental Rights

The Colorado Court of Appeals issued its opinion in People in Interest of C.Z. on Thursday, June 18, 2015.

Dependency and Neglect—Termination of Parent–Child Legal Relationship—Americans with Disabilities Act.

The Weld County Department of Human Services (Department) filed a dependency and neglect petition after mother was unwilling to follow through with treatment to address her multiple mental health diagnoses. The Department also asserted father had been diagnosed with severe depression. The court granted the Department custody of the child.

The court then adjudicated the child dependent and neglected and approved a treatment plan for the parents. After receiving the psychological and parent–child interactional evaluations, the Department moved to terminate the parents’ parental rights, asserting that no appropriate treatment plan could be devised to address their unfitness. Following a contested hearing, the court terminated the parent–child legal relationship.

On appeal, mother and father argued that CRS § 19-3-604(1)(b)(I) conflicts with the Americans with Disabilities Act (ADA) because it allows the court to terminate parental rights of disabled parents without requiring the Department to provide them the rehabilitative services that other parents receive. The Court first addressed the Department’s assertion that the parents’ contention should be summarily rejected because the ADA is not a defense to termination of parental rights. Title II of the ADA does not limit the court’s authority to terminate a disabled parent’s rights when the parent is unable to meet his or her child’s needs. However, it does apply to the provision of assessments, treatment, and other services that a department provides to parents through a dependency and neglect proceeding before a termination hearing. Accordingly, the issue in this case is whether CRS § 19-3-604(1)(b)(I) is preempted by the ADA.

The type of preemption at issue here was conflict preemption, which voids a state statute that conflicts with a valid federal law. A conflict is found when compliance with both federal and state regulations is a physical impossibility or when the state law stands as an obstacle to the accomplishment and full execution of the purposes and objectives of federal law.

CRS § 19-3-604(1)(b)(I) permits termination of parental rights of mentally impaired parents without requiring the Department to provide them treatment plans. However, the Court held this does not conflict with the ADA’s requirement that a public entity make reasonable accommodations for qualified individuals with disabilities. If rehabilitative services can be offered to address a parent’s mental impairment so that he or she can meet the child’s needs within a reasonable time, then termination is not authorized under CRS § 19-3-604(1)(b)(I). A finding that no treatment plan can be devised to address a parent’s unfitness caused by mental impairment is the equivalent of a determination that no reasonable accommodations can be made to account for the parent’s disability under the ADA.

In determining whether reasonable accommodations can be made to address the parent’s disability under the ADA, the court’s paramount concern is the child’s health and safety. The ADA does not protect an individual who poses a safety risk to others. The Court concluded that the trial court’s findings here satisfy the ADA requirement that no reasonable accommodations could be made to enable mother and father to participate in an appropriate treatment plan and rehabilitative services.

Father also argued the termination of his parental rights solely on the basis of his mental disability violated his right to equal protection under the Fourteenth Amendment. The Court disagreed. Parents who are unable to meet their children’s needs within a reasonable time, whether because of mental impairment or another statutorily enumerated reason, are not similarly situated to parents who have the ability to become fit within a reasonable time. The judgment was affirmed.

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

Colorado Supreme Court: Home Rule Municipality Cannot Promulgate Laws that Conflict with State Law on Matters of Statewide Concern

The Colorado Supreme Court issued its opinion in Webb v. City of Black Hawk on Monday, February 4, 2013.

Legality of Banning Bicycles on City Streets—Home-Rule Municipality—Local Government Law—Traffic Regulations—CRS § 42-4-109(11)—Matter of State and Local Concern—Preemption.

In this appeal from the Gilpin County District Court, petitioners Jamie Webb, Jeffrey Hermanson, and Michaleen Jeronimus challenged the legality of the City of Black Hawk’s ordinance banning bicycles on certain city streets. Petitioners, a group of bicyclists, were cited and fined for riding their bikes on Gregory Street in Black Hawk, the only street providing access through town from the state highway to Central City. The bicyclists argued that Black Hawk, as a home-rule municipality, lacked the authority to prohibit bicycles on local streets absent a suitable alternative bicycle route as provided by state statute. Both the trial and district courts ruled in favor of Black Hawk, finding that the city had the authority to ban bicycles through both its home-rule and police powers.

The Supreme Court reversed, holding that Black Hawk’s ordinance banning bicycles is a matter of mixed state and local concern, and conflicts with and is preempted by state law. As a home-rule municipality, Black Hawk may enact traffic regulations that cover the same subject matter as the model traffic code, but it may not promulgate regulations that conflict with state statute. Black Hawk’s ordinance banning bicycles on city streets is in conflict with CRS § 42-4-109(11), which requires any municipal bike prohibition to have an available alternate path within 450 feet. Because Black Hawk’s ordinance conflicts with a specific statutory provision in a matter of mixed state and local concern, it is preempted.

Summary and full case available here.

Tenth Circuit: Colorado’s Authority to Regulate Hazardous Waste at Army Depot Preempted by 50 U.S.C. §§ 1521 and 1512a

The Tenth Circuit Court of Appeals published its opinion in Colorado Department of Public Health and Environment v. United States on Tuesday, September 4, 2012.

The United States has for many years stored chemical weapons at the Army’s depot near Pueblo, Colorado. Through RCRA, Congress authorized states to administer their own hazardous waste programs, which Colorado does through the Colorado Department of Public Health and Environment, Hazardous Materials and Waste Management Division (CDPHE). The CDPHE sought to enforce its regulations prohibiting storage of certain hazardous waste, 6 C.C.R. §268.50, against the Depot. The district court dismissed the case due to federal law preemption and the Tenth Circuit affirmed.

In 1985, Congress enacted 50 U.S.C § 1521, which directed the Secretary of Defense to destroy the stockpiles of weapons, including those at the Depot. Section 1521 has been amended several times to extend the deadline for destruction, which is currently 2017. The United States argued it could not comply with § 1521 and with Colorado’s hazardous waste law and regulations, which prohibited the continued  storage.

The Tenth Circuit found that given the level of detail Congress provided in its mandate to destroy the weapons, Colorado was preempted from enforcing its regulation against the Depot. Allowing the CDPHE to regulate the waste would “impede or interfere with the accomplishment of the objectives and purposes of 50 U.S.C. §§ 1512a and 1521.”

Tenth Circuit: Dismissal of Declaratory Judgment Action Affirmed Due to Lack of Federal-Question Jurisdiction

The Tenth Circuit Court of Appeals published its opinion in Devon Energy Production Co. v. Mosiac Potash Carlsbad, Inc. on Wednesday, August 22, 2012.

Plaintiff-Appellant Devon Energy Production Company, (“Devon”), an oil and gas production company, appealed the judgment of the United States District Court for the District of New Mexico, which dismissed Devon’s declaratory-judgment action against Defendant-Appellee Mosaic Potash Carlsbad, Inc. (“Mosaic”), a potash mining company, for lack of subject matter jurisdiction. Devon sought a declaratory judgment that federal law preempted Mosaic’s anticipated state-law claims emanating from Devon’s unauthorized drilling in a federally managed area of New Mexico, and that the only remedies available to Mosaic were derived from the federal administrative and judicial remedies of the Administrative Procedure Act (“APA”) and certain regulatory provisions of the U.S. Department of the Interior. The district court concluded there was no federal-question jurisdiction to support Devon’s action and dismissed its complaint, and subsequently denied Devon’s motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). The Tenth Circuit affirmed.

To invoke federal-question jurisdiction, Devon had to show that at least one of two exceptions to the well-pleaded complaint rule was applicable—either (1) that Mosaic’s state-law claims were completely preempted, or (2) there was a substantial federal-law question embedded in Mosaic’s state-law claims.

Devon argued that federal jurisdiction was appropriate because Mosaic’s claims were completely preempted by the interplay betweeen the Mineral Leasing Act and the APA. Mosaic argued that there could not be complete preemption because no federal statute provided the foundation for preemption.

Complete preemption demands a two-part analysis: first, the Court asks whether the federal regulation at issue preempts the state law relied on by the plaintiff; and second, whether Congress intended to allow removal in such a case, as manifested by the provision of a federal cause of action to enforce the federal regulation. Courts should begin their inquiry with the second prong. The 10th Circuit held that the district court properly applied the second prong of complete-preemption test when it dismissed Devon’s complaint on the ground that the lack of a substitute federal remedy precluded a finding of complete preemption.

Devon also contended that even if the Court had not found that Mosaic’s claims were completely preempted, federal-question jurisdiction should still attach because of substantial and disputed federal issues that were embedded in Mosaic’s state-law claims.

The appropriate jurisdictional test is set forth in Grable & Sons —namely, whether the state-law claims raise a stated federal issue, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities. Grable & Sons held that ordinarily, federal-question jurisdiction is invoked by plaintiffs pleading a cause of action created by federal law.

The Court concluded that there was no actual dispute over the meaning of the federal law such that Devon’s claims could be be said to arise under federal law, and that at most they provided a federal defense to Mosaic’s state-law causes of action. Accordingly, the Court held that Grable & Sons did not provide Devon the basis to proceed in federal court.

Devon’s final claim was that the district court erred in denying its Rule 59(e) motion because Devon presented new evidence to the district court.

Where a party seeks Rule 59(e) relief to submit additional evidence, the movant must show either that the evidence was newly discovered, or if the evidence was available at the time of the decision being challenged, that counsel made a diligent yet unsuccessful effort to discover the evidence. Although Devon pointed to a number of specific facts that it claimed could not have been anticipated by the district court, it did not adequately explain why this evidence should have undermined the 10th Circuit’s confidence in the district court’s determination. The district court’s dismissal of Devon’s complaint and its order denying Devon’s Rule 59(e) motion were therefore affirmed.