January 20, 2018

Colorado Supreme Court: Public Utilities Commission Properly Imposed Tariff After Billing Error

The Colorado Supreme Court issued its opinion in Carestream Health, Inc. v. Colorado Public Utilities Commission on Monday, June 19, 2017.

Public Utilities—Tariffs—Standing—Injury-in-Fact.

In this appeal, the supreme court considered two issues from the district court’s review of a decision of the Colorado Public Utilities Commission. Both issues pertain to a billing error that led Public Service Company of Colorado to undercharge Carestream Health, Inc. for gas it received over the course of a three-year period. The first issue is whether the Commission properly interpreted Public Service’s tariff, specifically the requirement to “exercise all reasonable means” to prevent billing errors. The court concluded that determining what means are “reasonable,” as that term is used in the tariff, necessarily requires considering what errors are foreseeable. The court therefore held that the Commission properly interpreted the tariff and acted pursuant to its authority. The second issue is whether Carestream had standing to challenge Public Service’s use of its tariff to recover a portion of the undercharge from its general customer base. Because Carestream suffered no injury from that action, it lacks standing to challenge it. The court accordingly affirmed the district court’s judgment.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Trustee’s Loss in Recall Election Did Not Arise from Town’s Misconduct

The Colorado Court of Appeals issued its opinion in Jones v. Samora on Thursday, December 30, 2016.

Summary Judgment—Identity of Persons Casting Votes—Colo. Const. Art. VII, § 8—Standing—§ 1983 Claim—Law of the Case—Issue Preclusion.

Residents of the Town of Center (Town) organized a recall election to oust the trustees, including Jones, from their positions. Voters either turned in mail ballots or voted in person. All of the ballots had numbered stubs and, based on these stubs, the town clerk, Samora, had a list that showed which voter had received which ballot. He used the list to ensure that each voter had voted only once. To ensure voter secrecy, the stubs were removed before they were tallied. These procedures were used for all in-person ballots that were cast. But the procedures were not followed at all times for the mail-in ballots. At some point, the election judges realized that they had not removed the stubs from some ballots, but decided to continue tallying the ballots before removing the stubs. Because they could see the identifying numbers on the stubs when tallying the votes, the judges could have determined the identity of the voters by consulting the voter list.

Jones and Citizen Center, a nonprofit, filed this lawsuit including five state law claims and a § 1983 claim. The state law claims were severed from the § 1983 claim. A bench trial was held on the state law claims. The court found that the procedural errors were unintentional, that no voter identity had been disclosed when tallying the ballots, and that the election was fundamentally untainted by any substantive intentional error of procedure. However, the court concluded that tallying the mail-in ballots had violated Article VII, § 8 of the Colorado Constitution. Even though no voter identities had been revealed, the opportunity to discover them had been available and this violated Colorado’s constitutional and statutory guarantee of a secret ballot. The court voided the results of the recall election and ordered the Town to hold a new recall election within 30 to 90 days.

The Town appealed. The Colorado Supreme Court reversed the trial court’s decision and reinstated the recall election results, concluding that the stubs were on the ballots because a statute required them to be there; there was no violation of the Colorado Constitution; and the trial court erred in concluding that the election had been void.

The § 1983 claim was still at issue. Following the Supreme Court’s decision, both sides moved for summary judgment. The court granted the Town’s motion and denied plaintiffs’ motion.

On appeal, the Town asserted that plaintiffs did not have standing to file the case. As to the trustee, the Colorado Court of Appeals held that because the loss of the trustee’s position did not arise from the Town’s conduct, the trustee could not satisfy the injury requirement. In addition, because the trustee suffered no injury, he did not have third-party standing, and because he failed to allege his tax dollars were used in an unconstitutional manner, he did not have taxpayer standing.

Although the trustee lacked standing, the court found that Citizen Center had organizational standing because one or more of its members had voted in the recall election by mail-in ballot, and therefore their right to cast a secret ballot had allegedly been violated; the interests Citizen Center sought to protect were germane to its purpose; and the claim asserted and relief requested did not require that individual members of the organization participate in the case.

Regarding its summary judgment motion, the Town asserted that the law of the case barred Citizen Center’s claim. Here, the state law claims proceeding and the § 1983 proceeding were severed and were not the same case. In addition, the law of the case doctrine applies only to a court’s decisions of law, not to its resolution of factual questions. Whether the Town actually violated voter secrecy rights is a question of fact. Thus the law of the case doctrine does not apply.

The Town also asserted that issue preclusion barred Citizen Center’s claim. Issue preclusion bars relitigating factual matters that a court has previously litigated and decided. Here, the factual issue in the state proceeding was identical to the § 1983 factual issue: whether the mail-in voters’ secrecy rights were actually violated. Citizen Center was involved in the state claims case and that case ended in a final judgment. Citizen Center also had a full and fair opportunity to litigate the factual issue of whether the mail-in voters’ secrecy rights were violated. Therefore, issue preclusion barred Citizen Center from relitigating whether the mail-in voters’ secrecy rights were violated.

On the § 1983 claim, the court concluded that there was no genuine issue as to any material fact and the trial court properly granted the Town’s motion for summary judgment. Further, applying the issue preclusion doctrine, the election judges did not infringe on Citizen Center’s members rights, and the Town did not deprive those members of their constitutional rights.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Property Owners Lacked Standing to Assert Claims for Relief

The Colorado Court of Appeals issued its opinion in Wibby v. Boulder County Board of County Commissioners on Thursday, June 30, 2016.

Lack of Standing.

Plaintiffs are property owners in unincorporated Boulder County (the Owners) who sued to try to force the Boulder County Board of County Commissioners (the County) to maintain their subdivision roads. The roads were part of the county road system and, by statute, are assigned to the County for maintenance. They were maintained by the County until the mid-1990s, but since that time the County has reduced its road funding and the Owners claimed this has resulted in “severe deterioration” of the roads. The Owners brought claims for breach of contract, declaratory relief, and mandamus. After various amendments to the complaint and motions, the district court granted the County’s motion to dismiss for lack of standing. The Owners appealed.

The Court of Appeals analyzed whether the Owners had standing. To establish standing, a plaintiff must demonstrate that (1) plaintiff suffered an injury in fact and (2) the injury was to a legally protected interest. The Owners claimed standing by alleging that a contract was created through the statutory subdivision approval process that they could enforce. However, there is a presumption that statutory enactments alone do not create contractual relationships. The Owners alleged no facts to overcome this presumption and therefore lacked standing to sue the County for breach of contract.

The Owners requests for declaratory relief and mandamus alleged that the County violated its “statutory duty” to maintain subdivision roads under the county highway statutes. Because the statutory county road provisions do not in indicate an intent that they can be enforced by private citizens, the Owners lacked standing. Moreover, the statute clearly entrusts the County with the discretion to allocate funds for developing and overseeing its county road policies.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Defendant Must Have Direct Stake in Outcome of Litigation to Establish Standing

The Tenth Circuit Court of Appeals issued its opinion in Greenbaum v. Bailey on Tuesday, March 31, 2015.

In 2007, the Albuquerque city charter was amended to prohibit campaign contributions from businesses. On May 6, 2013, plaintiffs Greenbaum and three other individuals filed a civil rights complaint against Bailey in her official capacity as Clerk for the City of Albuquerque and against the City Board of Ethics and Campaign Practices, alleging the amendment prohibiting campaign contributions violated the First and Fourteenth Amendments. Plaintiffs sought declaratory and injunctive relief, nominal damages, fees, and costs. The Committee to Elect Pete Dinelli Mayor (“committee”) was granted leave to file a complaint in intervention seeking declaratory relief that the amendment was constitutional. The committee also filed a brief in support of Bailey’s motion to dismiss, arguing that the plaintiffs (all of whom are individuals) lacked standing to challenge the amendment. Shortly thereafter, Giant Cab Co. moved to intervene as plaintiff and the four original individual plaintiffs were dismissed, leaving Giant Cab as the only plaintiff.

The district court ruled the city charter’s amendment violates the First Amendment and entered judgment in favor of Giant Cab. Bailey and the ethics board declined to appeal, but the committee appealed, alleging the amendment is constitutional because it is closely drawn to further government interests in preventing quid pro quo corruption, the appearance of corruption, and circumvention of individual campaign contribution limits.

In its appellate brief, Giant Cab asserted the committee lacked standing and moved to dismiss the appeal. The Tenth Circuit requested further briefing on the standing issue, and noted that standing can either be piggybacked or individualized, but because Bailey and the board did not appeal, the committee’s standing for the appeal must be evaluated on an individual basis. Following the recent Supreme Court decision in Hollingsworth v. Perry, the Tenth Circuit declined to address the merits of the committee’s appeal, finding instead that the committee had no direct stake in the outcome of the litigation, and found compelling Giant Cab’s assertion that the committee’s standing was no different than that of the general public. The Tenth Circuit found the committee lacked standing to pursue the appeal, and granted Giant Cab’s motion to dismiss.

Frederick Skillern: Real Estate Case Law — Easements and Public Roads (2)

Editor’s note: This is Part 11 of a series of posts in which Denver-area real estate attorney Frederick Skillern provides summaries of case law pertinent to real estate practitioners (click here for previous posts). These updates originally appeared as materials for the 32nd Annual Real Estate Symposium in July 2014.

By Frederick B. Skillernfrederick-b-skillern

Maralex Resources, Inc. v. Chamberlain, Public Trustee of Garfield County Colo. App January 2, 2014 2014 COA 5 Oil and gas lease; prescriptive easement for access to wells; adverse or permissive use of roads; standing. Since 1996, Maralex has been a lessee under a series of federal oil and gas leases in Rio Grande County. Maralex operates and maintains various oil and gas wells located on federal land. To access the wells, Maralex and its predecessors in interest have historically used two roads crossing private property now owned by Nona Jean Powell. The Powell property is adjacent to the federal land. After issues arose between Maralex and Powell regarding use of the roads, Maralex filed a quiet title action seeking a decree that it has prescriptive easements over the roads for ingress and egress to the oil leaseholds. The trial court first found that Maralex lacked standing, as a real property lessee, to assert a prescriptive easement claim. Notwithstanding that finding, the court went on to consider the merits of the easement claims as a matter of judicial economy. It found that Maralex’s use of the roads was permissive and not adverse, and that Maralex did not establish the existence of the asserted prescriptive easements. On appeal, the court reverses the holding on standing. Citing a long string of cases, an oil and gas lessee has standing to bring a quiet title action and to enforce easement rights. One can even draw an analogy to surface cases in which use by a tenant may be tacked on to prior use by the fee owner in proving possession for the prescriptive period. The court finds sufficient evidence in the record to affirm the finding that the use by Maralex and its predecessors was permissive, not adverse. It was conceded that oil operators on the government land openly and continuously used the roads on Powell’s property for the statutory period. However, because Powell previously permitted the use, the use was not adverse. What made the use permissive? Like so many cases of this sort, we have gates on the roads, and cattle on a ranch. At one point a former owner of the Powell property gave keys to the oil company, telling a grazing tenant that he wanted to oil operation to be successful, but that he did not want his tenant’s herd to be impacted. Over the course of decades, there was all manner of evidence of a problematic nature, sufficient that the court could go either way on the “adversity” issue. The trial court resolved it like this – “By giving someone a key, it seems to the Court that the only reasonable interpretation is that ‘I want to keep people out, but not you. You have permission to use my road. Here is a key.’” The appeals court also notes that this could also be a recognition of a right of the user to access, with acquiescence by the easement claimant to blockage of use by others. The court goes along with the trial judge.   Sinclair Transportation Company d/b/a Sinclair Pipeline Company v. Sandberg Colorado Court of Appeals, June 5, 2014 2014 COA 76 Pipeline easement; assignability of easement in gross; proof of assignment of easement rights by parol evidence; abandonment. This is one in a series – one might say a family – of cases involving Sinclair’s pipeline between oil fields in Wyoming and Denver. At one point, the pipeline crosses land in Weld County, creating friction with residential development, and with owners of land such as the Sandbergs. Sinclair seeks to upgrade its pipeline from 6” to 10” according to terms of the written pipeline easement, which dates back to 1963. The easement was in favor of the original servient owner and its “successors and assigns.” In an extensive opinion, the court affirms a partial summary judgment ruling in favor of Sinclair on defenses raised by the landowners, who sought to block any expansion or to require movement of the easement in order to minimize its impact on their residential development. The first issue deals with the use of parol evidence to prove a part of Sinclair’s interest (ownership of a series of assignments from partial owners of the pipeline). The court upholds a ruling that Sinclair could prove a part of its chain of title by proving assignment of one 50 percent interest in the line through testimony of an attorney representing one of the parties to the assignment. The court holds that no statute of frauds bars oral testimony to prove of an assignment of an easement. More importantly, the court holds that an easement in gross, especially one created for commercial uses, is assignable. The court relies on the modern trend in case law and comments in the Restatement of Property (Servitudes) § 4.6(1)(c) (“a benefit in gross is freely transferable”), as well as C.R.S. § 38-30-101 (“any person . . . entitled to hold . . . any interest in real estate whatever, shall be authorized to convey the same to another”). The court cites a Utah case, Crane v. Crane, 683 P.2d 1062 (Utah 1984) which surveys the easement in gross case law as it applies to pipelines and other commercial uses. For those interested in the industry, the court goes on to discuss interpretation of the easement document in regard to how a pipeline company can expand and improve its pipeline – whether a pipeline company must “remove, then replace” or “replace, then remove.” Finally, the court holds that Sinclair’s attempt in a parallel case to condemn a way across the land in question did not effect an abandonment of its deeded easement rights. The attempt to condemn was derailed in a 2012 decision of the Colorado Supreme Court discussed in this space. Another court of appeals decision (not discussed in this outline) deals with the pipeline condemnation issues.

Frederick B. Skillern, Esq., is a director and shareholder with Montgomery Little & Soran, P.C., practicing in real estate and related litigation and appeals. He serves as an expert witness in cases dealing with real estate, professional responsibility and attorney fees, and acts as a mediator and arbitrator in real estate cases. Before joining Montgomery Little in 2003, Fred was in private practice in Denver for 6 years with Carpenter & Klatskin and for 10 years with Isaacson Rosenbaum. He served as a district judge for Colorado’s Eighteenth Judicial District from 2000 through 2002. Fred is a graduate of Dartmouth College, and received his law degree at the University of Colorado in 1976, in another day and time in which the legal job market was simply awful.

Colorado Court of Appeals: Plaintiffs Without Special Relationship to Seller or Damage to Legal Interest Have No Legal Standing to Sue

The Colorado Court of Appeals issued its opinion in Anderson v. Suthers on Thursday, November 7, 2013.

Standing—General Public—Charitable Trust.

Plaintiffs, who are former directors or volunteers of the Colorado Health Foundation (seller), appealed the trial court’s judgment dismissing the action as moot. The Court of Appeals affirmed, but on different ground than those relied on by the trial court.

Plaintiffs challenged the Office of the Colorado State Attorney General’s (OAG) approval of a transaction between seller and HealthONE of Denver, Inc. (purchaser), by which the seller sold to the purchaser its interest in HealthONE Health Care System. Plaintiffs claimed they had standing to represent the public as beneficiary of the seller because of their “close and lengthy association with the [seller].” They also claimed they had a “direct interest in the activities of the hospitals and a special interest in the proper administration of the hospitals in accordance with [the seller’s] charitable purposes.” These relationships, however, do not endow the plaintiffs with standing to sue the seller or the OAG over the transaction. Because plaintiffs do not have a special interest in the seller distinct from that of the general public and have not alleged an injury to their legally protected interests, they do not have standing.

Summary and full case available here.

Tenth Circuit: Organization Lacks Standing to Object to Establishment of Wind Energy Projects

The Tenth Circuit Court of Appeals published its opinion in Northern Laramie Range Alliance v. Federal Energy Regulatory Commission on Tuesday, October 22, 2013.

This action grew out of efforts by Wasatch Wind Intermountain, LLC to establish two wind energy projects. Wasatch was able to sell the wind energy by certifying both projects as qualifying facilities. These efforts drew the ire of the Northern Laramie Range Alliance, which objected to Wasatch’s certification. The Federal Energy Regulatory Commission (FERC) rejected the objections, and the Alliance appeals FERC’s decision.

The Tenth Circuit could entertain the appeal only if the Alliance established standing, which required traceability and redressability. For both, the Alliance relied on increases in electricity rates. But the wind projects have not been completed, Wasatch has not found a buyer for the anticipated wind power, and the court did not know whether sales of wind energy would increase or decrease a utility’s costs. Even beyond these uncertainties, electricity rates depend on the actions of third parties, those of the utility and the state regulatory commission. With the multitude of uncertainties surrounding the effect of Wasatch’s certification or decertification on electricity rates, the Tenth Circuit concluded that the Alliance showed neither traceability or redressability.

The court therefore DISMISSED the petition for lack of standing.

Tenth Circuit: Plaintiffs Failed to Establish Statutory Standing Under Colorado State Law

The Tenth Circuit Court of Appeals published its opinion in Niemi v. Lasshofer on Friday, September 6, 2013.

John Niemi and his investors set out to build a luxury ski condominium complex in Breckenridge, Colorado, in two phases, working through a set of companies controlled by Mesatex. But traditional financing proved hard to find: after completing the first phase of development they found no bank willing to loan the $220 million needed to finish the project. So they looked for alternative sources.

They found Michael Burgess. Mr. Burgess claimed to represent a European investor, Erwin Lasshofer, who Burgess said had $250 million to loan. All Mesatex had to do was to pay a $180,000 commitment fee and provide another $2 million as a collateral deposit.  This Mesatex did, but the promised loan never materialized. Mr. Burgess found himself in federal prison serving time for fraud and money laundering.

The investors brought this lawsuit alleging that the lost loan ruined Mesatex’s business, caused it millions in lost profits, and sent its properties into foreclosure. But neither Mesatex nor any of its subsidiaries was included as a party to this lawsuit. Instead, the suit named only Mesatex’s investors as plaintiffs.

The district court granted the plaintiffs’ motion for a preliminary injunction, effectively freezing the worldwide assets of Mr. Lasshofer and the corporate defendants and ordering them to deposit $2.18 million in escrow pending a final judgment. It is this interlocutory order Mr. Lasshofer and the corporate defendants asked the Tenth Circuit to undo.

However, it was Mesatex that sought the loan, signed the loan application, and received the loan commitment. It was Mesatex’s subsidiaries that signed the loan agreement and its amendment, paid the loan fees, and advanced the loan collateral. It was those companies, too, that owned the Breckenridge properties and whose business allegedly suffered when the loan failed to materialize. Yet neither Mesatex nor any of its subsidiaries was named as a plaintiff in this lawsuit. Accordingly, plaintiffs lacked standing to proceed under Colorado state law, let alone to win a preliminary injunction.

Plaintiffs argued that they invested in Mesatex and its subsidiaries; they stressed, too, that they guaranteed some of the corporations’ loans. But it is long settled law that a shareholder or guarantor lacks standing to assert RICO claims when their losses are only derivative of a corporation’s when the individuals’ losses come about only because of the firm’s loss. And despite being challenged to do so in this appeal, the plaintiffs did not identify any direct and personal injury they suffered.

Accordingly, the preliminary injunction was VACATED and the case was REMANDED for further proceedings consistent with this opinion.

Tenth Circuit: Plaintiff’s Complaint Stated a First Amendment Compelled Speech Claim Concerning Image on Oklahoma License Plate

The Tenth Circuit Court of Appeals published its opinion in Cressman v. Thompson on Wenesday, June 12, 2013.

In August 2008, Keith Cressman learned that the State of Oklahoma had redesigned its vehicle license plate. The plate included an image depicting a sculpture of a Native American shooting an arrow toward the sky. Mr. Cressman discerned that it depicted and communicated Native American religious beliefs in contradiction to his own Christian religious beliefs.

To avoid displaying the image, Mr. Cressman purchased a specialty license plate, which cost more than the standard plate and had a $35 renewal fee. He then purchased a cheaper specialty license plate, which cost more than the standard plate, plus $16.50 for renewal. Eventually, he decided he no longer wanted to pay additional fees for a specialty license plate. Instead, he wanted to cover up the image. However, covering up the image is illegal under Oklahoma law.

Mr. Cressman sued several state officials for violation of his civil rights under 42 U.S.C. § 1983. Concluding that he failed to state a claim upon which relief could be granted, the district court dismissed his complaint. Mr. Cressman appealed.

Two issues were before the Tenth Circuit on appeal. First, the Defendants asserted that Mr. Cressman lacked Article III standing to sue them in their official capacities. Second, Mr. Cressman argued that the district court erred in dismissing his complaint for failure to state a First Amendment compelled speech claim

A. Article III Standing  

“When evaluating a plaintiff’s standing at [the motion to dismiss] stage, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1089 (10th Cir. 2006). Mr. Cressman’s “appeal cannot proceed on the merits in the absence of . . . [a] case or controversy” under Article III of the U.S. Constitution. Habecker v. Town of Estes Park, Colo., 518 F.3d 1217, 1223 (10th Cir. 2008). “To establish Article III standing, a plaintiff must establish (1) that he or she has ‘suffered an injury in fact;’ (2) that the injury is ‘fairly traceable to the challenged action of the defendant;’ and, (3) that it is ‘likely’ that ‘the injury will be redressed by a favorable decision.’” Awad v. Ziriax, 670 F.3d 1111, 1120 (10th Cir. 2012).

1. Injury in Fact

“First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The credible threat of prosecution if Mr. Cressman covered up the license plate was sufficient to support an injury in fact. See Ward v. Utah, 321 F.3d 1263, 1267 (10th Cir. 2003.

2. Causation

Mr. Cressman had show there was “a causal connection between the injury and the conduct complained of—the injury had to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Lujan, 504 U.S. at 560.  At oral argument, counsel for the Defendants conceded that all Defendants except for Ms. Allen had enforcement authority for the statute at issue. Accordingly, the Tenth Circuit concluded that Mr. Cressman showed causation as to every Defendant except for one, Ms. Allen.

3. Redressability

Finally, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 561. Mr. Cressman sought forms of relief that all Defendants except Ms. Allen could provide. Accordingly, he demonstrated redressability.

In sum, Mr. Cressman demonstrated he had Article III standing to sue all Defendants in their official capacities, except for Ms. Allen.

B. First Amendment Compelled Speech Claim

The main issue on appeal was whether the district court erred in dismissing Mr. Cressman’s First Amendment compelled speech claim under Fed. R. Civ. P. 12(b)(6).

1. Legal Background

“The First Amendment, as applied to state and local governments through the Fourteenth Amendment, provides that state actors ‘shall make no law . . . abridging the freedom of speech.’” Hawkins v. City & Cnty. of Denver, 170 F.3d 1281, 1286 (10th Cir. 1999) (quoting U.S. Const. amend. I). This protection is multifaceted. “Just as the First Amendment may prevent the government from prohibiting speech, [it] may prevent the government from compelling individuals to express certain views.” United States v. United Foods, Inc., 533 U.S. 405, 410 (2001). Thus, “one important manifestation of the principle of free speech is that one who chooses to speak may also decide what not to say.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 573 (1995).

The issue was whether the license plate image was speech that qualified for protection under the First Amendment compelled speech doctrine. This issue included two questions. First, did displaying the license plate image constitute symbolic speech that qualified for First Amendment protection? Second, if the answer to the first question is yes, did requiring Mr. Cressman to display the image on the license plate affixed to his personal vehicles violate his First Amendment rights under the compelled speech doctrine?

a. Symbolic Speech

“The First Amendment literally forbids the abridgment only of ‘speech,’” but the Supreme Court has “long recognized that its protection does not end at the spoken or written word.” Texas v. Johnson, 491 U.S. 397, 404 (1989). The First Amendment protects certain expressive conduct. As part of the inquiry regarding what symbolic display is protected, the Court considered two relevant factors in Spence v. Washington, 418 U.S. 405 (1974): (1) an intent to convey a particularized message, and (2) a great likelihood that the message would be understood by those who viewed the symbolic act or display.

b. Compelled Speech

The compelled speech doctrine has its roots in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). Over three decades later, the Court revisited Barnette in Wooley v. Maynard, 430 U.S. 705 (1977). Wooley concerned the constitutionality of New Hampshire’s requirement that noncommercial vehicles display license plates featuring the state motto, “Live Free or Die.” The plaintiffs were Jehovah’s Witnesses who wished not to display the motto because it was repugnant to their moral, religious, and political beliefs. Requiring the plaintiffs to use their personal property as a “mobile billboard for the State’s ideological message or suffer a [criminal] penalty” implicated First Amendment protections and could be justified only by a “sufficiently compelling” state interest. Id. at 715-16. The Court determined that New Hampshire’s interest in requiring drivers to display the state motto was not sufficiently compelling.

2. Sufficiency of Mr. Cressman’s Complaint

At the motion-to-dismiss stage, “[w]e must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff.”Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007).

a. Mr. Cressman Alleges the License Plate Image is Symbolic Speech

Mr. Cressman’s complaint alleged that displaying the license plate image conveyed a particularized message that others would likely understand. The license plate image conveyed a message that promoted “pantheism, panentheism, polytheism, and/or animism,” to which he objected on religious grounds. Accepting these factual allegations as true, the Tenth Circuit concluded that Mr. Cressman alleged that displaying the image conveyed a particularized message that viewers likely would understand.

b. Mr. Cressman Has Plausibly Stated a Compelled Speech Claim

As required by Wooley, Mr. Cressman alleged that the license plate image was based on a “Sacred Rain Arrow” sculpture and conveyed a religious message that conflicted with his beliefs. His allegations were sufficient to show an ideological message.

In sum, Mr. Cressman plausibly alleged that the image on the Oklahoma license plate conveyed a particularized message that others would likely understand and therefore constituted symbolic speech that qualified for First Amendment protection. In addition, he plausibly alleged that he was compelled to speak because the image conveyed a religious/ideological message, covering up the image posed a threat of prosecution, and his only alternative to displaying the image was to pay additional fees for specialty license plates that did not contain the image. The allegations in his complaint therefore plausibly alleged a compelled speech claim under Wooley.

3. Government Speech

The Defendants argued the Oklahoma license plate image was government speech that did not trigger First Amendment scrutiny. See Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467 (2009). However, the Defendants did not show, nor did the Tenth Circuit uncover, Supreme Court government speech decisions that have overruled or limited Wooley.

REVERSED and REMANDED.

Colorado Court of Appeals: Great-Grandparent Is Not Grandparent Under Plain Meaning of Visitation Statute

The Colorado Court of Appeals issued its opinion in In re Parental Responsibilities Concerning M.D.E. on Thursday, January 31, 2013.

Grandparent Visitation—Standing.

In this parental responsibilities action, Scott Rottler (father) challenged the district court’s order allowing Bernice Spencer (great-grandmother) to intervene and seek grandparent visitation of father’s child (great-grandmother’s great-grandchild) under CRS § 19-1-117. The order was reversed.

In May 2009, the child’s mother filed a petition for allocation of parental responsibilities as to the child. Several months later, the court entered permanent orders and a parenting plan resolving the dispute between father and mother. The orders and parenting plan did not mention great-grandmother. More than six months later, great-grandmother filed a motion to intervene in the proceeding and a motion for grandparent visitation. The district court granted her motion to intervene by applying the principle of liberal construction to CRS § 19-1-117.

On appeal, father argued that the trial court erred in granting great-grandmother’s motion to intervene. CRS § 19-1-117 limits the meaning of grandparent to “a person who is the parent of a child’s father or mother.” Therefore, great-grandmother is not a grandparent within the meaning of the statute. Because she did not have standing to seek visitation, the district court’s order was vacated.

Summary and full case available here.

Tenth Circuit: Environmental Group Plaintiffs Had Standing to Challenge Oil and Gas Leases But Claims Not Ripe

The Tenth Circuit published its opinion in Southern Utah Wilderness Alliance v. Palma on Tuesday, January 8, 2013.

Kirkwood Oil and Gas, LLC owned 39 oil and gas leases in Southern Utah that in the 1980s it applied to convert to combined hydrocarbon leases. Such leases would allow Kirkwood to extract oil from tar sands. The Bureau of Land Management (BLM) never accepted or rejected Kirkwood’s applications. Between 2006 and 2008, BLM and the Interior Board of Land Appeals (IBLA) issued several decisions declaring that the underlying oil and gas leases were “suspended” pending review of the conversion applications. The Southern Utah Wilderness Alliance and several other environmental groups (SUWA) alleged BLM and IBLA violated the Mineral Leasing Act and other federal laws by retroactively deeming the 39 Kirkwood leases to be suspended, thereby avoiding expiration of the leases according to their terms. The district court held SUWA did not have standing to bring its claims and dismissed the suit for lack of subject matter jurisdiction.

The Tenth Circuit discussed the affidavits SUWA submitted to establish injury in fact and held that the district court “misapplied the law when it rejected SUWA’s standing on the basis that the affidavits failed to show its members have visited each of the leases at issue. Neither our court nor the Supreme Court has ever required an environmental plaintiff to show it has traversed each bit of land that will be affected by a challenged agency action.” The court also held that the district court had erred in holding SUWA failed to show a concrete injury sufficient to support standing. “A plaintiff who has repeatedly visited a particular site, has imminent plans to do so again, and whose interests are harmed by a defendant’s conduct has suffered injury in fact that is concrete and particularized.”

The court found that while SUWA was a proper party to challenge the BLM’s decision, its claims were not yet ripe. The challenged decisions were interim decisions, not final. The BLM had not made a decision regarding converting to combined hydrocarbon leases and it appeared unlikely Kirkwood would engage in any oil or gas development until that decision was made. Thus, any harm to SUWA’s members was not imminent or certain. The court remanded to the district court for dismissal without prejudice.

Tenth Circuit: 28 U.S.C. § 1447(d) Prohibits Review of Remand Order Based on Lack of Subject Matter Jurisdiction

The Tenth Circuit published its opinion in Hill v. Vanderbilt Capital Advisors, LLC on Thursday, December 27, 2012.

Plaintiffs filed an action against Vanderbilt Capital Advisors, LLC and others in New Mexico state court. The suit was removed to federal court. The district court remanded the entire case back to state court, concluding that it lacked subject matter jurisdiction because Plaintiffs did not have standing to sue. 28 U.S.C. § 1447 governs cases removed from state court and § 1447(d) prohibits appellate review of remand orders where the remand was based on lack of subject matter jurisdiction. Because a dismissal for lack of standing “can be at least colorably characterized as a dismissal for lack of subject matter jurisdiction,” the Tenth Circuit held that under 28 U.S.C. § 1447(d), it had no jurisdiction to hear an appeal of the remand order.