August 23, 2019

Archives for November 16, 2011

Tenth Circuit: No Contest Plea Does Not Foreclose Due Process Challenge to the Knowing Use of Perjured Affidavit to Defeat Defense of Selective Prosecution

The Tenth Circuit Court of Appeals issued its opinion in Klen v. City of Loveland on Tuesday, November 15, 2011.

The Tenth Circuit affirmed in part and reversed in part the district court’s decision. Petitioners brought this civil rights action against Respondent City of Loveland, Colorado (City) and various City employees, alleging many constitutional violations. The district court granted summary judgment in favor of Respondent on the federal claims and declined to exercise supplemental jurisdiction over the state-law claims. Petitioners appeal from the district court’s award of summary judgment to Respondent.

The Court determined that the district court only considered the first element of the test for Petitioners’ First Amendment retaliation claim, “that the plaintiff was engaged in constitutionally protected activity;” because the analysis of that element was insufficient, the issue was remanded. In Petitioners’ substantive due process claim, they allege that Respondent “engaged in a continuous campaign of harassment, deceit, and delay . . .  intended to injure . . .  in a way unjustifiable by any government interest.” The Court found that an arbitrary deprivation of a property right may violate the substantive component of the Due Process Clause if the arbitrariness is extreme, but that extremity was not present here.

Additionally, the Court found that Petitioners have produced sufficient evidence to survive summary judgment regarding an alleged Fourth Amendment violation by ordering an unauthorized “special inspection” of the premises. Lastly, Petitioner’s “no contest plea does not foreclose his due process challenge to the knowing use of a perjured affidavit to defeat his defense of selective prosecution.”

Tenth Circuit: Circuit Overrules Prior Interpretation of § 362 of the Bankruptcy Code; Appeal Automatically Stayed

The Tenth Circuit Court of Appeals issued its opinion in TW Telecom Holdings Inc. v. Carolina Internet Ltd. on Tuesday, November 15, 2011.

The Tenth Circuit stayed the appeal. Petitioner appeals from the entry of default judgment against it and in favor of Respondent for more than three million dollars. During the pendency of this appeal, Petitioner filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Western District of North Carolina. “By its terms, § 362 of the Bankruptcy Code automatically stays the commencement or continuation of a judicial proceeding against the debtor that was or could have been initiated before the filing of a bankruptcy petition. . . . [The Court] recently reiterated [the Tenth] Circuit’s interpretation of § 362(a)(1), explaining that ‘the automatic stay does not prevent a Chapter 11 debtor in possession,’ like [Petitioner], ‘from pursuing an appeal even if it is an appeal from a creditor’s judgment against the debtor.'”

However, at least nine other circuit courts of appeals disagree with that interpretation of § 362(a)(1) and have held “that a bankruptcy filing automatically stays appellate proceedings where the debtor has filed an appeal from a judgment entered in a suit against the debtor.” Further, Collier on Bankruptcy has explicitly rejected the Court’s past reliance on it to support their minority position.

Accordingly, The Court overruled their “prior interpretation of § 362(a)(1), as stated in In re Gindi, 642 F.3d at 870, 875-76; Morganroth & Morganroth, 213 F.3d at 1310; Mason, 115 F.3d at 1450; In re Lyngholm, 24 F.3d at 91-92; and Autoskill Inc., 994 F.2d at 1485-86.” From now on, the Tenth Circuit will read:

section 362 . . . to stay all appeals in proceedings that were originally brought against the debtor, regardless of whether the debtor is the appellant or appellee. Thus, whether a case is subject to the automatic stay must be determined at its inception. That determination should not change depending on the particular stage of the litigation at which the filing of the petition in bankruptcy occurs.

Under this analysis, Petitioner’s appeal must be stayed until such time as it may proceed in a manner consistent with the Bankruptcy Code.

Tenth Circuit: Denial of Benefits under ERISA Was Reasonable, Made in Good Faith, and Supported by Substantial Evidence

The Tenth Circuit Court of Appeals issued its opinion in Eugene S. v. Horizon Blue Cross Blue Shield of New Jersey on Tuesday, November 15, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner sought coverage for his son’s residential treatment costs from his employer’s ERISA benefits insurer. Respondent’s delegated third-party plan administrator, Magellan, originally denied the claim and explained that Petitioner’s son qualified for intensive outpatient treatment, but not for residential treatment. Magellan affirmed its initial denial of residential treatment benefits through several appeals by both Petitioner and the residential treatment center. Having exhausted his administrative appeals, Petitioner filed this action challenging Respondent’s denial of benefits under ERISA. On appeal, Petitioner alleges 1) that the district court erred by denying his motion to strike and allowing the VSA into evidence, 2) that the district court erred in reviewing Respondent’s denials of benefits under an arbitrary and capricious, rather than a de novo, standard, and 3)  that Respondent improperly denied him benefits under the terms of his ERISA benefits plan.

The Court disagreed with all of Petitioner’s contentions. The Court refused to overturn the district court’s ruling because that court permissibly exercised its discretion and Respondent’s failure to disclose was harmless or justified. The Court also found that, to the extent it must independently assess the deference to which Magellan is entitled, Magellan was entitled to deferential review and that review should be under an arbitrary and capricious standard. And, under this standard, the administrator’s decision was reasonable, made in good faith, and supported by substantial evidence.

Tenth Circuit: Unpublished Opinions, 11/15/11

On Tuesday, November 15, 2011, the Tenth Circuit Court of Appeals issued three published opinions and six unpublished opinions.


Winchester v. Jones

Russell v. State of Kansas

Russell v. State of Kansas

Lonski v. United States

Lenox MacLaren Surgical Corp. v. Medtronic, Inc.

Franklin v. Daniels

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Colorado Supreme Court: Finalized Reapportionment Plan Not Sufficiently Attentive to County Boundaries

The Colorado Supreme Court issued its opinion in In re Apportionment of the Colorado General Assembly on November 15, 2011.

Redrawing Legislative Districts for the House and Senate of the Colorado General Assembly.

The Supreme Court held that the finalized Reapportionment Plan submitted by the Colorado Reapportionment Commission (Commission) was not sufficiently attentive to county boundaries to meet the requirements of article V, § 47(2) of the Colorado Constitution, and that the Commission did not make an adequate showing that a less drastic alternative could not have satisfied the hierarchy of constitutional criteria set forth in In re Reapportionment of the Colorado General Assembly, 45 P.3d 1237 (Colo. 2002). The Court disapproved the plan and returned it to the Commission for further consideration, modification, and resubmission by 5:00 p.m. on December 6, 2011.

Summary and full case available here.

Spark the Discussion: Election Day 2011 – A Mixed Bag for Medical Marijuana in Colorado

“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

Election day has come and gone and, once again, numerous Colorado towns weighed in on marijuana policy.  Most notably, four communities rejected bans on medical marijuana businesses (Steamboat Springs, Oak Creek, Routt County, and Palisade) and three areas endorsed bans (Fort Collins, Yampa, and Brush).  A number of communities (Breckenridge, Commerce City, and Palisade) voted to enact higher taxes on medical marijuana sales.

Colorado has a rich history of tackling marijuana policy in the voting booth and most of these reform measures make their way to voters through the ballot initiative process.  Ballot initiatives are a form of “direct democracy” where a group of citizens gather signatures to place a measure on a local or state ballot.  The first Colorado community to use this process to shape marijuana laws was Breckenridge which passed a pro-medical marijuana initiative in 1994.  Next up was Amendment 20, Colorado’s landmark medical marijuana constitutional measure, passed by 56% of voters in the year 2000.  After that we saw campus initiatives which “equalized” marijuana and alcohol penalties under the student code of conduct pass in 2005 at both Colorado University and Colorado State University.  That same year Denver became the first city in history to legalize possession of small amounts of marijuana under its city code, while Telluride narrowly rejected a reform measure. Winding up the decade, both Breckenridge and Nederland passed progressive reforms relating to adult marijuana possession by wide margins.

We are now witnessing a backlash where, after almost two decades of voters passing pro-marijuana reform measures,  citizens in certain communities are banding together to advance anti-marijuana initiatives.  Most of these initiatives seek to ban dispensaries and other medical marijuana business from operating in the targeted community.   As noted above, these “prohibition measures” have been met with mixed feelings by voters.  As an example, last week’s vote to ban medical marijuana businesses in Fort Collins was stunningly close, with only 52% of voters supporting it.

Moving forward, we are likely to see more bans and medical marijuana taxes appear on local ballots as Colorado communities continue to grapple with this new policy topic.  However, the true pulse of Colorado voters will be measured by their support (or rejection) of the statewide marijuana legalization measure, the Initiative to Regulate Marijuana Like Alcohol.  Proponents of this initiative, of which I am one, believe that Colorado would be better off with marijuana being treated like alcohol—taxed, sold from licensed stores, and limited to use by adults 21 and older.  With about 118,000 signatures in hand (and a goal of 145,000) the campaign is poised to place the measure on the 2012 presidential ballot, thereby continuing Colorado’s vibrant conversation about marijuana policy.

Brian Vicente, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. He also serves as executive director of Sensible Colorado, the state’s leading non-profit working for medical marijuana patients and providers. Brian is the chair of the Denver Mayor’s Marijuana Policy Review Panel, serves on the Colorado Department of Revenue Medical Marijuana Oversight Panel, and coordinates the Colorado Bar Association’s Drug Policy Project.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

New Federal Rules of Evidence Effective December 1; Rules Change Style, Not Substance

On December 1, 2011, the newly restyled Federal Rules of Evidence, approved last spring, take effect. While the wording and style of the rules are changing, the substance remains the same. Committee Notes to the restyled rules stress that the changes are intended to be stylistic only, making the rules more consistent in terminology and the language more user-friendly. No changes were made regarding evidence admissibility. The Committee also avoided drastic changes to rules that hold “sacred phrases.” Those are phrases that have become so familiar and common “as to be fixed in cement,” and their alteration would be disruptive in practice.

The new rules were crafted with plain language and readability in mind. So, while such sacred phrases as “offered to prove the truth of the matter asserted” remain, the revised rules should be easier to comprehend.

Click here to review a side-by-side comparison of the old rules and the restyled rules.

Editor’s Note: The 2011 Colorado Rules of Evidence Annotated is available for purchase from CBA-CLE and comes with a CD that includes these restyled Federal Rules of Evidence. The book is a portable, convenient in-court reference source and a handy desk guide, designed so the practitioner may quickly find the text of a rule as well as persuasive authority. Click here for more information and to order.