June 27, 2019

Archives for October 10, 2012

Workers’ Compensation – Notice of Rulemaking Hearing

The Division of Workers’ Compensation will hold a public hearing on Thursday, November 15, 2012, to discuss the proposed amendments to Rule 17 of the Workers’ Compensation Rules of Procedure regarding traumatic brain injuries.

The purpose of the proposed amendments is to revise and update procedures, recommendations, and implementations in the Medical Treatment Guidelines that address traumatic brain injuries; to update diagnosis, treatment, and testing criteria; to revise grammar and terminology; and to change exhibits in order to make them more consistent with other exhibits in the Medical Treatment Guidelines.

Any interested party is invited to appear at the hearing and testify or to submit written data, arguments or position papers to Paul Tauriello, Director of the Division of Workers’ Compensation. Written submissions should be submitted to the Director prior to the hearing on November 15, 2012.

Proposed rule revisions, the proposed statement of basis and purpose and a regulatory analysis are available here.

Tenth Circuit: “Violent Felony” Under Armed Career Criminal Act Includes Second Degree Heat of Passion Assault

The Tenth Circuit Court of Appeals issued its opinion in United States v. Sandoval on Tuesday, October 9, 2012.

Gerald Sandoval pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The Armed Career Criminal Act, 18 U.S.C. § 924(e), increases the maximum sentence from 10 years to 15 years when a felon has three prior violent felony convictions. Sandoval argued his prior conviction for second degree assault was not a violent felony under the Act because it was heat of passion assault, which was defined at the time as an assault that lacked deliberation and had been provoked by the victim.

Sandoval relied on Begay v. United States to argue that because his conduct was not “purposeful and aggressive,” it could not be classified as a violent felony. The Tenth Circuit disagreed because in Sykes v. United States, the Supreme Court limited Begay’s “purposeful” inquiry. When the mens rea of the offense requires intentional conduct, the test is whether the crime is similar in risk of physical injury to the crimes listed in 18 U.S.C. § 924(e)(2)(B). Because the statutory elements of Sandoval’s crime required intent and the risk of physical injury was present, it meets the Sykes test. Because heat of passion is a mitigating factor for sentencing, rather than an element of assault, his crime was a violent felony for purposes of the Armed Career Criminal Act. Even if heat of passion were an element of second degree assault, it would still be a violent felony.

Tenth Circuit: Defenses Do Not Confer Federal Question Jurisdiction

The Tenth Circuit Court of Appeals issued its opinion in Firstenberg v. City of Santa Fe on Tuesday, October 9, 2012.

Arthur Firstenberg allegedly suffers from electromagnetic hypersensitivity (EHS), which requires him to avoid exposure to sources of electromagnetic radiation. One source is cell-phone towers, sometimes called “base stations,” which emit a form of energy known as radiofrequency (RF) radiation. After an AT&T Mobility Services, LLC upgrade to 3G increased the amount of RF radiation coming from its base stations, Firstenberg petitioned for a writ of mandamus in New Mexico state court, naming the City of Santa Fe and AT&T as defendants. AT&T did not apply for or obtain special exceptions from the City prior to initiating the upgrade. Mr. Firstenberg believed this was improper under § 14-3.6(B)(4)(b) of the City’s Land Development Code, which requires the City’s Board of Adjustment to approve an additional special exception if there is a “more intense use” of an existing structure.

In Firstenberg’s petition, he mentioned Title II of the Americans with Disabilities Act and the Fifth and Fourteenth Amendments of the Constitution under his argument section. He did not mention them in his cause of action or prayer for relief sections. The state court issued a writ of mandamus ordering the City to prohibit the 3G broadcasts unless and until special exceptions were granted or to show cause why it had not done so. AT&T and the City then removed the action to federal district court and each filed a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The district court concluded it had federal question jurisdiction and dismissed both claims, holding that the federal Telecommunications Act of 1996 (TCA) preempted the City’s authority to regulate AT&T’s upgrade.

Before oral argument in the Tenth Circuit, the court “asked the parties to file supplemental briefs addressing whether Mr. Firstenberg’s complaint was sufficiently ‘well-pleaded’ to satisfy the requirements for federal-question jurisdiction under 28 U.S.C. § 1331.” To arise under federal law, Firstenberg’s complaint  (his petition for mandamus) must have established that federal law created his cause of action or that his right to relief necessarily depended on resolution of a substantial question of federal law. The Tenth Circuit went through the federal laws mentioned in the complaint and held that all those issues were only mentioned as an anticipated defense (the TCA) or as responses to that defense. Because defenses, whether anticipated or asserted, are not enough to confer federal jurisdiction, the court reversed the dismissal and remanded the case to the district court to remand the case to state court.

Tenth Circuit: Unpublished Opinions, 10/9/12

On Tuesday, October 9, 2012, the Tenth Circuit Court of Appeals issued two published opinions and two unpublished opinions.

Singh v. Holder

United States v. Harrington

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