August 19, 2019

Archives for October 19, 2012

Legal Aid Foundation’s Community Partners Initiative

The Legal Aid Foundation of Colorado developed a Community Partners initiative this year, in order to recognize those individuals and organizations committed to providing access to justice for Coloradoans. The Legal Aid Foundation was developed in 1981 in an effort to provide civil legal services to low-income people.

The first Community Partners recognition list is available here. For more information about the Legal Aid Foundation, visit their website at

Tenth Circuit: Aggravated Assault is Not Categorically a Crime of Violence Under Texas Law for Sentencing Purposes

The Tenth Circuit issued its opinion in United States v. Duran on Thursday, October 18, 2012.

Jarrod Duran challenged the procedural reasonableness of his forty-one month sentence, claiming that his prior conviction for aggravated assault under Texas law was not a crime of violence under the United States Sentencing Guidelines.

Duran pleaded guilty to one count of possession of a firearm by a convicted felon. After pleading guilty and prior to sentencing, it was determined that Duran had a prior felony conviction for aggravated assault in Texas, for which he received an eight-year sentence. For purposes of sentencing, he reserved the right to challenge whether this offense was a crime of violence, which might enhance his sentence under the Sentencing Guidelines. At the sentencing hearing the district court found that aggravated assault was a crime of violence. But between the time of the sentencing hearing and this appeal, the Tenth Circuit held that a crime of violence cannot fall under the residual clause unless it is an intentional crime, and that criminal recklessness is insufficient United States v. Armijo, 651 F.3d 1226, 1237 (10th Cir. 2011). The district court did not have the benefit of Armijo in considering whether Texas law allowed for a mens rea of recklessness.

Because, the Tenth Circuit found, a defendant can commit aggravated assault under Texas law with a mens rea no higher than recklessness, Defendant’s crime was not categorically a crime of violience, and the sentencing enhancement did not apply.

REMANDED for resentencing.

Tenth Circuit: Students Have Standing to Challenge Kansas Act Funding Public Schools

The Tenth Circuit issued its opinion in Petrella v. Brownback on Thursday, October 18, 2012.

The Kansas Constitution requires the Kansas legislature to make suitable provision for finance of the educational interests of the state. In 2005, the Kansas Supreme Court determined the then-current school finance system (the Act) violated the state constitution because it failed to make suitable provisions for funding public schools. Among the Act’s constitutional shortcomings were an overall funding of public education and a wealth-based disparity in public education funding based on difference in assessed property values from district to district. At the same time, the Kansas Supreme Court upheld the Act against an equal protection challenge, finding the Act did not violate either the Kansas or United States constitutions on equal protection grounds.

The Act in part authorized districts to adopt a “Local Option Budget” (LOB), which permitted a district to raise extra money by levying additional property taxes beyond the minimum. The LOB was capped at 31% of the district’s State Financial Aid entitlement. Plaintiffs, students and parents of students, filed this action claiming the LOB cap violated their federal Equal Protection and Due Process rights by effectively reducing their educational services.

The district court dismissed the case for lack of standing, concluding the LOB cap was not severable from the rest of the Act. Therefore, a finding that the LOB cap was unconstitutional would result in the invalidation of the entire Act, leaving the school board unable to levy any taxes at all. In other words, a favorable decision striking the cap could not redress plaintiffs’ alleged injury. This appeal followed.

The three requirements of standing are: injury-in-fact, causation, and redressability. The Tenth Circuit found that Appellants carried their burden to establish the three requirements of Article III standing. The Court stated that Appellants’ standing did not depend on their certain ability to raise funding from within the district. Instead, Appellants had standing because they alleged a violation of their right to equal protection that was fairly traceable to the challenged statute, and that would be redressed by a favorable decision on the merits, even if such a decision resulted in the wholesale invalidation of the Act.

Accordingly, the Tenth Circuit REVERSED and REMANDED for consideration on the merits.

Tenth Circuit: Case Involving Tax Status of Land as Indian Country or Federal Land Should Have Been Dismissed Without Prejudice

The Tenth Circuit Court of Appeals issued its opinion in Northern Arapaho Tribe v. Harnsberger on Thursday, October 18, 2012.

Plaintiff-Appellant, the Northern Arapaho Tribe (“Appellant” or “Northern Arapaho”), sued various state and county officials in Wyoming, seeking an injunction against the state’s imposition of certain vehicle and excise taxes in an area that Appellant contends is Indian country. Appellant claimed that the state may not tax its members in Indian country, and that the Indian country status of the land was conclusively established by an earlier decision of the Wyoming Supreme Court. The district court dismissed the action with prejudice for failure to join a party under Federal Rule of Civil Procedure 12(b)(7) after determining that two absent entities—the Eastern Shoshone Tribe (“Eastern Shoshone”) and the United States—were necessary parties who could not feasibly be joined, and in whose absence the action could not proceed. The district court also concluded that the Indian country status of the land had not been conclusively determined by the earlier state litigation. Appellant appeals both determinations.

The Tenth Circuit agreed that the dismissal of the action was proper because the Eastern Shoshone was a necessary party  that could not feasibly be joined.  The Court explained that the Eastern Shoshone had an interest in the litigation that could be harmed by the proceeding in its absence, and proceeding in the absence of the Easter Shoshone would also place the State of Wyoming at a substantial risk of incurring multiple inconsistent obligations. The Eastern Shoshone was therefore required to be joined under Rule 19(a).  The Tenth Circuit also found that the district court correctly held that the Eastern Shoshone is a sovereign and is therefore immune from suit, so therefore could not be feasibly joined.

However, the Court VACATED the judgment and remanded with instructions to dismiss without prejudice, since the district court’s disposition was not an adjudication on the merits. Finally, the Court also DENIED as moot Appellant’s Rule 27.2(A) motion for summary disposition or remand.

Tenth Circuit: Unpublished Opinions, 10/18/12

On Thursday, October 18, 2012, the Tenth Circuit Court of Appeals issued three published opinions and two unpublished opinions.

Allen v. Workman

Black v. Tramwell

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