May 23, 2019

Archives for May 17, 2013

Bills Regarding Protection Orders and Mandatory Reporters Signed by Governor Hickenlooper

Governor Hickenlooper continues to sign legislation as it crosses his desk. To date, he has signed an impressive 240 pieces of legislation into law. He is expected to sign more bills in the coming days and weeks.

On Tuesday, May 14, 2013, Governor Hickenlooper signed five bills. They are summarized here.

Governor Hickenlooper also signed 12 bills on Wednesday, May 15, and Thursday, May 16, 2013. Five of the bills are summarized here.

It’s not over yet—stay tuned for the latest legislative decisions by Governor Hickenlooper. For a complete list of the bills that have been signed this legislative session, click here.

Tenth Circuit: Summary Judgment for Defendants Affirmed in ADA Case

The Tenth Circuit published its opinion in Koessel v. Sublette County Sheriff’s Dep’t on Tuesday, May 14, 2013.

Kevin Koessel was terminated from his position as a deputy sheriff in Sublette County, Wyoming. In response, Koessel brought a suit in district court against the Sheriff and the County alleging they violated the Americans with Disabilities Act (ADA), breached his employment contract, and violated his substantive and procedural due process rights. The district court granted the defendants’ motion for summary judgment.

Koessel had a stroke in 2001 and was placed on administrative leave while he recovered. He eventually was cleared by his doctor for full-time work with a restriction of no overtime. He worked a desk job, although he was permitted to make traffic stops during his 40-mile commute. After his return to full-time work, some officers complained about Koessel to the Sheriff. One complaint was that he forgot a word during a traffic stop and became flustered. Others complained he lost his temper while on duty. In April 2009, the Sheriff placed Koessel on administrative leave and ordered him to undergo a medical examination by a neurologist, Dr. Moress. Dr. Moress found that “[s]trictly from a neurological standpoint he would be able to work, but there are potential problems to cognitive functioning that may have resulted from the stroke and should be investigated.”

At Moress’s recommendation, Koessel was seen by a psychologist, Dr. Enright, who gave him a standardized test. Koessel’s score was unchanged from when he had taken it pre-stroke. Dr. Enright recommended Koessel be placed in a position without high stress or regular contact with the public because his “‘mild to moderate fatigue, episodes of lightheadedness and episodes of emotional disinhibition (weeping)’ could interfere with the performance of some of his patrol officer duties.”

After returning to a different temporary job for a few weeks, Koessel was again placed on leave and then terminated. The termination letter stated the reason for termination was because Koessel was not medically cleared to perform any available position in the Sheriff’s office. The letter told Koessel he had five days to file a written request for a hearing, which he did not do.

On appeal, Koessel argued that the defendants fired him based on a perceived disability when he was not actually disabled. Despite the fact that this case was filed after the effective date of the ADAAA, the Tenth Circuit used the old definition of perceived as disabled. This ultimately made no difference in outcome because the court decided it need not address whether Koessel was disabled or perceived as disabled because he failed to show he could perform the essential functions of the job. The court also found Koessel failed to identify a vacant position he could have been reassigned to as a reasonable accommodation.

Koessel’s breach of contract claim was based on Wyoming law requiring cause to terminate a deputy sheriff related to ability and fitness to perform his or her duties. The court found that cause was present and he received the required notice and opportunity to be heard. The court rejected Koessel’s procedural due process claim for similar reasons. Finally the court rejected Koessel’s substantive due process claim and affirmed summary judgment on all claims.

Tenth Circuit: 28 U.S.C. § 2255 Motion Challenging Federal Sentence Not Second Motion So Prior Authorization to File Not Required

The Tenth Circuit published its opinion in In re Weathersby on Tuesday, May 14, 2013.

Keith V. Weathersby filed a motion for authorization to file a second or successive motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. Weathersby was convicted of two federal drug offenses in March 2002 and sentenced to 292 months in prison. The Tenth Circuit affirmed his conviction and sentence on direct appeal. He then filed a § 2255 motion for relief that the district court dismissed as untimely. After filing other motions and appeals, Weathersby alleged he successfully attacked six state court convictions that were used in calculating his federal sentence and sought to file another § 2255 motion challenging his federal sentence.

The Antiterrorism and Effective Death Penalty Act (AEDPA) limits second or successive motions under § 2255, requires that a defendant obtain circuit-court authorization before filing a second or successive motion, and limits the grounds for authorization. The Tenth Circuit found persuasive the reasoning of the Eleventh Circuit in a similar case and held that if the state court did not vacate Weathersby’s convictions until after his first § 2255 proceeding was concluded, this motion would not be a second motion. Given that the basis for challenging his federal sentence did not exist until the state court vacated the sentences, his proposed § 2255 claim did not exist at the time of the first § 2255 motion. The court dismissed the motion for authorization as unnecessary.

Tenth Circuit: Unpublished Opinions, 5/16/13

On Thursday, May 16, 2013, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

United States v. Embry

Berendes v. Geico Casualty Co.

Navarro v. Holder

Chambers v. Medina

Harmon v. Parnell

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