July 17, 2019

Archives for August 6, 2013

Colorado Court of Appeals: Administrative Procedure Act Applies to Judicial Review of Determination of Secretary of State

The Colorado Court of Appeals issued its opinion in Marks v. Gessler on Thursday, August 1, 2013.

Help America Vote Act—Administrative Complaint—State Administrative Procedure Act—Summary Judgment—Standing—42 USC § 1983.

In this case involving the filing of a citizen complaint under the Colorado Help America Vote Act, CRS §§ 1-1.5-101 to -106 (state HAVA), and its federal counterpart, the Help America Vote Act, 42 USC §§ 15301 to 15545 (federal HAVA), defendants Scott Gessler, in his official capacity as the Colorado Secretary of State (Secretary), the Colorado Department of State (CDOS), and Judd Choate, in his official capacity as a person representing or acting on behalf of the CDOS, appealed the district court’s judgment in favor of plaintiff Marilyn Marks. The judgment was affirmed.

Marks filed an administrative complaint with the Secretary, alleging her belief that violations of Title III of the federal HAVA had occurred or were occurring in the 2010 general election conducted in Saguache County, Colorado. Without holding a hearing, defendants dismissed Marks’s complaint for lack of standing. The district court held that defendants had erred in dismissing Marks’s complaint on standing grounds and that she was entitled to a hearing.

On appeal, defendants asserted that the district court erred in proceeding under the state Administrative Procedure Act (APA) to summarily reverse the Secretary’s dismissal of Marks’s administrative complaint and remand the case for further proceedings. Although the APA rules and procedures do not apply to the Secretary’s resolution of a state HAVA administrative complaint at the agency level, the APA does apply to judicial review in the district court of the Secretary’s determination. Thus, the district court did not err in considering Marks’s first and third claims under the APA’s principles of judicial review.

Defendants also contended that the district court was not empowered to grant judgment on the pleadings or summary judgment in favor of Marks on her first and third claims absent a motion requesting such relief. However, it was not reversible error for the district court to proceed essentially on summary judgment without a dispositive motion, given the relevant part of the agency record before the court and lack of disputed issues of fact before the court.

Defendants also argued that the district court erred in concluding that they should not have dismissed Marks’s state HAVA administrative complaint for lack of standing, and that she was entitled to a hearing on the issues she alleged in that complaint. The federal and state requirements for standing to file an administrative HAVA complaint conflicted, and therefore, the federal standing requirement controlled, which entitled Marks to a hearing. Furthermore, the district court had subject matter jurisdiction to determine whether a conflict existed between the state HAVA and the federal HAVA.

Defendants further contended that Marks lacked standing to maintain her first claim for relief, in which she sought judicial review of the administrative determination. Any person who believes a violation of Title III of the federal HAVA has occurred has a right to file a complaint. Here, Marks alleged a sufficient injury in fact. Thus, she satisfied the jurisdictional prerequisites for standing, as well as the standing requirements to obtain judicial review of an agency action under the APA and HAVA.

Marks contended that the district court erred in dismissing her 42 USC § 1983 claims against the Secretary and co-defendant Choate. Marks alleged in her district court complaint that by dismissing her administrative complaint on state-law standing grounds, defendants had deprived her of a federally secured right, under 42 USC § 15512(a)(2)(B), to file a HAVA complaint using Colorado’s administrative complaint procedure. She also asserted that by dismissing her complaint, defendants had deprived her of her federally secured right, under 42 USC § 15512(a)(2)(E), to receive a hearing on the record in connection with her state HAVA complaint. Marks claims were properly dismissed, however, because §§ 15512(a)(2)(B) and 15512(a)(2)(E) do not create federal rights of action enforceable under § 1983.

Summary and full case available here.

Tenth Circuit: Lack of Vehicle Record May Not Provide Basis for Traffic Stop if Database is Unreliable

The Tenth Circuit Court of Appeals published its opinion in United States v. Esquivel-Rios on Friday, August 2, 2013.

A Kansas trooper made a traffic stop after requesting verification of the vehicle’s temporary Colorado tag. Dispatch informed the trooper that there was no return on the record but that “Colorado temp tags usually don’t return.” The trooper had no basis for the stop other than the lack of record. Antonio Esquivel-Rios, the driver, was convicted of federal drug charges based on methamphetamine the trooper found after a search of the vehicle.

The district court denied Esquivel-Rios’s motion to suppress based on the stop being a violation of his Fourth Amendment rights. The district court held the trooper had reasonable suspicion to believe the temporary tag was forged.

The Fourth Amendment reasonable suspicion analysis requires a careful consideration of the “totality of the circumstances.” The reliability of the database is central to the case as the lack of return of record provided the only basis for the stop. Because the district court failed to consider the dispatcher’s comment that the database usually failed to return Colorado temporary tags, the court remanded for the district court to determine whether the database was unreliable and, if so, if the remedy is to exclude evidence of the methamphetamine.

Esquivel-Rios also argued on appeal that other crimes evidence should not have been admitted, expert testimony about the significance of a tattoo and a book that are associated with drug traffickers should have been excluded, and prosecutorial misconduct was committed in closing argument. The Tenth Circuit rejected all these arguments.

Tenth Circuit: Riding a Bus Can Be a Protected Property Interest

The Tenth Circuit Court of Appeals published its opinion in Brown v. Eppler on Friday, August 2, 2013.

Plaintiff David Brown appealed from the dismissal of his action challenging his ban from using public transportation provided by the Metropolitan Tulsa Transit Authority (the “MTTA”). Brown asserted claims arising under the United States Constitution, federal civil rights laws, and Oklahoma state law. The district court granted summary judgment in favor of the MTTA as well as defendants J.D. Eppler, Ray Willard, Jane Doe, and Janet Doe (collectively “employee defendants”). In so doing, the court concluded Brown did not have a constitutionally protected property interest in access to MTTA services.

The Tenth Circuit held that because the MTTA had limited its own discretion to ban riders to a set of clearly defined circumstances, Brown had a “legitimate claim of entitlement” to access to MTTA transportation so long as he complied with its rules and regulations, and, hence, a protected property interest under the Due Process Clause of the Fourteenth Amendment. It reversed the grant of summary judgment to the MTTA and remanded to the district court to determine whether sufficient process accompanied the deprivation of Brown’s interest in riding the MTTA. The court affirmed the dismissal of Brown’s remaining claims.

Brown had been granted in forma pauperis status when he filed his district court action. He was not in prison at that time but was when he filed his notice of appeal. Brown argued the Prisoner Litigation Reform Act (“PLRA”) did not apply to him. The Tenth Circuit disagreed and held that the PLRA applies to any prisoner who brings an appeal and seeks ifp status, regardless of whether the underlying district court action was filed before the prisoner was incarcerated.

Tenth Circuit: Unpublished Opinions, 8/2/13

On Friday, August 2, 2013, the Tenth Circuit Court of Appeals issued two published opinions and two unpublished opinions.

Alioto v. Hoiles

United States v. Sivigliano

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