August 24, 2019

Archives for February 3, 2014

Tenth Circuit: Summary Judgment for Prison Officials in RLUIPA Sweat Lodge Case Vacated

The Tenth Circuit Court of Appeals published its opinion in Yellowbear v. Lampert on Thursday, January 23, 2014.

Andrew Yellowbear is in a Wyoming prison for murdering his daughter. He is an enrolled member of the Northern Arapaho Tribe and seeks access to the prison’s existing sweat lodge to facilitate his religious exercises. The prison’s sweat lodge is located in the general prison yard and Yellowbear is housed in a special protective unit because of threats against him. Prison officials refused to allow his use of the sweat lodge, saying that the cost of providing the necessary security to take Yellowbear from the special protective unit to the sweat lodge and back is “unduly burdensome.” Yellowbear filed suit against prison officals and sought injunctive relief under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The district court entered summary judgment for the defendants.

The Tenth Circuit held that Yellowbear had satisfied his burden under RLUIPA to show his use of the sweat lodge would be a religious exercise motivated by sincere religious belief. He also met his summary judgment stage burden of showing the prison substantially burdened that exercise by prohibiting him from any access to the sweat lodge.

For the government to prevail, it had to show prohibiting access serves a compelling state interest and is the least restrictive means of furthering that interest in this case. The court found the government had not met its burden. It did not quantify the costs it would incur in providing security to take Yellowbear to and from the sweat lodge. Additionally, prison lockdowns already occurred daily for nonreligious reasons, such as transporting other specially housed inmates to the medical unit. The defendants did not address this evidence so the inference that the prison would not perform lockdowns for religious exercise because of a discriminatory reason was not countered.

The defendants also argued that granting Yellowbear’s request would lead to a flood of requests from other specially housed inmates but provided no information to back up that speculative claim.

The court held that the prison also failed to meet its burden of showing its policy of prohibiting Yellowbears’s access was the least restrictive means necessary to further its compelling interest. The prison did not demonstrate that Yellowbear’s suggested alternatives were ineffective in meeting the prison’s goals. Showing that he refused the prison’s suggested alternatives was not enough.

The court explained that its decision was made on the basis of absolutes (no access granted) at the summary judgment stage and that the relative strengths of the parties’ positions may change. The court vacated summary judgment for the defendants.

Tenth Circuit: Tribe, as Non-party, Was Entitled to Tribal Immunity from Subpoena Duces Tecum

The Tenth Circuit Court of Appeals published its opinion in Bonnet v. Harvest (US) Holdings, Inc. on Tuesday, January 28, 2014.

Plaintiff Robert Bonnet is a petroleum landman who conducts business through his sole proprietorship, Bobby Bonnet Land Services; also a Plaintiff. In 2008, Plaintiffs entered into a written contract with the Energy and Minerals Department of the Ute Indian Tribe of the Uintah and Ouray Reservation to serve collectively as an independent contractor and consultant. When the Tribe terminated this contract in April 2009, Plaintiffs, on the basis of diversity jurisdiction, sued various companies and individuals (but not the Tribe) in federal court, alleging these defendants caused the Tribe to terminate this contract prematurely. Plaintiffs served the Tribe with a non-party subpoena duces tecum requesting documents relevant to their suit. The Tribe moved to quash the subpoena based on the doctrine of tribal sovereign immunity. The district court denied the Tribe’s motion to quash based on tribal immunity, but modified the subpoena to limit or strike requests it deemed overbroad. The Tribe appealed.

The issue before the court was whether a subpoena duces tecum served on a non-party Tribe and seeking documents relevant to a civil suit in federal court is itself a “suit” against the Tribe triggering tribal sovereign immunity. Pursuant to the collateral order doctrine, the Tenth Circuit held the answer is yes.

The court first held that the district court’s denial of the Tribe’s motion to quash the subpoena based on tribal sovereign immunity was an immediately appealable order notwithstanding lack of a final judgment, because the court has recognized that the denial of tribal immunity is an immediately appealable collateral order: (1) the order conclusively determined the disputed question of tribal immunity, (2) tribal immunity was an important issue completely separate from the merits of the case, and most importantly, (3) the denial of tribal immunity was effectively unreviewable on appeal from a final judgment because tribal immunity was an immunity from suit rather than merely a defense to liability, which was effectively lost if the case was allowed to proceed. Thus, the Tenth Circuit concluded it had jurisdiction over this appeal.

The court then turned to the legal question whether the Tribe, as a non-party, was entitled to tribal immunity from a subpoena duces tecum. The parties here disputed only whether a subpoena served on a non-party tribe in a civil case in federal court is a “suit” triggering tribal sovereign immunity in the absence of congressional authorization or tribal waiver. This was an issue of first impression in this Circuit.

Early American jurisprudence defined a “suit” as the prosecution of some demand in a Court of justice. A subpoena, on the other hand, merely compels the production of evidence, which the court needs in order to fully and fairly adjudicate this underlying claim or demand. “Suit” includes “judicial process,”  and a subpoena duces tecum is a form of judicial process. The logical conclusion, therefore, is that a subpoena duces tecum served directly on the Tribe, regardless of whether it is a party to the underlying legal action, is a “suit” against the Tribe, triggering tribal sovereign immunity.

The court therefore REVERSED the district court’s denial of the Tribe’s motion to quash based on tribal immunity.

SB 14-027: Requiring Criminal Background Checks for Law License Applicants and CFIs

On Wednesday, January 8, 2014, Sen. Lucia Guzman introduced SB 14-027 – Concerning Criminal History Background Checks for Professionals Who Have the Authority to Appear in Court. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires a fingerprint-based criminal history background check for a law license applicant and a child and family investigator. The bill updates the license to practice law statute. The bill cleared the Judiciary and the Finance Committees on Jan. 15 and 23 respectively; it now goes to the full Senate for consideration on 2nd Reading.

SB 14-034: Strengthening the Requirements to Enforce a Subpoena Against a Newsperson

On Wednesday, January 8, 2014, Sen. Bernie Herpin introduced SB 14-034 – Concerning Strengthening the Protection of the Press. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law requires a party seeking to enforce a subpoena against a newsperson to establish 3 elements by a preponderance of the evidence. As introduced, the bill changes the standard to clear and convincing evidence and requires the party to show the following four elements:

  • The information was not obtained in confidence;
  • The information is highly material and relevant;
  • The information is critical to a material issue; and
  • The information is not obtainable from another source.

On Jan. 15 the bill was heard by the Senate Judiciary Committee; action on the bill was delayed to allow the sponsor to draft amendments.

Tenth Circuit: Unpublished Opinions, 1/30/14

On Thursday, January 30, 2014, the Tenth Circuit Court of Appeals issued no published opinions and five unpublished opinions.

Bevan v. DaVita, Inc.

United States v. Wilson

Agrawal v. Foxx

Olson v. Kansas Department of Revenue

Rhodes v. Southern Nazarene University

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.



Tenth Circuit: Unpublished Opinions, 1/29/14