July 22, 2019

Archives for July 22, 2014

Tenth Circuit: Oklahoma’s Same-Sex Marriage Ban Ruled Unconstitutional

The Tenth Circuit Court of Appeals issued its opinion in Bishop v. Smith on Friday, July 18, 2014.

Sally Smith, the County Clerk for Tulsa County, Oklahoma, appealed the district court’s decision that Oklahoma’s same-sex marriage ban is unconstitutional. Smith also challenged the standing of the plaintiffs to bring the action, and whether the Oklahoma court clerk is a proper defendant as to Oklahoma’s non-recognition provision concerning same-sex marriages performed in another state. The Tenth Circuit determined that the plaintiffs had standing, affirmed the district court’s decision, and determined that the Oklahoma court clerk was an improper party regarding the non-recognition provision. In affirming, the Tenth Circuit applied its ruling in Kitchen v. Herbert, the Utah same-sex marriage case, in which it held that plaintiffs who wish to marry a partner of the same sex seek to exercise a fundamental right and state justifications for banning such marriages that hinge on the procreative potential of opposite sex marriage do not satisfy a narrow tailoring test applicable to laws that impinge upon fundamental liberties.

Mary Bishop and Sharon Baldwin are Oklahomans who are in a long-term relationship and wish to marry. They sought a marriage license from the Tulsa County Court Clerk in 2009 but were denied because they are both women. They have suffered harms from the denial, including incurring legal fees to prepare estate planning documents to confer upon each other the same rights they would have in marriage. Susan Barton and Gay Phillips were married in Canada in 2005 and again in California in 2008. They have suffered adverse tax consequences as a result of Oklahoma’s refusal to recognize their marriage, and say that Oklahoma treats them as inferior to their opposite-sex counterparts.

In November 2004, Bishop, Baldwin, Barton, and Phillips filed suit against the Oklahoma governor and  attorney general, challenging Oklahoma’s state constitutional ban on same-sex marriage. The governor and attorney general filed a motion to dismiss in 2006, which was denied, and appealed that denial to the Tenth Circuit. A panel of the Tenth Circuit determined in 2009 that plaintiffs failed to name a defendant having a causal connection to their injury, such as a court clerk. On remand, the district court allowed plaintiffs to amend their complaint to add Smith in her official capacity as Tulsa County Court Clerk, and to add challenges to §§ 2 and 3 of DOMA against the United States ex rel. Eric Holder. In 2011, the United States notified the district court that it would no longer defend § 3 of DOMA on the merits, and the Bipartisan Legal Advisory Group was allowed to intervene to defend the law. The case proceeded to summary judgment, and Smith submitted an affidavit that she had no authority to recognize out-of-state marriages, be they of same-sex or opposite-sex couples.

After the U.S. Supreme Court’s decision in United States v. Windsor, the district court entered an opinion and order disposing of the defendants’ motion to dismiss and the cross-motions for summary judgment. The district court ordered that Phillips and Barton lacked standing to challenge DOMA because state law resulted in the non-recognition of their marriage; any challenge to DOMA was moot in light of the Windsor decision; Phillips and Barton lacked standing to challenge Oklahoma’s non-recognition provision because Smith is not involved in recognition; and Oklahoma’s ban on same-sex marriage (Part A of SQ 711) violates the Equal Protection Clause. Smith appealed the decision regarding Part A and Barton and Phillips cross-appealed the conclusion that they lacked standing. The DOMA issues were not challenged.

Smith first contends that plaintiffs lack standing to challenge Part A of SQ 711 because they do not simultaneously contest a state statute to the same effect. However, the Tenth Circuit determined that a constitutional amendment would have the effect of superseding all previous statutes. The statute is not enforceable independent of SQ 711.

In addressing the merits of Smith’s appeal regarding Part A, the Tenth Circuit applied its reasoning from the Kitchen case. The Tenth Circuit opined that the Supreme Court’s dismissal in Baker v. Nelson is not controlling, plaintiffs seek to exercise a fundamental right to marry, and state justifications against same-sex marriage based on procreation fail to satisfy a strict scrutiny test. The Tenth Circuit first rejected Smith’s Baker arguments that lower courts are not free to reject summary dismissals, stating that her argument is undermined by the explicit language of the case creating the rule. Next, the Tenth Circuit evaluated her contention that children have an interest in being raised by their biological parents. The Tenth Circuit ruled that this contention is contradicted by statutes allowing adoption, egg and sperm donation, and other non-biological means for child-rearing. The Tenth Circuit noted that the state failed to raise arguments why same-sex marriage proposes a greater threat than other non-biological child-raising scenarios. Further, the Tenth Circuit stated that Oklahoma’s ban sweeps too broadly, because not all opposite-sex couples are able to procreate or are interested in procreation, and they are not denied the ability to marry.

As to the challenge to the non-recognition provision, the Tenth Circuit determined that Phillips and Barton lacked standing in this area because Smith is not a proper party. Smith submitted an affidavit to the effect that she is not able to recognize any marriages in her official capacity, and the affidavit is sufficient to establish that Smith is not a proper party regarding non-recognition. The Tenth Circuit sympathized with the plaintiffs, who have been litigating the issue for ten years, but suggested instead that if they attempted to file a joint tax return and were denied, they would be able to sue the Tax Commission regarding the denial.

The judgment of the district court was affirmed.

Tenth Circuit: Substantial Upward Variance from Sentencing Guidelines Justified by Several Factors

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lente on Friday, July 18, 2014.

Camille Lente consumed between 13 and 19 beers and decided to drive. She veered into oncoming traffic and caused a serious accident in which three people died and both drivers were seriously injured. Her advisory Guidelines range was from 46 to 57 months, but the trial judge sentenced her to 216 months. She appealed, and a divided panel of the Tenth Circuit remanded for more evidentiary findings regarding the variance. On remand, the district court heard testimony and victim impact statements, and concluded a sentence of 192 months’ imprisonment was appropriate. She again appealed, and the Tenth Circuit reversed and remanded a second time. The Tenth Circuit concluded the district court had procedurally erred by failing to address Lente’s argument that the sentence created unwarranted disparities.

On remand for the second time, the parties again supplemented the record with extensive additional evidence, including competing expert testimony. After discussing its sentencing discretion, identifying the sentencing factors listed in 18 U.S.C. § 3553(a), and accurately noting the undisputed Guidelines range of 46 to 57 months, the court held that a within-Guidelines sentence would be “woefully inadequate.” The court again imposed a 192-month sentence. Lente once again appealed.

Lente contended on appeal that the district court committed both procedural and substantive errors. She argued that the court committed procedural error by failing to consider the role her passenger played in the crash, and by failing to address her argument that multiple-fatality crashes should not be punished more harshly than single-fatality crashes. The Tenth Circuit, however, determined that the district court carefully considered and rejected those arguments, and instead of speaking to procedural errors, Lente’s real contention is with the substantive reasonableness of those considerations.

Addressing the substantial upward variance based on the multiple-fatality crash, the Tenth Circuit examined the legislative history of the Sentencing Guidelines and discussed that the Sentencing Commission has repeatedly expressed concern that the Guidelines do not adequately address involuntary manslaughter or multiple fatality situations. Although the Tenth Circuit agreed somewhat with Lente that the multiple deaths are more the result of chance than additional culpability, it agreed with the district court that multiple-fatality drunk driving crashes are not adequately addressed by the Guidelines. The Tenth Circuit determined that the district court acted within its discretion in imposing a significant upward variance in this instance.

Another factor considered by the district court in sentencing was Lente’s extreme recklessness. The Tenth Circuit agreed with the district court that Lente acted with extreme recklessness, citing as support Lente’s BAC of .21 two hours after the accident, the high traffic volume on the road, her excessive alcohol consumption, and a comparison of her conduct with similar offenses. The Tenth Circuit found no error in the district court’s conclusion.

The district court also concluded that Lente’s criminal history was significantly underrepresented in the Guidelines, since many of her previous convictions were for violations of tribal law and she was not assessed criminal history points for these. The district court noted that four of Lente’s prior convictions were for disorderly conduct after becoming intoxicated, which indicated a repeated willingness to abuse alcohol and engage in violent and destructive behavior. The Tenth Circuit found no error in the district court’s evaluation of Lente’s criminal history.

Further, Lente’s substance abuse and criminal behavior continued post-conviction. Recorded prison calls showed Lente repeatedly abused narcotics while incarcerated. She also indicated she planned to become intoxicated upon her release and had used alcohol at least once while in prison. She had two prison disciplinary sanctions for use of drugs or alcohol, as well as a number of other offenses. She was expelled from a drug education class and failed to apply to prison drug treatment programs. Her post-conviction conduct supports a conclusion that she was likely to reoffend. The district court’s conclusion that an upward variance was necessary to protect the public and deter criminal conduct was reasonable.

Finally, Lente argues that her sentence was disparate from other similar offenders. Although Lente cited several cases in support of her argument, the Tenth Circuit distinguished her case, noting that the cases she cited generally involved fewer BACs and fewer fatalities, and the cases with more fatalities involved different circumstances.

The Tenth Circuit affirmed the district court’s sentence.

Tenth Circuit: Unpublished Opinions, 7/21/2014

On Monday, July 21, 2014, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

Brown v. Berkebile

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