August 17, 2018

Tenth Circuit: Utah’s Ban on Same-Sex Marriage and Refusal to Recognize Same Is Unconstitutional

The Tenth Circuit Court of Appeals issued its opinion in Kitchen v. Herbert on Wednesday, June 25, 2014.

In 2004, Utah legislators and citizens amended their statutes and state constitution (collectively referred to in the opinion as Amendment 3) to ensure that Utah “‘will not recognize, enforce, or give legal effect to any law’ that provides ‘substantially equivalent’ benefits to a marriage between two persons of the same sex as are allowed for two persons of the opposite sex.” Three same-sex couples filed suit under 42 U.S.C. § 1983 against the Governor and Attorney General of Utah, and the Clerk of Salt Lake County, challenging the constitutionality of the two statutes and the constitutional provision. The plaintiffs sought a declaratory judgment that Amendment 3 is unconstitutional and an injunction prohibiting its enforcement.

The district court granted summary judgment for the plaintiffs, holding that the statutes and amendment violated the fundamental right to liberty and denied plaintiffs equal protection because it classified based on sex and sexual orientation without a rational basis. The court permanently enjoined enforcement of the provisions. The U.S. Supreme Court stayed the district court’s decision pending appeal to the Tenth Circuit.

The Tenth Circuit first considered the issue of standing because the Salt Lake County Clerk had not appealed the district court’s decision. The court held that because the governor and attorney general have actual supervisory power to compel county clerks to comply with Amendment 3, they had standing to appeal.

Next, the court held that the Supreme Court’s 1972 summary dismissal of Baker v. Nelson was not controlling precedent, especially after United States v. Windsor. In Baker, the Court dismissed, for lack of a substantial federal question, the appeal of a decision affirming Minnesota’s ban on same-sex marriage. Judge Kelly dissented from the portions of this decision regarding Baker v. Nelson and holding that the Fourteenth Amendment requires Utah to permit same-sex marriage and to recognize same-sex marriages entered into in other states.

In holding that the right to marry is a fundamental liberty interest, the court rejected the arguments that only opposite-sex marriage is a fundamental right and marriage is only a fundamental right because of procreation. The court also rejected the argument that the definition of marriage by its nature excludes same-sex couples. In describing a liberty interest, “it is impermissible to focus on the identity or class-membership of the individual exercising the right.” Fundamental rights do not change based on who is seeking to exercise them.

After deciding that the right to marry is a fundamental liberty, the court applied strict scrutiny to Amendment 3. The appellants contended Amendment 3 “furthers the state’s interests in: (1) “fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children”; (2) “children being raised by their biological mothers and fathers—or at least by a married mother and father—in a stable home”; (3) “ensuring adequate reproduction”; and (4) “accommodating religious freedom and reducing the potential for civic strife.” The court found Amendment 3 was not narrowly tailored to further the first three interests as the state permitted marriage by many nonprocreative couples. It noted these same arguments were rejected in Windsor. As to the fourth alleged interest, the court pointed out that public opposition cannot provide cover for a violation of fundamental rights.

The Tenth Circuit held that “under the Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny. . . . A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.”

The court affirmed the district court and stayed its mandate pending the disposition of any petition for writ of certiorari.

Tenth Circuit: Unpublished Opinions, 4/3/2014

On Thursday, April 3, 2014, the Tenth Circuit Court of Appeals issued no published opinions and one unpublished opinion.

Reyna v. Brown

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

Tenth Circuit: Barring Retrial as Habeas Remedy in Ineffective Assistance of Counsel Case Requires Powerful Justification

The Tenth Circuit Court of Appeals published its opinion in United States v. Bergman on Friday, March 28, 2014.

Gwen Bergman was convicted of hiring a person she thought was a hit man to kill her husband. After her trial, she eventually learned the man who represented her at trial was not an actual lawyer. She pursued a habeas motion under 28 U.S.C. § 2255 alleging a violation of her Sixth Amendment right to effective assistance of counsel at trial. The district court vacated her conviction and discharged her from supervised release. Assuming the court’s decision to vacate the conviction it won at Bergman’s first trial was without prejudice to a new trial with a (real) defense lawyer, the government asked the court to set a date. But the district court refused, stating that its discharge order “implicitly” forbade any effort to secure a valid conviction at a second trial. The government appealed that ruling.

First, the Tenth Circuit had to determine if it had jurisdiction to hear the appeal. Pursuant to 18 U.S.C. § 3731, the court may hear an appeal by the government from any “decision, judgment, or order of a district court dismissing an indictment.” The district court denied the government’s new trial request and entered an order saying so in both the civil habeas and the underlying criminal case but did not dismiss the indictment. The Tenth Circuit held that district court actions and orders having the practical effect of dismissing an indictment are subject to appeal under § 3731 even if they do not formally “dismiss” an indictment or happen to be labeled that way.

Bergman argued that the Double Jeopardy Clause prohibited further prosecution of her so the court could not hear the appeal. The court disagreed because, as in this case, “the Supreme Court has long held that the Double Jeopardy Clause does not prohibit the government from seeking a new trial when the defendant’s conviction is reversed because of a trial error unrelated to the question of guilt or innocence.”

The court rejected the government’s argument that it had an absolute right to retry a defendant absent a double jeopardy bar as other reasons may violate the legal rights of the defendant. However, it agreed that a § 2255 remedy must be tailored to the injury suffered from the Sixth Amendment violation and prohibiting a new trial in this case was not sufficiently tailored. The presumptively appropriate remedy for ineffective assistance is a new trail with an effective lawyer, barring problems that would render effective representation impossible. No evidence in the discharge order was sufficient to justify a discharge with prejudice. The court vacated the district court’s order and remanded. 

Tenth Circuit: Unpublished Opinions, 4/1/2014

On Tuesday, April 1, 2014, the Tenth Circuit Court of Appeals issued no published opinions and one unpublished opinion.

Clark v. Oakley

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

Tenth Circuit: Unpublished Opinions, 3/31/2014

On Monday, March 31, 2014, the Tenth Circuit Court of Appeals issued no published opinions and two unpublished opinions.

Requena v. Roberts

Baser v. State Farm Mut. Auto. Ins. Co.

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

Tenth Circuit: Unpublished Opinions, 3/28/2014

On Friday, March 28, 2014, the Tenth Circuit Court of Appeals issued one published opinion and eight unpublished opinions.

Tooley v. City of Konawa

United States v. Smart

United States v. Murphy

Amin v. Voigtsberger

Dority v. Farris

Lawrence v. School District No. 1

Summers v. State of Utah

United States v. Webb

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

Tenth Circuit: Unpublished Opinions, 3/20/2014

On Thursday, March 20, 2014, the Tenth Circuit Court of Appeals issued no published opinions and one unpublished opinion.

Mayes v. Oklahoma

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

Tenth Circuit: Grant of New Trial Reversed Because Undisclosed Evidence Immaterial Under Brady

The Tenth Circuit Court of Appeals published its opinion in United States v. Reese on Wednesday, March 19, 2014.

Rick Reese owned a federally licensed firearms store and ran it with his wife, Terri, and two sons, Ryin and Remington. In August 2012, a jury convicted Rick, Terri, and Ryin under 18 U.S.C. §§ 2 and 924(a)(1)(A) for aiding and abetting straw purchases of firearms from the store. Unbeknownst to them, however, at the time of trial the FBI was investigating one of the government’s witnesses, Deputy Batts, for his alleged involvement in various criminal activities. Arguing that the government’s failure to disclose that information before trial violated Brady v. Maryland, Defendants filed a motion for a new trial. The district court concluded that the government had withheld favorable, material evidence from Defendants and granted their motion. The government appealed.

Before reaching the merits of the appeal, the Tenth Circuit clarified that de novo is the standard of review of a district court’s ruling on a Brady claim asserted in the context of a new-trial motion. It also clarified that the test for materiality of withheld evidence does not change based on whether the government withheld it negligently or intentionally.

The court focused on the materiality element of the Brady claim and concluded that the Deputy Batts investigation was immaterial because there was not a reasonable probability that the outcome of Defendants’ trial would have been different had the government disclosed the investigation. The government’s evidence on the counts of conviction was sufficiently strong that the court was confident in the jury’s verdict. The court rejected Defendants’ arguments that Deputy Batts was a critical witness or that this was a close case and reversed the district court.

Tenth Circuit: Summary Judgment for Junior Mark User Affirmed in Lanham Act Trademark Infringement Case

The Tenth Circuit Court of Appeals published its opinion in Hornady Manufacturing Co., Inc. v. DoubleTap, Inc. on Wednesday, March 19, 2014.

Hornady manufactures and sells firearm ammunition and related products. Hornady has sold various products under the name “TAP,” short for “Tactical Application Police.” In 1999, Hornady acquired trademark registration for the nonstylized word mark, “TAP.” DoubleTap was founded in 2002 by Michael McNett. DoubleTap has been described as a “niche” ammunition manufacturer.

In January 2010, Hornady sent DoubleTap a cease-and-desist letter, demanding that DoubleTap discontinue using the word “Tap” on its products, remove “Tap” from its website, and destroy any materials it created bearing “Tap.” Hornady eventually filed suit, alleging trademark infringement under Sections 32 and 43(a) of the Lanham Act, common law trademark infringement, deceptive trade practices under Utah law, and unjust enrichment. Both parties moved for summary judgment, arguing that they were entitled to judgment as a matter of law on whether DoubleTap infringed on Hornady’s TAP mark. The district court denied Hornady’s motion and granted DoubleTap’s.

In deciding whether summary judgment was properly granted, the Tenth Circuit had to determine if DoubleTap’s mark was likely to cause confusion with Hornady’s mark. The court applied “six nonexhaustive factors to evaluate whether there is a likelihood of confusion: (1) the degree of similarity between the competing marks; (2) the intent of the alleged infringer in adopting the contested mark; (3) evidence of actual confusion; (4) the similarity of the parties’ products and the manner in which the parties market them; (5) the degree of care that consumers are likely to exercise in purchasing the parties’ products; and (6) the strength of the contesting mark.”

After applying the six factors in a detailed opinion, the court held that consumers were unlikely to be confused by the marks and affirmed the award of summary judgment to DoubleTap.

Tenth Circuit: Unpublished Opinions, 3/19/2014

On Wednesday, March 19, 2014, the Tenth Circuit Court of Appeals issued two published opinions and two unpublished opinions.

United States v. Shaw

United States v. Ganadonegro

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

Tenth Circuit: Ongoing Registration Obligations Under Colorado’s Sex Offender Registration Act Do Not Satisfy Jurisdictional Custody Requirement of Habeas Corpus Petitions

The Tenth Circuit Court of Appeals published its opinion in Calhoun v. Colorado Attorney General on Tuesday, March 18, 2014.

Ronald C. Calhoun, a convicted sex offender, appealed the district court’s dismissal of his habeas corpus petition filed under 28 U.S.C. § 2254. The district court held that Calhoun was not “in custody,” as required to invoke the jurisdiction of the federal courts. His probation was terminated on February 2, 2007 and he filed the current habeas petition five years later. Calhoun asserted that he was in custody for the purpose of § 2254 because he must register as a sex offender.

The Tenth Circuit held that “the future threat of incarceration for registrants who fail to comply with the [sex-offender registration] statute[s] is insufficient to satisfy the custody requirement.” The Colorado sex-offender registration requirements Calhoun is subject to are collateral consequences of conviction that do not impose a severe restriction on his freedom. The court agreed with circuits that have uniformly held that the requirement to register under state sex-offender registration statutes does not satisfy § 2254’s condition that the petitioner be “in custody” at the time he files a habeas petition.

Because the district court was without jurisdiction to consider the merits of the petition, the court affirmed its dismissal.

Tenth Circuit: Unpublished Opinions, 3/18/2014

On Tuesday, March 18, 2014, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

United States v. Arrowgarp

Smith v. Central Mine Equipment Co.

Tennyson v. Carpenter

Samland v. Doe

Large v. Beckham County District Court

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