August 14, 2018

Tenth Circuit: Gas Use that Adversely Affected Prisoners Was Not Excessive Force

The Tenth Circuit Court of Appeals issued its opinion in Redmond v. Crowther on February 9, 2018.

Redmond and the entire plaintiff class (collectively, Redmond) were incarcerated in the Olympus Wing of the Utah State Prison, an inpatient treatment facility that houses prisoners with physical and mental health conditions. It has five divided sections. Section D includes a recreation yard, which is enclosed by four walls and open to the sky. On one of those walls is an intake vent to Olympus’s HVAC unit. The vent takes in air from the recreation yard and circulates it into the cells in sections A, B, C, and D. James Hill is a prisoner housed in Section D. On August 3, 2011, Hill violated prison rules. When an officer tried to discipline him, Hill walked away. The officer ordered Hill to return to his cell, but Hill refused. In response, prison officials ordered all prisoners to return to their cells and locked the doors.

Instead, Hill walked into Section D’s recreation yard and closed the door behind him, causing it to lock. Hill then took of his glasses and began sharpening them on the wall. He declared he would “stick or cut the first pig that came out there,” paced aggressively, swung his arms in the air, swore, and spit at prison officials. In response, Robert Powell, the lead officer on duty that day, called the special operations unit, which Jason Nicholes led. Nicholes and his team planned how to extract Hill. Nicholes considered various options such as using a shield wall, shooting Hill with a rubber bullet, or deploying pepper spray. In the end, however, Nicholes concluded that these paths presented additional risks to staff, so he decided to deploy CS gas. Before doing so, Nicholes examined the recreation yard and looked for risks. He did not notice any, nor did he notice the HVAC vents. With his team in place, Nicholes instructed Hill to submit to a strip search and be handcuffed. He warned Hill that if he did not comply, force would be used. Hill nevertheless continued to respond aggressively.

Nicholes then ordered his team to deploy the CS gas. The plan went smoothly except for a significant problem – the HVAC unit. Because the recreation yard contained the HVAC unit’s intake vent, the vent drew the gas in and pumped it inside the prison. The gas went into the cells in sections A, B, C, and D. It also went into administrative areas. The gas caused a burning sensation in prisoners’ eyes, ears, and noses, and made it difficult for them to breathe. It took about thirty minutes for Powell and other prison officials to evacuate the prisoners in Sections B and C. During the evacuation, Powell went into the recreation yard and confirmed that medical staff were offering assistance to prisoners. Yet when the evacuated prisoners were lined up in the recreation yard, Powell told them: “if any of you sissies absolutely need medical treatment, that’s fine, but if any of you are just going over there to whine and cry, something to that extent, or say, oh, my eyes hurt or something like that, I’m going to put you on lockdown or see about having you removed from this facility. I’m not going to have you wasting time with those complaints. If you’re about to die, that’s one thing.” Two prisoners claim they would have sought medical treatment had Powell not made this statement.

Powell thought the gas had dissipated in these sections. He thus decided to not evacuate Sections A and D at all. To air these sections out, Powell instead opened the ports of the cells’ doors and placed an industrial fan in the doorway. Medical staff also walked around Sections A and D to ask if prisoners needed medical care.

Redmond contends that Powell and Nicholes violated the Eighth Amendment by exposing the prisoners to CS gas and then failing to respond adequately to their resulting medical needs. He also claims Powell, Nicholes, and Crowther violated the Utah Constitution’s unnecessary-rigor clause by exposing the prisoners to CS gas. Redmond specifically claimed four violations: (1) exposing plaintiffs to CS gas, (2) discouraging plaintiffs from seeking medical attention and not permitting them all to leave their cells or to shower, (3) verbally abusing and intimidating plaintiffs, and (4) failing to train prison staff regarding the use of CS gas. The Tenth Circuit found none of Redmond’s Eighth Amendment claims persuasive.

Redmond argued in support of his claim that Powell and Nicholes violated the Eighth Amendment by exposing prisoners to CS gas that when “assessing the claims of innocent bystanders who are not the intended target of force and whose exposure to force does not further the purpose of maintaining and restoring discipline,” the conditions of confinement framework applies. The Tenth Circuit disagreed, finding no viable conditions of confinement claim.

The Tenth Circuit found that Nicholes and Powell were entitled to qualified immunity on the excessive force claim regarding exposing the prisoners to gas. Redmond failed to meet his burden of showing a constitutional violation. And even assuming the officials did, in fact, violate the Eighth Amendment, Redmond failed to show that the right was clearly established.

An excessive force claim involves two prongs: (1) an objective prong that asks if the alleged wrongdoing was objectively harmful enough to establish a constitutional violation, and (2) a subjective prong under which the plaintiff must show that the officials acted with a sufficiently culpable state of mind. Because the record demonstrates the prison officials inadvertently exposed the prisoners to gas, they could not have done so with malicious or sadistic intent. Redmond argues a jury could infer the officers intended to gas all the prisoners, not just Hill, because the officers knew the HVAC unit existed, knew the harmful effects of CS gas, knew the gas should not be deployed in small spaces near buildings and hospitals because it could easily disperse, and would have seen the HVAC unit because it was large and conspicuous. The Tenth Circuit concluded that no reasonable juror could believe that the officers intended to expose any prisoner besides Hill to gas. The gas getting drawn into the intake vent, moreover, caused significant trouble for the officials. The gas went into administrative areas—thus exposing those prison officials to gas – and required a large-scale evacuation of the prison. Given all this, Nicholes’s and Powell’s generalized knowledge about the HVAC system and CS gas’s intended uses and effects are insufficient to create a jury question about their intent.

To determine whether prison officials applied force maliciously and sadistically or, rather, in good faith, the Circuit considered the need for the force, and whether the officers used a disproportionate amount of force. The Circuit initially concluded the prison officials needed to use force. Hill had, after all, locked himself inside the recreation yard and refused to comply with prison officials’ orders. The record demonstrates the officials inadvertently exposed the other prisoners to gas. So the question, then, is whether it was disproportionate to use CS gas to secure Hill, when officers did not realize other prisoners would be incidentally exposed to the gas as well. The Tenth Circuit concluded it was not disproportionately forceful to use CS gas.

Even assuming a constitutional violation occurred, the Tenth Circuit determined the officers would still be entitled to qualified immunity because no case clearly establishes this right. Nicholes and Powell are entitled to qualified immunity on the claim they violated the Eighth Amendment by exposing the prisoners to CS gas. Redmond cannot establish that the officers violated the Eighth Amendment and, even assuming they did, the right would not be clearly established.

Redmond next contended Powell acted with deliberate indifference to prisoners’ serious medical needs in violation of the Eighth Amendment. To establish an Eighth Amendment claim based on inadequate medical care, the prisoner must prove both an objective component and a subjective component. The objective component requires showing the alleged injury is “sufficiently serious.” A delay in medical care is only sufficiently serious if “the plaintiff can show the delay resulted in substantial harm.” The subjective component requires showing the prison official knew the inmate faced a substantial risk of harm and disregarded that risk by failing to take reasonable measures to abate it. The subjective prong is met if prison officials intentionally deny or delay access to medical care or intentionally interfere with the treatment once prescribed. The Circuit found that Redmond failed to meet his burden.

The Tenth Circuit affirmed the district court’s grant of qualified immunity to the officers.

Colorado Court of Appeals: Trial Court’s Late Imposition of Drug Offender Surcharge Did Not Violate Double Jeopardy

The Colorado Court of Appeals issued its opinion in People v. Yeadon on Thursday, July 27, 2018.

Criminal Law—Driving Under Restraint—Failure to Report an Accident or Return to the Scene—Possession—Methamphetamine—Evidence—Prosecutorial Misconduct—Drug Offender Surcharge—Illegal Sentence—Double Jeopardy.

Police officers responded to a rollover crash where the driver had abandoned the vehicle. The car had been reported stolen two weeks earlier. After an expert matched Yeadon’s DNA to the deployed driver’s airbag in the crashed vehicle, a jury found Yeadon guilty of driving under restraint, failure to report an accident or return to the scene, and possession of less than two grams of a controlled substance (methamphetamine), which was found in the crashed vehicle. The district court sentenced Yeadon to 16 months in the custody of the Department of Corrections and, 11 days later, imposed a $1,250 drug offender surcharge.

On appeal, Yeadon contended that the prosecution presented insufficient evidence to support his conviction for possession. Here, the CBI expert testified that Yeadon was the major source of the DNA found on the driver’s side airbag and that such evidence suggested that he was sitting in the driver’s seat when the airbag deployed. Therefore, the prosecution presented sufficient evidence that Yeadon was the driver of the car at the time of the crash. Further, the evidence showed that Yeadon was in close proximity to the bag of methamphetamine and the scale found on the front seat, and that he fled from the accident. There was sufficient evidence to support Yeadon’s conviction for possession of less than two grams of a controlled substance.

Yeadon also argued that certain statements made by the prosecutor during closing argument constituted misconduct. However, the prosecution’s comments were reasonably supported by the evidence and did not improperly affect the verdict.

Yeadon further argued that the district court’s late imposition of the drug offender surcharge violated his right against double jeopardy. Because C.R.S. § 18-19-103(1) mandates that the drug offender surcharge be imposed in all cases in which a defendant is convicted of a drug offense, failure to impose the surcharge renders a sentence illegal. Yeadon’s sentence did not include the surcharge and was not accompanied by a district court finding of his financial inability to pay, so the sentence was contrary to the statute and illegal, and the district court was required to correct defendant’s sentence by including the surcharge. The late imposition of the surcharge was a permissible correction to an illegal sentence and thus did not violate Yeadon’s double jeopardy rights.

The judgment and sentence were affirmed and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: States Have Legitimate Interest in Regulating Election Processes

The Tenth Circuit Court of Appeals issued its opinion in Utah Republican Party v. Cox on March 20, 2018.

The Utah Republican Party (URP) sued Utah Lieutenant Governor Spencer Cox in his official capacity, alleging that two aspects of the Utah Elections Amendments Act of 2014, commonly known as SB54, violated URP’s freedom of association under the First Amendment, as applied to the states by the Fourteenth Amendment. The two challenged sections (1) require parties to allow candidates to qualify for the primary ballot through either the nominating convention or by gathering signatures, or both (the “Either or Both Provision”); and (2) require candidates pursuing the primary ballot in State House and State Senate elections through a signature gathering method to collect a set number of signatures (the “Signature Requirement”). In two separate orders, the United States District Court for the District of Utah balanced URP’s First Amendment right of association against the state’s interest in managing and regulating elections, and rejected URP’s claims. Reconducting that balancing de novo on appeal, the Tenth Circuit affirmed.

There were two lawsuits associated with this issue. For the first lawsuit, URP was joined by the Constitutional Party of Utah (CPU) and they sought an injunction and declaratory judgement that the SB54 law was unconstitutional as applied to URP and challenging the Signature Requirement. The district court denied URP and CPU and ruled that none of the alleged constitutional burdens were severe save for the Unaffiliated Voter Provision, which was not yet ripe for review, and the court denied the request for a preliminary injunction. This ruling invalidated the law’s Unaffiliated Voter Provision, but upheld the Signature Requirement, the Either or Both Provision, and all other aspects of SB54. The rulings of the first lawsuit were not addressed in this appeal.

In the second lawsuit, URP sought declaratory and injunctive relief that SB54 was unconstitutional, arguing that it violated its freedom of association under the First and Fourteenth Amendments, and claiming that the state should be judicially estopped from advancing an interpretation of the Either or Both Provision that differed from the one it advanced in the first lawsuit. The Utah Democratic Party (UPD) intervened as co-plaintiff, defending against the possibility that portions of the law would apply to one party but not the other, and arguing that URPs bylaws violated SB54.

In February 2016, the district court certified two questions of state law to the Utah Supreme Court. The first requested that court’s interpretation of the Either or Both Provision, asking whether that provision meant the candidate member or the party had the right to choose which—or both—of the qualification processes to use. The Utah Supreme Court replied that the Either or Both Provision allows the candidate member, not the party, to select which of those two paths to follow in an effort to be certified to the primary ballot. The second question, certified at the request of UDP, was what would happen if a party elects to become a QPP under Utah law, but fails to comply with the requirements of that status. The Utah Supreme Court declined to answer the second question, finding it not ripe for review because it was not yet clear whether URP was going to comply with SB54.

After the Utah Supreme Court answered the certified questions, the district court ruled on the remaining issues relating to the Either or Both Provision. It first held that URP was not precluded from challenging the constitutionality of the Either or Both Provision, and that the Either or Both Provision—as interpreted by the Utah Supreme Court—did not infringe on URP’s First Amendment right of association. Finally, the court rejected URP’s claim that SB54 was the result of impermissible viewpoint discrimination, and then the court granted summary judgment for the state. URP timely appealed the district court’s grant of summary judgment. UDP subsequently cross-appealed, challenging the district court’s denial of judgment on the pleadings based on assertions of claim preclusion, issue preclusion, and claim splitting, and also the portions of the district court’s opinion which purport to invalidate URP’s bylaws and constitution to the extent those provisions conflict with SB54. The Tenth Circuit consolidated the related appeals and exercised jurisdiction under 28 U.S.C. § 1291.

For this appeal, two primary issues were presented. First, URP challenged the district court’s decision to uphold the Either or Both Provision as a constitutional electoral regulation. Second, URP argued that the district court erred in concluding that the number of signatures required in the signature requirements for State House and State Senate are not unconstitutionally burdensome. The district court granted summary judgment for the state and against URP on both these issues pursuant to Rule 56(f). On appeal, the Tenth Circuit addressed claims raised by UDP, and the conduct of URP counsel Marcus Mumford.

The Tenth Circuit reviewed the district court’s summary judgment de novo. The Tenth Circuit affirmed the district court’s grant of summary judgment for the Lieutenant Governor on both the Either or Both Provision and the Signature Requirements, concluded that UDP’s claims were not ripe for review, and declined to pursue sanctions against Mr. Mumford.

For the “Either or Both Provision,” SB54 states that a political party that decides to register as a Qualified Political Party (QPP), and is eligible to maintain its caucus system, must also allow its members to “seek the . . . party’s nomination for any elective office by the member choosing to seek the nomination by either or both of the following methods: (i) seeking the nomination through the [the party’s] convention process . . . (ii) seeking the nomination by collecting signatures.” Utah Code § 20A-9-101(12)(c) (emphasis added). On appeal, URP argued that this provision creates an unconstitutional burden on its freedom of association under the First and Fourteenth Amendments.

The Tenth Circuit took “great care to scrutinize any electoral regulation” that would appear to restrict access to the ballot and the ballot box thereby hindering individual freedoms and separation of powers. The Constitution grants states the right to prescribe “[t]he Times, Places and Manner of Holding Elections for Senators and Representatives,” Art I, § 4, cl. 1, and the Supreme Court has held that states enjoy similar authority to regulate their own elections. The Tenth Circuit acknowledged that regulations invariably impose burdens.

This case addressed the method by which a QPP selects its nominee to appear on the general election ballot for state and federal offices, which impacts the constitutional interests of both the political party and the state. The political parties’ First Amendment rights of association have to be balanced against the state’s role in structuring and monitoring the election process. URP argued that SB54 infringes on its First Amendment associational rights by forcing it to adopt a candidate-selection process that differed from its preferred process. However, the Supreme Court has recognized that when political parties become involved in a state-administered primary election, the state acquires a legitimate interest in regulating the manner in which that election unfolds—subject only to the same interest-balancing that occurs throughout the Court’s electoral jurisprudence. States have a manifest interest in a party’s actual nomination and election of an individual because that individual will swear to protect the Constitution, not the Party, and to represent all residents in his or her district. The Supreme Court has recognized the role of the state in primary elections and held that state-administered primary elections are subject to congressional and state regulations.

The Tenth Circuit determined that SB54 does not regulate URP’s internal process, and determined that the “Either or Both Provision” was only minimally burdensome, especially since URP’s traditional caucus systems were maintained as part of a compromise when SB54 was passed. The Circuit did not find that the “Either or Both Provision” left the party vulnerable to a nominee with whom it does not agree.

The Circuit concluded that “SB54 does not impose a severe burden on the URP by potentially allowing the nomination of a candidate with whom the URP leadership disagrees. Therefore, in recognition of the Supreme Court’s repeated and un-recanted dicta, we hold that the Either or Both Provision is at most only a minimal burden on the URP’s First Amendment associational rights.”

The Circuit also evaluated the state’s interest and stated “When an electoral provision ‘places no heavy burden on associational rights,’ as we hold the Either or Both Provision does not, ‘a State’s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.’”

When balancing the burden on the Party against the interest of the State, the Circuit found that the state’s interests in promulgating SB54 predominated over the minimal burdens imposed upon URP. The Tenth Circuit affirmed the district court’s holding that the “Either or Both Provision” is a constitutional exercise of the state’s regulatory authority.

The second aspect of the appeal related to the “Signature Gathering Requirement.” URP argued that SB54 was unconstitutional because of overly burdensome signature requirements for State House and State Senate. The Circuit concluded “that the Signature Requirements—while a burden—are not unconstitutional under the Anderson-Burdick balancing test as applied to the URP.”

The Circuit found that the “Signature Requirement” was constitutional because it provided two methods (at the nominating caucus or by gathering signatures) for candidates to qualify for the primary ballot for a QPP.

URP also argued that the number of signatures required “severely burden[ed] its right of association with potential candidates of its party and cannot be saved as reasonably calculated to serve a compelling state interest.” The Circuit found that petition requirements are a constitutional method of serving a state’s legitimate interest in illustrating candidate support before adding the candidate to a ballot. When the Circuit evaluated at the total Utah Election Code, it did not find that URP’s First Amendment right of association was violated. The Tenth Circuit Court of Appeals upheld that Utah’s legitimate interest in requiring a candidate to demonstrate a minimum degree of support in terms of gathering 1,000 or 2,000 signatures on a petition before being placed on the primary ballot for the State House or State Senate was sufficient to outweigh the provision’s minimal burdens on the URP. Therefore, it affirmed the district court’s ruling that the challenged Signature Requirements do not constitute an unconstitutional burden on the URP.

UPD intervened as a plaintiff to ““ensure [the State] appl[ied] the laws equally to all Utahns, no matter what political party, if any, they choose to join.” The Circuit did not reach merits of UPD’s claim because it had already determined URP’s constitutional claims failed.

Lastly, the Tenth Circuit addressed the conduct of Mr. Mumford, an attorney for URP, who had been placed on notice that “the judges assigned to decide this appeal on the merits may wish to address in greater depth counsel’s noncompliance with the court’s rules.” Mr. Mumford violated a series of procedural and timeliness requirements. The Circuit determined that if Mr. Mumford’s conduct continued in future appeals, it would be forced to take action against Mr. Mumford.

The Tenth Circuit concluded that states must have flexibility to enact reasonable, common sense regulations designed to provide order and legitimacy to the electoral process. SB54, as modified in the first lawsuit, struck an appropriate balance between protecting the interests of the state in managing elections and allowing the URP and all other political associations and individuals across Utah to express their preferences and values in a democratic fashion and to form associations as protected by the First Amendment. Accordingly, the Tenth Circuit Court of Appeals affirmed.

Chief Judge Tymkovich concurred in part and dissented in part. Judge Tymkovich stated, “In this case, the Utah Republican Party claims that Utah’s 2014 election law reforms purposely try to change the substantive type of candidates the Party nominates, all the while masquerading as mere procedural reform. If true, such a project would severely burden the Party’s associational rights, and without compelling justifications, it would be unconstitutional. Because that is exactly what Utah has tried to do and because Utah has not provided adequate justification for placing such a burden on the Party’s associational rights, I would hold Utah’s election law violates the First Amendment. Though I dissent for this reason, I concur with the majority that the number of signatures required by the law’s signature-gathering provision does not violate the Constitution.”

Colorado Court of Appeals: Indefinite Stay of Appeal Denied where Defendant Found Legally Incompetent After Notice of Appeal Filed

The Colorado Court of Appeals issued its opinion in People v. Liggett on Thursday, June 12, 2018.

Competency to Proceed—Stay of Appellate Proceedings—Jurisdiction—Restoration Proceedings—Right to Counsel—Waiver.

This is a direct appeal of two cases, first degree murder after deliberation and revocation of probation (based on the murder conviction). Based on Liggett’s incompetence, his counsel requested an indefinite stay of the appellate proceedings, a stay of the ruling on Liggett’s request to terminate counsel’s representation and to dismiss the appeal, and a remand of the cases to the district court for competency restoration proceedings.

On appeal, Liggett’s counsel contended that the direct appeal should be stayed indefinitely because proceeding while Liggett is incompetent will violate his Sixth Amendment right to counsel and his Fifth and Fourteenth Amendment rights to due process of law. An incompetent defendant’s direct appeal should proceed, despite incompetence, if the defendant is provided a postconviction remedy to raise issues not raised in the direct appeal due to his incompetence. The court of appeals held that Liggett must be permitted to raise in a postconviction motion any matter not raised in the direct appeal due to his incompetence.

The People contended that the direct appeal divested the district court of jurisdiction and that the appeal and restoration proceedings cannot occur simultaneously. They also argued that the district court has no authority to order the Department of Corrections (DOC), in whose custody Liggett resides, to restore him to competency. The People agreed that Liggett is incompetent and that an incompetent defendant cannot waive the right to counsel on direct appeal. Thus, Liggett’s incompetence precludes the court from ruling on his pending requests to terminate counsel and dismiss the appeal, and a limited remand to restore Liggett’s competence is necessary.

A stay of the ruling on Liggett’s requests to terminate counsel and dismiss the appeal was granted. The request for indefinite stay of the appellate proceedings was denied. The request for limited remand to restore Liggett to competence was granted and the case was remanded to the district court for that limited purpose.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: No Error in Court’s Refusal to Release Sealed Records to Newspaper

The Colorado Supreme Court issued its opinion in In re People v. Owens on Monday, June 11, 2018.

Constitutional Law — Public Access to Court Records.

In this original proceeding, the supreme court considered and rejected a news organization’s contention that a trial court erred in refusing to grant public access to certain records maintained under seal in a capital murder case. The court emphasized that, while presumptive access to judicial proceedings is a right recognized under both the state and federal constitutions, neither the U.S. Supreme Court nor the Colorado Supreme Court has ever held that records filed with a court are treated the same way. The court thus declined the invitation to hold that unfettered access to criminal justice records is guaranteed by either the First Amendment or Article II, section 10 of the Colorado Constitution.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Defendant’s Three Stalking Convictions for Single Offense Must Be Merged

The Colorado Court of Appeals issued its opinion in People v. Wagner on Thursday, May 18, 2018.

Stalking—Merger—Evidence—Unanimity Jury Instruction—Double Jeopardy.

Wagner was arrested and charged with three counts of stalking his ex-wife. He was found guilty on all counts and sentenced to 90 days in jail on each count with all jail terms to run consecutively, and six years of probation on each count with all probation terms to run consecutively.

On appeal, the People conceded that two of Wagner’s stalking convictions should have merged at sentencing. The court of appeals determined that the People did not prove factually distinct instances of conduct sufficient to support multiple stalking convictions. The Double Jeopardy Clauses of the U.S. and Colorado Constitutions required that defendant’s three stalking convictions merge. The court concluded that defendant was charged with and convicted of multiplicitous counts and it was plainly erroneous for the trial court to enter three stalking convictions.

Wagner argued that there was insufficient evidence to support all three of his convictions. However, the evidence was sufficient to show both that Wagner’s conduct would have caused a reasonable person serious emotional distress and that it caused the victim serious emotional distress. Additionally, the evidence was sufficient for the jury to find that Wagner made credible threats.

Wagner further contended that the trial court erred in rejecting a defense-tendered unanimity jury instruction or, in the alternative, failing to require the prosecution to elect between the alleged credible threats. The prosecution presented evidence of numerous occasions on which Wagner contacted and followed the victim, any number of which could have supported a stalking conviction. The defense did not argue that Wagner did not commit the acts about which the victim and witnesses testified, and the jury would be likely to agree either that all of the acts occurred or that none occurred. Therefore, the prosecution was not required to elect the acts on which it was relying to prove that Wagner had made a credible threat, nor was the trial court required to give a unanimity instruction.

Two of the counts were vacated. The case was remanded for the trial court to merge the convictions and correct the mittimus. The judgment was otherwise affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Water Court Lacked Subject Matter Jurisdiction Over Constitutionality of Groundwater Statute

The Colorado Supreme Court issued its opinion in Jim Hutton Educational Foundation v. Rein on Monday, May 21, 2018.

Water Law—Jurisdiction.

The Jim Hutton Educational Foundation, a surface-water user, claimed that a statute prohibiting any challenge to a designated groundwater basin that would alter the basin’s boundaries to exclude a permitted well is unconstitutional. The water court dismissed that claim for lack of subject matter jurisdiction, concluding that the surface-water user had to first satisfy the Colorado Groundwater Commission that the water at issue was not designated groundwater. The supreme court concluded that, because jurisdiction vests in the water court only if the Colorado Groundwater Commission first concludes that the water at issue is designated groundwater, the water court properly dismissed the constitutional claim for lack of subject matter jurisdiction.

The court affirmed the water court’s ruling.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Oil and Gas Commission’s Warrantless Inspections of Locations Does Not Violate Constitution

The Colorado Court of Appeals issued its opinion in Maralex Resources, Inc. v. Colorado Oil and Gas Conservation Commission on Thursday, March 22, 2018.

Administrative Law—Constitutional Law—Fourth Amendment—Search and Seizure—Warrantless Search—Administrative Search.

O’Hare was the president of Maralex, a Colorado corporation licensed to conduct oil and gas operations in the state. Maralex operated over 200 oil wells in Colorado. Maralex operated wells located on the O’Hares’ ranch. The O’Hares owned both the surface and mineral rights, but leased the mineral rights to Maralex. The Colorado Oil and Gas Conservation Commission (COGCC) obtained an administrative search warrant authorizing entry and inspection of certain Maralex locations, and after conducting inspections, COGCC issued multiple notices of alleged violations to Maralex and O’Hare. After an administrative hearing, the COGCC issued an order finding violation (OFV), concluding that Maralex had violated several rules, and Maralex was assessed a penalty of $94,000. Maralex and the O’Hares sought judicial review of COGCC’s order. The district court denied their request for injunctive and declaratory relief and affirmed the OFV in full.

On appeal, Maralex and the O’Hares contended that COGCC Rule 204 permitting unannounced, warrantless searches of oil and gas locations violated the U.S. and Colorado Constitutions. There are exceptions to the requirement that searches be conducted pursuant to a warrant issued upon probable cause. One exception is in the context of administrative searches made pursuant to a regulatory scheme of a closely regulated industry. A warrantless inspection conducted pursuant to a regulatory scheme of a closely regulated industry is reasonable if (1) the scheme is informed by a substantial government interest, (2) it is necessary to further that government interest, and (3) the scheme provides a “constitutionally adequate substitute” for a warrant. The Court of Appeals concluded that the oil and gas industry is closely regulated; the state has a substantial interest in regulating oil and gas operations; warrantless searches are necessary to further the state’s substantial interest in the safe and efficient operation of oil and gas facilities; and COGCC’s inspection regime provides a constitutionally adequate substitute for a warrant. Therefore, warrantless inspections made pursuant to Rule 204 do not violate either the Colorado or U.S. Constitution.

The O’Hares also raised constitutional challenges to Rule 204 in their capacity as surface owners of land including oil and gas locations subject to COGCC oversight. They first contended that Rule 204 is unconstitutional as applied to surface owners because, unlike operators of oil and gas locations, they have an expectation of privacy in the property searched. In this case, the O’Hares granted Maralex a very broad set of rights under the surface agreement. By granting the corporation an unlimited easement on the surface estate, the O’Hares substantially lessened any objective expectation of privacy in the property over which they willingly transferred access and control rights to Maralex. The Court also rejected the O’Hares’ broader challenge to the facial constitutionality of Rule 204 as to all surface owners, concluding that where a surface owner grants a mineral lessee a broad surface easement, warrantless entry of the surface estate would not necessarily violate the surface owner’s rights.

Maralex also challenged the COGCC’s order concluding that it violated multiple rules in relation to certain wells. The COGCC’s finding that Maralex violated Rule 204 on March 20, 2014 was arbitrary and capricious because the inspection supervisor agreed to delay the inspection until the next day. Thus, there was not substantial evidence to support COGCC’s determination that Maralex failed to provide access to its wells at all reasonable times. As to the remaining dates at issue, the evidence supports COGCC’s determination that Maralex violated Rule 204 for the duration of that six-day period.

The Court also found record support for COGCC’s determination that Maralex violated Rules 603.f, 905(a), and 907(a)(1).

The district court’s order affirming that part of the OFV concluding Maralex violated Rule 204 on March 20, 2014 and the corresponding penalty were reversed. In all other respects, the order was affirmed. The case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Trial Court Did Not Abuse Discretion by Failing to Appoint GAL Sua Sponte

The Colorado Supreme Court issued its opinion in Ybanez v. People on Monday, March 12, 2018.

Ybanez petitioned for review of the court of appeals’ judgment affirming his conviction of first degree murder and directing that his sentence of life without the possibility of parole be modified only to the extent of permitting the possibility of parole after forty years. See People v. Ybanez, No. 11CA0434 (Colo. App. Feb. 13, 2014). In an appeal of his conviction and sentence, combined with an appeal of the partial denial of his motion for postconviction relief, the intermediate appellate court rejected Ybanez’s assertions that the trial court abused its discretion and violated his constitutional rights by failing to sua sponte appoint a guardian ad litem; that he was denied the effective assistance of counsel both because his counsel’s performance was adversely affected by a non-waivable conflict of interest under which that counsel labored and because he was prejudiced by a deficient performance by his counsel; and that he was entitled to an individualized determination regarding the length of his sentence rather than merely the possibility of parole after forty years.

The supreme court affirmed the judgment of the court of appeals and remanded the case with directions to return it to the trial court for resentencing consistent with the supreme court opinion, for the reasons that Ybanez lacked any constitutional right to a guardian ad litem and the trial court did not abuse its discretion in not appointing one as permitted by statute; that Ybanez failed to demonstrate either an adverse effect resulting from an actual conflict of interest, even if his counsel actually labored under a conflict, or that he was prejudiced by his counsel’s performance, even if it actually fell below the required standard of competent representation; and that Ybanez is constitutionally and statutorily entitled only to an individualized determination whether life without the possibility of parole or life with the possibility of parole after forty years is the appropriate sentence.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: GPS Data from Ankle Monitor Properly Admitted to Show Defendant’s Location at Time of Robbery

The Colorado Court of Appeals issued its opinion in People v. Campbell on Thursday, January 25, 2018.

Constitutional Law—Fourth Amendment—Illegal Search and Seizure—Reasonable Suspicion—Reasonable Expectation of Privacy—GPS Data—Identification.

Campbell’s vehicle was pulled over and Campbell was arrested on suspicion of burglary. Officers searched Campbell and found he had on an ankle monitor, which he was wearing at the request of a private bail bondsman. A detective later requested and received the global positioning system (GPS) data from the company owning the ankle monitor. The GPS data revealed that, within the month before the victim’s home was broken into, Campbell had been at the location of two other homes when they were burglarized. The GPS data also placed Campbell at the victim’s house at the time of the break-in. Campbell was convicted of two counts of second degree burglary, one count of attempted second-degree burglary, and three counts of criminal mischief.

On appeal, Campbell contended that the trial court erred in denying his motion to suppress evidence obtained as a result of an illegal seizure and search of his person. The officers had reasonable suspicion to stop Campbell based on his violation of traffic laws. Further, the officers had probable cause to believe defendant was committing the felony of vehicular eluding, and therefore constitutionally arrested and searched him. The trial court did not err in denying Campbell’s motion to suppress evidence obtained as a result of his seizure and search.

Campbell also contended that the trial court erred in denying his motion to suppress GPS data obtained from the ankle monitor. The court of appeals concluded, as a matter of first impression, that defendant did not have a reasonable expectation of privacy in the GPS location data generated by the ankle monitor under the U.S. or Colorado Constitutions. Defendant voluntarily disclosed the data, which was transmitted to and collected by a third party that voluntarily gave the data to law enforcement officials. Further, the trial court did not err in admitting the GPS evidence without first conducting a hearing pursuant to People v. Shreck, 22 P. 3d 68 (Colo. 2001), to assess its reliability, because GPS technology is prevalent and widely regarded as reliable.

Campbell additionally contended that the trial court erred in denying his motion to suppress the victim’s identification because the identification was unduly suggestive and unreliable. The victim had the opportunity to see the intruder for one or two seconds in a well-lit area while the two men were approximately 10 feet apart before Campbell ran out of the house. Although the victim was not wearing contact lenses or eyeglasses, he felt he was able to see the intruder sufficiently to identify him. The victim immediately called 911 and described Campbell. The police brought Campbell to the scene handcuffed in the back of a police vehicle for a one-on-one identification. The identification occurred less than an hour after the victim saw the intruder. Although the lineup was suggestive, it was reliable under the totality of the circumstances.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Complaint Against Planned Parenthood Failed to State a Claim

The Colorado Supreme Court issued its opinion in Norton v. Rocky Mountain Planned Parenthood, Inc. on Monday, January 22, 2018.

Constitutional Law—Colo. Const. Art. V, § 50—Motion to Dismiss.

In this case, the Colorado Supreme Court considered whether petitioner’s complaint alleged a violation of article V, section 50 of the Colorado Constitution sufficient to overcome a motion to dismiss. The court held that to state a claim for relief under section 50, a complaint must allege that the state made a payment to a person or entity—whether directly to that person or entity, or indirectly through an intermediary—for the purpose of compensating them for performing an abortion and that such an abortion was actually performed. Because petitioner’s complaint did not allege that the state made such a payment, the complaint failed to state a claim for relief under C.R.C.P. 12(b)(5). Accordingly, the court affirmed the judgment of the court of appeals.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Officers Acquired Reasonable Suspicion By the Time Stop Became Investigatory

The Colorado Supreme Court issued its opinion in People v. Fields and People v. Reed on Tuesday, January 16, 2018.

Contact-Short-of-a-Stop—Reasonable Articulable Suspicion—Probable Cause—Inevitable Discovery.

The People brought interlocutory appeals, as authorized by C.R.S. § 16-12-102(2) and C.A.R. 4.1, from the district court’s orders suppressing contraband and statements in the related prosecutions of defendants Fields and Reed. The district court found that the initial contact with both defendants in a parked car constituted an investigatory stop for which the police lacked reasonable articulable suspicion, and it suppressed all evidence acquired after the point of initial contact as the fruit of an unlawful stop.

The supreme court reversed the district court’s suppression orders and remanded the case for further proceedings. The court held that the district court failed to appreciate that the officers’ initial contact with defendants fell short of a stop. By the point at which the contact progressed to a seizure within the contemplation of the Fourth Amendment, the officers had acquired the requisite reasonable articulable suspicion, and subsequently probable cause, to justify their investigative conduct, or inevitably would have lawfully arrested defendants and discovered the contraband.

Summary provided courtesy of Colorado Lawyer.