January 18, 2019

Colorado Court of Appeals: Partial Closure of Courtroom Without Specific Findings was Structural Error

The Colorado Court of Appeals issued its opinion in People v. Irving on Thursday, January 10, 2019.

Constitutional Law—Sixth Amendment—Public Trial—Courtroom Closure.

Defendant was charged with first degree murder and conspiracy to commit murder in connection with a gang-related dispute. During his trial, the prosecutor requested that the court exclude defendant’s mother from the courtroom during his former girlfriend’s testimony because, according to the prosecution, defendant’s mother had urged the girlfriend not to cooperate with the police about four years earlier. The trial court granted the prosecution’s request and partially closed the courtroom during the testimony of defendant’s former girlfriend. Defendant was convicted of second degree murder and conspiracy to commit murder.

On appeal, defendant contended that the courtroom closure violated his constitutional right to a public trial. The proponent of a courtroom closure must demonstrate not only an overriding interest but also a substantial probability that the identified interest will be prejudiced by an open courtroom. The need to protect witnesses from intimidation constitutes an overriding interest. Here, the alleged intimidation was based on a single, ambiguous, four-year-old statement that the girlfriend later disregarded. The trial court may have identified an overriding interest, but it failed to make any finding that the interest in preventing witness intimidation would be prejudiced unless defendant’s mother was excluded from the courtroom during the girlfriend’s testimony. Therefore, the court erred in partially closing the courtroom and violated defendant’s constitutional right to a public trial. Further, the error was structural.

The convictions were reversed and the case was remanded for a new trial.

Summary provided courtesy ofColorado Lawyer.

Colorado Supreme Court: Restitution Not Available for Losses for Which the Defendant Was Not Convicted

The Colorado Supreme Court issued its opinion in Cowan v. People on Monday, December 10, 2018.

Sentencing—Restitution—Compensable Losses.
The supreme court held that Colorado’s restitution statutes do not allow trial courts to order restitution for pecuniary losses caused by conduct that formed the basis of a charge of which the defendant has been acquitted. Even where the defendant has been convicted of a separate charge, this state’s restitution statutes do not permit a trial court to impose restitution for losses suffered as a result of the acquitted conduct. The prosecution’s contrary construction would both violate well-settled rules of statutory interpretation and run afoul of the Fourteenth Amendment’s guarantee of procedural due process. Because the court of appeals affirmed the order requiring defendant to pay restitution for losses caused by conduct supporting an acquitted charge, the supreme court reversed that court’s decision. The matter was remanded to the court of appeals for further proceedings consistent with this opinion.


Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Anonymous Juror’s Response to Post-Verdict Attorney Evaluation Inadmissible Under CRE 606(b)

The Colorado Court of Appeals issued its opinion in People v. Burke on Thursday, November 15, 2018.

Post-Verdict Juror Attorney EvaluationMotion for New TrialCRE 606(b).

Burke was convicted of burglary. After trial, the jury commissioner sent an attorney performance evaluation form to the jurors. Responses are anonymous. On one of the responses directed to Burke’s counsel, an anonymous juror wrote, “Hard to believe a client when they choose to remain silient [sic].”  Burke moved for a new trial, arguing that at least one juror had disregarded the court’s instructions and based her decision on an impermissible basis. The trial court found the statement was evidence there had been jury misconduct and concluded that CRE 606(b) did not render the statement inadmissible. Without taking additional evidence, the trial court granted the motion for a new trial.

On appeal, the People argued that CRE 606(b) precluded the trial court from considering the anonymous juror’s statement as a basis to grant a new trial. The rule bars admission of any juror testimony or statement to impeach a verdict where the testimony or statement concerns what occurred during jury deliberations, with three exceptions. The anonymous juror’s statement was inadmissible under CRE 606(b) and the exceptions were not applicable. The trial court erred in granting the motion for a new trial.

Burke argued that the trial court’s order should be affirmed because the juror intentionally concealed bias during voir dire. But because the statement was inadmissible, it cannot be used to impeach a verdict on any ground, including a claim that a juror concealed bias during voir dire.

Finally, Burke argued that the court of appeals should recognize a constitutional exception to CRE 606(b) where the juror’s statement reflects a bias against the defendant for the exercise of a fundamental constitutional right. The U.S. Supreme Court’s recent recognition of a limited constitutional exception to Rule 606(b) in a case of racial animus does not support an exception under the circumstances of this case.

The order for a new trial was reversed and the case was remanded for reinstatement of the jury’s verdict.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Then-Applicable Competency Statute for Juveniles Not Unconstitutional Facially or As Applied

The Colorado Court of Appeals issued its opinion in People in Interest of A.C.E.-D. on Thursday, November 15, 2018.

Juvenile Delinquency—Competency—Evidence.

Following a complaint of shoplifting, police officers contacted A.C.E-D. He confessed, led them to the merchandise, and was charged with misdemeanor theft. In a separate case, A.C.E-D. was charged with misdemeanor harassment based on Facebook messages sent to his ex-girlfriend. In both cases, A.C.E-D. pleaded guilty. Before sentencing, he moved to determine competency and later moved to withdraw his guilty pleas. The court ordered a competency evaluation, found A.C.E-D. competent, allowed A.C.E-D. to withdraw his guilty pleas, and conducted a bench trial. The court found A.C.E-D. guilty of the charges and adjudicated him a juvenile delinquent.

On appeal, A.C.E-D. argued that the previous iteration of the competency statute for juveniles, C.R.S. § 19-2-1301(2), was facially unconstitutional or unconstitutional as applied because it incorporated the definition of “incompetent to proceed” for adults in criminal proceedings set out in C.R.S. § 16-8.5-101(11), which did not allow the court to consider A.C.E-D.’s age and maturity. A juvenile adjudication need only be fundamentally fair, and using the same competency test for both juveniles and adults is fundamentally fair. Because A.C.E-D. failed to show that under no set of circumstances would the statute be constitutional, the trial court’s finding that the statute was not facially invalid was proper.

A.C.E-D. also argued that that statute was unconstitutional as applied to him because the trial court’s application precluded him from being declared incompetent since he didn’t prove he had a mental or developmental disability. Sufficient evidence in the record supports the trial court’s finding of competency under Dusky v. United States, 362 U.S. 402, 402 (1960), and thus A.C.E-D. did not prove beyond a reasonable doubt that the trial court unconstitutionally applied the statute to him.

A.C.E-D. also argued that the trial court erred in admitting Facebook messages because the prosecution did not provide sufficient evidence to show that he wrote and sent the Facebook messages. The prosecution met the heightened standard for Facebook messages, and A.C.E-D’s contrary evidence goes to the weight of the messages. The trial court did not abuse its discretion in admitting the messages.

The adjudications were affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Statutes Limiting Sale, Transfer, and Possession of Large-Capacity Magazines Facially Constitutional

The Colorado Court of Appeals issued its opinion in Rocky Mountain Gun Owners v. Hickenlooper on Thursday, October 18, 2018.

Constitutional Law—Large-Capacity Magazines—Colorado Constitution—Right to Keep and Bear Arms.

In the wake of the mass shootings at Columbine High School and the Aurora movie theatre, the Colorado General Assembly passed House Bills 13-1224 (HB 1224), limiting large-capacity magazines (LCMs) for firearms, and 13-1229 (HB 1229), expanding mandatory background checks for firearm sales and transfers. HB 1224 added C.R.S.§§ 18-12-301, -302, and -303 (collectively, the statutes), which generally define an LCM as a magazine able to hold more than 15 rounds of ammunition and provide (with exceptions) criminal penalties for their sale, possession, and transfer after July 1, 2013.

Rocky Mountain Gun Owners, the National Association for Gun Rights, Inc., and Sternberg (collectively, plaintiffs) challenged the facial constitutionality of both bills under Colo. Const. art. II, § 13, which affords individuals the right to keep and bear arms. The district court granted the Governor’s C.R.C.P. 12(b)(5) motion to dismiss the complaint for failure to state a claim upon which relief could be granted. On the first appeal, a court of appeals division affirmed with respect to HB 1229, but remanded the case because the district court had erred in dismissing the HB 1224 claim. After a bench trial, the district court found that the statutes were constitutional.

On appeal, plaintiffs contended that the district court erred in finding the statutes constitutional. They argued that the prospective LCM ban should be subject to a heightened standard of review. The Colorado Supreme Court established the “reasonable exercise test” as the standard governing review of a claimed violation of the Colorado right to bear arms.

Plaintiffs also contended that the statutes should be interpreted as unconstitutionally broad because they ban “an overwhelming majority of magazines.” The court applied the reasonable exercise test and determined that the statutes are constitutional as a reasonable exercise of the state’s police power to protect the public’s health and safety because they (1) reasonably further a legitimate governmental interest in reducing mass shooting deaths; (2) are reasonably related to the legislative purpose of reducing mass shooting deaths; and (3) do not sweep constitutionally protected activities within their reach.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Entry of Charge Based on Jury’s Special Interrogatory Answers Violated Defendant’s Constitutional Right to Jury Trial

The Colorado Court of Appeals issued its opinion in People v. Oliver on Thursday, October 4, 2018.

Criminal Law—Possession of a Weapon by a Previous Offender—Right to Jury Trial—Waiver.

Defendant was tried on two felony menacing charges. Before trial, the parties agreed to bifurcate a possession of a weapon by a previous offender (POWPO) count. However, near the end of the trial, defense counsel agreed with the court’s suggestion of using a special interrogatory on possession instead of having a separate trial on the POWPO count after the jury returned its verdict on the menacing counts. Counsel also stipulated that defendant was a previous offender. The jury was not instructed on the POWPO charge. The jury acquitted defendant on one count and hung on the other. Based on the stipulation and the jury’s “yes” answer to the special interrogatory that asked whether defendant had possessed a firearm, the trial court entered a judgment of conviction for POWPO.

On appeal, defendant argued that the trial court directed a verdict on the POWPO charge in violation of his federal and state constitutional rights to a jury trial, which he did not personally waive. To return a verdict, a jury must have been instructed on the offense. Here, even if counsel stipulated to the prior offender element, defendant did not personally waive his right to have the jury return a verdict on the POWPO charge, and the trial court never told the jury that it was deciding the POWPO charge. Therefore, the judgment of conviction on the POWPO charge violated defendant’s constitutional right to a jury trial.

The judgment was reversed and the case was remanded for a new trial on this charge.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Warrantless Search Justified Under Exigent Circumstances Exception

The Colorado Supreme Court issued its opinion in People v. Pappan on Monday, September 10, 2018.

Searches and Seizures—Emergencies and Exigent Circumstances—Plain View Doctrine.

In this interlocutory appeal, the supreme court considered whether the trial court erred in suppressing two laser-sight rifles seized from defendant’s residence during a warrantless search conducted after defendant and two other occupants exited the residence. The court held that the warrantless search was justified under the exigent circumstances exception to the warrant requirement. More specifically, the court concluded that (1) the officers had an objectively reasonable basis to believe there was an immediate need to protect their lives or safety by clearing the residence for other occupants, and (2) the manner and scope of the search was reasonable because it was protective in nature and narrowly tailored to neutralize the threat confronting the officers. The court further held that the seizure of the laser-sight rifles was justified by the plain view doctrine. Accordingly, the decision of the trial court was reversed.

Summary provided courtesy of Colorado Lawyer.

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.