July 17, 2019

Colorado Court of Appeals: All Separations from Base Period Employers Must Be Evaluated to Determine Unemployment Eligibility

The Colorado Court of Appeals issued its opinion in Nagl v. Industrial Claim Appeals Office on Thursday, April 23, 2015.

Unemployment Compensation—CRS § 8-73-108(5)(e)(IV)—Constitutional Right to Travel.

Claimant worked as a front desk agent for Destination Vail Hotel, Inc. He quit this job to be located closer to his girlfriend in Telluride. Claimant found a new position in Telluride, but was subsequently laid off.

Claimant then sought unemployment insurance benefits. A deputy for the division of unemployment insurance denied claimant’s request for benefits based on his employment with Destination Vail Hotel. However, claimant did receive benefits based on his work for his Telluride employer. Claimant appealed, and the hearing officer affirmed the deputy’s decision. The Industrial Claim Appeals Office (Panel) affirmed.

On appeal, claimant contended that the Panel’s decision was inconsistent with the express purpose of the Colorado Employment Security Act (CESA), which is to provide unemployment benefits to persons who are unemployed through no fault of their own. Whether a claimant is entitled to unemployment benefits attributable to wages paid by a particular employer depends on the reason for the separation from that employment. Because it was undisputed that claimant voluntarily quit his employment with Destination Vail Hotel, and thus was at fault for that separation, the hearing officer and the Panel did not err in determining that he was disqualified from receiving benefits from that employer.

Claimant also argued that the move to Telluride was not a disqualifying event under CRS § 8-73-108(4)(n). However, the hearing officer properly limited the proceeding to the circumstances surrounding his Vail job, not his subsequent employer. The fact that he accepted work after leaving the Vail job does not bear on whether he refused to accept work following the termination of his Telluride job. Thus, CRS § 8-73-108(4)(n) does not provide a basis for awarding benefits to claimant based on his employment with Destination Vail Hotel.

Claimant further argued that the hearing officer’s application of CESA violated his right to travel, as protected by the Colorado Constitution, because it effectively penalized his right to move within the state. To succeed on an “as applied” challenge, a party must show that the statute is unconstitutional under the circumstances in which the party acted. Here, the loss of benefits resulting from claimant’s decision to quit his job to move closer to his girlfriend is not a constitutionally significant restriction. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

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: Amended Maliscious Prosecution Decision

The Tenth Circuit Court of Appeals published its opinion in Myers v. Koopman on Wednesday, January 8, 2013.

The court denied the appellee’s Petition for Panel Rehearing but sua sponte amended its December 20, 2013 decision, nunc  pro tunc, by removing a footnote sentence. The former decision was summarized here.

Tenth Circuit: Qualifed Immunity Denial Reversed Because No Constitutional Duty to Release Person Arrested Based on Probable Cause

The Tenth Circuit Court of Appeals published its opinion in Panagoulakos v. Yazzie on Friday, December 20, 2013.

Defendant Officer Patricia Yazzie appealed the district court’s denial of qualified immunity in this § 1983 action alleging wrongful arrest and imprisonment (Count I) and illegal seizure of property (Count II). This is an interlocutory appeal following the district court’s ruling in an action brought by Spero Panagoulakos pursuant to 42 U.S.C. §§ 1983 and 1988, and 28 U.S.C. § 1343.

An Albuquerque police officer pulled over Panagoulakos in a traffic stop. Panagoulakos informed the officer he had a firearm in the vehicle. The officer ran a check and learned Panagoulakos was the subject of a protective order. Officer Yazzie was called to the scene and instructed to take Panagoulakos to the station and confirm the protective order was valid and that it did not contain an exception to the prohibition on firearm possession claimed by Panagoulakos. Yazzie mistakenly believed all orders of protection prohibit firearms possession, but 18 U.S.C. § 922(g) prohibits such possession only when the subject is classified as an “intimate partner.” Yazzie prepared a criminal complaint and had Panagoulakos detained.

The Tenth Circuit stated that to show that Yazzie violated a clearly established constitutional right, Panagoulakos would need to “show that, even though probable cause supported his initial arrest, clearly established law gave fair warning to Officer Yazzie that following her review of the protective order it was her constitutional duty to release him.” Because the majority of courts had never imposed such a duty, the court, in a 2-1 decision, held that Yazzie was entitled to qualified immunity and reversed the district court.


Tenth Circuit: Consent Can Be a Defense to Eighth Amendment Claim Based on Sex Acts Between Prisoner and Custodian

The Tenth Circuit Court of Appeals published its opinion in Graham v. Sheriff of Logan County on Friday, December 20, 2013.

Two prison guards, Jefferies and Mendez, had sexual intercourse with Stacey Graham while she was in solitary confinement at the Logan County Jail in Oklahoma. The guards confessed and were fired immediately. Graham then sought damages in a civil-rights complaint under 42 U.S.C. § 1983 against the two guards and the county sheriff. She alleged a violation of the Eighth Amendment prohibition against cruel and unusual punishment, as applied to the states under the Fourteenth Amendment. The district court granted the defendants’ motion for summary judgment on the ground that the sexual acts were consensual.

On appeal, Graham argued that (1) her consent was a question of fact that must be decided by a jury, and (2) consent was not a valid defense to her claims. Sexual abuse of an inmate by an officer violates the Eighth Amendment and is generally analyzed as an excessive force claim. The test for excessive force has an objective and subjective prong. When a prisoner alleges rape by a prison guard, the prisoner need prove only that the guard forced sex in order to show an Eighth Amendment violation.

In this case, the Tenth Circuit found there was no genuine dispute that the guards did not force Graham to have sex. Graham did not contest that she had participated in sexual conversations with Jefferies for an extended period before the acts in question occurred. She admitted that she flashed Jefferies and wrote him notes that made clear that she wanted to have sexual intercourse with him. She admitted to talking to Mendez about her fantasies, and that she told him to “[b]ring Jefferies” so that they could have a threesome. She did not indicate lack of consent during the event. Although Graham has said that she did not want to have sex with Mendez and that Mendez pushed her head down just before the encounter ended, she has not suggested that she indicated any reluctance to Jefferies or Mendez. Additionally, she did not discuss the significance of Mendez pushing her head down in her opening brief’s argument section.

Graham argued on appeal that a prisoner cannot legally consent to sex with a custodian, so even consensual sex with a prisoner is cruel and unusual punishment. This is a matter of first impression in the Tenth Circuit. The Sixth and Eighth Circuits have held that consensual sex between guards and inmates is not an Eighth Amendment violation. The Ninth Circuit has held that there is a rebuttable presumption of nonconsent that can be rebutted by a showing that the interaction involved no coercive factors. Some district courts have held that consent is not a defense.

The Tenth Circuit held that to prove sexual abuse of a prisoner, some form of coercion by the custodian must be present. The coercion need not be physical. In this case, coercion was not present, so summary judgment was affirmed.

Tenth Circuit: § 1983 Malicious Prosecution Claim Partially Reinstated

The Tenth Circuit Court of Appeals published its opinion in Myers v. Koopman on Friday, December 20, 2013.

Jeremy Myers challenged the district court’s dismissal of his § 1983 malicious prosecution claim alleging violations of his Fourth and Fourteenth Amendment rights. In his complaint, he asserted that Detective Brian Koopman obtained an arrest warrant by fabricating facts to create the illusion of probable cause. As a result, Myers spent three days in custody.

The Tenth Circuit held that the district court correctly dismissed Myers’s Fourteenth Amendment claim because Colorado law provided an adequate remedy in the form of a malicious prosecution tort. If a state actor’s harmful conduct is unauthorized and thus could not be anticipated pre-deprivation, as here, then an adequate post-deprivation remedy—such as a state tort claim—will satisfy due process requirements. The fact that Myers’s state tort remedy was now time-barred did not alter the court’s decision as Myers could have brought that claim in time but did not.

The court held that Myers’s Fourth Amendment claim was improperly dismissed because the court used the wrong underlying tort to provide the § 1983 statute of limitations. Myers correctly styled his claim as one for malicious prosecution, rather than false imprisonment, because he was seized after the institution of legal process. His claim accrued when the underlying criminal proceedings resolved in his favor and he filed his § 1983 claim within two years of that accrual.

The court affirmed dismissal of the Fourteenth Amendment claim and reversed and remanded the dismissal of the Fourth Amendment claim.


Tenth Circuit: Specific Treatment Plan Required Before Court can Order Involuntary Medication of Incompetent Defendant

The Tenth Circuit Court of Appeals published its opinion in United States v. Chavez on Wednesday, November 13, 2013.

Reydecel Chavez was charged with being a felon in possession of a firearm, being an illegal alien in possession of a firearm, and reentry of a removed alien. Chavez was found incompetent to stand trial and he refused antipsychotic medication that would render him competent. The district court ordered Chavez to be involuntarily medicated.

Under United States v. Sell, “the government may involuntarily administer drugs to a mentally ill, non-dangerous defendant in order to render him competent to stand trial only upon a four-part showing. The government must establish that: (1) “important governmental interests are at stake;” (2) the “involuntary medication will significantly further” those interests; (3) the “involuntary medication is necessary to further those interests,” e.g., less intrusive alternative treatments are unlikely to be effective; and (4) the administration of the medication is “medically appropriate” and in the defendant’s best medical interests.”

Chavez argued that the lack of an individualized treatment plan could not satisfy the requirements of Sell. The Tenth Circuit agreed and held that “an order to involuntarily medicate a non-dangerous defendant solely in order to render him competent to stand trial must specify which medications might be administered and their maximum dosages.” Without this information, a court could not be sure any side effects would be unlikely to significantly interfere with the defendant’s ability to assist in his trial defense, or that the medication is medically appropriate. The court held that a list of possible medications and their maximum dosages was adequate because medical staff require flexibility to provide effective treatment.

The court vacated the district court’s order and remanded for further proceedings.

Tenth Circuit: Pretrial Detainee’s Rights under 14th Amendment Delineated in § 1983 Case

The Tenth Circuit Court of Appeals published its opinion in Blackmon v. Sutton on Friday, November 8, 2013.

When Plaintiff Brandon Blackmon was eleven, he was held at a juvenile detention facility awaiting trial for rape. As an adult, Blackmon brought suit against members of the facility’s staff under 42 U.S.C. § 1983, alleging they violated the Fourteenth Amendment rights guaranteed to him as a pretrial detainee. He claimed the staff frequently used a restraint chair to punish him, used other unlawful punishments, deprived him of essential medical attention, and should have transferred him to another facility. The district court refused to dismiss the case based on qualified immunity and held that the defendants sometimes exceeded the scope of their qualified immunity. The defendants brought this interlocutory appeal.

The Tenth Circuit held that restraining Blackmon to punish him or without a legitimate penological purpose would have violated his clearly established legal rights at the time. Because the case was at the summary judgment stage and the court had to view the facts in the light most favorable to Blackmon, summary judgment was precluded. The court also found Blackmon produced enough facts to suggest a violation of clearly established law by two staff members’ failure to provide him with meaningful mental health care despite his obvious need for it.

Blackmon also asserted a claim against the director of the facility for failing to transfer him to a shelter where he had been housed before. The court found a transfer to the shelter was not necessary to avoid any excessive risk to his health or safety and even if a transfer was necessary, pretrial detainees do not get to choose a particular place of detention.

The court affirmed the district court’s denial of qualified immunity except as to the director. The Tenth Circuit directed the district court to grant qualified immunity to the director.

Tenth Circuit: Officers Entitled to Qualified Immunity When Inmate Cut His Dreadlocks, Contrary to His Religious Beliefs; No RLUIPA Cause of Action Against Individual Officers

The Tenth Circuit published its opinion in Stewart v. Beach on Tuesday, December 18, 2012.

Mr. Stewart was an inmate at the Kansas Department of Corrections. In accordance with his Rastafarian religious beliefs, he did not cut or comb his hair, which he kept in dreadlocks. Stewart learned that his mother had been diagnosed with cancer.  To be closer to her, Stewart requested a transfer to the Lansing Correctional Facility. His request was granted. On the day of the transfer, defendant Officer Beach refused to allow Stewart to board the transport vehicle because he could not comb out his dreadlocks as was required as a security procedure. Beach consulted with her supervisor, defendant Wilson, who gave Stewart the choice of either cutting his hair or foregoing the transfer. Stewart eventually cut off his dreadlocks and was transferred to Lansing.

Stewart filed an action asserting that defendants forced him to choose between adhering to his religious beliefs and transferring closer to his ailing mother, and that this violated his rights under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act (RLUIPA). Beach and Wilson filed a motion to dismiss, which was granted on the ground that Beach and Wilson were entitled to qualified immunity. Stewart appealed.

Stewart argued that the officers were not entitled to qualified immunity. Qualified immunity shields government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. In resolving a motion to dismiss based on qualified immunity, a court must consider whether the facts that a plaintiff has alleged make out a violation of a constitutional right, and whether the right at issue was clearly established at the time of defendants’ alleged misconduct. The dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.

In the absence of controlling authority, the Tenth Circuit concluded that a constitutional right is clearly established if there is a robust consensus of cases of persuasive authority. From the Court’s survey of these cases, the most it could say was that defendants had warning that enforcement of the grooming policy might violate Stewart’s free exercise right. But the Court could not say that it was clearly established that their enforcement of the policy violated Stewart’s constitutional rights.  The Court therefore concluded that defendants were entitled to qualified immunity.

 Stewart further argued that his rights were violated under RLUIPA. The Act protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government’s permission and accommodation for exercise of their religion. RLUIPA also provides a cause of action against a government. Since RLUIPA does not provide a cause of action against individual defendants in their individual capacities, the Tenth Circuit affirmed the district court’s dismissal of this claim.


Tenth Circuit: Failure to Allow Cross-Examination on Prior Determination of Witness’s Credibility Violated Sixth Amendment

The Tenth Circuit issued its opinion in United States v. Woodard on Friday, November 9, 2012.

Rommie Woodard, the defendant, was convicted of possessing more than 100 kilograms of marijuana with the intent to distribute. Woodard was driving a tractor-trailer that had been loaded full of cartons by FedEx employees. While stopped at a New Mexico port of entry, a New Mexico Motor Transportation Division (MTD) inspector and police officer discovered six duffle bags containing marijuana among the cargo of the tractor-trailer Woodard was driving. Woodard argued the district court violated his Sixth Amendment confrontation rights when it refused to allow him to cross-examine the MTD inspector about a prior judicial determination that the inspector was not credible. The district court granted the government’s motion in limine, holding that under FRE 403, allowing the questioning would likely confuse the jury, create a trial-within-a-trial, and unfairly prejudice the government.

The court agreed with the test adopted by the Second Circuit in determining whether another court’s determination that a witness lied should be admitted under FRE 608(b). Applying the Second Circuit’s factors, the court found that cross-examination under FRE 608(b) would have been appropriate, given the similarity in circumstances. In both cases, the MTD inspector’s testimony that he smelled a strong odor of marijuana upon opening the tractor-trailer door supported a critical determination; here, that Woodard knowingly possessed the marijuana. Given the strong probative value of the finding of non-credibility, the testimony should have been admitted under FRE 403.

The court found Woodard’s Sixth Amendment right was violated because a “reasonable jury might have received a significantly different impression of [the witness’s] credibility had [the defendant] been permitted to pursue his proposed line of cross-examination.” The court then applied Van Arsdall factors to determine whether the violation was harmless error. Given the importance of the inspector’s testimony to the case and the otherwise weak evidence showing the defendant placed the marijuana in the trailer, combined with the fact that the jury only convicted after receiving an Allen charge, the conviction was reversed.

Tenth Circuit: No Obligation to Answer Officer’s Questions During Consensual Encounter

The Tenth Circuit issued its opinion in Kaufman v. Higgs on Tuesday, October 23, 2012.

A female driver with a male passenger hit a car in a parking lot and left the scene. The Colorado State Patrol investigated after receiving the license plate number from a witness and determined the car belonged to the plaintiff, Richard Kaufman. Two troopers met with Kaufman, who refused to identify the driver, citing privilege. The troopers arrested Kaufman for obstruction of justice. Kaufman brought a § 1983 action against the troopers based on violations of his Fourth and Fifth Amendment rights. The district court granted summary judgment for the troopers based on qualified immunity. Kaufman appealed only the claim that his Fourth Amendment rights were violated when he was arrested without probable cause.

As the first part of analyzing whether qualified immunity applied, the Tenth Circuit examined the plain language of Colorado’s obstruction of justice statute, C.R.S. § 18-8-104, and a Colorado Supreme Court case interpreting the statute to determine whether the officers had probable cause to arrest Kaufman. The court held that the officers had no probable cause, including arguable probable cause, because “[r]efusal to answer questions during a consensual encounter, expressed by silence and assertion of ‘privilege,’ is not an ‘obstacle’ as the term is used in the statute.” In answering the second part of the  qualified immunity analysis, the court determined that no officer could reasonably believe Kaufman’s silence constituted a criminal act, so his Fourth Amendment right to be free from unreasonable seizure was clearly established. The court reversed summary judgment for the defendants and remanded.