July 23, 2019

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 Supreme Court: City Ordinance Effectively Barring Sex Offender Residence Does Not Conflict with State Law

The Colorado Supreme Court issued its opinion in Ryals v. City of Englewood on Monday, January 25, 2016.

Home Rule—Local Government Law—Land Use—Sex Offenders—Conflict in Matter of Mixed State and Local Concern—Preemption.

Having accepted jurisdiction over this certified question of law from the Tenth Circuit, the Supreme Court held that state law does not preempt Englewood’s Ordinance 34. The ordinance implicates a matter of mixed state and local concern by effectively barring sex offenders from residing in Englewood, but it does not conflict with Colorado’s statutory regime for regulating sex offenders as required for state preemption. Nothing in the state regulatory regime prevents home-rule cities from barring sex offenders from residing in their communities, nor is there anything that suggests sex offenders are permitted to live wherever they wish. Furthermore, a state statutory provision specifically authorizes local law enforcement to decline an offender’s application for residency if it violates local law. As such, Ordinance 34 does not conflict with state law and thus is not preempted. This Court therefore answered the certified question in the negative and returned this case to the Tenth Circuit for further proceedings.

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

Colorado Court of Appeals: Workers’ Compensation Act Requires Statutory Interest on All Past Due Amounts

The Colorado Court of Appeals issued its opinion in Keel v. Industrial Claim Appeals Office on Thursday, January 14, 2016.

John Keel, a resident of Mississippi, was killed in a workplace accident in Colorado. The employer paid workers’ compensation death benefits in Mississippi from 2010 to 2013, and claimants (Keel’s surviving spouse and children) applied for Colorado benefits. In 2013, an ALJ determined that Colorado had jurisdiction and the employer was liable for death benefits under the Colorado Workers’ Compensation Act. The ALJ left for future determination the amount of the death benefit, whether the employer should pay past due death benefits, and whether interest was due on past due amounts.

The employer subsequently calculated Keel’s average weekly wage and subtracted offsets for Social Security death benefits and Mississippi workers’ compensation benefits, and issued a check to claimants for $66,822 for past due death benefits. The employer also stated it owed claimants an additional $2,040.32 in interest, having subtracted the Mississippi death benefits paid from the past due Colorado death benefits and using the statutory 8% interest rate. Claimants contended the employer significantly miscalculated the interest award.

An ALJ agreed with the employer’s reasoning and ordered it to pay the amount of interest it had calculated. A panel of the Industrial Claim Appeals Office calculated interest differently and ordered employer to pay interest on $41,841.08 instead. On remand, the ALJ adopted the ICAO’s reasoning and ordered the employer to pay interest on the ICAO’s calculated amount. Claimants again appealed and the ICAO affirmed the ALJ’s order.

Claimants then appealed to the Colorado Court of Appeals, which clarified that the issue on appeal was what the effect of death benefits paid in another state was on past due Colorado benefits. The court agreed with claimants’ contention that the ICAO erred in determining that C.R.S. § 8-42-114 did not apply, and found that by its plain and ordinary language claimants were entitled to 8% interest on the entire past due amount, $66,822.

The court analyzed the ICAO’s reasoning and respectfully disagreed with its conclusions. The court noted that it was not bound by the ICAO’s conclusions, which were primarily based on policy concerns. ICAO relied on the Full Faith and Credit Clause in determining that the Mississippi benefits were subsumed by the Colorado benefits, but the court of appeals found the Full Faith and Credit Clause inapplicable where, as here, the industrial commission of one state lacks authority to bar recovery in another state. Rather, if more than one state has jurisdiction over a workers’ compensation claim, the claimant can seek successive awards from those states. Since the ICAO cited no Colorado authority to support its rationale, and instead applied out-of-state case law, the court of appeals found the panel’s reasoning flawed. ICAO was also concerned that the claimants might receive a windfall or a double recovery. The court found that the claimants in this case did not receive a double recovery because the Colorado benefits were offset by the Mississippi benefits. The panel also expressed concern that a claimant might time its recovery in a way to maximize benefits, which the court of appeals thought was a concern better addressed to the legislature.

The ICAO’s order was reversed with directions to remand to the ALJ so that she may order the employer to pay statutory interest on the entire past due amount.

Colorado Court of Appeals: Attorney Fee Request Under 42 U.S.C. § 1988 Not Moot

The Colorado Court of Appeals issued its opinion in Libertarian Party of Colorado v. Colorado Secretary of State on Thursday, January 14, 2016.

Two recall election candidates, Gordon Roy Butt and Richard Anglund, requested the Secretary of State’s approval to circulate petitions as successor candidates in a General Assembly recall election. The Secretary denied their petitions as untimely because they were submitted after a deadline in C.R.S. § 1-12-117. The candidates and the Libertarian Party (collectively, “Libertarian Party”) appealed, arguing the Secretary violated their constitutional right to access to the ballot because the statutory deadline conflicted with a later deadline in the Colorado Constitution.

The Libertarian Party asked the court to order the Secretary to accept candidate petitions until the constitutional deadline, requested injunctive and declaratory relief under § 1983, and requested attorney fees under § 1988. In an expedited proceeding, the district court held that the statute conflicted with the constitution and therefore was void and ordered the Secretary to enforce only the constitutional deadline, but did not address the §§ 1983 and 1988 claims. The Colorado Supreme Court denied certiorari.

The Libertarian Party then moved for summary judgment on its §§ 1983 and 1988 claims, but the district court ruled that the federal claims were effectively dismissed when the Libertarian Party failed to file a Rule 59 motion for amended judgment. On appeal, the court of appeals found the § 1983 claim was moot, because the Libertarian Party’s claim for injunctive relief was satisfied by the district court’s original order and the claim for declaratory relief became moot when the General Assembly amended the statute. However, the court of appeals found that the § 1988 claim may have survived. Because the Libertarian Party prevailed on its state law claim, it still may be entitled to attorney fees under § 1988 because its federal claims were joined with its state law claims.

The court of appeals remanded for determination of the Libertarian Party’s § 1988 claim.