06/30/2016

U.S. Court of Appeals for the Tenth Circuit: Summaries of Selected Opinions


Summaries of selected Tenth Circuit Court of Appeals Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association (CBA) by Katherine Campbell and Frank Gibbard, licensed Colorado attorneys. They are provided as a service by the CBA and are not the official language of this Court. The CBA cannot guarantee the accuracy or completeness of the summaries. Full copies of the Tenth Circuit decisions are accessible from the CBA website.

 

No. 14-4152. Wasatch Equality v. Alta Ski Lifts Co. 04/19/2016. D. Utah. Judge Moritz. Snowboarders Excluded From Ski Area—Federal Land—Equal Protection—State Action.

Plaintiff filed suit to challenge a snowboard ban at the defendant ski area, claiming the ban unconstitutionally discriminated against snowboarders and denied them equal protection of the law. Recognizing that constitutional claims cannot be predicated on private action, plaintiff asserted that the ban was “state action” because the ski area was on federal land and was operated under a permit issued by the U.S. Forest Service. The district court dismissed the case for failure to identify a state action.

The Tenth Circuit noted that the Equal Protection Clause prohibits the government from denying equal protection. Private conduct, even if discriminatory or wrongful, is not covered. The underlying question is whether the conduct is fairly attributable to the government. The Tenth Circuit rejected plaintiff’s arguments on state action. First, the ski area and the Forest Service did not have a symbiotic relationship whereby the Forest Service had insinuated itself into a position of interdependence with the ski area such that it was a joint participant. The ski area was not indispensable to the Forest Service’s purpose, nor did the Forest Service participate in the funding and creation of the ski area. Second, the nexus test did not apply because the evidence showed only that the Forest Service knew of the ban, not that it approved of or encouraged it. Third, the joint action test was not met because no evidence showed that the Forest Service and the ski area acted in concert to effect a particular deprivation of constitutional rights. Mere acquiescence is insufficient. Fourth, the public function test did not apply because the complaint did not plausibly establish that the Forest Service delegated to the ski area a function traditionally reserved to the state. The district court’s judgment of dismissal for lack of state action was affirmed.

No. 15-1332. Anzures v. Flagship Restaurant Group. 04/22/2016. D.Colo. Judge Kelly. Personal Jurisdiction—Minimum Contacts—Forum State—Specific Jurisdiction.

Plaintiff, a Colorado resident, filed suit in Colorado against his former business partner, a resident of Nebraska, alleging tort and breach-of-contract claims. The suit involved a business the partners formed as a Nevada LLC. Defendant moved to dismiss due to lack of personal jurisdiction, and the district court granted the motion.

The Tenth Circuit addressed plaintiff’s argument that the court had specific jurisdiction over defendant. Plaintiff asserted that personal jurisdiction over the tort claims was proper because those claims arose out of defendant’s investment in his Colorado-based company. The Tenth Circuit held that a defendant’s contact with the forum state must arise out of contacts the defendant creates with the state, rather than with a person who resides there, such as a plaintiff. Here, the facts did not show that defendant expressly aimed any conduct at Colorado and his suit-related conduct did not create any meaningful contacts with Colorado. Turning to plaintiff’s breach-of-contract claim, the Tenth Circuit held that personal jurisdiction was lacking because defendant did not purposefully avail himself of the privilege of conducting activities or transactions in Colorado. The district court’s judgment of dismissal was affirmed.

No. 14-6081. United States v. Villanueva, Jr. 05/02/2016. W.D.Okla. Judge Seymour. Search and Seizure—Neutral and Detached Magistrate—Good Faith Exception.

Defendant pleaded guilty to being a felon in possession of a firearm, reserving his right to appeal the denial of his motion to suppress evidence seized at his residence and to appeal any sentencing enhancement the district court might impose under the Armed Career Criminal Act (ACCA). Based on telephone conversations that reflected methamphetamine trafficking activity, police obtained a no-knock search warrant for defendant’s residence. The warrant authorized the search for “books, records, documents, contraband and paraphernalia evidencing the business of illegal drug distribution and laundering profits from this enterprise.” During the execution of the search warrant, police seized a loaded firearm.

Defendant argued that the state court judge who issued the search warrant was not a “neutral and detached magistrate,” because that judge had previously represented the state in a case where defendant had pleaded guilty to distribution of marijuana, had recused himself on request from a paternity case involving defendant’s son, and had refused to accept defendant’s plea agreement in a prior felony case, saying that he was tired of seeing him in his court. The Tenth Circuit determined that because no outward appearance of impropriety would have led the officer seeking the warrant to question the judge’s neutrality, the good faith exception to the warrant requirement applied. The Tenth Circuit also held that the good faith exception applied to the officers’ reliance on the indicia of probable cause set out in the warrant, that the warrant sufficiently described the items to be seized to satisfy the particularity requirement, and that the search did not exceed its scope.

In addition, the Tenth Circuit held that the district court did not err in sentencing defendant as an armed career criminal. Although defendant argued that the prior predicate crimes used to enhance his sentence were not proved to a jury beyond a reasonable doubt, Supreme Court precedent precluded that argument. Moreover, a prior Oklahoma conviction was a “serious drug offense” for ACCA purposes, even though the actual sentence he received was less than 10 years, where the offense carried a maximum sentence of life imprisonment. Accordingly, the Tenth Circuit affirmed his conviction and sentence.

No. 15-4062. Tooele County v. United States. 05/03/2016. D. Utah. Judge Bacharach. Anti-Injunction Act—Preliminary Injunction—Jurisdiction—In Rem or Quasi In Rem Action.

A federal district court enjoined a Utah state court from proceeding with a case filed there. In the federal suit, Utah state officials sought to quiet title to various rights of way. In the state court suit, plaintiffs claimed that the Utah state officials lacked authority to bring the federal quiet title action. The Utah officials sought to enjoin the state court suit. The federal court issued a temporary restraining order for an indefinite period in aid of its jurisdiction.

The Tenth Circuit first considered subject matter jurisdiction, noting that a temporary restraining order is not appealable but a preliminary injunction is. The federal court’s order was actually a preliminary injunction because it was intended to last longer than 14 days, so it was appealable. The Tenth Circuit held that the federal court’s order violated the Anti-Injunction Act, which ordinarily prohibits injunctions against state court proceedings. An exception is that when the injunction is necessary in aid of jurisdiction but contrary to the district court’s ruling, it applies only when both suits are in rem or quasi in rem proceedings and the federal court was the first to take possession of the property in dispute. Although the federal quiet title suit was an in rem or quasi in rem proceeding concerning the rights to property, the state court suit was not, be­cause it involved the court’s authority over the Utah officials. It also did not involve the functional equivalent of a res. The district court erred by enjoining the state court proceedings. The judgment was re­versed and the case was remanded.

No. 15-1033. United States v. Von Behren. 05/10/2016. D.Colo. Judge Seymour. Fifth Amendment—Self-Incrimination—Completion of Sex Offender Polygraph as Condition of Supervised Release.

Defendant was serving a term of supervised release stemming from his conviction for distribution of child pornography. The conditions of his supervised release were modified to require that he successfully complete a sex offender treatment program, which included passing a sexual history polygraph requiring him to answer questions about whether he had committed sex crimes for which he was never charged. The specific question to be asked did not re­quire answers that specified the time, place, identity of the victim, or identity of other people involved. But defendant was required to sign an agreement instructing the treatment provider to report any discovered sexual crimes to the appropriate authorities. The district court denied defendant’s emergency motion to block the exam and ordered him to complete the polygraph examination.

On appeal, defendant argued that these requirements violated his Fifth Amendment privilege against self-incrimination. The Tenth Circuit agreed. To qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled. Answering questions during a polygraph examination involves a communicating act that is testimonial. An affirmative answer to the questions posed would provide a lead or link in the chain of evidence needed to prosecute the defendant, and could be used to show propensity to commit such crimes in a future prosecution. Therefore, the questions were incriminating. The possibility that defendant’s failure to answer the questions could lead to revocation of his supervised release, and thus his return to prison, established the necessary showing of coercion. The Tenth Circuit rejected the government’s argument that it would be seeking a remand to prison for defendant’s failure to complete treatment, not for his refusal to incriminate himself, calling this a “distinction without a difference.” Moreover, the compulsion would attach as soon as the government threatened defendant with revocation, whether or not the district court actually revoked his supervised release. Accordingly, the Tenth Circuit reversed the district court’s order.

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