#appellate practice

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Man who killed wife, shot at divorce judge through courthouse window calls counsel ineffective

By: Martha Neil

A Nevada businessman who unsuccessfully sought to withdraw from a plea deal after he stabbed his wife to death and shot at a Reno divorce judge through a courthouse window during a single day in 2006 is now claiming his defense lawyers were ineffective.

In a continuing effort to take the murder and attempted-murder case to trial despite his convictions and 40-year sentence, Darren…

By Martha Neil

A divided federal appeals court panel in Denver on Wednesday upheld a decision by a federal judge in Utah that a voter-approved ban on same-sex marriage is unconstitutional under the 14th Amendment.

“Courts do not sit in judgment of the hearts and minds of the citizenry,” said the Denver-based 10th U.S. Circuit Court of Appeals majority after ruling (PDF) that “a state may not deny…

Everyone knows that parking at Denver International Airport can be expensive. Some take advantage of the private lots located near the airport that will shuttle passengers to and from a more distant but slightly less pricey parking spot. Those private operators must pay for the privilege of using DIA’s roads and facilities – specifically, under Section 15-6(e) of the Municipal Code, the Department is authorized “to reasonably apportion” the expense of those facilities among the various businesses who use them.

When the Department changed its method of allocating those expenses a few years ago, several of the affected parking lot owners sought judicial review of the new regulations. They lost at the agency level, and again in the district court. Asked to review the district court's ruling, the Colorado Court of Appeals affirmed in part, reversed in part, and remanded for further proceedings. This case offers three lessons:

First: “reasonable apportionment” means the same thing as “rational basis.” This is stated nowhere in the Municipal Code, which leaves the term undefined. But here, the court of appeals determined that the airport could give disparate treatment to its users, provided that there is a rational basis for the difference – implicitly importing this familiar standard from constitutional law.

Second, if you are running a government agency (or drafting regulations), and you use a specific number or percentage, make sure that number is supported by something in the record. Here, the new regulations charged operators a flat 8% of their revenues. The court of appeals approved the method, but nevertheless felt compelled to reverse because there was no evidence to support that particular number: “we are left to guess why the 8% rate was selected, and thus we cannot say that the percentage is ‘rational’.” (Record evidence that most other airports charged “between 5% and 10%” was not enough.) The court remanded for additional findings on this issue.

Third, sometimes motions for publication can work! This opinion was originally announced on December 19, 2013 as an unpublished decision. The Department filed a Request for Publication under C.A.R. 35(f), on grounds that the “rational basis” holding was new law on an issue of continuing public interest – a position the court clearly found persuasive. Though the Appellate Rules do not provide for motions to publish, this opinion proves that the court of appeals is willing to entertain—and sometimes grant—such motions.