HABEAS, CRIMINAL PROCEDURE, SEX OFFENDER

Spitznas v. Boone, Sepember 29

After psychiatric treatment Spitznas received seven life sentences plus 1000 years for the sexual assault of a juvenile. The lower court denied his claim that Spitznas had been denied a second competency hearing before he pleaded guilty. J. Ebel finds the trial court failed to consider claim that his attorney failed to investigate an insanity defense, and that such claims are not subject to the one-year time limitation. However, Spitznas is not entitled to file a successive habeas claim and his motion for leave to amend his petition was properly denied. Reversed in part.

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EMPLOYMENT

Moya v. Schollenbarger, September 26

Moya claimedb that he was fired as plumber at a state fair for speaking his mind about labor practices. J. Ebel finds that it is a "close question" whether the lower court dismissed Moya's complaint or his action, but the order was final and appealable. Although the trial court applied too high a pleading standard, Moya's civil rights claim shows that his employer did not respond to his complaints but does not show a violation of constitutional rights. Affirmed.

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CIVIL PROCEDURE, PROPERTY

Yavuz v. 61MM, Ltd., September 20

Yavuz claimed defendant misled him over a property investment in Tulsa. J. Hartz holds that when an international commercial agreement has choice-of-law and forum-selection provisions, the forum-selection provision must ordinarily be interpreted under the law chosen by the parties. Because the agreement was negotiated and executed in Switzerland, the lower court must determine the meaning of the forum-selection cause under Swiss law and whether the claim should be dismissed on the basis of forum non conveniens. Reversed.

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LABOR

Wessel v. Albuquerque, September 19

The city and its municipal union failed to prove what portion of the fees they had collected from non-member employees was spent on activities that benefited the non-members. J. Tymkovich finds that the lower court rightly ordered a full refund of the fees but it should have applied the reasonable prudence standard when it ordered the city to refund amounts it had received under the indemnification provision. Affirmed in part.

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TORT, GOVERNMENT

Miller v. US, September 15

The trial court dismissed a suit against a non-commissioned officers' club that served alcohol to the driver who injured plaintiffs. J. Tacha holds that because the exclusive vehicle for recovery against a dramshop in Utah is governed by a strict liability statute under which the plaintiff need not establish negligence, such action is not within the scope of the Federal Tort Claims Act's immunity waiver. Affirmed.

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TORT, PRISONERS RIGHTS

Kikumura v. Osagie, September 8

A prisoner claimed that an eight-hour delay before he received medical attention for a life-threatening condition was deliberate indifference which violated his Eighth Amendment rights. The lower court dismissed the entire complaint because the prisoner failed to exhaust one of his administrative claims prior to appeal. J. McConnell holds that the Prison Litigation Reform Act's total exhaustion rule does not extend to a prisoner who files a "mixed" complaint, only to have the prison issue a final order rejecting his unexhausted claims on procedural grounds. The lower court improperly dismissed the prisoner's constitutional and tort claims against certain prison medical staff and officials but properly dismissed tort claims against prison administrators. Reversed in part.

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BANKRUPTCY, LABOR

Peters v. Pikes Peak Musicians Association, September 1

A symphony's collective bargaining agreement provided that the musicians' wages would be paid during Chapter 11 reorganization as long as they remained available for rehearsal. Rehearsals were never called and when the symphony filed for Chapter 7 liquidation the trustee sought to use the wage funds for the symphony's other administrative costs. To reconcile federal bankruptcy statutes and to stop debtor employers from altering their collective bargaining agreements, J. Tymkovich holds that a wage claim made pursuant to a collective bargaining agreement will remain a priority when the claimant renders post-petition services, such as the musicians' availability, which are necessary to preserve the bankrupt estate. Affirmed.

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CARJACKING, SENTENCING

US v. Gurule, September 6

Gurule was convicted of carjacking and, due to his two prior violent felonies, sentenced to life. J. Holloway finds that Gurule's use of a knife proves the victim did not volunteer to give him a ride and the knife's position on victim's abdomen as she drove proves Gurule's intent to cause harm. The sentence is constitutional because mandatory sentences do not violate the separation of powers principle. Affirmed.

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CRIMINAL PROCEDURE, SEARCH

US v. Mitchell, September 22

J. Lucero holds that the trial court improperly granted appellant's motion for an extension of time to pursue his claim that drugs seized at the border during a warrantless search of his big rig should have been suppressed. Appeal dismissed.

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EVIDENCE, SEARCH, DRUG OFFENDER

US v. Gwathney, September 26

A trucker claims the evidence that he transported 335 pounds of marijuana with his load of creamer potatoes lacked foundation. J. O'Brien holds that the warrantless entry of trailer was allowed as a routine safety inspection of its load's blocking and bracing, and the officer gained probable cause when he saw the wrapped brown boxes without the word "potato" printed on them. Also, the evidence "fairly screams of the driver's knowledge of the drugs secreted in his trailer," and "his denials seem bankrupt." Affirmed.

IMMIGRATION, SENTENCING

US v. Martinez-Jimenez, September 29

A Columbian national entered the US illegally after three previous deportations and a felony conviction. J. Ebel holds that the trial court based its 57 month sentence in part on prior convictions whose existence is reflected in the National Crime Information Center. Affirmed.

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EMPLOYMENT

Kirkland v. St. Vrain Valley School, September 26

Due to a budget crisis, a school district suspended an employee without pay whose department's accounting mistake resulted in a budget crisis. The employee claimed he was promised paid leave in a resignation agreement and that the suspension violated his due process rights. J. Ebel holds that the employee was not entitled to pre-suspension due process and has failed to state a constitutional claim. Thus defendants are entitled to qualified immunity. Reversed.

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EMPLOYMENT, GOVERNMENT

Schulz v. Longmont, September 26

The lower court rejected fire and police officers' claims that a city-wide salary freeze violated their employment contracts. J. Ebel holds that the officers did not have any legally cognizable expectation of receiving annual pay increases for the first three years of their employment. Although city employees may have been promised the increases, they could not bind the city contractually to an agreement that the city council did not validly create. Affirmed.

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MEDICAID, HEALTHCARE

Mandy R. v. Owens, September 21, 2006

Six developmentally disabled people and an association of healthcare providers sued Colorado for the failure to provide comprehensive residential services. The trial court denied class certification and ruled for Colorado. J. McConnell holds that the reasonable promptness and comparability provisions of the Medicaid Act do not require the state to provide services, and that recipients and providers do not have a private right to enforce the sufficient payments under section 1983. Affirmed.

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FAMILY LAW

Arredondo v. Locklear, September 12

After one abused child was removed from her parents, authorities also removed her sister on an emergency basis because they believed abuse would then be directed at her. J. McConnell holds that a reasonable and articulable suspicion that abuse may occur is the constitutional standard used when children are removed from a home without a hearing or notice to the parents. Affirmed.

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EMPLOYMENT, CIVIL PROCEDURE

Marquez v. Cable One, September 8

The lower court dismissed a worker's discrimination suit against his employer, who also accused the worker of embezzlement. J. McConnell holds that the worker, who sought a Rule 56 continuance pending the completion of discovery, failed to file the required affidavit. Affirmed.

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EMPLOYMENT, DISABILITY DISCRIMINATION

McWilliams v. Jefferson County, September 6

The lower court dismissed all of a worker's claims that she was unfairly fired. J. McKay finds that worker's depression may be a sad truth but it fails to prove the employer fired her on pretext. However, the lower court must rule on worker's state breach of contract claim. Affirmed in part.

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LABOR

Burke v. Utah Transit Authority, September 1

Operators on a new light rail service sought different collective representation than the existing transit workers' union. J. Tymkovich holds that the existing union is an appropriate bargaining unit since the rail workers originally agreed to membership and circumstances have not changed to merit severance. Affirmed.

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DRUG OFFENDER, HABEAS

Parnell v. Oklahoma, September 7

The circuit holds that Parnell's ignorance of a one-year period in which to appeal his drug conviction does not constitute a circumstance for equitable tolling, the lower court's procedure was proper and Parnell is denied a certificate of appealability.

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HABEAS

Torres v. Lytle, September 12

Torres received seven years for witness retaliation for a letter that threatened a man whose house had recently been set on fire. Because he sent the letter after his conviction for misdemeanor criminal damage and not the felony arsons of which he was suspected, J. Hartz holds that Torres is entitled to a writ of habeas corpus. Reversed.

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SEARCH, FIREARMS

US v. Sells, September 19

Police who searched Sells' house for a rifle and ammunition used to shoot at his parents' house found a pipe bomb and other evidence in Sells' home. Only the rifle, ammunition and some clothing were described in the search warrant but the bomb was found in plain view. J. Ebel holds that the trial court correctly ruled that severance was applicable when it ordered the partial suppression of other evidence found at the home but admitted all evidence seized pursuant to the execution of the warrant's valid portions. Affirmed.

COMMUNICATIONS, ATTORNEY FEES

FTC v. Kuykendall, September 28

In an earlier proceeding, the circuit vacated a judgment against a co-defendant who had been found jointly and severally liable for $39 million for contempt over deceptive and misleading telemarketing business practices. Defendant then sought attorney fees for its defense, and costs associated with the letter of credit the lower court required to stay enforcement. J. Tacha finds the government's charges were colorable and had a proper purpose and so did not act in bad faith and thus the government is not liable for attorney fees. Affirmed.

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EMPLOYMENT

Metzler v. Federal Home Loan Bank, September 26

An employee, fired from a federal agency for a poor attitude and performance, claimed retaliation and interference with her Family and Medical Leave Act rights. J. Ebel finds the employee missed important deadlines and that there was no pattern of retaliation in training, expectations or evaluations after the employee returned from leave and thus the lower court properly found no violation of employee's rights. Affirmed.

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ENVIRONMENT, GOVERNMENT

Utah Shared Access v. Carpenter, September 19

The trial court ruled that the Bureau of Land Management had properly imposed restrictions on off-road vehicle use in parts of Utah. J. Tacha holds that appellants lack the standing to challenge the Bureau's authority or decision to limit off-road use and camping. Affirmed.

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LABOR

Smith v. Aztec, September 12

The lower court found that the Portal-to-Portal act barred workers claims that they were owed compensation for the time spent traveling to remote work sites. J. McConnell finds that none of the workers activities while traveling to and from the work sites were sufficient to render their entire travel time compensable under the Fair Labor Standards Act. Affirmed.

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INSURANCE, ANTITRUST, HEALTHCARE

Abraham v. Intermountain Health Care, September 6

Forty-nine optometrists claimed an the largest managed plan in the region and a group of ophthalmologists conspired to exclude optometrists as authorized providers in violation of the Sherman and Clayton Acts. J. Tacha holds that nothing shows the insurer excluded optometrists in exchange for an agreement by its panel ophthalmologists to direct their discretionary patients to insurer's facilities. The lower court properly dismissed the antitrust claims since the optometrists maintained the possibility of independent conduct. Affirmed.

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ATTORNEYS, CONTRACT, SECURITIES

Hoiles v. Alioto, September 5

A major shareholder in a private company hired a California attorney to help sell his 9% stake. When the company was recapitalized, which allowed the shareholder to sell, the shareholder fired the attorney. The attorney claimed his efforts precipitated the recapitalization and sought a $28.4 million contingent fee. J. Murphy holds that the lower court erred when it ruled that Colorado law governs the attorney fee agreement and the attorney's breach of contract claim. It was also error to dismiss the attorney's fraud and negligent misrepresentation claims. Reversed.

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CRIMINAL PROCEDURE, DRUG OFFENDER

U.S. v. Flowers, September 12

[Revised opinion.] Before appellant pleaded guilty to manufacturing meth he was served notice by fax of a sentence enhancement. J. McKay holds that because enhancement statute is not jurisdictional, appellant has forfeited his opportunity to raise on appeal the argument that he did not receive his information. Affirmed.

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SEARCH, DRUG OFFENDER

US v. Guerrero-Espinoza, September 15

Police stopped defendant for speeding and found 20 pounds of marijuana and 500 grams of cocaine. J. Ebel finds the search that revealed the drugs was unlawful because when defendant consented he did not know that the traffic stop had ended and was still under the belief he was being detained. Vacated.

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SENTENCING, PLEA, FRAUD

US v. Herula, September 21

Herula claimed that when he made his plea he did not foresee a 188 month sentence for his wire fraud, bankruptcy fraud and money laundering convictions from indictments in Rhode Island and Colorado. J. O'Brien finds that if Herula wanted a certain sentence he should have negotiated a firm agreement and that Herula's sentence is reasonable even though the guidelines for grouping consolidated sentences is a "labyrinth." Also, if Herula were sentenced on each information separately he would probably have received longer total sentence. Affirmed.

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FIREARMS, ATTORNEYS

US v. McConnel, September 25

A disbarred attorney who works as a private investigator was sentenced to 6 years for dealing guns to felons. A juror revealed after trial that he had been indicted, but not tried for fraud. J. Holloway finds the trial court was right to find it was a mistake and that the crimes committed by defendant and those for which the juror was charged were dissimilar and caused no bias. Also, it was plain error to instruct the jury on deliberate ignorance without specifying to which charge it referred, but the error was harmless. Since defendant himself introduced evidence of the misdemeanors that led to his disbarment, the evidence cannot be challenged. Affirmed.

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SENTENCING, IMMIGRATION

US v. Zuniga-Chavez, September 27

Defendant pleaded guilty to illegally reentry by a deported alien but claimed his sentence is excessive. J. Murphy finds that defendants 37 month sentence was at the bottom end of the sentencing range and that certified documents are not required for proof of prior convictions as long as the evidence of conviction is reliable. Affirmed.