U.S. Tenth Circuit

U.S. Tenth Circuit - The FindLaw 10th Circuit Court of Appeals Opinion Summaries Blog


The Tenth Circuit could be sending a native up to the Supreme Court. On Tuesday, President Trump announced that Neil Gorsuch will be his nominee to replace the late Justice Scalia. If confirmed by the Senate, Gorsuch would be the first Coloradan on the Court since Justice Byron White and the first Tenth Circuit judge, by our count, to ever make it to the High Court.

With just over ten years serving on the Tenth Circuit, Gorsuch has penned many opinions worth review. Here are, ahem, our top ten.

Appeals Court Strikes ALJ Appointments

A federal appeals court has ruled that an administrative law judge's appointment was unconstitutional, setting up a battle that calls into question the validity of ALJ appointments across the country.

Siding with a businessman who was punished for violating securities laws, the Tenth Circuit Court of Appeals said that a Securities and Exchange Commission judge did not have authority to act in the case because he was not appointed by the President, a court, or a department head.

"Because the SEC ALJ was not constitutionally appointed, he held his office in violation of the Appointments Clause," the majority said.

High Court Stays Silent on Internet Tax

Declining to review a state law on reporting internet sales taxes, the U.S. Supreme Court said nothing about internet taxation itself. But it was close, and perhaps a lucky break for internet businesses in the United States.

The High Court denied a petition to review Colorado's reporting law, which the Tenth Circuit Court of Appeals upheld against a legal challenge earlier this year. The Tenth Circuit said the state law, which requires out-of-state internet retailers to report tax liabilities for its Colorado customers, was constitutional. In its petition to the U.S. Supreme Court, the Data and Marketing Association said the state law discriminated against internet businesses that have only a virtual connection to Colorado

Although the petitioners' lost their battle to overturn the law last week, internet businesses are still winning the war against internet sales taxes in the meantime. The law does not require businesses to collect sales taxes in states where they have no physical presence.

A large display of the Ten Commandments on the city hall lawn in Bloomfield, New Mexico, violates the Constitution's Establishment Clause, the Tenth Circuit ruled recently in an unanimous decision penned by Judge David M. Ebel. The display, which weighs 3,400 pounds and stands 5-feet tall, was erected by private donors and was marked with a small disclaimer that the lawn had been opened to the public for the display of monuments "that reflect the City's history of law and government."

That was not good enough for the Tenth Circuit. In response to a lawsuit by two polytheistic, Wiccan town residents, the court ruled that the monument, despite being privately sponsored, was government speech and an impermissible endorsement of religion.

The Rocky Mountain High was popularized long before Colorado legalized recreational marijuana. After all, what is the Centennial State if not the perfect place for stoners, snowboarders, and fast food chains?

But Colorado's pot-friendly status doesn't justify pulling over out-of-state drivers with Colorado plates, the Tenth Circuit ruled recently, throwing out two Kansas Highway Patrol officers' claims of qualified immunity after they cited Colorado plates as a reason for stopping drivers.

10th Cir. Halts Albuquerque Rapid Transit at 11th Hour

The Tenth Circuit issued a temporary injunction that halted a rapid transit project in its tracks just days before shovels were set to hit the dirt. It's a feather in Albuquerque Mayor Richard Berry's cap after his previous failed attempts to stop the ART.

This is hardly the last anyone will hear of this legal battle. After all, $120 million has already been sunk into this thing.

Utah Governor Gary Herbert can't withhold federal funds from the Planned Parenthood Association of Utah, the Tenth Circuit ruled last week. The governor had instructed Utah officials to withhold $272,000 in so-called "pass-through" federal funds designated for STD treatment and sex education.

The move came shortly after conservative activists released video of Planned Parenthood discussing the use of fetal tissue in medical research, leading to a national uproar and attempts in several states to deny funding to Planned Parenthood-affiliated programs.

10th Cir. Dismisses Class Toxic Tort Claims for Lack of Standing

Noting that a reasonable concern of injury does not satisfy the need to plead an actual or imminent injury, the Tenth Circuit affirmed a lower court dismissal of a class action suit against an industrial defendant. The ruling was with prejudice, too.

As any practitioner knows, causation must be alleged in order to support a cause of action. This seems to be something that the plaintiffs' lawyer forgot in this case.

Gov't Asking About Past Sex Crimes Is Unconstitutional, 10th Cir. Rules

A stunning case was recently decided by the Tenth Circuit in which the federal court ruled that a convicted sex offender facing an 'authentic danger of self-incrimination' cannot be forced by the government to answer questions regarding past sexual crimes. It's a clear line drawn in the sand.

In our view, the decision by the circuit court was the correct one and that the circuit correctly reversed the lower court's ludicrous finding that the subject's answers would not present a "real and appreciable risk of incrimination."

Digital Publisher Isn't Liable for Freelancers With No Oversight

The Tenth Circuit recently handed down a decision that could present a wonderful business opportunity to some enterprising online "journalism" sites.

The circuit court's opinion will likely stand for the rule that outfits like Examiner.com can drape themselves within a safe-harbor cloak when their independent contractors run afoul of copyright laws.