U.S. Tenth Circuit

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


Is it "retaliation" to be fired from your job as a student teacher if another school employee sees you masturbating in your car in a parking lot?

No, it's not a rhetorical question. And this time, it's not from Florida. Carlos Bassatt was a student teacher at a Denver high school, and another employee did catch him masturbating in his car in the high school parking lot. Bassatt died during the district court proceedings, but his estate pressed on. After losing there, the estate appealed to the Tenth Circuit.

Ask 99 percent of America what the Tenth Circuit is and they will either stare at you blankly or mumble some guess about science fiction. But despite its "flyover" circuit status, the Tenth Circuit has been big this year.

First to address gay marriage? Yep. Citizens United II? Uh-huh.

Here are the 10 most popular Tenth Circuit blog posts for 2014:

In October 2013, the Tenth Circuit determined that Abercrombie & Fitch, the nation's No. 1 purveyor of that weird cologne smell in the mall, didn't violate Title VII of the Civil Rights Act when it refused to hire a Muslim job applicant for wearing a hijab in contravention of Abercrombie's dress code.

The EEOC has since been granted a cert. petition, and filed its opening brief earlier this month. The case has garnered a whole heck of a lot of amici including religious organizations, the Lambda Legal foundation, and the State of Arizona, for some reason.

With police use of excessive force all over the news these days, we turn now to police involvement with a nine-year-old boy. One judge on the Tenth Circuit Court of Appeals has had enough.

In this unpublished case from the Tenth Circuit, via Utah, a nine-year-old was put in a "control hold" after he stole an iPad. The court affirmed the district court's judgment that using the control hold was not excessive force.

And then Judge Carlos Lucero had something to say.

Earlier this year, Utah became one of the many states to allow political party candidates for office to be selected by way of a "direct primary" system. This system is already in existence in many states, but it's a change for Utah, which left up to the parties the method by which it chose nominees. Typically, Utah used neighborhood caucuses to find candidates. The winners of caucuses would then be nominated (or not) at the party's statewide convention.

The Republican Party in Utah (well, some of its members, anyway) didn't like this very much and decided to sue the governor, alleging that the new legislation dilutes the ability of a political party to select its own candidates and unconstitutionally places control of selecting the party's candidate in the hands of the state, not the party.

Every year since 2004, Colorado's governor has recognized a "Colorado Day of Prayer." This isn't terribly unusual in itself; since 1952, Congress has established a "national day of prayer" and most other states do the same thing.

But the Freedom from Religion Foundation doesn't like it. They object to the explicit biblical references in the proclamations, claiming a violation of the Preference Clause of the state constitution (its own version of the Establishment Clause).

Back in September, a federal district judge in Oklahoma, agreeing with a three-judge panel opinion of the D.C. Circuit, held that the Affordable Care Act subsidies applied only to states that had, themselves, established state exchanges and not states in which the federal government had to run the exchange after the state refused.

Well, a lot has happened since then. The D.C. Circuit took its case up en banc, vacating the panel opinion, and the U.S. Supreme Court agreed to hear the challenge in the form of King v. Burwell, a Fourth Circuit case finding the other way.

Now, Oklahoma's attorney general wants to appeal his state's case straight to the Supreme Court.

States (Arizona and Kansas) have passed laws requiring voters to show proof of citizenship in order to register to vote. Meantime, a long-standing federal law (the National Voter Registration Act, or "Motor Voter" law) says that the U.S. Election Assistance Commission has to make a universal nationwide voter registration form, and that states have to take it and like it.

Long story short: Arizona's law already made it to the Supreme Court last year, when the Court required Arizona to recognize the federal form. However, Justice Scalia also suggested that the states might be able to sue the EAC to force them to add proof-of-citizenship language to the forms.

How well did that work out? Not too well, if the Tenth Circuit's recent opinion is the last word.

Update: it turns out the stay was much ado about nothing. The stay was lifted Wednesday afternoon. More on the order, and the two sides' arguments, can be found at FindLaw's Courtside.

Justice Sonia Sotomayor has just issued a stay blocking same-sex marriages in Kansas, right around the time a district court's ruling striking down the state's ban on gay marriages was about to take effect. The order is a surprise, considering that since the Court declined to take on gay marriage earlier this term, it has refused to issue stays in numerous other same-sex marriage appeals.

We have to imagine that the plaintiffs' lawyers feel like the witch who got crushed by Dorothy's house in Oz, as this came out of nowhere. What gives? And what else is odd about this SCOTUS stay?

We love being right, though to be fair, anyone with even the most rudimentary understanding of how controlling precedent works could have seen this opinion coming.

The Tenth Circuit has ruled against gay marriage. The Supreme Court didn't intervene. What's a federal district court in Kansas to do then? Make Kansas the 33rd state to have legalized gay marriage, obviously, even though a parallel state court challenge is set for oral arguments tomorrow.