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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.

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.

Former Oklahoma Senate Leader Must Be Resentenced, 10th Circuit Orders

Michael Morgan, an Oklahoma attorney and former leader of the Oklahoma Senate was sentenced in 2012 to probation arising out of a charge bribery. Since the Tenth Circuit found that the punishment was "grossly at odds" with sentencing guidelines, he will now be resentenced. Basically, the Tenth Circuit determined that the lower court gave the defendant an easy pass.

When Michael Morgan was convicted for bribery, the jury acquitted him of about 60 other criminal counts. Morgan asked for a new trial alleging that the prosecution failed to disclose "tacit agreements" with a witness, insufficiency of evidence and failure to properly instruct the jury. Unfortunately for him, the 3 judge-panel disagreed and found that the jury's conviction of Morgan was based on sufficient factual evidence and further described the trial court's order of Morgan's probation as "little more than a slap on the wrist."

Timothy Tymkovich became the new Chief Judge of the Tenth Circuit last week, replacing Judge Mary Beck Briscoe, whose five year term as chief ended in September. As a judge and former Colorado solicitor general, Tymkovich has been involved in a number of notable cases, dealing with everything from gay rights to gun rights, freedom of speech to freedom of religion.

But his first week as chief hasn't brought any headline making decisions just yet. Rather, the new Chief Judge's docket has been full of child porn and bicycle accidents, according to The Colorado Statesman.

The separation of powers is good for everyone -- unless you're a state governor with a political agenda you want to implement quickly. Then you might find the judiciary, for instance, to be a bit of a nuisance.

Gov. Sam Brownback wouldn't be the first governor to confront this issue, but he may be one of the first to tackle the issue by attempting to replace Kansas judges. At least, that's how Brownback's critics interpret his latest proposals concerning constitutional amendments.

The skies may be getting a bit brighter in Utah, if an environmental group gets its way. Wild Earth Guardians, a nonprofit wilderness protection group, has sued the EPA for failure to protect visibility in the Beehive state.

The Clean Air Act, while mostly concerned with air pollution emissions, protects visibility in "Class I areas," primarily large wilderness areas and wildlife refuges. The responsibility for visibility protection is meant to fall on the states, but Wild Earth Guardians argues that EPA must take action after rejecting Utah's plan.

10th Cir. OKs Exclusion of 700 Pages of Nonconforming Docs

Calling something a legal "technicality" is like calling a judge an "activist" or, in George Orwell's formulation, anyone a "fascist." The word doesn't mean anything except "I don't like that person." In the law, "technicality" just means "I lost."

The Tenth Circuit emphasized the importance of process, though, as it decided a district court in Kansas was correct in refusing to consider 700 pages of documents not filed in compliance with local rules.

Top 10 Blog Posts From the 10th Cir. in 2014

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:

Will Somebody Please Fix the Terrible New 10th Circuit Website?

Last year, I was assigned to cover the Tenth Circuit, and it was a glorious time. I mocked the court's citation of dicta in a terrible concealed carry opinion, laughed when they raged at the Ninth Circuit and a litigious undocumented immigrant, and alliterated when Mr. Cush's curtilage was invaded by a "knock and sniff."

When assignments were shuffled later that year, I genuinely missed the Tenth Circuit beat. I also apparently missed the part where they redesigned the website to turn it in to a steaming pile of something folks in many 10th Circuit states will be familiar with: horse manure.