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Appellate Highlights, Utah Tenth Circuit Court of Appeals, March 2017


Diné Citizens v. Jewell

--- F.3d ---, 2016 WL 6301136 (10th Cir. Oct. 27, 2016)

Prior to this case, a party could receive a preliminary injunction by showing that the case presents a serious and important question, if a strong showing is made that the other elements of the preliminary injunction test are met.  In response to a Supreme Court decision, the court held that a showing of likelihood of success is always required, and the relaxed “serious question” test is no longer permissible.

Vehicle Market Research v. Mitchell International

--- F.3d ---, 2016 WL 6211806 (10th Cir. Oct. 25, 2016)

The Tenth Circuit held that the testimony of a Rule 30(b)(6) witness is merely an evidentiary admission, rather than a judicial admission.  The plaintiff challenged the district court’s refusal to instruct the jury that it was required to reject the trial testimony of the defendant’s former CEO because that testimony was inconsistent with his deposition testimony under Rule 30(b)(6).  The court rejected this argument, as the proposed jury instruction was not an accurate statement with respect to the “binding” nature of 30(b)(6) deposition testimony.

Fish v. Kobach

--- F.3d ---, 2016 WL 6093990 (10th Cir. Oct. 19, 2016)

A group of unsuccessful voter registration applicants brought suit against the state of Kansas, alleging that the state’s law requiring documentary proof of citizenship was preempted by the National Voter Registration Act (NVRA).  The Tenth Circuit agreed, holding that the NVRA’s attestation requirement established the presumptive minimum amount of information that a state needed to carry out its eligibility-assessment and registration duties.  In order to rebut this presumption and require documentary proof of citizenship, the state must make a factual showing that the attestation requirement is insufficient for these purposes.  Kansas failed to make this showing, and thus the NVRA preempted the state law.

Onyx Properties v. Elbert Board of County Commissioners

838 F.3d 1039 (10th Cir. Oct. 3, 2016)

In a suit by landowners against a board of county commissioners, the landowners alleged that their due process rights had been violated, as they had been required to rezone their property prior to the adoption of the regulation. The 10th Circuit held that a board of commissioners is not required to hold public hearings prior to adopting zoning regulations so there was no procedural due process violation, and the behavior of the board was not sufficient to shock the conscience, and thus there was no substantive due process violation.

William v. Akers

837 F.3d 1075 (10th Cir. Sept. 20, 2016)

The Tenth Circuit dismissed this appeal for lack of jurisdiction.  The defendants’ motion for reconsideration of the denial of their motion to dismiss, which was filed eight months after that decision, did not toll the time for appeal of that decision.  By identifying the denial of the motion to dismiss as the order being appealed, the defendants did not sufficiently express an intent to appeal the denial of the motion for reconsideration.  The appeal was therefore untimely and the court lacked jurisdiction.

Golicov v. Lynch

837 F.3d 1065 (10th Cir. Sept. 19, 2016)

A lawful permanent resident appealed an order of removal based upon his conviction for failure to stop at the command of a police officer.  Extending the Supreme Court’s decision in Johnson v. United States, --- U.S. ---, 135 S. Ct. 2551 (2015), the Tenth Circuit vacated the order of removal and held that the Immigration and Nationality Act’s residual definition of “crime of violence” was unconstitutionally vague.

Case summaries for Appellate Highlights are authored by members of Snow Christensen & Martineau's Appellate Practice Group.  For more information, visit our Appellate Highlights page.

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