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Biden-Nominated Judge Rules that Activist Should Have Chance to Prove Government Officials Improperly Retaliated Against Her Despite Trump Judge Dissent: Our Courts, Our Fight

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Biden-Nominated Judge Rules that Activist Should Have Chance to Prove Government Officials Improperly Retaliated Against Her Despite Trump Judge Dissent: Our Courts, Our Fight

Biden-nominated Judge Veronica Rossman wrote a 2-1 decision allowing an environmental activist to amend her complaint and try to prove that a county commission retaliated against her by getting a county attorney to file criminal charges against her  because of her political views. Trump judge Joel Carson dissented The July 2022 decision was in Chilcoat v San Juan County.


What happened that led to the filing of the lawsuit?

 Rosalie Chilcoat is an aggressive environmental activist who lives with her husband in San Juan County, Utah. She has concentrated her efforts on protecting public land in the area from improper private use. She sometimes opposes public officials who, in her view, facilitate private use that harms public lands.

In early April, 2017, a disagreement arose when several ranchers accused  Chilcoat and her husband of making it harder for cattle to permissibly graze on nearby public land. The county sheriff’s office became involved. They detained and questioned Chilcoat and her husband.

Later that month, the county prosecutor filed misdemeanor charges against Chilcoat. A week later, he added two felony charges. Intense state court litigation occurred. Shortly before a scheduled trial, all charges against Chilcoat were dropped or dismissed.


What happened in the lower court?

 Chilcoat filed suit in federal court against the county prosecutor and the county, as well as one of the ranchers. She claimed that the prosecutor knowingly made false factual statements in pursuing the charges against her. She also maintained that the county was liable because the prosecutor was acting as a final policymaker for the county.

The county prosecutor and the county moved to dismiss the complaint. The district court agreed, based largely on prosecutorial and other immunity.

Chilcoat continued to litigate her remaining claims. She made an important discovery during a deposition that led her to seek to file an amended complaint against the county and the prosecutor. According to the amended complaint, the county commissioners “held a secret, closed meeting” in April at which they discussed the incident. They allegedly made a “an official decision” to direct or encourage the prosecutor to pursue criminal charges against Chilcoat “because of her political views.”

The district court, however, refused to permit the filing of the amended complaint. He concluded that it was “mere speculation.”  Chilcoat appealed to the Tenth Circuit.

What did the Tenth Circuit do on appeal?

 All three judges who heard the appeal agreed to uphold the decision to dismiss Chilcoat’s original complaint. Judge Rossman, however, wrote a 2-1 decision that reversed the refusal to permit the filing of the amended complaint and sent the case back to the lower court so that Chilcoat could pursue those claims.

As Judge Rossman explained, the proposed amended complaint described Chilcoat’s “environmental and political advocacy” and “outspoken views” about public lands, including views critical of one of the county commissioners.  Shortly after Chilcoat and her husband were detained, the commissioners held their “secret, closed meeting,” The meeting was not recorded and never publicly disclosed until the deposition in Chilcoat’s case. The amended complaint further maintained that the sheriff’s department did not originally think there was enough evidence to prosecute, but the commissioners made an “official” decision to push for prosecution at their secret meeting.

Based on the amended complaint, including the close “temporal proximity” between the secret meeting and the filing of serious charges, Rossman concluded that Chilcoat had presented much more than “speculation.” Instead, Chilcoat had alleged a quite “plausible” municipal liability claim that the county had improperly retaliated against her by causing the filing of serious criminal charges. She also explained that Trump judge Joel Carson was wrong to dissent because the prosecutor had technically filed the charges as a state official.  The county prosecutor wears “multiple hats,” Rossman continued.  It was thus quite “plausible” that the county commissioners improperly directed him to prosecute Chilcoat because they wanted to retaliate against her for her political views and advocacy.

The 10th Circuit panel thus reversed the lower court’s refusal to allow Chilcoat to even pursue her claims of improper political retaliation by the county. They sent the case back to the district court so that Chilcoat can go forward with discovery and seek to prove the serious charges of improper retaliation against her by the county.

Why is the case and Judge Rossman’s decision important?

 State and local officials have considerable discretion in making decisions whether to prosecute someone for a crime. Prosecutorial and other immunity often shields them from liability. We have seen all too many instances, however, of abuse of such discretion. It becomes particularly troublesome when officials allegedly make such decisions based on a desire to retaliate against someone for their political views or activities.

Biden nominee Rossman acknowledged that suits attacking prosecutions can prevail only rarely. But she also recognized the important principle that people should have the chance to prove claims that officials improperly retaliated against them by prosecuting them for political reasons. Despite Trump judge Carson’s dissent, she helped vindicate that principle by giving Chilcoat the chance to prove her claims.


Without Judge Rossman’s  opinion and deciding vote, the court could well have upheld the damaging ruling of the lower court and refused to give a person like Chilcoat the opportunity to prove her claims. The case provides another clear example of the importance of confirming fair-minded Biden nominees like Rossman to our federal courts. We can expect more such cases as more Biden-nominated judges are confirmed and serve on the bench



Biden judges, government misconduct, Trump judges