Beruflich Dokumente
Kultur Dokumente
Plaintiffs,
v.
Defendants.
______________________________________________________________________________
The District Attorney Group Defendants, SCOTT W. STOREY, District Attorney, First
FRANK RUYBALID, District Attorney, Third Judicial District; DAN MAY, as District
Attorney, Fourth Judicial District; MARK D. HURLBERT, District Attorney, Fifth Judicial
District Attorney, Eighth Judicial District; MARTIN BEESON, District Attorney, Ninth Judicial
District; THOM LEDOUX, District Attorney, Eleventh Judicial District; DAVID MAHONEE,
District Attorney, Twenty-Second Judicial District (hereinafter referred to as the “DA Group
Defendants”), by and through counsel, hereby move to dismiss the Amended Complaint pursuant
to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be
granted.
INTRODUCTION
Plaintiffs have filed this action against the DA Group Defendants seeking declaratory
relief that Colo. Rev. Stat. § 16-7-301(4) is facially unconstitutional and an injunctive order
prohibiting the DA Group Defendants and their deputies from “acting in accordance” with this
statute, which has been the law of Colorado since 1992. At the heart of the allegations in this
case is whether, in light of Rothgery v. Gillespie County, 554 U.S. 191 (2008), the Sixth
Amendment rights of indigent Colorado criminal defendants, who face potential jail time, are
violated if they are presented with plea offers prior to obtaining court- appointed counsel.
The DA Group Defendants do not dispute that the Sixth and Fourteenth Amendment
rights of the criminally accused are important and must be observed (as with the right to counsel
under the Colorado Constitution). Colo. Const. art. II, § 16. The DA Group Defendants strive to
observe those rights in their respective daily practices, and they train their deputies to do the
same. Unfortunately for these Plaintiffs, however, their lawsuit alleges a “mere abstraction,” and
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a friendly lawsuit which requests ruling on a hypothetical state of facts pertaining to unidentified
Motion to Dismiss (with the exception of the 11th Amendment arguments),1 the DA Group
Defendants also move to dismiss Plaintiffs‟ Amended Complaint, for failure to state a claim
ARGUMENT
The State Defendants have moved to dismiss the Amended Complaint pursuant to Fed. R.
Civ. P. 12(b)(6), for failure to state a claim upon which relief can be granted. (State Defs.‟ Mot.
to Dismiss Am. Compl., the “Motion to Dismiss”). The DA Group Defendants hereby join the
State Defendants‟ Motion to Dismiss, and incorporate the arguments 3 from the State Defendants‟
1
The State Defendants‟ Motion to Dismiss states that the Amended Complaint appears to contain sufficient
allegations to establish organizational standing. (Motion to Dismiss, at 4). The DA Group Defendants do not
entirely agree. Standing issues are incorporated in some of the arguments in this brief and may be raised more
specifically, if necessary, later in the litigation.
2
Among the 21 DA Group Defendants, a disparate and bipartisan group of elected officials, there is not unanimity
about the wisdom of the policy behind C.R.S. §16-7-301(4). However, the DA Group Defendants are unanimous in
their position that this lawsuit, in Federal Court – by associations of private defense attorneys, public defenders, and
others suing the State Public Defender in an effort to assert the Sixth Amendment rights of unidentified hypothetical
state-court criminal defendants – is not the appropriate venue to resolve whether C.R.S. §16-7-301(4) should be the
law of Colorado.
3
The State Defendants also move, under Fed. R. Civ. P. 12(b)(1), to dismiss Defendants Governor Hickenlooper
and Administrator Marroney pursuant to Eleventh Amendment Immunity. The DA Group Defendants do not assert
Eleventh Amendment immunity in this matter.
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A. Standard of Review.
As the State Defendants note, the legal sufficiency of a complaint is a question of law.
Smith v. U.S., 561 F.3d 1090, 1098 (10th Cir. 2009). A complaint is legally sufficient if it
contains “enough facts to state a claim of relief that is plausible on its face.” Ridge at Red
Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 554 (2007)). Accordingly, the “court‟s function on a Rule 12(b)(6) motion
is not to weigh potential evidence that the parties might present at trial, but to assess whether the
plaintiff‟s complaint alone is legally sufficient to state a claim for which relief may be granted.”
Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).
Plaintiffs are two non-profit, public interest organizations composed of individuals who
state that they are interested in the experience of criminal defendants in the Colorado criminal
justice system. (Am. Compl. ¶¶ 80 and 121). Some fraction of the organizations are defense
lawyers. (Id. ¶¶ 83 and 121). Some portion of those defense lawyers are public defenders,4
others are private counsel, and some portion of the private counsel accept court appointments to
represent the indigent, paid for by state judicial, through the office of Alternate Defense Counsel.
Here, the Amended Complaint alleges nothing more than a hypothetical controversy in
which unidentified prospective state court criminal defendants, who Plaintiffs speculate will exist
and will potentially be harmed (if they happen to be indigent, happen to be charged with an
4
These Deputy Public Defenders work for one of the Defendants in this lawsuit, State Public Defender Douglas
Wilson.
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offense in which the prosecutor might seek a potential jail sentence, and happen to accept a plea
agreement different than that they would have accepted with representation). The hypothetical
fails to state an actual controversy appropriate for adjudication under the Declaratory Judgment
Act.
B. The Declaratory Judgment Act Requires An Actual Controversy That Affects the
Legal Rights of the Litigants.
Hayesworth, 300 U.S. 227 (1937). In Hayesworth, Chief Justice Hughes concluded that, under
certain circumstances, a request for Declaratory Judgment can satisfy Article III‟s “case or
controversy” requirement. Id. at 241. The Court considered the term “controversy,” and
concluded:
The “federal courts established pursuant to Article III of the Constitution do not render
advisory opinions. For adjudication of constitutional issues „concrete legal issues, presented in
actual cases, not abstractions‟ are requisite. This is as true of declaratory judgments as any other
field.” Golden v. Zwickler, 394 U.S. 103, 108 (1969) (citing United Pub. Workers v. Mitchell,
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A declaratory judgment action rests in the sound discretion of the trial court and that
discretion must be exercised in the public interest. Wilton v. Seven Falls Co., 515 U.S. 277
Id. at 288.
proceeding is whether there is a controversy between the parties having adverse legal interest of
Sangre de Cristo Dev. Co., 519 F.2d 370, 378 (10th Cir. 1975) (internal citations omitted).
Joslin v. Sec‟y of Dep‟t of Treasury, 832 F.2d 132, 135 (10th Cir. 1987).
existed over a declaratory judgment action that challenged the Constitutionality of a state statute
which criminalized anonymous campaign literature. 394 U.S. at 104. The Court concluded that
the:
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power of courts and ultimately of this Court to pass upon the constitutionality of
acts of Congress arises only when the interest of litigants require the use of this
judicial authority for their protection against actual interference. A hypothetical
threat is not enough.
The same is true of the power to pass upon the constitutionality of state statutes.
No federal court, whether this court or a district court, has jurisdiction to
pronounce any statute, either of a state or of the United States void, because
irreconcilable with the constitution, except as it is called upon to adjudge the legal
rights of litigants in actual controversies.
Id. at 110 (quoting Mitchell, 330 U.S. at 89-90). Accordingly, the Zwickler court declined to
attorney who complained that, “as a tax attorney he has, in the past, prepared legal opinions
analyzing the federal tax aspects of tax shelter investment plans . . . [and he] will in the future
continue to prepare such opinions; and that if and when he does, he will then be subject to
restraints and restrictions of [the laws he was challenging].” 832 F.2d at 135. In evaluating the
“actual controversy” requirement of 28 U.S.C. § 2201, and the Article III “case” or
In our view, such does not add up to an “actual controversy” with the Secretary.
There are too many “ifs.” From the record before us it would appear that Joslin
simply read the new regulations and then filed the present action. . . . The fact that
Joslin may well be a “very concerned and upset tax attorney,” . . . does not create
an “actual controversy.”
Id. Here, as in Joslin and Zwickler, there are too many “ifs” to present an actual controversy.
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Plaintiffs have not alleged an actual controversy. Even a review of Plaintiffs‟ Amended
Complaint makes it apparent that even Plaintiffs cannot articulate exactly what the controversy
Joslin‟s description of a case in which “[t]here are too many „ifs.‟” Joslin, 832 F.2d at 135.
Indeed, one of the hypothetical, unidentified criminal defendants could only present an actual
controversy in this case if: (a) he or she is charged with a crime in which a prosecutor might seek
a potential jail sentence; (b) he or she is indigent and unable to obtain pro bono services; (c) he
or she elects to accept a plea bargain rather than obtain counsel; (d) he or she suffers adverse
consequences from the lack of representation; and (e) he or she, by circumstance, is later
The lack of controversy is further exemplified by the fact that a declaratory judgment
would resolve none of the alleged harms to Plaintiffs. For instance, Plaintiffs contend that, if
declaratory judgment is entered, they will be relieved from expending resources on lobbying
efforts to change Colo. Rev. Stat. § 16-7-301(4), (Am. Compl. ¶¶ 197(i) and 87-91 (explaining
legislative and consultant expenses on decision to lobby for change in law)); that they will “no
5
By contrast, any Colorado criminal defendant that fits this description could seek post-judgment relief, and assert
the unconstitutionality of Colo. Rev. Stat. § 16-7-301(4), through Colo. R. Crim. P. 35(c).
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longer be hindered in carrying out their professional obligations” to indigent defendants they do
not yet represent, (id. ¶ 197(iii)); and that the declaratory judgment will create political pressure
for “Governor Hickenlooper and State Court Administrator Marroney . . . to allocate and request
adequate funding to ensure that indigent defendants with a right to counsel are appointed counsel
Yet the remedy Plaintiffs seek – declaring Colo. Rev. Stat. § 16-7-301(4) unconstitutional
– would not replace the statute with one Plaintiffs deem to be Constitutional. Nor would it create
a new statute that would appoint Plaintiffs to represent criminal defendants during plea
negotiations. Nor would it force Governor Hickenlooper and Administrator Marroney to allocate
any resources they do not choose to allocate in accordance with their respective offices.
Simply, “[t]here are too many „ifs.‟ The fact that [Plaintiffs] may well be a „very
concerned and upset [group] . . . does not create an „actual controversy.‟” Joslin, 832 F.2d at
Both Plaintiff organizations have members who are lawyers who represent the indigent
by court appointment, or as members of the Public Defender‟s office, paid for by state funds
through state judicial as administered by Defendant Gerald Marroney. (Am. Compl. ¶¶ 83 and
140). These organizations have sued, among others, the State Public Defender (who is the boss
of some of the individual members of Plaintiffs). (Id. ¶¶ 169-75). Their stated goal in the
litigation is to obtain an order requiring the Defendant court administrator to provide a larger
share of the state judicial budget to the Public Defenders‟ Office and to appointed defense
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counsel. (Am. Compl. ¶ 197(vi)). In other words, deputy public defenders and Alternate
Defense Counsel are suing The State Public Defender to create more work for deputy public
defenders and Alternate Defense Counsel, and to obtain an increase in the budget of state judicial
allocated to the Public Defenders‟ office and Alternative Defense Counsel. It is difficult to
Though these budgetary arguments may be appropriate considerations for the Colorado General
Assembly, or more specifically, the General Assembly‟s Joint Budget Committee, they have no
As noted in Hayesworth, a “controversy” need not only be “definite and concrete,” but it
must also touch “legal relations of parties having adverse legal interests.” 300 U.S. at 240-41. A
party seeking to invoke the Court‟s jurisdiction must have “alleged such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions.” Citizens Concerned for Separation of Church & State v. City & Cnty.
of Denver, 628 F.2d 1289, 1295 (10th Cir. 1980) (quoting Baker v. Kerr, 369 U.S. 186, 204
(1962)). This “requirement of a „personal stake‟ has come to be understood to require not only a
„distinct and palpable injury‟ to the plaintiff, but also a „fairly traceable‟ causal connection
between the claimed injury and the challenged conduct.” Id. at 1295-96 (quoting Worth v.
Selden, 422 U.S. 490, 501 (1975) and Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.
252 (1977)).
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Thus, “Congress may not confer jurisdiction on Article III Federal Courts to render advisory
opinions, entertain „friendly‟ suits, or resolve political questions.” Citizens Concerned, 628 F.2d
at 1296 (citing Sierra Club v. Morton, 405 U.S. 727 (1972)). Where a dispute is otherwise
justiciable, the “question of whether the litigant is a proper party to request an adjudication of a
particular issue depends upon whether that litigant has established a sufficient stake in the
grievance arguably falls within the zone of interests protected by the statutory provision invoked,
whether the complaint raises abstract questions more properly addressed by the legislative
branch, or whether plaintiff is asserting his or her own legal rights and interests rather than the
interests of third parties.” Common Cause v. Buescher, 750 F. Supp. 2d 1259, 1267-68 (D. Colo.
First, Plaintiffs‟ Amended Complaint raises a concern well outside of the “zone of interest”
protected by Rothgery v. Gillespie County, 554 U.S. 191, 213 (2008). There, Plaintiffs allege,
the Supreme Court concluded that a right to counsel attaches at “a criminal defendant‟s initial
appearance before a judicial officer . . . [and] once attachment occurs, the accused at least is
entitled to the presence of appointed counsel during any „critical stage‟ of the postattachment
proceedings.” (Am. Compl. ¶ 34). Thus, the “zone of interest” as expressed in the Amended
Complaint, is “a defendant’s right to counsel under the Sixth Amendment to the United States
Constitution . . ..” (Id. ¶ 34 (emphasis added)). Yet Plaintiffs in this case are not within that
“zone.” See generally Rothgery, 554 U.S. at 213. Rather, they complain only that they
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“consistently confront inconsistency and uncertainty” due to the fact that, from time to time,
some portion of their bar-admitted members represent indigent individuals who were within that
Second, the Amended Complaint raises abstract questions more properly addressed by the
legislative branch. For instance, Plaintiffs explain that they “expended significant funds for the
consultant‟s time drafting a bill . . .” (Am. Compl. ¶ 89); that they “expended significant
resources when the consultant worked with organizations and legislators to consider other
legislative means . . .” (id. ¶ 90); that their “consultant expended numerous hours drafting, and
lobbying for, a bill that would pay for counsel for indigent defendants . . .,” (id. ¶ 88); and that
they have “expended significant resources in lobbying the Colorado legislature to mitigate the
collateral consequences of certain felonies . . ..” (Id. ¶ 135). Meanwhile, as remedies, Plaintiffs
seek to be relieved of the “need to divert resources from their typical activities in an attempt to
mitigate the effects of Colo. Rev. Stat. § 16-7-301(4)”; they seek not to “expend substantial
resources to ensure Colorado complies with Rothgery”; and they seek for “Governor
Hickenlooper . . . to allocate and request adequate funding to ensure that indigent defendants
with a right to counsel are appointed counsel for plea negotiations . . ..” (Am. Compl. ¶ 197).
All of these questions about the inconvenience of lobbying expenses, or the amount distributed
to indigent criminal defendants under the Colorado state budget, are much more properly
Finally, Plaintiffs‟ Amended Complaint, without question, seeks to raise the rights of third
parties. Plaintiff Colorado Criminal Defense Bar describes itself as a “non-profit corporation
dedicated to representing and protecting the rights of persons accused of crimes.” (Am. Compl.
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¶ 81). Plaintiff Colorado Criminal Justice Reform Coalition, meanwhile, argues that it has
associational standing because approximately 100 of its “members . . . work as attorneys in the
Office of the State Public Defender” – who is a named Defendant in this case. Whoever can be
said to comprise the Plaintiff organizations, one thing is certain: neither organization is alleged
“Congress may not confer jurisdiction on Article 3 Federal Courts to render advisory
opinions, entertain „friendly‟ suits, or resolve political questions.” Citizens Concerned, 628 F.2d
at 1296 (citing Sierra Club v. Morton, 405 U.S. 727 (1972)). This is a vague, abstract and
friendly suit, seeking a friendly outcome, which fails the “concrete adverseness” requirement for
CONCLUSION
Plaintiffs‟ stated goals are more appropriate for the legislature than federal court. This
court should dismiss this case and Plaintiffs should focus their efforts on the state budget making
and legislative process, rather than trying to short circuit that process with a federal declaratory
judgment action.
Accordingly, the DA Group Defendants request the Court to dismiss the Plaintiffs‟
Amended Complaint for the reasons stated in the State Defendants‟ Motion to Dismiss and for
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s/ Stanley L. Garnett
Stanley L. Garnett
District Attorney
Christopher C. Zenisek
Assistant District Attorney
Lisa K. Michaels
Deputy District Attorney
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 3rd day of June, 2011, I electronically filed the foregoing
DISTRICT ATTORNEY DEFENDANTS‟ MOTION TO DISMISS AMENDED COMPLAINT
with the Clerk of Court using the CM/ECF system, which will send notification of such filing to
the following email addresses:
s/ Catherine Olguin
Catherine Olguin
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