Jefferson County Courthouse Case Proceeds

I've previously noted that the Court of Appeals decision in this case, a premises liability case at the Jefferson County, Colorado courthouse (commonly known as the Taj Mahal) would be a great one for a law school textbook. Now, the Colorado Supreme Court has affirmed this ruling. The Colorado Supreme Court opinion (County of Jefferson v. Strickle, 2024 CO 7, ¶ 1) explains that:

Beverly Stickle lost her balance and fell when she stepped down from a walkway to the parking lot surface at a parking structure adjacent to the Jefferson County Courts and Administration Building. She broke her arm and subsequently sued Jefferson County (“the County”) for damages sustained from the accident. The County moved to dismiss, arguing that it was immune from suit under the Colorado Governmental Immunity Act (“CGIA”) because (1) the parking structure is not a “building” and (2) the condition that Stickle alleges caused her injury was solely the consequence of the parking lot’s “design.” If either of these arguments were successful, the County would indeed be immune from suit. However, we conclude that the parking structure at issue is a building as that word is used in the CGIA and that the dangerous condition that Stickle alleges caused her fall is not attributable solely to the design of the parking structure. Accordingly, the County is not immune from suit, and Stickle’s claim may proceed. 

Good Government Colorado's State and Local Government Reforms

Alcohol Regulation

* It is absurd to regulate beer, wine, and liquor differently.

Construction Regulation

* The construction trades should be regulated at the state level rather than at the local level as they are now. This may have made sense when construction markets were local. Colorado currently has 273 active municipalities (comprising 198 towns, 73 cities, two consolidated city and county governments), and 62 unconsolidated counties, for a total of 335 different bodies licensing the construction trades. Most of these professionals should not exclude people with felony records unrelated to the construction trades.

* Each of these jurisdictions also has its own building code, based upon privately promulgated building codes that aren't even available for free which is unconscionable for binding laws. There should be a single state building code, that is a matter of public record. If localities want to deviate from it, they should have to seek permission from a state body to do so, and the local modifications ought to be a matter of public record on a state website. Aesthetic building code requirements should be tightly limited.

TABOR Elections And Taxes

* Elections over retaining growth in revenue not derived from new taxes should be abolished.

* Excess TABOR revenue should, by default, placed in a rainy day fund, rather than refunded. A supermajority would be required to touch a rainy day fund in excess of declines in revenue from the previous peak revenue year.

* The state 2.9% sales tax would be repealed and replaced with a revenue neutral income tax increase. Only local sales taxes would remain. But, all local sales taxes would be collected by the state and would be required to use the uniform state definition of taxable sales.

* School districts should be funded by state taxes and not by property taxes. As a result, there would no longer be elections for local property tax levies and bond issues for school districts.

* Higher educational institutions would have tax funding solely by state taxes, not local taxes.

Election Administration

* Elections should be administered by non-partisan civil servants, under the supervision of a partisan balanced board or boards. This task should be severed from the partisan elected offices of state secretary of state and county clerk, and from the non-partisan elected office of city clerk.

Elected Offices

* City clerks should not be elected.

* Statutory cities and towns have a city manager with the mayor elected by the city or town council as its chair, and do not have a have separately elected mayor or auditor.  Charter cities can do what they want.

* County coroners should not be elected and the institution should be replaced with a state medical examiner's office.

* County surveyors should not be elected.

* County treasurers should not be elected.

* County assessors should not be elected.

* County clerks should not be elected.

* County sheriff should be a non-partisan office. It is desirable not to give the local administration of criminal justice system a partisan tinge. This is less alienating between elections to the losing party members. Counties are often often politically homogeneous areas where intra-party competition is really more important the partisan competition anyway. This gives minority party members in a county more say in the outcome.

* County commissioner should be a non-partisan office. It handles local government issues like municipalities do. Counties are often politically homogeneous areas where intra-party competition is really more important the partisan competition anyway. This gives minority party members in a county more say in the outcome. In large counties there would be five seats elected from single member districts, all at once, for four year terms. In small counties, county commissioners would serve for six year terms with one elected every two years.

* District attorney should be a non-partisan office. It is desirable not to give the local administration of criminal justice system a partisan tinge. This is less alienating between elections to the losing party members.

* The state treasurer should not be elected.

* The state secretary of state should not be elected.

* The state attorney-general should not be elected.

* Uncontested elected offices should not appear on the ballot unless there is a declared write-in candidate before ballots are printed.

* School boards should be elected by the parents, except possibly by the students instead, in the case of high school students.

* The state school board should be appointed.

* The University of Colorado Board of Regent should not be elected by the general public. It would be better for these positions to be elected by alumni. The state still controls the purse strings, but this would strengthen academic freedom and ease the burden on the voters.

* Any other currently elected higher education district boards should be elected by alumni or appointed.

State And Local Judges And Courts

* Judges should be required to be lawyers with at least five years of experience. The four non-lawyer rural county court judges currently in office in Colorado should be grandfathered for their current terms, but not retained.

* The county courts should be consolidated to have a single limited jurisdiction division of the district court in each judicial district called the county court division of the district court, with a court house in each county and should be staffed with full time judges only.

* Judicial retention for judges not on the state supreme court should be decided by a vote of the judges at the next higher level, not the voters. So, county court division judicial retention should be decided by district court judges, district court judicial retention should be decided by court of appeals judges, and court of appeals judicial retention should be decided by state supreme court justices. These are the people best qualified to evaluate the performance of lower court judges.

* State supreme court justices should be limited to a single fourteen-year term of office, with one new justice appointed in the current process every two years in the absence of vacancies. 

* Vacancies in the state supreme court should be filled for the remainder of the term of the vacating justice (without prejudice to a further appointed term) by a court of appeals judge elected from the sitting judges of the court of appeals.

* The judicial discipline process should be more transparent.

* Court facilities and budgets, district attorneys offices, and public defender's offices should be financed at the state level, not the county level, to keep the judicial branch and district attorney's office independent from municipal and county government.

* Municipal courts should be abolished, with the ordinance violations previously in their jurisdiction prosecuted by city attorneys in the county court division of the district court before state appointed judges.

* County court appeals should be to a single judge of the court of appeals, not to a single district court judge otherwise on the same basis as under current law. There would be no municipal court appeals because there would no longer be any municipal courts.

* Colorado Appellate Rule 21 petitions (i.e. discretionary requests for extraordinary relief granted only when no other adequate remedy, including relief available by appeal or under C.R.C.P. 106, including petitions in the nature of mandamus, certiorari, habeas corpus, quo warranto, injunction, prohibition and other forms of writs cognizable under the common law) should be made to a designated panel of seven judges of the court of appeals (rotated annually) rather than to the state supreme court.

* The number of judges on the court of appeals should be doubled to allow it to process appeals more swiftly.

* Review of attorney regulation disciplinary hearings should be made to the court of appeals rather than to the state supreme court.

Remaining Elections

Candidate Elections

* There would be one election every November on election day, and a primary election (in parties and districts with contested races) in every even numbered year for state and federal offices. A partisan caucus would precede each primary election every even numbered year. Ballot issues would be restricted to November elections except for local recall elections and emergency local tax and bond measures.

* There would be one non-partisan local election in November in each odd numbered year. 

* In the year following the Governor's election there would be statutory municipal elections (with all municipal offices elected at once), and district attorney elections (and county commissioner elections in small counties) for a total of one or two offices plus city council races for each voter in statutory cities and towns. 

* In the odd numbered year two years after that there would be elections for county commissioner, sheriff and special district elections in the other (usually two or three races per voter). 

* Charter cities do what they want, but limited to odd numbered year elections except for recalls and for emergency ballot issues for referred tax matters or legally required referred charter amendments held when needed.

* There would be partisan caucuses and primaries (with unaffiliated voters allowed to participate in a primary of their choice, but not caucuses) in each even numbered year followed by a partisan general elections in November for state house, state senate, U.S. House, U.S. Senate, the Governor-Lieutenant Governor, and the President. The Governor-Lieutenant Governor election would be two years after the Presidential election. No election would have less than three or more than five offices to vote upon at a time, unless there was a U.S. Senate vacancy to be filled at the time, in which case there would be four to six offices. 

* Write-in candidates would not be allowed in primary elections and uncontested primary elections would not appear on the ballot. 

* All elected offices except the U.S. House and state house with two year terms, and the U.S. Senate with six year terms, would be for four year terms.

* All single member elected office races would require a majority to be elected, with a runoff of the top two candidates otherwise.

* City councils would fill municipal office vacancies. County commissions would fill county commissioner and sheriff vacancies. Special district boards would fill vacancies on their boards. State legislature vacancies would be filled by partisan vacancy committees. Governor vacancies would be filled by the Lieutenant Governor. Lieutenant Governor vacancies would be filled by the Governor (unilaterally). The law would provide for Governor's succession in other cases. The Governor would fill U.S. Senate vacancies until the next even numbered general election at which time a vacancy election for any remaining part of the vacant seat's term would be held.  U.S. House vacancies would be filled in special elections as under current law.

* Recall elections of particular local elected officials (city elected officials, county commissioners, sheriff, special district, district attorney), held promptly in the time frames allowed by law.  Vacancies created by recall elections would be filled like any other vacancy. Do not allow the recall of state legislators or the Governor, although the state legislature could impeach the Governor in a mirror of the federal process.

Ballot Issues

* Referred municipal or special district tax increase or bond issue ballot issues (during municipal or special district elections as the case may be, unless an emergency is declared by a supermajority of the city council or board, two-thirds unless there are just three members in which case it must be unanimous).

* Referred county tax increase or bond issue ballot issues (during county elections only, unless an emergency is declared by a supermajority of the county commission - unanimous if there are three members, four out of five if there are five members).

* Referred local charter amendment ballot issues (during municipal or special district elections). Legally required charter amendments would be adopted by the city council or special district board by majority vote.

* Local charter or legislation citizen initiatives (during municipal elections only for municipal measures, and during county elections only for county measures).

* State ballot tax increase ballot issues (referred only, during even numbered year elections in November only).

* State ballot issues on the state constitution or state legislation referred by the state legislature (during even numbered year elections in November only).

* Citizen initiated state constitution and legislative ballot issues (not impacting taxes, during even numbered year elections in November only).

* Newly passed state legislation would not be subject to referendums.

Quote Of The Day

Distinguishing between untrustworthy hearsay and really untrustworthy hearsay would be akin to distinguishing between objecting and strenuously objecting. See A Few Good Men (Columbia Pictures 1992) (After her objection is overruled, Lieutenant Commander Joanne Galloway persists by “strenuously” objecting. The judge overrules her objection again, this time more emphatically. During the next recess, Lieutenant Sam Weinberg, Galloway’s co-counsel, remarks to Galloway, “‘I strenuously object?’ Is that how it works Hm? ‘Objection.’ ‘Overruled.’ ‘No, no, no, no, I strenuously object.’‘Oh, well, if you strenuously object, then I should take some time to reconsider.’”).

People v. Jacob Vanderpauye, 2023 CO 42, Footnote 1.

A Colorado Supreme Court Decision That No Justice Joins

This doesn't happen often, but today the Colorado Supreme Court issued a ruling in which none of its seven justices ruled (on judicial discipline of a lower court judge) because all seven of them were conflicted and recused themselves.

Meditation With A Mugger Isn't Required In Colorado

The Colorado Supreme Court ruled today that mediation can't be required by a court in a criminal case. 

It is especially notable because one of the leading academic articles critical of alternative dispute resolution requirements like mediation is Albert W. Alschuler, "Mediation with a Mugger: The Shortage of Adjudicative Services and the Need for a Two-Tier Trial System in Civil Cases" 99(8) Harvard Law Review 1808-1859 (June 1986). This article opens as follows:

At about 2:30 p.m. on January 26, 1981, in a subway station in Manhattan, three youths attacked a man who was carrying electronics equipment worth between $8oo and $1ooo. The victim attempted to escape by running up a stairway, but his attackers pursued him. They caught their victim, beat him, and shoved him into a plate glass window. Although the window did not break, a door handle hit the man in the chest, tearing some tissue and cartilage and causing considerable pain. The youths continued their beating until a police officer arrived. Then two of them fled. The third failed to notice the arrival of the officer and was apprehended while beating the victim. 

Although only sixteen, the arrested youth was wise in the ways of the criminal justice system. He claimed that the man with the electronics equipment had attacked him and thereby provoked the incident. Because both the attacker and the victim had filed complaints, the victim soon received written notice of an informal hearing at which he could mediate his dispute with the mugger. The victim declined the opportunity. 

The youth was ultimately punished for his crime. Although he failed to appear in court on the return date specified in the summons, it was not long before he was arrested for a similar crime in Brooklyn. The two cases were consolidated, and after the defendant pleaded guilty to reduced charges, he served six months in jail. He later received a three-to-nine year penitentiary sentence for additional robberies committed after his release. At last word, he was still in prison. The victim of the mugging, however, was never told what had happened to his attacker. He thought that the case had ended when he declined the offer of mediation. 

The victim decided that he needed a gun, and his gun became famous. The victim's name was Bernhard Goetz.

Colorado Supreme Court Favors Weaker Interpretation Of Governmental Immunity

In the case of Cisneros v. Elder, 2022CO13, the Colorado Supreme Court today chose an interpretation of the state's governmental immunity statutes that is less protective of jail guards. The official syllabus states:

In this case, the supreme court considers whether section 24-10-106(1.5)(b), C.R.S. (2021), of the Colorado Governmental Immunity Act ("CGIA") waives sovereign immunity for intentional torts that result from the operation of a jail for claimants who are incarcerated but not convicted.

The court now concludes that section 24-10-106(1.5)(b) waives immunity both for intentional torts and for acts of negligence resulting from the operation of a jail for claimants who are incarcerated but not convicted. In reaching this determination, the court concludes that the statutory language waiving immunity for claimants who "are incarcerated but not yet convicted" and who "can show injury due to negligence" sets a floor, not a ceiling.

In contrast, in many circumstances, governmental immunity is waived for negligent acts of governments and government officials that cause injury, but not for intentional acts.  

The Colorado Supreme Court also rejected the argument that governments themselves should not be responsible for the intentional wrongs of their employees, basically on that theory the intentional wrongs are beyond the scope of the authority of these officials and that suing particular government employees for "willful and wanton" acts is expressly permitted in Colorado under CGIA. In this case, the court reasoned, the government was not being held vicariously liable for the willful and wanton misconduct of its employees, but for its own intentional wrongs as a matter of policy.

The underlying case involved the El Paso County Sheriff refusing to release an inmate who had posted bail, without authorization to do so, in connection with an alleged immigration hold that was held to be improper in separate litigation  resulting in the inmate's release four months later. 

The inmate was represented by the Colorado ACLU and Holland & Hart, LLP, one of the largest law firms in the state (presumably pro bono).

The decision of the Colorado Supreme Court was unanimous and followed a 2-1 decision against the inmate in the Colorado Court of Appeals which was reversed.

The damages in this individual case aren't huge, perhaps a few hundred thousand dollars at most, and possibly much less. But, the principal will probably significantly influence how sheriffs manage jails in Colorado going forward.

Colorado Prohibits Criminal Restitution Liability For Dismissed Conduct

For what conduct can restitution be imposed by a criminal court in connection with a plea bargain that dismisses some charges against a defendant.

According to a ruling of the Colorado Supreme Court today:

a sentencing court may not impose restitution for pecuniary losses proximately caused by conduct exclusively related to dismissed charges.

It reached this decision as a matter of statutory interpretation of Colorado laws, rather than as a matter of constitutional law. 

This differs from the rule in federal courts which allows criminal courts to impose sentences based, in part, upon acquitted, dismissed, or uncharged conduct, so long as the sentence as a whole does not exceed the sentence authorized by a jury verdict or a plea of guilty to a charge. 

The Colorado Supreme Court also interpreted the meaning of the deadline for restitution orders, clarifying which deadlines apply to the date that the orders are entered by the court (absent a showing of good cause for delay) and which apply to the date that this relief may be requested by prosecutors.

Colorado Supreme Court Overhauls Legal Advertising Ethics Rules

The Colorado Supreme Court has overhauled the Rules of Professional Conduct applicable to lawyers related to legal advertising, replacing strict limitations in former Rules 7.1, 7.2, 7.3, 7.4 and 7.5 with two more flexible and lenient rules, 7.1 (barring false or misleading advertising by attorneys) and 7.2 (limiting referral fees and regulating what disclosures are required if a specialty is communicated). The changes are effective immediately (September 10, 2020).

The old rules have frequently been criticized as unreasonable limitation of commercial free speech and harken back to the time when the economics of legal practice were more heavily regulated. The old rules  that were discarded primarily limited cold call solicitations aimed at injury victims.

Colorado Supreme Court Revised Cruel and Unusual Punishment Analysis

The Colorado Supreme Court in lead case Wells-Yates v. People, and companion cases People v. McRae and Melton v. People has substantially revised the framework in which cruel and unusual punishment allegations are evaluated, generally speaking, in the favor of criminal defendants, although not in an unqualified win.

Some people serving long sentences for minor drug crimes in Colorado will probably have those sentences reduced as a result of these decisions.

The practical effect of this is that severe habitual offender sentences, which were once almost never disturbed under the 8th Amendment, especially for drug crimes, may now have some hope of being overturned as disproportionate and cruel and unusual. 

The official syllabus of the lead case is a good starting point:

The court holds that: (1) during an abbreviated proportionality review of a habitual criminal sentence, the court must consider each triggering offense and the predicate offenses together and determine whether, in combination, they are so lacking in gravity or seriousness as to raise an inference that the sentence imposed on that triggering offense is grossly disproportionate; (2) in determining the gravity or seriousness of the triggering offense and the predicate offenses, the court should consider any relevant legislative amendments enacted after the dates of those offenses, even if the amendments do not apply retroactively; (3) not all narcotic offenses are per se grave or serious; and (4) the narcotic offenses of possession and possession with intent are not per se grave or serious. 

The most serious drug offenses (sale and distribution) remain per se grave and serious based upon the high intent threshold and high penalties remaining on the books. Theft is also held not to be "per se grave or serious" in the Melton v. People case.

The key facts in the lead case were as follows:

The prosecution charged Wells-Yates in 2012 with second degree burglary, conspiracy to commit second degree burglary, theft, possession with intent to sell or distribute 7 grams or less of a schedule II controlled substance (methamphetamine), four counts of identity theft, and three habitual criminal counts. In February 2013, a jury found Wells-Yates guilty of all the substantive charges. Following a bench trial in May 2013, the court adjudicated her a habitual criminal based on three predicate offenses: 

• A 1996 conviction for possession with intent to sell or distribute 7 grams or less of a schedule II controlled substance (methamphetamine), a class 3 felony; 

• a 1997 conviction for possession of 2 grams or less of a schedule II controlled substance (methamphetamine), a class 4 felony; and 

• a 1999 conviction for possession of 2 grams or less of a schedule II controlled substance (methamphetamine), a class 4 felony. 22 

The court subsequently conducted a sentencing hearing. For each of the eight triggering offenses, it imposed the statutorily required prison sentence—four times the maximum prison term in the presumptive range: 

• 48 years (12 × 4) on count 1, second degree burglary, a class 3 felony; 

• 24 years (6 × 4) on count 2, conspiracy to commit second degree burglary, a class 4 felony; 

• 24 years (6 × 4) on count 3, theft, a class 4 felony; 

• 48 years (12 × 4) on count 4, possession with intent to sell or distribute 7 grams or less of a schedule II controlled substance (methamphetamine), a class 3 felony;9 and 

• 24 years (6 × 4) on each of the four class 4 felony counts of identity theft (counts 5, 6, 7, and 12). 

The court ordered all of the sentences, with the exception of the sentence on count 7, to be served concurrently. 

In total, Wells-Yates received an aggregate prison term of 72 years: 24 years on count 7, consecutive to all the other sentences. 

(The parties agree that the sentence on count 4 was incorrectly calculated; it should have been 64 years, not 48 years. Possession with intent to sell or distribute 7 grams or less of methamphetamine on the date charged in count 4 was an extraordinary risk class 3 felony, see § 18-1.3-401(10)(b)(XI), C.R.S. (2012); the maximum term of years in the presumptive range for such a felony is 16, not 12, years, see § 18-1.3-401(1)(a)(V)(A), C.R.S. (2019). Therefore, the trial court should have multiplied 16 × 4, not 12 × 4. The basis of count 7 was the sale of the identity documents during Wells-Yates’s first meeting with the agent; the sentence on that count was ordered to be served consecutive to all the other sentences. 23 (the longest of which were the 48-year concurrent sentences on counts 1 and 4).11 She is eligible for parole.) 

(Given the error regarding the sentence on count 4, the parties agree that Wells-Yates should have received an aggregate prison term of 88, not 72, years (24 + 64, instead of 24 + 48)).

The state legislature in Colorado has in recent years dramatically reduced the sentences for drug crimes in a non-retroactive way and this is what gives the ability to reconsider legislative changes that are not retroactive when evaluating proportionately so powerful.

If "Wells-Yates committed the triggering offense of possession with intent on or after October 1, 2013, instead of in 2012, she would have faced a prison sentence of 2 to 4 years, not a mandatory habitual criminal sentence of 64 years." 

The one point upon which criminal defendants do not prevail is that the Colorado Supreme Court holds that proportionality analysis needs to be conducted on charge by charge basis, rather than the aggregate sentence for all charges including whether sentences are to be served concurrently or consecutively. So, they do not consider the total 72 year combined sentence, but only the sentences for each particular offense.

The cases are remand to the trial courts to reconsidering in a much more fact specific way in the face of a much more favorable legal standard.

The prospects of success on remand for these defendants and similarly situated victims of old draconian drug war sentences seems good, although the remedy for an 8th Amendment violation is to reduce the sentence to the highest amount that would not be cruel or unusual, which is still high.

What Happens When A DA Commits Lots Of Brady Violations?

One of the dirty little secrets of the American criminal justice system is that when a prosecuting attorney violates his or her ethical duty to disclose all evidence that potentially exonerates a criminal defendant to the defendant's lawyer, often causing a wrongful conviction for a crime, the attorney rarely suffers any consequence for the lapse even though a court of law in the criminal case found that the attorney violated this ethical duty. 

A DA in rural Southern Colorado, Francis Ruybalid, didn't just violate this duty. He violated in more than 150 different cases, resulting in 15 of those convictions including convictions for child abuse, domestic violence and murder being thrown out.

What consequences did this DA suffer? 

He resigned as DA, and in exchange for admitting to more than 24 ethical violations, his law license was placed on probation. The Colorado Supreme Court, in a case of first impression, denied him reimbursement for the $223,000 of attorneys fees and litigation costs that he incurred defending himself against the ethics charges, because they involved reckless or knowing conduct which the Court held was not within the scope of his official duties as a DA.

Additional details and a photograph can be found in an article at the Colorado Sun.

Then, this bad lawyer became someone else's problem. He was hired by the state of New Mexico to be an attorney for the Children, Youth & Families Department, where he will presumably be charged with bringing lawsuits on behalf of the state to terminate the parental rights of parents whom investigators believe have committed serious child abuse and neglect. 

So, he was out $223,000 and he had to move and take a new job with what was probably a modest pay cut and a huge drop in authority and prestige from head of a District Attorneys' office for more than one county supervising other prosecutors, to a job as a rank and file lawyer handling individual cases and probably having no more supervisory authority than he might share with other lawyers and managers in the department over a secretary, paralegal and the investigators involved in particular child abuse and neglect cases. He could conceivably also be called upon to handle juvie jail discipline cases and probation revocation cases for juveniles sentenced after committing crimes as minors.

He didn't lose his license to practice law or even have it briefly suspended. New Mexico didn't decline to let him have a law licenses as a result and he probably received reciprocity in admissions to the practice of law in New Mexico despite his disciplinary record. 

And, because prosecutors have "absolute immunity" for their judicial system conduct (although not for investigative matters), none of the criminal defendants who received unjust punishment because exculpatory evidence was withheld, and none of the victims who had crimes committed against them go unpunished because the DA screwed up can sue him. Some of those unpunished criminals are on the streets and may commit further crimes as a result. On the other hand, even if he could have been sued by the injured parties, realistically, he was probably virtually judgment proof once he had paid his lawyers (who are probably going to get stiffed for some part of his legal bill themselves).

It is worth noting, however, that if a DA isn't entitled to indemnification from the County for this conduct because it didn't fall within his official duties, perhaps his absolute immunity from civil liability for his official conduct in judicial proceedings (as opposed to investigative proceeding where the immunity is merely "qualified") doesn't apply either. There are lots of cases in other jurisdictions that hold that Brady violations do not impair a DA's absolute immunity, but those cases, unlike future cases in Colorado, would not have had the foundation of this case defining in advance the scope of an attorney's official actions, upon which to build a case. 

The resulting rule, which would allow District Attorneys to be sued only when they had been adjudicated to have committed ethical violations in a manner that was outside the DA's officials duties, would actually be a very management and reasonable way to balance the need to limit collateral litigation against prosecuting attorneys by convicted criminals, while remedying legitimate wrongs where liability is basically established independently before the case begins. The same rule could even be applied to judges who generally have absolute immunity.

So, all in all, while this bad lawyer's ethical violations, unlike so many prosecutors who commit similar violations (although rarely so pervasively) did have quite meaningful consequences, they weren't all that severe either in proportion to the harm he did.

Now, in his defense, this incident arguably looks like a classic case of the Peter Principle, "which observes that people in a hierarchy tend to rise to their "level of incompetence". In other words, an employee is promoted based on their success in previous jobs until they reach a level at which they are no longer competent, as skills in one job do not necessarily translate to another." 

As a lawyer its his job to know how to do that and get it done, and if he didn't know that he wasn't getting that part of his job done, he should have known. So it really wasn't as he argued in Court, mere negligence (although the Court could very easily have reached the opposite conclusion and found that while he did his job unethically that he was still doing his job). More likely, he wasn't confident enough to make the waves and direct people in a manner to make sure that this bureaucratically very cumbersome obligation was fulfilled.

Basically, it is certainly possible that he was competent enough to do the job of a junior prosecutor, but once he was elected to be the DA, everyone discovered that he was an incompetent manager whose failure to establish proper office procedures, which was his job, led to widespread and systemic violations of the constitutional rights of criminal defendants. So, perhaps, now that he has returned to his previous more humble level of responsibility, he may do just fine.

Also, assistant district attorneys in Southern Colorado are hardly the best paid attorneys admitted to the bar. According to Zip Recruiter:

[A]s of Jun 5, 2019, the average annual pay for an Assistant District Attorney in Colorado is $65,363 a year. While ZipRecruiter is seeing annual salaries as high as $84,284 and as low as $47,825, the majority of Assistant District Attorney salaries currently range between $53,033 (25th percentile) to $79,549 (75th percentile) in Colorado.

The high is probably in the Second Judicial District which is Denver, which has a high cost of living. The Third Judicial District probably has below average pay for its assistant district attorneys' overall, although this would have been balanced out somewhat by seniority. Still, it is safe to say that immediately before being elected DA, Francis Ruybalid was probably earning $75,000 a year or less, and he would have made less in the earlier years of his career. This is enough to live comfortably in rural Southern Colorado, but it almost means that paying for $223,000 of legal fees out of his own pocket probably wipes out a very large share of his entire net worth.

Since this is a contactual debt owed to his attorneys to the extent it hasn't already been paid, it can surely be discharged in bankruptcy, but bankruptcy may very well be in his future if he can't work out a payment plan for any unpaid balances with his ethics defense lawyers who still, at least, left him employable.

Today in the Colorado and U.S. Supreme Courts

Today In the Colorado Supreme Court

In decisions here and here, the Colorado Supreme Court holds that a criminal defendant who is convicted can always appeal on the ground that the evidence at trial was insufficient to support a conviction beyond a reasonable doubt, without any penalty for not raising this issue in the trial court.

In a water court case (from which there is an appeal to the Colorado Supreme Court, of right), the Colorado Supreme Court determines what a party must show to be a prevailing party under a clause of a settlement agreement awarding attorneys' fees to a prevailing party seeking to enforce the agreement. The official syllabus of the decision explains that:

The fee-shifting clause at issue provided that the prevailing party in an action to enforce, by any means, any of the terms of the settlement agreement shall be awarded all costs of the action, including reasonable attorney fees. Here, the plaintiffs’ claims, in substance, sought relief based on allegations that the defendant had breached the terms of the settlement agreement, and the defendant responded by arguing that it was the plaintiffs’ claims that were inconsistent with that agreement. In these circumstances, the court concludes that the plaintiffs’ claims constituted an effort to enforce the terms of the settlement agreement. Indeed, consistent with this conclusion, the plaintiffs themselves had asserted a claim for fees pursuant to the fee-shifting clause at issue. 

Accordingly, the court holds that the defendant, as the prevailing party on all claims below, is entitled to recover his attorney fees pursuant to the settlement agreement’s fee-shifting clause.

In a case imposing fines on a corporation for failing to have worker's compensation insurance in place the Colorado Supreme Court holds that "the Eighth Amendment’s prohibition on the government imposition of “excessive fines” applies to fines levied on corporations. . . . [and] the proper test to assess the constitutionality of government imposed fines requires an assessment of whether the fine is grossly disproportional to the offense for which it is imposed[.]" The Colorado Supreme Court remands the case to determine if the fine was constitutionally excessive when applying that standard.

The business in question failed to have worker's compensation in force for its four to ten employees at a time with under $50,000 a year of payroll for a total of 1,698 days in three distinct, lengthy gap periods over seven years, or which it was fined $841,200 (fines of $250 to $500 per day), during which no actual claims went unpaid. This amount exceeded the firm's annual gross income and allegedly lapsed because the business thought someone else was taking care of it when they weren't actually doing so. It holds that the trial court must determine if the $250-$500 fine is disproportionate to the harm caused by one day of not having worker's compensation insurance in force, without regard to the aggregate amount of the fine.

The analysis of when constitutional provisions apply only to individuals and when they also protect corporations is interesting as an exposition of legal theory on a hot legal issue. The core test is that a protection should apply to corporations when a guarantee is against certain government overreach, and is a constitutional immunity appropriate to a corporate body[.]" One justice dissents in part, arguing that the total amount of the fine, rather than the amount imposed for each offense, should be considered.

Today In The U.S. Supreme Court

In Azar v. Allina Health Services, the U.S. Supreme Court holds 7-1 (with Kavanaugh not participating) that the federal government improperly adopted a policy in violation of the Administrative Procedures Act, when the statute was unclear regarding whether a formula created before Medicare Part C was adopted needed to include both Medicare Part A recipients and Medicare Part C recipients, or just Medicare Part A recipients, in determining the amount that should be paid to hospitals. Including more recipients causes hospitals to receive less money under the formula. The federal government adopted a rule saying that the formula does include Medicare Part C in 2004, then repealed it and adopted a new rule effective prospectively only in 2013 that included Medicare Part C in the formula. But, then, it included Medicare Part C in the formula for a 2012 calculation when neither regulation was in form. The policy decision to include Medicare Part C in the formula retroactively as well as prospectively was held to be a de facto regulation adopted without the required notice and comment period.

In a unanimous decision, the U.S. Supreme Court holds in Taggart v. Lorenzen, that a "court may hold a creditor in civil contempt for violating a discharge order if there is no fair ground of doubt as to whether the order barred the creditor’s conduct." This is an objective standard. A party’s subjective belief that she was complying with an order ordinarily will not insulate her from civil contempt if that belief was objectively unreasonable. It held that "subjective intent, however, is not always irrelevant. Civil contempt sanctions may be warranted when a party acts in bad faith, and a party’s good faith may help to determine an appropriate sanction. . . . Under the fair ground of doubt standard, civil contempt may be appropriate when the creditor violates a discharge order based on an objectively unreasonable understanding of the discharge order or the statutes that govern its scope." The 9th Circuit decision which was reversed had held that "a 'creditor’s good faith belief' that the discharge order 'does not apply to the creditor’s claim precludes a finding of contempt, even if the creditor’s belief if unreasonable.'” The U.S. Supreme Court also rejected a proposed strict liability standard.

In Fort Bend County v. Davis, the U.S. Supreme Court holds unanimously that the requirement that the EEOC consider a discrimination in employment claim and issue a letter authorizing the victim of the discrimination to sue is not a jurisdictional requirement, so it can be waived the party that allegedly discriminated in litigation by failing to object to the claim on that ground.

In Mont v. United States, the U.S. Supreme Court holds in a 5-4 decision that the deadline to punish a criminal defendant for violating the terms of parole is tolled by time spent incarcerated prior to trial on new charges for crimes allegedly committed while on parole, if the pre-trial incarceration period is ultimately converted to time served credit against a sentence for that crime even if that conversion happens after the deadline for sanctioning the parole violation has expired.

Vindication!

One of my very first experiences in the State of Colorado was being pulled over for the alleged traffic offense discussed in a case decided by the Colorado Supreme Court today (I escaped with a warning and then as in this case, the stop was actually a pre-text driven by a desire to search my car.) The Court held that it is not against the law to fail to signal for at least 200 feet before changing lanes in Colorado, so long as you do signal before changing lanes.

An earlier appellate precedent in Colorado has also discredited the other reason asserted for stopping me, that my fuzzy dice obscured my vision.

The Myth Of Contracts Being Written Based Upon Settled Law

A Colorado Supreme Court case decided today is a blow to the widely promulgated myth that important systemically used contracts have the language that they do because the meaning of the words used in them is settled law. Its opinion today in the case of Renfandt v. New York Life Insurance Company, 2018 CO 49, demonstrates that this is not the case, opening with the following language (bold emphasis added):

¶1 While appearing to be in a “zombie-like” state from a combination of prescription medication, alcohol, and marijuana, Mark Renfandt shot himself in the head and died. When Mark’s wife tried to collect life insurance benefits under a temporary coverage agreement issued by New York Life Insurance Company, the insurer denied the claim, citing a provision in the agreement that excluded coverage for “suicide . . . while sane or insane.”  

¶2 Mark’s wife sued New York Life in state court, asserting breach of contract and other claims. She argues that Mark’s death was not a suicide because the combination of substances that Mark ingested rendered him so intoxicated that he was unable to act volitionally or form suicidal intent when he shot himself. Thus, she contends, the policy’s suicide exclusion does not apply to Mark’s death.  

¶3 New York Life removed the case to federal court and moved to dismiss the complaint. It maintains that the term “suicide” must be read in conjunction with the phrase “sane or insane,” and that this additional language in the agreement was meant to remove any inquiry into whether the decedent intended to kill himself.  

¶4 The United States District Court for the District of Colorado determined that the meaning of “suicide . . . while sane or insane” is unclear under Colorado law, and certified the question to this court under C.A.R. 21.1: Under Colorado law, does a life insurance policy’s exclusion for “suicide, sane or insane” exclude coverage (1) for all acts of self-destruction without regard to the insured’s intent or understanding of the nature and consequences of his/her actions or (2) for only acts of self-destruction committed when the insured intends to take his/her own life or understands the nature and consequences of his/her actions?  

¶5 The meaning of the term “suicide” in the context of an insurance policy exclusion—and how to construe such an exclusion when the term “suicide” is modified by the words “sane or insane”—are questions that have divided English and American courts since the early nineteenth century. Several American courts have held that the phrase “suicide, sane or insane” refers to acts of self-destruction regardless of whether the decedent understood the physical nature or consequences of his act or had a conscious purpose to take his life—in other words, regardless of whether the decedent acted with an intent to kill himself. Others have concluded that, for a death to be considered a suicide, the decedent must have intended to kill himself, and that the additional words “sane or insane” do not negate the essential requirement of suicidal intent. 

¶6 This disagreement appears to stem from different concepts of the term “suicide.” Some courts conceive of “suicide” broadly to mean any act of self-destruction. Others treat “suicide” as a concept that requires the decedent to be aware of the physical nature and consequences of his act, and to intend to kill himself. Under this view, “suicide” is limited to acts of intentional self-destruction; it is the deliberate termination of one’s existence.

The Court goes on to find that suicidal intent is necessary in Colorado. It's holding states:

¶7 This court has sided with the latter view, indicating in Lockwood v. Travelers Insurance Co., 498 P.2d 947, 951 (Colo. 1972), that suicide requires both a voluntary act (in that case, consciously pulling a trigger) and suicidal intent (i.e., an intent to cause one’s own death). Today, we reaffirm this view of the term “suicide” and conclude that the additional words “sane or insane” do not negate the requirement that the “suicide” 5 be an act of self-destruction taken with the intent to cause one’s own death. Thus, we answer the certified question: under Colorado law, a life insurance policy exclusion for “suicide, sane or insane” excludes coverage only if the insured, whether sane or insane at the time, committed an act of self-destruction with the intent to kill himself. 

Incidentally, suicide exclusions are also prohibited in life insurance policies on Colorado insured after when the death occurs after the first policy year, unless the policy is an accidental death policy. 

Colorado and U.S. Supreme Courts On Vacation

The Colorado Supreme Court will not be releasing any case announcements until Monday, July 31, 2017, no later than 10 a.m. However, no new opinions will be announced on that date.

From here.

The U.S. Supreme Court has also finished its most recent time and won't be issuing any opinions for a while, except for emergency stay motions.

Colorado Supreme Court Ignores Big Picture In Sentencing Ruling

Schneider sought review of the court of appeals’ judgment affirming his convictions and consecutive sentences for two counts of sexual assault. The jury returned guilty verdicts on one count of sexual assault of a physically helpless victim and another count of sexual assault by causing submission of a victim by means of sufficient consequence reasonably calculated to cause submission against the victim’s will, based on evidence of a single, continuous penetration of the same victim; and the trial court imposed mandatory consecutive sentences for conviction of separate crimes of violence arising out of the same incident.

From here (emphasis added; quoting the official syllabus of the case, which is Schneider v. People, 2016 CO 70).

Despite the fact that the Defendant raped a single individual in a single incident, both the Colorado Court of Appeals and the Colorado Supreme Court affirm two consecutive sentences for the offense, basically doubling the jail time involved because the defendant was prosecuted on two theories and the jury agreed with both of them. This is an obviously unjust result that the courts managed to talk themselves out of caring about. The fact that the decision is unanimous in the face of such a clear case is particularly troubling.

Also, keep in mind that the more serious of the two offenses is a class 3 felony (one notch below second degree murder) and is subject to an indeterminate sentences with a minimum set by the judge and a maximum life sentence. It is not as if concurrent, rather than consecutive sentencing would have resulted in a lenient sentence for an admittedly serious crime.

This kind of ruling is particularly troubling because a great many particularly long sentences occur because legislatures set sentences largely based on what they deem appropriate when there is a single offense and don't contemplate carefully enough how consecutive sentences can result in a punishment that is more severe than is appropriate for the course of conduct giving rise to the punishment.

For example, I suspect that many legislators would be stunned to learn that consecutive sentences were possible in the fact pattern presented by this case.

Today At The Colorado Supreme Court

The Colorado Supreme Court made several notable rulings today.

Jurisdiction Over Parent Companies Narrowed

Two of them (here and here) ratified recent U.S. Supreme Court jurisprudence that makes it harder for a court to secure jurisdiction over a parent company solely on the basis of contract of the subsidiary with the forum.  Basically, this is now allowed only when there is a basis to pierce the corporate veil of the subsidiary company to hold the parent company liable and there would otherwise be a basis upon which to assert jurisdiction.

Interestingly, only the last of the several controlling recent U.S. Supreme Court cases on point that compel its conclusion are cited by the Colorado Supreme Court in its ruling.

Speeding Ticket Burden of Proof

A Mesa County man convicted of speeding in county court fought his fight over who had the burden of proof of showing that he was nonetheless reasonable and prudent after it is established that he was driving over speed limit went all of the way to the Colorado Supreme Court.  The speeder lost as the Colorado Supreme Court held that the burden of proof to show that he was within this exception to the general rule of strict liability for driving over the speed limit was on the speeder and not the People.

Equitable Defenses Allowed To Child Support Collection Cases

Another provides a new barrier to collection of interest on child support judgments. In 1960, the Colorado Supreme Court held that the defense of "laches" (undue delay causing prejudice where a statute of limitations does not bar a claim) was not available in child support collection actions because this is not an "equitable claim." But, in a landmark case in 2014, the Colorado Supreme Court held that based upon the merger of "law" and "equity" jurisprudence in the state in 1877, that equitable defenses could be raised to oppose claims brought in "law".  Today, it extended its 2014 ruling to allow defendants in child support cases to assert the defense of laches even though those are "legal" claims.

Basically, the distinction between "law" and "equity" involves a determination of whether the common law courts of England or the chancery courts of England had jurisdiction over those claims before the parallel court systems were merged. It is most prominent in cases involving the right to a jury trial in civil cases, where juries are allowed in cases arising at law, but not in equity, under the United States Constitution under the 7th Amendment.  Despite the fact that the 7th Amendment does not apply to the states, most states, including Colorado, apply that the federal rule regarding the right to a jury trial.

Generally speaking, claims at law involve straight forward claims for money damages for a breach of contract, injury to property, or personal injury, although it also includes claims for the return of particular items of personal property. Equity usually involves injunctive relief in the form of a free form court order enforceable by the contempt of court power, a very complex set of facts, or certain kinds of subject matter usually involving corporate or family law (although not necessarily mere collection of amounts previously awarded and reduced to judgment in a family law case).

In this particular case, a support order was entered in 1983 and the youngest child turned nineteen in July of 1995, which the Court determined was when the child support obligation ceased. Wife brought suit in September of 2012.  But, most of the $893,285.32 that would otherwise be due was barred by the 20 year statute of limitations on enforcing money judgments, so only defaults on the amounts due in the time period after September 1992 were considered. The father did fail to pay $400 a month of child support from July 1994 when his child turned eighteen to July 1995 when the child support obligation ended upon the child attaining the age of nineteen, and interest accrued at the statutory child support arrears interest rate of 12% per annum, compounded monthly, on the unpaid installments.  When judgment entered that interest amount was $46,399.62.

Based upon the Colorado Supreme Court's ruling, the father will be permitted to challenge that interest award on the grounds that he was prejudiced by undue delay on the part of the wife in suing to enforce her child support judgment, and the trial court will have to rule based upon the facts presented to it on that issue.

"A laches defense comprises three elements: (1) full knowledge of the facts by the party against whom the defense is asserted, (2) unreasonable delay by the party against whom the defense is asserted in pursuing an available remedy, and (3) intervening reliance by and prejudice to the party asserting the defense."

It isn't clear how that applies in this case's circumstances.

Other Less Notable Cases

Two other cases decided today dealt with the technical issue of when a developer's land becomes subject to homeowner's association dues in quite fact laden circumstances (in these cases it was not because the court found that the land wasn't annexed to the association at the time the dues were assessed).

Another dealt with whether drugs and a confession obtained from someone stopped for a traffic violation should be suppressed for a violation of the 4th Amendment (it was not based upon the finding that the search and confession were consensual).

Colorado Supreme Court Rules On General Jurisdiction And Tag Jurisdiction

In the case of Magill v. Ford Motor Co., 2016CO57, decided today, the Colorado Supreme Court has enshrined in Colorado precedent two major new rulings on jurisdiction over corporations, both of which make it harder to sue corporations.

The case involves the Magills were injured in a car accident with an El Paso County man in Douglas County, where they resided.  They sued the other driver for negligence and also Ford Motor Company on a product liability theory.  By including a Colorado defendant in addition to Ford Motor Company, and by suing on state law tort claims, they escaped federal court jurisdiction. Under the traditional law of "general jurisdiction", Ford Motor Company could be sued on any subject in any state where it had a permanent office or permanent agent, and resided in the state at the location of each of its permanent offices including that of its registered agent in Denver.  So, the Magills sought to sue in Denver, which had a favorable jury pool and was convenient for many lawyers since the Ford Motor Company defendant could be considered to reside in Denver.  But, while this approach would have worked in 2006, it failed in 2016.

First, the Colorado Supreme Court rejected the doctrine (called "tag jurisdiction"), applicable in cases where individuals are served with process, that serving a defendant with process in a state gives a court in the state where the service of process took place, jurisdiction over the defendant even if the defendant has no other connections to the state.  This mirrors a 9th Circuit case reaching the same conclusion in 2014 (the same post notes that the 9th Circuit also reached the same conclusion regarding the jurisdictional effect of having a registered agent in the state).

An important subset of this ruling, partially related to its second holding, is that registration of an agent for service of process in a state, which had originally been required by states of corporations doing business in the state so as to give the state's jurisdiction over the corporation, is no longer sufficient to confer general jurisdiction over the corporation.

Second, following the lead of the U.S. Supreme Court in the case of Daimler A.G. v. Bauman, 134 S. Ct. 746 (2014) (covered in this post when it was decided), the Colorado Supreme Court has applied the doctrine that "general jurisdiction" over a corporation, which previously allowed suit on any subject to be brought against a business in any state in which it had a regular office or agent for the conduct of business, is now limited to jurisdictions where the corporate defendant is "at home" which basically means the state where it is incorporated or where its headquarters is located.  Thus, Ford which is incorporated in Delaware and has its headquarters in Michigan is not "at home" in Colorado.

It also made rulings on venue under the Colorado Rules of Civil Procedure, holding that the City and County of Denver was not a proper venue, despite the fact that Ford had an agent for service of process in the county, when the underlying car accident took place in Douglas County (a Denver suburb) where the Plaintiffs also resided, and the other driver was an El Paso County resident.  Thus, the neither the address of the agent for service of process for Ford nor the location at which the service of process was secured, was sufficient to establish venue, in addition to being insufficient grounds to establish general personal jurisdiction.

The Colorado Supreme Court remanded to allow the Denver Court to transfer the case to a new venue (presumably Douglas County where the accident occurred, although El Paso County would also be proper because a defendant resided there), and then to determine if Colorado has "specific" personal jurisdiction over Ford Motor Company due to the connections of the facts of the particular case to Ford Motor Company (which is almost surely will, because the accident took place in Colorado).

In this particular case, the only practical effect will be a new judge in a different county not terribly far from the one where the suit was brought originally (which will actually probably be less convenient for Ford Motor Company's out of state legal team than the original venue, but critically, will have a more defendant friendly jury pool in either Douglas County or El Paso County).  But, the precedent will come up in almost every lawsuit against an out of state corporation brought in Colorado.

The decision was unanimous, because its central holding was largely foreordained by the U.S. Supreme Court and the collateral rulings made which were not dictated by that ruling, will make the related doctrines much simpler than if they had gone the other way (possibly also tempting the U.S. Supreme Court to take up the case to review it).

Plausibility Pleading Reaches Colorado

The Colorado Supreme Court today adopted the plausibility pleading standard of the U.S. Supreme Court cases Twombly and Iqbal in the case of Warne v. Hall by a closely split 4-3 margin.

It did so out of a desire to have harmony between the Federal Rules of Civil Procedure as currently interpreted, and the Colorado Rules of Civil Procedure which are modeled on the federal rules, despite the fact that Twomblyand Iqbal have been widely condemned and almost universally condemned as bad decisions that hurt legitimate plaintiffs in academic circles.

Justice Gabriel's dissent sums up the case against taking this step:

¶31 Today, the majority jettisons a rule that has stood the test of time for over fifty years, based largely on an asserted preference for maintaining uniformity with federal court interpretations of analogous federal rules of procedure. In reaching this result, the majority misperceives the existing state of the law in Colorado and grafts onto C.R.C.P. 8 a “plausibility” requirement that the rule does not contain and that other courts have correctly recognized results in a loss of clarity, stability, and predictability. Even more concerning, the majority’s preferred standard allows a single district judge, at the incipient stages of a case, to weigh what the judge speculates the plaintiff will plausibly be able to prove, based on the individual judge’s subjective experience and common sense, and then to decide whether the plaintiff’s action is viable. 

¶32 I cannot subscribe to such a standard, which I believe will deny access to justice for innumerable plaintiffs with legitimate complaints. Indeed, the majority’s application of its newly adopted standard in this case demonstrates the overreaching nature and ultimate unfairness of that standard.

But, the odious federal standard is now Colorado law as well.

Colorado's Republicans are not the worst

While the Republican caucus in Congress knows few words other than "no", Republicans controlling the Colorado Senate worked together with the Democratic Governor and Democratic party led Colorado House to pass a budget and enact common sense legislation like laws legalizing household rain barrels, tweaking our legalized marijuana regime, phasing in full strength beer and wine in grocery stores, reforming campaign finance and juvenile life without parole statutes that have been held unconstitutional, auditing state tax expenditures, and asking voters to eliminate a loophole in the constitutional prohibition of slavery in Colorado.

While a Donald Trump led Republican party nationally is increasingly becoming overtly racist with not so subtle neo-Nazi overtones , Colorado Republicans have put two African-American Republicans on the U.S. Senate Primary ballot, preferred African American neurosurgeon Ben Carson to all other Presidential candidates in the race in a late 2015 straw poll before he dropped out of the race, and nominated and elected an African-American as Colorado Secretary of State.  Suffice it to say that this would never happen in the North Carolina Republican party.

And, Colorado Supreme Court Justice Allison Eid, one of the two solidly conservative justices out of the seven justice of the Colorado Supreme Court (and wife of a top GOP operative in Colorado), is apparently on Donald Trump's short list of SCOTUS nominees. Honestly, of all the judges whom a Republican President could nominate and certainly of all of potential nominees on Trump's list, Eid would probably be one of the better choices. She is a conservative jurist in the model of Rehnquist and Roberts, not Scalia, Alito and Thomas, despite the fact that she clerked for Justice Thomas. She is also the smarter and more thoughtful of the two reliably conservative justices on the Colorado Supreme Court.

Mr. Trump’s selections consisted of six federal appeals court judges appointed by President George W. Bush and five state supreme court justices appointed by Republican governors. All are white . . . . 

They include several judges who are favorites of conservative legal scholars, like Dianne S. Sykes, a judge on the United States Court of Appeals for the Seventh Circuit who was appointed by President Bush. . . . The federal appeals court judges on the list included Steven M. Colloton of the Eighth Circuit, a former clerk to Chief Justice William H. Rehnquist, and Raymond M. Kethledge of the Sixth Circuit, who clerked for Justice Anthony M. Kennedy. 

The state supreme court justices included Joan Larsen of Michigan, a former clerk to Justice Scalia, and also Allison H. Eid of Colorado, David Stras of Minnesota and Thomas Rex Lee of Utah, all three of whom clerked for Justice Clarence Thomas. In addition, Judge Lee’s father, Rex, served as solicitor general in the Reagan administration, and his brother, Mike Lee, is a Republican senator from Utah.
Another state supreme court justice on the list, Don Willett of Texas, previously worked for the Bush White House’s office of faith-based initiatives and later in Texas government, where he pushed to keep a monument of the Ten Commandments on public property and the words “under God” in the Pledge of Allegiance, issues he has promoted on his Facebook page.

We certainly have our share of Republican crazies in Colorado, most notably state representative Gordon Klingenschmitt.

But, on the whole, Colorado Republicans are relatively decent compared to their peers in many other states.

Colorado Supreme Court's Adopted New Civil Procedure Rules Drop Delay Reduction Reform

In Colorado, you commence a lawsuit by filing a Complaint and delivering it to the persons who are being sued.  Once that is delivered, the defendants have a certain number of days to either file an Answer to the allegations of the Complaint (with or without counterclaims against the person bringing the lawsuit and cross-claims against co-defendants) or to file a Motion to Dismiss or a Motion for a More Definite Statement.

Motions to dismiss can either argue that the court lacks jurisdiction, or argue that even if everything in the Complaint is true that the defense wins (this is called "failure to state a claim upon which relief can be granted").  A Motion for a More Definite Statement argues that the Complaint is too vague to provide a response to in an Answer.  In these circumstances, there is no requirement to file an Answer and fully frame the dispute between the parties until after these motions are ruled upon.  Many of these motions are filed primarily for purposes of delay and to frame the legal issues in the case for the judge, knowing that they are unlikely to be granted.

It is not uncommon for a court to take a very long time to rule on a Motion to Dismiss for failure to state a claim upon which relief can be granted (a.k.a. a 12(b)(5) motion), or a Motion for a More Definite Statement.  Within the last couple of years, I have had cases where rulings on each of these types of motions has taken more than six months.  Thus, the case doesn't even really begin for many months.

In federal court, the duty to file an Answer is delayed by the filing of a Motion to Dismiss, but not the discovery process unless a "String Cheese Motion" is granted, which is usually done only in cases where there are jurisdiction disputes, although the formal legal standard is not categorical and involves a balancing test.

Rule changes proposed by the Colorado Supreme Court earlier this year would have required defendants to file Answers even when a motion to dismiss for failure to state a claim upon which relief can be granted, or a motion for a more definite statement is pending.  The postponement of the requirement to file an Answer would have continued to exist in cases where jurisdiction is at issue.  This reform had been implemented in a pilot project in Colorado courts with great success and little complaint. A review of the written comments filed regarding this proposal does provides some insight, however.

But, for some reason not publicly explained, the final version of the rule, which takes effect for cases filed on and after today in Colorado, didn't not incorporate this critical delay reducing reform.  This was certainly the prerogative of the court to do.  An ability to make changes between the proposed and final version of a rule change is why public comment is allowed in the first place.  But, it is still hard to understand why this sensible signature reform of the new rules was not adopted.

Opposition from the CBA Litigation section, and a handful of its members along the same lines, may have been a factor. It said:

Rule 12. Requiring answers and allowing cases to proceed, despite the pendency of certain motions to dismiss, may increase the amount of attorney fees recoverable against plaintiffs, such as under section 13-17- 201, CR.S. 2014, upon dismissal.

Another opponent was CIRSA, which is an insurance-like defense pool that represents municipalities that have been sued. It stated (emphasis added):

CIRSA is concerned because these proposed amendments to Rule 12(a) will require the municipality and its employees to file an answer and engage in time consuming discovery even though they have filed a motion to dismiss for failure to state a claim under Rule 12(b)(5). This will cause CIRSA and its members (many of whom have significant deductibles) to incur substantial litigation expense while awaiting a ruling on the Rule 12(b)(5) motion. CIRSA's experience is that rulings on pending Rule 12(b) motions can take a considerable amount of time, often many months. Requiring the municipalities and their employees to incur the expense of litigating these case 'while awaiting a ruling on the Rule 12(b)(5) motion will cause unnecessary waste of time and money. 

In addition, certain immunities are often raised under Rule 12(b)(5). The decision on whether the municipality or its employee is entitled to immunity from suit is critically important, and the purpose of filing the motion to dismiss is to protect public employees and municipalities from ill-considered and improperly filed lawsuits. Accordingly, CIRSA's proposal is that the Rule should exclude all defendants from filing an answer and engaging in discovery when the defendants file a motion not only under Rule 12(b)(1) -(4), but also under 12(b)(5).

Full disclosure:  CIRSA was one of my major clients for several years early in my career.

Colorado attorney general opposed the rule change for similar reasons:

The proposed changes to Rules 12 and 16 would require parties to file an answer and place a case "at issue" for purposes of scheduling and discovery, even though a motion to dismiss has been filed under Rule 12(b)(5) for failure to state a claim. The Attorney General's Office has identified significant concerns regarding the effect of these proposed changes on defenses commonly raised in litigation against public officials. Accordingly, the Attorney General's Office has proposed additional revisions to Rules 12 and 16. See attached. The proposal would (1) exempt from the new requirements Rule 12(b)(5) motions in which a party raises "a defense of qualified or absolute immunity" and (2) add Rule 12(b)(5) motions in which a party raises "a defense of qualified or absolute immunity" to the list of motions that the trial court should prioritize. The Attorney General's proposal has been presented to and accepted by the Rules Committee. 

Although public entities commonly file motions to dismiss under Rule 12(b)(1) asserting immunity under the Colorado Governmental Immunity Act (CGIA), many of the other immunities frequently asserted by public entities and officials are raised under Rule 12(b)(5). Most significantly, state actors (officials and employees not only of the State but also of counties, municipalities, school districts, and other public entities) often assert the defense of qualified immunity in response to claims asserting that a state actor violated a federal right. Such claims are routinely filed in state court. See, e.g., Churchill v. Univ. of Colo., 285 P.3d 986, 999 (Colo. 2012). Because a state actor's entitlement to qualified immunity is assessed based on the face of the complaint and does not implicate the court's subject matter jurisdiction, such motions are filed under Rule 12(b)(5). See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 666 (2009) (noting that the case originated with a motion to dismiss asserting failure to state a claim); Sebastian v. Weaver, 2013 Colo. App. LEXIS 1450, at *2 (Colo. App. 2013), cert. granted, 2014 Colo. LEXIS 673 (Colo. 2014). 

The United States Supreme Court routinely has held that state actors are presumed to be immune from liability as long as their actions did not "violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Whether a defendant is entitled to qualified immunity should be resolved at the "earliest possible stage in litigation." Pearson v. Callahan, 555 U.S. 223, 232 (2009). This is because qualified immunity is both a defense to liability and an "entitlement not to stand trial or face the other burdens oflitigation." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Denial of qualified immunity to a state official is subject to interlocutory appeal when the qualified immunity determination is made as a matter oflaw-as is routinely the case. City of Lakewood v. Brace, 919 P.2d 231,241 (Colo. 1996). 

Motions to dismiss asserting other forms of immunity such as the absolute immunity of judicial officers and prosecutors similarly are brought under Rule 12(b)(5). See, e.g., Imbler v. Pachtman, 424 U.S. 409, 416 (1976). Denial of a motion to dismiss based on absolute immunity also would be subject to an interlocutory appeal. See Chadha v. Charlotte Hungerford Hosp., 865 A.2d 1163, 1170 (Conn. 2005). 

Because the various immunity defenses are intended to insulate public employees from the burdens of discovery and trial, as well as from liability, motions to dismiss raising these defenses should be exempt from the proposed requirements to answer the complaint and begin discovery. I appreciate the Committee's willingness to consider the concerns of public entities and urge the Supreme Court to consider the State's proposed revisions when the Court takes up the proposed amendments.

The concern of the municipalities and the state attorney general could have been addressed with a modification of the rule, postponing the requirement to file an Answer when a defense of qualified immunity was raised.

But, the concern raised by the Plaintiffs bar, the the attorneys' fees owed if a motion to dismiss is granted would be greater if the litigation was being prosecuted while the parties awaited a ruling on the motion to dismiss is trickier.  The Colorado Supreme Court, in reaction, chose caution for now, even though in the large share of cases, Motion to Dismiss filings are a very important factor in increased litigation cost and delay.

As a matter of policy, I would favor eliminating CRCP 12(b)(5), except in cases involving governmental immunity, entirely, and likewise eliminating the fee shifted statute in Colorado that awards attorneys' fees when a motion to dismiss is granted, or in the alternative, awarding the Plaintiff their attorneys' fees in any case where a CRCP 12(b)(5) motion does not successfully dismiss every single claim asserted by the Plaintiffs in the case, so it would be used much more sparingly.