Case 1:10-cv-02930-JLK Document 44 Filed 06/03/11 USDC Colorado Page 1 of 15

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 10-CV-02930-JLK-BNB

COLORADO CRIMINAL DEFENSE BAR, a Colorado non-profit corporation;

COLORADO CRIMINAL JUSTICE REFORM COALITION, a Colorado non-profit
corporation,

Plaintiffs,

v.

JOHN HICKENLOOPER, et. al.,

Defendants.
______________________________________________________________________________

DISTRICT ATTORNEY GROUP DEFENDANTS’ MOTION

TO DISMISS AMENDED COMPLAINT
______________________________________________________________________________

The District Attorney Group Defendants, SCOTT W. STOREY, District Attorney, First

Judicial District; MITCHELL R. MORRISSEY, District Attorney, Second Judicial District;

FRANK RUYBALID, District Attorney, Third Judicial District; DAN MAY, as District

Attorney, Fourth Judicial District; MARK D. HURLBERT, District Attorney, Fifth Judicial

District; TODD RISBERG, District Attorney, Sixth Judicial District; DANIEL

HOTSENPILLER, District Attorney, Seventh Judicial District; LARRY R. ABRAHAMSON,

District Attorney, Eighth Judicial District; MARTIN BEESON, District Attorney, Ninth Judicial

District; THOM LEDOUX, District Attorney, Eleventh Judicial District; DAVID MAHONEE,

District Attorney, Twelfth Judicial District; ROBERT E. WATSON, District Attorney,

Thirteenth Judicial District; ELIZABETH OLDHAM, District Attorney, Fourteenth Judicial

District; JENNIFER SWANSON, District Attorney, Fifteenth Judicial District; RODNEY D.

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FOURACRE, District Attorney, Sixteenth Judicial District; DONALD S. QUICK, District

Attorney, Seventeenth Judicial District; CAROL A. CHAMBERS, District Attorney, Eighteenth

Judicial District; KENNETH R. BUCK, District Attorney, Nineteenth Judicial District;

STANLEY L. GARNETT, District Attorney, Twentieth Judicial District; PETER G.

HAUTZINGER, District Attorney, Twenty-First Judicial District; RUSSELL WASLEY,

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

future criminal defendants.

Accordingly, in addition to the DA Group Defendants‟ joinder in the State Defendants‟

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

pursuant to Fed. R. Civ. P. 12(b)(6), for the reasons addressed herein.2

ARGUMENT

I. THE DA GROUP DEFENDANTS JOIN IN THE STATE DEFENDANTS’

MOTION TO DISMISS AMENDED COMPLAINT.

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‟

Motion to Dismiss herein.

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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II. PLAINTIFFS HAVE FAILED TO ALLEGE AN “ACTUAL

CONTROVERSY” UNDER THE DECLARATORY JUDGMENT ACT.

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.

(Id. ¶¶ 83 and 140).

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.

Federal declaratory judgment jurisprudence begins with Aetna Life Insurance v.

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:

A “controversy” in this sense must be one that is appropriate for judicial

determination. The controversy must be definite and concrete, touching the legal
relations of parties having adverse legal interests. It must be a real and substantial
controversy admitting of specific relief through a decree of conclusive character,
as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts.

Id. at 240-41 (internal citations omitted).

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,

330 U.S. 75, 89 (1947)).

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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

(1995). As noted in Wilton:

By the Declaratory Judgment Act, Congress sought to place a remedial arrow in

the district court‟s quiver; it created an opportunity, rather than a duty, to grant a
new form of relief to qualifying litigants. Consistent with the non-obligatory
nature of the remedy, a district court is authorized, in the sound exercise of
discretion, to stay or to dismiss an action seeking a declaratory judgment before
trial or after all arguments have drawn to a close. In the declaratory judgment
context, the normal principle that federal courts should adjudicate claims within
their jurisdiction yields to considerations of practicality and wise judicial
administration.

Id. at 288.

Thus, “the test for determining an actual controversy by a declaratory judgment

proceeding is whether there is a controversy between the parties having adverse legal interest of

sufficient immediacy and reality to warrant issuance of declaratory judgment.” Norvell v.

Sangre de Cristo Dev. Co., 519 F.2d 370, 378 (10th Cir. 1975) (internal citations omitted).

The difference between an abstract question and a controversy contemplated by

the Declaratory Judgment Act is necessarily one of degree and it would be
difficult, if it would be possible, to fashion a precise test for determining in every
case whether there is such a controversy. Basically the question in each case is
whether the facts alleged under all the circumstances show that there is a
substantial controversy between parties having adverse legal interests of sufficient
immediacy and reality to warrant the issuance of a declaratory judgment.

Joslin v. Sec‟y of Dep‟t of Treasury, 832 F.2d 132, 135 (10th Cir. 1987).

In Zwickler, the United States Supreme Court considered whether a “controversy”

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

accept the suggested declaratory judgment action.

In Joslin, the Tenth Circuit considered a declaratory judgment complaint filed by an

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

“controversy” requirement, the Court concluded:

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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C. Plaintiffs Fail to Allege An Actual Controversy.

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

purports to be. They allege:

A substantial and justiciable controversy exists between Plaintiffs and Defendants

because Plaintiffs‟ members consistently confront inconsistency and uncertainty
regarding their compliance with their professional and statutory obligations due to
Colo. Rev. Stat. § 16-7-301(4)‟s deferral of appointment of counsel until after
indigent defendants‟ plea discussions with the prosecuting attorney.

(Am. Compl. ¶ 194).

Of course, “consistently confront[ing] inconsistency and uncertainty” fits squarely within

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

represented by a member of one of the Plaintiff organizations.5

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

for plea negotiations . . ..” (Id. ¶ 197(vi)).

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

135. The Amended Complaint should be dismissed.

III. PLAINTIFFS HAVE BROUGHT AN ABSTRACT, “FRIENDLY”

LAWSUIT AND HAVE FAILED TO ALLEGE A PERSONAL STAKE IN
THE CONTROVERSY.

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

conceive of a more “friendly” alignment of parties in a lawsuit, or a more “friendly” goal.

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

place in federal court jurisprudence.

A. Federal Jurisprudence Requires Adverse Legal Interests for a Declaratory

Judgment Action.

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

controversy to obtain judicial resolution of a dispute.” Id.

Stated otherwise, “[p]rudential limitations on standing concern whether a plaintiff‟s

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.

2010). Plaintiffs‟ Amended Complaint fails all prudential standing limitations.

B. This Lawsuit Does Not Contain Adverse Legal Interests

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

zone prior to their entry of appearance. (Id. ¶ 194).

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

addressed before the legislative branch.

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

to be comprised of present day, unrepresented criminal defendants subject to misdemeanor plea

bargaining in Colorado. (Am. Compl.)

“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

adjudication. Id. at 1295.

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

the additional reasons stated herein.

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Respectfully submitted this 3rd day of June, 2011 by:

s/ Stanley L. Garnett
Stanley L. Garnett
District Attorney
Christopher C. Zenisek
Assistant District Attorney
Lisa K. Michaels
Deputy District Attorney

Boulder Justice Center

1777 Sixth Street
Boulder, CO 80302
Telephone: 303-441-3700
FAX: 303-441-4703
Email: sgarnett@bouldercounty.org
czenisek@bouldercounty.org
lmichaels@bouldercounty.org

ATTORNEYS FOR THE DISTRICT

ATTORNEYS OF THE FIRST THROUGH
NINTH, AND ELEVENTH THROUGH
TWENTY-SECOND JUDICIAL DISTRICTS

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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:

Scott F. Llewellyn: sllewellyn@mofo.com

Collin Michael O‟Brien: cobrien@mofo.com
Morrison & Foerster, LLP-Denver
370 17th Street Republic Plaza #5200
Denver, CO 80202-5638

Matthew David Grove: matthew.grove@state.co.us

Rebecca Adams Jones: rebecca.jones@state.co.us
Colorado Attorney General‟s Office
1525 Sherman Street
Denver, CO 80203

s/ Catherine Olguin
Catherine Olguin

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