November 18, 2017

Colorado Court of Appeals: C.R.C.P. 106 Time Limit for Filing is Constitutional As Applied

The Colorado Court of Appeals issued its opinion in Adams v. Sagee on Thursday, October 19, 2017.

Citizen Right of Initiative—Filing Deadline.

Plaintiffs petitioned to present a ballot initiative to the residents of Sheridan. Sheridan’s City Clerk, Sagee, rejected some of the signatures plaintiffs had collected, leaving them short of the number required for the initiative to be considered. Plaintiffs contested the decision, and the City Clerk upheld it after a protest hearing. Plaintiffs filed a complaint in district court 35 days later pursuant to C.R.S. § 31-11-110(3). The district court dismissed the case for lack of subject matter jurisdiction because plaintiffs failed to file within the C.R.C.P. 106 28-day time limit.

On appeal, plaintiffs conceded that the 28-day jurisdictional bar applied and they filed 35 days after the relevant final decision. They argued that strict application of the time limit to them as pro se parties deprived them of their constitutional right of initiative. The Colorado Court of Appeals construed plaintiffs’ argument to be an as-applied challenge to the constitutionality of the statutory time bar. The court found plaintiffs pro se status irrelevant; pro se parties must comply with procedural rules to the same extent as parties represented by attorneys. The court concluded that applying C.R.C.P. 106(b)’s jurisdictional deadline to plaintiffs’ Rule 106(a)(4) petition does not deprive them of or unduly burden their constitutional right of initiative.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Filing Restrictions Imposed on Abusive, Frivolous Pro Se Filer

The Tenth Circuit Court of Appeals published its opinion in Landrith v. Schmidt on Tuesday, October 15, 2013.

Bret D. Landrith was admitted to the Kansas bar in 2002, but he was disbarred in 2005 for violating six of the Kansas Rules of Professional Conduct and “total incompetence in the practice of law.” He began filing baseless lawsuits and appeals related to the disbarment proceedings, as well as other unrelated frivolous and abusive lawsuits and mandamus proceedings.

The Tenth Circuit ordered Landrith to show cause why the court should not impose the following filing restrictions on him: “Subject to Landrith’s opportunity to file written objections that we outline below, we propose to enjoin Landrith from petitioning this court for relief, either by appeal or through an original proceeding, including a petition for a writ of mandamus under 28 U.S.C. § 1361, unless he either (1) is represented by an attorney who is admitted to practice in this court or (2) obtains permission to proceed pro se.”

Landrith failed to demonstrate good cause why the proposed filing restrictions should not be imposed. The court therefore ordered that the filing restrictions take effect immediately upon entry of this order.

Self-Help Assistance for Pro Se Litigants Approved by Supreme Court in CJD 13-01

Colorado Supreme Court Chief Justice Michael Bender recently issued Chief Justice Directive 13-01, dated June 12, 2013. The new CJD discusses assistance provided to pro se litigants in non-criminal matters by clerks, family court facilitators, self-represented litigant coordinators, and others.

The CJD defines self-help personnel and related terminology, and elucidates what types of assistance may be provided by the self-help personnel. Additionally, activities prohibited by self-help personnel are enumerated, and the CJD clarifies that the self-help personnel do not practice law by providing that help. A notice to the non-represented litigants is also included in the Directive.

For a complete list of Chief Justice Directives, click here.

U.S. District Court for the District of Colorado Seeks Attorneys for Civil Case Pro Bono Panel

The United States District Court for the District of Colorado announced formal adoption of a pilot program that creates a panel of attorneys who agree to accept pro bono appointments to represent pro se litigants of limited financial means in civil cases before the court. Common case types include employment discrimination, Social Security disability appeals, prisoner’s rights (§ 1983 or Bivens), civil rights, and consumer rights/credit reporting/foreclosure cases. Attorneys can choose which types of cases they are willing to take. Appointment orders to members of the Panel will begin July 1, 2013.

The court is seeking applicants to the Civil Pro Bono Panel — attorneys, law firms, and clinical legal education programs at law schools — that are willing to accept appointments in these cases. The Application Form is attached to the end of the Civil Pro Bono Pilot Program Plan. Interested attorneys may submit a completed application either by mail to the Clerk of the Court, United States District Court, Attn: Edward Butler, Legal Officer, Alfred A. Arraj U.S. Courthouse Annex, 901 19th Street, Denver, Colorado 80294; or may submit the application by e-mail to: COD_ProBonoPanel@cod.uscourts.gov.

As a means to reimburse attorneys who accept cases as volunteers, the Pilot Program includes provisions for the Faculty of Federal Advocates (FFA) to manage the reimbursement of expenses, funded in part by grants to the FFA from the court. Funding for the grants will derive from an increase in attorney admission fees and a one-time renewal fee for current members of the Bar. Reimbursement of expenses is not guaranteed.

Members of the U.S. District Court Bar may submit payment of the one-time $50 renewal fee and completion of the Court’s Renewal Application Packet beginning July 15, 2013. Additionally, the attorney admissions fee increase to $211 from $186 will commence on that date. Check the U.S. District Court website for more information regarding completion of the Renewal Application Packet (Renewal materials and payment of the fee will be completed electronically through the website). All members of the U.S. District Court Bar are expected to pay the renewal fee by August 15, 2013.

 

New Self-Help Centers Open for Pro Se Litigants in Sixth and Twenty-Second Judicial Districts

On Tuesday, February 5, 2013, the Colorado State Judicial Branch announced the opening of self-help centers for pro se litigants in the Sixth and Twenty-Second Judicial Districts. The centers are in Durango and Cortez and are available for civil litigants.

The centers are part of the Judicial Branch’s program to address the need to provide legal services to people who cannot afford attorneys but have too many assets to qualify for legal aid. The centers are intended to ease the strain on court personnel who must spend time assisting pro se litigants.

Office hours for the Durango center are 1 p.m. to 4 p.m., Monday through Friday. Hours for the Cortez center are 10 a.m. to 2 p.m., Monday through Friday. For more information on the self- help centers, click here.

Attorney’s Limited Appearance on Behalf of Pro Se Party Allowed by Rule Change to C.A.R. 5

On Thursday, October 11, 2012, the Colorado Supreme Court issued Rule Change 2012(15), containing an amendment to Rule 5 of the Colorado Appellate Rules. The amendment adds subsections (e) and (f) to the rule, as well as a comment to explain the purpose of the new subsections.

The purpose of C.A.R. 5(e) is to establish a procedure similar to that set forth in Colorado Rule of Civil Procedure 121 Section 1-1(5). This procedure provides assurance that an attorney who makes a limited appearance for a pro se party in a specified appellate case proceeding(s), at the request of and with the consent of the pro se party, can withdraw from the case upon filing a notice of completion of the limited appearance, without leave of court. The purpose of C.A.R. 5(f) is to make clear that when an attorney appears for a party, whom he or she has not previously represented, in an appellate court and the proceedings in that court have concluded, the attorney is not obligated to represent the party in any other proceeding on remand or in any review of the appellate court’s decision by any other court. Nothing in this provision would prevent the attorney from entering a limited or general appearance on behalf of the party in another court (for example, on a writ of certiorari to the supreme court), if agreed to by the attorney and the party.

The amendments were adopted October 11, 2012, effective immediately. Click here to review the red line changes to these appellate rules, outlined as Rule Change 2012(15).

State Judicial Issues Forms Allowing Limited Appearances by Attorneys for Pro Se Parties

The Colorado State Judicial Branch has issued three new forms regarding limited appearances by attorneys for pro se parties. The forms have been released in conjunction CRCP 121, which was revised last month. Practitioners should begin using the new forms immediately.

All forms are available in Adobe Acrobat (PDF) and Microsoft Word formats; many are also available as Word or Excel templates. Download the new forms from State Judicial’s individual forms pages, or below.

District Civil

  • JDF 630 – “Civil Notice of Limited Appearance” (10/11)
  • JDF 631 – “Consent to Represent” (10/11)
  • JDF 632 – “Civil Notice of Completion by Attorney” (10/11)

Tenth Circuit: Five-Year-Old Child Properly Denied SSI Benefits for Alleged Asthma Disability

The Tenth Circuit Court of Appeals issued its opinion in Adams v. Astrue on Tuesday, November 1, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner filed an application for SSI benefits on behalf of her son, who was five at the time, alleging that he became disabled in 2004 due to asthma. The agency denied the application initially and on reconsideration. An ALJ later issued a decision denying benefits, finding that the child (1) had not engaged in substantial gainful activity since the filing of his application, (2) his asthma, history of tonsillectomy, and history of bilateral pressure equalization tubes are severe impairments, but (3) he did not have an impairment or combination of impairments that met, medically equaled, or functionally equaled, any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Listing of Impairments or Listing(s)). Petitioner, who is not an attorney, then sought judicial review on behalf of her son. The district court adopted the magistrate judge’s report and recommendation and affirmed the Commissioner’s denial of benefits.

The Court agreed with the decision of the lower courts. The Court found that Petitioner may proceed pro se on behalf of her minor child to challenge in federal court the administrative denial of SSI benefits, but they affirmed the Commissioner’s denial of those benefits. The Court rejected Petitioner’s argument that the ALJ should have found her son’s asthma was “medically equivalent” to adult asthma; it is discretionary whether the adjudicator applies that criteria to a child and the record evidence does not support the suggestion that the child’s asthma was potentially life-threatening. While the ALJ found the child’s and Petitioner’s testimony credible, the ALJ properly rejected the ultimate claim that he was disabled within the meaning of 42 U.S.C. § 1382c(a)(3)(C) because “’the allegations regarding the intensity, duration, and limiting effects of [his] severe impairments and symptoms’ were undercut by his and his mother’s reports of ‘relatively normal physical and mental activities with very little limitation.’”

Colorado Civil Procedure Rules Amended Regarding Limited Representation

The Colorado Supreme Court has amended the Colorado Rules of Civil Procedure. The change was made to CRCP 121 Local Rules – Statewide Practice Standards Section 1-1: Entry of Appearance and Withdrawal. A new Section 5 was added; sections 1-4 remain unchanged. The rule change is effective immediately.

The new Section 5 is entitled Notice of Limited Representation Entry of Appearance and Withdrawal. The new rule outlines the procedures by which an attorney may make a limited appearance for a pro se party in specified proceedings. The attorney must file and serve with the court and the other parties a notice of the limited appearance prior to or simultaneous with such proceedings. At the conclusion of the proceedings, the attorney’s appearance terminates without the necessity of leave of court when the attorney simply files a notice of completion of limited appearance.

The rule change is accompanied by a Committee Comment providing further explanation and background for the rule.

Click here to read more about this amended civil procedure rule, outlined as Rule Change 2011(13).

Ben Aisenberg: Attorney Discipline and the First Amendment

Pro se attorney litigant entitled to full First Amendment procedural and substantive rights, undaunted by attorney’s professional duties under the Colorado Rules of Professional Conduct, in zealously advancing his or her litigation.  In Matter of Foster, 10SA89 (Colo. 5-23-11).

In a case of first impression, the Colorado Supreme Court held that a pro se attorney litigant cannot be denied or limited, on the basis of the professional duties imposed on attorneys by the Colorado Rules of Professional Conduct, the First Amendment’s full procedural and substantive protections to litigate his or her pro se case zealously, but that litigation conduct which is both 1) objectively baseless, and 2) pursued for a subjectively improper purpose, is not protected by the First Amendment.

After hearing, attorney Foster was found to have violated Colo. RPC 3.1 (bringing a frivolous action) and 8.4(d) (engaging in conduct prejudicial to the administration of justice) in pursuing, pro se, lengthy and numerous post-dissolution of marriage related litigation and appeals against his ex-wife, Nunn.  Foster’s pre-hearing motion for summary judgment, which asserted that his litigation against Nunn was protected by his First Amendment rights to petition through the courts for legal redress, was denied.  Although finding the vast majority of his actions were either not frivolous or not proven to be frivolous, and in fact in some instances were partially successful, the Board also found that one of his appeals was partially frivolous because it duplicated claims previously litigated and lost, and that in the aggregate his lengthy and numerous actions reflected his desire to “vex and harass” Nunn notwithstanding his genuine belief that his arguments had a legitimate basis to obtain favorable relief.  In so finding, the Board rejected Foster’s First Amendment defense, holding that his rights to freedom of speech and access to the courts do not immunize him from the professional duties imposed on him by the Colorado Rules of Professional Conduct.

On appeal, the Colorado Supreme Court “categorically reject[ed]” the Hearing Board’s intimation that attorneys may be disciplined for engaging in conduct protected by the First Amendment, citing NAACP v. Button, 371 U.S. 415 (1963) [“a State may not, under the guise of prohibiting professional misconduct, ignore constitutional rights.”].  The Court reasoned that the First Amendment, which provides that “Congress shall make no law . . . abridging . . . the right of the people . . . to petition the Government for a redress of grievances” cannot be infringed by state government [14th Amendment to the Constitution], and that access to the courts, i.e., litigation, is one of the “essential mechanisms” by which citizens may exercise their right to petition.  Citing numerous United States Supreme Court decisions, the Court concluded that a “subjectively improper motive” alone is not sufficient to hold that litigation is a misuse of the First Amendment right to petition and thus not within its protections, but that such litigation must also be “objectively baseless,” i.e., “a mere sham,” to constitute such a misuse in the context of a state’s regulation of petitioning activity, and that attorneys are entitled to the same level of First Amendment protections as non-attorneys.

The Supreme Court held that the procedural due process protections it had articulated in Protect Our Mountain Environment v. District Court, 677 P. 2d 1361 (Colo. 1984) (POME) for civil litigants, to ensure the viability of the First Amendment right to petition through the courts against indiscriminate assertions that such litigation is a mere sham and thus not protected, apply as well to attorney disciplinary proceedings involving pro se attorney litigation conduct, and give the litigant a right to file a pre-trial motion to assert a First Amendment defense thereupon shifting the burden to the other side to show a reasonable basis for the trial court (or PDJ) to conclude that the litigant’s conduct in advancing his or her position in the underlying litigation was not protected by the First Amendment.

The Supreme Court concluded that as to Foster’s aggregate conduct throughout the litigation, inasmuch as the Hearing Board determined there was insufficient evidence to conclude it was frivolous, such conduct was not “objectively baseless” and therefore was protected by the First Amendment without consideration of his subjective motivation for the lengthy and bitter course of litigation, and that the board’s findings in any event did not support a conclusion of improper motive.

Bennett S. Aisenberg practices law in Denver. He has served as a member of the Colorado Bar Association Ethics Committee since 1986. In 2003, he received the Denver Bar Association Award of Merit. Ben is a past president of the Colorado Bar Association, the Denver Bar Association, and the Colorado Trial Lawyers Association. He blogs at coloradoethics, where this post originally appeared on July 15, 2011.

Tenth Circuit: Leave to Proceed In Forma Pauperis Denied when Litigation History Includes at Least Three Cases that Failed to State a Claim

The Tenth Circuit Court of Appeals issued its opinion in Strope v. Cummings on Tuesday, August 9, 2011.

The Tenth Circuit vacated the district court’s grant of leave for Petitioner to proceed in forma pauperis (IFP) in his appeals. Petitioner is a prisoner of the State of Kansas appearing pro se and IFP. He has three civil appeals pending in the district court, each of them filed in October 2010; he has not paid the filing fees for any of these appeals.

The Court determined that Petitioner is barred under federal law from proceeding IFP in these appeals because of a litigation history that includes at least three lawsuits previously dismissed for failure to state a claim on which relief could be granted. As a result, Petitioner must prepay the filing fees for each appeal he would addressed on the merits; he is allowed thirty days to pay the fees or each appeal will be dismissed.

Colorado Supreme Court Proposes Changes to CRCP and Uniform Local Rules for All State Water Court Divisions

The Colorado Supreme Court has issued a notice of proposed rule changes and requests for public comment.  The Court proposes amendments to the Colorado Rules of Civil Procedure Rule 121, Section 1-1 and Chapter 36 of the Uniform Local Rules for All State Water Court Divisions.

The changes to CRCP 121, Section 1-1 involve the addition of a new paragraph 5 to read as follows:

In accordance with CRCP 11(b), an attorney may undertake to provide limited representation to a pro se party involved in a court proceeding. Upon the request of and with the consent of a pro se party, an attorney may make a limited appearance for the pro se party in one or more specified proceedings, if the attorney files and serves with the court and the other parties and attorneys (if any) a notice of the limited appearance prior to or simultaneous with the proceeding(s) for which the attorney appears. At the conclusion of such proceeding(s) the attorney’s role terminates without the necessity of leave of court, upon the attorney filing a notice of completion of limited appearance. Service on an attorney who makes a limited appearance for a party shall be valid only in connection with the specific proceeding(s) for which the attorney appears.

More information about the change to CRCP 121 and the rationale for the proposed change can be found here.

The changes to Chapter 36 of the Uniform Local Rules for All State Water Court Divisions are twofold. If the changes are adopted, the rule “would convert time periods contained in the current Water Court Rules to uniform increments of 7 in place of the various time periods currently specified in the rules. This would conform to the Civil Rules Committee’s suggestion that all Colorado court rules be converted to ‘the rule of 7’ as with Federal Rules.” Additionally, the changes would “accommodate multiple applicants in a single application for augmentation and exchange plans and non-tributary groundwater applications.”

More information about changes to the Water Rules, including line edits and the rationale for the proposed changes, can be found here.

Public comments on either change should be submitted with an original and seven copies no later than Friday, September 30, 2011, at 5:00 pm addressed to: Clerk of the Colorado Supreme Court, Christopher T. Ryan, 101 West Colfax, 8th Floor, Denver, Colorado 80202.