November 14, 2018

Archives for August 25, 2011

Colorado Court of Appeals: Week of August 21, 2011 (No Published Opinions)

The Colorado Court of Appeals issued no published opinions and thirty unpublished opinions for the week of August 21, 2011.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. Case announcements are available here.

Colorado Supreme Court Amends Three Directives Regarding Court Fees

The Colorado Supreme Court has amended three Chief Justice Directives, which were adopted and effective as of August 2011. The changes all concern court fees:

  • CJD 08-02 – “Concerning Assessment of Cost Recovery Fees for Maintaining the Technical Infrastructure Necessary to Support Electronic Access to Court Records”
    • Attachment A of the CJD outlines the fees for online access to court records and e-filing.
  • CJD 98-01 – “Costs for Indigent Persons in Civil Matters”
    • The CJD outlines indigency determinations, the waiving of fees, installment payment procedures, and dispute resolution fees.
  • CJD 85-31 – “Concerning the Assessment and Collection of Statutory Fines, Fees, Surcharges, and Costs in Criminal, Juvenile, Traffic and Misdemeanor Cases”
    • The CJD outlines the assessment of these fees, their standard application, and waiver procedures.

Electronic Filing Standards Again Revised by the Colorado Supreme Court

The Colorado Supreme Court has revised the Chief Justice Directive regarding the electronic filing standards that were first introduced in May.

CJD 11-01 aims to make uniform the means by which documents are electronically transmitted and accepted through the State’s E-Filing system and to increase access to the courts by reducing the number of reasons for rejecting an e-filing. The Directive includes an attachment that sets forth reasons for rejection of electronically filed documents.

The Directive applies to all documents that are transmitted and accepted electronically using the E-Filing system.

CJD 11-01 – “Concerning Statewide Electronic Filing Standards”

Finalists Selected to Fill Judgeship in Twelfth Judicial District

The Twelfth Judicial District Nominating Commission has nominated three candidates for a district court judgeship created by the retirement of the Honorable O. John Kuenhold, effective October 1, 2011.

Nominees for the bench are Michael Gonzales of Alamosa, Erich Schwiesow of Alamosa County, and Kimberly Wood of Fort Garland. All were selected by the commission on August 24.

Under the Colorado Constitution, the Governor Hickenlooper has until September 9 to appoint one of the nominees as district court judge for the Twelfth Judicial District, which serves Alamosa, Conejos, Costilla, Mineral, Rio Grande, and Saguache counties.

Comments regarding any of the nominees can be emailed to the Governor’s Office.

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: Unpublished Opinions, 8/24/11

On Wednesday, August 24, 2011, the Tenth Circuit Court of Appeals issued no published opinions and five unpublished opinions.

Unpublished

Klein v. Franklin

Harrison v. United States

Vonberg v. Turley

United States v. Bell

Shellito v. Comm’r of Internal Revenue

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Filing Fees, Surcharges, and Costs Form Updated for Colorado Courts

The Colorado State Judicial Branch has issued a revised form that outlines the fees and costs of conducting business in all state courts. The changes are minimal, but practitioners should be aware of the revised form.

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

Filing Fees

  • JDF 1 – “ Filing Fees, Surcharges, and Costs” (revised 8/11)