Colorado Criminal Defense Bar et al v. Ritter

Filing 56

ORDER SETTING AGENDA FOR JULY 28, 2011 ORAL ARGUMENT, by Judge John L. Kane on 07/21/2011. (wjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 10-cv-2930-JLK
COLORADO CRIMINAL DEFENSE BAR, ET AL.,
Plaintiffs,
v.
JOHN W. SUTHERS, ET AL.,
Defendants.
________________________________________________________________________
ORDER SETTING AGENDA FOR JULY 28, 2011 ORAL ARGUMENT
________________________________________________________________________
KANE, J.
Anticipating the July 28 date for hearing oral argument on the pending Motions to
Dismiss, I urge the parties to consider and come prepared to discuss the following:
1. Actual controversy. I am interested in Plaintiffs’ response to Defendants’ actual
controversy/“friendly suit” arguments asserted rather compellingly in Reply. Congress may not
confer jurisdiction on Article III federal courts to render advisory opinions, entertain “friendly”
suits, or resolve political questions. See Sierra Club v. Morton, 405 U.S. 727 (1972). Plaintiffs
should come prepared to address this question, and persuade me a justiciable controversy exists.
2. Standing. Assuming this case presents a justiciable controversy, the question of
whether either Plaintiff has a sufficient stake in its outcome to seek a judicial resolution is also
in dispute. Because I am disinclined at this point in my familiarity with Colorado’s criminal
misdemeanor and motor vehicle safety laws to view Plaintiffs’ Complaint as a facial, rather than
“as applied,” challenge to C.R.S. § 16-7-401(4), the question of standing is of paramount,

threshold, significance. Both article III and prudential concerns abound. Unless otherwise
persuaded, my view is that when the Sixth Amendment rights of indigent criminal defendants or
traffic offenders are infringed, it is those individuals’ ox being gored, not that of their putative
lawyers or policy advocates. I want to hear why no individuals have been identified or added as
party Plaintiffs. What efforts have been undertaken, if any, to identify them?
3. In the absence of directly aggrieved individuals bringing suit on their own behalf,
Plaintiff entities must establish standing to pursue the rights of these individuals. The Criminal
Defense Bar, as I understand it, asserts third-party standing to pursue the rights of those who
have, and who will be required, to enter into uncounseled plea negotiations under § 16-7-310(4)
premised on Bar members’ close connection with those past and future uncounseled defendants
and the obstacles that exist to those individuals’ ability to bring a viable or successful challenge
to the statute on their own. The Colorado Criminal Justice Reform Coalition, for its part, asserts
standing as an organization whose purpose and mission is thwarted and which must divert
resources to address the collateral consequences of the uncounseled convictions unlawfully
procured under the statute.
4. Third-Party or “Jus Tertii” Standing. Ordinarily, a litigant “must assert his own legal
rights and interests, and cannot rest his claim to relief on the legal rights or interests of third
parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975). The rule is not absolute, however, and a
third party may assert the rights of nonparties by demonstrating: (1) article III standing (i.e., an
injury-in-fact of its own, causally connected to the challenged statute, redressable by a favorable
decision); (2) a close relationship to the party whose rights are being asserted; and (3) a
significant obstacle that impedes the nonparties’ ability to assert their own right. E.g., Aid for

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Women v. Foulston, 441 F.3d 1101 (10th Cir. 2006). On the question of third party standing,
Plaintiffs should come prepared to apply/distinguish the following cases: Aid for Women;
Kowalski v. Tesmer, 543 U.S. 125 (2004); Dep’t of Labor v. Triplett, 494 U.S. 715 (1990); Nova
Health Sys. v. Gandy, 416 F.3d 1149 (10th Cir. 2005); Secretary of the State of Maryland v.
Joseph H. Munson Co., 467 U.S. 947 (1984); Citizens Concerned for Separation of Church and
State v. Denver, 628 F.2d 1289 (10th Cir. 1980).
I am concerned at the lack of specificity in the factual allegations in the Amended
Complaint to support the predicates for third-party standing. Can Plaintiffs identify specific
incidents, callers, criminal defendants, or others who, but for the operation of 16-7-301(4), bar
members would have been able to represent? I can conceive of both legal and factual obstacles
to aggrieved individuals bringing Sixth Amendment challenges to 16-7-301(4) on their own, but
want to hear specifics from the parties. Have Plaintiffs attempted to describe or document these
obstacles? If Defendants deny such obstacles exist, why and on what factual basis?
My point is that I retain an option in this case to dismiss the Complaint without prejudice,
with leave to amend. Were I to do so however, what specific factual allegations could I expect
the Criminal Defense Bar to include to firm up their third-party plaintiff bona fides under
operative pleading standards.1 Would amendment be futile under Twombly pleading standards?
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To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atlantic v. Twombly, 550
U.S. 540, 570 (2007). That factual matter need not be “detailed,” but it must consist of more than “labels
and conclusions.” Id. at 555. A formulaic recitation of the elements of a cause of action “will not do.”
Id. “Plausibility,” in turn, means that the non-formulaic or conclusory facts pled must be sufficient “to
raise a right to relief above the speculative level.” See id. The Tenth Circuit has articulated Twombly’s
plausibility standard thusly: “[T]he mere metaphysical possibility that some plaintiff could prove some
set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to
believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.”
Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)(applying Twombly).
Applying this standard to the standing inquiry, Plaintiffs must do more than recite the elements for third-

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5. Organizational Standing. An organization has standing to sue on its own behalf if the
challenged statute impairs its ability to effect its organizational purpose or mission or causes it to
divert resources to counteract the unlawful statute. The Criminal Justice Reform Coalition
claims to have experienced a “large uptick” in phone calls related to the effect of uncounseled
pleas and otherwise diverting resources from their other activities as a result of C.R.S. 16-7301(4). I am unconvinced these general, conclusory allegations are sufficient even at the
pleading stage to support a plausible inference of organizational standing. Can the Coalition
quantify this “uptick”? How are resources expended on fielding such calls outside or a
“diversion” of resources from the Coalition’s different purpose or mission?
Are there any additional facts Plaintiffs could allege to demonstrate an actual and
concrete injury traceable to C.R.S. § 16-7-301(4)? Would further amendment of the Complaint
to add factual allegations in support of standing be futile?
6. Even if I were to find that an actual controversy exists that either or both of the named
Plaintiff entities have established standing for pleading purposes, what evidence could plaintiffs
actually adduce to establish standing as a matter of fact? See Loving, supra. Is discovery or
further briefing on issues related to justiciability/standing necessary?
Dated July 21, 2011.

s/John L. Kane
SENIOR U.S. DISTRICT JUDGE

party or organizational standing. They must allege actual, non-formulaic facts which, if taken as true,
give rise to a plausible inference that they have standing. These elements are an indispensable part of a
plaintiff's case, on which he bears the burden of proof. Loving v. Boren, 133 F.3d 771, 772 (10th Cir.
1998)(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)) As a result, Plaintiffs moving
forward would have to marshal support for each element of the standing inquiry “with the manner and
degree of evidence required at the successive stages of the litigation.” Id. (citing Lujan at 559).

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