HomeMy WebLinkAbout2018CV01 - SUTHERLAND V. CITY OF FORT COLLINS, ET AL - 007 - CITY'S RESPONSE TO PLAINTIFFS' COMBINED MOTION FOR DISQUALIFICATION OF JUDGE AND MOTION FOR EXPANSION OF TIMEFORT COLLINS MUNICIPAL COURT
214 N. Mason
Fort Collins, CO 80521
Phone: (970) 221-6800
Plaintiffs: Eric Sutherland; and J&M Distributing
d/b/a Fort Collins Muffler and Automotive
V.
Defendants: THE CITY COUNCIL OF THE CITY OF
FORT COLLINS, the governing body of a Colorado
municipal corporation; and THE ADMINISTRATION
BRANCH OF THE CITY OF FORT COLLINS, by and
through its City Manager, Darin Atteberry.
Kimberly B. Schutt, #25947
WICK & TRAUTWEIN, LLC
323 South College Avenue, Suite 3
P.O. Box 2166, Fort Collins, CO 80522
Phone Number: (970) 482-4011
.E-mail: kschutt@wicklaw.com
FAX Number: (970) 482-8929
COURT USE ONLY
Case Number:
2018-CIVILOI
CITY'S RESPONSE TO PLAINTIFFS' COMBINED MOTION FOR
DISQUALIFICATION OF JUDGE AND MOTION FOR EXPANSION OF TIME
COMES NOW the City of Fort Collins ("the City"), on behalf of the City Council of the
City of Fort Collins and the improperly named "Administration Branch of the City of Fort
Collins," through its counsel, Kimberly B. Schutt of Wick & Trautwein, LLC, and respectfully
submits the following response to the Plaintiffs' combined motion to disqualify the judge
appointed to hear this case, and their motion for an expansion of the deadline to respond (further)
to the City's Motion to Dismiss. In support hereof, the City states as follows:
I.
Plaintiffs have filed this action pursuant to C.R.C.P. 106, requesting declaratory and
injunctive relief related to the City Council's decision upholding the Planning & Zoning Board
approval of the Preliminary Development Plan for the Johnson Drive Apartments Project, PDP
#170034. The City has moved to dismiss the action based on several legal flaws with the
Plaintiffs' Complaint, which the Plaintiffs refused to voluntarily address previously. That
1
Motion to Dismiss is still pending with the Court.
The Plaintiffs have now submitted an Amended Complaint (not accompanied by a motion
seeking leave to amend) addressing to some extent the issues raised in the Motion to Dismiss,
along with a response to the City's motion. Further, the Plaintiffs have filed a motion pursuant
to C.R.C.P. Rule 97 seeking to disqualify Judge Ayraud from hearing this case, and further move
the Court for an expansion of time in which to amend the response to the motion to dismiss that
they submitted with the Rule 97 motion.
Suffice it to say that the Plaintiffs have greatly complicated the procedural aspects of this
case based on the manner in which they have submitted these various items to the Court. The
City thus responds to the various requests for relief as set forth below, and seeks further guidance
from the Court to address the procedural complications caused by the Plaintiffs.
PLAINTIFFS' MOTION TO DISQUALIFY
The City will first address the Plaintiffs' motion made pursuant to C.R.C.P. 97 to
disqualify the appointed judge, David Ayraud, from hearing this case. Plaintiffs argue that Judge
Ayraud should be disqualified because Plaintiff Eric Sutherland has filed a different action
against several Larimer County officials, now pending in the Larimer County District Court.
They also assert that Plaintiff Sutherland has made open records requests to Larimer County, and
has such a records request currently pending. According to the Plaintiffs, because Judge Ayraud
provides legal representation to the County and has dealt with Plaintiff Sutherland both in legal
proceedings and in the context of these pending matters, Judge Ayraud is "so related or so
connected" to Plaintiff Sutherland that it would be improper for him to hear this case.
Plaintiff is correct that he conferred with defense counsel prior to the filing of this
motion, but provides just part of a sentence taken out of context from an email response from
2
defense counsel in stating the City's position on the motion. It was respectfully suggested that
the Plaintiffs attach a copy of defense counsel's email to their motion, which they did not do.
According, it is attached here as Exhibit I and better articulates the City's complete position on
this motion, as discussed below.
Further, while Plaintiffs provide the text for Rule 97, they provide no other legal
authority to support their position or to assist the Court in resolving the issue of disqualification.
Accordingly, the City provides more of that legal framework below.
Again, as defense counsel previously advised Plaintiffs, the fact that a particular judge
has had other dealings with a party to the case, or has represented a party adverse to the plaintiff,
is not in and of itself improper or grounds for disqualification under Rule 97. See, Board of
Com'rs of Pitkin County v. Blanning, 479 P.2d 404, 405-06 (Colo. App. 1970). If that was true,
any prosecutor appointed to the bench could never hear a case involving a defense attorney who
regularly opposed him or her.
Rather, the rule requires a moving party to prove that the appointed judge has such an
interest in the subject matter of the litigation that it would disqualify him from being fair and
impartial, or that he is otherwise prejudiced to hear the case. Id. Or, the judge can disqualify
himself based upon similar concerns under the rule. But, the moving party has to demonstrate
something more specific about why the judge is interested in the subject matter or prejudiced in a
way that makes him disqualified to hear this case (or the judge has to conclude sue sponte that he
cannot fairly preside over these proceedings), not just that he has had prior dealings with one of
the parties.
3
The Supreme Court articulated the proper analysis for disqualification under Rule 97 in
Johnson v. Dist. Court In & For Jefferson Cry„ 674 P.2d 952, 955-56 (Colo. 1984), stating in
pertinent part as follows:
"Ordinarily, the question of whether ajudge should be disqualified in a civil case is a
matter within the discretion of the trial court. In re Marriage of Mann, 655 P.2d 814
(Colo.I982)...'The motion and supporting affidavit speak for themselves and the only
question involved is whether the facts alleged are sufficient to compel
the judge to disqualify himself.' Kovacheff v. Langhart, 147 Colo. 339, 343-44, 363 P.2d
702, 705 (1961). The motion and affidavits are legally adequate if they `state facts from
which it may reasonably be inferred that the judge has a bias or prejudice that will
prevent him from dealing fairly' with the party seeking recusal. People v. Botham, 629
P.2d 589, 595 (Colo.1981)."
The Supreme Court then went on to say that, in order to be legally adequate to meet this
standard, the facts set forth in the affidavit submitted in support of the motion to disqualify
cannot be based on mere "suspicion, surmise, speculation, rationalization, conjecture, [or]
innuendo," nor can they be "statements of mere conclusions of the pleader." Id., citing Carr v.
Barnes, 580 P.2d 803, 805 (1978).
The purpose and principles underlying C.R.C.P. 97 are to guarantee that no person is
forced to litigate before ajudge with a "bent of mind." Johnson, 674 P.2d at 956. "Although the
trial judge is convinced of his or her own impartiality, if it nonetheless appears to the parties or
to the public that the judge may be biased or prejudiced, the same harm to public confidence in
the administration of justice occurs. Id.
As was stated in People v. District Court, 560 P.2d 828, 831-32 (Colo. 1977):
"Basic to our system of justice is the precept that ajudge must be free of all taint of bias
and partiality. The principle of impartiality, disinterestedness, and fairness on the part of
the judge is as old as the history of courts; in fact the administration of justice through the
mediation of courts is based upon this principle. It is a fundamental idea, running through
and pervading the whole system of judicature, and it is the popular acknowledgment of
the inviolability of this principle which gives credit, or even toleration, to decrees of
judicial tribunals. Moreover, not only the actuality of fairness must concern us, but the
appearance of fairness as well. A trial judge must `conduct himself at all times in a
2
manner that promotes public confidence in the integrity and impartiality of the judiciary.
Courts must meticulously avoid any appearance of partiality, not merely to secure the
confidence of the litigants immediately involved, but `to retain public respect and secure
willing and ready obedience to their judgments."
It is thus the Court's "duty to eliminate every semblance of reasonable doubt or suspicion
that a trial by a fair and impartial tribunal may be denied." Johnson, 674 P.2d at 956,
The City wants the issues raised in this case, including in its now pending Motion to
Dismiss, to be decided on the merits and in a fair and impartial manner. The City will defer to
the Court to determine whether that can occur in this case, based upon the applicable standards
and principles of Rule 97 discussed above, and in light of the concerns raised in the Plaintiffs'
motion and affidavit (or based on any concerns the Judge himself may have, if applicable).
PLAINTIFFS' MOTION FOR EXPANSION OF TIME
Plaintiffs' Motion to Disqualify also includes a motion for expansion of time which is
both confusing and inaccurate. The motion appears to seek leave to file a supplemental or
amended response to the motion to dismiss filed by the Plaintiffs, at the same time as filing the
motion to disqualify. However, as indicated above, the Plaintiffs have created a great deal of
procedural complications given all the things they have done here.
First, when Plaintiff Sutherland contacted undersigned counsel to discuss a proposed
motion for expansion of the deadline to file a response to the motion to dismiss, it was with the
representation that he intended to file a Rule 97 motion to disqualify, and he wanted the motion
for enlargement of time ruled upon prior to the filing of the Rule 97 motion because of concerns
about the stay of proceedings that comes with the filing of a Rule 97 motion. He proposed
extending the plaintiffs' deadline for their response to the motion to dismiss to 5 days after a
ruling on the motion to disqualify. As reflected in the email communications attached to this
G
response as Exhibit 2, defense counsel indicated the City would not object to such a request for
an enlargement of the deadline (contrary to what the Plaintiffs have represented). However, that
is not what the Plaintiffs did here.
The Plaintiffs' response to the Motion to Dismiss was due on May 16, 2018, namely 21
days after the motion was filed on April 25, 2018. The Plaintiffs neither filed a response to the
motion nor a motion for an enlargement of the deadline on or before May 16"'. Therefore,
technically speaking, the Plaintiffs could be deemed to have confessed the City's Motion to
Dismiss.
Notwithstanding that problem, the Plaintiffs then went ahead and filed a Rule 97 motion
at the same time they filed an untimely response to the motion to dismiss, along with a motion
seeking leave to amend or supplement that response at a later date. The Plaintiffs provided no
good cause explanation for the late filing of the response to the motion. Their only justification
for the request to later supplement their response is because of alleged ongoing discussions about
the indispensable party issue.' They filed all of these things together, notwithstanding the prior
concerns expressed by Mr. Sutherland about the stay of proceedings that would go into effect
under Rule 97.
At the same time, the Plaintiffs filed an Amended Complaint which, contrary to what is
represented in the motion for expansion of time, was not accompanied by a motion for leave to
1 The Plaintiffs assert the City Defendants "have not identified who that [indispensable] part [sic]
is despite numerous inquiries by the Plaintiffs seeking information as to that identity." However,
Defense counsel for the City has made it clear to Plaintiffs on multiple occasions that it is not the
City's obligation to investigate and identify the proper names of the applicant owner who is the
indispensable party here. That is a legal determination to be made on the facts readily available
to the Plaintiffs based on public records from the development application and other materials
presented at the Planning and Zoning Board hearing, and in discussions with the parties listed in
those documents. The Plaintiffs have elected to represent themselves in this proceeding; the
City's attorneys cannot provide them with legal advice as to how they should proceed.
n.
amend the Complaint. Nor did Plaintiffs ever confer with the City about an intent to file an
amended pleading at this point. In fact, in every conversation prior to the filing of the City's
Motion to Dismiss, the Plaintiffs refused to take proper action to amend their Complaint to
address the issues raised by the City. The City thus had to file its motion as the defendants'
responsive pleading. Therefore, it is an understatement to say that the Plaintiffs have
unnecessarily expanded and complicated these proceedings, for which the City now seeks further
guidance from the Court
It is true that C.R.C.P. 97 specifically provides for a stay of proceedings upon the filing
of a motion to disqualify the judge hearing the case. However, that stay precludes the judge
from determining any substantive matter then pending before the Court, such as a motion for
change of venue or a motion to dismiss, which would affect the substantial rights of the parties.
Arguably, based on this language, the Court can still rule on procedural matters that do not affect
the substantive rights of the parties, and the City submits that the requests outlined below do not
have any such effect. Rather, they preserve the status quo and provide certainty to all parties
while the Motion to Disqualify is pending. The requested guidance is as follows:
1) Since the Plaintiffs' Amended Complaint was not accompanied by a motion for leave
to amend, as represented by the Plaintiffs, that the Plaintiffs may file a motion for
leave to amend within 5 days of the motion to disqualify being ruled upon. The City
will then have the usual 21 days to file its response to the motion to amend;
2) That the Amended Complaint has not been accepted for filing, and the City has no
obligation to file a responsive pleading to it, unless and until such a motion is
submitted to the Court and a judge grants said motion. Obviously, no such ruling on
9
that issue can be made until the motion to disqualify is resolved and, if granted, a new
judge is appointed to hear the case; and
3) The City has no obligation at this time to file a Reply in support of the Motion to
Dismiss, until it is determined whether the Plaintiffs are granted leave to supplement
their response to the motion and these other issues are sorted out. Because of the
untimely filing of the plaintiffs' response to the motion to dismiss, the City believes
the request for leave to supplement that response is a substantive issue which must be
deferred until the Motion to Disqualify is addressed
WHEREFORE, the City respectfully requests the Court issue an order clarifying these
issues as set forth above, in order to alleviate the complications caused by the manner in which
the pro se Plaintiffs have proceeded here.
DATED this ZZday of May, 2018.
Respectfully submitted,
WICK & TRAUTWEIN`LLC
By: X�
Kitfiber B.Schut #25947
Attorn s for the efendants
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing
RESPONSE TO THE PLAINTIFFS' MOTION FOR DISQUALIFICATION OF JUDGE AND
MOTION FOR EXPANSION OF TIME via email to the addresses listed below, this 7 day of
May, 2018, on the following:
Eric Sutherland
3520 Golden Currant
Fort Collins, CO 80521 Via email to stitherix@yahoo.com
Brian Dwyer
J&M Distributing, dba Fort Collins Muffler and Automotive
2001 S. College Avenue
Fort Collins, CO 80525 bdwyer1199@gmail.com
6
kschutt@wicklaw.com
From: kschutt@wicklaw.com
Sent: Monday, April 30, 2018 6:26 PM
To: 'Eric Sutherland'; 'bdwyer1199@gmaii.com'
Cc: CDAGGETT@fcgov.com; 'John Duval Qduval@fcgov.com)'; 'Cary Alton'
Subject: RE: conference on rule 97 Motion
Good evening, Mr. Sutherland - I apologize it took until late in the day to respond, but we had a case of competing
schedules here today. I just now finally had a meaningful opportunity to discuss the City's position on your proposed
motion.
Let me begin by saying that, under Rule 97 and the case law interpreting it, the fact that Judge Ayraud has defended
several legal matters you have pursued against the County does not in and of itself make him disqualified to hear this
case. If that was true, any prosecutor appointed to the bench could never hear a case involving a defense attorney who
regularly opposed him or her.
The rule requires a moving party to prove that the appointed judge has an interest in the subject matter of the litigation
that would disqualify him from being fair and impartial, or is otherwise prejudiced to hear the case. Or, the judge can
disqualify himself based upon similar concerns under the rule. But, you have to demonstrate something more specific
about why he is interested in the subject matter or prejudiced in a way that makes him disqualified to hear this case (or
he has to conclude sue sponte that he cannot fairly preside over these proceedings) not just that he has had prior
dealings with you on behalf of the County. Moreover, disqualification is not something to which parties can stipulate in
a motion; the required showing of interest or prejudice has to be made, with a record as to the basis for the
disqualification.
So, with that said, I would respectfully suggest you articulate your concerns in your motion and make the required
showing under Rule 97. The City will not necessarily oppose the relief if you outline valid concerns, and will respect
Judge Ayraud's decision if he decides to disqualify himself on his own volition. The City may respond to the motion if it
feels necessary to provide the judge with further facts or legal authority to make that determination. However, the City
cannot properly "consent" or stipulate to disqualification of the judge.
For purposes of your motion, you may indicate you conferred on this issue and that the City will not necessarily oppose
the motion if a proper showing is made for disqualification under Rule 97. It would probably be helpful for you to attach
a copy of this email to your motion.
Please let me know if you have any questions, and have a good evening.
l�&aer4 6, Sew, G5df•
TRAUTWEIN
P-ST. 1972
Wick & Trautwein, LLC
323 S. College Avenue, Suite 3
b EXHIBIT
e
Fort Collins, CO 80524
P:970-482-4011 * 866-686-1410
F: 970-482-8929
http://www.wicklaw.com/
CONFIDENTIALITY NOTICE: This electronic mail transmission and any accompanying documents contain information
belonging to the sender which may be confidential and legally privileged. This information is intended only for the use
of the individual or entity to whom this electronic mail transmission was sent as indicated above. If you are not the
intended recipient, any disclosure, copying, distribution, or action taken in reliance on the contents of the information
contained in this transmission is strictly prohibited. If you have received this transmission in error, please call me at
970-482-4011 or toll free at 866-686-1410 to let me know and delete the message. Thank you.
From: Eric Sutherland <sutherix@yahoo.com>
Sent: Monday, April 30, 2018 4:01 PM
To: kschutt@wicklaw.com
Cc: Brian Dwyer <bdwyer1199@gmail.com>; Carrie Daggett <cdaggett@fcgov.com>
Subject: Re: conference on rule 97 Motion
There is no reason why the relief requested should be opposed.
From: "kschutt(o)wicklaw.com" <kschuttnc.wicklaw.com>
To: Eric Sutherland <suther
ixnc vahoo.com>
Cc: Brian Dwyer <bdwyer1199na.gmail.com>; Carrie Daggett <cdaggett(o)fcgov.'com>
Sent: Friday, April 27, 2018 2:03 PM
Subject: RE: conference on rule 97 Motion
Mr. Sutherland - I am in receipt of your email. I am in meetings this afternoon and will
need to confer with my City clients. I probably won't have a meaningful chance to do so
until Monday. I will respond with the Ciry's position in due course.
Kim Schutt
-----Original Message -----
From: "Eric Sutherland" <sutherix -yahoo.com>
Sent: Friday, April 27, 2018 12:30pm
To: "K. Schutt" <kschutt(d)wicklaw.com>
Cc: "Brian Dwyer" <bdwyer1199(a)gmail.com>
Subject: conference on rule 97 Motion
Ms. Schutt,
N
I do not think that better evidence could ever be presented to support the allegation that Kathleen
Lane simply is not taking the administration of her court seriously than the appointment of David
Ayraud.
In all sincerity, I appreciate Mr. Ayraud's interest in participating in the municipal court. However, the
idea of having any person employed by the Office of the County Attorney preside over a matter in
which I am a party is simply nuts.
I have many legal disputes with Larimer County. They apply an unlawful "abatements and refund"
levy. The Treasurer places delinquencies from the BBRSA on property tax notices without due
process. The entire ... and I do mean entire ... circumstances underlying the diversion of 5% of tax
revenue attributable to County mill levies to TIF scams is plagued by either incompetence on the part
of the County Attorney's office or corruption somewhere above. There is not a single dollar that is
diverted that does not suffer one or more infirmities that should preclude its diversion.
David Ayraud, of course, works for a public entity that is in the middle of all of this. Furthermore, Mr.
Ayraud has, for all practical purposes, served as the custodian of records of every single public
records request I have made of Larimer County except for a handful that were answered directly by
the Treasurer or the Assessor. In the last such request (four weeks ago), Mr. Ayraud failed to include
a critical email from a request for records. The email was written by Steve Johnson in which
Johnson told the TDA that it did not need to reform the Board of Commissioners to include school,
county and special district representatives prior to the occasion of creating an additional $25 million
in debt, which is ironic because Johnson was the source of the legislative initiative to have county
representatives on URA boards. Mr. Ayraud, like yourself, would have no problem understanding
that the TDA's action was not consistent with law. However, there are times where attorneys are
compromised. This was one of them.
As all of the issues mentioned here and maybe more are headed into litigation, it is implausible to
hold that Mr. Ayraud should adjudicate this matter. I would be very surprised to learn that Mr.
Ayraud disagrees, but life is full of surprises.
Please provide your position on a Motion to disqualify.
Eric Sutherland
9
kschutt@wicklaw.com
From:
kschutt@wicklaw.com
Sent:
Tuesday, May 15, 2018 1:13 PM
To:
'Eric Sutherland'
Cc:
'Brian Dwyer'; CDAGGETT@fcgov.com; 'John Duval Oduval@fcgov.com)'
Subject:
RE: Conference: Motion for expansion of time to file Response
Attachments:
D00008.PDF
Good afternoon, Mr. Sutherland -
The City will not object to the plaintiffs' request for an enlargement of time as you have outlined below. You may
indicate it is unopposed.
As for your latter question, I cannot give you legal advice as to how to frame your claims with regard to the
indispensable party. For your information, however, I am sharing a copy of an order which was just entered yesterday
by Judge Odell in a similar situation pending in the Larimer County District Court, which you may find somewhat
instructive on these issues and supportive of the City's position in this case. That order is attached to this email.
I trust you will be filing your motion for enlargement of time very soon, and will provide us with a copy of the motion
when it is submitted to the municipal court.
Sincerely,
z&44 V. sue. Sif.
NATICK
TRAUTWEIN
EST. 1972
Wick & Trautwein, LLC
323 S. College Avenue, Suite 3
Fort Collins, CO 80524
P:970-482-4011 * 866-686-1410
F: 970-482-8929
http://www.wicklaw.com/
CONFIDENTIALITY NOTICE: This electronic mail transmission and any accompanying documents contain information
belonging to the sender which may be confidential and legally privileged. This information is intended only for the use
of the individual or entity to whom this electronic mail transmission was sent as indicated above. If you are not the
intended recipient, any disclosure, copying, distribution, or action taken in reliance on the contents of the information
contained in this transmission is strictly prohibited. If you have received this transmission in error, please call me at
970-482-4011 or toll free at 866-686-1410 to let me know and delete the message. Thank you.
z
From: Eric Sutherland <sutherix@yahoo.com>
Sent: Monday, May 14, 2018 3:14 PM
To: K. Schutt <kschutt@wicklaw.com>
Cc: Brian Dwyer<bdwyer1199@gmail.com>
Subject: Conference: Motion for expansion of time to file Response
Ms. Schutt,
Please provide your position on a Motion for expansion of time to file response to the city's Motion to
dismiss.
I wish for the court to grant an expansion of time that will allow a minimum of 5 business days after a
ruiling on the Rule 97 motion for the Response to be filed.
I wish for the court to rule on this motion prior to the stay that will go into effect upon filing the Rule 97
motion.
I request that this Motion be unopposed by the City.
I still have not been able to determine the identity of the party which you believe should be named as
an indispensable party. I still do not know whether you think this party should be named as a
defendant or plaintiff. If defendant, can you explain why you believe that the interests of this party
are not adequately represented by the City?
My only thoughts here are that the interests of the party are separate and different from the city in that
this party would miles ahead to have this matter remanded back to P & Z, have the issues we raised
addressed, and then get on with things. The city's objection to this course of action recommends
that I name this party as a plaintiff, does it not?
Eric Sutherland