HomeMy WebLinkAbout2018CV149 - SUTHERLAND V. CITY OF FORT COLLINS, STEVE MILLER & IRENE JOSEY - 008 - TDA AND COMPASS MOTION FOR PRO SE INJUNCTIONDISTRICT COURT, LARIMER COUNTY, COLORADO
201 LaPorte Avenue
Fort Collins, CO 80521
COURT USE ONLY
Plaintiff:
ERIC SUTHERLAND, pro se
v.
Defendants:
THE CITY OF FORT COLLINS, a home rule municipality in
the State of Colorado; STEVE MILLER, in his capacity as the
Larimer County Assessor and all successors in this office;
IRENE JOSEY, in her capacity as the Larimer County
Treasurer and all successors to this office; and
Indispensable Parties: THE TIMNATH DEVELOPMENT
AUTHORITY, an Urban Renewal Authority; and COMPASS
MORTGAGE CORPORATION, an Alabama company doing
business in Colorado.
Counsel for The Timnath Development Authority and
Compass Mortgage Corporation:
Eric R. Burris, pro hac vice pending
BROWNSTEIN HYATT FARBER SCHRECK, LLP
201 Third Street NW, Suite 1800
Albuquerque, NM 87102
Telephone: 505.244.0770
Email: eburris@bhfs.com
Cole J. Woodward, #50199
BROWNSTEIN HYATT FARBER SCHRECK, LLP
410 Seventeenth Street, Suite 2200
Denver, CO 80202-4432
Phone: 303.223.1100
Email: cwoodward@bhfs.com
Co-Counsel for The Timnath Development Authority:
Robert G. Rogers, #43578
Casey K. Lekahal, #46531
WHITE BEAR ANKELE TANAKA & WALDRON
2154 E. Commons Ave., Suite 2000
Centennial, CO 80122
Phone: 303.858.1800
Emails: rrogers@wbapc.com; clekahal@wbapc.com
Case Number: 2018CV149
Division: 3C
THE TIMNATH DEVELOPMENT AUTHORITY AND COMPASS MORTGAGE
CORPORATION’S MOTION FOR INJUNCTIVE RELIEF
PURSUANT TO C.R.C.P. 65(g)
DATE FILED: June 5, 2018 10:18 AM
FILING ID: 8C2BF5141C562
CASE NUMBER: 2018CV149
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Indispensable Parties The Timnath Development Authority (“TDA”) and Compass
Mortgage Corporation (“Compass”) submits the following Motion for Injunctive Relief Pursuant
to C.R.C.P. 65(g):
Certificate of Compliance with Rule 121 §1-15(8): The undersigned certifies that he
conferred with Plaintiff via telephone and explained the basis for the Motion and the relief
requested therein. Plaintiff refused to indicate whether he opposed the Motion.
INTRODUCTION
Plaintiff Sutherland is an anti-tax activist who wants to be a policymaker. He sought
public office three times but was not elected. Having failed to obtain a role for himself in local
government through the ballot box, Sutherland turned to litigation and threats of litigation as a
means of injecting himself and his views into the policymaking process. Since 2014, Sutherland
has filed nine complaints against local government entities in the District Court of Larimer
County, and threatened to file many more. His filings are replete with incorrect and unsupported
characterizations of the law. They are written in arcane faux-legalese, which makes it difficult,
and at times impossible, to identify and understand the legal claims and arguments made. Their
tone is often abusive towards both the bench and local government officials. On the whole, they
evince a failure or refusal to understand the procedural and substantive requirements imposed
upon all litigants by the Colorado Rules of Civil Procedure.
More troublingly, Sutherland’s actions are not intended to protect or enforce any
substantive legal rights on behalf of himself, or the public. They are intended to interfere with
local government entities’ ability to access the funds provisioned to them by voters and deliver
services to their constituents, in furtherance of Sutherland’s personal political agenda. They also
appear to be intended to raise Sutherland’s personal profile and advance his political aspirations.
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To date, Sutherland has targeted two school districts, two cities, a county, and a handful of
special districts with vexatious filings. While Sutherland has never succeeded on the merits of
any of his legal claims against these entities, he has forced them to waste substantial time and
public funds disposing of his vexatious claims.
Sutherland’s conduct imposes a substantial burden on Colorado courts and the local
government entities that are the targets of his specious litigation, costing the taxpayers he
purports to protect millions of dollars. Sutherland is not a member of the bar, and thus is not
subject to the forms of discipline that typically deter attorneys from deluging the courts with
meritless claims. Therefore, TDA respectfully requests that this Court take reasonable steps to
prevent Mr. Sutherland from further burdening the courts by enjoining him from appearing pro
se or filing in any civil matter before the District Court of Larimer County without the
representation of an attorney authorized to practice in the State of Colorado.
STATEMENT OF RELEVANT BACKGROUND
It is clear that Plaintiff Sutherland has a strong and laudable desire to participate in the
civic life of his community. Sutherland ran three unsuccessful campaigns for public office. He
ran for mayor of Fort Collins in 2011 and 2013. (Ex. 1, Kevin Duggan, Fort Collins council
candidates tout ‘smart’ growth, FORT COLLINS COLORADOAN, Mar. 24, 2013.) Ex. 2, Kevin
Duggan, Ethics complaint filed against Fort Collins City Council members, FORT COLLINS
COLORADOAN, Mar. 22, 2012.) He also ran for a seat on the Larimer County Commission in
2014. (Ex. 3, 2014 general election results, FORT COLLINS COLORADOAN, Nov. 5, 2014, at 5.)
When Sutherland was unable to convince the voters to place him in public office, he
turned to litigation as a means of imposing his policy preferences on local government. Since
2014, Sutherland has filed nine complaints of various stripes in the District Court of Larimer
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County. The eight preceding the one before the Court have all been found to be either so
technically deficient as to preclude their consideration, or substantively without merit.
Undeterred by his lack of success, Sutherland’s continued campaign of harassment has
compelled local governments to take extreme measures to anticipate and foreclose Sutherland’s
meritless claims, including filing more, otherwise unnecessary, litigation seeking declaratory
relief. Sutherland’s quixotic campaign against local government entities continues to waste a
tremendous volume of public funds and judicial resources. From a legal perspective, it has
accomplished nothing, as is demonstrated by a review of Sutherland’s filing history. From a
practical standpoint, it has partially achieved Sutherland’s apparent goal, which was to harass
and burden local government entities and their leaders to prevent or delay implementation of
voter-approved policies that Sutherland dislikes.
I. Sutherland filed two meritless complaints against Larimer County, which were both
dismissed for failure to post adequate security.
In August of 2014, Sutherland filed a challenge to a ballot question posed to voters by the
Board of Commissioners of Larimer County. Sutherland v. Bd. of County Comm’rs of Larimer
County, 2014CV115, Contest Arising Out of Ballot Question Election Concerning the Form and
Content of a Ballot Title. Specifically, Sutherland alleged that the ballot question at issue, which
extended a countywide sales tax in order to continue to pay for operations at the Larimer County
Jail, was confusing in a number of respects, including that it “suffer[ed] from the inconsistent use
of verb tense . . . .” Id. at ¶ 14. Sutherland filed this action just weeks before the November
2014 election, where he appeared on the ballot as a candidate for the Larimer County
Commission. (Ex. 4, Erin Udell, County dismisses claim of confusing tax extension, FORT
COLLINS COLORADOAN, Aug. 27, 2014.) The District Court of Larimer County declined to
exercise jurisdiction over that challenge, because Sutherland failed to post adequate security.
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Sutherland v. Bd. of County Comm’rs of Larimer County, 2014CV115, Order Declining
Jurisdiction.
In the aftermath of the November 2014 election, Sutherland filed a challenge to contest
Larimer County voters’ approval of a citizen-initiated ballot question in that year’s election.
Sutherland v. Bd. of County Comm’rs of Larimer County, 2014CV166, Complaint. The ballot
question at issue provided funding for construction of a new facility for the Larimer Humane
Society. Id. at 2. Sutherland alleged that the ballot question was invalid because it directed sales
tax revenue to an unconstitutional purpose. Id. However, Sutherland’s comments to the press
reveal that he actually filed the complaint because he felt the Larimer Humane Society was
“asking for at least twice what I would consider reasonable.” (Ex. 5, Eric Sutherland, Larimer
County helped foster unreasonable tax for shelter, FORT COLLINS COLORADOAN, Oct. 24, 2014,
at § A, Pg. 11.) The District Court ordered Sutherland to post $10,000 cash bond to pay Larimer
County’s costs, including attorneys’ fees, should Sutherland fail to maintain the contest, in
accordance with Colo. Rev. Stat. § 1-11-213(3). Sutherland v. Bd. of County Comm’rs of
Larimer County, 2014CV166, Order re Security; Second Order re Security. Sutherland failed to
satisfy that requirement, and his contest was dismissed with prejudice. Sutherland v. Bd. of
County Comm’rs of Larimer County, 2014CV166, Order that Security Posted is Insufficient;
Order of Dismissal with Prejudice.
II. Sutherland filed two challenges over word choice and grammar in Fort Collins
ballot questions that were found to be procedurally deficient, and without merit,
respectively.
Sutherland has also targeted the City of Fort Collins with frivolous and procedurally
deficient litigation in an effort to advance his policy preferences and his political career. In
March of 2015, Sutherland filed a challenge to two ballot questions proposed by the City of Fort
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Collins. Sutherland v. City of Fort Collins, 15CV136, Verified Complaint Under C.R.C.P.
106(a)(4). Both questions asked voters to approve extensions of existing sales taxes, to fund
capital improvements and street maintenance within Fort Collins’s city limits. Sutherland
alleged that the ballot question was misleading, because it unnecessarily included the phrase
“[w]ithout raising additional taxes.” Id.at ¶ 5. The District Court dismissed Sutherland’s claims
on a motion to dismiss, because he failed to file his complaint prior to the expiration of the
applicable five day statute of limitations. Sutherland v. City of Fort Collins, 15CV136, Order
Regarding Def.’s Mot. to Dismiss, at 3-4.
In August of 2017, Sutherland also contested the language of the City of Fort Collins’s
municipal broadband ballot issue, which was nevertheless submitted to voters in the November
2017 election. Sutherland v. City of Fort Collins, 17CV219, Pet. for a Contest Concerning the
Form and Content of the City of Fort Collins Broadband Authorization Election Ballot Question.
Sutherland alleged the language of the ballot question was deficient on five grounds, including
because “there is a missing comma.” Id. at ¶ 5. As relief, he requested that he be allowed to
draft replacement ballot language. Id. at 9. After a hearing on the merits of Sutherland’s contest,
the court “found no defects in the submission clause . . . .” Sutherland v. City of Fort Collins,
17CV219, Order re Petition. Unsatisfied by that outcome, Sutherland filed a Motion for Post-
Trial Relief alleging that the District Court lacked jurisdiction over the matter altogether, and
that counsel for the City of Fort Collins knowingly encouraged the court to improperly exercise
its jurisdiction. Sutherland v. City of Fort Collins, 17CV219, Mot. for Post-Trial Relief. That
motion was also denied. Sutherland v. City of Fort Collins, 17CV219, Order Denying Mot. for
Post-Trial Relief.
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III. Sutherland waged an unsuccessful but harmful crusade to cut off local school
districts from voter-approved funding, giving rise to five separate, unnecessary
actions.
In August of 2016, Sutherland filed a contest to the language of a ballot question
proposed to the voters by Thompson School District R2-J, and scheduled to appear on the
November 2016 ballot. Sutherland v. Thompson School Dist. R2-J, 2016CV235, A Contest
Concerning the Form and Content of an Election Ballot Question. Sutherland alleged that the
question’s wording was confusing because it was premised on a faulty understanding of Art. X, §
20 of the Colorado Constitution, better known as TABOR. Id. at 2. He also alleged that the
ballot question violated Colorado’s constitutional single subject requirement. Id.; see also Art.
V, § 1, Colo. Const. Finally, he claimed that the ballot question’s language was misleading
because it did not mention or adequately describe Colorado’s tax increment financing (TIF)
mechanism, established at Colo. Rev. Stat. § 31-25-107. Id. at 2. After expedited briefing the
District Court granted Thompson School District’s Motion to Dismiss, finding that Sutherland
lacked standing, because he did not reside in Thompson School District, and that Sutherland had
failed to lodge a sufficient bond to sustain jurisdiction pursuant to Colo. Rev. Stat. § 1-11-202.
Sutherland v. Thompson School Dist. R2-J, 2016CV235, Order Granting Defendant’s Motion to
Dismiss. The District Court also gave the Thompson School District leave to set a hearing to
determine whether Sutherland’s action was groundless and frivolous, entitling the District to its
attorneys’ fees and costs. Id. at 1. The record does not indicate that Thompson School District
took up the Court’s invitation to seek attorneys’ fees from Sutherland.
That same month, Sutherland filed a similar action challenging the language of a
proposed mill levy override placed on the November 2016 ballot by Poudre School District R-1
(“PSD”). Sutherland v. Bd. of Ed. of Poudre School Dist. R-1, 2016CV225, A Contest
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Concerning the Form and Content of an Election Ballot Question. That challenge alleged that
the ballot question language proposed by PSD misled voters and conflicted with the
requirements of TABOR. Id. The District Court ruled that the $50 cash bond posted by
Sutherland was insufficient to sustain jurisdiction under Colo. Rev. Stat. § 1-11-203.5(1).
Sutherland v. Bd. of Ed. of Poudre School Dist. R-1, 2016CV225, Order Declining Jurisdiction.
Rather than posting the $8,000 bond required by order of the District Court, Sutherland filed two
additional motions requesting that the court reconsider the sufficiency of his $50 bond.
Sutherland v. Bd. of Ed. of Poudre School Dist. R-1, 2016CV225, Mot. to Reconsider Order
Declining Jurisdiction; Motion to Deem Bond Sufficient and Vacate Previous Order. Those
motions were both denied, and the case was dismissed. Sutherland v. Bd. of Ed. of Poudre
School Dist. R-1, 2016CV225, Order Dismissing Case. Poudre School District’s mill levy
increase was approved by voters in the November 2016 election.
Sutherland continued to threaten PSD with additional litigation contesting voters’
approval of its mill levy override and a related bond issuance, even after his November ballot
title action was dismissed. Poudre School Dist. R-1 v. Sutherland, 17CA1178, Op. at ¶ 4. In
another instance of Sutherland seeking to impose his policy preferences on local government
through litigation, Sutherland stated that he intended to sue PSD because he objected to “higher
tax rates so the DDA (Downtown Development Authority) can redo Old Town Square. . . . I
would never vote to raise my taxes to do that.” (Ex. 6, Sarah Jane Kyle, Threat of litigation has
bond in limbo, FORT COLLINS COLORADOAN, Dec. 13, 2016 at 2.) Sutherland claimed that the
mere threat of litigation would be sufficient to deter investors from participating in PSD bond
issuance. Poudre School Dist. R-1 v. Sutherland, 17CA1178, Op. at ¶ 35. Indeed, Sutherland’s
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threats of litigation did force PSD to delay their issuance of bonds and construction of urgently
needed facilities upgrades, such as a new elementary school. Ex. 6 at 2.
Unwilling to sustain any further delays to the flow of funds already approved by voters,
PSD chose to take drastic and unorthodox steps in an attempt to preclude Sutherland from filing
additional challenges. Id. On December 9, 2016 PSD simultaneously filed two declaratory
actions seeking to establish the lawfulness of the November 2016 elections, naming Sutherland
as a party in one of them. In the Matter of Petition of Poudre School District R-1,
2016CV31129, Verified Pet. for Judicial Confirmation of Powers and Actions Pursuant to C.R.S.
§ 11-57-213; Poudre School District R-1 v. Sutherland, 2016CV31130, Compl. for Declaratory
J. Those actions were subsequently consolidated at PSD’s request. Poudre School District R-1
v. Sutherland, 2016CV31330, Order Granting Mot. for Consolidation. The District Court set
both matters for a hearing on February 23, 2017. After that hearing, the District Court granted
summary judgement in favor of PSD and awarded PSD relief on all ten of its claims against
Sutherland.
Before PSD could file its actions for declaratory judgement, Sutherland followed through
with his threats and filed an action contesting the outcome of the election approving PSD’s mill
levy override on December 2, 2016. Sutherland v. Bd. of Ed. of Poudre School Dist. R-1,
2016CV289, Written Statement of Notice of Intention to Contest an Election Pursuant to C.R.S.
1-11-213(4). In that action, Sutherland alleged that his August 2016 challenge to the ballot
question’s language was improperly dismissed by the District Court in violation of his due
process rights, and that the School District had perpetrated a “fraud brought upon the court.” Id.
at ¶ 5. This action was dismissed by the District Court because Sutherland failed to pay the
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required filing fee. Sutherland v. Bd. of Ed. of Poudre School Dist. R-1, 2016CV225, Order of
Dismissal.
On December 19, ten days after PSD filed its action for declaratory relief, Sutherland
filed yet another complaint contesting the outcome of the November 2018 election in which
voters authorized PSD to issue additional bonds. Sutherland v. Bd. of Ed. of Poudre School Dist.
R-1, 2016CV299, “Written Statement of Notice of Intention to Contest an Election Pursuant to
C.R.S. 1-11-213(4).” In that filing, Mr. Sutherland noted that “[t]he 8th district court [sic] has a
history of abusing discretion and ignoring law in elections contests.” Id. at ¶ 6. He alleged that
his due process rights were violated when the District Court required him to post an $8,000 bond
in his earlier challenge to the language of the mill levy increase, and that consequently the
election should be invalidated. Id. at ¶ 25-47. Sutherland’s contest was brought before the
District Court for an expedited trial on January 10, 2017. Sutherland v. Bd. of Ed. of Poudre
School Dist. R-1, 2016CV299, Order re Election Contest. The District Court found in favor of
Poudre School District, holding that Sutherland’s contest was “not a proper election contest
pursuant to C.R.S. § 1-11-201, et seq.” Id. at 4-17. The Court found that Sutherland failed to
establish that the alleged due process violation could have affected the outcome of the election.
Id. at 4. It also held that because Sutherland had the opportunity to appeal the District Court’s
ruling in the earlier matter, but failed to do so, he was precluded from subsequently claiming that
his due process rights were violated. Id. at 7-9. Finally, the Court determined that it lacked the
authority to review the propriety of a bond amount established by another court of competent
jurisdiction. Id. at 9. In short, Sutherland’s complaint lacked basis in both law and fact, and was
procedurally deficient in at least three ways.
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Still unwilling to relent, Sutherland appealed the District Court’s decision in PSD’s
declaratory actions on July 5, 2017, delaying PSD’s bond issuance by additional months. (Ex. 7,
Sarah Jane Kyle, Court battle delays PSD $375M bond; Activist’s appeal in lawsuit could last
for months, pushing back plans to build three new schools, FORT COLLINS COLORADOAN, July 8,
2017.) On appeal, Sutherland alleged that: (1) there was no actual controversy between himself
and PSD (despite the fact that he sued PSD twice regarding the same issue), and thus the District
Court lacked jurisdiction over the matter; (2) that the District Court engaged in improper ex parte
communications with counsel for PSD; (3) that the District Court improperly consolidated the
two declaratory actions filed by PSD; and (4) that the District Court erred in granting summary
judgement to PSD. Poudre School Dist. R-1 v. Sutherland, 17CA1178, Opinion at ¶ 8. The
Court of Appeals affirmed the judgement of the District Court in all respects. Poudre School
Dist. R-1 v. Sutherland, 17CA1178, Opinion at ¶ 41.
Sutherland subsequently petitioned the Colorado Supreme Court to review the Court of
Appeals’ decision. Sutherland v. Poudre School Dist. R-1, 2018SC221, Petition for Writ of
Certiorari at 1. In that petition, he states his intention to file additional claims intended to further
delay PSD’s bond issuance in federal court. Id. PSD filed their opposition to Sutherland’s
Petition on May 11, 2018. Sutherland v. Poudre School Dist. R-1, 2018SC221, Opp. to Pet. for
Writ of Cert.
To date, PSD has been unable to issue bonds approved by voters pursuant to its
November 2016 ballot question as a direct consequence of Sutherland’s vexatious litigation. As
counsel for PSD noted in local press coverage of Sutherland’s litigation, “[b]ond underwriters
generally require an opinion from counsel that there is no chance anything could happen on
appeal that would reverse the judgement. . . . without that advice, the underwriters tell us the
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bonds can’t be issued at a reasonable rate.” (Ex. 8, Sarah Jane Kyle, PSD bond legal costs tally
more than $265K, FORT COLLINS COLORADOAN, July 14, 2017.) As of April 19, 2017, PSD had
incurred $253,573.50 in legal fees as a result of Sutherland’s various filings. That total does not
reflect the full cost of defending PSD’s declaratory judgements from his appeal, and subsequent
petition for cert. See Ex. 8.
IV. Sutherland filed baseless and defective motions to intervene in four petitions to
organize special districts.
On April 24 of this year, Sutherland filed identical motions to intervene in four ongoing
matters, challenging the formation of four special districts intended to fund improvements to a
key interchange at I-25 and Prospect Road. In the Matter of SW Prospect I25 Metro. Dist., Nos.
1-7; 2018CV030269, Mot. to Intervene; In the Matter of Gateway At Prospect Metro. Dist. Nos.
1-7; 2018CV30270; Mot. to Intervene; In the Matter of Rudolph Farms Metro. Dist. Nos. 1-6;
2018CV030272; Mot. to Intervene; In the Matter of I-25/Prospect Interchange Metro. Dist.
2018CV030278, Mot. to Intervene. Sutherland alleged that the petitions to form those special
districts were procedurally defective in four ways. Principally, and despite overwhelming
precedent to the contrary, Sutherland alleged that it was improper for the petitioners to submit a
single petition to form multiple special districts. Id. at 3.
Petitioners in these matters responded on May 15 by filing motions to strike Sutherland’s
motions to intervene for failure to pay the applicable filing fee, and for failure to meet the
requirements of C.R.C.P. 24 with respect to motions to intervene. In the Matter of SW Prospect
I25 Metro. Dist., Nos. 1-7; 2018CV030269, Mot. to Strike; In the Matter of Gateway At Prospect
Metro. Dist. Nos. 1-7; 2018CV30270; Mot. to Strike; In the Matter of Rudolph Farms Metro.
Dist. Nos. 1-6; 2018CV030272; Mot. to Strike; In the Matter of I-25/Prospect Interchange
Metro. Dist. 2018CV030278, Mot. to Strike. Petitioners’ motions to strike were granted in all
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four matters. In the Matter of SW Prospect I25 Metro. Dist., Nos. 1-7; 2018CV030269, Order
Granting Mot. to Strike; In the Matter of Gateway At Prospect Metro. Dist. Nos. 1-7;
2018CV30270; Order re Mot. to Intervene; In the Matter of Rudolph Farms Metro. Dist. Nos. 1-
6; 2018CV030272; Order re Mot. to Intervene. In the Matter of I-25/Prospect Interchange
Metro. Dist., 2018CV030278, Order Denying Mot. to Intervene.
STANDARD OF LAW
District courts are vested with jurisdiction to prevent abuse of judicial process by a pro se
litigant in the courts of any county in the district. Bd. of County Com’rs of Morgan County v.
Winslow, 706 P.2d 792, 795 (Colo. 1985). An injunction is at times necessary to prevent abuse
of the civil justice system by a pro se litigant because “a party acting in his own behalf is not
subject to the disciplinary procedures that prevent abuse of the system by attorney. Id. (citing
Shotkin v. Kaplan, 180 P.2d 1021, 1022 (Colo. 1947)). “Mere litigiousness is not grounds for an
injunction prohibiting a party from proceeding pro se; however, no one has a right to use the
judicial process for the purpose of harassing or intimidating his adversaries. Karr v. Williams, 50
P.3d 910, 914 (Colo. 2002).
When determining whether to enjoin a party from appearing pro se, “the court should
consider the seriousness of the abuses in light of our previous cases enjoining pro se
appearances.” Winslow, 706 P.2d at 795. Historically, Colorado courts have enjoined parties
from appearing pro se where “the enjoined party was using the judicial process not to vindicate
his rights, but to harass and intimidate his adversaries by repeatedly filing groundless and
vexatious claims against them.” Karr, 50 P.3d 910, 914 (Colo. 2002). In instances where
“monetary penalties are ineffective and our disciplinary authority cannot curb the litigant’s
transgressions because he is not licensed, an injunction is the proper recourse.” Id.
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ANALYSIS
The Complaint before the Court marks the beginning of another cycle of futile litigation,
likely followed by meritless appeals, analogous to the one Sutherland initiated in 2016
challenging PSD’s ballot questions. Once again, Sutherland’s goal is to prevent a local
government entity from funding policies he dislikes. If Sutherland wants to make public policy,
he is free to seek public office, as he obviously knows. His efforts to impose his policy
preferences on local government entities through vexatious litigation constitute an abuse of the
civil justice system. TDA asks this Court to exercise its jurisdiction to enjoin Sutherland from
appearing pro se in order to end this cycle of abusive litigation.
I. Sutherland’s Litigation Conduct Constitutes Abuse of Process under Colorado Law.
Under Colorado law, a claim for abuse of process requires the plaintiff to satisfy three
elements, “(1) an ulterior purpose for the use of judicial process; (2) willful action in the use of
that process which is not proper in the regular course of the proceedings, that is, use of a legal
proceeding in an improper manner; and (3) resulting damage.” Palmer v. Diaz, 214 P.3d 546,
550 (Colo. App. 2009) (citing Hewitt v. Rice, 154 P.3d 408, 414 (Colo.2007); Moore v. W. Forge
Corp., 192 P.3d 427, 438 (Colo.App.2007); Walker v. Van Laningham, 148 P.3d 391, 394
(Colo.App.2006). Here, Sutherland’s litigation conduct satisfies all three elements.
“The essence of the tort of abuse of process is the use of a legal proceeding primarily to
accomplish a purpose that the proceeding was not designed to achieve.” Walker v. Van
Laningham, 148 P.3d 391, 394 (Colo.App. 2006). Sutherland’s ulterior purpose for the use of
judicial process in this instance is political. He plainly stated his intention to interfere with
TDA’s ability to borrow in telephone exchanges with representatives of Compass Bank. He
seeks to prevent local governments from implementing policies he dislikes, and he continues to
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use vexatious and frivolous litigation as the means to accomplish that political goal. Sutherland
is entitled to advocate on behalf of policies he prefers; indeed that entitlement is constitutionally
guaranteed. See U.S. Const. amend. I. However, the courts are not the proper venue for that
advocacy. Courts exist to vindicate rights, remedy injuries, and enforce obligations. See U.S.
Const. Art. III, § 2; Marbury v. Madison, 5 U.S. 137 (1803); Bd. of Cty. Comm’rs v. Park Cty.
Sportsmen’s Ranch, LLP, 45 P.3d 693, 698 (Colo. 2002); Three Bells Ranch Assocs. v. Cache La
Poudre Water Users Ass’n, 758 P.2d 164,168 (Colo. 1988). Contrary to the beliefs of some,
courts are not policymaking bodies. Sutherland’s attempt to use the court system to impose his
policy preferences upon local governments is an ulterior purpose for the use of judicial process
that satisfies the first element of the tort of abuse of process.
Similarly, Sutherland’s conduct represents a willful and improper use of legal process
that satisfies the second element of the tort of abuse of process. In Walker, the Colorado Court
of Appeals upheld a trial court’s dismissal of an abuse of process claim, where the defendants
had filed multiple complaints against their neighbors, the plaintiffs, regarding the defendants’
barking dogs, pursuant to a Teller County ordinance. 148 P.3d at 394. The reviewing court
found that “filing complaints about barking dogs and cruelty to animals under the Ordinance, in
the manner prescribed by those ordinances, is not an improper use of process.” Id.at 395. Those
facts contrast with the ones presented here, where Sutherland seeks to use a declaratory
judgement action to delay or prevent implementation of policies enacted by the duly elected
representatives of the Town of Timnath and TDA, because he happens to disagree with such
policies. He does not seek to enforce any cognizable rights on behalf of himself or the general
public. Instead, he has seized upon a perceived procedural error as an opportunity to interfere
with the workings of local government and raise his personal profile within the community. This
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improper use of legal process satisfies the second element of the tort of abuse of process under
Colorado law.
TDA has suffered, and will continue to suffer, damages as a consequence of Sutherland’s
abuse of legal process. As in Sutherland’s campaign against PSD, the true goal of this action is
to prevent TDA from accessing a debt facility that would otherwise be available to it. TDA
intends to utilize a $20M loan from Compass Bank to fund seven major improvements to
transportation infrastructure within its jurisdiction. Ex. 9, TDA Projects 2018-05-07 at 1-3.
These improvements will enhance both public safety and property values in the area, in
furtherance of the goals of the UR plan to eliminate and prevent blighted conditions. As
Sutherland is aware, TDA cannot close on the Compass Bank loan while litigation challenging
TDA’s authorization of that loan is pending. If TDA is unable to close on the Compass Bank
loan prior to August 1, 2018, the interest rate on that loan could substantially increase. TDA
estimates that a 1% increase in interest rates would increase the cost of the planned
improvements will increase by approximately $1.5M. Ex. 10 at 2, TDA Loan Debt Service
Schedule showing 1% increase. Significant delays will cause TDA to be unable to fund
construction of all of its planned improvements, resulting in continuing harm to public safety,
and impairing the rehabilitation and economic vitality of property located within the TDA.
These harms satisfy the third and final element of the tort of abuse of process under Colorado
law.
II. Sutherland’s Litigation Conduct Is Similar to Abusive Conduct Enjoined by
Colorado Courts in the Past in both Volume and Purpose.
When considering whether to enjoin a party from proceeding pro se, Colorado courts
compare that party’s abuses with those of pro se litigants enjoined by the courts in the past.
Sutherland’s abuse of the civil justice system is equal to or greater in magnitude than the abuses
17
wrought by individuals enjoined from proceeding pro se as civil claimants in past cases.
Sutherland’s tally of nine meritless filings over a four-year period is similar in volume to the
litigation activity of parties that have been enjoined from proceeding pro se in the past. More
importantly, Sutherland’s campaign of futile litigation is analogous to the litigation conduct
enjoined by Colorado courts in that its primary goal was to harass and burden its targets, and not
to enforce any substantive legal rights.
For example, in Karr v. Williams, the enjoined party filed ten state actions over a period
of nine years. 50 P.3d at 911. The purpose of his litigation was to harass witnesses and victims
of his past criminal activities. Id.
In Board of County Com’rs of Boulder County v. Baraday, the enjoined party filed seven
complaints in a three-year period. 594 P.2d 1057, 1058 (Colo. 1979). The true purpose of that
litigant’s complaints was to harass his ex-wife, who at one time had the litigant detained for
psychiatric observation against his will. Id.
In Winslow, the Colorado Supreme Court upheld a district court’s injunction of a pro se
litigant who, at that time, had filed seven complaints over a period of three years. 594 P.2d at
1058. The litigant in Winslow sued twenty-six defendants, including many of the judges
assigned to preside over his cases, accusing them in “conclusory and highly-charged emotional
language, of acting in concert to deprive him of certain property and freedoms.” Id.
In Board of County Com’rs of Weld County v. Howard, a disbarred attorney was enjoined
from appearing pro se after he filed nineteen frivolous actions over a period of 12 years. 640
P.2d 1128, 1129 (Colo. 1982). While his allegations were varied, his vexatious complaints all
arose from disputes with local government officials. Id.
18
In People v. Spencer a party was enjoined from proceeding pro se where he filed eleven
complaints that the Colorado Supreme Court described as “replete with form and lacking in
substance. They are a pile of papers evidencing strong emotion but no legal merit.” 524 P.2d
1084, 1084 (Colo. 1974). The complaints ranged in form from a quiet title action to a suit
against the State of Colorado for malicious prosecution; but all arose from a dispute between
neighbors over irrigation water. Id. at 1085. The court noted that “[n]ot one of these Pro se
lawsuits has been drawn to successful conclusion . . . .” Id. at 1087.
III. Sutherland’s Litigation Conduct is At Least as Harmful as Conduct Enjoined by
Colorado Courts in the Past, and that Harm is Widely Dispersed.
The harm wrought by Sutherland’s four-year campaign of vexatious litigation is at least
as great as the harm caused by the parties enjoined by Colorado courts in the cases described
above. Sutherland’s cryptic filings feature many procedurally improper motions and
countermotions, and requests for reconsideration that served no purpose other than to burden the
District Court. Sutherland has repeatedly demonstrated that he is unwilling to post the security
necessary to offset the public costs of his frivolous complaints, so those costs fall squarely on the
taxpayers that Sutherland claims to protect. See Sutherland v. Bd. of County Comm’rs of
Larimer County, 2014CV115, “Order Declining Jurisdiction”; Sutherland v. Bd. of County
Comm’rs of Larimer County, 2014CV166, “Order re Security”; “Second Order re Security.”
The harm arising from Sutherland’s vexatious litigation is multiplied and dispersed by the
fact that his litigation targets local government entities. Sutherland has had absolutely no
success on the merits of his claims, but he has nevertheless successfully prevented PSD from
accessing bond funding approved by the voters for nearly two years. This injury is born by
students, teachers, taxpayers, and local government officials. In that sense, Sutherland’s
litigation conduct harms far more people than the campaigns for individual retribution that were
19
enjoined by Colorado courts in Karr and Baraday. See Karr, 50 P.3d at 911; Baraday, 594 P.2d
at 1058.
PRAYER FOR RELIEF
Sutherland’s spurious pro se litigation has placed an unsustainable burden on local
governments in Larimer County, and the District Court. Consequently, TDA requests that this
court enjoin Sutherland from appearing or filing as a pro se claimant in this action, or any other
matter before a Larimer County Court. TDA requests that all matters where Sutherland is named
as a pro se claimant be held in abeyance for fourteen days to give Sutherland the opportunity to
obtain the services of a licensed attorney. Should Sutherland fail to obtain the services of a
licensed attorney in that time, TDA requests that all matters where Sutherland is named as a pro
se claimant be dismissed with prejudice.
DATED this 5
th
day of June, 2018.
BROWNSTEIN HYATT FARBER SCHRECK, LLP
Original signature on file at offices of Brownstein Hyatt Farber Schreck
pursuant to C.R.C.P. 121 § 1-26
By: s/Cole J. Woodward
Eric R. Burris, pro hac vice pending
Cole J. Woodward, #50199
Counsel for The Timnath Development Authority and
Compass Mortgage Corporation
Robert G. Rogers, #43578
Casey K. Lekahal, #46531
WHITE BEAR ANKELE TANAKA AND WALDRON
Co-Counsel for The Timnath Development Authority
20
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 5
th
day of June, 2018, a true and correct
copy of the foregoing THE TIMNATH DEVELOPMENT AUTHORITY AND COMPASS
MORTGAGE CORPORATION’S MOTION FOR INJUNCTIVE RELIEF PURSUANT TO
C.R.C.P. 65(g) was filed with the Court and served via Colorado Courts E-filing System on pro
se Plaintiff as follows:
By E-Mail and Regular Mail
Eric Sutherland
3520 Golden Currant Boulevard
Fort Collins, CO 80521
Phone: 970.224.4509
Email: sutherix@yahoo.com
s/Penny G. Lalonde
Penny G. Lalonde, Paralegal
16839402.7