HomeMy WebLinkAbout2018CV149 - SUTHERLAND V. CITY OF FORT COLLINS, STEVE MILLER & IRENE JOSEY - 165R - EXHIBIT R1
Loehr, Rosemary Ann
From: Eric Sutherland <sutherix@yahoo.com>
Sent: Sunday, April 14, 2019 5:52 PM
To: Mill, John W.; Loehr, Rosemary Ann; John Duval
Subject: Rule 59 Motion : award of fees.
Judge Lammons appears to be saying "Sutherland is so stupid that even though he knew he did not have
standing or even a ghost of a chance at attaining standing threw some alternative means, he filed
anyway. After all, he admits to knowing he had not sustained injury."
It is interesting to be thought of in this way.
But then there is the other side. Judge Lammons propensity to competely ignore argument is as noteworthy as
his ability to make findings of fact that are completely unsupported by evidence or testimony.. It makes the
appeal much, much easier when this happens. It is much easier to say, "the court completely disregarded the
argument" rather than having to say "the court considered the argument and got it wrong." Fortunately, the
COA can hear and decide the jurisdicition issue de novo.
Judge Lammons wrote: "Plaintiff never sought declaratory judgment to reconcile the nonclaim statute with
Colorado standing law." Of course, no authority was cited (or exists) that holds that a theory of law regarding
a court's jurisdiction to hear a case must be pleaded in the complaint. The legal authority that does control
here should be familiar.
Whether a court has subject matter jurisdiction is an issue that may be raised at any time. Paine, Webber,
Jackson & Curtis, Inc. v. Adams, 718 P.2d 508 (Colo.1986).
I argued that the non-claim statute must be interpreted to create a private cause of action. That argument was
promptly presented in my Response to the City's MTD with supporting authority. The City of Fort Collins
never argued differently in its Reply. The argument was repeated in my Response to the City's motion for
fees. Only then did the City address the basis of my claim to standing, but like Judge Lammons, the City failed
to acknowledge, let alone address, the crux of the basis of my legal theory.
Judge Lammons' implied understanding of law ... a theory of law regarding standing must be pleaded as a
request for declaratory judgment ... is an interesting concept. However, no one would ever have standing to
request declaratory judgment. Such a request would amount to a request for an advisory opinion on whether or
not a potential plaintiff has standing. The courts do not entertain such requests. A party has no other choice
but to file and assert the theory when it is appropriate ... just as I did in my Response to a MTD.
Because the City of Fort Collins never argued differently, this now goes to the Court of Appeals without any
argument in opposition preserved for appeal. Not even oral argument at the hearing.
(7) No attorney or party shall be assessed attorney fees as to any claim or defense which the court
determines was asserted by said attorney or party in a good faith attempt to establish a new theory of law
in Colorado.
I think I testified under oath that I filed in advance of the 30 day non-claim statute with full knowledge that no
injury had accrued, but waiting longer would absolutely mean I was barred. Only an idiot would have filed
when I did if not for the non-claim statute.
EXHIBIT
R
DATE FILED: December 6, 2019 4:56 PM
FILING ID: D7672ED5BB10B
CASE NUMBER: 2018CV149
2
So ... I am just betting that Judge Lammons will respond to a motion for reconsideration with the same
disregard for the arguments I have presented as he has consistently done in the past. When he does this, it will
further document a systematic disregard of every single argument I advanced to obtain standing. That
systematic disregard is placed front and center in other filings into the justice system.
Even though there is a chance that the City will actually preserve some argument in refutation in its Response,
filing a Motion for Reconsideration still seems like a good idea. I can't imagine any arguments in
refutation. If there were any, they would have been entered. But even if there are some, I can't imagine that
they completely defeat a citizens constitutional right to petition government for redress of grievances adn right
to due process.
People need to be able to go into court with an understanding that their arguments will at least be
acknowledged. Without Barber v. Ritter, I never would have filed. Without 13-17-102(7), I never would have
filed.
When judges systematically disregard 1) a citizen's arguments and 2) the authorities that a citizen cites to
support his arguments, the courts become something other than what they were intended to be.
Please provide your client's position on a Rule 59 motion made for the purposes of seeing if Judge Lammons
may be persuaded to actually acknowledge arguments and authority.
Eric Sutherland