IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.

10-CV-02930-JLK-BNB COLORADO CRIMINAL DEFENSE BAR, a Colorado non-profit corporation; COLORADO CRIMINAL JUSTICE REFORM COALITION, a Colorado non-profit corporation, Plaintiffs, v. JOHN HICKENLOOPER, et. al., Defendants. ______________________________________________________________________________ DISTRICT ATTORNEY GROUP DEFENDANTS REPLY IN SUPPORT OF THEIR MOTION TO DISMISS AMENDED COMPLAINT ______________________________________________________________________________ The District Attorney Group Defendants, SCOTT W. STOREY, District Attorney, First Judicial District; MITCHELL R. MORRISSEY, District Attorney, Second Judicial District; FRANK RUYBALID, District Attorney, Third Judicial District; DAN MAY, as District Attorney, Fourth Judicial District; MARK D. HURLBERT, District Attorney, Fifth Judicial District; TODD RISBERG, District Attorney, Sixth Judicial District; DANIEL

HOTSENPILLER, District Attorney, Seventh Judicial District; LARRY R. ABRAHAMSON, District Attorney, Eighth Judicial District; MARTIN BEESON, District Attorney, Ninth Judicial District; THOM LEDOUX, District Attorney, Eleventh Judicial District; DAVID MAHONEE, District Attorney, Twelfth Judicial District; ROBERT E. WATSON, District Attorney,

Thirteenth Judicial District; ELIZABETH OLDHAM, District Attorney, Fourteenth Judicial District; JENNIFER SWANSON, District Attorney, Fifteenth Judicial District; RODNEY D.

FOURACRE, District Attorney, Sixteenth Judicial District; DONALD S. QUICK, District Attorney, Seventeenth Judicial District; CAROL A. CHAMBERS, District Attorney, Eighteenth Judicial District; KENNETH R. BUCK, District Attorney, Nineteenth Judicial District; STANLEY L. GARNETT, District Attorney, Twentieth Judicial District; PETER G. HAUTZINGER, District Attorney, Twenty-First Judicial District; RUSSELL WASLEY,

District Attorney, Twenty-Second Judicial District (hereinafter referred to as the DA Group Defendants), by and through counsel, hereby file this reply in support of their District Attorney Group Defendants Motion to Dismiss Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and 12(b)(1) (the Motion to Dismiss). INTRODUCTION In their Motion to Dismiss, the DA Group Defendants joined the State Defendants Motion to Dismiss the Amended Complaint. The DA Group Defendants also moved to dismiss because Plaintiffs failed to allege an actual controversy under the Declaratory Judgment Act, and because the Plaintiffs lawsuit alleges an abstract, friendly lawsuit in which Plaintiffs have no personal stake in the controversy. Plaintiffs Response largely ignores the arguments set forth in the Motion to Dismiss and, in any event, is unpersuasive. Plaintiffs confuse routine differences of opinion regarding the wisdom of statutory policy, with the stringent case or controversy requirement of Article III and actual controversy requirement of 28 U.S.C. 2201. In the end, Plaintiffs fail to allege an actual controversy, wholly fail to satisfy prudential standing through their friendly suit, and they fail to justify why the differing views regarding Colo. Rev. Stat. 16-7-301(4) should be resolved in a Federal district court rather than before a state legislature. 2

ARGUMENT I. PLAINTIFFS HAVE ESTABLISHED NO ACTUAL CONTROVERSY.

In their Motion to Dismiss, the DA Group Defendants set forth the controlling Tenth Circuit and United State Supreme Court case law which requires an actual controversy in order for declaratory judgment to be appropriate. Plaintiffs response does not cite to, address, or distinguish any of the cases upon which the Motion to Dismiss relied. (See Pls. Resp. to Defs. Mot. to Dismiss, at 8-9 (the Resp.).) Instead, Plaintiffs ignore the actual controversy case law, and divert to whether the parties have differing opinions with regard to the wisdom of the Colorado General Assemblys enactment of Colo. Rev. Stat. 16-7-301(4). (Id.) Plaintiffs Response misses the point, and it fails to address the Amended Complaints insufficiencies. A. Joslin and Zwickler Require Dismissal of this Case. To begin, Plaintiffs ignore the obvious parallels between their Amended Complaint and the causes of action which were dismissed in Joslin v. Secy of Dept of Treasury, 832 F.2d 132 (10th Cir. 1987) and Golden v. Zwickler, 394 U.S. 103 (1969). As noted by these cases, to

establish an actual controversy, a plaintiff must allege something Plaintiffs here have not: facts . . . show[ing] that there is a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. Joslin, 832 F.2d at 135. If there is no actual controversy, then the district court has no subject matter jurisdiction. Id. at 134. Plaintiffs have not alleged a substantial controversy regarding adverse legal interests of immediacy and reality. Instead, they have alleged a general theoretical disagreement over

whether a particular statute (which does not impact Plaintiffs or their members) is, or is not, good policy.1 Such unfocused allegations do not suffice. For instance, in Zwickler, a complainant challenged a state law which made it a crime to distribute anonymous literature in connection with an election campaign. Zwickler, 394 U.S. at 104. There, the plaintiff alleged that a particular congressman would become a candidate for re-election within the next two years, and stated that he desired to distribute anonymous leaflets regarding the congressmans upcoming re-election bid. Id. at 106. On review, the United States Supreme Court contemplated whether a controversy requisite to relief under the Declaratory Judgment Act existed as to the complaint. Id. at 108. The Court concluded that the: power of courts and ultimately of this Court to pass upon the constitutionality of acts of Congress arises only when the interest of litigants require the use of this judicial authority for their protection against actual interference. A hypothetical threat is not enough. The same is true of the power to pass upon the constitutionality of state statutes. No federal court, whether this court or a district court, has jurisdiction to pronounce any statute, either of a state or of the United States void, because irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. Id. at 110 (quoting United Pub. Workers v. Mitchell, 330 U.S. 75, 89-90 (1947).) Because it was unlikely the congressman would again be a candidate, and thus also wholly conjectural that another occasion might arise when Zwickler might be prosecuted for

For instance, Plaintiffs attempt to make much of Defendant Thiebauts settlement and Defendant Public Defender Wilsons concessions to their allegations. (Resp. at 8). However, each of these decisions reflect nothing more than the views of those particular individuals regarding the wisdom of Colo. Rev. Stat. 16-7-301(4). Nothing about those differing opinions changes the fact that Plaintiffs have not alleged adverse legal interests of sufficient immediacy and reality to require entry of declaratory judgment. Joslin, 832 F.2d at 135. Moreover, the federal courts would be swamped if mere differences of opinion about legislation constituted a case or controversy to confer Article III jurisdiction.

distributing handbills referred to in the complaint, there was no sufficient immediacy and reality to sustain a declaratory judgment action. Zwickler, 394 U.S. at 109. As in Zwickler, the notion that an unknown criminal defendant will (a) be subject to a jail sentence; (b) suffer an injury due to receiving a plea offer prior to appointment of counsel; and (c) by chance, eventually be represented by a member of one of the Plaintiff organizations is wholly conjectural. The threat Plaintiffs allege here that someday it is possible for a criminal defendant to be harmed by Colo. Rev. Stat. 16-7-301(4) is exactly the kind of hypothetical threat Zwickler proscribes as a basis for declaratory judgment. Nor have Plaintiffs addressed why Joslin does not justify this cases dismissal. Joslin is a case where, like here, an attorney sought to invalidate law based on the hypothetical that he might, someday, represent a client who would be impacted by the statute he challenged. Joslin, 832 F.2d at 133. There, in reaction to a change in tax law, a tax attorney complained that as a tax attorney he has, in the past, prepared legal opinions analyzing the federal tax aspects of tax shelter investment plans . . . [and he] will in the future continue to prepare such opinions; and that if and when he does, he will then be subject to restraints and restrictions of [the laws he was challenging]. Joslin, 832 F.2d at 135. In evaluating the actual controversy requirement of the Declaratory Judgment Act, and the Article III case or controversy requirement, the Tenth Circuit concluded: In our view, such does not add up to an actual controversy with the Secretary. There are too many ifs. From the record before us it would appear that Joslin simply read the new regulations and then filed the present action. . . . The fact that Joslin may well be a very concerned and upset tax attorney, . . . does not create an actual controversy.

Id. Plaintiffs here having read a new Supreme Court opinion and been unsuccessful in their lobbying efforts before the Colorado General Assembly filed suit. As with Joslin, the very concerned and upset attorneys who filed the present suit have not created an actual controversy. B. Plaintiffs Have Not Alleged Actionable Harm to Business or Economic Interests. Next, Plaintiffs attempt to resuscitate an actual controversy by arguing that Colo. Rev. Stat. 16-7-301(4) impairs their interest in practicing their own profession. (Resp. at 10). Despite Plaintiffs suggestion to the contrary, the State of Colorado has no obligation to administer the Sixth Amendment of the United States Constitution in a manner that maximizes the earning potential of the criminal defense bar, and Plaintiffs do not state a claim under this theory either.2 On its face, Colo. Rev. Stat. 16-7-301(4) simply authorizes district attorneys to engage in plea discussions . . . with the defendant only through or in the presence of defense counsel except where the defendant is not eligible for appointment of counsel, or refuses appointment of counsel and has not retained counsel, or except as provided in subsection (4) of this section. Colo. Rev. Stat. 16-7-301(1). Subsection (4), meanwhile, requires a prosecuting attorney to tell the defendant of any offer; provides that the prosecuting attorney and defendant may engage in further plea discussions; provides that the defendant is not obligated to speak with the prosecuting attorney; and requires the prosecuting attorney to advise the defendant that he or she has a right to retain counsel or seek appointment of counsel. Colo. Rev. Stat. 16-7-301(4). Whatever this statute can be said to do, it certainly does not prevent defense attorneys from
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Of course, Plaintiffs have not even pleaded this purported infringement in their Amended Complaint. (Am. Compl.) Rather, their Amended Complaint alleges a violation of the Sixth Amendment rights of unidentified future criminal defendants. (See, e.g., Am. Compl. 47 (alleging that Colo. Rev. Stat. 16-7-301(4) deprives indigent defendants accused of misdemeanors, petty offenses, or traffic offenses of their right to counsel during this critical stage of the postattachment proceedings against them.) (emphasis added).)

entering appearance. Nor does it govern the stage of process at which defense attorneys may do so. Thus, in no way does Colo. Rev. Stat. 16-7-301(4) impair[] [Plaintiffs] interest in practicing their own profession. (Resp. at 10). Compare Fieger v. Ferry, Jr., 471 F.3d 637, 647 (6th Cir. 2006) (discussing state supreme courts refusal to recuse, where a state supreme court ruling caused Fieger to lose his entitlement to contingent fees); Lepelletier v. F.D.I.C., 164 F.3d 37, 42 (D.C. Cir. 1999) (discussing denial of business opportunity where Lepelletier, who had a contract with FDIC to find depositors, was later denied the opportunity); and Conn v. Gabbert, 526 U.S. 286, 291 (1999) (as to attorney of individual who was searched for evidence, finding no support in our cases for the conclusion of the Court of Appeals that [the attorney] had a Fourteenth Amendment right which was violated in this case.)3 Plaintiffs have found no case law that would sustain a Fourteenth Amendment right to represent hypothetical future criminal defendants at a particular stage of litigation. And, in any event, Colo. Rev. Stat. 16-7-301(4) does not restrict their ability to represent criminal defendants. Plaintiffs attempt at salvaging their case through the Fourteenth Amendment rights of attorneys who have not been appointed yet, should be rejected.

In fact, the statute inures to the benefit of indigent criminal defendants who are in custody. If the law were invalidated as Plaintiffs suggest, prosecutors would no longer be permitted to offer plea bargains to criminal defendants, but rather, both of them would have to wait until a deputy public defender could attend a meeting with both of them. During this delay, the indigent defendant would not receive the benefit of the plea bargain, but rather, would have to choose between pleading guilty as charged or remaining in jail until the deputy public defender became available.

II.

PLAINTIFFS FRIENDLY SUIT DOES NOT ESTABLISH PRUDENTIAL STANDING.

As the DA Group Defendants noted in their Motion to Dismiss, Plaintiffs have not alleged prudential standing. In their Response, Plaintiffs (a) attempt to overrule valid case law from this Court with dicta from a secondary treatise; and then (b) ignore the remaining prudential standing deficiencies in their Amended Complaint. In the end, Plaintiffs do not allege a personal stake that satisfies prudential standing considerations. A. Plaintiffs Have Not Established Prudential Standing. Congress may not confer jurisdiction on Article III Federal Courts to render advisory opinions, entertain friendly suits, or resolve political questions. Citizens Concerned for

Separation of Church & State v. City & County of Denver, 628 F.2d 1289, 1296 (10th Cir. 1980). Thus, even where a dispute is otherwise justiciable, the question of whether the litigant is a proper party to request an adjudication of a particular issue depends upon whether that litigant has established a sufficient stake in the controversy to obtain judicial resolution of a dispute. Id. This sufficient stake has been explained, in some contexts, as prudential standing limitations. Prudential limitations on standing concern whether a plaintiffs grievance arguably falls within the zone of interests protected by the statutory provision invoked, whether the complaint raises abstract questions more properly addressed by the legislative branch, or whether plaintiff is asserting his or her own legal rights and interests rather than the interests of third parties. Common Cause v. Buescher, 750 F. Supp. 2d 1259, 1267-68 (D. Colo. 2010). Plaintiffs Response first cites to a secondary treatise to argue that Bueschers prudential standing test is limited to questions of federal administrative law. (Resp. at 14). Plaintiffs fail 8

to note, however, that like this case, Buescher did not consider a question of federal administrative law. Instead, Buescher contemplated whether Colorado law violated the

National Voter Registration Act of 1993 (the NVRA). Buescher, 750 F. Supp. 2d at 1262. Ultimately, although Buescher declined to apply prudential limitations due to the NVRAs intent to encourage voters rights cases, id. at 1268, there can be no question that prudential limitations apply to the instant case. As the United States Supreme Court noted in Bennett v. Spear, although initial cases applied the zone-of-interests test to suits under the [Administrative Procedures Act], . . . later cases have applied it also in suits not involving review of federal administrative action, and have specifically listed it among other prudential standing requirements of general application. Bennett v. Spear, 520 U.S. 154, 163 (1997) (internal citations omitted); see also Dennis v. Higgins, 498 U.S. 439, 449 (1991); Boston Stock Exch. v. State Tax Commn, 429 U.S. 318, 320-21 n. 3 (1977); Allen v. Wright, 468 U.S. 737, 751 (1984); and Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471-72 (1982). These cases require that a plaintiffs grievance must arguably fall within the zone of interests protected or regulated by the statutory provision or constitutional guarantee involved in the suit. Bennett, 520 U.S. at 162 (emphasis added). 1. Plaintiffs Fail the Zone of Interest Test. Plaintiffs attempt to eliminate the inconvenience of prudential standing is understandable given that they have failed to allege it. As to zone of interest, Plaintiffs meekly suggest that they are at least arguably within the Sixth Amendments zone of interests because they are comprised of individual lawyers who have constitutional and statutory obligations with respect to 9

providing counsel to indigent criminal defendants . . .. (Resp. at 16). In other words, Plaintiffs contend that they are in the zone of interest set forth in Rothgery v. Gillespie Cnty., 554 U.S. 191 (2008), because some of their attorney members, from time to time, may represent somebody who had a right that was protected by Rothgery prior to the attorneys appointment. The Sixth Amendment, however, does not concern itself with the income stream of the criminal defense bar; nor is the State of Colorado obligated to assure that Plaintiffs members have a lucrative law practice. Rather, it provides a right of the accused to assistance of counsel in all criminal prosecutions. Rothgery, 554 U.S. at 198. Plaintiffs are outside of the zone of interest they have alleged. 2. Plaintiffs Fail to Raise a Concrete Legal Issue. Plaintiffs also fail the second prudential standing limitation because they raise an abstract question of law more properly contemplated by the Colorado General Assembly. In their

Response, Plaintiffs contend that by dismissing Defendant Governor Hickenlooper they have alleviated the political nature of their lawsuit. (Resp. at 16 n. 2).4 But their argument is undermined by several of their allegations, which make clear that they seek help from this Court to do what they failed to do before the General Assembly. See, e.g., Am. Compl. 88

(discussing expense of numerous hours drafting, and lobbying for, a bill that would pay for counsel for indigent defendants . . .); 89 (discussing that they expended significant funds for the consultants time drafting a bill . . .); and 135 (discussing how they have expended

Dismissing Defendants Hickenlooper and Marroney has only made this a more friendly lawsuit. Now, the only remaining defendants are (a) the Attorney General and District Attorneys, none of whom have any ability to appoint attorneys for indigent defendants; and (b) the State Public Defender, who has employees that are members of Plaintiffs organizations.

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significant resources in lobbying the Colorado legislature to mitigate collateral consequences of certain felonies . . ..) In fact, without further legislation, a striking of Colo. Rev. Stat. 16-7-301(4) would only eliminate a district attorneys authority to convey a plea bargain offer prior to appointment of counsel. Thus, without Section 301(4), a criminal defendant would need to await the

availability of a deputy public defender before contemplating a plea offer. How, and whether, to resolve these complicated questions are matters for the Colorado General Assembly, not for advisory opinions in the Federal District Court. 3. Plaintiffs Cannot Raise The Rights of These Third Parties. Finally, Plaintiffs seek to raise the rights of third parties: namely, hypothetical indigent criminal defendants who have yet to be identified. As noted in the Motion to Dismiss, neither Plaintiff organization is alleged to be comprised of present day, unrepresented criminal defendants who are accused of misdemeanors. Plaintiffs attempt to shoehorn the rights of these individuals contemplated in Rothgery into a political suit to achieve what they could not legislatively should be rejected. The United States Supreme Court rejected an identical effort only seven years ago. In Kowalski v. Tesmer, 543 U.S. 125 (2004) two attorneys sought to challenge a procedure for appointing appellate counsel to indigent defendants who had pled guilty. Tesmer, 543 U.S. at 127. The two challengers did not represent particular criminal defendants, but rather, sought to invoke the rights of hypothetical indigents to challenge the procedure. Id. On review, the United States Supreme Court did not consider Constitutional standing, but rather assumed that

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the attorneys had satisfied Article III standing and addressed the alternative threshold question whether they have standing to raise the rights of others. Id. at 129. The Court noted, We have adhered to the rule that a party generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties. This rule assumes that the party with the right has the appropriate incentive to challenge (or not challenge) governmental action and to do so with the necessary zeal and appropriate presentation. It represents a healthy concern that if the claim is brought by someone other than one at whom the constitutional protections is aimed, the courts might be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights. Tesmer, 543 U.S. at 129 (quoting Warth v. Seldin, 422 U.S. 490, 499-500 (1975) and Secy of State v. Joseph H. Munson Co., 467 U.S. 947, 955 n. 5 (1984).) The Tesmer Court noted, however, that a third party may assert the rights of another if (a) the party asserting the right has a close relationship with the person possessing the right; and (b) there is a hindrance to the possessors ability to present his own interests. Tesmer, 543 U.S. at 129-30. In contemplating the exception, the Court noted that the attorneys before us do not have a close relationship with their alleged clients; indeed they have no relationship at all. Id. at 131 (emphasis added). Likewise, as the Court noted, the plaintiffs had not satisfied showing a hindrance to asserting the interests of indigent criminal defendants. Id. at 132. Thus, [i]n sum, we hold that the attorneys do not have third-party standing to assert the rights of Michigan indigent defendants denied appellate counsel. Id. at 134.

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As with the identically-situated plaintiffs in Tesmer, Plaintiffs here have not satisfied requirements allowing them to assert interests of unidentified, third-party, future criminal defendants. B. Plaintiffs Lawsuit Seeks a Friendly Advisory Opinion. Finally, as the United States Supreme Court has held, courts should not consider collusive actions because they are not in any real sense adversary. [They do] not assume the honest and actual antagonistic assertion of rights to be adjudicated a safeguard essential to the integrity of the judicial process, and one which we have held to be indispensable to adjudication of constitutional questions by this Court. U.S. v. Johnson, 319 U.S. 302, 305 (1943). Plaintiffs suggest that although several of their members work for Defendant Public Defender Wilson, or are often appointed as Alternate Defense Counsel they have not brought a friendly lawsuit. A look at Public Defender Wilsons Answer shows otherwise. On the same day the DA Group Defendants filed a Motion to Dismiss, Defendant Wilson filed his Defendant Colorado State Public Defender Douglas Wilsons Answer to First Amended Complaint. (The Answer). Therein, Defendant Wilson admitted the entirety of Plaintiffs Claim for Relief. (Answ. 25). In fact, with the exception of not having sufficient information to respond to allegations regarding the Plaintiff organizations, and the exception of denying allegations regarding the State Court Administrators role in relation to his office, Defendant Wilson admitted every allegation in the Amended Complaint. (Answ. 11, 20, 21.) Defendant Wilsons Answer also confesses his involvement in the lobbying efforts discussed in the Amended Complaint: 13

Mr. Wilson presented the Rothgery issue to the Colorado State Legislature through the Joint Budget Committee and the House and Senate Judiciary Committees. In 2009, Mr. Wilson drafted and proposed legislation to cure the constitutional problems with Colo. Rev. Stat. 16-7-301(4) through SB 09-286. Unfortunately this proposed legislation was not enacted and the statute remains a problem. (Answ. 31 (couched as an affirmative defense) compare Am. Compl. 87, 88, 89, 90, and 135).) In other words, not only are deputy public defenders and Alternate Defense Counsel suing the State Public Defender to create more work for deputy public defenders and Alternate Defense Counsel they are doing so after a ceasing their prior joint effort to change the law through legislation. And, in recent days, they have dismissed two of the remaining would-be adverse parties (Governor Hickenlooper and Administrator Marroney), thus leaving only (a) the Attorney General and District Attorneys, none of whom have any ability to appoint counsel for indigent defendants; and (b) State Public Defender Wilson.5 The lawsuit has thus become even more friendly. As noted in Chicago & G.T. Ry. Co. v. Wellman, 143 U.S. 339 (1892): Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, state or federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act be constitutional or not; but such an [exercise] of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of a real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in

Notably, unlike Defendant Thiebaut, State Public Defender Wilson did not settle, but rather has stayed in the case despite confessing the entirety of Plaintiffs claim for relief. Thus, he is arguably placing himself in a position to participate in discovery and formulate arguments that could be beneficial to Plaintiffs.

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the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act. Id. at 345 (emphasis added). Plaintiffs here, along with Defendant Wilson, were unable to achieve what they had hoped before the Colorado General Assembly. Now, Plaintiffs two organizations comprised in part by Public Defender Wilsons deputies seek to sue Public Defender Wilson to achieve what they could not in the legislative branch: a new Colorado law providing funding for their appointment as counsel earlier in the process. Plaintiffs suit is friendly and collusive. It should be rejected. III. ACTUAL PLAINTIFFS, WITH RIGHTS ACTUALLY AT ISSUE, COULD RAISE FOCUSED AND JUSTICIABLE ROTHGERY ISSUES.

Finally, Tesmer also noted that we do not think that the lack of an attorney here is the type of hindrance necessary to allow another to assert the indigent defendants rights. Tesmer, 543 U.S. at 132. As with the plaintiffs in Tesmer, Plaintiffs here have shown (and can show) no hindrance that would prevent indigent defendants from asserting their rights under Rothgery. Plaintiffs contend in their Response that, Indigent defendants who accept plea deals after 16-7-301(4) plea negotiations (even if to their ultimate detriment) will almost never directly appeal from the entry of guilty pleas. Thus, the issue likely will not arise through a direct appeal of a guilty plea based on an uncounseled plea agreement. (Resp. at 13). This assertion is incorrect because both of the cases on which Plaintiffs instant lawsuit relies Rothgery and Padilla v. Kentucky, 130 S.Ct. 1473 (2010) exemplify how actual litigants, with actual controversies, could challenge Section 16-7-301(4) if an actual harm occurs.

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For instance, in Rothgery, a criminal defendant was arrested for being a felon in possession of a firearm. Rothgery, 554 U.S. at 195. After a review for probable cause, a magistrate set bail at $5,000, and the defendant posted a bond and was released. Id. at 196. Despite the defendants requests for counsel, none was immediately appointed. Id. Later, the individual was indicted for the offense, and when he could not post the increased bail he was put in jail and remained there for three weeks. Id. After his release and the dismissal of charges against him, Rothgery . . . brought this 42 U.S.C. 1983 action against respondent Gillespie County (County), claiming that if the County had provided him a lawyer within a reasonable time after the article 15.17 hearing, he would not have been indicted, rearrested, or jailed for three weeks . . . Rothgery sees this [County] policy as violating his Sixth Amendment right to counsel. Id. at 197 (emphasis added). Thus, as

Rothgery makes abundantly clear, one possibility for considering the constitutionality of C.R.S. 16-7-301(4), if an actual harm occurs, is an action filed under 42 U.S.C. 1983. If so filed, the Court would have the benefit of an issue that is definite and concrete, touching the legal relations of parties having adverse legal interests. . . . as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. Aetna Life Ins. V. Haworth, 300 U.S. 227, 240-41 (1937) (internal citations omitted). Likewise, in Padilla, a criminal defendant brought postconviction proceedings where he claimed that his counsel not only failed to advise him of [immigration] consequence[s] prior to his entering the plea, but also told him that he did not have to worry about immigration status since he had been in the country so long. Padilla, 130 S.Ct. at 1478. Padilla brought a postconviction proceeding to challenge his entry of a guilty plea, but the Supreme Court of 16

Kentucky denied his postconviction relief without benefit of a hearing. Id. The United States Supreme Court granted certiorari, and concluded that Padillas complaint had sufficiently alleged a constitutional deficiency to satisfy that a failure to advise him of immigration consequences could result in a finding that his counsel was not competent. Id. Like Rothgery, Padilla shows that postconviction proceedings (such as Colorado Rule of Criminal Procedure 35(c)) are available as a mechanism by which to challenge Colo. Rev. Stat. 16-7-301(4) if, in fact, a defendant in a criminal proceeding comes forward to allege a that his or her constitutional rights were violated. If brought procedurally like Rothgery or Padilla,

Plaintiffs would no longer need this Courts advisory opinion on the collusive legislative question they have presented. CONCLUSION Plaintiffs stated goals are more appropriate for the legislature than federal court. This court should dismiss this case and Plaintiffs should focus their efforts on the state budget making and legislative process, rather than trying to short circuit that process with a federal declaratory judgment action. Accordingly, the DA Group Defendants request the Court to dismiss the Plaintiffs Amended Complaint for the reasons stated in the State Defendants Motion to Dismiss and for the additional reasons stated herein.

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Respectfully submitted this 13th day of July, 2011 by:

s/ Stanley L. Garnett________________ Stanley L. Garnett District Attorney Christopher C. Zenisek Assistant District Attorney Lisa K. Michaels Deputy District Attorney Boulder Justice Center 1777 Sixth Street Boulder, CO 80302 Telephone: 303-441-3700 FAX: 303-441-4703 Email: sgarnett@bouldercounty.org czenisek@bouldercounty.org lmichaels@bouldercounty.org ATTORNEYS FOR THE DISTRICT ATTORNEYS OF THE FIRST THROUGH NINTH, AND ELEVENTH THROUGH TWENTY-SECOND JUDICIAL DISTRICTS

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 13th day of July, 2011, I electronically filed the foregoing DISTRICT ATTORNEY DEFENDANTS REPLY IN SUPPORT OF THEIR MOTION TO DISMISS AMENDED COMPLAINT with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following email addresses:

Scott F. Llewellyn: sllewellyn@mofo.com Collin Michael OBrien: cobrien@mofo.com Morrison & Foerster, LLP-Denver 370 17th Street Republic Plaza #5200 Denver, CO 80202-5638 Matthew David Grove: matthew.grove@state.co.us Rebecca Adams Jones: Rebecca.jones@state.co.us Colorado Attorney Generals Office 1525 Sherman Street Denver, CO 80203

s/ Catherine Olguin Catherine Olguin

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