State Ex Rel. Department of Corrections v. Pena

Colorado, STATE of the Use CORRECTIONS,

DEPARTMENT OF

Petitioner, PENA, Mayor City

Federico and Coun

ty Denver; MacFarlane, Manag J.D. Safety, City County

er of Den Simonet,

ver, John Director of Correc City County

tions for the of Den

ver; Trujillo, Mose Jail Warden of the Denver; City County

for the Sal Crider, Donohue,

Carpio, Kathy Robert Foote, Hackworth,

Stephanie Ted Kathy McIntyre, Reynolds,

Nieves Wil Roberts, Scheitler,

liam John William

Silchia, Swalm, City and Paul Member, City County

Denver, Respondents.

No. 88SC544.

Supreme Colorado, Court Banc.

En

March 1990.

Rehearing April Denied Gen., Woodard, Atty. B.

Duane Charles Howe, Deputy Atty. Gen., Richard H. For- Gen., man, Gillespie, A. and Terrence Sol. Denver, Atty. Gen., petitioner. Asst. in two pages. completed Trial was Kaplan, City Atty., and be 500 Stephen H. Stan completed Denver, days.1 transcript The was not Sharoff, City Atty., Asst. M. Septem- of on prior to dismissal respondents. 9, 1988, to transmit for failure ber delivered Justice ERICKSON of the Court. Opinion case, In this the record was to be filed to the order granted We certiorari review of not later than Febru- the court appeals dismissing peti- of the 11, 11(a). to Prior ary 1988. C.A.R. transmit the appeal for failure to

tioner’s deadline, reporter notified view, our manner. record a “transcript over- because of case, the facts of this transcript load” she could re- Accordingly, we harsh a sanction. too prior to the deadline. Petitioner’s counsel and directions. verse remand with of filed a motion an extension by an affidavit supported from

I. reporter, ninety-day and obtained a exten- May 9, 1988 file the record. On sion to to involving Depart- Significant issues 3, 1988, ninety-day extension May a second of of and confinement ment Corrections inability sought of time was because of the prisoners in the Denver Jail state reporter complete the tran- of the court to Den- the district court. were addressed proceedings in the district script of the injunction compel to the De- sought an ver 4, 1988, 9, by May May 1988. On partment accept state in- of Corrections denied the motion without county jail, who confined mates were upon prejudice to “review itemization confining require payment state 1988, 16, transcript May On a overload.” pursu- prisoners County jail in the Denver third motion for an extension was request Department ant an affidavit the trial court re- with from The court entered an district Corrections. 7,500 porter setting page backlog of forth a Denver and ordered injunction in favor of appeals denied transcripts. The court of paid by Depart- funds to be motion after the itemization tran- ment of Corrections. provided by peti- script overload was counsel filed a notice of Petitioner’s tioner. peal, designated on 15, 1988, Thereafter, August transcript proceedings a ordered A issued an order show cause District Court. notice of the Denver dismissed cross-appeal, designation should respondents. prejudice for failure transmit were also filed in a The designated by parties in- manner. The record motions, exhibits, requested responded and reconsideration pleadings, or- cluded testimony denying an extension of ders, previous all transcript and a The The file the record. proceedings in the trial time to district 2, petitioner’s response to peals rejected the was entered on October court’s order 28, 1987, 1987, September and on tunc, September order to show cause pro nunc prejudice. trial dismissed included a court’s order, appeals failed to ruling September 1987 as find- In its that influenced deci- required by indicate factors ings and conclusions C.R.C.P. rehearing petition for was filed on A 52. The total was estimated sion. available, two-day transcript equipment can- 1. The time for certainty predicted day. prepared because of the of State See Conference report- that are used different methods Committee Examine Court Administrators of thumb is that a Service, ers. require rule Reporting Reporting Prac Court Court two-day days four transcribe a trial. Systems Survey Among State Re tices Court Computerized transcription and other modern (June 1984) (available from National Cen sults materially prep- techniques shorten the time Courts). ter for State Depending upon transcript. aration of they prompt steps give timely by the and denied September to the officers of the courts directions appeals on October perfecting appeal, yet, the matter of procedures employed regards making transcript far so as effort not a model. No were transmitting the and it with the the by party either to obtain was made appellate necessary papers to the judge or of the trial performed a to duty this is ministerial be expedite preparation of the to the appeals ap- the officers of the supporting the first The affidavit record. from, pealed any delay or default merely that ninety-day extension stated discharge duty ought such to the not “transcript reporter the due to a overload” appellant, the has injury work to who complete transcript prior to the was unable duly requisite appeal bond ex- February required to complied otherwise statute ninety days May to 1988. tension of in the the lawful orders of all but application, The second premises. first, sought an additional identical Id. at 480. ninety days. extension of When pe preju- Appellate the motion without counsel should be appeals denied itemization, employees nalized for failure of court to petition- to provide dice carry obligations, out their duties and but filed third motion for extension of time er a appellate lawyer’s sev- there remains the obli backlog an itemized which contained completed, gation to transcripts perfect to en that had Cobb, transcription timely manner. 62 Ohio on-going See Cobb addition to usual (1980). Appel St.2d 403 N.E.2d 991 imposed reporter, on a trial court demands obligation as tran- late has the to seek reporter prepare could before then affida- sistance first from trial court and script reporter’s in this case. The requests appellate from the court.2 supporting vits for extensions transcript that of time did not state 11(d) states: completed within the time re- would be may appellate The court for cause shown quested. No further effort was made transmitting time for extend the the record until petitioner complete to request A for extension must be issued the order to show cause was pre- originally the time made within appeals August by the court of previously or within an extension scribed Any request for granted. II. upon report- period of time based following lan- The relies on the inability complete transcript er's F. and M. guage in Swenson v. Girard supported an affidavit of shall be (1878), Co., reversal of 4 Colo. 475 transcript Ins. specifying why the reporter appeals order date yet prepared, and the has been appeal: transcript complet- by which the attorneys appellate may ed. direct expected is to be that

[I]t prompt seeing assiduous in that trial court ap- through own the record on delayed are their and transmittal causes peal. in the matter of neglect, and that reporter provides judge chief shall order Directive 85-10 2. Chief Justice breaking lawyer pay is a a time as pellate with method leave without "transcript transcript may prepare The directive overload.” so-called remedy lawyer positive reporter replacement provides pay a for the who for a transcript period. Except a from an overloaded reporter during circumstances, cannot obtain for these this reporter reporter and states: is a court or when leave, judge sick or annual the chief a absent on 4. When an court orders pre- a find a substi- reporter prepare shall make concerted effort to within engaging reporter tute within the court before is unable to scribed time reporter. replacement contract within the allotted added.) provides not C.A.R. (Emphasis did determining prop- parameters seek the assistance of the court the record until obtaining provides er sanction and “[t]he cause was entered. the order to show may apply such sanction as late court 11(d) provides a means for the including deems lawyer to the assistance of pellate obtain comply any for the failure to obtaining a record (Em- orders or with these rules.” Here, for the added.) phasis not seek the assistance of ei- counsel did determining dismis When whether trial or court in a ther the for failure to sal is an sanction lay and did not a foundation manner record, timely transmit an responsibility that the sole establish substantiality of court should consider the attribut- failure to was appeal. Ispass Pyra on v. the issue See reporter. able to 619, F.2d Freight Corp., mid Motor 152 However, appeals or- the court of when (2d Cir.1945) (“despite the somewhat 621 to show cause dered the delay,” motion to dis feeble excuses for for failure appeal should not be dismissed appeal miss denied because substantial manner, in to transmit the record ap question was raised merits of the response belatedly requesting was peal), part, in 330 U.S. judgment vacated obtaining transcript. 695, 954, (1947). In 67 S.Ct. 91 L.Ed. 1184 sought the response, as- Corp. Ispass, Pyramid Freight Motor by request- of the court of sistance 330 U.S. 67 S.Ct. 91 L.Ed. 1184 ing prepara- the trial court to (1947), (2d part 152 F.2d 619 vacating in Mace, tion of the record. Pueblo v. See Cir.1945), the denial of the motion to dis (1954). 130 Colo. 1015 approved was miss because substantial did not enter an order ity question appeal at issue obtaining the record and assist counsel appropriate an matter for consideration un dismissed the case. 73(a) together with all other circ der Rule grant Generally, the decision to 704-05, umstances.3 Id. at 67 S.Ct. at an extension of time to deny a motion for v. E.I. Du Pont De 959. See also Gunther transmit the record lies within the sound Co., (4th F.2d Nemours & court and dis discretion of the Cir.1958) (“delinquency appellant in absence of an abuse of discretion. turbed should not be overlooked unless it is clear 267, 243 Espinosa, Mitchell v. 125 Colo. questions that substantial on the merits of (1952). 3(a) provides in P.2d 412 C.A.R. issue...”). appeal are at part: view, In our appellant any step to take Failure of an ap abused its discretion timely filing other than the of a notice of peal in failure to transmit the this case for does 11(a)4 record in a manner. C.A.R. validity appeal, is a affect the but (d). ordered that state only appel- action The trial court ground for such as may prisoners be removed from the Denver late court deems appeal. include dismissal of the Jail and to reimburse Denver for Transmission; 73(a) (a) Duty Appel- was similar in Time for 3. Fed.R.Civ.P. substance 3(a). lant; 3(a) Fed.R.App.P. Days Ninety The Federal Transmit. The C.A.R. Appellate including Procedure were amended in Rules of and exhib- responsibility necessary 1979 to shift for the determination appellant peal, from the the record on shall be transmitted to the 10; Fed.R.App.P. See Fed. ninety days filing district court clerk. after the within Moore, 11; R.App.P. Lucas, also 9 J. B. Ward & J. see notice of unless the time is shortened (2d Moore’s Federal Practice 211.05 ed. ¶ or extended an order entered sec- under 1989). (d) tion of the Rule.... Adams, See Cox v. 171 Colo. 464 P.2d 513 11(a) part: provides, in 4. C.A.R. designation portions maintaining pris- trial court the state expense appellant involved the record that the desires issues were oners. Substantial maintain but also obligation to included regarding the state’s facili- requires appellant correctional to “order from the prisoners in state state prisoners for parts not to state of such ties and confine county jail. periods as in- proceedings unreasonable he deems imposed injunctive trial court decision in the re- clusion record.” C.A.R. required payments to appellant, relief and quires notice sought Both the state and Denver Denver. “any other action neces- the trial order. review of court’s sary to enable the clerk the trial [of court] party’s with a failure When confronted assembly and transmit the record.” [sic] rules, comply with the trans- If additional time is needed for the range consider full late court should the appellate mission of record to select the one most possible sanctions and request appellant may circumstances request by must “an support but particular case. presented in a See why the reporter specifying affidavit Court, 3(a); 38(e); Nagy v. District yet has prepared, been (Colo.1988)(“trial judge the can be the date which by con- appropriate an sanction must craft 11(d). completed.” appellant C.A.R. range sanctions sidering the of may appellate also seek an order from the light in of the weighing the sanction directing expedite the “trial court to case”). cir- of Under the full record the preparation and transmittal of the the case, considering the of cumstances this appeal.” Id. ap- issues raised the state’s no Appellate Rules leave The Colorado cross-appeal, peal the and Denver’s may appeal of an doubt that dismissal its discretion dismiss- appeals of abused for failure to ad- appropriate sanction appeal. ing the rules or the orders of here to the Accordingly, the of the we reverse states, in C.A.R. the court. case, dismissing appeals of part, as follows: pertinent appeals di- to the of remand step any appellant of an take Failure appeal to reinstate rections filing timely a notice of than the other also appeals is cross-appeal. The court does appeal orders, pursu- directed issue appeal, but is validity affect 11(d), expedite prepara- ant to C.A.R. only such action as the ground for may impose such tion of may appropriate, which late court deems ap- other than dismissal of sanctions appeal. include dismissal for peal as it deems failure 38(a), 3(a) is Supplementing C.A.R. C.A.R. timely in a petitioner to transmit the record appellee to move authorizes an manner. appellant “if appeal of an dismissal timely cause transmission fails to J., QUINN, dissents that states Finally, record.” KIRSHBAUM, J., joins in the dissent. may apply such sanc- appellate court “[t]he dissenting: QUINN Justice Chief including dis- as it deems tions dis- Although any respectfully I dissent. missal, comply for the failure obviously is a severe appeal rules.” missal these its orders or with sanction, say I that the court cannot pre case, sequence of events In this case. its discretion in this appeals abused clearly dem dismissal ceding the order of state, filing the that place the onstrates Appellate Rules The Colorado 9, 1987, had November such notice appellant on the to take responsibility petition the opportunity to ample as are to file the actions order, pursuant to C.A.R. 10(b) for an appeals expedite court to 11(d), directing the trial appellant to file with only requires the certainly justifiable transmittal does not constitute preparation however, request, ignoring record. It made no such the time excuse limitations for 31,1988, responded August until when “Transcripts, the order to show cause briefs, may like not be filed whenever ... addition, find it convenient.” Freeman should not be dismissed. may Cross, opportunity petition state had a similar 134 Colo. 305 P.2d directing the trial for an order prepare question There can be no that fashion, seek re but failed to appeals, dismissing the state’s lief. Even when the court of de was aware of the issues raised second motion for exten nied the state’s peal. The state’s notice of 3,May that sion on 1988—with the result 3(f), pursuant to C.A.R. the na- described 9,May due to filed on record was ture of the the decision case and which the action 1988—the state failed to challenging. state was The court of ap to seek the1 assistance of the court of obviously peals also was aware that peals expediting preparation state had taken no action to record. The record is clear that the state’s preparation of the record either within the only petition expediting 90-day previously granted of the record was filed on filing the record or within the 3V2 months 31, 1988, August beyond which was far following expiration 90-day ex- 9, 1988, May the date on which the record tension. To hold due to filed in the court of abused its discretion pursuant previously granted exten state’s the circumstances of time. sion dangerously depriv- the case comes close to Although appeals might the court of ing any meaningful that court of discretion imposed have a lesser sanction than dismis managing heavy its docket. sal, say I cannot its order of dismissal unambiguous Ap- terms of Colorado constituted of discretion under abuse pellate clearly Rules autho- present say the circumstances here. “To rize the court of to exercise its that a court has discretion ... means that sanction, fashioning discretion includ- power it has to choose between two or ing party failure of a more courses of action is therefore not cause transmission bound in all cases to select one over the I see no basis this record to second- Milton, People v. other.” 732 P.2d guess appeals’ exercise of dis- (Colo.1987). A court 1207 abuses discre I cretion in this case. would therefore only if tion it can said with fair assur as a affirm the order of dismissal that, particular ance “based on the circum sanction within the discretion of the court confronting stances its decision appeals. unreasonable, manifestly arbitrary, King People, v. E.g., unfair.” 785 P.2d (Colo.1990); People Hampton, KIRSHBAUM, J., joins the dissent. (Colo.1988); Milton, P.2d at 1207. In a case such as this expected appel of an

the most that all the

late court is to consider circumstanc fashioning

es of the case obviously per

sanction to redress what unnecessary delay

ceives as and avoidable A.J. See Moore’s Moore, appellant.

Federal Practice ¶ 203.12, at 3-60 to -61 substantiality While the of an issue important

raised 'on is an factor

consider, it is not the exclusive factor and

Case Details

Case Name: State Ex Rel. Department of Corrections v. Pena

Court Name: Supreme Court of Colorado

Date Published: Mar 5, 1990

Citation: 788 P.2d 143

Docket Number: 88SC544

Court Abbreviation: Colo.