Free Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-00799-PSF-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 1:01-cv-00799-PSF-OES RITA BASTIEN, Plaintiff, v. THE OFFICE OF SENATOR BEN NIGHTHORSE CAMPBELL, Defendant. ______________________________________________________________________ PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR STAY OF PROCEEDINGS ______________________________________________________________________

Plaintiff, Rita Bastien, by and through her attorneys, Karen Larson and John Evangelisti, responds to the Defendant's Motion for Stay of Proceedings as follows: On January 29, 2007, the Court entered a scheduling order in this case. Defendant moved on February 8, 2007 for a stay of proceedings pending an appeal to the United States Supreme Court in The Office of Senator Mark Dayton v. Hanson, No. 06618 (U.S. filed Nov. 3, 2006). The Office of Senator Campbell requests a stay of discovery because the Dayton appeal was granted certiorari on the common issues of (1) whether the speech and debate clause bestows immunity to Senator Campbell; (2) whether the case must be dismissed as moot in the event a senator retires while litigation under the CAA is pending and (3) whether the supreme Court has jurisdiction of that appeal. Plaintiff objects to this stay.

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A district court must consider four factors when determining whether a stay of its order is appropriate: (1) whether a stay applicant has made a strong showing that it is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Only if the moving party demonstrates a substantial likelihood of success on the merits upon appeal and the balance of equities favor it, then the court should grant the stay. Untied Steel Workers of American v. Oregon Steel Mills, Inc., 322 F. 3d 1222, 1227 (10th Cir. 2003). Of course, these factors are cast in light of the appealing party requesting the stay, rather than an independent party requesting the stay. Therefore the Court must look to Senator Dayton's case and its impact on Senator Campbell's case in considering the factors. A. The Likelihood of the Office of Senator Mark Dayton succeeding on the merits: 1. The Speech and Debate Clause Issue In this case, the Office of Senator Dayton has little opportunity to succeed on the merits on the issues that are common to this case. The speech and debate clause issue was appealed to the Tenth Circuit in this case after the district court dismissed Bastien's case based on the only decision holding the Speech and Debate Clause would bar a case of employment discrimination for an employee not actually working on the legislative floor, Browning v. Clerk, U.S. House of Representatives, 789 F. 2d 923 (D.C. Cir. 1986). Browning was overruled by the D.C. Circuit in Hanson v Dayton, 459 F. 3d 1 (2006 D.C. Circuit 2006.) Even prior to the D.C.'s reversal of Browning, the Tenth Circuit held the

speech and debate clause did not grant immunity in this case to the Office of Senator Campbell. In the Dayton appeal, the Supreme Court will review the D.C. Circuit's

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adoption of a more narrow definition of the legislative process that is in line with the Tenth Circuit's interpretation of legislative process. The Tenth Circuit decided the employment duties of Plaintiff were not legislative, that Senator Campbell had not presented any evidence there was any danger in this case of disclosure of legislative speech or debate, and that any evidence that may have touched on any legislative speech or debate could be cured by this court's evidentiary rulings. The United States Supreme Court denied Certiorari on the Speech and Debate issue. 2. The Abatement Issue Likewise, the Tenth Circuit decided in favor of Bastien and against Senator Campbell on his request to dismiss this case because he is not longer in office and therefore the case has abated. The Office of Senator Dayton, likewise, has little likelihood of succeeding on the merits of the abatement issue. The United States Supreme court denied certiorari on that issue. The Office of Senator Campbell has made no showing that the Office of Senator Dayton is substantially likely to win on appeal. The abatement issue was added t o Senator Dayton's Supreme Court case recently when he retired in January, 2007; and, he has only this case as precedent. B. Whether the Senator Campbell will be seriously harmed absent a stay: The Office of Senator Campbell presents no argument that it will lose any important right by proceeding with discovery in this case. Any inconvenience to the Office of Senator Campbell or the Office by having to work on this case is minimal compared t o Plaintiff's having waited six years and having to present numerous and repetitive appeals before she could proceed with her case.

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Absent a statutory or constitutional provision that trial should not occur pending appeal, the employing office of Senator Campbell has no irretrievable right to avoid a lawsuit. Midland Asphalt Corp. v. United States, 489 U.S. 794, 801 (1989). C. Whether proceeding with the case will injure other parties interested in the proceeding. There are no other parties who may be injured if this case proceeds through discovery. This case can proceed with no impact on any other proceeding involving other cases in which any party would lose due process if this case were to proceed. D. Where the public interest lies. In this case there has been significant interest from amici in support of the Plaintiff. The Congressional Accountability Act was instituted to make the legislature accountable for the discrimination laws that apply to everyone else. The arguments accepted by the Supreme Court for certiorari, the abatement issue and the Speech and Debate issue, are of interest only to a select few legislators compared to a huge public interest in their accountability. Although Senator Campbell argues the Speech and Debate Clause is very important and monumental in the overall scheme of the legislature, it is not so significantly important that it must be vindicated by allowing a stay of this case. Senator Campbell could argue that legislative speech may be revealed in discovery; however, he has not identified any speech that could be compromised. This Court will allow him protection from discovery of legislative speech pending the outcome of Senator Dayton's case, therefore, this arguments boils down to Senator Campbell's desire to be free from

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litigation, a right that is not of public significance. Desktop Direct v. Digital Equipment Corporation, 993 F. 2d 755, 758 (10th Cir. 1993). The Tenth Circuit has reviewed Senator Campbell's concerns that the Speech and Debate clause may be violated and legislative speech may become public record if discovery proceeds in this case. The Tenth Circuit decided if any evidence in this case is protected by the Speech and Debate clause, it can be protected through evidentiary exclusions by the court. WHEREFORE, Plaintiff requests the Honorable Court DENY Defendant's Motion to Stay Proceedings. February 23, 2007. Respectfully Submitted, s/__John S. Evangelisti_______ John S. Evangelisti 1120 Lincoln St., Ste. 711 Denver, CO 80203 Telephone: (303) 832-8226 FAX: (303) 830-8443 Attorney for Rita Bastien s/_Karen Hendrick Larson____ Karen Hendrick Larson 1120 Lincoln Street, Suite 711 Denver, CO 80203 Telephone: (303) 831-4404 FAX: (303) 830-8843 E-mail:[email protected] Attorney for Plaintiff Rita Bastien

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CERTIFICATE OF SERVICE I hereby certify that on February 23, 2007, I placed in the U.S. Mail, postage prepaid, a true and correct copy of this Memorandum Brief on Defendant's Motion for Stay addressed to: VIA FACSIMILE to 202-228-2557 Jean M. Manning Claudia A. Kostel Senate Senior Counsel for Employment Office of Senate Chief Counsel for Employment 1111 Arlington Boulevard, #805 Arlington, Virginia 22209

____________________________

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allowing litigation to proceed could have "a critical impact in the Joyce arbitration." Id. Similarly, in Subway, the Fifth Circuit found that because the issues to be litigated by the non-signatories were identical to the issues to be arbitrated by the signatories, allowing the litigation to proceed would harm the signatories' rights to arbitrate. Subway, 169 F.3d at 329. As the Court noted in a more recent case reaffirming the concept, "[t]he question is not ultimately one of weighing potential harm to the interests of the non-signatory, but of determining whether proceeding with litigation will destroy the signatories' right to a meaningful arbitration." Waste Mgmt., Inc. v. Residuos Industriales Multiquim, S.A. de C.V., 372 F.3d 339, 343 (5th Cir. 2004) (citing Adams v. Ga. Gulf Corp., 237 F.3d 538, 541 (5th Cir. 2001). [**9]

In re Ghanem, 203 S.W.3d 896, 899 (Tex. App. 2006). In Digital, the district court set
side a settlement agreement, forcing the parties to trial without a § 1291 appeal. It is not mere avoidance of a trial for a governmental entity, but avoidance of a trial that would imperil a substantial public interest, that counts when asking whether an order is "effectively" unreviewable if review is to be left until later. Coopers & Lybrand, 437 U.S., at 468, 98 S. Ct. 2454, 57 L. Ed. 2d 351. In this case, The Office of Senator Campbell's argument it cannot stand trial is equally unimportant. The Office of Senator Campbell is not extinguished, nor are the claims against him extinguished. Neither the Office of Senator Campbell not Congress has any valued public policy interest to be protected. The CAA provids an alternative to disrupting the work of a government office by assuming full responsibility for the cases against the offices.

lause.

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he right to be free from standing trial is not an entitlement that would be lost if appeal is not granted. In Van Cauwenberghe v. Biard, 486 U.S. 517, 524-526 (1988), the Court held that "a right not to stand trial in a civil suit is not an essential aspect of a claim of immunity" under the principle of specialty . Therefore, a denial of a motion to dismiss is not immediately appealable. Id. at 524-526. In United States v. MacDonald, 435 U.S. 850 (1978), the Supreme Court refused to permit an interlocutory appeal premised on a violation of the Speedy Trial C Absent a statutory or constitutional provision that trial will not occur if Senator Campbell left office, the employing office of Senator Campbell has no irretrievable right to avoid a lawsuit. Midland Asphalt Corp. v. United States, 489 U.S. 794, 801 (1989). The Office's purported right to not stand trial
is unreviewable after a final judgment only if that right is important enough and a matter of such independent significance, that it must be vindicated by allowing an interlocutory appeal. Desktop Direct v. Digital Equipment Corporation, 993 F. 2d 755, 758 (10th Cir. 1993). In Desktop Direct, the Tenth Circuit rejected as unimportant the right to not stand trial as a collateral order. In Digital, the district court set side a settlement agreement, forcing the parties to trial without a § 1291 appeal. It is not mere avoidance of a trial for a governmental entity, but avoidance of a trial that would imperil a substantial public interest, that counts when asking whether an order is "effectively" unreviewable if review is to be left until later. Coopers & Lybrand, 437 U.S., at 468, 98 S. Ct. 2454, 57 L. Ed. 2d 351. In this case, The Office of Senator Campbell's argument it cannot stand trial is equally unimportant. The Office of Senator Campbell is not extinguished, nor are the claims against him extinguished. Neither the Office of Senator Campbell not Congress has any valued public policy interest to be protected. The

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CAA provids an alternative to disrupting the work of a government office by assuming full responsibility for the cases against the offices.

lause.

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