Free Motion for Reconsideration - District Court of Colorado - Colorado

Case 1:04-cv-01067-MSK-CBS

Document 142

Filed 06/17/2006

Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

04-cv-1067-REB-CBS

WILLIAM R. CADORNA, Plaintiff, v. THE CITY AND COUNTY OF DENVER, COLORADO, a Municipal Corporation, Defendant.

P AN IFSMO I NF RR C N IE A I NO SUA SPONTE ORDER L ITF ' TO O E O SD R TO F DEPRIVING PLAINTIFF OF HIS SEVENTH AMENDMENT RIGHT TO TRIAL BY JURY OF HIS §1983 SUBSTANTIVE DUE PROCESS CLAIMS

Pa t Wia R C d ra( lni ) lni l m . a on " a t "hereby moves pursuant to Fed.R.Civ.P. if l f i P if f 60(b)(6), and in accordance with City of Monterey v. Del Monte Dunes, 526 U.S. 687 (1999), for reconsideration and reversal by this Court of its sua sponte order in the June 16, 2006 Trial Preparation Conference that Plaintiff be denied his Seventh Amendment right to trial by jury of his substantive due process claims under 42 U.S.C. §1983. As grounds for this motion, Plaintiff states: 1. Not once since the institution of this action has Defendant disputed

Pa t 'S v nhA n me ti tota b j y f is b tni d epo e s lnis e e t me d n r h t r l yu o h u s te u rc s if f g i r s a v claims under 42 U.S.C. 1 8 ( 1 8 " Defendant has therefore waived its right to § 9 3 " 9 3) § . challenge Pa t 'right to trial by jury of his remaining §1983 claims. lnis if f

1

Case 1:04-cv-01067-MSK-CBS

Document 142

Filed 06/17/2006

Page 2 of 7

2.

Until the June 16, 2006 Trial Preparation Conference, Plaintiff was

completely unaware of the possibility that anyone, including this Court, doubted his Constitutional right to trial by jury of those claims. 3. In the Trial Preparation Conference, this Court stunned Plaintiff (and, one

suspects, Defendant) by expressing surprise that the parties had both submitted proposedj yn t co s e tdt Pa t '§ 9 3s b tni d epo e s lms u i r t n rl e o lnis 1 8 u s te u rc s c i , r su i a if f a v a and ruling sua sponte (without prior notice to the parties or an opportunity to argue the point after careful research and study) that the Court would not permit the jury to decide Pa t 's b tni d epo e s lms lnis u s te u rc s c i . if f a v a 4. That this Court blindsided Plaintiff with such an astonishing deprivation of

one of his most fundamental Constitutional rights1 on the eve of trial is deeply troubling. More importantly, it is patently wrong. 5. The majority opinion(s) in City of Monterey v. Del Monte Dunes, 526 U.S.

6 7(9 9, s e ila e b rtdu o i J sc S aa c n ur go io , a e 8 1 9 )e p c l s l oae p n n u te c l' o c rn p i l v ay a i is i nne no serious doubt that plaintiffs in §1983 actions for monetary relief, whether pursuant to procedural or substantive due process theories, are entitled under the Seventh Amendment to trial of those claims by jury. 6. J sc K n e y p rl o io s td " h l ta a§ 9 3s i u te e n d ' l at p i t e : We o h t 1 8 u i s u i y nn a d t

seeking legal relief is an action at law within the meaning of the Seventh Amendment. J sc S aa c n ur go io pe e t ac mpe e s ea dc n i i a a s u te c l' o c rn p i rs ns o rh n i n o v c g n l i i is i nn v nn ys

1

Indeed, a right in the service and protection of which this Court was established by Article III.

2

Case 1:04-cv-01067-MSK-CBS

Document 142

Filed 06/17/2006

Page 3 of 7

of the historical and constitutional reasons for this conclusion. We agree with this a a s a dc n l i . 5 6US 7 9 n l i n o c s n" 2 .. 0 . ys uo 7. Later, JusticeK n e y rt, rp d t gJ sc S ue'b arl e n d w oe i e u i i u te o tr i r y n an i s z e

s tt t mp t j t amu ip l 'r h t tk po et wto te i b aj y t i at to u i as e sf y n i i s i to a e rp r i u rv w y u : c at g y y h e r " h nteg v rme t a tk npo et wto t rv i a [ e h o en n h s a e rp r i u po in n W] y h dg adequate means for obtaining redress, suits to recover just compensation have been framed as common-law tort actions. .... The City argues that because the Constitution allows the government to take property for public use, a taking for that purpose cannot be tortious or unlawful. We reject this conclusion. Although the government acts lawfully when, pursuant to proper authorization, it takes property and provides just o e s t n teg v rme t c i il fl c mp n ai ,h o en n' lm sa u solely o s a w because it assumes a duty, imposed by the Constitution, to provide just compensation. [cite] When the government repudiates this duty, either by denying just compensation in fact or by refusing to provide procedures through which compensation may be sought, it violates the Constitution. In those circumstances the governmen'a t n aen t n t co s r o o l s i y u c n t t n l u u l fl n tro s s e. n o st i a b t n wu a d ot u a w l i o u a i l " 526 U.S. 715-717. 8. I h c n ur go io , n os db J sc K n e y p rl o io , n i o c rn p i e d re y u te e n d ' l at p i s i nn i s u i y nn

J sc S aas td " my i , l 1 8 a t n mu t et ae ak insofar as u te c l t e : I i i a n v w a § 9 3 co s s b r td le e l i e i the Seventh Amendment right to jury trial is concerned; that right exists when monetary d ma e aes u h. ."5 6US 7 3 H w n o t o s re o c a a a g s r o g t. . 2 .. 2 . e e t n o b ev , n e g i n demonstrating his remarkable ability to clarify what his peers tend to muddle: The fundamental difference between my view of this case and Justice S ue'ita I ee e§ 9 3e tbs e au i e o a l s o tr s h t b lv 1 8 s lh s n u , r t a t s i ai q e distinctive, cause of action, in that the legal duty which is the basis for relief is ultimately defined not by the claim-creating statute itself, but by an e tn ib d o l t w i tes tt rfr, a l" d rli t x i c o y f w o h h h t ue ees n me f ea r hs rs a c a ye g elsewhere conferred." [cite] In this respect, §1983 is, so to speak, a prism through which many different lights may pass. Unlike Justice Souter, I believe that, in analyzing this cause of action for Seventh Amendment

3

Case 1:04-cv-01067-MSK-CBS

Document 142

Filed 06/17/2006

Page 4 of 7

purposes, the proper focus is on the prism itself, not on the particular ray that happens to be passing through in the present case. . . . . The central question remains whether a §1983 suit is entitled to a jury. The fortuitous existence of an inverse-condemnation cause of action is surely not essential to the existence of the §1983 claim. Indeed, for almost all §1983 claims arising out of constitutional violations, no alternative private cause of action does exist ­which makes it practically useful, in addition to being theoretically sound, to focus on the prism instead of the refracted light. This is exactly the approach we took in Wilson v. Garcia, 471 U.S. 261, 85 L.Ed.2d 254, 105 S.Ct. 1938 (1985) ­an opinion whose analysis is so precisely in point that it gives this case a distinct quality of déjà vu. Wilson required us to analogize §1983 actions to common-law suits . . . to identify the relevant statute of limitations. . . . The Court concluded (as I do) that all §1983 claims should be characterized the same way. .... For these reasons, the Court concluded that all §1983 actions should b c aa tr e a " ra t n frh rc v r o d mages for personal e h rc i d s t t co s o te e o ey f a ez o i iui . 4 1US a 2 6 n r s 7 .. t 7 . je" 526 U.S. 723-726. 9. In this case, Plaintiff seeks monetary damages for deprivation of his

property and liberty without benefit of substantive due process. He claims that, even if the procedures offered by the Ct w r, tiC ut v w s fc n t s tf minimal i ee i h o rs i , ufi to aiy y n s ' e ie s procedural due process requirements, they nevertheless (because of the stupidity, cupidity, negligence, or corruption, or all four, of those responsible for the process) resulted in the unconstitutional deprivation of his property and liberty. 10. That is, even though the process resulted in a favorable decision on the

question of his alleged misconduct, Plaintiff remains deprived of the substance of his Constitutional rights. He remains deprived of his property and liberty, and is in exactly

4

Case 1:04-cv-01067-MSK-CBS

Document 142

Filed 06/17/2006

Page 5 of 7

the same position he would have been in had he been found guilty of theft.2 In this respect, the CSC proceedings were akin to a Stalinist or Maoist show trial, in which the proceedings possess the superficial earmarks of a fair hearing3, but the outcome is never in doubt: even the innocent will be executed at dawn. 11. Wi rs e tteC ut rln eu o fon t 4i Perez v. Unified t e p c h o rs ea c p n o toe n h , ' i

Government of Wyandotte County/Kansas City Kansas, 432 F.3d 1163, 1168 seems quite misplaced. The holding in Monterey Dunes is unequivocal: all §1983 claims for monetary damages must be tried to a jury. Although it is true that the right to trial by jury in a substantive due process claims was not squarely before the Supreme Court on appeal, the Court did not carve out an exception of any kind. It held that the right to a jury trial in any action under §1983 for monetary damages is guaranteed by the Seventh A n me t T eT nhCru 'p si d tm i Perez quoting the wholly me d n. h e t i i a s g iu n ct s n c discredited statement by Justice Souter in his dissent/concurrence (that substantive due po e s lms r " s re wto t u so frh c ut reflects willful indifference rc s c i ae r ev d i u q e t n o te o r) a e h i " t teS pe C ut h ln i Monterey Dunes. o h u rme o rs o i n ' dg 12. With respect, Plaintiff submits that the Court has erroneously conflated

the standard according to which motions for dismissal or summary judgment filed against substantive due process claims must be judged--that the facts alleged or in

2

Actually much worse off, because the woefully complex process of attempting to secure justice has been both emotionally and financially draining. His adversary is neither honest, respectful of the law, nor concerned with the expense to the taxpayers of defending the indefensible. It has rewarded his dedicated, lifelong service with nothing but treachery. Adding insult to injury, his adversary regularly casts unfounded aspersion on his name and character, though none of those most fond of doing so would ever be willing to endure the risks he regularly faced for 27 years, especially for less than half their own fat salaries. 3 And therefore comply with the shockingly crabbed, statist definition of democratic, American procedural due process endorsed by the majority of federal courts.

5

Case 1:04-cv-01067-MSK-CBS

Document 142

Filed 06/17/2006

Page 6 of 7

evidence create a genuine issue as to whether the allegedly unlawful official acts rise to the level of conduct that is egregiously unacceptable, outrageous, or would shock the conscience of a Court established to protect life and liberty from undue interference by the state--with the ultimate question of whether, once facts rising to that level have been alleged or supported by some evidence (which this Court has already found) the jury may pass on the ultimate, factually-grounded question of liability. See, e.g., Burnham v. City of Salem, 0 FS p .d2 , 8(0 0:"c n o s y h th fc i 1 1 .u p2 6 3 2 0 ) I a n t a ta te a t n s the record before me, even taking what plaintiffs say to be true . . . present a jury issue c n en gtep i i 'i tos b tni d epo e s o c ri h ln f r h t u s te u rc s. n a ts g f a v " 13. In compliance with D.C. COLO.LCivR. 7.1(A), the undersigned certifies

that he attempted to consult with opposing counsel concerning the subject of this motion, but was unable to contact them because of their work schedules. WHEREFORE, good cause having been shown, Plaintiff respectfully requests that this honorable Court reconsider and reverse its sua sponte decision to deprive Plaintiff of his Seventh Amendment right to have his §1983 claims decided by the jury. DATED this 17th day of June, 2006. Respectfully submitted, /S/

Mark E. Brennan

Mark E. Brennan, P.C. P.O. Box 2556 Centennial, CO. 80161-2556 (303) 552-9394 (office) (303) 797-7687 (cell) [email protected] Attorney for Plaintiff

6

Case 1:04-cv-01067-MSK-CBS

Document 142

Filed 06/17/2006

Page 7 of 7

CERTIFICATE OF SERVICE The undersigned hereby certifies that, on this 17th day of June, 2006, he served a copy of the foregoing Motion t R c n i r e r ai o Pa t 'S v nh o e o s e D pi t n f lnis e e t d v o if f Amendment Right to Jury Trial of his §1983 claims on the following person(s) via electronic mail: Jack Wesoky, Esq. Chris Lujan, Esq. 210 W. Colfax, Dept 1108 Denver, CO. 80202 S/

Mark E. Brennan

7