Free Motion to Quash - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. CITY AND COUNTY OF DENVER, Defendant. NON-PARTY, MOVANTS' MOTION TO QUASH SUBPOENAS Non-Party, Movants, The Civil Service Commission for the City and County of Denver; Earl Peterson as Executive Director, Denver Civil Service Commission ("Director Peterson"); Christopher Olson as Commissioner, Denver Civil Service Commission ("Commissioner Olsen"); Anna Flores as Commissioner, Denver Civil Service Commission ("Commissioner Flores"); Cecilia Mascarenas as Commissioner, Denver Civil Service Commission ("Commissioner Mascarenas"); Samuel Williams as Commissioner, Denver Civil Service Commission ("Commissioner Williams"); John A. Criswell as Hearing Officer, Denver Civil Service Commission ("Hearing Officer Criswell"); Brian Kellogg as Senior Personnel Analyst, Denver Civil Service Commission ("Analyst Kellogg"); Elizabeth Kiovsky, Ex.-Commissioner, Denver Civil Service Commission ("Ex.-Commissioner Kiovsky") (collectively the "Movants"), move this Court, by and through their counsel, Baker & Hostetler LLP, pursuant to Fed. R. Civ. P. 45(c)(3)(A)(iii), for an Order quashing the Subpoenas requiring them to appear in this Court

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on June 21, 2006 and June 22, 2006 to testify in the above-captioned case. Good cause exists for the granting of this Motion to Quash Subpoenas for the reasons and on the grounds as follows: D.C.COLO.LCivR 7.1(a) CERTIFICATION On June 14, 2006, counsel for the Movants contacted counsel for Plaintiff by telephone and discussed this motion and the reasons and grounds therefore. Counsel for Plaintiff indicated that he would oppose this motion. INTRODUCTION 1. The Plaintiff issued trial subpoenas1 on or about June 6, 2006 to members of the

Denver Civil Service Commission ("Commission") (the "Subpoenas"). The Commission is a quasi-judicial body, whose members' duties include deciding cases involving aggrieved Denver firefighters. The Plaintiff, an aggrieved Denver firefighter, seeks to compel the Commission members to testify concerning their decision-making process in cases they decided in which the Plaintiff was a party. Compelled-inquiry into such matters is prohibited by the Mental Processes Rule. See United States v. Morgan, 313 U.S. 409, 423 (1941). Under Federal Rule of Civil Procedure 45(c)(3)(A)(iii), the Court should quash the Subpoenas. Gary W. v. State of Louisiana, Dept. Heath & Human Resources, 861 F.2d 1366, 1368-69 (5th Cir. 1988) (affirming trial court's decision to quash subpoena of quasi-judicial officer based on Mental Process Rule). BACKGROUND 2. On or about June 6, 2006, Plaintiff's counsel issued the Subpoenas commanding

Director Peterson, Commissioner Olsen, Commissioner Flores, Commissioner Mascarenas,
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The trial subpoenas for Analyst Kellogg, Commissioner Olson, Director Peterson and Ex.-Commissioner Kiovsky are attached hereto as Exhibit A. Hearing Officer Criswell has been served with a trial subpoena but counsel has been unable to obtain a copy. Movant's counsel has been unable to determine whether Commissioners Flores, Mascarenas or Williams have been properly served with subpoenas. Nevertheless, by filing this Motion, Movants do not waive any objections with respect to the sufficiency and/or propriety of service of the Subpoenas upon any Movant.

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Commissioner Williams, Judge Criswell, Analyst Kellogg and Ex.-Commissioner Kiovsky to appear and give testimony at the trial of the above-captioned matter (collectively, the "Individual Movants"). Plaintiff seeks to compel the Individual Movants' testimony regarding their mental processes and decision-making that led to two Commission decisions the Plaintiff believes were adverse to him. 3. By way of background, the Denver City Charter creates the Commission, which,

as part of its duties under the Charter, is charged with administering a review process for disciplinary matters for Denver firefighters. See Denver City Charter § 9.3.1. The Commission has promulgated rules to implement this review process. Commission Rule 12 establishes a procedural framework to administer the review process. See Exhibit B. Like rules of procedure in any civil court, Commission Rule 12 provides for hearings on the record, discovery, motion practice, oral argument, subpoena power and appellate review. See id. Indeed, the Colorado Supreme Court has recognized that the Commission, in adjudicating cases, acts in a "quasijudicial" capacity. Turner v. City and County of Denver, 361 P.2d 631, 634 (Colo. 1961). 4. Hearing Officer Criswell, a retired Colorado Court of Appeals Judge, presided

over a five-day evidentiary hearing of Plaintiff's contestation of certain disciplinary action taken against the Plaintiff, leading to the Plaintiff's termination by the Denver Fire Department.2 During the evidentiary hearing, which was similar to a trial on the merits, the Plaintiff was represented by counsel, twenty witnesses testified, including the Plaintiff, and twenty-four exhibits were offered into evidence. After the hearing, on January 30, 2004, Hearing Officer Criswell entered written Findings, Conclusions and Decision, a twenty-three page document. Though Hearing Officer Criswell overturned the Plaintiff's termination from the Denver Fire

2

The case was styled In the Matter of William R. Cadorna (F76009), Firefighter in the Classified Service of the Denver Fire Department, Case Nos. 03-CSC-01 and 03-CSC02.

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Department, the Plaintiff was unsatisfied with the remedy, which stopped short of requiring the Plaintiff's reinstatement. 5. The Plaintiff appealed to the full Commission, in which Commissioner Olsen,

Commissioner Flores, Commissioner Mascarenas, Commissioner Williams, and Ex.Commissioner Kiovsky, acting much like an appellate court, presided.3 Director Peterson and Analyst Kellogg acted in a support role for the Commissioners (who were acting in a quasijudicial role). They are akin to a judge's law clerks and other support staff assigned to a judge. On May 20, 2005, the Commission affirmed Hearing Officer Criswell's decision in an elevenpage written Decision and Final Order of the Commission.4 6. Plaintiff seeks to compel the testimony of the Commission members, Analyst

Kellogg and Hearing Officer Criswell. It is the mental processes and decision-making process underpinning Hearing Officer Criswell's Findings, Conclusions and Decision as well as the full Commission's Decision and Final Order of the Commission about which the Plaintiff seeks to compel testimony. ANALYSIS 7. The "Mental Processes Rule" protects both judges and administrative, quasi-

judicial actors from testifying indirectly or directly about internal judicial activities and their thought and decision-making process. Morgan, 313 U.S. at 423; Gary W., 861 F.2d at 1368-69; "Judges are under no obligation to divulge the reasons that motivated them in their official acts;

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The case was styled Cadorna v. LaCabe, Case No. 03-CSC-01A. Believing the Commission erred in affirming Hearing Officer's Criswell's decision, the Plaintiff, pursuant to C.R.C.P. 106(a)(4), appealed to the District Court, City and County of Denver, in a case styled William R. Cadorna v. Civil Service Commission of the City and County of Denver; the City and County of Denver, a municipal corporation; John A. Crisewell, in his capacity as Hearing Office, Civil Service Commission of the City and County of Denver, Case No. 05-CV-4641. If Plaintiff desires to second-guess and attack Hearing Officer Criswell's and the Commission's decisions, the pending appeal before the District Court, City and County of Denver is the appropriate (and only) forum to do so.

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the mental processes employed in formulating the decision may not be probed." U.S. v. Roth, 332 F.Supp.2d 565, 567 (S.D.N.Y. 2004). 8. Where the Mental Processes Rule applies, courts have routinely quashed

subpoenas that require judges or quasi-judicial actors to testify. See Robinson v. Commissioner of Internal Revenue, 70 F.3d 34 at 38 (5th Cir. 1995); Gary W., 861 F.2d at 1369; Roth, 332 F. Supp.2d at 570; Meyer v. Foti, 720 F.Supp. 1234 at 1244 (E.D. La. 1989); and U.S. v. Dowdy, 440 F. Supp. 894, 896 (W.D. Vir. 1977). 9. The members of the Commission and it staff, along with Hearing Officer Criswell

and his staff, are entitled to the protection of the Mental Processes Rule. The Commission is an administrative, quasi-judicial body, and the Individual Movants and their staff were acting in a quasi-judicial role when deciding the Plaintiff's Commission cases. 10. It is also clear that Plaintiff intends to elicit testimony from the Individual

Movants that would delve into the thought and decision-making process of Hearing Officer Criswell, the Commission members and their staffs. In the Final Pre-Trial Order, the Plaintiff identifies each of the Individual Movants and summarizes their anticipated trial testimony. 11. Hearing Officer Criswell: According to the Plaintiff, Hearing Officer Criswell

will testify concerning matters, including [t]he evidence and arguments presented in Plaintiff's Civil Service Case; the factual basis, the legal basis, formulation, and language of the Hearing Officer's Decision in the Plaintiff's Civil Service Case; actions taken by the Hearing Officer or the Commission to verify or correct the Hearing Officer's misstatement of fact in his Decision; the Hearing Officer's decisions or Commission decisions in other disciplinary cases. Final Pre-Trial Order at 28.

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12.

Director Peterson, Analyst Kellogg, Commissioner Olson, Ex-Commissioner

Kiovsky, Commissioner Flores, Commissioner Mascarenas and Commissioner Williams: According to the Plaintiff, these individuals will testify concerning matters, including [t]he evidence and arguments presented in Plaintiff's Civil Service Commission cases, the factual basis, legal basis, formulation, and language of the Hearing Officer's Decision in the Plaintiff's Civil Service Commission cases, actions taken by the Hearing Officer or the Commission to verify or correct the Hearing Officer's misstatement of fact in his Decision; the factual basis, legal basis, formulation and language of the Commission Decision in Plaintiff's cases; communications between or among Commission staff, Commission members, the Hearing Officer...or anyone else, concerning any matter related to Plaintiff's Civil Service Commission cases or other litigation concerning Plaintiff's termination or Civil Service Commission cases; the Hearing Officer's decisions or Commission decisions in other disciplinary cases. Final Pre-Trial Order at 28-29, 40-43. 13. Contrary to the Plaintiff's apparent belief, Hearing Officer Criswell's Findings,

Conclusions and Decision and the Commission's Decision and Final Order provide the Plaintiff with all of the insight into the judicial decision-making process to which he is entitled. These written decisions carefully articulate the facts relied upon, the law applied and the reasons supporting the decisions. Moreover, given the Plaintiff's pending appeal of the Commission's Decision and Final Order, the Plaintiff (presumably) had access to the entire record of these proceedings. Plaintiff already has everything to which he is entitled. Thus, the only reason for testimony from the Individual Movants is for Plaintiff to inquire into their mental processes in deciding the cases involving the Plaintiff. 14. The Plaintiff is not entitled to cross-exam the Individual Movants (and their staff)

about their decisions. Providing the Plaintiff with such an opportunity necessarily intrudes upon

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the inner-workings of the judicial decision-making process and violates the Mental Processes Rule. 15. Only where there are extraordinary circumstances, such as bad faith or

misconduct, will the Mental Processes Rule be held inapplicable. Gary W., 861 F.2d at 1369. "To show extraordinary circumstances, a presumption as to the regularity of the acts of public officials must first be overcome." Dowdy, 440 F. Supp. at 896. 16. In the Court's Order Re: Cross-Motions For Summary Judgment, the Court found

that "[a]lthough plaintiff alleges actual bias on the part of the tribunal...plaintiff has not overcome the presumption of honesty and integrity in those serving as adjudicators." Order Re: Cross-Motions For Summary Judgment at 5 (internal quotations omitted). Indeed the Court found that the Plaintiff presented no evidence that any adjudicators "had any kind of personal or financial stake in the outcome of the decision, or harbored any type of personal animosity against him. Rather, plaintiff appears to merely reason backward from the...partially unfavorable decision to conclude that he must have been biased." Id. The Plaintiff failed to present even a triable issue of fact with respect to any improper conduct or bad faith on the part of any of the Individual Movants. 17. As the Order Re: Cross-Motions For Summary Judgment is the law of the case,

with respect to whether Plaintiff has overcome the presumption of honesty and integrity in those serving as adjudicators, the Court should not revisit this issue here. See U.S. v. Monsisvais, 946 F.2d 114, 117 (10th Cir. 1991). In short, the plaintiff cannot show any extraordinary circumstances sufficient to nullify the Mental Processes Rule.

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CONCLUSION 18. For the reasons set forth above, based on the Mental Processes Rule, the Court

should quash the Subpoenas under Federal Rule of Civil Procedure 45(c)(3)(A)(iii). WHEREFORE, the Non-Party, Movants respectfully request that the Court quash the Subpoenas requiring them to appear and give testimony at the trial of this matter on June 21, 2006 and June 22, 2006. Dated this 15th day of June, 2006 BAKER & HOSTETLER LLP

/s/ Richard S. Mandelson Richard S. Mandelson, #5283 303 E. 17th Avenue, Suite 1100 Denver, Colorado 80203 Tel: (303) 861-0600 Fax: (303) 861-7805 e-mail: [email protected] Attorneys for Movants The Civil Service Commission for the City and County of Denver; Earl Peterson as Executive Director, Denver Civil Service Commission; Christopher Olson, as Commissioner, Denver Civil Service Commission; Anna Flores as Commissioner, Denver Civil Service Commission; Cecilia Mascarenas as Commissioner, Denver Civil Service Commission; Samuel Williams as Commissioner, Denver Civil Service Commission; John A. Criswell as Hearing Officer, Denver Civil Service Commission; Brian Kellogg as Senior Personnel Analyst, Denver Civil Service Commission; Elizabeth Kiovsky, Ex.-Commissioner, Denver Civil Service Commission.

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CERTIFICATE OF SERVICE The undersigned certifies that on this 15th day of June, 2006, a true and correct copy of the foregoing Non-Party, Movants' Motion to Quash Subpoenas was served via the Court's CM/ECF System, which will provide electronic notification of such filing, upon the following:

Attorneys for the Plaintiff Mark E. Brennan, P.C.: [email protected] Attorneys for the Defendant Jack M. Wesoky: [email protected] Linda Marie Davison: [email protected] Christopher M.A. Lujan: [email protected]

s/Richard S. Mandelson Richard S. Mandelson Baker & Hostetler LLP 303 E. 17th Avenue, Suite 1100 Denver, Colorado 80203 Telephone: 303 861-0600 Fax: 303 861-7805

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