On December 2, 2010, two non-profit organizations, the Colorado Criminal Defense Bar and the Colorado Criminal Justice Reform Coalition brought this lawsuit under 28 U.S.C. § 2201(a) against the Governor of Colorado, in the U.S. District Court for the District of Colorado. The plaintiffs, represented by pro bono private counsel, sought a declaratory judgment that Colorado violated the Sixth Amendment and Fourteenth Amendments by deferring the appointment of counsel to indigent defendants. This Colorado practice was due to a 1992 statute which provided that misdemeanor indigent defendants' applications for appointment of counsel "shall be deferred until after the prosecuting attorney has spoken with the defendant." Colo. Rev. Stat. § 16-7-301(4). The plaintiffs argued that the practice of deferring counsel was a violation of the U.S. Supreme Court decision in Rothgery v. Gillespie County where the Court held that the accused is entitled to the presence of appointed counsel during any "critical stage" of criminal trial proceedings. 554 U.S. 191, 212 (2008). Judge John L. Kan was assigned to the case.

On January 31, 2011, the defendant moved to dismiss, arguing that the matter was best resolved in the legislature, not courts. On February 25, 2011, the plaintiffs filed the first amendment complaint, adding as defendants all of the Colorado district attorneys, and the defendants again moved to dismiss. Litigation continued and Judge Kan set a date to hear oral arguments on the motion to dismiss.

The plaintiffs filed a second amended complaint on January 20, 2012, which the defendants again moved to dismiss. The plaintiffs continued to litigate until a team of legislators took on the issue. In the 2013 regular legislative session, the House and Senate Judiciary Committees considered House Bill 13-1210 to repeal the statute. The bill was approved by both Committees, and the Appropriations Committee set aside approximately $8 million to hire additional public defenders to represent indigent clients in these matters. On January 10, 2013 the plaintiffs filed a notice to the court that legislation
was being considered that would moot the issues presented in the case. In May 2013, Governor Hickenlooper signed the bill removing the requirement that misdemeanor defendants confer with a prosecutor before legal counsel is appointed.

The law resolved all the claims in the lawsuit and on May 30, 2013, Judge Kan dismissed the case.

Abigail DeHart - 07/07/2017


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