UNOPPOSED MOTION OF PLAINTIFF-APPELLANT CITIZEN CENTER FOR EXTENSION OF TIME TO FILE OPENING BRIEF

Transcription

1 IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT CITIZEN CENTER, a Colorado nonprofit corporation, v. Plaintiff-Appellant, SCOTT GESSLER, in his official capacity as Colorado Secretary of State, SHEILA REINER, in her official capacity as Mesa County Clerk & Recorder, SCOTT DOYLE, in his official capacity as Larimer County Clerk & Recorder, PAM ANDERSON, in her official capacity as Jefferson County Clerk & Recorder, HILLARY HALL, in her official capacity as Boulder County Clerk & Recorder, JOYCE RENO, in her official capacity as Chaffee County Clerk & Recorder, and TEAK SIMONTON, in her official capacity as Eagle County Clerk & Recorder, Defendants-Appellees. Case No UNOPPOSED MOTION OF PLAINTIFF-APPELLANT CITIZEN CENTER FOR EXTENSION OF TIME TO FILE OPENING BRIEF

2 CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. Rule 26.1(b, Plaintiff-Appellant Citizen Center discloses that it is a nongovernmental corporate party, that it has no parent corporation and that no corporation owns 10% or more of its stock. Dated: June 10, 2013 By: S/ Attorney for Plaintiff-Appellant Citizen Center Unopp Mot. Ext. Time File Open g Br. 2

3 I. MOTION Pursuant to Fed. R. App. P. 27 and 10th Cir. R. 27.4(A, Citizen Center respectfully moves this Court for a 31-day extension of time, through and including Monday, July 22, 2013, to file the Opening Brief in this case. II. BACKGROUND The Opening Brief in this case is presently due within eleven days after the date of this motion, or by June 21, See 10th Cir. R. 27.4(B(1. The due date of June 21, 2013, for the Opening Brief was set by the Circuit Mediator on April 29, 2013, at the conclusion of five months of mediation efforts. When the Circuit Mediator set the due date for the Opening Brief, Citizen Center s counsel had at that time been engaged for three weeks in prosecuting a municipal election contest brought on April 8, 2013, in Colorado district court on behalf of Citizen Center and another client. See Jones v. Samora, No. 13CV30009 (Colo. Dist. Ct. Saguache Cnty. filed Apr. 8, The Defendants-Appellees do not oppose the relief requested by this motion. See 10th Cir. R. 27.4(B(2. No prior motion requesting an extension of time to file the Opening Brief has been filed. See 10th Cir. R. 27.4(B(3. III. ARGUMENT Because of the scheduling conflict created by undersigned counsel s involvement in the expedited proceeding of Jones v. Samora, No. 13CV30009 Unopp Mot. Ext. Time File Open g Br. 3

4 (Colo. Dist. Ct. Saguache Cnty. filed Apr. 8, 2013, it will not be possible for Citizen Center to file its Opening Brief on time, even if Citizen Center and its counsel exercise due diligence and give priority to preparing the brief. See 10th Cir. R. 27.4(C, (D(1(a. Citizen Center is represented in this case by McGuire Baines LLC, which at present has only two attorneys. Both of Citizen Center s attorneys, Robert A. McGuire and Jeffrey D. Baines, have been compelled by an expedited discovery schedule and substantial motions practice to focus their time and energies almost exclusively on litigation of the election contest in Jones v. Samora over the past six weeks. See 10th Cir. R. 27.4(D(1; 27.4(D(1(a. Under Colorado law, election contests are expedited special statutory proceedings that are required to take precedence over all other business in the district court , C.R.S. (2012. Accordingly, the state trial court judge in the election contest case is statutorily mandated under Colorado law to give the contest priority over the rest of his docket, and all attempts by Citizen Center at status conferences to propose delays in the contest proceeding have been unavailing. See 10th Cir. R. 27.4(D(1(b. Because the contest statute imposes very short time frames on the conduct of the contest action, Citizen Center s attorneys have been required to focus their time and energies almost exclusively on litigating the election contest ever since April Unopp Mot. Ext. Time File Open g Br. 4

5 29, 2013, when the Circuit Mediator established the due date of June 21, 2013, for Citizen Center s Opening Brief. Both the state statute that provides these short time frames and the underlying public policy justifications for the priority given to contest proceedings have required undersigned counsel to give Jones v. Samora priority over not only this case, but the rest of their case load. See 10th Cir. R. 27.4(D(1(c. Because Citizen Center is represented in this case by a firm of two attorneys, and because both attorney McGuire and attorney Baines have been fully absorbed by the demands of the contest case, there is no other attorney in the undersigned firm that could have either stepped in to prepare the Opening Brief in this case or otherwise relieved attorney McGuire or attorney Baines of the burdens of the election contest litigation. See 10th Cir. R. 27.4(D(1(d. For the foregoing reasons, the election contest that Citizen Center s counsel has been prosecuting for the past nine weeks has created an unavoidable scheduling conflict that has rendered it impossible for Citizen Center s counsel, over the next eleven days, to properly prepare the Opening Brief for timely filing in this case. Moreover, the scheduling conflict created by Jones v. Samora appears likely to continue to occupy at least the next two weeks, leading all the way up to the presently scheduled due date for the Opening Brief of June 21, Following a Unopp Mot. Ext. Time File Open g Br. 5

6 trial from June 3 through June 6, 2013, the Colorado district court in Jones v. Samora declared the challenged election void ab initio on Friday, June 7, Citizen Center has since learned that the defeated contestees now intend to seek review of that judgment, which the election-contest statute permits to be accomplished by direct application to the Colorado Supreme Court , C.R.S. (2012. Citizen Center thus anticipates that its attorneys in this case are likely to be required nearly immediately to perform further substantial follow-on work at a continued expedited pace in Jones v. Samora. Citizen Center s attorneys also face impending deadlines in two other matters that in each case fall due prior to the present due date of the Opening Brief in this case. First, Citizen Center s attorneys are responsible for filing an Opening Brief with the Colorado Court of Appeals in Marks v. Reno, No. 12CA2613 (Colo. App. filed Dec. 24, 2012, which is presently due on June 14, Undersigned counsel requested an enlargement of time from the Colorado Court of Appeals in Marks v. Reno on June 9, 2013, but an extension has not yet been granted. Second, Citizen Center s attorneys are responsible for filing a claim for attorney fees and costs in Marks v. Koch, No. 09CV294 (Colo. Dist. Ct. Pitkin Cnty. filed Oct. 8, 2009, which is presently due on June 13, Undersigned counsel requested an enlargement of time from the Colorado District Court for Pitkin Unopp Mot. Ext. Time File Open g Br. 6

7 County in Marks v. Koch on May 30, 2013, but an extension has not yet been granted. Undersigned counsel believe that a 31-day extension of time to file the Opening Brief in this case, through and including Monday, July 22, 2013, will allow them sufficient additional time to give proper attention to both this matter and to the work that remains in the election contest case, and that the requested extension will permit them to manage the conflicting intervening deadlines that undersigned counsel also faces in Marks v. Reno and Marks v. Koch. WHEREFORE, for the foregoing reasons, Citizen Center respectfully requests a 31-day enlargement of time to file its Opening Brief in this case, through and including Monday, July 22, Respectfully submitted this 10th day of June, MCGUIRE BAINES LLC By: S/ Attorney for Plaintiff-Appellant Citizen Center MCGUIRE BAINES LLC 1624 Market Street, Suite 202 Denver, Colorado Telephone: ( ram@mcguirebaines.com Unopp Mot. Ext. Time File Open g Br. 7

8 CERTIFICATE OF DIGITAL SUBMISSION I hereby certify that with respect to the foregoing: (1 all required privacy redactions have been made per 10th Cir. R. 25.5; (2 if required to file additional hard copies, that the ECF submission is an exact copy of those documents; (3 the digital submissions have been scanned for viruses with the most recent version of a commercial virus scanning program, Microsoft Security Essentials, and according to the program are free of viruses S/ Unopp Mot. Ext. Time File Open g Br. 8

9 CERTIFICATE OF SERVICE I hereby certify that on June 10, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following addresses: David Patrick Ayraud Linda Connors Gillian Dale Jennifer Davis Matthew D. Grove David Evan Hughes Thomas John Lyons LeeAnn Morrill Writer Mott William Glenn Ressue Bryan Robert Treu David Ryan Wunderlich ayrauddp@co.larimer.co.us connorlk@co.larimer.co.us daleg@hallevans.com jdavis@chaffeecounty.org matthew.grove@state.co.us dhughes@bouldercounty.org lyonst@hallevans.com ram@mcguirebaines.com leeann.morrill@state.co.us wmott@jeffco.us wressue@larimer.org bryan.treu@eaglecounty.us dwunderl@jeffco.us I hereby certify that on June 10, 2013, I have mailed or served the foregoing by first class mail, postage pre-paid or by other consented means to the following: Jeffrey D. Baines jdb@mcguirebaines.com M. Brooke McKinley Boulder County Attorney's Office P.O. Box 471 Boulder, CO bmckinley@bouldercounty.org S/ Unopp Mot. Ext. Time File Open g Br. 9