[copy furnished courtesy NYL, Justice Watch forum]

Judge Wiley Y. Daniel
Civil Action No. 00-D-1597
ALEXANDER M. HUNTER, as District Attorney for the 20th Judicial District Defendant.

ORDER THIS MATTER is before the Court on Defendant's Motion to Dismiss filed August 31, 2000. The Plaintiff filed a response brief on September 12, 2000, and the Defendant filed a reply brief on September 27, 2000. After reviewing the parties' briefs and the relevant case law, I am well versed in the premises and find that oral argument would not materially assist the court in reaching its decision. For the reasons discussed, I will DENY in part and GRANT in part Defendants' Motion to Dismiss.


Plaintiff was the housekeeper for John and Patsy Ramsey. She was called to testify before the Boulder grand jury in 1999. The grand jury's term ended in October, 1999. Neither an indictment nor a report has been issued based on the grand jury's findings. Plaintiff intends to write a book recounting her experience surrounding the murder of the Ramsey's daughter and the ensuing investigation. She would like to recall her grand jury testimony. However, the Colorado Rules of Criminal Procedure prohibit a grand jury witness from disclosing his or her testimony until "an indictment is made public, if an indictment is returned or until a grand jury report dealing with the investigation is issued and made public as provided by law." Colo. R. Crim.P. 6.2. In addition, prior to testifying, a grand jury witness takes an oath in which the witness swears to "keep [her] testimony secret, except to discuss it with [her] attorney, or the prosecutor, until and unless an indictment is issued". Colo.R.Crim.P. 6.3.

Plaintiff filed her Complaint on August 11, 2000, asking this Court to: (1) declare unconstitutional the Colorado Rules of Criminal Procedure which prohibit a grand jury witness from disclosing her testimony until either an indictment or a report is issued and enjoin the District Attorney from attempting to enforce these rules; and (II) order the District Attorney to turn over a transcript copy of Plaintiff's grand jury testimony.

Defendant seeks dismissal of the Complaint on the following grounds: (1) lack of jurisdiction over the subject matter pursuant to Fed. R. Civ. P. 12(b)(1); (2) failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6); and (3) failure to join an indispensable party under Rule 19 pursuant to Fed. R. Civ. P. 12(b)(7).


In considering a motion to dismiss, the court "must accept all the well-pleaded allegations as true and must construe them in the light most favorable to the plaintiff." David v. City and County of Denver, 101 F.3d 1344, 1352 (10th Cir. 1996), cert. denied, 118 S.Ct. 157 (1997) (quoting Gagan v. Norton, 35 F.3d 1473, 1474 n.1 (10th Cir. 1994).


(1) Lack of Jurisdiction over the Subject Matter Pursuant to Fed. R. Civ. P. 12(b(1) Where a party moves to dismiss a pleading pursuant to Rule 12(b)(1) on the ground that the pleading does not set forth sufficient grounds for the court's jurisdiction, "[w]hether the federal court ha[s] jurisdiction...must be determined from the allegations of fact in the complaint, without regard to mere conclusionary allegations of jurisdiction." Groundhog v. Keller, 442 F.2d 674, 677 (10th Cir. 1971). Defendant argues that Plaintiff 's claim must be dismissed due to lack of subject matter jurisdiction because Plaintiff does not have standing and this Court does not have jurisdiction to review the rules in question.

A. Standing

The Supreme Court stated a three part test for standing in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). "First, the plaintiff must have suffered an 'injury in fact' - an invasion of a legally protected interest which is (a) concrete and particularized, and (b) 'actual or imminent, not 'conjectural' or hypothetical..." Id. at 560 (quotations omitted). "Second, there must be a causal connection between the injury and the conduct complained of - the injury has to be 'fairly...trace[able] to the challenged action of the defendant, and not...th[e] result [of] the independent action of some third party not before the court." Id. "Third, it must be 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision." Id. at 561. "The party invoking federal jurisdiction bears the burden of establishing these elements." Id.

(1) Injury in Fact

Defendant argues that Plaintiff does not have standing because she has not suffered an actual injury. However, because of the significance of First Amendment rights, the Supreme Court "has enunciated other concerns that justify a lessening of prudential limitations on standing." Because the mere threat of prosecution under the allegedly unlawful statute may have a "chilling" effect on an individuals protected activity, "the concern that constitutional adjudication be avoided whenever possible may be outweighed by society's interest in having the statute challenged."

Phelps v. Hamilton, 122 F.3d 1309, 1326 (10th Cir. 1997)(citations omitted). In other words, "[o]ne does not have to await the consummation of threatened injury to obtain preventative relief. If the injury is certainly impending that is enough." Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298 (1979). If the threat of injury is a result of a criminal statute, "it is not necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the statute] that he claims deters the exercise of his constitutional right. (citations omitted)." Id.

The question, then, is whether a threat of prosecution under rules 6.2 and 6.3 is "certainly impending" such that Plaintiff can obtain preventative relief. If Plaintiff was threatened with prosecution under a criminal statute, she would clearly have standing to bring her claim under Babbitt. However, the treat of prosecution here is not from a criminal statute, but instead is from a court rule of criminal procedure, whose enforcement would result in contempt of court proceedings. Thus, the pertinent question is whether a violation of a rule of criminal procedure, which might result in a contempt of court proceeding, is sufficiently similar to a violation of a criminal statute, which might result in criminal prosecution, such that the threat of injury is sufficient to support standing. I find that it is.

In Colorado, "criminal contempts" are all those acts in disrespect of the court or its process, or which obstruct the administration of justice, or tend to bring the court into disrepute." Wyatt v. People, 28 P. 961, 962 (Colo. 1892). If Plaintiff were to violate the rules of criminal procedure prohibiting disclosure of her testimony, she would likely be subject to criminal contempt and a criminal proceeding. This is the type of proceeding that the Court in Babbitt did not require a party to endure before challenging the constitutionality of a statute.

(2) Causal Connection between Injury and Action of the Defendant Plaintiff argues that Defendant is the state actor who would seek to enforce Rules 6.2 and 6.3 through a contempt of court proceeding by informing the court of the misconduct. "The Chief Judge of Boulder could only issue a contempt citation if the mater of grand jury secrecy were first brought before him by the Boulder district attorney." Plaintiff's Opposition to Defendant's Motion to Dismiss at 6. Defendant, on the other hand, argues that the District Attorney is only responsible for appearing and advising a grand jury, and the chief judge impanels and supervises a grand jury.

"Constructive contempts" - those not committed in the presence of the court - must, of course, in some regular and legitimate way, be brought to the court's knowledge...[T]he practice generally recognized throughout the United States...is for some proper official or interested party to set forth by affidavit the material facts relied upon." Wyatt v. People, 28 P. 961, 964 (1892). In Wyatt, the alleged misconduct was brought to the attention of the court by the assistant prosecuting attorney. Id. In this case, the District Attorney is both the proper official and the interested party to bring a violation of Rule 6.2 or 6.3 to the attention of the court. Thus, Plaintiff's alleged "chilling" effect is causally connected to the threat of prosecution by the Defendant or by prosecutors working for Defendant.


Defendant argues that an injunction against Hunter would not prevent the possibility of the chief judge conducting an indirect contempt of court proceeding. A chief judge has the power to conduct an indirect contempt of court proceeding if the judge is aware of the alleged misconduct. See generally Colo. R. Civ. P. 107. However, a judge is unlikely to conduct such a proceeding if the judge is unaware of the misconduct. If the District Attorney is enjoined from bringing the alleged misconduct to the attention of the court, it is unlikely that a judge will conduct contempt proceedings. There, it is "likely" that the injury will be redressed if the Defendant is enjoined from attempting to enforce Rules 6.2 and 6.3. Moreover, a declaration that Rules 6.2 and 6.3 are unconstitutional would certainly redress Plaintiff's grievances.

For the foregoing reasons, I find that Plaintiff has satisfied the three requirements for standing announced by the Court in Lujan. First, by having her right to free speech chilled, she has suffered an injury in fact. Second, there is a causal connection between her injury, the "chilling" effect, and the conduct complained of, the threat of prosecution under a court rule. Third, a favorable decision will likely redress the injury. Thus, I find that Plaintiff has standing to bring this claim.

B. Comity

Defendants argue that this Court should abstain from exercising subject matter jurisdiction over Plaintiff's claims pursuant to the principles of federalism and comity set forth in Younger v. Harris, 401 U.S. 37 (1971) and Huffman v. Pursue, LTD, 420 U.S. 592 (1975). These cases articulate "the basic doctrine of equity jurisprudence that courts of equity should not act, and particularly should not act to restrain a criminal [or quasi-criminal] prosecution, when the moving party has an adequate remedy at law [in the state court] and will not suffer irreparable injury if denied equitable relief. Younger, 401 U.S. at 43-44. Pursuant to this doctrine, absent extraordinary circumstances district courts should not grant federal declaratory and injunctive relief finding a state statute unconstitutional and enjoining its enforcement. Id. at 45. This is because the grieved party should "first set up and rely upon his defense in the state courts, even though this involves a challenge of the validity of some statute." Id. (quotation omitted).

It is clear, however, that Younger abstention is not warranted in this case. First, Younger applies only if state proceedings have already commenced when the federal court action is filed, or if the federal court action is only at the "embryonic" stage when the state court proceedings have begun. Doran v. Salem Inn, 422 U.S. 922 (1975). In this case, no state proceedings have commenced. Second, the Supreme Court held that principles of Younger abstention did not apply when a federal court action challenged state bar rules which were promulgated by state courts in non-judicial proceedings. See District Court of Appeals v. Feldman, 460 U.S. 462 (1983), holding that United States District Courts...have subject matter jurisdiction over general challenges to state bar rules, promulgated by state courts in nonjudicial proceedings...Challenges to the constitutionality of state bar rules...do not necessarily require a...District Court to review a final state court judgment in a judicial proceedings. Instead, the District Court may simply be asked to assess the validity of a rule promulgated in a non-judicial proceeding.

Id. at 486. The procedural rules challenged in this case are similar to the rules challenged in Feldman. The power to make rules governing criminal procedure is granted to the Colorado Supreme Court by the legislature [See Colo. Const. Art. VI 21; Colo.Rev.Stat. 13-2-109(1999)]. In promulgating the rules of criminal procedure that concern disclosure of a witness's grand jury testimony, the Court acts in a non-judicial capacity and in non-judicial proceedings. Under the rationale used in Feldman, it is therefore appropriate for this Court to exercise jurisdiction over a challenge to the Colorado Rules of Criminal Procedure. As a result, I conclude that principles of comity and federalism do not warrant abstention.

(2) Failure to State a Claim upon Which Relief Can Be Granted Pursuant to Fed. R.Civ.P.

12(b)(6) "A complaint may be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) only 'if the plaintiff can prove no set of facts to support a claim for relief.'" Id. (quoting Jojola v. Chavez, 54 Fd3d 488, 490 (10th Cir. 1995).

Defendant argues that Plaintiff fails to state a claim because the relief she requests cannot be granted. This argument is based on semantics. Defendant contends that Plaintiff incorrectly characterizes Colorado Rules of Criminal Procedure 6.2 and 6.3 as "statutes" when they are actually "rules" adopted by the Colorado supreme Court. Because "rules" are at issue, Plaintiff's request that the Court declare the "statute" unconstitutional, and enjoin the District Attorney from attempting to enforce the penalties under the "statute," cannot be granted.

Defendant's argument is without merit. It is clear from Complaint that the Colorado rules of Criminal Procedure as issue are "rules;" this is true despite references to the rules as "statutes." The Complaint clearly puts Defendant on notice that Plaintiff seeks a determination that these rules are unconstitutional and seeks an injunction against their enforcement. Because "rules" like the ones challenged by Plaintiff can be declared unconstitutional and their enforcement enjoined, see Butterworth v. Smith, 494 U.S. 624 (1990), the relief sought by Plaintiff does not fail to state a claim upon which relief can be granted. Defendant's 12(b)(6) Motion must be DENIED.

(3) Failure to Join an Indispensable Party Defendant argues that Plaintiff has failed to join the Colorado Supreme Court and the Chief Judge of the Twentieth Judicial District, State of Colorado. Under Rule 19(a) of the Federal Rules of Civil Procedure, A person...shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (I) as a practical matter impair or impede the person's ability to protect that interest.

Fed. R. Civ. P. 19(a). Defendant bears the burden of demonstrating that the Supreme Court and the Chief Judge have an interest relating to Plaintiff's constitutional challenge to Rules 6.2 and 6.3 and that the Court and Judge's ability to protect that interest will be impaired or impeded by the disposition of the suit in its absence. See Davis v. United States, 192 F.3d 951, 958 (10th Cir. 1999).

Defendant argues that because Plaintiff is seeking to have Rules 6.2 and 6.3 of the Colorado Rules of Criminal Procedure declared unconstitutional, the Supreme Court must be a party because the Court has not been given the opportunity to address Plaintiff's constitutional challenge to its rules. Also, the Chief Judge should be joined because any enforcement of potential violations of Rules 6.2 and 6.3 would be through a contempt proceeding before the chief judge of the district court where the grand jury was impaneled.

Defendants argument that the Colorado Supreme Court must be joined because the Court has not been given the opportunity to address Plaintiff's constitutional challenge to its rules is essentially a restatement of the comity issue. Defendant has failed to demonstrate any interest of the Colorado Supreme Court that would not be protected if it was not joined as a party. Beyond bold assertions, Defendant provides no legal support for an inference that the opportunity to address its own rules is an interest that must be protected by joining the Colorado Supreme Court. As previously discussed, Feldman, 460 U.S. at 486.

As to the Chief Judge, Defendant argues that he must be joined because he would conduct any contempt proceedings for violations under Rules 6.2 and 6.3. Defendant, however, identifies no interest of the Chief Judge that requires protection under Rule 19(a). It appears that the Chief Judge may have an interest in Plaintiff's request for a judgment ordering the District Attorney to turn over a transcript copy of the Linda Hoffmann-Pugh's grand jury testimony. Because I find below that this request is properly dismissed, I do not address the issue here. As a result, Defendant's Motion to Dismiss for failure to join an indispensable party must be DENIED.


In additional to finding Rules 6.2 and 6.3 unconstitutional, Plaintiff seeks a court order for the release of a transcript of her grand jury testimony. Defendant argues that Rule 6.9(b) of Colorado Rules of Criminal Procedure and Colorado statue 16-5-204(4(g) each provide a process by which a witness may obtain a transcript of his or her testimony. The language contained in the rule and statute are identical: "Upon application by the prosecutor, or by any witness after notice to the prosecutor, the court, for good cause, may enter an order to furnish to that witness a transcript of his own grand jury testimony, or minutes reports, or exhibits relating to them." Colo.R.Crim.P. 6.9(b); C.R.S. 16-5-204(4)(g). Defendant seeks dismissal because Plaintiff has not attempted to obtain a transcript of her testimony under either rule or statute.

Plaintiff frames her case in the context of 42 U.S.C. 1983 arguing that Rules 6.2 and 6.3 are (1) vague so as to violate due process and (2) content-based regulations of speech which are not "narrowly tailored" to effectuate a compelling government interest such that they violate her First Amendment rights. Plaintiff argues that she need not exhaust her state remedies prior to pursuing her claim in federal court because in a 1983 action, "[t]he federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked. Monroe v. Pape, 365 U.S. 167, 183 (1961).

The decision to release or withhold a witness's transcript does not implicate 1983. Whereas a rule prohibiting a witness from exercising her right to free speech implicates 1983. Plaintiff has failed to show this Court how a decision to withhold her grand jury transcript deprives her "of any rights, privileges, or immunities secured by the Constitution and law." Unless 1983 is implicated, this court will defer that judgment to the state court. The Supreme Court has held that "in general, request for disclosure of grand jury transcripts should be directed to the court that supervised the grand jury's activities." Dougless Oil Company of California v. Petrol Stops Northwest, 441 U.S. 212, 226 (1979). "Ideally, the judge who supervised the grand jury should review the request for disclosure, as he will have first-hand knowledge of the grand jury's activities." Id.

On this basis, the Motion to Dismiss should be GRANTED as it relates to Plaintiff's request for a judgment ordering release of the grand jury transcript. Plaintiff has not exhausted her state remedies. The decision to release the Grand Jury transcripts does not implicate 1983 and is properly left to the discretion of the state court.


Accordingly, it is hereby ORDERED that Defendant's Motion to Dismiss is GRANTED IN PART AND DENIED IN PART. It is granted as to Plaintiff's request for a judgment ordering rrelease of the grand jury transcript. It is denied in all other respects. It is FURTHER ORDERED that a discovery and scheduling conference pursuant to Fed.R.Civ.P. 16(b) is set for Monday, April 2, 2001, at 9:30 a.m., 1929 Stout Street, Courtroom C-200. Counsel shall comply with the attached instructions for Preparation of Scheduling Order and proposed Scheduling Order.

DATED at Denver, Colorado, this 13th day of March, 2001.

BY THE Court:

Wiley Y. Daniel, Judge
United State District Court