Beckord v. District Court of Larimer County in Eighth Judicial Dist.
| Citation | 698 P.2d 1323 |
| Decision Date | 15 April 1985 |
| Docket Number | No. 84SA349,84SA349 |
| Parties | Bruce M. BECKORD, Bob Copper, Robert L. Collard, Edward Grueff, Gerard Pearson, James Durward, Goran Svenonius, Nick Kane, Penny L. Kane, Nicky's Restaurant and Lounge, Ltd., a Colorado Corporation; Nicky's Restaurant, Lounge and Motor Lodge, a Colorado Corporation; Perry E. Bartlett and Audrey M. Bartlett, d/b/a Deer Crest Chalets; Don L. Heinemann and Nelrose R. Heinemann, d/b/a The Villager Motel; Crossed Fingers, Inc., d/b/a Eiker's Motor Inn, a Colorado Corporation; Aldon and Elizabeth Olson, Ronald C. Brodie; Brodie's Supermarket, Inc., Lonigan's, a Colorado General Partnership; Parkwheel Corporation, a Colorado Corporation, Steven Nagl, Lon Kinnie; Lloyd Meyers and Mary M. Meyers; Charlotte Miller, d/b/a "Indian Village" and Apropo, Inc., Petitioners, v. The DISTRICT COURT OF the COUNTY OF LARIMER In the EIGHTH JUDICIAL DISTRICT, State of Colorado; and The Honorable William F. Dressel, one of the Judges thereof, Respondents. |
| Court | Supreme Court of Colorado |
French & Stone, P.C., Joseph C. French, David M. Haynes, Miller, Gray & Hale, P.C., Robert Bruce Miller, Bragg & Dubofsky, P.C., Frank N. Dubofsky, Boulder, for petitioners.
William F. Dressel, Fort Collins, pro se.
March, Myatt, Korb, Carroll & Brandes, Robert W. Brandes, Jr., Fort Collins, for Shareholders, Directors, and Employees of Farmers Irrigating Ditch and Reservoir Co. (defendants in respondent Court).
DeMoulin, Anderson, Campbell & Laugesen, P.C., Laird Campbell, Denver, for
Town of Estes Park (defendant in respondent Court).
This is an original proceeding filed by the petitioners pursuant to C.A.R. 21. We issued a rule to show cause why the respondent judge should not be disqualified from presiding over the consolidated cases pending in the Larimer County District Court. We now make the rule absolute.
On July 15, 1982, the Lawn Lake Dam in Larimer County collapsed and released a large volume of water into a stream known as the Roaring River, which, in turn, emptied the water into the Fall River which overflowed its banks. When the overflow reached the Cascade Lake Dam, the dam collapsed. The surging waters then flowed into the Town of Estes Park and over and through the properties of the petitioners. 1
As a result, at least ten separate lawsuits were filed by the petitioners in the District Courts for Denver and Larimer Counties. The damage claims for injuries to persons and property were asserted against the Farmers Irrigating Ditch and Reservoir Company and its shareholders, the owners of the Lawn Lake Reservoir (Farmers). Also named as defendants in the litigation were the Town of Estes Park (Estes Park) which owned the Cascade Lake Dam and the State of Colorado, Department of Natural Resources (State).
In January 1983, Estes Park initiated proceedings under C.R.C.P. 42.1 and requested that all of the litigation be consolidated in one judicial district and transferred to a single district judge pursuant to the provisions of that rule. Thereafter, the multi-district panel held a hearing, certified the cases to the chief justice in accordance with C.R.C.P. 42.1(h), and recommended that Judge William F. Dressel of the Larimer County District Court be assigned to hear the consolidated cases. On April 15, 1983, then Chief Justice Paul V. Hodges assigned Judge Dressel to preside over the consolidated actions, Beckord v. Farmers Irrigating Ditch & Reservoir Co., No. 83-MDL-2.
As part of the supervisory orders entered by Judge Dressel, lead counsel was appointed for the plaintiffs and the defendants. On September 21, 1983, Joseph C. French of Boulder was designated lead counsel for the claimants and Robert W. Brandes, Jr. of Fort Collins was assigned as lead counsel for the defendants. The two lead attorneys were designated by Judge Dressel as the spokespersons to maintain contact with the court on behalf of the claimants and defendants.
Discovery proceedings were conducted in accordance with the respondent's order. Thereafter, the defendants filed motions for summary judgment and/or dismissal. Oral arguments on the motions were heard by Judge Dressel on June 1, 1984.
While the motions were under advisement, Judge Dressel telephoned Frank N. Dubofsky, counsel for some of the claimants, and David Brougham, counsel for the State. From the documents filed with this court it is unclear whether a separate telephone call was placed to each attorney or a conference call involving both attorneys was held. However, Judge Dressel and Dubofsky somewhat disagree as to the nature of the information discussed during the course of their telephone conversation. In his affidavit, Dubofsky states:
1. In late June 1984, I received a phone call from Judge William Dressel informing me that a problem existed (appearance of impropriety) with him deciding part of the Case No. 83-MDL-2, In Re: Various Claimants Against The Farmers Irrigating Ditch & Reservoir Company, and he was referring it to another judge for determination. I asked for the reasons for this reassignment or disqualification and other than indicating a problem with him (appearance of impropriety) and the Defendant State of Colorado, he would not tell me the basis of the problem. He also indicated no further rulings would occur until the State of Colorado case was decided by another judge. On July 18, 1984, Judge Dressel ruled on the remaining issues.
In addition, the petitioners' amended petition for relief pursuant to C.A.R. 21 contains the following statement:
Judge Dressel, in his August 1, 1984 Order, denies stating that he had a conflict. Although there may be a dispute about all of the particulars of everything that he has stated, counsel Dubofsky and Brougham both agree that essentially Judge Dressel states he was referring a portion of the case to another judge because of an appearance of impropriety. 2
In his response to the rule to show cause, Judge Dressel states:
Mr. Dubofsky did inquired [sic] directly as to the reason for having Judge Newton hear the issues involving the State of Colorado. He was advised of Respondent's belief that the Respondent had the authority to have another judge address separate and distinct issues. He did inquire as to whether or not a conflict existed and was advised that was not the basis for the assignment. Mr. Dubofsky raised the question as to whether or not the appearance of impropriety was the reason. Respondent recalled some discussion about appearances, although such was not the reason stated for the reassignment.
Judge Dressel arranged to have the motions involving the State reargued before Judge A. Arnaud Newton in August 1984. Judge Dressel does not dispute Dubofsky's statement in his affidavit that during the telephone conversation Judge Dressel "indicated no further rulings would occur until the State of Colorado case was decided by another judge." However, the respondent issued his written rulings on the claims against Farmers and Estes Park on July 18, 1984. 3 On July 17, 1984, the petitioners prepared a motion to disqualify Judge Dressel and a motion for clarification in which they requested the judge to state in writing the reasons for his recusal from the claims involving the State, both of which were filed with the respondent court on July 18, 1984, at 4:45 p.m.
Judge Dressel refused to disqualify himself or disclose the reasons for the reassignment to Judge Newton of the claims against the State. The petitioners then filed this original proceeding.
Relief in the nature of prohibition is a proper remedy only in those cases where the district court is proceeding without or in excess of its jurisdiction or has abused its discretion in exercising its duties. City of Colorado Springs v. District Court, 184 Colo. 177, 519 P.2d 325 (1974). The scope of inquiry under C.A.R. 21(a) is, therefore, limited to examining the jurisdictional grounds upon which the district court acted to determine whether or not the district court exceeded its jurisdiction or abused its discretion. Id.
Judge Dressel was assigned to hear these consolidated actions by the April 15, 1983, order from then Chief Justice Hodges. The order states:
The Chief Justice has received the "Order Pursuant to C.R.C.P. 42.1" entered by the Panel on Multi-District Litigation on March 25, 1983, which apparently is a certification order entered pursuant to C.R.C.P. 42.1(h). More than 20 days have passed since entry of the panel's order and no original proceedings have been commenced in the Supreme Court and no show cause order has been issued by the Supreme Court.
Therefore, pursuant to C.R.C.P. 42.1(i), the Honorable William F. Dressel, Judge of the Eighth Judicial District, is assigned to hear the actions consolidated by the Panel on Multi-District Litigation.
Beckord v. Farmers Irrigating Ditch & Reservoir Co., No. 83-MDL-2 (Colo. April 15, 1983). 4
Rule 42.1 provides that "[w]hen actions involving a common question of law or fact are pending in different judicial districts, such actions may be transferred to any judge for hearing or trial of any or all of the matters in issue in any action." C.R.C.P. 42.1(b). Transfer is appropriate if "one judge hearing all of the actions will promote the ends of justice and the just and efficient conduct of such actions." See C.R.C.P. 42.1(g) (). Under Rule 42.1, the Panel on Consolidated Multidistrict Litigation (Panel) is authorized to consider whether civil actions should be transferred. If appropriate, the Panel certifies the cases to the chief justice with its recommendation of a particular judge to hear the consolidated actions. C.R.C.P. 42.1(h). The actual transfer and consolidation is accomplished by an order from the chief justice assigning the actions to a judge. C.R.C.P. 42.1(i), (k)(1).
Notwithstanding the express assignment by the chief justice, the respondent and coun...
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