DISTRICT COURT, COUNTY OF BOULDER, STATE OF COLORADO
Case No. 97 CV 1732 Div. 2
MEMORANDUM BRIEF IN SUPPORT OF MOTION TO DISMISS
DARNAY HOFFMAN, Plaintiff,
ALEXANDER M. HUNTER, as District Attorney for the 20th Judicial District of the State of Colorado, Defendant.
Alexander M. Hunter, District Attorney For The Twentieth Judicial District of Colorado, submits this memorandum brief in support of his motion to dismiss the complaint without a hearing.
BACKGROUND OF THIS ACTION
Plaintiff (Hoffman) filed a complaint and supporting affidavit for relief under #16-5-209, C.R.S. in connection with the ongoing investigation into the murder of JonBenet Ramsey. This statute provides:
"The judge of a court having jurisdiction of the alleged offense, upon affidavit filed with him alleging the commission of a crime and the unjustified refusal of the prosecuting attorney to prosecute any person for the crime, may require the prosecuting attorney to appear before him and explain his refusal. If after a hearing the judge finds that the refusal of the prosecuting attorney to prosecute was arbitrary or capricious and without reasonable excuse, he may order the prosecuting attorney to file an information and prosecute the case or may appoint a special prosecutor to do so..."
#16-5-209, C.R.S. (emphasis added).
Hoffman is a New York attorney appearing here pro se, apparently as a distant but curious observer. He alleges no personal connection to either the Twentieth Judicial District or to the victim, nor does he allege in any other way an injury in fact to a legally protected interest. He seeks a public hearing at which the District Attorney would be required to "explain his refusal to charge" a particular person for the murder of JonBenet Ramsey. He also seeks an order directing the District Attorney to file charges or an order appointing a special prosecutor. His submissions demonstrate that since June he has felt entitled to discovery of the entire police file on the investigation, which provides an indication of the extreme breadth which he contemplates for the procedures he seeks and the extreme extent to which he would like to involve himself and the court in this criminal investigation.  (Hoffman affidavit, Exhibit A) Hoffman acknowledges in his allegations that "the District Attorney claims that he is waiting for the police to make a formal presentation of all the evidence before he will charge anyone with a crime in the Ramsey homicide." (Complaint, Paragraph 22) He also supports his complaint with letters from the District Attorney's office to him. (Hoffman Affidavit, Exhibit B) The letter dated July 2, 1997, stated that the investigation was ongoing and questioned Hoffman's standing under #16-5-209. the letter dated October 10, 1997, advised Hoffman of the statement of Boulder Police Chief Koby, at his then recent press conference, in which he unequivocally "stat[ed] that his department has not yet referred this case to our office for any arrest and prosecution and that it will be some time before the investigation has progressed far enough to consider such a referral."
Hoffman's pleadings in this regard make relief unavailable to him because the statutory remedy only becomes possible after there has been an actual refusal to prosecute. Since the investigation is ongoing and has not been referred to the District Attorney, there has been no "refusal" under the statute.
In an effort to overcome this fatal deficiency, Hoffman alleges, based on "information and belief" and based on references to newspaper and magazine articles, that (1) the police department has "been prepared to arrest one, or both, of the Ramseys since early this spring;"  (2) that the District Attorney "has warned the police that he will not charge the Ramseys with a crime should they be arrested;" and (3) that the District Attorney has improperly handled and controlled the investigation, blocking prosecution. (Complaint at Paragraphs 19-36) this effort to suggest that the District Attorney has in effect refused to prosecute is supported only by unsubstantiated and speculative hearsay, to which Hoffman often tries to give credibility by attaching the label "upon information and belief." 
This Court must dismiss this action without a hearing. First, there is no allegation of, and in fact there has not been, a refusal to prosecute. The police department has not yet completed its investigation or made a referral and recommendation upon which the District Attorney could apply his discretion in making a decision whether to prosecute. Because there has been no refusal to prosecute by the District Attorney, there can be no proper basis for an action under #16-5-209. Second, the absence of any prosecution is due to the absence of a completed investigation, and for that reason alone cannot be deemed arbitrary or capricious and without reasonable excuse. Third, Hoffman's use of #16-5-209 is premature, so any claim pursuant to this statute is not ripe. Fourth, Hoffman's "affidavit" is insufficient as a matter of law because it is based on "information and belief" and incompetent second and third hand hearsay, rather than on personal knowledge, so that it does not satisfy what is required under #16-5-209. Fifth, Hoffman lacks any connection to this jurisdiction or to this case and he has not suffered any injury in fact to a legally protected right; therefore, he lacks standing to bring this action. Any decision to the contrary would be an undue interference by Hoffman through the Court with the executive branch in an ongoing police investigation in violation of separation of powers. The threshold issue is whether Hoffman's complaint and "affidavit" allege sufficient facts to justify this Court in requiring the District Attorney to appear in court to explain his refusal to prosecute. This statute uses the permissive "may" in authorizing the court to use its discretion in deciding whether to require the prosecutor to appear, so that the Court can refuse to hold a hearing even upon submission of a complete affidavit properly alleging a refusal to prosecute. More significantly, the statute only gives the Court the discretion to require the prosecutor to appear upon filing of an affidavit which contains sufficient sworn facts that the prosecutor has unjustifiably refused to prosecute. Hoffman has not met the threshold requirements under the statute. Hoffman's complaint and "affidavit" are insufficient on their face and do not state a claim upon which this limited statutory relief can be granted.
B. There Has Been No Refusal To Prosecute; As a Result, There is No Basis for a Claim Under #16-5-209 and Nothing for the Court to Review.
Section 16-5-209 provides for limited judicial review only upon the filing of an affidavit alleging an "unjustified refusal" to prosecute. Any hearing deemed necessary is limited to requiring "the prosecuting attorney to appear...and explain his refusal." Relief is limited to when the Court finds that the "refusal" was arbitrary or capricious and without reasonable excuse. The terms of this statute require a refusal to prosecute for an action under #16-5-209 to be possible. Because there has been no refusal to prosecute, there is no basis for relief under this statute. Hoffman's complaint and "affidavit" are insufficient as a basis for review by this Court under #16-5-209. Hoffman's pleadings and supporting documents contain the pronouncements of the District Attorney and the Chief of Police that the police investigation is not yet completed and that the police have not sent the results to prosecute at all. Hoffman chooses not to believe those statements on the ongoing status of the investigation. His personal and skeptical speculation is not sufficient to meet the threshold requirement for relief under this statute. The District Attorney submits to the Court the affidavit of the Chief of Police who is responsible for the Ramsey investigation. He states that this investigation is continuing; that the investigation has not been referred to the district Attorney for a decision on whether to file charges; that the District Attorney has not refused to file charges against anyone; that the District Attorney will not be in a position to make a charging decision until Koby determines that the investigation is completed and it has not progressed to the point where a referral can be considered; and that the District Attorney has never made any representations to anyone in the police department of what his decision might be if the investigation should be submitted to his office for review. Chief Koby's affidavit is supported here by the affidavits of the three legal advisors to the Boulder Police Department who are familiar with the investigation and with its status. They also state that "[t]he investigation has not progressed to the point where the investigation should be referred or submitted to the District Attorney for the filing of charges, and, the investigation has not been so referred or submitted" and that "the District Attorney has not refused to prosecute any person for the murder of JonBenet Ramsey." They also confirm that "the District Attorney has not made any representations to the police department as to what his decision might be if this investigation is ever submitted to him for his review." In addition, the Court is provided here with the affidavit of the District Attorney. He states that he has not yet been in a position to exercise his prosecutorial discretion because he has "not yet received any recommendation, referral, or request form the Boulder Police Department to prosecute anyone for the murder of JonBenet Ramsey." The District Attorney also states that he has "not made any decision on whether to prosecute anyone for this murder..." and that he has "not refused to prosecute anyone for this crime." In Landis v. Farish, 674P. 2d 957 (Colo. 1984) the Supreme Court affirmed the District Court order dismissing a petition/affidavit filed under #16-5-209 seeking the prosecution of Nila Keltner. this petition had been dismissed after "the district attorney advised the court that the investigation of Nila Keltner was not concluded and would be continued."  Even though the petition alleged the commission of a crime, any decision not to prosecute under these circumstances was not arbitrary or capricious and without reasonable excuse, so it was proper to dismiss the action.
Landis, 674 P. 2d at 959.
In Sandoval v. Farish, 675 P. 2d 300 (Colo. 1984) the Supreme Court also affirmed the trial court's dismissal of a complaint under #16-5-209. There the plaintiff had complained to the district attorney that a county commissioner has stolen his cattle. He renewed this complaint a year and a half later. The district attorney then ordered an investigation and after the investigation was completed decided not to prosecute. Sandoval, 475 P. 2d at 302. The fact that the refusal to prosecute came after the investigation was completed allowed for full review of the law and the evidence and was significant to the holding that the refusal was arbitrary or capricious. Sandoval, 675 P. 2d at 303.
Because the Boulder Police Department is still conducting its investigation of this crime, the District Attorney has not refused to prosecute. Any action under #16-5-209 is premature and not yet ripe. In the absence of a completed investigation and an actual refusal to prosecute, no justiciable claim exists under the specific terms of #16-5-209. In addition, it is necessarily reasonable for the District Attorney not to prosecute a case before the police have completed their investigation and before they have referred it to him; therefore, any lack of prosecution at this time under these circumstances cannot be arbitrary and capricious. There is no basis for judicial review under the controlling statute.
C. Hoffman's Complaint and "Affidavit" Are Insufficient For an Action Under #16-5-209.
Section 16-5-209 require submission of an affidavit as the basis for the review authorized by this statute. Hoffman's effort to satisfy this jurisdictional requirement is insufficient. Hoffman supports his claim with his own "affidavit," much of which is either expressly or in fact based "on information and belief" rather than first hand knowledge. Hoffman relies on quotations from third parties, many of whom are unidentified, from newspaper and magazine articles. The Colorado Supreme Court has held that a case supported in such an unsubstantiated way failed to meet the requirements of #16-5-209.
Tooley v. District Court, 549 P. 2d 772 (Colo. 1976). In Tooley, "The petition [under #16-5-209] was supported by an affidavit and various newspaper articles." The Court found that "the petition and the affidavit,...,containedallegations which largely were unsubstantiated and were based solely upon information and belief. The petitions and the affidavit were insufficient." Tooley, 549 P. 2d at 774. Hoffman's affidavit is equally insufficient.
The statutory requirement of an affidavit is not a mere formality, satisfied by labeling a document as an "affidavit." As shown by the Supreme Court in Tooley, "information and belief" is insufficient for the affidavit required for this statutory procedure. Yet most of the allegations in Hoffman's "affidavit" are either explicitly or in fact based only on information and belief from second and third hand sources, many of whom are unidentified, rather than on personal knowledge and belief. As shown above, this particularly true with regard to the basis for his speculation that the District Attorney has constructively refused to prosecute. Such speculation is insufficient to provide this Court with jurisdiction under #16-5-209.
A sufficient affidavit is a jurisdictional requirement for judicial review under this statute. The affidavit serves to insure that the statute is only applied under appropriate and limited circumstances. The Supreme Court has said, "' The central feature of an affidavit is its assurances, pursuant to oath, that the contents of a subscribed document are, to the subscriber's personal knowledge or belief, true,' [citation omitted] As a consequence, the omission of this pledge of personal knowledge and understanding indicates the affidavit has failed to achieve its purpose."
Loonan v. Woodley, 882 P. 2d 1380, 1385 (Colo. 1994) .
C.R.C.P. 56(e) requires, in the context of summary judgment, that an affidavit "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Tooley and Loonan show that affidavits required by statute must meet the same requirements in order to provide the necessary assurances contemplated by the legislature. In Commercial Industries Construction, Inc. v. Anderson, 683 P. 2d 378, 381 (Colo. App. 1984), the Court held under C.R.C.P. 56, that the affidavit "based on information and belief, not on personal knowledge" was "speculation and not competent to put into issue the question" at hand.
See, also, People v. Hernandez and Associates, Inc., 736 P. 2d 1238, 1240 (Colo. App. 1986) ("Thus, affidavits based upon inadmissible hearsay are insufficient to support summary judgment. [citations omitted] Moreover, an affidavit based not upon the affiant's personal knowledge but merely upon information and belief is speculation, and is insufficient to support summary judgment,"); Capitran, Inc. v. Great Western Bank, 872 P. 2d 1370, 1376 (Colo. App. 1994) (the threshold for satisfying the personal knowledge requirement requires "some evidence that the witness has personal knowledge of the event" for the evidence in the affidavit to be competent, which was satisfied there because the affiant was a party to the agreements at issue or was familiar with the disbursement of funds under those agreements, and "neither affidavit was submitted upon 'information and belief'."); Commercial Industrial Construction, Inc. v. Anderson, 683 P. 2d 378, 381 (Colo. App. 1984) ("...this affidavit was based on information and belief, not on personal knowledge...Therefore, this statement is speculation and not competent to put in issue the question" underlying the pending summary judgment motion.) Hoffman's affidavit is likewise not competent to put in issue his claim for review under #16-5-209. His knowledge about this investigation is entirely through second and third hand information, not through personal knowledge. He explicitly relies on "information and belief" rather than persona knowledge. He also explicitly relies on materials published by others; thus his own speculation is based on the speculation of others, for neither he nor his sources have had direct involvement in this complicated investigation. To the extent those authors rely on quotations of people alleged to be "close to the investigation," those people are unidentified.
Such pleadings are insufficient and incomptent basis for the relief he seeks. The insufficiency of Hoffman's pleadings is apparent under the clear language of #16-5-209. His effort to go beyond that clear languagae would place the court in conflict with Article III of the Colorado Constitution, which "prohibits any branch of government from assuming the powers of another branch." Wimberly v. Ettenberg, 570 P. 2d 535, 538 (Colo. 1977). For the Court to order a hearing on the basis of such pleadings would be an improper intrusion into the executive discretioon of the District Attorney and of the police, who are responsible for the investigation of crime and the determination of when to prosecute. The Supreme Court has recognized the broad nature of prosecutorial discretion, stating, "The Colorado Constitution establishes the office of district attorney and vests in the office the right to file an information on behalf of the People of the State of Colorado and the discretion to determine the charges that will be files. [citations omitted] The decision to charge 'is the heart of the prosecution function.'" Gansz v. People, 888 P. 2d 256, 257-598 (Colo. 1995) (holding that the victim of a crime does not have a right to be heard at a hearing on a motion to dismiss criminal charges and does not have standing contest a decision to dismiss charges under Article II, section 16a of the Constitution and under #24-4.1-302.5, C.R.S.) The progress of a criminal investigation and the determination of the appropriate time to make a charging decision are too complex and too sensitive for public examination in court, particularly on a premature basis.  The Supreme Court explained why clear and convincing evidence is required for a request for a special prosecutor under #16-5-209, stating that "[s]uch interference with the normal operations of criminal investigations  based solely upon allegations of criminal conduct, raises serious questions of potential abuse by persons seeking to have other persons prosecuted."
Tooley v. District Court, 549 P. 2d 772, 774 (Colo. 1976), quoting Inmates of Attica Correctional Facility v. Rockefeller, 477 F. 2d 375 (2d Cir. 1973). That risk of abuse, as well as risk to the integrity of the investigation itself, are increased many fold if a court hearing is ordered based on pleadings such as those filed by Hoffman before the investigation has been completed.
Inmates of Attica, which our Supreme Court cited favorably, demonstrates that #16-5-209 is an exception to the common law, which must, therefore, be construed narrowly. The Second Circuit quoted the U.S. Supreme Court for the proposition that "[t]he Court's prior decisions consistently hold that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution [citations omitted] ... in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution of another." Inmates of Attica, 477 F. 2d at 378, quoting Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S. Ct. 1146, 1149 (1973).
The Second Circuit did not rest its decision on mere lack of standing, but held that a class action by prison inmates to require the U.S. Attorney to investigate and prosecute personas alleged to have committed crimes failed to state a claim because it was so contrary to "the normal assumption of executive discretion." Inmates of Attica, 477 F.2d at 380. The Court emphasized "the manifold imponderables which enter into the persecutor's decisions to prosecute or not to prosecute [which] make the choice not readily amenable to judicial supervision." Id. The Court discussed several difficult questions in the investigation, arrest, and prosecution decisions, which "engender serious doubt as to the judiciary's capacity to review and as to the problem of arbitrariness inherent in any judicial decision to order prosecution," one of which was "[a]t what point would the prosecutor be entitled to call a halt to further investigation as unlikely to be productive." Id. The Second Circuit had even less trouble affirming the dismissal of a similar claim to compel state officials to prosecute for state criminal violations because "New York law reposes in its prosecutors a discretion to decide whether or not to prosecute in a given case, which is not subject to review in state court." Inmates of Attica, 477 F. 2d at 382.
These constitutional principles of prosecutorial discretion under the doctrine of separation of powers raise serious questions about the constitutionality of #16-5-209. They need not be reached here for the simple reason that those same principles preclude Hoffman's effort to use the statute so far beyond its own terms. The statute cannot be used to involve the court in what is otherwise a matter delegated solely to the executive based on an "affidavit" such as his, nor can it be used until there has in fact been a refusal to prosecute. Because the investigation is continuing and there has been no refusal to prosecute, his complaint and "affidavit" fail to state a claim.
D. Hoffman Lacks Standing
The inquiry for standing is "whether the plaintiff has suffered injury in fact to a legally protected interest as contemplated by statutory or constitutional provisions." Wimberly, 570 P. 2d at 539.
In the absence of such standing, "the case must be dismissed." Id. The Supreme Court explained, in terms particularly appropriate here, that standing serves to "prohibit any branch of government from assuming the powers of another branch. Courts cannot, under the pretense of an actual case, assume powers vested in either the executive or the legislative branches of government" Wimberly, 570 P 2d at 538. The Court explained the importance of standing as follows:
This power of judicial determination is delicate in character, one to be exercised with caution and care, for it may result in disapproval of acts of the legislative department or of actions of the executive department, both co-ordinate branches of government. This care, this caution has been proverbially observed by the courts, lest in their zeal to prevent what they deem unjust, they exceed their judicial authority, assert an unwarranted superiority over their co-ordinate governmental branches and invade the fields of policy preserved to the legislative arm or the realm of administrative discretion lodged in the executive branch. Obviously such determination day not be had at the suit of any and all members of the public or in an ex parte proceeding. It can be secured only at the suit of one directly and not remotely interested.
Id., quoting Ex-Dell-O Corporation v. City of Chicago, 115 F. 2d 627 (7th Cir 1940). Hoffman has not suffered injury in fact to a legally protected interest as contemplated by #16-5-109. (sic) The statute's requirement of an affidavit demonstrates that the legislature expected that only people with firsthand knowledge of both the commission of a crime and the refusal to prosecute would be entitled to bring such an action. Hoffman has no first hand knowledge about the investigation or about the actions of the District Attorney. He has no direct interest in this case or in this judicial district. The legislature did not have people such as Hoffman in mind when it created the remedy through this statute.
Common sense leads to the same conclusion. Hoffman is a New York lawyer who is not licensed to practice law in Colorado. He has no client at all, much less one with a recognizable interest in this case. If Hoffman has standing, any person in the nation and, indeed, in the world, would have standing based solely on having read press reports about the case. If standing under this statute is a broad as Hoffman asserts, anyone and everyone could demand the entire file on any ongoing police investigation and could tie up police, prosecutors, and the courts in publicly addressing and disclosing the details of those investigations while debating whether prosecution is yet appropriate. The legislature did not intend to create nation-wide and world-wide access to the Colorado courts for such involvement in criminal investigations when it enacted #16-5-209.
As shown above, it is generally the law that "a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." Inmates of Attica, 477 F.2d at 378, quoting Linda R.S., 410 U.S. at 619, 93 S. Ct. at 1149. There is nothing in #16-5-209 which suggests that the legislature went against this established law to the tremendous extent necessary to create an interest for Hoffman which gives him standing here. Quite simply, Hoffman has no nexus to the murder of JonBenet Ramsey and has not suffered a legally recognized injury in fact, so he is not entitled to pursue his private interests in this investigation in court. Hoffman's simplistic assertion to the contrary would require a construction of the statute which would be in violation of separation of powers, rendering it unconstitutional under Article III of the Colorado Constitution.
Hoffman has failed to state a claim for relief under #16-5-209 and he lacks standing to invoke the judicial process. The Court must, therefore, dismiss this action without a hearing.
Dated: December 9, 1997
ALEXANDER M. HUNTER, DISTRICT ATTY.
TWENTIETH JUDICIAL DISTRICT
William F. Nagel, No. 10,625
Appellate Chief Deputy District Attorney
P.O. Box 471
Boulder, CO 80306