State Ex Rel. Department of Corrections v. Pena

788 P.2d 143, 14 Brief Times Rptr. 258, 1990 Colo. LEXIS 149, 1990 WL 19149
CourtSupreme Court of Colorado
DecidedMarch 5, 1990
Docket88SC544
StatusPublished
Cited by9 cases

This text of 788 P.2d 143 (State Ex Rel. Department of Corrections v. Pena) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Department of Corrections v. Pena, 788 P.2d 143, 14 Brief Times Rptr. 258, 1990 Colo. LEXIS 149, 1990 WL 19149 (Colo. 1990).

Opinions

Justice ERICKSON

delivered the Opinion of the Court.

We granted certiorari to review the order of the court of appeals dismissing the petitioner’s appeal for failure to transmit the record in a timely manner. In our view, dismissal, under the facts of this case, was too harsh a sanction. Accordingly, we reverse and remand with directions.

I.

Significant issues involving the Department of Corrections and the confinement of state prisoners in the Denver County Jail were addressed in the district court. Denver sought an injunction to compel the Department of Corrections to accept state inmates who were confined in the county jail, and to require payment for confining state prisoners in the Denver County jail pursuant to the request of the Department of Corrections. The district court entered an injunction in favor of Denver and ordered substantial funds to be paid by the Department of Corrections.

Petitioner’s counsel filed a notice of appeal, designated the record on appeal, and ordered a transcript of the proceedings in the Denver District Court. A notice of appeal, cross-appeal, and a designation of record were also filed by the respondents. The record designated by the parties included the pleadings, motions, exhibits, orders, and a transcript of all testimony and proceedings in the district court. The trial court’s order was entered on October 2, 1987, nunc pro tunc, September 28, 1987, and included a transcript of the trial court’s ruling on September 28, 1987 as the findings and conclusions required by C.R.C.P. 52. The total transcript was estimated to be 500 pages. Trial was completed in two days.1 The transcript was not completed prior to dismissal of the appeal on September 9, 1988, for failure to transmit the record.

In this case, the record was to be filed in the court of appeals not later than February 11, 1988. C.A.R. 11(a). Prior to the filing deadline, the court reporter notified counsel that because of “transcript overload” she could not complete the transcript prior to the deadline. Petitioner’s counsel filed a motion for an extension of time, supported by an affidavit from the court reporter, and obtained a ninety-day extension to May 9, 1988 to file the record. On May 3, 1988, a second ninety-day extension of time was sought because of the inability of the court reporter to complete the transcript of the proceedings in the district court by May 9, 1988. On May 4, 1988, the court of appeals denied the motion without prejudice to “review upon itemization of transcript overload.” On May 16, 1988, a third motion for an extension was filed with an affidavit from the trial court reporter setting forth a 7,500 page backlog of transcripts. The court of appeals denied the motion after the itemization of transcript overload was provided by the petitioner.

Thereafter, on August 15, 1988, the court of appeals issued an order to show cause why the appeal should not be dismissed with prejudice for failure to transmit the record in a timely manner. The petitioner responded and requested reconsideration of the previous order denying an extension of time to file the record. The court of appeals rejected the petitioner’s response to the order to show cause and on September 9, 1988 dismissed the appeal with prejudice. In its order, the court of appeals failed to indicate the factors that influenced its decision. A petition for rehearing was filed on [145]*145September 22, 1988, and denied by the court of appeals on October 17, 1988.

The appellate procedures employed by the petitioner were not a model. No effort was made by either party to obtain the assistance of the trial judge or court of appeals to expedite the preparation of the record. The affidavit supporting the first ninety-day extension merely stated that due to a “transcript overload” the reporter was unable to complete the transcript prior to February 10, 1988, and required an extension of ninety days to May 10, 1988.

The second application, which was all but identical to the first, sought an additional extension of ninety days. When the court of appeals denied the motion without prejudice to provide an itemization, the petitioner filed a third motion for extension of time which contained an itemized backlog of seven transcripts that had to be completed, in addition to the usual on-going transcription demands imposed on a trial court reporter, before the reporter could prepare the transcript in this case. The reporter’s affidavits supporting the requests for extensions of time did not state that the transcript would be completed within the time requested. No further effort was made by the petitioner to complete the record until after the order to show cause was issued by the court of appeals on August 15, 1988.

II.

The petitioner relies on the following language in Swenson v. Girard F. and M. Ins. Co., 4 Colo. 475 (1878), for reversal of the court of appeals order dismissing the appeal:

[I]t is to be expected that attorneys will be prompt and assiduous in seeing that causes are not delayed through their own neglect, and that in the matter of appeals they take prompt steps and give timely directions to the officers of the courts in the matter of perfecting the appeal, yet, so far as regards making a transcript of the record, and transmitting it with the necessary papers to the appellate court, this is a ministerial duty to be performed by the proper officers of the court appealed from, and any delay or default in the discharge of such duty ought not to work injury to the appellant, who has duly filed the requisite appeal bond and otherwise complied with the statute and the lawful orders of the court in the premises.

Id. at 480.

Appellate counsel should not be penalized for failure of court employees to carry out their duties and obligations, but there remains the appellate lawyer’s obligation to perfect the record on appeal in a timely manner. See Cobb v. Cobb, 62 Ohio St.2d 124, 403 N.E.2d 991 (1980). Appellate counsel has the obligation to seek assistance first from the trial court and then from the appellate court.2

C.A.R. 11(d) states:

The appellate court for cause shown may extend the time for transmitting the record. A request for extension must be made within the time originally prescribed or within an extension previously granted. Any request for extension of the period of time based upon the reporter's inability to complete the transcript shall be supported by an affidavit of the reporter specifying why the transcript has not yet been prepared, and the date by which the transcript can be completed. The appellate court may direct the trial court to expedite the preparation and transmittal of the record on appeal.

[146]*146(Emphasis added.) The petitioner did not seek the assistance of the court of appeals in obtaining a transcript of the record until the order to show cause was entered. C.A.R. 11(d) provides a means for the appellate lawyer to obtain the assistance of the court of appeals in obtaining a record for the appellate court. Here, appellate counsel did not seek the assistance of either the trial or appellate court in a timely manner and did not lay a foundation to establish that the sole responsibility for the failure to complete the record was attributable to the court reporter.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Maldonado v. Pratt
2016 COA 171 (Colorado Court of Appeals, 2016)
Northstar Project Management, Inc. v. DLR Group, Inc.
2013 CO 12 (Supreme Court of Colorado, 2013)
People v. Durapau
2012 COA 67 (Colorado Court of Appeals, 2011)
People v. Perry
252 P.3d 45 (Colorado Court of Appeals, 2010)
Bruce v. City of Colorado Springs
252 P.3d 30 (Colorado Court of Appeals, 2010)
Harris v. Regional Transportation District
155 P.3d 583 (Colorado Court of Appeals, 2006)
Beauprez v. Avalos
42 P.3d 642 (Supreme Court of Colorado, 2002)
Kendrick v. Barker
2001 WY 2 (Wyoming Supreme Court, 2001)
State Ex Rel. Department of Corrections v. Pena
788 P.2d 143 (Supreme Court of Colorado, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
788 P.2d 143, 14 Brief Times Rptr. 258, 1990 Colo. LEXIS 149, 1990 WL 19149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-department-of-corrections-v-pena-colo-1990.