Vol. 40, No. 9
In and Around the Bar
Colorado’s New Pro Bono Program for Civil Appeals
by Katayoun A. Donnelly, Geoff Kingsporn
About the Authors
Katayoun A. Donnelly is an associate with Baker Hostetler LLP—(303) 764-4038, email@example.com. Geoff Klingsporn is an associate with Davis Graham & Stubbs LLP—(303) 892-9400, firstname.lastname@example.org.
On June 27, 2011, the Colorado Supreme Court issued its opinion in In re the Parental Responsibilities of L.S.,1 a significant case interpreting the federal Parental Kidnapping Prevention Act. In re L.S. also is notable because it is the first Supreme Court case handled by an attorney appointed under the Colorado Bar Association’s (CBA) new Appellate Pro Bono Program, which has been operating since July 1, 2010.
Origins of the Appellate Pro Bono Program
The idea for an Appellate Pro Bono Program initially was brought to the CBA Litigation Section’s Appellate Practice Subcommittee by Colorado Court of Appeals Judges Daniel Taubman and David Richman. The Subcommittee formed a task force comprising Judge Taubman and Judge Richman, and attorneys Jane Ebisch, Christina Gomez, and Tony Viorst. When developing Colorado’s Appellate Pro Bono Program, the task force gathered information from similar pro bono programs in Austin and Houston, Texas, as well as from the CBA Appellate Practice Subcommittee and the Denver Bar Association’s Metro Volunteer Lawyers (MVL) pro bono program.
Selecting Cases for the Program
Most indigent pro se litigants with civil cases pending in the Colorado Court of Appeals or the Colorado Supreme Court are eligible for representation through the Program.2 At the Supreme Court level, pro bono representation is available for filing petitions; for certiorari for review on the merits if a certiorari petition is granted; and for original actions under C.A.R. 21 (to determine whether a trial court exceeded its jurisdiction or seriously abused its discretion).
The Program’s application form is available on the CBA website.3 Applications are reviewed by the Program’s screening committee, which currently comprises Christina Gomez (Chair), Blain Myhre, Brandi Pummell, Shannon Stevenson, and Tony Viorst. Jane Ebisch performs the administrative functions of the committee.
When reviewing applications, the screening committee considers the following substantive criteria to determine whether a particular case is appropriate for the Program:
indigency (125% of the federal poverty guidelines, the same criterion used by MVL)
issues of first impression
potentially meritorious claims
recurring issues that may otherwise evade review
issues that already have been briefed pro se and for which the court requests briefing by a pro bono attorney
cases concerning the vindication of significant constitutional or statutory rights
the number of appeals currently in the program
the number of available volunteer lawyers.
The only required factor for all cases is applicant indigency; the remaining factors are discretionary. Also, though the Program will not accept fee-generating cases, this does not preclude acceptance of a case where an award of attorney fees may be available pursuant to statute, rule, or contract. Attorneys are encouraged to donate to the Program any recovered fees.
As of July 2011, the Program’s screening committee had received and reviewed twenty-seven applications. Ten were accepted.
How Appellate Counsel is Chosen
The Program maintains a list of attorneys who have indicated a willingness to serve as pro bono appellate counsel. The screening committee attempts to match approved applicants with the volunteers based on the attorneys’ areas of expertise, prior selection for other pro bono cases, and conflicts of interest. There are currently more than forty attorneys on the Program’s roster of volunteers.
Summary of Selected Cases
In addition to In re L.S., which Tony Viorst handled from petition of certiorari through its conclusion,4 the Program has successfully concluded several other appeals. The Colorado Supreme Court granted a writ of certiorari in In the Interest of Child B.B.O.5 The Court’s decision in this case will determine whether, pursuant to CRS § 14-10-123(1), the consent of both biological parents is required for a psychological parent to have standing to maintain a custodial relationship. Katy Ellis, on behalf of her client, argued that reading such a requirement into the statute would defeat "the purpose of the statutory language that acknowledges the importance of psychological parents to minor children."
In In the Matter of the Petition of S.D.H.,6 Glen Goldman and his colleagues argued that the district court erred when it terminated their client’s parental rights and allowed the child’s stepfather to adopt him. They asserted that the district court should have granted their client’s C.R.C.P 60(b)(2) motion for relief, arguing that the representations of the mother and stepfather regarding the biological father’s alleged abandonment of the child and their concealment of a favorable order from a different court was fraudulent. The Colorado Court of Appeals agreed, reversing the district court’s judgment and remanding the case to determine "whether mother and stepfather’s affidavits and pertinent assertions were accurate and, if not, whether the inaccuracies constituted fraud or misrepresentation warranting reliefs under C.R.C.P. 60(b)(2)."
In Boettler v. Nelson,7 Jane Ebisch was successful, in part, in an appeal to the Colorado Court of Appeals concerning a parenting time order issued by a magistrate in a Fremont County case. The appellate court reversed the lower court, holding that the court should have ordered the father to submit to a psychological evaluation and should have applied the best interests standard when determining parenting time.
Becoming Involved in the Program
Any attorney licensed in Colorado may participate in the Appellate Pro Bono Program by completing the Program’s attorney sign-up form. The form is available online through the CBA and MLV websites.8
Trial lawyers with little or no appellate experience, as well as law students, may participate in the Program. Students at the University of Colorado Law School can participate through the school’s externship and public service programs, and students at the University of Denver Sturm College of Law can participate through its required Useful Public Service Program. Trial lawyers and law students will be paired by the committee with experienced appellate practitioners who have volunteered to act as mentors for pro bono appeals.
Among the many advantages of the Program’s alliance with MVL is the availability of malpractice insurance for participating attorneys. In addition, because MVL is a recognized pro bono program, participating attorneys may have their time spent on appellate pro bono cases counted toward satisfaction of the Colorado Supreme Court’s Pro Bono Recognition Program and considered for continuing legal education credit, pursuant to C.R.C.P. 260.8.
Spread the Word
The Appellate Pro Bono Program is a worthy professional opportunity for Colorado’s lawyers and litigants. Colorado attorneys are encouraged to become involved in the Program and to spread the word of its existence to colleagues and clients.
1. In re the Parental Responsibilities of L.S. (No. 09SC989, June 27, 2011).
2. Some types of cases are excluded from the Appellate Pro Bono Program. The Colorado Court of Appeals excludes unemployment compensation and prison inmate disciplinary appeals; the Supreme Court excludes post-criminal conviction relief, prison discipline, habeas corpus appeals, ballot title appeals, and election appeals.
3. The application form for the Appellate Pro Bono Program is available at www.cobar.org/repository/Access%20to%20Justice/AppelateProBono/CBAAppProBonoProg_PublicInfoApp.pdf. More information about the Program is available at www.cobar.org/index.cfm/ID/21607.
4. See Fender, "Poor litigants get legal help before state’s highest courts," The Denver Post (July 5, 2011), available at www.denverpost.com/search/ci_18408139.
5. In the Interest of B.B.O.: Olds v. Berry (No. 10SC623, April 18, 2011).
6. In the Matter of the Petition of S.D.H., for the Adoption of J.C.B., and Concerning W.T.T (No. 10CA1332, April 14, 2011).
7. Boettler v. Nelson, and Concerning Fremont County Department of Human Services (No. 09CA2751, Sept. 30, 2011).
8. See www.cobar.org/index.cfm/ID/21607 and www.metrovolunteerlawyers.org/RTF1.cfm?pagename=Governance.
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