author: Judge TAUBMAN.

text:
    Benjamin J. POMERANTZ, M.D., on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. MICROSOFT CORPORATION, a Washington corporation, Defendant-Appellee.
    No. 01CA0458.
    Colorado Court of Appeals, Div. IV.
    May 9, 2002.

      Pendleton, Friedberg, Wilson & Hennes-sey, P.C., Alan C. Friedberg, Susan M. Har-gleroad, Michelle Rene Kestler, Denver, Colorado, for Plaintiff-Appellant.
    Davis Graham & Stubbs LLP, Gale T. Miller, Michael J. Gallagher, John Allen Francis, Denver, Colorado; Sullivan & Cromwell, David B. Tulchin, Joseph E. Neu-haus, New York, New York, for Defendant, Appellee.
   Opinion by

Judge TAUBMAN.

Plaintiff, Benjamin J. Pomerantz, M.D., appeals the judgment dismissing his complaint against defendant, Microsoft Corporation, for violation of the Colorado Antitrust Act of 1992, § 64-101, et seq., CRS. 2001(Act), by allegedly overcharging for its Windows 98 operating system. We affirm. on 3(E)(1) (1990) (commentary states, "Rule of necessity may override the rule of disqualification.").

I. Facts and Procedural History

Microsoft is a corporation, organized under the laws of the state of Washington, that primarily focuses on developing and licensing computer software. In 1985, Microsoft began marketing its Windows operating system for Intel-based personal computers. When Pomerantz and plaintiff Douglas E. Papish filed this action, Windows 98 was the most current version of the operating system then in use.

Microsoft distributed Windows 98 through original equipment manufacturers (OEMs), who preinstalled the operating system on personal computers, and through software retailers who sold CD ROMs containing the software. However, Microsoft does not sell its software to OEMs, retailers, or consumers. Rather, the company licenses the use of its software to consumers through an end user license agreement (EULA) and to OEMs and retailers through a similar licensing agreement. The EULA prohibits end users from copying, modifying, or transferring the software, and it sets out the seope of Microsoft's warranty of the product.

Sometime in 1998, Pomerantz purchased a CD ROM, for approximately $89, that contained Windows 98, and Papish purchased an Intel-based personal computer on which the OEM had preinstalled the Windows 98 operating system. As a precondition to their first use of Windows 98, Pomerantz and Papish were required to accept Microsoft's EULA.

In March 2000, Pomerantz and Papish filed their second amended complaint on behalf of a eclass of Colorado consumers claiming that Microsoft had monopolized the market for Intel-based operating systems and, as a result, Microsoft had overcharged them for the Windows 98 operating system.

This lawsuit is one of many similar lawsuits filed in state and federal courts alleging that Microsoft has monopolized the market for operating systems for Intel-based personal computers and that it has maintained that monopoly by anticompetitive and unreasonable exclusionary conduct. In their class action complaint, Pomerantz and Papish alleged that Microsoft, by virtue of its anticom-petitive conduct, had (1) participated in and facilitated a contract, combination, or conspiracy illegally restricting trade and commerce in violation of § 6-4-104, C.R.S.2001, and (2) attempted to monopolize, combine, and conspire to monopolize and had, in fact, monopolized that market for operating systems for Intel-based personal computers in trade and commerce, in violation of § 6-4-105, C.R.S.2001. Finally, Pomerantz and Papish alleged that EULAs between Microsoft and them were void contracts pursuant to § 64-121, C.R.S8.2001.

Pomerantz and Papish sought damages for the difference between the monopoly price of Windows 98 and the price for which Windows 98 could have been sold in a competitive market; treble damages pursuant to § 6-4-114, C.R.S$.2001; a refund of all payments made upon, under, or pursuant to the purchase of Windows 98 and the EULA; expert and attorney fees; and costs. They sought relief for themselves and a class of similarly situated Colorado consumers.

Before the trial court determined whether this case should be certified as a class action, Microsoft moved to dismiss, contending that the complaint failed to state a claim under the Act. The trial court granted the motion, concluding that Pomerantz and Papish lacked standing to pursue their antitrust claims because they were indirect purchasers under Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977), and that their other claims were without merit.

Only Pomerantz has elected to pursue this appeal.

II. Rule of Necessity

Initially we note, as we disclosed to counsel at oral argument, that each judge on this court uses the Windows 98 operating system or a more current version of the software. To the extent that there may be a conflict of interest, we conclude that the rule of necessity requires us to proceed. See Office of State Court Adm'r v. Background Info. Servs., Inc., 994 P.2d 420, 426 (Colo.1999)(the rule of necessity provides that it may become necessary for the judges of a court to hear a case in which they may have an interest where no one else can take their place); Model Code of Judicial Conduct Can-

III. Standard of Review

In evaluating a motion to dismiss for failure to state a claim, the material allegations in the complaint are deemed admitted. A trial court should grant the motion only if it appears that the plaintiff would not be entitled to any relief under the facts pleaded. Upon review, an appellate court is in the same position as the trial court. Davidson v. Dill, 180 Colo. 123, 503 P.2d 157 (1972).

IV. Standing Under the Act

The principal issue in this case is whether the trial court correctly concluded that the indirect purchaser rule announced in Illinois Brick Co. v. Illinois, supra, applies to this case, and, if so, whether Pomerantz lacks standing to proceed. We agree with the trial court's resolution of this issue.

A. Elements of Standing

Pomerantz asserts that the trial court erred when it dismissed his complaint because, either as an indirect purchaser or as a direct end user licensee, he has standing under § 6-4-114(1), C.R.S.2001, of the Act, to bring this suit against Microsoft. We disagree.

The question of standing is really an inquiry into whether the statutory provision on which the claim rests can properly be understood as granting persons in the plaintiffs position a right to judicial relief. Stifflear v. Bristol-Myers Squibb Co., 931 P.2d 471, 473 (Colo.App.1996). Resolution of the standing issue involves two considerations: (1) whether the party seeking judicial relief has suffered an injury in fact, and (2) whether the injury is to a legally protected interest as contemplated by statutory or constitutional provisions. If the plaintiff has not suffered such an injury, standing does not exist, and the case must be dismissed. Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977).

The critical inquiry for our purposes is whether Pomerantz asserted injury to an interest legally protected or cognizable under the Act. See Stifflear v. Bristol-Myers Squibb Co., supra.

B. Does Illinois Brick Apply in this Case?

Pomerantz contends that the trial court erred in concluding that the Ilinois Brick indirect purchaser rule applies in this case. Specifically, he argues that because members of the putative class are licensees of Microsoft and Windows 98 was not sold to them, but rather only licensed, the lack of a sale takes this case outside of the purview of Illinois Brick. We are not persuaded.

Illinois Brick established the indirect purchaser rule. There, the state of Illinois brought suit against concrete block manufacturers, alleging price fixing in violation of § 4 of the Clayton Act, 15 U.S.C. § 15. The Supreme Court concluded that the state was an indirect purchaser because it did not buy concrete block directly from the manufacturers. Rather, the manufacturers had sold their concrete block to masonry contractors who performed masonry work on buildings that the state had purchased from general contractors. The Court held that a party who does not purchase a product directly from an alleged antitrust violator cannot sue to recover treble damages for an illegal overcharge under § 4 of the Clayton Act. See Illinois Brick, supra, 431 U.S. at 729, 97 S.Ct. at 2066, 52 L.Ed.2d at 715 (it is the direct overcharged purchaser, and not others in the chain of distribution, who has been injured within the meaning of the Clayton Act, regardless of any amount that purchaser may have passed on to its customers).

The Court reasoned that allowing recovery by an indirect purchaser would create a risk of double liability for antitrust violators because the direct purchaser would still be able to recover the full amount of the overcharge from the antitrust violator. Illinois Brick, supra, 431 U.S. at 730-31, 97 S.Ct. at 2067, 52 L.Ed.2d at 715-16. Additionally, the Court expressed concern about the difficulty of tracing overcharges passed on to remote end purchasers and the complexity of massive multiparty lawsuits, with burdensome and complex issues of proof involving many levels of distribution, including large classes of consumers remote from the antitrust violator. Illinois Brick, supra, 431 U.S. at 740, 97 S.Ct. at 2071-72, 52 L.Ed.2d at 721. In so ruling, the Court extended the precedent established in Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), which prohibited defensive use of the pass-on theory, and concluded that one rule applies equally to defendants and plaintiffs.

In Stifflear, a division of this court applied Tilinois Brick and held that indirect purchasers do not have standing under the 1957 Colorado Antitrust Act to bring claims for money damages or injunctive relief based on alleged overcharges by manufacturers or wholesalers in violation of Colorado's antitrust statute. Stifflear, supra, 931 P.2d at 476. See § 6-4-114(1), (affording private right of action to "any person" injured by "any violation" of the Act); see also § 6-4-119, C.R.S8.2001 (expressing intent of General Assembly that, in construing the Act, courts should use as a guide interpretation by federal courts of comparable federal antitrust laws). Although Stiffler addressed the 1957 Act, Pomerantz concedes, and we agree, that there is no basis for applying a different analysis to claims brought under the current Act.

Although the Supreme Court in Filinois Brick expressly stated that it was not deciding the issue of standing, virtually all other . courts addressing the issue have applied Z!li-mois Brick to preclude standing by indirect purchasers. See, eg., In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599 (7th Cir.1997); Chatham Brass Co. v. Honeywell, Inc., 512 F.Supp. 108 (S.D.N.Y.1981); Dart Drug Corp. v. Corning Glass Works, 480 F.Supp. 1091 (D.Md.1979); Berghausen v. Microsoft Corp., 765 N.E.2d 592 (Ind.Ct.App.2002); Duvall v. Silvers, 998 S.W.2d 821 (Mo.Ct.App.1999). See also Illinois Brick, supra, 431 U.S. at 728 n. 7, 97 S.Ct. at 2065, 52 L.Ed.2d at 711 (noting the question of "which persons have been injured by an illegal overcharge for purposes of [the Clayton Act] is analytically distinct from the question of which persons have sustained injuries too remote to give them standing to sue for damages under [that Act]"); Stifflear, supra, 931 P.2d at 476.

Here, it is undisputed that Microsoft does not sell its Windows 98 operating system. Instead, it parcels out different rights with respect to its software, and these rights are bundled together as a license to use the product that it distributes to consumers through OEMs and retailers. See In re Microsoft Corp. Antitrust Litig., 127 F.Supp.2d 702 (D.Md.2001) (consolidation of sixty-four similar antitrust actions). The licensing agreement, or EULA, stems from federal copyright laws. In return for a single fixed payment, the consumer may use the operating system in perpetuity. As a result, although the operating system itself is not sold, the licensing agreement is the functional equivalent of a sale.

Moreover, the rationale underlying Illinois Brick does not support affording standing to a licensee. The overcharge allegedly paid by Pomerantz as a licensee is no less difficult to ascertain than that suffered by an indirect purchaser who actually purchased a product or commodity. This is so because the same policy concerns noted in Illinois Brick-a risk of double liability for antitrust violators, tracing the amount of overcharges passed on to remote end users, massive multiparty lawsuits, and overlapping recoveries by consumers, OEMs, and retailers-would be present in any action by a licensee who indirectly acquires licensed software. See Berghausen v. Microsoft Corp., supra (noting Illinois Brick policy considerations in Microsoft antitrust litigation); see also Kansas v. UtiliCorp United, Inc., 497 U.S. 199, 216, 110 S.Ct 2807, 2817, 111 LEd.2d 169, 186 (1990)(broadly upholding the direct purchaser rule announced in Hanover Shoe and Ilinois Brick and declining to carve out exeeptions for particular types of markets or based on assumptions underlying a particular economic transaction).

Thus, we conclude that Illinois Brick applies to licensees as well as to indirect purchasers.

We recognize that some states expressly allow indirect purchasers to bring an action for damages under their antitrust laws. Seq, e.g., Ala. Code § 6-5-60(a) (2001); Cal. Bus. & ProfCode § 16750(a) (2001); Wis. Stat. § 183.18(1)(a) (2001). A number of states have adopted statutes, similar to the Act, that allow "any person" who has been injured to bring an action for antitrust violations. See, eg., N.C. Gen.Stat. § 75-16 (2001); Tenn.Code Ann. § 47-25-106 (2001). While these statutes do not expressly allow indirect purchasers to bring an action for damages, some appellate courts have concluded that Illinois Brick does not apply under such statutes and have permitted actions by indirect purchasers. See, eg., Hyde v. Abbott Labs., Inc., 123 N.C.App. 572, 473 S.E.2d 680 (1996).

However, we conclude that in Colorado, the phrase "any person" under § 6-4-114(1) means anyone who independently has standing under the Act. Seq, eg., Hall v. Walter, 969 P.2d 224 (Colo.1998)(interpreting the term "any person" under Colorado Consumer Protection Act (CCPA), the court concluded that third-party nonconsumers have standing to bring actions under the CCPA, provided they satisfy the two-part standing test under Wimberly v. Ettenberg, supra ). Accordingly, because we have held that Pomerantz lacks standing under Illinois Brick, the "any person" language of § 6-4-114(1) is of no avail.

Relying on Campos v. Ticketmaster Corp., 140 F.3d 1166 (8th Cir.1998), Pomerantz contends that, notwithstanding his direct payment to a retailer for Windows 98, he is not an indirect purchaser. He argues that billing practices are not determinative of indirect purchaser status. We are not persuaded.

In Campos, Ticketmaster was the alleged monopolist of ticket distribution services. It collected money for ticket sales directly from consumers. The plaintiffs, who were consumers, sued Ticketmaster, alleging that they were direct purchasers of Ticketmaster's ticket distribution services. The Eighth Circuit disagreed, concluding that the plaintiffs were indirect purchasers. It reasoned they could buy Ticketmaster's services only because the individual concert venues had been required to buy those services first. In so concluding, the court noted that an "indirect purchaser is one who bears some portion of a monopoly overcharge only by virtue of an antecedent transaction between the monopolist and another, independent purchaser." Campos v. Ticketmaster Corp., supra, 140 F.3d at 1169 (summarizing numerous definitions of term "indirect purchaser").

Here, as in Campos, Pomerantz was an indirect purchaser by virtue of an antecedent transaction-the license agreement between Microsoft and the OEMs and retailers. Thus, Campos does not support Pomer-antz's contention.

C. Is Pomerantz a Direct Purchaser?

Nevertheless, Pomerantz argues that even if the trial court correctly concluded that his acquisition of a license to use Windows 98 was the functional equivalent of a sale, the trial court erred in not concluding that such sale was between him and Microsoft, thereby making him a direct purchaser under Illinois Brick. Again, we are not persuaded.

Pomerantz urges us to distinguish between the purchase of tangible property, such as concrete blocks, personal computers, or CD ROMs, and the licensing of intangible software. He argues that a licensing agreement, or the EULA in this case, creates a functional economic unity between Microsoft, on the one hand, and OEMs and retailers, who distribute the operating system, on the other. He contends that effectively only one transaction exists between Microsoft and end user licensees of Windows 98, who are themselves in direct privity with Microsoft. In other words, Pomerantz argues that he is a direct purchaser because a direct contractual relationship exists between him and Microsoft as a result of the EULA that he was required to accept when he first used the Windows 98 operating system.

However, we disagree and instead conclude, as has virtually every other court addressing this issue, that the relationship established through the EULA between Microsoft and the end user is insufficient to make the end user a direct purchaser under Illinois Brick. Significantly, in the consolidated federal action, the district court held that whether the consumer purchases the software or just the license to use it, the immediate economic transaction constituting the purchase occurs between the consumer and the OEM or the retailer. See In re Microsoft Corp. Antitrust Litig., supra, 127 F.Supp.2d at 709. Other appellate courts that have considered this issue under state antitrust laws similar to the Clayton Act have reached the same conclusion. See Vacco v. Microsoft Corp., 260 Conn. 59, 793 A.2d 1048 (2002); Berghausen v. Microsoft Corp., supra; Davidson v. Microsoft Corp., 143 Md.App. 43, 792 A.2d 336 (Ct.Spec.App.2002); Minuteman, LLC v. Microsoft Corp., 795 A.2d 833 (N.H.2002). The EULA, and whatever contractual relationship it establishes, has no bearing on whether the consumer is a direct purchaser under Illinois Brick.

Thus, we conclude that Pomerantz is not a direct purchaser of Windows 98.

D. Exceptions to Illinois Brick

Pomerantz next contends that, even if Illinois Brick applies here, the trial court erred in concluding that he did not fall within its exceptions. We disagree.

There are two recognized exceptions to the Tilinois Brick direct purchaser rule: the control exception and the preexisting cost-plus contract exception.

1. Control Exception

Pomerantz contends that the trial court erred in determining that the control exception to Illinois Brick did not apply in this case. Again, we disagree.

The Court in Illinois Brick noted, in a footnote, that in some situations an indirect purchaser might be permitted to maintain an antitrust action where the direct purchaser (in this case the OEMs and retailers) is owned or controlled by its customer. Illinois Brick, supra, 431 U.S. at 736 n. 16, 97 S.Ct. at 2070 n. 16, 52 L.Ed.2d at 719 n. 16. Courts have narrowly construed this exception and limited it to relationships involving such functional or other economic unity that there has effectively been only one sale. Jewish Hosp. Ass'n v. Stewart Mech. Enters., Inc., 628 F.2d 971 (6th Cir.1980). Indeed, the Seventh Cireuit permits the exception only where a defendant owns or exercises direct control over a direct purchaser through, for example, interlocking directorates, minority stock ownership, 'loan agreements, or trust arrangements. In re Brand Name Prescription Drugs Antitrust Litig., supra, 123 F.3d at 605-06.

Here, Pomerantz contends that Microsoft controlled the pricing of Windows 98 and exercised unfettered discretion in setting the price. However, whatever reasons the OEMs and retailers may have for apparently cooperating with Microsoft's pricing scheme, Pomerantz did not allege that Microsoft owns or directly controls the OEMs and retailers, that Microsoft controls or determines the price that OEMs or retailers charge consumers for Windows 98, or that he and the putative class members own or directly control the OEMs or retailers.

Thus, we conclude that the trial court did not err when it declined to find that the control exeeption applied here.

2. Cost Plus Contract Exception

As Microsoft points out, Pomerantz raises the cost-plus contract exception for the first time on appeal. We therefore will not address this issue. See Estate of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718 (Colo.1992)(arguments never presented to, considered, or ruled upon by a trial court may not be raised for the first time on appeal).

In light of the above, we conclude that Pomerantz lacks standing to maintain this action.

V. Void Contract Provision

Pomerantz contends that, notwithstanding the above, he has standing to seek relief on his claim that the licensing agreement between him and Microsoft is void pursuant to § 6-4-121 and that the trial court erred by not expressly addressing this claim. We conclude that Pomerantz does not have standing under this provision.

Section 6-4-121 provides:

All contracts or agreements made by any person while a member of any combination, conspiracy, trust, or pool prohibited under this article which are founded upon, or are the result of, or grow out of, or are connected with any violation of this article, either directly or indirectly, shall be void, and no recovery thereon or benefit therefrom shall be had by or for any such person. Any payments made upon, under, or pursuant to such contract or agreement to or for the benefit of such person may be recovered in an action by the party making the payment or his heirs, personal representatives, or assigns.

(Emphasis added.)

Pomerantz argues that, apart from Illinois Brick, he has standing to maintain a claim under this provision as an indirect purchaser, independently of the rest of the Act, because the provision applies to those who violate the act "directly or indirectly." In support of his argument, Pomerantz notes that the General Assembly left these terms in the statute when it amended the Act in 1992, even after the decisions in Iilinois Brick and Stiffiear. We disagree.

Simply stated, under this provision, any contract made in violation of the Act is void. Regardless of the modifying adverbial phrase "directly or indirectly," this provision presupposes a violation of the Act. Because we have determined that Pomerantz lacks standing to maintain an action under the Act, we conclude that he cannot meet the threshold requirement of demonstrating a violation of this provision.

Our conclusion is further supported by the rules of statutory construction.

When construing a statute, we ascertain and give effect to the General Assembly's intent based upon the plain meaning of the statute's language. Farmers Reservoir & Irrigation Co. v. Consol. Mut. Water Co., 38 P.3d 799 (Colo.2001). Further, statutes should be construed as a whole to give consistent, harmonious, and sensible effect to all their parts. In re Marriage of Davisson, 797 P.2d 809 (Colo.App.1990).

The void contract provision, § 64-121, is part of a broad statutory scheme concerning the restraint of competitive forces. The Act contains substantive provisions and a comprehensive remedial scheme. Statutory remedies include enforcement by the attorney general under § 64-111, C.R.S.2001; in-junctive relief under § 64-118, C.R.S.2001; civil damages under § 6-4-114; and refunds for void contracts under § 64-121. These remedial provisions are necessarily based upon a violation of the Act, which, as stated above, Pomerantz cannot demonstrate. Moreover, absent the General Assembly's express direction otherwise, we conclude that an anomalous result would be reached if we were to apply Tlilinois Brick to some provisions of the Act and not to others.

In light of the above, we need not address the other statutory interpretation issues raised by Pomerantz and Microsoft.

Thus, we do not find standing for Pomer-antz's claim under the void contract provision of the Act.

The judgment is affirmed.

Judge MARQUEZ and Judge VOUT concur.


source: Caselaw Access Project

author: Judge KAPELKE.

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jill COIT, Defendant-Appellant.
    No. 01CA0765.
    Colorado Court of Appeals, Div. I.
    May 9, 2002.

      Ken Salazar, Attorney General, John T. Bryan, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Stefani Goldin, Loveland, Colorado, for Defendant-Appellant.
   Opinion by

Judge KAPELKE.

Defendant, Jill Coit, appeals from the trial court order denying her Crim. P. 85(c) motion for postconviction relief. We affirm.

Defendant was convicted of first degree murder and conspiracy to commit murder. She received consecutive sentences of life in prison without parole and forty-eight years. Her convictions were affirmed on appeal. People v. Coit, 961 P.2d 524 (Colo.App.1997).

Thereafter, she filed her Crim. P. 35(c) motion for postconviction relief, asserting violations of her rights to compulsory process, fair trial, and due process. Specifically, she argued that, as a result of her codefendant's decision not to testify at her trial and exercise of his Fifth Amendment privilege against self-incrimination, she was denied her fundamental right to present witnesses in her defense. She alleged in her motion that she and her trial counsel had been assured the codefendant would testify as an alibi witness. With the motion, defendant submitted affidavits of her trial counsel and also of the codefendant, who averred that he would be willing to testify on behalf of defendant if she were granted a new trial.

The trial court denied the motion, finding that the codefendant's exercise of his Fifth Amendment privilege did not violate defendant's rights to a fair trial or to due process.

On appeal, defendant contends that the trial court erred in denying her Crim. P. 85(c) motion without a hearing. She also contends that the trial court's findings and conclusions are insufficient because they do not address each of her claims. We find no error.

A court must hold an evidentiary hearing on a Crim. P. 35(c) motion unless the motion, the files, and the record clearly establish that the defendant is not entitled to relief. White v. Denver District Court, 766 P.2d 632 (Colo.1988). An evidentiary hearing is unnecessary where only questions of law are presented. People v. Hartkemeyer, 843 P.2d 92 (Colo.App.1992).

A trial court must make findings of fact and conclusions of law in resolving all appropriate issues raised in a Crim. P. 35(c) motion. People v. Breaman, 939 P.2d 1348 (Colo.1997).

A defendant's right to compel the attendance of witnesses and to offer testimony at trial is a fundamental element of due process of law. However, the overlapping guarantees of the compulsory process clause and the due process right to call witnesses are not absolute. People v. Chastain, 733 P.2d 1206 (Colo.1987).

The Sixth Amendment right of an accused to compulsory process to secure the attendance of a witness does not include the right to compel a witness to waive his or her Fifth Amendment privilege. United States v. Trejo-Zambrano, 582 F.2d 460 (9th Cir.1978).

When a defendant's rights under the Sixth Amendment collide with a witness's Fifth Amendment rights, the defendant's right to compulsory process must give way to the witness's privilege not to give self-inerim-inating testimony. See Culkin v. Purkett, 45 F.3d 1229 (8th Cir.1995); United States v. Boyett, 923 F.2d 378 (bth Cir.1991); United States v. Khan, 728 F.2d 676 (5th Cir.1984).

Here, the trial court found that the codefendant was unavailable because he chose to exercise his Fifth Amendment privilege against self-incrimination. No one can force the codefendant to give up that privilege. Further, the codefendant's exercise of that right does not give rise to a violation of defendant's right to a fair trial or to present a defense.

Accordingly, under these circumstances, there was no violation of defendant's right to compulsory process, fair trial, or due process.

The trial court properly addressed all of defendant's claims. Because those claims involved only questions of law, the trial court was not required to hold an evidentiary hearing. See People v. Hartkemeyer, supra.

The order is affirmed.

Judge METZGER and Judge ROTHENBERG concur.


author: Presiding Disciplinary Judge

text:
    The PEOPLE of the State of Colorado, Complainant v. John B. RISHEL, III, Respondent.
    Nos. 01PDJ051, 01PDJ064.
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    July 8, 2002.

      ROGER L. KEITHLEY and Hearing Board members, ROBERT A. MILLMAN and DANIEL A. VIGIL.
   Opinion by

Presiding Disciplinary Judge

REPORT, DECISION AND IMPOSITION OF SANCTION

SANCTION IMPOSED: ATTORNEY DISBARRED

A trial was held on February 4, 2002, before a Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") and two hearing board members, Robert A. Mill-man and Daniel A. Vigil, both members of the bar. Deborah D. Jones, Assistant Attorney Regulation Counsel represented the People of the State of Colorado (the "People"). John B. Rishel ("Rishel"), the respondent, did not appear either in person or by counsel. The Complaint in Case No. O1PDJO51 was filed on May 1, 2001, and amended on May 15, 2001. Rishel filed an Answer to the Amended Complaint on June 28, 2001. The Complaint in Case No. O1PDJ064 was filed on June 18, 2001. Rishel filed an Answer thereto on July 12, 2001. The two matters were consolidated by motion of the People on July 16, 2001.

At the trial, the People presented evidence from Joanne Baum McCarthy, Ph.D. ("'MeCarthy") and Thomas M. Dunn ("Dunn"). Exhibits 1 through 6 were offered by the People and admitted into evidence. The Hearing Board considered the People's argument, the exhibits admitted, assessed the testimony of the witnesses and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

John B. Rishel, III has taken and subscribed to the oath of admission, was admitted to the bar of the Supreme Court on May 31, 1984 and is registered upon the official records of this court, registration number 13806. Rishel is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

This consolidated matter arises from Rish-el's involvement with a group of individuals who pooled funds to purchase Rockies baseball team season tickets for division among the group. In the first matter, Joann Baum-McCarthy and her husband (the "MecCar-thys") began participating in a ticket pool with Rishel in approximately 1996. In January 2000, the McCarthys spoke with Rishel regarding the purchase of tickets for the upcoming season. that their share of the cost would be $1,176.00, and asked them to pay immediately by cashier's check rather than the personal check they had used in the past. They tendered payment by cashier's check for the specified amount on January 21, 2000, and Rishel cashed the check on January 27, 2000. Thereafter, the McCarthys heard nothing from Rishel regarding the tickets They contacted the Rockies' ticket office and learned that the tickets had not been purchased. The McCarthys repeatedly tried to contact Rishel, and when they could not Rishel informed them reach him, they contacted an attorney. The attorney wrote to Rishel requesting a refund in April 2000. Rishel did not respond.

The second matter in this consolidated proceeding involved another of the ticket pool participants, Thomas M. Dunn ("Dunn"). In late 1998 and early 1999, Rishel collected Dunn's funds in the amount of $1,105.76 to purchase his share of the tickets. Without Dunn's knowledge or permission, Rishel distributed Dunn's tickets to another purchaser. Dunn attempted to reach Rishel, leaving several messages and asking another individual involved in the ticket pool to contact Rishel on his behalf, but Rishel did not return the calls. In August 1999, Dunn sent a demand letter via certified and first class mail to Rishel requesting that the funds be returned to him immediately. Rishel did not respond.

In June 2000, Rishel filed for personal bankruptcy protection. He listed Dunn and the McCarthys as unsecured, nonpriority creditors, Dunn with a claim of $1,000 and the McCarthys with a claim of $1,176.00. He provided notice of the bankruptcy proceeding to the McCarthys' attorney. As of June 6, 2000, the date Rishel filed for bankruptcy protection, he had no funds in his checking account, and claimed only twenty dollars as cash on hand. Rishel therefore depleted the funds belonging to Dunn and the McCarthys prior to June 6, 2000.

II. CONCLUSIONS OF LAW

Rishel obtained funds belonging to third parties in the amount of $2,281.76. Dunn and the MceCarthys authorized Rishel to utilize the funds solely to purchase baseball season tickets on their behalf. Rishel knowingly maintained control over the funds despite the parties' repeated attempts over a significant period of time to contact him. He continued to maintain control over their funds after they withdrew authorization and demanded a refund. Rishel admitted in his bankruptcy filing in June 2000 that he no longer maintained either the Dunn or McCarthy funds. Rishe!l knew that the funds provided to him by Dunn and the McCarthys were not his, were intended to be used for a specific purpose, and he used the funds for a purpose other than that authorized by the third parties. Rishel therefore knowingly converted the funds in violation of Colo. RPC 8.4(c)(it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation).

Rishel's Answer alleges that he did not form the intent to permanently deprive Dunn and the MeCarthys of their funds. To find knowing misappropriation under Colo. RPC 8.4(c), "the intent to permanently deprive another of property is not an element of knowing misappropriation for lawyer disciplinary purposes." In re Thompson, 991 P.2d 820, 823 (Colo.1999). Misappropriation includes "not only stealing, but also unauthorized temporary use for the lawyer's own purpose, whether or not he derives any personal gain or benefit therefrom." People v. Varallo, 913 P.2d 1, 11, (Colo.1996), citing In re Wilson, 81 N.J. 451, 409 A.2d 1153 (1979).

Knowing conversion by an attorney of funds belonging to a third party falls within the scope of Colo. RPC 8.4(c), regardless whether the conduct arises from an attorney/client relationship or, as in the present case, an attorney is entrusted with funds belonging to third parties, utilizes the funds without their authorization for his own purposes, and fails to refund the amounts they entrusted to him. See People v. Anderson, No. 99PDJ033 (consolidated with 99PDJ066 and 99PDJ126) slip op. at 12 (Colo. PDJ June 21, 2000)(attorney violated Colo. RPC 8.4(c) when he committed theft by forging a check from his law firm's operating account, cashing the check, and using the funds for his own benefit); People v. Motsenbocker, 926 P.2d 576, 577 (Colo.1996)(attorney misappropriated bar association funds while serving as treasurer); People v. Finesilver, 826 P.2d 1256, 1257 (Colo.1992)(attorney converted funds belonging to third party title company consisting of monies paid by clients of the attorney's law firm for services provided by the title company in the course of foreclosures handled by the law firm); People v. Lujan, 890 P.2d 109, 111 (Colo.1995)(attorney violated predecessor rule to Colo. RPC 8.4(c), Code of Prof. Resp., DR 1-102(A)(4), by using the law firm's credit card and the money obtained from the fraudulent billings for her personal use).

Both Complaints also allege that Rishel's conduct violated Colo. RPC 84(b)(it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects) for which C.R.C.P. 251.5(b) provides grounds for discipline. The Colo. RPC 8.4(b) violations set forth in the Complaints were based on the allegation that Rishel's retention of funds constituted theft pursuant to § 18-4-401(1)(b), 6 C.R.S. (2000). That statute provides:

A person commits theft when he knowingly obtains or exercises control over anything of value of another without authorization, or by threat or deception, and knowingly uses, conceals, or abandons the thing of value in such manner as to deprive the other person permanently of its use or benefit.

With regard to both the Dunn and McCarthy funds, both parties initially authorized Rishel to obtain control over the funds for the express purpose of purchasing baseball season tickets. After Rishel failed to purchase the tickets, both Dunn and the McCar-thys attempted to reach Rishel to no avail, and thereafter withdrew their authorization.

To constitute theft pursuant to § 18-4-401(1)(b), "[clontrol of the property need not be unauthorized from the outset." People v. Treat, 193 Colo. 570, 568 P.2d 473, 476 (1977)(holding that although authorization was initially given for property, exercise of that control continued to be authorized only because the defendant deceived the rightful owner of the property into believing that a legitimate use was being made of the property). "It is sufficient [for purposes of the statute] that the intended use of such thing be inconsistent with the owner's use or benefit." Id.

Rishel contends that he never intended to permanently deprive either Dunn or the McCarthys of their funds. "[The crime of theft may be committed when the offender ... even though not intending to deprive the other person permanently of the use or benefit of the property, nonetheless knowingly uses the property in such manner as to deprive the other person permanently of the use or benefit of the property." People v. Anderson 773 P.2d 542, 545 (Colo.1989). "[The "knowingly using" element of mental culpability in subsection 18-4-401(1)(b) does not require a conscious objective to deprive another person of the use or benefit of the ... funds, but instead requires the offender to be aware that his manner of using the ... funds is practically certain to result in depriving another person of the use or benefit of the funds." Id.

In this consolidated matter, the facts established that Rishel knowingly obtained funds from both Dunn and the MceCarthys and used those funds in a manner not authorized by the rightful owners. Moreover, it may be inferred from Rishel's demand that funds be paid by cashier's check rather than historically acceptable personal checks, his failure to purchase the McCarthy tickets, his delivery of the Dunn tickets to a third party, his failure to respond to communication efforts from both Dunn and the McCarthys, and his failure to respond to demands for refunds that Rishel knew that his use of the Dunn and McCarthy funds was practically certain to result in permanently depriving both Dunn and the MceCarthys of their property.

To establish grounds for discipline pursuant to C.R.C.P. 251.5(d) and a violation of Colo. RPC 8.4(b) requires either evidence of conviction of a criminal act or, in the absence of a conviction, evidentiary proof sufficient to find by clear and convincing evidence each element of the alleged criminal act. The Hearing Board finds that the evidence presented in this consolidated matter meets that standard in both the Dunn and McCarthy transactions.

The Complaint in the McCarthy matter also alleges that Rishel violated Colo. RPC 1.15(b)(upon receiving funds in which a . third person has an interest, a lawyer shall, promptly or otherwise as permitted by law ... deliver to the third person funds or other property that the ... third person is entitled to receive). The facts alleged in the McCarthy case establish that Rishel received property belonging to the MeCarthys and failed to timely deliver the tickets for which the funds were intended or return the funds. Consequently, Rishel's conduct also violated Colo. RPC 1.15(b) See People v. Garrow, 35 P.8d 652, 655 (Colo. OPDJ 2001)(holding that the receipt of property by a lawyer in which a ... third party has an interest triggers the operation of Colo. RPC 1.15(b) ... [and] once triggered, require[s] the attorney to return property of ... another in a timély fashion in accordance with law); People v. Vincent 35 P.S3d 140, 143 (Colo. OPDJ 1999)(attorney's failure to promptly pay third-party vendors' bills constituted a violation of Colo, RPC 1.15(b)); People v. Egbune, No. GC98A13 (Colo. PDJ 1999) Colo. Discipl. LEXIS 78, *9 (attorney disbursed all settlement proceeds to client less amount he retained for himself, after having been placed on notice that prior attorney claimed an interest in any settlement funds in violation of Colo, RPC 1.15(b)).

III. ANALYSIS OF SANCTION

In both the Dunn and McCarthy matters, Rishel engaged in knowing conversion by obtaining funds from third parties for a stated purpose, failing to utilize the funds for that purpose, retaining the funds for an extended period of time after the third parties had withdrawn authorization, and failing to refund the amounts paid to the third parties despite their demand that he do so. The presumptive sanction for knowing conversion of the property of another is disbarment. People v. Dice, 947 P.2d 339, 340 (Colo.1997)(holding that a lawyer's knowing misappropriation of funds, whether belonging to a client or third party, warrants disbarment except in the presence of extraordinary factors of mitigation); Motsenbocker; 926 P.2d at 577 (attorney disbarred for knowing misappropriation of bar association funds).

Colo. RPC 8.4(c) applies equally to transactions outside the practice of law where, as in the present case, an attorney accepts funds from third parties for a stated purpose, knowingly fails to use the funds for that purpose, withholds the funds after their authorization is withdrawn, and ultimately fails to refund the amount to the parties. See People v. Wiedman 36 P.Bd 785, 788 (Colo. OPDJ 1999)(holding that a lawyer's knowing misappropriation of funds, whether belonging to a client or a third party, warrants disbarment except in the presence of extraordinary factors in mitigation). See also Finesilver, supra, Attorney Grievance Commission of Maryland v. Ezrin, 312 Md. 603, 541 A.2d 966 (1988).

Theft of funds also warrants the sanction of disbarment, regardless of whether the funds belonged to a third party or to a client. See Anderson, No. 99PDJ033 (Colo. PDJ June 21, 2000) supra. The fact that Rishel was not criminally charged or convict ed of a criminal offense which he is alleged to have committed is not important for purposes of a disciplinary proceeding. People v. Odom, 941 P.2d 919 (Colo.1997).

The ABA Standards for Imposing Lawyer Sanctions (1991 & Supp.1992) ("ABA Standards ") are the guiding authority for selecting the appropriate sanction to impose for lawyer misconduct.

ABA Standard 5.11 provides:

Disbarment is generally appropriate when:
(a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft....
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice.

Rishel's conduct meets the criteria under both ABA Standards 5.11(a) and (b).

Pursuant to ABA Standards 9.22 and 9.82 respectively, the Hearing Board considered aggravating and mitigating factors to determine the appropriate sanction. Rishel failed to appear at the trial in this matter; accordingly no mitigating factors were presented. The following aggravating factors were presented: Rishel engaged in bad faith obstruction of the disciplinary process by failing to fully participate in these proceedings, see id. at 9.22(e); Rishel engaged in multiple offenses, see id. at 9.22(d); Rishel refused to acknowledge his wrongful conduct, see id. at 9.22(g), and he had indifference to making restitution, see id. at 9.22(J). Rishel also had substantial experience in the practice of law: he has been licensed to practice law in the

State of Colorado since May 31, 1984. See id. at 9.220).

Finally, Rishel had prior disciplinary offenses, see id. at 9.22(a). In People v. Rishel, 956 P.2d 542 (Colo.1998), the Supreme Court suspended Rishel for one year and one day in a default proceeding for neglecting a legal matter in one case, and in two cases, failing to keep the clients reasonably informed about the status of matter, failing to promptly refund the clients' funds upon request, and failing to take reasonable steps to protect the clients' interest upon termination.

In the absence of substantial mitigating factors, the Hearing Board concludes that disbarment is the appropriate sanction for the conduct giving rise to this consolidated matter.

IV. ORDER

It is therefore ORDERED:

1. JOHN B. RISHEL, III, attorney registration 18806 is DISBARRED thirty-one days from the date of this Order.

2. Prior to readmission to the practice of law, Rishel must establish that he has refunded or paid restitution within twelve (12) months from the date of this Order to:

A. Thomas Dunn in the sum of $1,105.76, plus interest at the statutory rate from January 31, 1999;
B. The McCarthys in the sum of $1,176.00, plus interest at the statutory rate from January 31, 2000.

8. Rishel is Ordered to pay the costs of these proceedings; the People shall subrait a Statement of Costs within ten (10) days of the date of this Order. Respondent shall have five (5) days thereafter to submit a response thereto.

      . At the time of this proceeding Rishel was suspended from the practice of law for a period of one year and one day pursuant to the sanction imposed by the Supreme Court in People v. Rishel, 956 P.2d 542 (Colo.1998). See In re C de Baca, 11 P.3d 426, 430 (Colo.2000)(holding that a suspended lawyer remains subject to the disciplinary jurisdiction of the court for acts committed while suspended).

      . C.R.C.P. 251.5 provides that misconduct by an attorney ... including the following acts or omissions, shall constitute grounds for discipline, whether or not the act or omission occurred in the course of an attorney-client relationship: (b) Any act or omission which violates the criminal laws of this state or any other state, or of the United States; provided that conviction thereof in a criminal proceeding shall not be a prerequisite to the institution of disciplinary proceedings.

      . A person acts " 'knowingly' with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such a nature or that such circumstance exists." A person acts "knowingly" or "willfully" with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result. § 18-1-501(6), 6, C.R.S. (2001).

      . See C.R.C.P. 251.18(d)(stating that disciplinary violations require proof by clear and convincing evidence.)

      . The Complaint in the Dunn matter did not allege a violation of Colo. RPC 1.15(b).

      . The violation of Colo. RPC 8.4(b) is based upon the underlying crime of theft, and constitutes a separate and independent basis for imposing the sanction of disbarment. Absent our conclusion that Rishel violated Colo. RPC 8.4(b), the sanction imposed would still be disbarment based upon the finding of knowing conversion.

      . The People moved for sanctions on January 11, 2002, after Rishel failed to provide responses to discovery despite the PDJ entering an Order requiring him to do so. The PDJ denied the People's request that Rishel's Answers be stricken, and instead ordered that he be limited in the sanctions hearing to his own testimony and the ability to cross-examine the People's witnesses.


author: WINCHESTER, J. KAUGER, J.,

text:
    2002 OK 39
    John H. MAHORNEY, Appellant, v. The Honorable Mark A. MOORE, District Court Judge, Blaine County, Appellee.
    No. 96,726.
    Supreme Court of Oklahoma.
    May 14, 2002.
    As Corrected July 8, 2002.

      John H. Mahorney, pro se.
    Hon. Mark A. Moore, pro se.
   WINCHESTER, J.

T1 The appellant, John H. Mahorney, a prisoner, filed four petitions in the district court against four different prison officials working at the Diamondback Correctional Facility, in which he is incarcerated. He alleged a constitutional right to smoke, and claimed that the correctional officers violated that right. When Mahorney petitioned for pauper status so that court costs would be waived, the trial court ordered certain information to verify his alleged status. After Mahorney provided the requested documents from the correctional facility concerning his trust account, the trial court issued an order for each case finding that Mahorney was receiving $24.00 per month payment during his incarceration, and that he was therefore able to pay a partial filing fee of $10.00 in each case. The court assessed those costs against him, and imposed a lien on his pay to secure the payment.

12 Mahorney filed one appeal with the intention that all four cases on the docket of the District Court of Blaine County, Causes CJ-01-69, 71, 72, and 78, be determined by that appeal. We must initially determine two procedural issues. First, we must determine whether the district court's orders are appealable. Second, we must decide whether Mahorney may use one appeal to decide four cases. The final issue to be resolved is whether the trial court's specific rulings regarding partial payment of filing fees exceeded the court's authority.

13 The district court ordered Mahorney to present documents to support his alleged pauper status. That order suspended payment of fees and costs until "a final order is entered by this court determining the eligibility or ineligibility of plaintiff to proceed as a pauper." Title 28 0.9.2001, § 152(E) provides that until a final order is entered determining that the affiant is ineligible to litigate without payment of fees or costs, the clerk shall permit the affiant to litigate without payment of fees or costs.

{4 This Court has appellate jurisdiction to review final orders, interlocutory orders appealable by right, and certified interlocutory orders. 12 0.9.2001, §§ 952, 953. The four orders being appealed were identical in substance. Each found that Mahorney was receiving $24.00 per month payment while incarcerated at the Diamondback Correctional Facility, and that he was able to pay $10.00 of the court costs for filing the petition in each of the respective cases, for a total amount of $40.00 in court costs. The court then assessed those costs against Ma-horney and imposed what the court characterized as a lien on Mahorney's pay to secure the payment of the costs. The orders do not prevent Mahorney from proceeding with these four cases. They do not require Ma-horney to wait until he accumulates $40.00. The orders require that the money be paid to the court clerk by the prison facility as Ma-horney's pay becomes due. The four orders in the present case are not final orders because they do not conclude the litigation; they merely require the payment of partial filing fees.

115 Because the four orders have no effect on the continuation of the four district court cases, the orders are interlocutory judicial actions that are unreviewable in advance of judgment. LCR, Inc. v. Linwood Properties, 1996 OK 73, ¶ 16, 918 P.2d 1388, 1394. In addition, even if these four orders were treated as appealable, Mahorney improperly filed them as one appeal. Where separate judgments are rendered and the appellant attempts to appeal by filing one petition in error, the Court will dismiss the attempted appeal for duplicity. Curtis v. Mason & Hopkins, 1932 OK 145, ¶ 11, 8 P.2d 747, 749.

16 Although these cases are not appealable, and this Court may properly dismiss them, they do present the issue of the constitutional right of access to the courts. The finding that an order is not appealable does not necessarily preclude review. We look to the content and substance of an instrument filed in this Court rather than its title. First Nat. Bank and Trust Co. of Ada v. Arles, 1991 OK 78, ¶ 5, 816 P.2d 537, 539. This Court has addressed the issue of whether a prisoner's savings and draw accounts are subject to assessment for filing fees in court cases. Foust v. Pearman, 1992 OK 135, 850 P.2d 1047. That case came before this Court when the prisoner sought writs of prohibition and mandamus by an original action to permit him to file his suit in forma pauperis. Accordingly, we recast this cause as an original proceeding for a prerogative writ.

T7 Foust also held that in the exercise of a court's discretion when determining a proper partial filing fee, a court may consider present account balances of the prisoner, monthly income, other assets, and whether any funds are withdrawn to avoid payment of a statutory fee or partial fee. Foust, 1992 OK 135, ¶ 8, 850 P.2d at 1049-1050. This Court issued writs of mandamus and prohibition in Foust to the district court forbidding the assessment of a filing fee equal to all of the prisoner's funds. Foust, 1992 OK 135, ¶ 9, 850 P.2d at 1050.

¶ 8 Mahorney contends that the trial court must either grant or deny eligibility to proceed with no costs. The exhibits attached by Mahorney indicated that as of June 7, 2001, Mahorney had a balance of $0.01 in his Trust Account #1. The trial court's response to Mahorney's "Petition in Error" advises that Mahorney has filed twelve other actions in the District Court of Blaine County, and that the court's order required Mahorney to pay less than one-eighth of the court costs of the four cases now before this Court. We have previously held that the district courts have the authority to require partial payment,. Foust, 1992 OK 135, ¶ 6, 850 P.2d at 1049. Foust did not limit the trial court to whatever amount is in the prisoner's trust account at the time of filing. Because the trial court can examine present account balances of the prisoner, monthly income, other assets, and whether any funds are withdrawn to avoid payment of a statutory fee or partial fee, leaves an implication that the trial court may assess future balances until the partial fees are paid. Requiring partial payment was a response to a flood of pro se claims by prisoners. The partial payment would require a prisoner to weigh the validity of a lawsuit against the cost of pursuing it. Cumbey v. State, 1985 OK 36, ¶ 5, 699 P.2d 1094, 1096.

¶ 9 The general rule for a prerogative writ to issue is that the party seeking the writ must have a clear legal right to the relief sought and the respondent must have a plain legal duty in which the exercise of discretion is not implicated; and it may be issued only in situations where there is no plain and adequate remedy in the ordinary course of the law. Oklahoma Gas & Electric v. District Court, 1989 OK 158, ¶ 8, 784 P.2d 61, 63. The amount of the partial filing fee is within the discretion of the trial court. The clear legal duty is that the court may not order a partial filing fee equal to all of Ma-horney's funds. Accordingly, the trial court has the authority to order that Mahorney pay partial filing fees and to make such further orders as necessary to collect those fees. However, the court does not have the authority to order payment of a partial filing fee in any month that will completely deplete Mahorney's account.

¶ 10 We issue the writs of mandamus and prohibition to the extent that the district court shall not require a filing fee equal to all of Mahorney's funds. The district court shall determine the amount of the filing fee consistent with the guidelines found in Foust and the instructions in this opinion. That court shall also allow Mahorney an opportunity to object to the filing fee as so determined.

WRITS OF PROHIBITION AND MANDAMUS GRANTED IN PART AND DENIED IN PART, WITH INSTRUCTIONS.

CONCUR: HARGRAVE, C.J., WATT, v.C.J., HODGES, LAVENDER, SUMMERS, BOUDREAU, JJ.

DISSENT: OPALA, J. (JOINS KAUGER, J.) KAUGER, J. (BY SEPARATE WRITING).

KAUGER, J.,

dissenting:

¶ 1 In Foust v. Pearman, 1992 OK 135, 850 P.2d 1047, the Court addressed the issue of whether district courts could deplete a prisoner's funds to require payment of a filing fee when the prisoner files a pauper's affidavit. The Court determined that district courts are authorized to require partial payment of filing fees by prisoners, but not their "last dollar." The authority for the Court's decision came from 28 0.8.1991 § 152 which allows the trial court to waive fees if a person is unable to pay, and 57 O.S.1991 § 565 which allows the trial court to consider the amount of funds an inmate has on deposit with the Department of Corrections.

¶ 2 Three years later, in an apparent reaction to Foust, the Legislature enacted 12 O.S. Supp.1995 $ 2003.1 which provides that an application to proceed in forma pauperis may be denied if the value of the prisoner's money exceeds $200.00. Noticeably absent from the statute is any explicit authority for the trial court to assess a partial payment if the value of the money is less than $200.00.

T3 The Legislature is presumed to be familiar with extant judicial construction of statutes. Legislative silence, when the legislature has the authority to speak, may be considered as an understanding of legislative intent. Section 2008.1 was enacted after Foust, and had the Legislature intended for the district courts to assess partial fees to a prisoner who had holdings of less than $200.00 it could have done so, but it declined. Accordingly, the statute implicitly waives the fee requirement for prisoners whose holdings are less than $200.00.

      . Title 12 0.$.2001, § 2003.1(D) provides: "In all cases in which the petitioner, movant, or plaintiff is an inmate of a penal institution and desires to proceed in forma pauperis, in addition to the proof of poverty required by subsection C of Section 152 of Title 28 of the Oklahoma Statutes, the inmate shall submit a certificate executed by an authorized officer of the institution in which the inmate is confined stating the amount of money or securities on deposit to the inmate's credit in any account in the institution. The certificate may be considered by the court in acting on the motion for leave to proceed in forma pauperis. In the absence of exceptional circumstances, leave to proceed in forma pauper-is may be denied if the value of the money and securities in petitioner's, movant's, or plaintiff's institutional account exceeds Two Hundred Dollars ($200.00)."

      . Although there is no specific statutory authority for describing the trial court's orders as liens on Mahorney's account, a court has the inherent authority to issue orders to assure compliance with a previous order of the court.

      . Title 28 0.$.1991 § 152 provides in pertinent part:
      . C. In any case where the litigant claims he has a just cause of action, and that, by reason of poverty, he is unable to pay the fees and costs provided for in this section and financially unable to employ counsel, upon the filing of an affidavit in forma pauperis executed before any officer authorized by law to administer oaths by such litigant in such action to that effect and upon satisfactory showing to the court that said litigant has no means and is, therefore, unable to pay the applicable fees and costs to employ counsel, no fees or costs shall be required.... In all such cases, the court shall promptly set for hearing the determination of the eligibility of the original affiant to litigate without payment of fees or costs...."
      The statute was amended in 1997, 2000 and 2001. The current version of the pertinent portions of the statute remain substantially unchanged.

      . Title 57 § 565 provides:
      'In determining whether or not an inmate shall be allowed to use an affidavit in forma pauperis, the court shall consider the amount of funds an inmate has on deposit with the Department of Corrections."

      . Title 12 0.8. Supp.1995 § 2003.1 was enacted in 1995 and it provides in pertinent part:
      . C. In all cases in which the petitioner, movant, or plaintiff is an inmate of a penal institution and desires to proceed in forma pauperis, in addition to the proof of poverty required by subsection C of Section 152 of Title 28 of the Oklahoma Statutes, the inmate shall submit a certificate executed by an authorized officer of the institution in which the inmate is confined by stating the amount of money or securities on deposit to the inmate's credit in any account in the institution. The certificate may be considered by the court in acting on the motion for leave to proceed in forma pauperis. In the absence of exceptional circumstances, leave to proceed in forma pau-peris may be denied if the value of the money and securities in petitioner's, movant's, or plaintiff's institutional account exceeds Two Hundred Dollars ($200.00)."

        The current version remains unchanged.

      . Sudbury v. Deterding, 2001 OK 10, 116, 19 P.3d 856, Special Indemnity Fund v. Figgins, 1992 OK 59, T 14, 831 P.2d 1379.

      . Owings v. Pool Well Service, 1992 OK 159, 18, 843 P.2d 380.