text:
    Miriam M. MAHAN, Appellant, v. STATE of Alaska, Appellee.
    No. A-7662.
    Court of Appeals of Alaska.
    July 26, 2002.

      Carol A. Brenckle, Kenai, for Appellant.
    John W. Wolfe, Assistant District Attorney, Dwayne McConnell, District Attorney, Kenai, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

Miriam M. Mahan kept over 130 animals on her property, including 9 horses, 2 llamas, 10 cows, 18 sheep, 1 goat, 34 pigs, 21 dogs, 10 cats, 18 assorted birds, and a number of rabbits. At the request of some of Mahan’s relatives, a private organization called Alaska Equine Rescue entered Mahan’s property to check on the condition of these animals. They found that the animals were in ill-health and were not adequately cared for. With the aid of the Alaska State Troopers, Equine Rescue removed the animals from Mahan’s property and found foster homes for them.

Mahan was ultimately convicted of one consolidated count of cruelty to animals, AS 11.61.140(a)(l)-(2), for neglecting these animals. She now appeals her conviction and certain aspects of her sentence.

Mahan raises a number of claims on appeal. For the reasons explained here, we conclude that none of these claims has merit, and we therefore affirm Mahan’s conviction and sentence.

Mahan’s request for a writ of assistance

After Alaska Equine Rescue rescued the animals from Mahan’s property, it placed them with various “foster families”. When Mahan’s attorney prepared for trial, she arranged through Equine Rescue to visit Ma-han’s animals and the families caring for them. However, the defense attorney’s initial visits did not go well, and the foster families (apparently through Equine Rescue) resisted further contacts. Ultimately, Equine Rescue agreed to further visits, but only if the defense attorney refrained from pressuring the foster families to answer a questionnaire that the defense attorney had prepared.

At this point, Mahan’s attorney asked the district court to issue a writ of assistance — a court order directing the state troopers to accompany the defense attorney on her visits to the foster families. The defense attorney conceded that the foster families were willing to allow her to visit their property and to photograph Mahan’s animals, but the defense attorney claimed that the foster families were unwilling to answer her questionnaire. Thus, the defense attorney told the court, she needed police assistance to get the foster families to answer her questionnaire.

A “writ of assistance” is a court order directing law enforcement officers to assist a litigant in enforcing a judgement or decree. Black’s Law Dictionary defines “writ of assistance” as limited to enforcement of decrees adjudicating title to real property, but Alaska cases use the term in a broader sense.

For example, one Alaska case speaks of a writ of assistance to aid a trustee in supervising and preventing the removal or destruction of assets that were the subject of a pre-judgement attachment. Several other supreme court decisions refer to writs of assistance issued to enforce child custody and visitation decrees, and one case speaks of a writ of assistance issued to aid the Division of Family and Youth Services in entering a home to investigate a child’s welfare.

But although .Alaska cases may use the term “writ of assistance” in a broader sense than its historical origins, the gist of a writ of assistance remains the same: it is a court order directing law enforcement officers to assist a person in enforcing a prior court order when there is reason to believe that enforcement efforts may be met with forcible opposition.

Thus, to determine whether Mahan’s attorney was entitled to a writ of assistance to help her force the foster families to answer her questionnaire, the primary question to ask is whether Mahan’s attorney was legally entitled to demand answers to her questionnaire in the first place. The answer is no. A person has no legal duty to answer an attorney’s questions unless the questions are posed after the person has been sworn as a witness at a deposition or court hearing.

If Mahan’s attorney believed that her client would be denied a fair trial unless the foster families were forced to answer the questions in her questionnaire, she could have asked the district court to order the deposition of these families under Alaska Criminal Rule 15(a). But unless and until the court ordered a deposition and the foster families were properly subpoenaed to attend that deposition, the families were under no legal obligation to respond to the questionnaire — and, thus, the defense attorney was not entitled to police assistance to force or intimidate the families to answer her questions. We therefore uphold the district court’s denial of Mahan’s request for a writ of assistance.

Mahan’s request for a change of venue

Mahan asked the district court to change the venue of her trial because of the publicity that her ease had generated locally. The court chose to defer its decision on this matter until it could assess the results of jury selection. After hearing the voir dire examinations of many prospective jurors, the district court denied Mahan’s motion.

On appeal, Mahan does not give a single example of the publicity that she complains of. Even her trial court motion is unsupported by evidence. Instead, Mahan’s attorney simply made the assertion that Mahan’s case had been discussed in “newspaper articles in the Peninsula Clarion and Anchorage Daily News” and that “KTUU-TV ha[d] run numerous stories involving this case and Equine Rescue”. Mahan’s attorney did not describe the content or tenor of this media coverage except to say that Kenai District Attorney Dwayne McConnell “[was] quoted in the Peninsula Clarion article” and that “Lieutenant Bowman, [the] Detachment Commander [of the] Soldotna Post [of the Alaska State Troopers] was featured in one of the early KTUU-TV broadcasts”.

On appeal, Mahan asserts that her jury could not have been fair because, of the 32 prospective jurors summoned to court for her ease, 16 had been exposed to pre-trial publicity about the case. But exposure to pre-trial publicity does not equal bias. The question is whether the pre-trial publicity prejudiced these 16 prospective jurors against Mahan to such án extent that they would be unable to judge her case fairly. Generally, these 16 people testified that they had read or heard about the case only once or twice, near the time when the animals were removed from Mahan’s custody.

Moreover, all but one of these 16 prospective jurors were excused, either for cause or through peremptory challenges. Even if we accepted Mahan’s assertion that these 15 excused jurors were prejudiced against her as a result of their exposure to pre-trial publicity, this would not require a change of venue. As we explained in Cheely v. State, 861 P.2d 1168 (Alaska App.1993), “the question is not how many biased prospective jurors were identified and excused; rather, the question is whether there is substantial reason to doubt the impartiality of the jurors who remained after the selection process was complete.”

Of the jurors ultimately selected to try Mahan’s case, only one had heard or read any pre-trial publicity about the case. This one juror stated that she had read about Mahan’s case in the newspaper, but she also declared that this newspaper coverage had not made a strong impression on her and that she had not formed any opinion about Mahan’s guilt or innocence. The trial judge found that this juror could be fair, and Ma-han does not directly challenge this ruling on appeal.

In short, the record contains no indication that the people who served as jurors at Ma-han’s trial were unable to judge the case fairly. We therefore uphold the district court’s denial of Mahan’s motion for a change of venue.

Mahan’s suppression motion

Just before Mahan’s trial began, Mahan’s attorney tiled a motion seeking suppression of most of the State’s evidence. The defense attorney claimed that Alaska Equine Rescue and the state troopers had unlawfully entered her land when they came to inspect the animals and, later, to retrieve them.

The trial judge, Superior Court Judge Jonathan H. Link, told the defense attorney that he would not decide her motion before trial— because trial was scheduled to begin before the State was obliged to file its response. (Under Alaska Criminal Rule 42(c), the State had ten days to file its response to Mahan’s motion.) Upon hearing that Judge Link would wait ten days for the State to respond to her motion, the defense attorney asked the judge if he would base his decision on the evidence presented at trial. Judge Link responded that he would do so “if it [was] appropriate”.

Mahan’s trial ended on March 2, 2000. The State filed its response to Mahan’s suppression motion on the following day, March 3rd. But Judge Link never ruled on Ma-han’s motion, and Mahan never asked the judge to do so. The parties appeared in court for sentencing on March 13th, but Ma-han did not press Judge Link to decide the pending suppression motion, nor did she renew her motion based on the evidence presented at trial.

To preserve an issue for appeal, an appellant must obtain an adverse ruling. We have consistently held that a defendant who chooses to proceed without demanding a ruling from the trial court waives the potential claim of error. Here, Mahan’s failure to ask Judge Link for a ruling on her suppression motion constitutes a waiver of this claim.

Mahan’s term of probation

Mahan received a sentence of 1 year’s imprisonment, all suspended. She does not challenge her suspended term of imprisonment, but rather three other facets of her sentence.

First, Mahan asserts that Judge Link was clearly mistaken when he placed her on probation for 10 years. Mahan argues that, because she was a first offender convicted of a misdemeanor, a 5-year term of probation would have been sufficient to ensure her rehabilitation and protect the public.

But Judge Link found that Mahan’s conduct was “among the worst offenses”. He declared that it was “beyond argument that these animals were severely abused over a long period of time”. Based on these findings, and given Mahan’s failure to explain why she could be trusted not to neglect animals in the future, we conclude that Judge Link was not clearly mistaken when he imposed the 10-year period of probation.

Mahan’s conditions of probation

Mahan challenges two of her conditions of probation. Judge Link ordered her not to own (or be the primary caretaker of) more than one animal during her term of probation, and he prohibited her from owning or caring for a horse. Mahan’s “argument” of this point consists of a two-sentence description of these two conditions. She does not state why she believes that Judge Link abused his sentencing discretion when he imposed them.

Given Mahan’s conduct in this case, these two conditions of probation are not facially unreasonable. Mahan’s failure to offer any argument to the contrary constitutes a waiver of her claims.

The amount of Mahan’s restitution

Mahan claims that the record does not support the amount of restitution ordered by Judge Link. Initially, on April 26, 2000, Judge Link ordered Mahan to pay slightly more than $30,000 restitution to Alaska Equine Rescue for the cost of maintaining Mahan’s animals pending the outcome of the prosecution against her. Mahan was given until May 28, 2000 to pay this restitution, but the deadline was later postponed to July 16, 2000. Because Mahan’s conditions of probation barred her from continuing to own the animals, and because Equine Rescue would continue to pay to maintain the animals until they were sold, Judge Link ordered that Mahan’s restitution debt would increase by $150 per day until she sold the animals. By the end of May 2000 (when Judge Link issued his final judgement in this ease), the amount of restitution had increased to slightly more than $36,000.

Mahan’s challenge to this figure of $36,000 is fairly cursory. She asserts that the figure is suspect because the district court would not issue the requested writ of assistance to force the foster families to answer her questionnaire. But Mahan had the opportunity to challenge Equine Rescue’s restitution claims at the restitution hearing.

On appeal, she identifies only one restitution claim as questionable: the request for $1600 to repay one of the foster families for constructing additional fencing so that all of Mahan’s roughly three dozen pigs could be kept at one location. But Judge Link could reasonably determine that, in the end, it would be more cost-effective to house and feed all the pigs in one location. Thus, despite the cost of the additional fencing, Judge Link could reasonably conclude that the expense of maintaining these animals — and, thus, the amount of Mahan’s restitution obligation — would ultimately be reduced if all the pigs were housed together. Mahan offers no argument to the contrary.

The purported “forfeiture” of Mahan’s animals

Mahan argues that Judge Link exceeded his sentencing authority when he ordered Mahan’s animals “forfeited” to Alaska Equine Rescue. But Judge Link ordered no forfeiture.

During the sentencing proceedings, the State indeed urged Judge Link to order forfeiture of Mahan’s animals to Equine Rescue, but the judge concluded that he had no authority to do so. Instead, the judge issued an order that, in effect, made Mahan’s animals the security for the restitution debt Mahan owed to Equine Rescue.

As explained above, Judge Link ultimately ordered Mahan to pay slightly more than $36,000 restitution to Equine Rescue for the cost of maintaining Mahan’s animals pending the outcome of the prosecution against her. Mahan’s deadline for paying this restitution was July 16, 2000.

Because a separate condition of probation forbade Mahan from continuing to own animals, Judge Link directed Mahan to sell her animals. Under Judge Link’s order, Alaska Equine Rescue would receive the proceeds of these sales until Mahan’s restitution obligation was satisfied. (As noted earlier, to offset the continuing cost of maintaining the animals until they were sold, Mahan’s amount of restitution would increase by $150 per day “until [Mahan] divest[ed] herself of all ownership interest in the animals”.)

To prevent Mahan from selling the animals at below-market prices, Judge Link further ordered that, regardless of the sales price, “Alaska Equine Rescue must be paid the fair market value of the animal prior to the transfer of any ownership interest”.

The next paragraph of Judge Link’s order stated that, in the event that Mahan (1) failed to sell the animals and (2) failed to otherwise pay the restitution owed to Alaska Equine Rescue by the deadline, “all of [Mahan’s] ownership interest in the remaining animals [would] transfer to Alaska Equine Rescue by operation of law” — but, in this event, Ma-han’s restitution obligation would be reduced by the market value of the animals. Based on the evidence presented at the restitution hearing, Judge Link initially calculated the total market value of the animals at $13,775. This figure was later revised to $20,000, exclusive of the pigs, which were to be valued separately.

Mahan argues that Judge Link’s order amounted to a forfeiture of her animals to Alaska Equine Rescue — a “forfeiture [that] is not permitted under Alaska law”. But a forfeiture is a penalty — a loss of property without compensation. Judge Link did not order forfeiture of the animals. Rather, he ordered Mahan to sell the animals to satisfy her restitution obligation to Alaska Equine Rescue. Two conditions governed these sales: Mahan could not sell the animals for less than fair market value, and the sales had to take place by July 16, 2000.

Judge Link further ordered that if Ma-han’s restitution obligation was not paid on time, the animals would become the property of Alaska Equine Rescue (the entity to whom Mahan owed the debt), and Mahan’s debt would be reduced accordingly. Until then, Mahan remained free to sell the animals to anyone, but she had to do so within the time allotted, and not for less than fair market value.

In other words, Judge Link effectively placed a lien on the animals, making them security for Mahan’s restitution debt if that debt was not satisfied by July 16, 2000. The judge declared that if Mahan failed to sell the animals as prescribed, the animals would become the property of Equine Rescue, but Equine Rescue would have to pay Mahan fair market value for them — i. e., Mahan’s restitution debt would be reduced by the fair market value of the animals.

We have already upheld the condition of probation that forbids Mahan from owning more than one animal (and no horses), so it follows that Judge Link could order Mahan to divest herself of the animals. Because Mahan owed a substantial amount of restitution to Alaska Equine Rescue, Judge Link could reasonably require Mahan to pay that restitution from the proceeds of the animal sales if she did not otherwise satisfy her restitution obligation. Likewise, Judge Link could reasonably prohibit Mahan from selling the animals for less than fair market value.

Because Alaska Equine Rescue was spending a considerable amount of money to maintain the animals for each day that their final ownership remained unsettled, it was reasonable for Judge Link to place a time limit on Mahan’s efforts to sell the animals. And finally, it was reasonable for Judge Link to give Equine Rescue a lien on the animals so that, if Mahan would not or could not sell them for fair market value within the time allotted, Equine Rescue would gain ownership of the animals and Mahan would have her restitution debt reduced by their fair market value.

One might, perhaps, debate whether Alaska’s restitution statutes actually authorize a sentencing judge to place this sort of lien on the defendant’s property. But Mahan does not address this issue. She argues only that Judge Link’s order constituted a “forfeiture” — a contention that we reject.

Mahan also complains that Judge Link refused to recognize her purported sale of the animals to “RPM, Inc.” on April 28, 2000 for the price of $13,375. But Judge Link considered this issue and ultimately ruled that no sale had occurred. Mahan does not address this ruling or argue why it is erroneous. Moreover, as already explained, Judge Link eventually concluded that the animals (leaving aside the pigs) had a fair market value of $20,000. Under the terms of the sentencing order, any sale of the animals for less than this amount would be void.

Whether Mahan’s restitution should be reduced by the amount of donations that Alaska Equine Rescue received from members of the community

Finally, Mahan claims that her restitution obligation should be reduced by the approximately $20,000 in donations that Alaska Equine Rescue received from members of the community to help defray the cost of maintaining Mahan’s animals.

Mahan’s argument is facially appealing. The purpose of restitution is to make someone whole, not to enrich them. Because members of the community responded to the call for help and donated money to Alaska Equine Rescue, there is a distinct possibility that the total money received by that organization — the donations, plus the amount that Mahan pays in restitution — will more than offset the costs incurred by the organization and the foster families that Equine Rescue enlisted to care for Mahan’s animals.

On the other hand, it is unlikely that the people who donated money to Alaska Equine Rescue intended for their donations to reduce Mahan’s restitution obligation. It is more probable that these people intended their donations to accomplish two goals: first, to make sure that Equine Rescue could meet the current expenses of maintaining Mahan’s animals until Mahan ultimately paid any restitution ordered by the court; and second, to make sure that Equine Rescue would be able to bear the full cost of maintaining Mahan’s animals even if Mahan herself never fully reimbursed the organization for its expenses.

This is not the first time that we have had to decide how contributions to crime victims from members of the community affect a defendant’s duty to pay restitution. In Demers v. State, 42 P.3d 1 (Alaska App.2002), we addressed a different aspect of this restitution problem: whether a defendant could be ordered to pay restitution for the value of non-monetary donations (donations of goods and services) made by members of the community to offset or ameliorate the victim’s loss. To the extent that such non-monetary donations reduce the expenses that the victim would otherwise have to bear, these contributions from members of the community might reasonably be considered part of the total social cost of the defendant’s crime. Nevertheless, we concluded that Alaska’s restitution statutes do not authorize a sentencing court to order a defendant to reimburse the value of these non-monetary contributions.

Mahan’s case presents a different issue. The amount of costs occasioned by Mahan’s crime is not at issue — or, more precisely, we have already upheld Judge Link’s valuation of these costs. Rather, the question is whether Mahan’s duty to repay these costs should be reduced by the amount of monetary donations that the victim has received from members of the community.

As we remarked above, the probable intent of the contributors was to make sure that Alaska Equine Rescue would be able to bear the cost of maintaining Mahan’s animals even if Mahan never made full restitution for the organization’s expenses. In this respect, the private contributors played much the same role as an insurance or indemnity company. Because of this, we conclude that our decision in Dorris v. State, 656 P.2d 578 (Alaska App.1982), provides the rule that governs Mahan’s case.

In Dorris, we upheld a restitution award even though the victim was insured for the loss caused by the defendant. We held that the sentencing court could properly order the defendant to pay the restitution even though the victim might be obligated (either legally or morally) to turn over any extra money to the insurance company.

Obviously, the private contributors in this case are not the legal equivalent of an insurance company — for they were not contractually obligated to reimburse Alaska Equine Rescue for its expenses. But we believe that the underlying principle is the same: when the victim of a crime receives money from a third party — either contractual payments from an insurance company or voluntary donations from members of the public — this money should not reduce the amount of restitution that the offender can be ordered to pay.

We note that Alaska Equine Rescue is an ongoing non-profit organization, part of a nation-wide network of similar organizations whose goal is to identify and care for abused animals (and secure the return of stolen animals). Although the impetus for the private donations at issue here may have been the particular expenses caused by Mahan’s crime, we assume that, in the event these donations exceeded expenses, the people who gave the money would want it to be used for the continuing efforts of Alaska Equine Rescue, or refunded, rather than having it turned over to Mahan.

Additionally, as we noted in Dorris, restitution serves two goals: not only restoring victims, but also making defendants pay the expenses they have caused by their criminal conduct. This second goal would not be served if defendants received credit for money that crime victims received from sympathetic members of the community. Under such a rule, defendants would, in effect, be enriched by these donations: either the donations would reduce the amount of the defendant’s unpaid restitution obligation or, if the defendant had already satisfied their restitution obligation, the donated money would have to be turned over to the defendant to reimburse the “extra” restitution they had paid. This result would discourage the community from coming to the aid of a crime victim.

For these reasons, we conclude that a defendant who is ordered to pay restitution is not entitled to a credit, an offset, or a refund for monetary donations received by the crime victim. The district court therefore properly denied Mahan’s request to have her restitution reduced by the approximately $20,000 in donations that Alaska Equine Rescue received from the community.

Conclusion

The judgement of the district court is AFFIRMED.

      . Id. (7th edition, 1999), p. 1603.

      . See Eagle Air, Inc. v. Corroon and Black / Dawson and Co. of Alaska, Inc., 648 P.2d 1000, 1006 (Alaska 1982).

      . See Pauley v. Anchorage School District, 31 P.3d 1284, 1285 (Alaska 2001); Puhlman v. Turner, 874 P.2d 291, 292 (Alaska 1994); Adoption of N.P.S., 868 P.2d 934, 936 (Alaska 1994).

      . See D.M. v. Div. of Family and Youth Services, 995 P.2d 205, 207 (Alaska 2000).

      . This is the preferred course of action. See Wylie v. State, 797 P.2d 651, 656 (Alaska App.1990), where we endorsed the rule that, generally speaking, motions for change of venue based on pre-trial publicity should not be decided until jury selection has been attempted.

      . Mat 1175.

      . See Marino v. State, 934 P.2d 1321, 1327 (Alaska App.1997) (defendant proceeded to trial without demanding a ruling on his discovery request); Erickson v. State, 824 P.2d 725, 733 (Alaska App.1991) (defendant failed to press the trial judge for a ruling on his motion to suppress his statements to the police); Jonas v. State, 773 P.2d 960, 963 (Alaska App.1989) (defendant proceeded to trial without demanding a ruling on his motion for a psychiatric evaluation of the complaining witness).

      . See Petersen v. Mutual Life Insurance Co. of New York, 803 P.2d 406, 410 (Alaska 1990) (when a claim is given only cursory treatment in a party’s brief, the appellate court can deem the point waived and not consider it).

      . See Demers v. State, 42 P.3d 1, 3 (Alaska App.2002) (Mannheimer, J., concurring) ("The aim of restitution is to restore victims to their financial condition before the crime.”).

      . See id. at 2.

      . See id. at 583-84.

      . See, e.g., http://www.equinerescue.com/stater-escues.html.

      . See Dorris, 656 P.2d at 584.


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    Sam W. McGEE, Appellant, v. STATE of Alaska, Appellee.
    No. A-7697.
    Court of Appeals of Alaska.
    July 26, 2002.
    James M. Hackett, Law Office of James M. Hackett, Inc., Fairbanks, for Appellant.
    John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION ON REHEARING

STEWART, Judge.

Sam W. McGee entered a no contest plea to various counts of controlled substance misconduct preserving his right to appeal the superior court’s denial of his motion to suppress evidence.

The police discovered the evidence against McGee after the police intercepted a Federal Express package addressed to McGee and tested it with an Ion Track Instruments “Itemiser” — -an ion mobility spectrometer. The Itemiser test revealed traces of a controlled substance. Based on this test result, the police obtained a search warrant to open the package. When the police opened the package, they found about 7 ounces (200 grams) of cocaine. This discovery prompted further investigation and ultimately led to the charges against McGee.

McGee raises several claims on appeal, but we address only one of them: whether the police must have reasonable suspicion to temporarily remove McGee’s package from the normal flow of commerce and test it with the Itemiser.

When McGee raised this issue in the superior court, the State responded that the Itemiser examination “cannot be said to be so intrusive as to trigger 4th Amendment protection.” The State argued that the Itemiser was nothing more than an electronic “dog-sniff’ and relied on a statement from

United States v. Place that a dog sniff “did not constitute a ‘search’ within the meaning of the Fourth Amendment.”

But in Gibson v. State, this court ruled that the police need reasonable suspicion of criminal activity before they can temporarily detain a package and subject it to sniffing by a drug detection dog. We conclude this same rule applies to temporary detention of a package for the purpose of subjecting it to ion mobile spectrometry.

At the hearing on McGee’s motion to suppress, the State understood the superior court’s analysis of the issue to be “that if in fact this Itemiser is the functional equivalent of a dog sniff, then the search is bad and we would have suppression.” The court confirmed the- State’s understanding and also observed that “from the record, I don’t see anything that would justify even a reasonable suspicion until such time as [the package] is exposed to the Itemiser.” The State did not ask to present any additional evidence at the hearing on the issue of reasonable suspicion. The court then ordered supplemental briefing on the issue of whether the use of the Itemiser was a search.

In its supplemental brief to the trial court, the State argued that “[t]he package was detained and the Itemiser used based on nationally developed criteria that establish reasonable suspicion.” The State claimed that in the totality of the circumstances, reasonable suspicion was established in light of what the police knew but did not cite any specific facts from McGee’s case that established reasonable suspicion. The superior court ruled that the use of the Itemiser did not implicate the Fourth Amendment and denied McGee’s motion.

The State argues that we should remand the case so the superior court can squarely address the question whether there was reasonable suspicion to subject the package to the Itemiser. Because the court resolved McGee’s motion on a ground independent of that question, we will remand the ease to the superior court to address the following question: Was there reasonable suspicion when McGee’s package was tested with the Itemiser?

The superior court shall transmit its findings on this question to this court within ninety days. Each party shall have thirty days from this court’s receipt of those findings to submit supplemental memoranda addressing those findings. At that time, we will resume consideration of McGee’s ease.

The case is REMANDED to the superior court. We retain jurisdiction.

      . See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).

      .462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983).

      . Id., 462 U.S. at 707, 103 S.Ct. at 2645.

      . 708 P.2d 708 (Alaska App.1985).

      . See id. at 709-10.


author: Justice HOBBS

text:
    In re the PEOPLE of the State of Colorado, Complainant, v. Jerold Lewis TRUPP, Respondent.
    No. 01SA391.
    Supreme Court of Colorado, En Banc.
    June 10, 2002.

      Jaudon & Avery, LLP Joseph C. Jaudon David H. Yun Denver, Colorado, Attorneys for Complainant.
    Jerold L. Trupp, Denver, Colorado, Respondent, pro se.
    Roger L. Keithley, Presiding Disciplinary Judge, Denver, Colorado On behalf of the Office of the Presiding Disciplinary Judge.

      . Pursuant to C.R.C.P. 251.8.5, regulation counsel may file a petition for suspension if "[ujpon receipt of reliable information [she finds] that an attorney is in arrears in payment under a child support order, or has failed to comply with subpoenas or warrants relating to paternity or child support proceedings.” Suspension under this rule does not bar additional disciplinary action. See C.R.C.P. 251.8.5(a).

   Justice HOBBS

delivered the Opinion of the Court.

We hold in this attorney regulation case that: (1) the Presiding Disciplinary Judge has exclusive authority over a C.R.C.P. 11(a) motion, and (2) only the assistant attorney regulation counsel who signed the complaint and amended complaint is answerable to the motion.

After the Presiding Disciplinary Judge suspended Respondent attorney Jerold Trapp’s (“Trupp”) license to practice law due to child support arrearages, the Colorado Supreme Court Attorney Regulation Counsel’s office commenced formal disciplinary proceedings against Trapp, alleging violations of the Colorado Rules of Professional Conduct. At the close of the evidence, the Hearing Board entered a decision in favor of Trupp.

Trapp then filed a motion requesting the Presiding Disciplinary Judge (“PDJ”) to impose C.R.C.P. 11(a) sanctions against Attorney Regulation Counsel John S. Gleason (“Gleason”), Assistant Regulation Counsel Teresa M. Garcia (“Garcia”), Deputy Regulation Counsel Nancy Cohen (“Cohen”), and the Attorney Regulation Committee (“the Committee”). In response to the motion, the PDJ entered an order for a hearing before the Hearing Board on Trapp’s C.R.C.P. 11(a) motion, but limited the hearing to Gleason and Garcia because only their names appeared in the signature block on the complaint and amended complaint. But, only Garcia had signed both of those pleadings.

Gleason and Garcia filed a motion to stay the C.R.C.P. 11(a) hearing while they petitioned this court for relief pursuant to C.R.C.P. 251.1(d) and C.A.R. 21. We take jurisdiction of this matter because it involves an issue of first impression under Colorado’s revised attorney regulation system.

We make the rale absolute in part and discharge it in part. The PDJ has sole jurisdiction over a C.R.C.P. 11(a) motion, and only the assistant attorney regulation counsel who signed the complaint and amended complaint is answerable to the motion.

I.

The underlying case commenced when the Deputy Clerk of the Colorado Supreme Court forwarded information to the Office of Attorney Regulation regarding a possible problem with Trapp’s child support obligations. For the years 2000 and 2001,

Trupp’s attorney registration certifications suggested that he was not in compliance with his child support obligations but was taking measures to comply. Colorado Assistant Attorney Regulation Counsel Garcia, along with Mary Lynne Elliott, an investigator for the Attorney Regulation Counsel, conducted an investigation into Trupp’s child support payment history.

At the close of the investigation, Garcia submitted the results in a report to the Committee pursuant to C.R.C.P. 251.11 and 251.12. Garcia signed the report. Garcia and Gleason attended the Committee’s meeting regarding the Trupp report, during which the Committee determined that reasonable grounds for discipline existed. As a result, the Committee authorized the Office of Attorney Regulation Counsel to file a complaint against Trupp.

Garcia signed and filed a petition for immediate suspension of Trupp’s license to practice law. Subsequently, she signed and filed a complaint commencing formal grievance proceedings against Trupp, and, later, filed an amended complaint. Gleason’s name appeared in the signature block of the complaint and amended complaint, but he did not sign either pleading.

The signature block on the complaint and amended complaint appeared as follows:

/s/ Teresa M. Garcia Teresa M. Garcia, # 17440

Assistant Regulation Counsel

John S. Gleason, # 15011

Regulation Counsel

Attorneys for Complainant

Upon consideration of the suspension petition, the PDJ placed Trupp on immediate suspension. Subsequent to the suspension hearing, the full Hearing Board heard the merits of the disciplinary action, with the PDJ presiding. The Hearing Board decided in Trupp’s favor. Trupp then filed a motion for C.R.C.P. 11(a) sanctions against Gleason, Cohen, Garcia, and the Committee.

The PDJ ordered a hearing before the full Hearing Board to determine if Garcia and Gleason had violated C.R.C.P. 11(a). The PDJ limited the hearing to Garcia and Gleason because only their names appeared on the complaint and amended complaint. Garcia and Gleason then filed their petition for review of the PDJ’s order with this court.

II.

We hold that: (1) the PDJ has exclusive authority over a C.R.C.P. 11(a) motion, and (2) only the assistant attorney regulation counsel who signed the complaint and amended complaint is answerable to the motion.

We conduct de novo review of the PDJ’s procedural order in this case. See C.R.C.P. 251.27(b) (stating that “the Supreme Court may conduct a de novo review of the [PDJ’s] conclusions of law”). In construing the attorney regulation rules, we apply the principles of statutory construction. See Leaffer v. Zarlengo, 44 P.3d 1072,1078 n. 6 (Colo.2002). Using these principles, we afford the rules their commonly understood and accepted meanings, and avoid interpretations that render language redundant or superfluous, or lead to absurd results. Id. at 1078-79.

As a threshold matter, we determine that C.R.C.P. 11(a) does apply to attorney regulation proceedings, because the rules provide that attorney regulation proceedings “shall be conducted in conformity with the Colorado Rules of Civil Procedure.” See C.R.C.P. 251.18(d). We further determine that the scope of the C.R.C.P. 11(a) inquiry in this case is limited to whether the attorney who signed the complaint and amended complaint: (1) read them; (2) undertook reasonable inquiry into them; and (3) possessed a proper purpose in filing them. Stepanek v. Delta County, 940 P.2d 364, 370-71 (Colo. 1997). In view of the Committee’s function to determine whether reasonable grounds for discipline exist, see C.R.C.P. 251.12, we observe that it will be a rare circumstance in which the attorney regulation counsel who signed a complaint or an amended complaint is properly subject to a C.R.C.P. 11(a) sanction.

We now turn to our discussion of the PDJ’s role in determining C.R.C.P. 11(a) motions and the rule’s certificate-by-signature requirement.

A.

The PDJ’s Exclusive Authority to Rule on C.R.C.P. 11(a) Motions

The PDJ is responsible for procedural rulings in disciplinary proceedings. See C.R.C.P. 251.7(e) (conferring on the PDJ the authority to rule on Regulation Counsel’s motion to activate a sanction after an attorney violates disciplinary probation); C.R.C.P. 251.7(f) (placing exclusive authority with the PDJ to issue an order showing successful completion of probation); C.R.C.P. 251.8 (granting authority over immediate suspension hearings to the PDJ and the Supreme Court); C.R.C.P. 251.8.5 (establishing exclusive authority in the PDJ to preside over immediate suspension hearings for nonpayment of child support); C.R.C.P. 251.18(d) (imparting to the PDJ authority to administer oaths and affirmations).

Consistent with this design, C.R.C.P. 251.18(b) accords the PDJ exclusive authority to rule on motions, objections, and other matters presented. See C.R.C.P. 251.18(b). The PDJ’s role is analogous to that of a judge presiding over a civil trial. See C.R.C.P. 251.18(b) (requiring the PDJ “to rule on all motions, objections, and other matters presented after the complaint is filed”). Once a complaint is filed, the Hearing Board’s role in the attorney regulation system, with the PDJ ordinarily sitting as a member, see C.R.C.P. 251.18(b), is to hear the evidence against the charged attorney, make findings of fact and conclusions of law, and enter its decision. See id. (stating that “[a]ll hearings on complaints seeking disciplinary action against a respondent shall be conducted by a Hearing Board” (emphasis added)).

C.R.C.P. 251.19(a) sets forth the framework for the Hearing Board’s decision-making process following its hearing. . C.R.C.P. 251.19(a) provides:

(a) Hearing Board Opinion and Decision. Within sixty days after the hearing, the Hearing Board shall prepare an opinion setting forth its findings of fact and its decision. In preparing its decision, the Hearing Board shall take into consideration the respondent’s prior disciplinary record, if any. The opinion shall be signed by each concurring member of the Hearing Board. Two members are required to make a decision. Members of the Hearing Board who dissent shall also sign the opinion, provided they indicate the basis of their dissent in the opinion. C.R.C.P. 251.19(a). Under C.R.C.P. 251.19(b), the Board’s decision may include appropriate orders and its decision is subject to post-hearing review. C.R.C.P. 251.19(b) provides:

(b) Decision of the Hearing Board.
When it renders its decision, the Hearing-Board shall: (1) Determine that the complaint is not proved and enter an order dismissing the complaint;
(2) Enter an order imposing private admonition, public censure, a definite period of suspension, or disbarment; or
(3) Enter an order conditioned on the agreement of the attorney diverting the case to the alternatives to discipline program.
The Hearing Board may also enter other appropriate orders including, without limitation, probation, and orders requiring the respondent to pay the costs of the disciplinary proceeding, to make restitution, or to refund money paid to the respondent.
(4) Within fifteen days of entry of an order as provided in this rule or such greater time as the hearing board may allow, a party may move for post-hearing relief as provided in C.R.C.P. 59. In the event a motion for post-hearing relief is filed, the Presiding Disciplinary Judge or the presiding officer shall consult mth the other members of the hearing board and then rule on the motion.

C.R.C.P. 251.19(b) (emphasis added). Trupp asserts that the “other appropriate orders” language in C.R.C.P. 251.19(b)(3) and the “shall consult” language of C.R.C.P. 251.19(b)(4) include PDJ consultation with the Hearing Board in regard to a C.R.C.P. 11(a) motion. We disagree.

The “other appropriate orders” language in C.R.C.P. 251.19(b)(3) applies to orders that are included in the Board’s decision. The “shall consult” language in C.R.C.P. 251.19(b)(4) — by its reference to C.R.C.P. 59 — addresses post-hearing review by the PDJ and the Hearing Board members regarding the Board’s decision. We reach this conclusion because C.R.C.P. 59 defines post-trial relief to include new trial motions, motions for judgment notwithstanding the verdict, and motions to amend findings or amend the judgment. A motion under C.R.C.P. 59 allows for possible adjustment of the decision. See Koch v. Dist. Court, 948 P.2d 4, 7 (Colo.1997); Sheila K. Hyatt & Stephen A. Hess, Colorado Civil Rules Annotated 149 (3d ed.1998) (stating that C.R.C.P. 59 provides a means by which a party may seek review of a judgment by the trial court).

Thus, we determine that C.R.C.P. 251.19(b)(4) requires the PDJ to consult with the Board only in regard to post-hearing motions which affect its decision. Because a motion for sanctions under C.R.C.P. 11(a) is not a motion for post-hearing relief from the Hearing Board’s decision under C.R.C.P. 251.19(b)(4), Trupp’s motion for C.R.C.P. 11(a) sanctions is not within the Hearing Board’s authority or the PDJ’s consultation requirement.

We conclude that the PDJ has exclusive authority under C.R.C.P. 251.18(b) to rule on Trupp’s C.R.C.P. 11(a) motion. See C.R.C.P. 251.18(b) (reciting that PDJ or the presiding officer shall rule on all motions, objections, and other matters presented after a complaint is filed and in the course of a hearing).

The plain language of the rules, their context, and the design of the revised attorney regulation system support our conclusion that the PDJ has exclusive authority to consider and rule on a C.R.C.P. 11(a) motion for sanctions. After consulting with an American Bar Association expert team, writing several drafts of the rules, and soliciting public comment, we adopted an attorney regulation system featuring a presiding judge who would specialize in the area of attorney regulation and sit with the Hearing Board when it heard evidence and made decisions. Under the revised system, the PDJ assumes many of the former Grievance Committee’s responsibilities. See generally Linda Donnelly et a!., How the New Attorney Regulation System Will Work, 28 Colo. Law. 57 (Feb.1999) (describing the adoption and effect of the new attorney regulation system).

We now turn to C.R.C.P. ll(a)’s requirements.

B.

C.R.C.P. 11(a)

Trupp’s request for C.R.C.P. 11(a) sanctions included Garcia, Gleason, Cohen, and the Attorney Regulation Committee. The PDJ determined that Gleason and Garcia were subject to C.R.C.P. ll(a)’s requirements because their names appeared on the pleadings filed in the proceeding against Trupp. Garcia and Gleason contend that C.R.C.P. 11(a) sanctions may apply only to the attorney who makes the C.R.C.P. 11(a) certification by signing the pleading. We agree.

We consider federal precedent when our rule is similar to the federal rule. Air Communication & Satellite Inc. v. EchoStar Corp., 38 P.3d 1246, 1251 (Colo.2002). C.R.C.P. 11(a) focuses on pre-filing and pre-pleading behavior; in this regard, it is not as broad as the current, amended counterpart federal rale. Hyatt, swpra, at 120. But, C.R.C.P. ll(a)’s signature requirement is similar to the federal rale’s signature requirement prior to the 1993 federal rule amendment.

Under the prior federal rule counterpart to our C.R.C.P. 11(a), a court could impose “upon the person who signed [the pleading] ... an appropriate sanction.” The United States Supreme Court interpreted this language as limiting the imposition of sanctions to the signing attorney alone. See, e.g., Pav-elic & LeFlore v. Marvel Entm’t Group, 493 U.S. 120, 126-27, 110 S.Ct. 456, 107 L.Ed.2d 438 (1989) (stating that Rule 11 contemplates sanctions against the individual who signs, not against the law firm of which that individual is a member, even if the firm’s name appears in the signature block, because “the purpose of Rule 11 as a whole is to bring home to the individual signer his personal, nondelegable responsibility ... to validate the truth and legal reasonableness of the papers filed”).

Under C.R.C.P. 11(a) the attorney’s signature represents the certificate that may trigger sanctions, if appropriate.

Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name.... The signature of an attorney constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading is not signed it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader.... If a pleading is signed in violation of this Rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney’s fees....

C.R.C.P. 11(a) (emphasis added).

The first sentence of this rule requires an attorney’s signature when counsel represents a party. The attorney’s signature identifies the attorney responsible for compliance with the rule. Hyatt, supra, at 188. The signature requirement places the signing attorney on notice that it is his or her responsibility to meet the requirements of C.R.C.P. 11(a). Id. The rule provides that a pleading submitted without a signature must be refiled to include a signature or it will be stricken: “If a pleading is not signed it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader.”

The scope of the C.R.C.P. 11(a) inquiry concerns whether the attorney (1) has read the pleading in question; (2) has undertaken reasonable inquiry into the pleading’s factual and legal assertions; and (3) possessed a proper purpose in filing the pleading. Stepanek v. Delta County, 940 P.2d 364, 370 (Colo.1997). The test is one of objective reasonableness concerning the attorney’s pre-filing behavior. Id.; Hyatt, supra, at 120.

The C.R.C.P. 11(a) inquiry does not turn on the outcome of the case; instead, it turns on whether the attorney met the reasonable inquiry and proper purpose threshold in preparing and filing the pleading. The rule’s explicit application to the signing attorney or pro se party signing the pleading is clear and unambiguous. C.R.C.P. 11(a) states that the judge may “impose on the person who signed it ... an appropriate sanction.” While pleadings may identify other attorneys who may have had some role in the case, the signature requirement is designed to hold only the signing attorney responsible for the required certification. If more than one attorney signs a pleading, each one who has signed the pleading is responsible for the certification.

Construing C.R.C.P. 11(a) to apply to non-signing attorneys would render the plain language of the eertification-by-signature requirement superfluous, contrary to statutory construction principles. See Leaffer v. Zarlengo, 44 P.3d 1072,1079 (Colo.2002).

A recent amendment to C.R.C.P. 11 supports our construction of the rule. In 1999, we added subsection (b) to C.R.C.P. 11. C.R.C.P. 11(b), the limited representation rule, addresses the role an attorney may play in assisting a pro se party. When filing a pleading drafted with the aid of an attorney, the pro se party must include the attorney’s name, address, phone number, and registration number on the document. C.R.C.P. 11(b) establishes modified certification requirements to accommodate the nature of limited representation. It does not require the assisting attorney to sign the pro se party’s pleading, but nevertheless expressly provides that the assisting attorney may be responsible for that subsection’s certification requirement. See C.R.C.P. 11(b) (stating that “violation of this Rule 11(b) may subject the attorney to the sanctions provided in C.R.C.P. 11(a)).”

Even though the assisting attorney’s signature need not appear on the pro se pleading, C.R.C.P. 11(b) explicitly provides that sanctions may apply to the attorney for noncompliance with that subsection’s modified certification standard. The contrast between C.R.C.P. ll(a)’s eertification-by-signature requirement and C.R.C.P. ll(b)’s certification-without-signature provision is pronounced. We must give effect to both according to their terms. Leaffer, 44 P.3d at 1079.

In sum, C.R.C.P. 11(a) requires a signature and holds the signing attorney responsible for the certificate. Our construction of C.R.C.P. ll(a)’s certification-by-signature requirement vindicates the rule’s purpose: to deter the filing of frivolous actions and pleadings. Hyatt, supra, at 118. It personalizes the responsibility of the person who has undertaken to certify the pleading.

Here, only Garcia signed the complaint and the amended complaint. While Gleason’s name appeared in the signature block on both, his signature did not. The PDJ erred by ordering Gleason to respond to Trapp’s motion for sanctions. Only Garcia is answerable to the motion. In considering Trapp’s motion, the PDJ must take into account the design of the attorney regulation system, which requires attorney regulation counsel to obtain a reasonable-grounds-for-discipline determination by the Attorney Regulation Committee prior to filing a complaint. See C.R.C.P. 251.12. This feature of the attorney regulation system will render the appropriateness of C.R.C.P. 11(a) sanctions against the signing regulation counsel a rare circumstance.

III.

Accordingly, we make the rale absolute in part and discharge it in part. The PDJ alone may consider a C.R.C.P. 11(a) motion for sanctions, and only the assistant attorney regulation counsel who signed the complaint and amended complaint is answerable to the motion.

Justice KOURLIS and Justice BENDER do not participate.

      .In their petition for review, Garcia and Gleason raised three issues:
      1. Whether the Hearing Board has jurisdiction to decide Trapp's motion for C.R.C.P. 11 sanctions against Gleason and Garcia when C.R.C.P. 251.18(d) designates only the Presiding Disciplinary Judge to decide all motions filed in the course of a disciplinary action.
      2. Whether the Hearing Board or the Presiding Disciplinary Judge has any authority to impose C.R.C.P. 11 sanctions against Gleason when Rule 11 allows imposition of sanctions against only the person who signs the pleading and the representative party.
      3. Whether it would be an abuse of discretion for either the Hearing Board or the Presiding Disciplinary Judge to impose any sanction against Garcia, Gleason, or the Office of Attorney Regulation Counsel.
      Because the PDJ has not ruled on the C.R.C.P. 11(a) motion, the third issue is not ripe for review, and we do not rule on it. See Bd. of County Comm’rs v. County Rd. Users Ass’n, 11 P.3d 432, 438 (Colo.2000) (stating that "a court has no jurisdiction to render an advisory opinion on a controversy that is not yet ripe, or to decide a case on speculative, hypothetical, or contingent set of facts”).

      . Pursuant to Colorado law, attorneys, when registering annually for their licenses to practice law, must answer questions regarding child support obligations. If an attorney is found to be in arrears, his or her license is subject to immediate suspension. See C.R.C.P. 251.8.5(b).

      . In his order, the PDJ: (1) ordered Trupp to set a hearing date; (2) established the evidence that would be considered at the hearing; and (3) limited the proceeding to Garcia and Gleason, and to the issues raised in Trupp's motion for sanctions. The PDJ’s written order stated:
      1.Respondent [Trupp] to set this matter for a hearing before the full Hearing Board to be held within twenty (20) days of the date of this order;
      2. All evidence at the trial on October 15, 2001 will be considered by the PDJ and Hearing Board at the Rule 11 hearing. The parties may also present further evidence.
      3. The hearing shall be limited to those issues raised in respondent [Truppjs motion captioned "Other Matters Requested To Be Included In Final Order” filed October 22, 2001;
      4. Complainant [Garciaj's Motion to Strike is granted in part and denied in part.' Complainant’s Motion to Strike is GRANTED with regard to respondent’s allegation that Rule 11 sanctions should be brought against certain named members of the Attorney Regulation Committee and Nancy L. Cohen in the Office of Attorney Regulation Counsel. Pursuant to C.R.C.P. 11, supra, the issue of sanctions shall be limited to the attorneys whose names appear on the First Amended Complaint, Teresa M. Garcia and John S. Gleason. Complainant's .Motion to Strike is DENIED in all other respects.

      . The PDJ has not ruled on the C.R.C.P. 11(a) motion. On remand, the PDJ must determine, consistent with this opinion, whether there is a legal and factual basis for the motion and any sanction.

      . A commentator says of the PDJ and the Hearing Board:
      The presiding disciplinary judge will assume many of the responsibilities that previously burdened the volunteer members of the Griev-anee Committee. In the past, volunteer members of the Grievance Committee had to assist in much of the administration of the hearing process, including writing of findings of fact, conclusions, and recommendations at the end of a hearing. In order to streamline procedures and reduce delay in the new system, the Presiding Disciplinary Judge will rule on all pretrial motions, sit on all the hearing boards, and draft the written findings and decision for the hearing board.
      When a matter goes to trial, a board of three members will continue to hear these cases. The Presiding Disciplinary Judge will act as the Presiding Officer of the hearing board. The other two members will be drawn from a pool of lawyers and public members appointed by the Supreme Court to assist the Presiding Disciplinary Judge with hearings.
      Donnelly et al., supra, at 58 (footnotes omitted).

      . Section 13-17-101 allows a court to order fees to be paid by any party or any attorney "who brings or defends an action which in whole or in part lacked substantial justification, was substantially frivolous, substantially groundless, or substantially vexatious.” § 13-17-101, 5 C.R.S. (2001). This section does not apply to attorney regulation proceedings. Plainly, by its terms, it applies only to "courts of record.” § 13-17-101. In addition, fees are considered the functional equivalent of money damages; thus, a party may not request that they be awarded from the Attorney Regulation Counsel because the attorneys, in their official capacity, serve a prosecutorial function and are immune from fee requests under the statute. See Hoffler v. Colo. Dep't of Corrections, 27 P.3d 371, 375 (Colo.2001).

      . The 1993 amendment, among other things, overruled Pavelic by providing that Rule 11 sanctions may be imposed "upon the attorneys, law firms, or parties that have violated [Rule 11] or are responsible for the violation.” See Fed. R.Civ.P. 11(c).

      . C.R.C.P'. 121, § 1-26(9) requires that the party or attorney who utilizes the electronic filing system must maintain a printed copy of the pleading with an original signature for C.R.C.P. 11(a) purposes.

      . The phrase reads: “If a pleading is signed in violation of this Rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction....” C.R.C.P. 11(a). We acknowledge that the rule allows a judge to levy sanctions against a represented party as well as the signing attorney; however, our holding here is limited to the signing attorney’s certification pursuant to the rule.

      . If a signor is signing a pleading by request of another, the attorney authorizing the other person to sign for him or her is responsible for the certification.

      .Subsection (b) states, in pertinent part:
      (b) Limited Representation. An attorney may undertake to provide limited representation in accordance with Colo.RPC 1.2 to a pro se party involved in a court proceeding. Pleadings or papers filed hy the pro se party that were prepared with the drafting assistance of the attorney shall include the attorney’s name, address, telephone number and registration number. The attorney shall advise the pro se party that such pleading or other paper must contain this statement. In helping to draft the pleading or paper filed by the pro se party, the attorney certifies that, to the best of the attorney's knowledge, information and belief, this pleading or paper is (1) well-grounded m fact based upon a reasonable inquiry of the pro se party by the attorney, (2) is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and (3) is not

        interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. The attorney in providing such drafting assistance may rely on the pro se party's representation of facts, unless the attorney has reason to believe that such representations are false or materially insufficient, in which instance the attorney shall make an independent, reasonable inquiry into the facts.... The attorney’s violation of this Rule 11(h) may subject the attorney to the sanctions provided in C.R.C.P. 11(a).


author: Judge DAILEY.

text:
    Frank RUBIO, Plaintiff-Appellant, v. Andrew K. FARRIS, Defendant-Appellee.
    No. 00CA2080.
    Colorado Court of Appeals, Div. III.
    June 20, 2002.

      Lloyd C. Kordick & Associates, Lloyd C. Kordick, Colorado Springs, Colorado, for Plaintiff-Appellant.
    Hall & Evans, L.L.C., Alan Epstein, Denver, Colorado; Hanson & Associates, Stuart Theodore, Greenwood Village, Colorado, for Defendant-Appellee.

         Prior Opinion Announced March 7, 2002, WITHDRAWN. Petition for Rehearing GRANTED.

   Opinion by

Judge DAILEY.

In this personal injury action, plaintiff, Frank Rubio, appeals from the order awarding to defendant, Andrew K. Farris, the actual costs he incurred following an offer of settlement. We vacate the order and remand.

Plaintiff was injured in an automobile accident with defendant on December 3, 1995. Defendant stipulated that his negligence was the sole cause of the accident.

On August 20, 1997, defendant served an offer of settlement on plaintiff, pursuant to § 13 — 17—202(l)(a)(II), C.R.S.2001, in the amount of $35,000, inclusive of costs and interest. Plaintiff did not respond to the offer, and thus it expired by operation of law.

The case proceeded to trial, and the jury returned a verdict in favor of plaintiff in the amount of $23,000.

Defendant then filed a motion for actual costs on the basis that the final judgment was less than the offer of settlement. Plaintiff sought his costs under C.R.C.P. 54(d) and argued that defendant was not entitled to actual costs because the amount of the jury verdict plus preoffer interest and costs incurred by plaintiff exceeded defendant’s settlement offer.

The trial court determined that because plaintiffs judgment, including preoffer interest, did not exceed the offer of settlement, defendant was entitled to his postoffer actual costs in the amount of $672.15. Consequently, the court concluded that plaintiff was not entitled to recover any of his costs. The court then entered judgment in favor of plaintiff on the jury verdict, plus interest, and offset that amount by the award of costs in favor of defendant.

Plaintiff contends that the trial court erred in determining that defendant was entitled to his postoffer costs pursuant to § 13-17-202(l)(a)(II) and in not awarding plaintiff costs as the prevailing party. We conclude that additional proceedings are necessary.

I.

Initially, we reject plaintiffs contention that § 13-17-202 is unconstitutional because it: (1) benefits only defendants, not plaintiffs, in violation of the equal protection guarantees embodied in U.S. Const. Amend. XIV and Colo. Const, art. II, § 25; and (2) infringes upon a plaintiffs right to a recover damages in violation of the right to a “remedy” afforded by Colo. Const, art. II, § 6.

Section 13-17-202(l)(a), provides, in relevant part:

(I) If the plaintiff serves an offer of settlement at any time more than ten days before the commencement of the trial that is rejected by the defendant and the plaintiff recovers a final judgment in excess of the amount offered, then the plaintiff shall be awarded actual costs accruing after the offer of settlement to be paid by the defendant;
(II) If the defendant serves an offer of settlement at any time more than ten days before the commencement of the trial that is rejected by the plaintiff and the plaintiff does not recover a final judgment in excess of the amount offered, then the defendant shall be awarded actual costs accruing after the offer of settlement to be paid by the plaintiff....

The intent of § 13-17-202 is to encourage the settlement of litigation. Centric-Jones Co. v. Hufnagel, 848 P.2d 942, 946-47 (Colo.1993). It imposes upon the party who rejects an offer of settlement, but recovers less than the amount of the offer, all of the postoffer costs of the offeror. Additionally, it modifies § 13-16-104, C.R.S.2001, and C.R.C.P. 54(d) by not allowing the rejecting party who recovers less at trial to recover his or her costs, even though that party is determined to be the prevailing party. Bennett v. Hickman, 992 P.2d 670, 672-73 (Colo.App.1999).

Because § 13-17-202 provides equal opportunity and risk to plaintiffs and defendants alike, it does not violate equal protection principles.

Nor does § 13-17-202 violate Colo. Const, art. II, § 6, which provides that “Courts of justice shall be open to every person, and a speedy remedy afforded to every injury to person, property or character; and right and justice should be administered without sale, denial or delay.” This constitutional provision creates only a procedural right of access to the courts whenever the General Assembly creates a substantive right that accrues under Colorado law. See Alexander v. Industrial Claim Appeals Office, 42 P.3d 46, 49 (Colo.App.2001). Because it does not address the scope or adequacy of substantive remedies, it is not violated by § 13-17-202’s impact on plaintiffs’ recovery of monies. See State v. DeFoor, 824 P.2d 783, 791 (Colo.1992).

II.

Nonetheless, we agree with plaintiff that § 13-17-202 was misapplied in this case. Here, the offer of settlement provided: “Defendant pursuant to C.R.S. § 13-17-202 offers $35,000.00, (Thirty-Five Thousand Dollars and 00/100), to settle all issues in the above matter, which offer includes all costs and interest ” (emphasis added).

In determining whether the judgment obtained by plaintiff is greater than the offer of settlement made by defendant, the judgment and offer must be considered in a like manner. Thus, because the offer included all costs and interest, the judgment must also include these items. Accordingly, the offer of settlement must be compared to the amount of the jury verdict, plus all reasonable costs and interest incurred as of the date of the offer. See Chartier v. Weinland Homes, Inc., 25 P.3d 1279, 1283 (Colo.App.2001).

Here, the record shows that the trial court did not consider plaintiffs preoffer costs in determining whether the judgment obtained by plaintiff exceeded defendant’s offer of settlement. Because the sum of the jury verdict ($23,000), plaintiffs asserted preoffer costs ($9,456.87), and preoffer interest ($3,845.97), is $36,302.79, which exceeds the $35,000 offer of settlement, we conclude that the trial court may have erred in awarding defendant his actual costs. On remand, the trial court must consider plaintiffs asserted preoffer costs, and the reasonableness thereof, in assessing an award of costs.

The order is vacated, and the case is remanded to the trial court with directions to award reasonable costs in conformance with §§ 13-16-104 and 13-17-202, C.R.C.P. 54(d), and the views expressed in this opinion.

Judge NEY and Judge ROY concur.