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                                                      ADVANCE SHEET HEADNOTE
                                                                    June 10, 2019

                                       2019 CO 49

No. 17SC708, Ruybalid v. Bd. of Cty. Comm’rs—Statutory Interpretation—District
Attorney—Attorney’s Fees.

       Francis Ruybalid committed numerous ethical violations arising out of cases that

he either prosecuted or supervised while he was the District Attorney for the Third

Judicial District.   He argues that he is entitled to the attorney’s fees and costs he

incurred while defending these allegations.

       We conclude that because Ruybalid’s ethical violations were at times committed

recklessly or knowingly, his attorney’s fees and costs were not necessarily incurred in

the discharge of his official duties. We therefore hold that Ruybalid is not entitled to

reimbursement for the attorney’s fees and costs that he incurred in defending the

alleged ethical violations.

       Accordingly, the court of appeals’ judgment is affirmed on different grounds.
                     The Supreme Court of the State of Colorado
                     2 East 14th Avenue • Denver, Colorado 80203

                                       2019 CO 49

                          Supreme Court Case No. 17SC708
                        Certiorari to the Colorado Court of Appeals
                         Court of Appeals Case No. 16CA1473

                                       Petitioner:

                            Francisco “Frank” Ruybalid IV,

                                            v.

                                     Respondents:

    Board of County Commissioners of the County of Las Animas County, Colorado;
Anthony Abeyta, member of the Las Animas Board of County Commissioners; Gary D.
    Hill, member of the Las Animas Board of County Commissioners; Mack Louden,
     member of the Las Animas Board of County Commissioners; Board of County
Commissioners of the County of Huerfano County, Colorado; Gerald Cisneros, member
of the Huerfano Board of County Commissioners; Ray Garcia, member of the Huerfano
Board of County Commissioners; and Max Vezanni, member of the Huerfano Board of
                               County Commissioners.

                                  Judgment Affirmed
                                        en banc
                                     June 10, 2019


Attorneys for Petitioner:
Francisco E. Ruybalid
       Trinidad, Colorado

Limited Appearance by Steven Lawrence Jensen
      Golden, Colorado

Attorneys for Respondents Board of County Commissioners of the County of
Huerfano, Gerald Cisneros, Ray Garcia, and Max Vezanni:
Garrett Sheldon
      Walsenburg, Colorado

Attorneys for Respondents Board of County Commissioners of the County of Las
Animas, Anthony Abeyta, Gary D. Hill, and Mack Louden:
Newnam Land LLP
Mary D. Newnam
      Wimberley, Texas




JUSTICE BOATRIGHT delivered the Opinion of the Court.

                                       2
¶1       Francisco Ruybalid was accused of numerous ethical violations arising out of

cases that he either prosecuted or supervised while he was the District Attorney for the

Third Judicial District of Colorado. Ultimately, Ruybalid admitted to 26 violations in

exchange for another 138 alleged violations being dismissed. As a result of initially

contesting the allegations of misconduct, Ruybalid incurred substantial attorney’s fees

and costs during the disciplinary proceeding. The counties of the Third Judicial District

refused to reimburse Ruybalid for these expenses. We must now determine whether

the counties are obligated to reimburse Ruybalid for these attorney’s fees and costs

under section 20-1-303, C.R.S. (2018), which directs a county to reimburse a district

attorney for “expenses necessarily incurred in the discharge of his official duties for the

benefit of [the] county.”1

¶2       We conclude that because Ruybalid’s ethical violations were at times committed

recklessly or knowingly, his attorney’s fees and costs were not necessarily incurred in

the discharge of his official duties. Hence, we hold that Ruybalid is not entitled to




1   We granted certiorari to review the following issues:
         1. Whether the court of appeals erred in upholding the trial court’s
            dismissal of the case for failure to state a claim, based on its conclusion
            that Ruybalid did not plead facts sufficient to show that the expenses
            were incurred in his official duties and for the benefit of the counties.
         2. Whether the court of appeals erred in holding that the “expenses” for
            which a district attorney is entitled to reimbursement by the counties
            of his district, according to section 20-1-303, C.R.S. (2017), cannot
            include attorney’s fees and litigation costs, regardless of the nature of
            the litigation against which the district attorney must defend.

                                               3
reimbursement for the attorney’s fees and costs that he incurred in defending the

disciplinary proceeding against him, and therefore he failed to state a claim for relief in

his original complaint. As a result, we affirm the court of appeals’ decision on different

grounds.

                           I. Facts and Procedural History

¶3     Ruybalid served as District Attorney for the Third Judicial District of Colorado,

which comprises Las Animas and Huerfano Counties (the Counties).                   During

Ruybalid’s term as district attorney, the Office of Attorney Regulation Counsel filed two

disciplinary complaints against him that alleged over 150 ethical violations related to

his failure to provide discovery in cases that he either prosecuted or supervised.

During the ensuing disciplinary proceeding, the Counties refused to assume the cost for

Ruybalid’s defense;2 as a result, Ruybalid hired private counsel.3       The disciplinary

proceeding eventually resolved when Ruybalid entered into a stipulation.           In that

stipulation, Ruybalid admitted that he had failed to provide the required discovery in

eighteen cases. Ultimately, Ruybalid admitted to twenty-six ethical violations: eight

violations of Colo. RPC 1.3 (failure to act diligently and promptly in representing a

client); eight violations of Colo. RPC 8.4(d) (engaging in conduct that is prejudicial to




2 The two complaints were heard in a single disciplinary proceeding that resulted in a
single stipulation. Therefore, we refer to the complaints as the disciplinary case or the
disciplinary proceeding.
3 Prior to the initiation of the disciplinary proceeding, the Counties had obtained
insurance coverage for Ruybalid that led to a $7,000 check being issued to him.

                                            4
the administration of justice); and ten violations of Colo. RPC 5.1(b) (failure to make

reasonable efforts to ensure that subordinate lawyers conform to the Rules of

Professional Conduct). In return, 138 alleged ethical violations were dismissed. For

purposes of determining the appropriate sanction, Ruybalid stipulated that his mental

state varied during each ethical violation from negligent, to reckless, to knowing. As a

result of the stipulation, Ruybalid agreed to pay over $23,000 in costs incurred in the

disciplinary proceeding; he was then suspended from practicing law for six months,

which was stayed pending his successful completion of a twenty-three-month

probation period. In addition to the $23,000 in costs, Ruybalid claims to have accrued

over $200,000 in attorney’s fees.

¶4     After resolving the disciplinary case, Ruybalid filed a complaint in district court

for a declaratory judgment and attached a copy of the stipulation from the disciplinary

proceeding. In the complaint, Ruybalid asserted that the Counties were obligated to

reimburse him for the attorney’s fees and costs that he incurred during the disciplinary

proceeding as well as the costs that he would incur in complying with the terms of his

probation. Ruybalid argued that the fees and costs from the disciplinary proceeding

were “expenses necessarily incurred in the discharge of his official duties for the benefit

of” the Counties under “the DA Expense Statute”—section 20-1-303. Ruybalid pointed

to two other sources of potential authority to support his argument that the Counties

were obligated to reimburse him: section 24-10-110, C.R.S. (2018), of the Colorado

Government Immunity Act (CGIA) and Colorado Counties Casualty & Property Pool v.

Board of County Commissioners, 51 P.3d 1100 (Colo. App. 2002) (holding that a district

                                            5
attorney was entitled to attorney’s fees incurred while defending against a wrongful

discharge lawsuit).4 The Counties moved to dismiss the complaint for failure to state a

claim under C.R.C.P. 12(b)(5).

¶5    The district court granted the motion to dismiss. It first found that Ruybalid’s

actions were disallowed by ethical canons. For this reason, the court concluded that his

conduct did not constitute performance of the official duties of a district attorney, and

thus was not covered by the DA Expense Statute. Additionally, the district court found

that section 24-10-110 of the CGIA did not cover Ruybalid’s attorney’s fees because

there was no injury sustained by a third party—a requirement under the CGIA. Finally,

the court concluded that Colorado Counties was distinguishable because Ruybalid’s

cause of action pertained to defending a claim of an ethical violation, whereas Colorado

Counties pertained to defending against a tort claim.

¶6    The court of appeals affirmed on different grounds. It began its analysis by

applying the American Rule, which provides that absent statutory authority to the

contrary each party is presumed responsible for its own litigation fees and costs.

Ruybalid v. Bd. of Cty. Comm’rs, 2017 COA 113, ¶ 8, __ P.3d __ (citing Buckhannon Bd. &

Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 602–03 (2001);




4 Ruybalid also argued that even if he had no statutory right to attorney’s fees and costs,
he was entitled to such under theories of equitable and promissory estoppel. The
district court and the court of appeals each found that Ruybalid did not have an
equitable claim to attorney’s fees and costs, and we did not grant certiorari on that
issue.

                                            6
Bernhard v. Farmers Ins. Exch., 915 P.2d 1285, 1287 (Colo. 1996)).        Because the DA

Expense Statute did not overcome the American Rule’s presumption, the court of

appeals concluded that the statute could not be read to cover Ruybalid’s attorney’s fees

and costs. Id. at ¶¶ 11–13.

¶7     The court of appeals also differed from the district court in its handling of section

24-10-110 of the CGIA and Colorado Counties. The court of appeals refrained from

applying Colorado Counties because it “did not agree with [the case].” Id. at ¶ 17. And it

concluded that there was “no analytical basis to import the CGIA into [the DA Expense

Statute].” Id.

¶8     We granted certiorari.

                                II. Standard of Review

¶9     We review questions of law de novo. Lucero v. People, 2012 CO 7, ¶ 19, 272 P.3d

1063, 1065.      Whether a statute mandates an award of costs or attorney’s fees is a

question of statutory interpretation that we also review de novo. Crandall v. City of

Denver, 238 P.3d 659, 661 (Colo. 2010).

                                      III. Analysis

¶10    We begin by concluding that the American Rule is inapplicable to Ruybalid’s

case. Next, we examine the elements of the DA Expense Statute and conclude that

because Ruybalid’s ethical violations were at times committed recklessly or knowingly,

his attorney’s fees and costs were not necessarily incurred in the discharge of his official

duties. Hence, we hold that Ruybalid is not entitled to reimbursement for the attorney’s




                                             7
fees and costs that he incurred in defending the disciplinary proceeding against him,

and therefore he failed to state a claim for relief in his complaint.

                      A. The American Rule Is Not Applicable

¶11    As noted, the court of appeals relied on the American Rule—the presumption

that parties pay their own legal fees and costs absent explicit statutory authority

otherwise—to affirm the trial court’s dismissal of Ruybalid’s complaint. Ruybalid, ¶ 8.

In Colorado, the American Rule has typically applied in cases involving a request for

the losing party to pay the attorney’s fees of the prevailing party. See id. That is not the

case here. Rather, Ruybalid is asking for a nonparty to reimburse him for attorney’s

fees and costs incurred during his disciplinary hearing.         We decline to extend the

American Rule to this circumstance. Therefore, we conclude that the American Rule is

inapplicable in this context.

                                B. The DA Expense Statute

¶12    The DA Expense Statute, section 20-1-303, allows for district attorneys to collect

and receive funds from the counties in their district for expenses necessarily incurred in

the discharge of their duties:

       Except as otherwise specifically provided, the district attorney of each
       judicial district in the state of Colorado, and each of his assistants and
       deputies, shall be allowed to collect and receive from each of the counties
       in his district the expenses necessarily incurred in the discharge of his
       official duties for the benefit of such county.

¶13    Broken down, the DA Expense Statute contains three elements that must be met

before the counties that constitute a district must reimburse its district attorney:

(1) there must be fees, (2) that were necessarily incurred in the discharge of the district

                                              8
attorney’s official duties, and (3) for the benefit of the county. See § 20-1-303. Because

this case arises out of a C.R.C.P. 12(b)(5) motion, we accept Ruybalid’s assertion that he

incurred fees for legal services. We therefore turn to the second element: whether

Ruybalid’s fees were necessarily incurred in the discharge of his official duties.

¶14    Ruybalid argues that this element is satisfied because all of the actions that gave

rise to the allegations in the disciplinary proceeding occurred during the course of cases

he either prosecuted or supervised as District Attorney. No one disputes that the

conduct subject to the disciplinary action occurred when Ruybalid was the elected

District Attorney for the Third Judicial District, but that is not the end of the inquiry.

The question remains whether those violations were necessarily incurred in the discharge

of his official duties. We now turn to this question.

¶15    To begin, a district attorney is responsible for enforcing the law, see People v. Dist.

Court, 632 P.2d 1022, 1023 (Colo. 1981) (citing Singer v. United States, 380 U.S. 24, 37

(1965)), and is charged with acting as a zealous advocate and an administrator of justice,

Criminal Justice Standards for the Prosecution Function, Standard 3-1.2(a) (Am. Bar

Ass’n 2018). In this capacity, a district attorney owes a duty to appear on behalf of the

state and any counties in his or her judicial district. § 20-1-102, C.R.S. (2018). But the

duties of a district attorney do not just require appearing in court; rather, a district

attorney must do justice. See Criminal Justice Standards for the Prosecution Function,

Standard 3-1.2(b) (explaining that a prosecutor has a duty “to protect the innocent and

convict the guilty”). Inherent in the pursuit of justice is the obligation to comply with

the Rules of Professional Conduct. See People ex. rel. N.R., 139 P.3d 671, 678 (Colo. 2006)

                                              9
(Bender, J., concurring in part and dissenting in part) (explaining that district attorneys

owe an ethical duty to the judicial process, which includes a duty to comply with the

Rules of Professional Conduct). Additionally, the district attorney must comply with

the Rules of Criminal Procedure. These rules impose an obligation on the district

attorney to provide discovery to the defense in accordance with Crim. P. 16. See People

v. Millitello, 705 P.2d 514, 518–19 (Colo. 1985) (explaining that adherence to Crim. P. 16

“is grounded in the constitutional requirements of due process”).

¶16      Significantly, Ruybalid’s ethical violations arose out of discovery violations and

resulted in fifteen cases being dismissed.5 In other words, Ruybalid’s conduct was so

deficient that the court found that suppression of evidence or dismissal was the

appropriate sanction.6 That is remarkable, because a trial court is required to impose

the least severe sanctions that will assure compliance with discovery orders. People v.

Lee, 18 P.3d 192, 196–97 (Colo. 2001). Under this rationale, the exclusion of evidence or

the dismissal of a case is appropriate when there is willful misconduct or a pattern of

neglect by the prosecutor. See id. The fifteen cases being dismissed as sanctions is

consistent with Ruybalid’s stipulation that many of his ethical violations were

committed recklessly or knowingly. We conclude that costs that arise from recklessly or




5 Fourteen cases were dismissed by the prosecution due to the court’s imposition of a
sanction that suppressed evidence. One case was dismissed by the judge as a sanction
after finding a “severe” discovery violation at a pretrial conference.
6   None of the orders imposing sanctions were appealed.

                                             10
    knowingly engaging in unethical conduct cannot by any standard constitute costs that

    are necessarily incurred in the discharge of a district attorney’s official duties.7

    ¶17    Simply put, Ruybalid was sanctioned for failing to perform his official duties in

    an extraordinarily high number of cases, and he stipulated that in many of these cases

    that he had done so recklessly or knowingly. Hence, we conclude that Ruybalid’s fees

    and costs were not incurred in the discharge of his official duties. Because all three

    elements of the DA Expense Statute must be established for a district attorney to be

    entitled to reimbursement, Ruybalid is not entitled to reimbursement under the DA

    Expense Statute.

    ¶18    Our conclusion today is fact-specific and does not mean that a district attorney

    may never recover attorney’s fees and costs incurred while defending allegations of an

    ethical violation. To the contrary, in many instances the costs associated with defending

    allegations of an ethical violation would meet the three elements of the DA Expense

    Statute, and therefore it would be the responsibility of the counties constituting a

    judicial district to assume the expenses incurred by its district attorney when such an




7 This conclusion is consistent with the holding in Colorado Counties, but Colorado Counties
is not dispositive because it involved a tort claim. 51 P.3d at 1101. Colorado Counties
involved a district attorney who sought indemnification under the DA Expense Statute for
the defense and settlement expenses that he incurred while defending a wrongful
termination lawsuit brought by one of his former employees. Id. The court of appeals
held that the district attorney was entitled to indemnification. Id. at 1102. In reaching this
holding, the Colorado Counties court concluded that the DA Expense Statute extended
beyond the mere day-to-day activities of a district attorney. Id.


                                                  11
event occurs.    This distinction reflects the reality that an allegation of an ethical

violation can be the byproduct of the adversarial system and is thus beyond the control

of the district attorney. In Ruybalid’s case, however, he committed ethical violations

recklessly and knowingly and, therefore, these ethical violations were completely

within his control.8

                   C. Ruybalid Failed to State a Claim for Relief

¶19    Ruybalid argues that because Warne v. Hall, 2016 CO 50, 373 P.3d 588, had not

been decided when he filed his complaint, the lower courts should have allowed him to

file an amended complaint that complied with Warne instead of dismissing his case. In

Warne, this court adopted the “plausible on its face” pleading standard for making a

claim under C.R.C.P. 8(a)(2) as articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), thereby mirroring the U.S. Supreme

Court’s abandonment of the previous “no set of facts” pleading standard. Warne, ¶ 12,

373 P.3d at 592. In adopting the plausibility standard in Warne, we acknowledged that

justice required that Warne be given an opportunity to amend her complaint because

she had no prior notice of the new pleading requirements. Id. at ¶ 29, 373 P.3d at 597

(citing C.R.C.P. 15(a)). Ruybalid argues that he should also be permitted to amend his




8 We recognize that Ruybalid’s stipulation expressed that his mental state during some
of the ethical violations was negligent. However, nowhere is it delineated which of the
ethical violations were committed negligently. Due to the scope and breadth of the
ethical violations in this case, we conclude that the negligent conduct mentioned in the
stipulation does not change our analysis.

                                            12
complaint because Warne was decided over four months after he filed his complaint.

We disagree.

¶20   The justification that permitted Warne to amend her complaint is absent in

Ruybalid’s case. In Warne, we did not conclude that Warne had no legal basis for her

lawsuit. Instead, we concluded that Warne had failed to provide sufficient evidence

that the defendant “improperly” induced a party to breach a contract, an element of her

claim of intentional interference with a contract. Id. at ¶¶ 25–27, 373 P.3d at 595–96.

Here, in contrast, we are concluding that there is no legal basis for Ruybalid to recover

his attorney’s fees and costs. Thus, unlike in Warne, there is no new evidence that

Ruybalid could include in an amended complaint that would satisfy the “plausible on

its face” standard. Therefore, justice does not require that Ruybalid be permitted to file

an amended complaint.

                                    IV. Conclusion

¶21   For the foregoing reasons, we affirm the judgment of the court of appeals.




                                           13
