                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           MAY 25 2004
                                 TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                Clerk


 EDGAR ALLEN STITZEL,

               Plaintiff-Appellant,                       No. 03-1449
          v.                                             (D. Colorado)
 JENNIFER VEIGA,                                     (D.C. No. 03-ES-1503)

               Defendant-Appellee.




                           ORDER AND JUDGMENT *


Before KELLY, BARRETT, and HENRY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See F ED . R. A PP . P. 34(a)(2). The case is therefore ordered submitted

without oral argument.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10 TH C IR . R. 36.3.
      Edgar Allen Stitzel filed a pro se “Complaint Pursuant to C.R.C.P.

[Colorado Rules of Civil Procedure] Rule 106(a)(3)” in the District of Colorado,

alleging that Jennifer Veiga, who is both an attorney and a member of the

Colorado Legislature, violated the Constitution of Colorado by serving as attorney

for the defendant in another civil action filed by Mr. Stitzel. The district court

dismissed the complaint for lack of subject matter jurisdiction pursuant to F ED . R.

C IV . P. 12(h)(3). Mr. Stitzel now appeals. He has also filed a motion to proceed

in this court without prepayment of costs. We exercise jurisdiction pursuant to 28

U.S.C. § 1291 and affirm.

      Mr. Stitzel seeks relief for a violation of Article 3 of the Colorado

Constitution, which provides

      [t]he powers of the government of this state are divided into three
      distinct departments,–the legislative, executive and judicial; and no
      person or collection of persons charged with the exercise of powers
      properly belonging to one of these departments shall exercise any power
      properly belonging to either of the others, except as in this constitution
      expressly directed or permitted.

C OLO . C ONST . art. III. He alleges that Ms. Veiga violated Article III “by mixing

the powers of the legislative branch, with the judiciary powers,” Aplt’s Br. at 2,

and asserts jurisdiction pursuant to Rule 106(a)(3) of the Colorado Rules of Civil

Procedure. Because he has not alleged a violation of the United States

Constitution or a federal statute, Mr. Stitzel has failed to state a federal question

under 28 U.S.C. § 1331, nor has he provided an alternative basis for federal

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jurisdiction. We therefore hold that the district court properly concluded that it

lacked jurisdiction to consider Mr. Stitzel’s claim.

      Accordingly, and for substantially the same reasons as the district court, we

AFFIRM the dismissal of Mr. Stitzel’s complaint. We GRANT Mr. Stitzel’s

motion to proceed without prepayment of costs and remind Mr. Stitzel that he is

obligated to continue making partial payments until the fee has been paid in full.



                                 Entered for the Court,



                                 Robert H. Henry
                                 Circuit Judge




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