President (To Win Colorado)
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(D) Kamala Harris
(R) Donald Trump
80%↑
20%
CO-01 (Denver)
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(D) Diana DeGette*
(R) V. Archuleta
98%
2%
CO-02 (Boulder-ish)
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(D) Joe Neguse*
(R) Marshall Dawson
95%
5%
CO-03 (West & Southern CO)
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(R) Jeff Hurd
(D) Adam Frisch
52%↑
48%
CO-04 (Northeast-ish Colorado)
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(R) Lauren Boebert
(D) Trisha Calvarese
90%
10%
CO-05 (Colorado Springs)
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(R) Jeff Crank
(D) River Gassen
80%
20%
CO-06 (Aurora)
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(D) Jason Crow*
(R) John Fabbricatore
90%
10%
CO-07 (Jefferson County)
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(D) B. Pettersen
(R) Sergei Matveyuk
90%
10%
CO-08 (Northern Colo.)
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(D) Yadira Caraveo
(R) Gabe Evans
60%
40%
State Senate Majority
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DEMOCRATS
REPUBLICANS
80%
20%
State House Majority
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DEMOCRATS
REPUBLICANS
95%
5%
May 06, 2007 05:02 PM UTC
38 Comments
Assuming he wins re-election as DA in ’08, he wouldn’t have to give up his seat to run for AG. But, I think he and Suthers are friends (at least, at one time they were), so he may not run if Suthers runs again.
He’ll get more (and better) press as Denver DA than as AG.
Lester, in that he will not run for AG. I still believe that he will run for Mayor in 2011, when Hick doesn’t run for a third term.
Mitch will turn out to be a much better DA than his predecessors and that will parlay into success at whatever he wants to do as a Dem.
He is really fed up with LaCabe. He has tried to do the right thing (being cooperative) and has been hung out to dry by the Hickenlooper Administration and LaCabe.
You didn’t see Hick out there supporting 1A in the May election as he has with everything else. Moreover, the gang taskforce thing is still a real sore point. Everyone makes nice in public but the reality is Hick is not supportive of Mitch’s endeavors.
Mitch in 2011 whether Hick runs again or not.
Morrissey seems to be a stand up guy. My girlfriend knows his family from Kent and really likes the guy. I’m more partisan and hope he runs for mayor so that he’ll be stigmatized by being a “big city liberal”. My two issues are education and crime, so if he gets the gang problem under control I could change my mind a support the guy (even if he is a Dem).
Is it a well-known fact that Hick isn’t running for re-election in 2011? Did I miss something? Unless Hick really messes up (and gets pounded in the polling), I don’t see how Morrissey wins against Hick if Hick runs again.
Laws or ordinances unobserved, or partially attended
to, had better never have been made.
— George Washington, 1787
If you are ever unfortunate enough to be the victim of a crime committed by public officials, you can count on Mitch to look the other way — because he is a partisan whore par excellence. Our public officials act as if they are above the law … because, under the Morrissey Administration, they are; the rest of us poor schmucks have to pay our parking tickets. The evidence speaks for itself:
====================================================
DDA: A Diseased Organism?
(Re: People v. Bender, et al. and my C.R.S. В§ 16-5-209 filing)
Dear Mr. Morrissey:
You don’t always need DNA to solve a crime. [Morrissey is bullish on the use of DNA.] Sometimes, all you need is honor, integrity, and professionalism. And a legal education from the University of Denver shouldn’t hurt. Now, it seems to me that
* When other judges are authorized by law to hear a case, and a judge decides that case in her own favor as a defendant, she is “acting with intent to benefit” herself;
* The issuance of a court decision is “an act relating to [a judge’s] office,” and
* When a state judge defies the law as established by the United States Supreme Court, it is by definition an “unauthorized exercise of her official function.”
Where every fact required for a conviction is an indelible part of the public record, and knowledge is established by the suspects’ own published statements, you would expect a competent district attorney to prosecute a case of first-degree official misconduct under C.R.S. В§ 18-8-404 without even the slightest prodding. Yet, your office has, owing to a combination of flagrant dishonesty and deliberate foot-dragging, forced me to file for relief under C.R.S. В§ 16-5-209.
As you know, that statute entitles me to hale you into court for an hour and cross-examine you, and I should very much like an explanation as to why your office considers our high and mighty public officials to be beyond the reach of Colorado criminal law, while the rest of us have to pay our traffic tickets. But while I am looking forward to that confrontation should it become necessary, I would prefer to preserve valuable court time. Accordingly, I ask that you commit to filing an information in the matter of People v. Bender, et al., so that the need for a formal hearing will no longer exist.
Thank you for your prompt and diligent attention to this matter.
(Source: http://home.earthlin…
http://home.earthlin…)
======================================================
Keep in mind that Republican DA Carol Chambers is under investigation by the state bar for the same kind of nekkid favor-trading. If Mitch Morrissey was a Republican, they’d be all over him like white on rice, and he wouldn’t keep his license long enough to move on to higher office.
What does your post have to do with Mitch Morrissey?
What is the job of a district attorney, if not to prosecute crimes? I presented competent evidence that Mitch Morrissey willfully refused to prosecute a crime punishable by up to a year in jail, on the grounds that public officials from his own Party committed them. Each and every salient element of the crime is proven conclusively by statements contained on the public record … but yet, Morrissey looked the other way.
Do you think it morally wrong for Attorney General Gonzales to fire assistants like Carol Lam for prosecuting the cronies of Randy “Duke” Cunningham (R-CA)? A yes or no answer would do here, CAR31. If you find such antics morally repugnant and even outrageous when a national Republican does it, why should it be any different when a local Democrat does it?
If I’m not mistaken, rio was denied admission to the Colorado bar and has been has been busily filing lawsuits against various participants in the Colorado judicial system ever since. As for his allegation that the justices on the Colorado Supreme Court committed a crime by denying one of his appeals, well, the fact that rio persists in making the allegation confirms the sound judgment of the Board of Bar Examiners. As for Morrissey, apparently his failure to buy into rio’s inane theories makes him a criminal as well.
or is he some other nutjob?
judging from his links. But then, you’re just calling him a nutjob because you’re an amoral, cocaine-snorting attorney who can’t handle the truth. Or something like that.
Wow….Kenneth Smith is a celebrity of sorts. Now I feel honored to have engaged messages with such an infamous ax-grinder.
Rather than succumb to the seductive temptation of stooping to your level of ad hominem argumentation, I will challenge you to defend your ill-advised comments.
SCOTUS has held that it “certainly violates the Fourteenth Amendment … to subject [a man’s] liberty or property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case.” Tumey v. Ohio, 273 U.S. 510, 523 (1927). Kindly do correct me if I am mistaken, but didn’t the Justices of the Colorado Supreme Court swear an oath to UPHOLD the United States Constitution? See, Colo. Const. art. XII, sec. 8.
As Justice Bender admits himself, “[t]he Due Process Clause of the Constitution safeguards the right to impartial judges and requires recusal of judges who are or who appear to be biased.” People v. Julien, 47 P.3d 1194, 1202 (Colo. 2002) (Bender, J., dissenting; citations omitted). The Justices can’t hear an appeal in which they are defendants without violating the Fourteenth Amendment, as the judges of the Colorado Court of Appeals are specifically authorized by law to sit in their stead. C.R.S. В§ 13-4-101. Judges are further required by statute to recuse themselves on their own motion in case of conflicts. C.R.S. В§ 16-6-201(2). And just in case the reason isn’t patently obvious, the Colorado Supreme Court explains why:
People ex rel. Burke v. District Court, 60 Colo. 1, 4, 152 P. 149 (1915).
Add that to the fact that the appeal should have been heard in the Court of Appeals, as dictated by C.R.S. В§ 13-4-102(1) (which states, in pertinent part: “Any provision of law to the contrary notwithstanding, the court of appeals shall have initial jurisdiction over appeals from final judgments of the district courts.”), and the lawyers in our audience will grasp the problem instantly: The Justices presumed to decide a matter without personal or subject-matter jurisdiction. A judge who acts without jurisdiction has no more legal authority to act than our Cuervo.
This may seem trivial to the legally uninitiated, but these little niceties are essential to preservation of the rule of law. Confronting the scourge of McCarthyism, Justice Douglas wrote, “[i]t is not without significance that most of the provisions of the Bill of Rights are procedural. It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law.” Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 179 (1951) (Douglas, J., concurring). Lord Chief Justice Goddard adds, “Time and again this court has said that justice must not only be done but must manifestly be seen to be done. . . .” Rex v. Justices of Bodmin, (1947) 1 K. B. 321, 325.
Here you have our problem, Brio: The judges of our state’s highest court have knowingly acted completely outside the bounds of their legal authority. Is it wrong to complain about this, and if so, why?
You seem to be complaining about the fact that the Colorado Supreme Court issued an opinion in a case in which you sued each of the justices themselves. You appear to claim that the Colorado Supreme Court’s deciding the appeal of a case, which you filed in COLORADO district court, was….wait for it…a crime, because they were named defendants. And then you lambast the DA for not filing criminal charges.
Some excerpts from the Colorado Supreme Court’s decision in your lawsuit against that court, filed in Denver District Court:
“This matter is before the court on appeal from the Denver District Court. The district court dismissed the case due to lack of subject matter jurisdiction on April 9, 2004. This appeal was originally filed with the Colorado Court of Appeals. That court filed a request for determination of jurisdiction with the supreme court, and on August 18, 2005, the supreme court assumed jurisdiction over the appeal due to the nature of the issues raised. In this per curiam order, the supreme court[*fn1] now affirms the district court’s order of April 9, 2004 dismissing the case due to lack of subject matter jurisdiction.
. . .
FN 1: The court is the defendant in this action. By operation of the Rule of Necessity, Canon 3 F., if all or a majority of the court has a conflict, the court must nonetheless hear the case.
. . .
[14] Appellant, Kenneth Smith, was awarded a Juris Doctor degree from the University of Denver College of Law in 1995. He applied for admission to the Colorado Bar in January of 1996. Pursuant to C.R.C.P. 201.7 and 201.9, the executive director of the Board of Law Examiners recommended that an inquiry panel be convened to determine questions of Mr. Smith’s mental, moral and ethical qualifications for admission to the Bar. The inquiry panel conducted proceedings and ultimately concluded that probable cause existed to believe that Mr. Smith lacked mental stability, and hence recommended that his admission to the Bar be denied.
. . .
Mr. Smith’s qualifications for admission were at issue after the inquiry panel found that Mr. Smith previously had abused the legal system and exhibited a lack of candor. The Board of Law Examiners adhered to the Rules Governing Admission to the Bar and ultimately recommended that Mr. Smith’s application be denied. The supreme court adopted that recommendation and on January 13, 2000, issued an order denying Mr. Smith’s application to the Bar. After the supreme court denied Mr. Smith’s application to the Colorado Bar, his path of review was to seek certiorari in the United States Supreme Court. He did not take that path. The Colorado Supreme Court’s order denying admission therefore became final when the time for filing a petition for writ of certiorari expired. Although Mr. Smith attempted to challenge that order in Denver District Court, it was already final and no longer subject to review.
[28] Accordingly, the Denver District Court was correct in dismissing the action for lack of subject matter jurisdiction and the court therefore affirms.”
*********************************
Back to me (Cuervo). To summarize,
(1) you filed this case in Colorado district court, then you took an appeal to the Colorado Court of Appeals, and then you inexplicably claim that the Colorado Supreme Court has no “personal jurisdiction” or “subject matter jurisdiction” over the APPEAL of your case. The statutes and constitution cited by the court clearly refute your irrational claim.
(2) the participation of each justice of the Colorado Supreme Court was proper under the rule of necessity; despite your obvious attempt to disqualify them from your case by naming them as defendants.
(3) the Colorado Supreme Court affirmed the district court’s opinion that the lower court did not have subject matter jurisdiction over your case because your claim was nothing more than griping about having been denied admission to the bar. And you blew your chance to appeal that initial decision to the US Supreme Court.
(4) you are upset that you were denied addmission to the bar because the board of law examiners found you MENTALLY UNSTABLE.
and
(5) you were denied addmission to the bar because the board of law examiners found you MENTALLY UNSTABLE.
What a fine example of the Knowyourcourts crowd you are!
wow, it’s difficult to put together these long posts without typos…I don’t know how the anti-court-mob does it all the time.
I haven’t analyzed Smith’s case carefully as, apparently, you have but, the way it was explained to me, a provision in the Colo. Constitution or statute allows for substitution of the S.Ct.’s justices with Colo. Appeals Court judges in odd circumstances, such as these. The question is, why did the S.Ct. do a power grab like this, in the first place (i.e., they sua sponte took over the case from the CoA)?
Second point is that, while the Board found reasonable cause to question his mental fitness because of his tenacity or persistence in exposing Bob Larson (and, to be honest, I’m not sure why that’s an indicator of instability), the real issue was that he didn’t go take the psychExam using their doctor but, at his expense.
If I’m not mistaken, I think the crux of his “campaign” has been to reveal that legal system does what it wants to do and applies the law selectively (disparately), which he claims is what’s happened in his case. An example of that has been his insistence that the policy of unpublished opinions (see http://www.nonPublication.com) and intellectual dishonesty from the bench (chronicled by myriad law review treatises, mostly by law professors, who don’t have to practice, like Reddish & Freedman).
Even if he’s gone too far with this particular issue (like asking the D.A. to break new ground by prosecuting a “crime” of this sort against S.Ct. judges), his arguments that our legal system is substantially specious are not all without merit.
After all, we look back today at our gov’t only 50 or 100 or 150 years ago and are appalled at certain atrocities that happened (including some that happened right here in Colorado with the aid of our Governor). To think that we won’t look back at today 30 or 50 or 70 years from now and be appalled at certain injustices (racial profiling, Denver SpyFiles, police brutality, fostering of parental alienation, federal $-drive child support incentives, whatever) seems unlikely. To suggest that there’s little or nothing wrong with our legal system today or that it’s works pretty well (or that the so-called “court bashers” have no valid arguments; they’re just disgruntled losers) is being disingenuous.
Regarding your question, the Colorado Constitution does not provide for the use of Court of Appeals judges as Colorado Supreme Court justices (or for any other purpose). In fact, the Colorado Constitution does not even mandate the existence of a Colorado Court of Appeals, and there was no such court for many years.
A Colorado statute does expressly authorize the Chief Justice of the Supreme Court to appoint retires justices/judges for temporary purposes, but only as provided by the Constitution. In any event, the Constitution vests final power over the regulation of attorneys with the Colorado Supreme Court alone. And that is why the Colorado Court of Appeals REQUESTED that the Supeme Court take over the Smith case. Thus, your claim that the Supreme Court took over the case sua sponte is false.
Furthermore, Smith’s naming the Colorado Supreme Court as a defendant was clearly a ploy to disqualify that court from his case. The court should not let irrational litigants manipulate the judicial system in that way. Remember, the Smith case was nothing more than a complaint that he was denied admission to the bar….an issue that lies squarely within the purview of the Colo. Supreme Court (and over which the Court of Appeals has no say). Note also that Smith failed to take his permitted appeal of that initial decision (raising his strange federal constitutional issues) to the US Supreme Court. After failing to take advantage of his opportunity, Smith, like many disgruntled litigants, blames everyone else for his faults…including of course the mean’ol courts.
And, it’s perfectly proper and necessary to require an applicant for the bar (an applicant for the privilege, not the right, of practing law) to submit to a mental examination when his stablity is under reasonable question (and, as riogrande’s posts, court filings, and website ramblings make clear, such questions were quite reasonable). To require him to pay for the examination makes sense too. The judicial department has a very limited budget…and I don’t see people like Smith or you clamoring to increase that budget significantly.
Finally, you should be seriously concerned about the credibility and health of your anti-courts cause when Kenneth Smith is your poster child, whom you rush to defend. His rantings lay bare the petty vengeance and downright nuttiness that lies at the heart of it all. Of course, the courts and the legal system can be and should be improved. They are not perfect, by any means. But the Kenneth Smiths of the world, through their wild-eyed attacks, detract from the cause rather than further it.
If you are truly interested in the courts, you should disclaim Kenneth Claim not defend him.
. . . answer your reply as to the facts of his case but, I appreciate you taking the time to write out your reasoning. For the record, I do think that the budgets of the courts need to be increased and, as a provider of technology services to the legal community, I’m in a good position to recognize that need.
If you’ll indulge me for another couple of minutes, I’ll give you different and good cause why I’m “disappointed” with our legal ethics double-standard system:
Seven years ago, my then-wife, Christy Ryan, was working for the Jefferson Center for Mental Health (JCMH). She filed for divorce in JeffCo. Soon thereafter, an entire SWAT team of cops came and hauled me away to the state mental hospital (CMHIFL). Why? I later learned that she had been talking to the local cops, prepping them for weeks at how allegedly dangerous I was. Although I was suffereing from depression at that time (and seeking help for it), the whole fiasco was all part of her plan and that of her attorney, Madeline Wilson, to get sole custody of my daughter and get all the property, while I was locked away in a mental hospital trying to prove my sanity (an impossible feat, if they’ve been predisposed to think you’re a plotting maniac –anything you can think of to say or do can be twisted to confirm their conclusion). Rather than take me to a normal psych hospital for an eval through Kaiser (my insurance), which would result in a one-week stay max., my ex-wife funneled her diagnostic reports of me through her boss (Tom Olbrich), clinical director of JCMH, which became an “official” medical referral, even though I had never been treated at the JCMH and had never authorized any release of records. Her employer, JCMH, requested that I be taken to the state mental hospital, instead, to a “more secure facility.”
During this stay, both the ex-wife and her attorney, Madeline Wilson, made numerous trips, phone calls and faxes to the hospital staff, replete with absolute lies (that I had threatened to kill my co-workers; that I had threatened to kill her co-workers; that I had threatened to kill the divorce judge; that I had a “cache of weapons”; that I had the mother’s attorney’s home address and that she was in fear of her life; that I had a history of carrying guns and knives; that I had “smeared blood and feces” on the walls of our home; that I had brandished a gun at someone; that I was using illegal drugs; that I had an alcohol problem; etc; etc.). They took out a “duty-to-warn” and added three people to it –guess who? The ex-wife; the ex-wife’s attorney; and Judge Sciullo-Tidball. The plan worked –they kept me there for three months, the max. period allowed under law. I was the only “high functioning” patient there –my fellow “patients” all had violent histories (pedophiles, murderers, etc.) except me. Although none of their allegations have *ever* seen the light of day in a courtroom (part of the problem, here), during the three months, these allegations “seemed” to become part of the record, as `though they were undisputed facts. Nevertheless, a handful of hospital staff (four) came forward, expressed to me that I clearly did not belong there and had been railroaded and that they would be available for me as witnesses if I decided to sue. Some of their comments and thoughts did make it into the official record, `though one has to look hard for them. By the time I got out (three months later in Sept. of 2000), my house had been sold, Madeline had collected on my share at the closing, all my possessions had been hauled away in a rent-a-dumpter by my ex-wife, I was disallowed from seeing my daughter, I had a growing child support debt of $4K @ $833 a month and was basically homeless.
Despite the fact that I have not lived in Colorado now since December of 2000, my ex-wife’s attorney, Madeline Wilson of Denver, not only has offered substantial aid and encouragement in concealing my daughter from me (upon information and belief), but she has filed not less than FIVE restraining orders against me, the most recent being in the summer of ’05. Her affidavits in support of these restraining orders are substantially false –e.g., claiming that I’ve threatened her life; that I’ve threatened the lives of her child[ren]; that I’ve stalked her or followed her receptionist into her office; that I attempted to assault her in court, that I’m potentially homicidal, etc., etc., etc. In fact, when I went down to Texas just last week to sue my ex-wife, where we’ve located mother and my daughter, Madeline tried to have me served with a contempt citation! When that failed, she asked mom’s Texas attorney to put me up on the stand to give my home address, so that I could be served there. This is SEVEN years later. Who is mentally unstable –the practicing attorney or me, who only wants to see his daughter and hold certain individuals accountable for their allegedly improper actions? If Smith can’t have a law license, why does this apparently paranoid, deranged woman have one?
My problem with the legal system, and omitting my feelings about the particular judge for good reason, is that, every time I caught Madeline lying (often proved through the affidavits of disinterested third parties), attempting to influence a public servant (the State mental hospital psychiatrist or recipient-judge of her restraining order affidavits), falsifying affidavits to further her personal vendetta or violating the Rules of Professional Conduct in ways too numerous to mention here, our Attorney Deregulation Council, which claims to hold attorneys to high standard and to prosecute dishonest attorneys, told me to f*ck off. Not only did the tell me to f*ck off, they told me that I if I didn’t shut up and go away, they’ll come and prosecute me, instead.
I don’t know Mitch Morrisey and he doesn’t know me but, I’m almost as disgusted with his office, too: After they prosecuted Sanford Shupper for three crimes (attempt to influence a public servant, perjury, and filing a false instrument –see http://tinyurl.com/3…) for the mere act of being less-than-truthful on his application for a public offender, I went to them with all my evidence and asked them to go after Madeline Wilson for filing a false police report, attempt to influence a public servant and perjury. They politely told me to go away. Apparently, there really is a different standard for attorneys, unless you’re Carol Chambers and get caught in the news media.
All of this hardly-credible story hereinabove is supported by the record on the KnowYourCOURTS site but I you expect anyone to have the time or inclination to want to go read that –so, hopefully, if you got through reading this far, you simply choose to believe me.
Note that I don’t contribute on ColoradoPols to whine about my story. At this point, it seems fitting to explain (in a personal way) why I believe what I believe. My contributions here –I believe– are aimed more at the common good, by trying to raise awareness of real issues that are affecting real lives and, which are much bigger than me or my drama.
I’ll respond in detail below in a bit.
As a member of the public, I have an interest in the public’s being protected from mentally unstable people like you who want to practice law. Thank goodness that you have been denied a law license. Every insane post you spew gives further evidence of the wisdom of that decision.
Feel free to post below “in detail” (as if you could ever spare a “detail,” no matter how false). I’m done with this thread.
by all means, knock yourself out; I care not a whit. As I know that there are intelligent and well-informed people out there, I will continue to speak truth to power, and work for the reform of our courts. You only hurt yourself with your puerile antics.
Cuervo, I take no part in your dispute with Rio and your personal thoughts on the merits or motives of his actions but, you did use some choice words when you described yourself as a, “member of the public,” deserving to be “protected from . . .”
Alec Rothrock, in his recent article, Attorney Discipline and Disability Process and Procedure – Part I (http://www.knowyourc…), wrote that, “The primary purpose for disciplining lawyers it to `protect the public, not to punish the offending lawyer.'” 36 Colo.Law. 2 at p. 3 (citing In re Cardwell, 50 P.3d 897, 904 (Colo. 2002)). Like you, I am also a member of the pubic (no duh) and, just as you expect the Board of Bar examiners to protect you from granting licenses to persons not fit to practice, I expect the OARC to protect me from practicing attorneys, who violate the Rules of Professional Conduct. I also expect the Commission of Judicial Discipline not to thumb it’s nose at the Generaly Assembly and to enforce the Judicial Canons in this state. When it doesn’t, I’m only going to write so many “silly memos” before I start taking the discussion into the public forum.
Obviously, not everyone wants to hear about it but, judging from the increased number of Web site hits from judicial.co.state.us and numerous law firms, I’d say that someone is paying attention.
Cuervo –how odd that, one day after you and Rio were arguing over the facts of Smith’s case[s], the Tenth Circuit just issued an opinion in his case, specifically addressing the alleged finding of mental instability. The Court wrote, “Mr. Smith graduated from law school, passed the state bar examination, and passed the professional ethics examination, all prerequisites to obtaining a license
to practice law in Colorado. When he was ordered to submit to a mental status examination by the Board of Law Examiners’ Hearing Panel, however, he refused. Primarily because Mr. Smith refused to submit to that examination, the Hearing Panel recommended to the Colorado Supreme Court that his application be denied.” The opinion is found here: http://www.ca10.usco…
KIDDING! I’m not a judge on any court (nor am I even a gov’t employee).
Notice that the 10th Circuit judges decided this case even though that court was a named defendant. Just like the Colorado Supreme Court did. So, by Kenneth Smith’s (riogrande’s) “reasoning,” the 10th Circuit judges have committed a crime and are therefore criminals. And if any prosecutor fails to prosecute these judges, that prosecutor is a “political whore” (ala the Denver DA).
I continue to advise you to be very careful with whom you associate. You could wake up with fleas.
Having been snorting, er, working late, I will add but one point to Cuervo’s message. Before you allege that the rule of necessity was concocted by Colorado’s justices in that cauldron of theirs, it bears mentioning the doctrine first appeared in a published decision in an English case dated 1430, and has much more recently been officially incorporated into the ABA’s model code of judicial conduct. I expect that had you found any case law holding that the rule of necessity was secretly abrogated by the 14th Amendment, you might have found success in at least one of the various legal proceedings you initiated. Not that I’m qualified in life counseling or anything (after all, I, too, voluntarily decided to enroll in a law school), but I think it’s time to LET IT GO.
is what the Rule actually is, as opposed to the Colorado Supremes’ shameless bastardization of it. It will, however, require a separate thread, on account of the fact that the nesting here makes fifth-generation posts impossible to read coherently. See below in a few minutes.
Under Colorado law, once a judge is obligated to recuse himself, he immediately loses all jurisdiction in the matter except to transfer the case. Erbaugh v. People, 140 P. 188, 190 (Colo. 1914)). Likewise, a judgment rendered in the face of a jurisdictional defect is void as a matter of law. Davidson Chevrolet v. City and County of Denver, 330 P.2d 1116 (Colo. 1958). As such, the `judgment’ issued by the Colorado Supreme Court in the case is void, unless it falls within the ambit of a constitutionally recognized exception to the rule.
The only exception to the iron-clad rule that a judge may not hear a case in which he has a direct personal financial interest is the “Rule of Necessity,” empowering a judge to hear a case when the “`failure to do so would result in a denial of a litigant’s constitutional right to have a question, properly presented to such court, adjudicated.'” United States v. Will, 449 U.S. 200, 214 (1980) (internal quotation omitted). While not explicitly addressing application of the Rule, the Will Court outlined its well-known contours:
Will, 449 U.S. at 214 (quotation omitted).
Judges of the Colorado Court of Appeals may “serve in any state court with full authority as provided by law, when called upon to do so by the chief justice of the supreme court,” C.R.S. В§ 13-4-101. And in Colorado, “any state court” apparently means “any state court.” See, e.g., Carlson v. Ferris, 85 P.3d 504, 508 (Colo. 2003). Since eighteen judges who are independent with respect to this matter could have heard the appeal in accordance with Colorado law, no “necessity” existed, and as such, the Colorado Supreme Court’s action in this case violates the Due Process Clause. (Besides, retired state supreme court justices like Quinn and Kirshbaum still hear cases on a contract basis.)
How This Becomes a Criminal Matter:
But even if the Court could secure jurisdiction, that does not translate into an unfettered license to write the law under the fraudulent guise of interpreting it. Hence, you still have a criminal violation of federal civil rights law as a result of the decision it rendered.
In the very year that Colorado became a state, SCOTUS established conclusively that state courts had jurisdiction to decide federal claims properly brought before them, stating that “rights, whether legal or equitable, acquired under the laws of the United States, may be prosecuted in the United States courts or in the State courts, competent to decide rights of the like character and class.” Claflin v. Houseman, 93 U.S. 130, 136-37 (1876). While SCOTUS has never compelled a state to create a forum in which valid federal claims must be heard, Howlett v. Rose, 496 U.S. 356, 371 (1990), the existence of jurisdiction “creates an implication of duty to exercise it.” Mondou v. New York, N.H. & H.R. Co., 223 U.S. 1, 58 (1912). Accordingly, the only open question is whether a Colorado district court is `competent’ to hear a federal civil rights claim.
The Colorado constitution explicitly designated its state district courts as courts of general jurisdiction:
Colo. Const. art. 9, В§ 1.
By stark contrast, “[t]he [Colorado] supreme court, except as otherwise provided in this constitution, shall have appellate jurisdiction only.” Colo. Const. art. 6, В§ 2(1). It has no other judicial powers, and cannot expand its own jurisdiction by rule of court. People ex rel. City of Aurora v. Smith, supra. Further, “[i]t is likewise clear from these provisions that the jurisdiction of both courts being created by the Constitution, the jurisdiction of each was necessarily excluded from the other.” Friesen v. People ex rel. Fletcher, 192 P.2d 430, 432 (Colo. 1948). Accordingly, the claim must either be heard by a state district court or the state’s supreme court.
Article VI, Section 9 of the Colorado Constitution “confers general jurisdiction upon [its] district courts, with original jurisdiction in all civil, probate, and criminal cases. This jurisdiction extends to cases involving federal rights, even when there is no governing Colorado authority.” Telluride Co. v. Varley, 934 P.2d 888, 890 (Colo. App. 1997) (citation omitted). In fact, Colorado district courts hear federal civil rights claims on a routine basis. See, e.g., Boulder Valley Sch. Dist. R-02 v. Price, 805 P.2d 1085 (Colo. 1991). As such, the civil rights claims must be heard in a state district court, and the decision below constitutes plain error. See, Howlett, 496 U.S. at 375-81.
Second, it must be restated that the Colorado Supreme Court purported to decide an initial appeal of a state district court judgment. Proper appellate jurisdiction over the appeal lies with the Court of Appeals pursuant to C.R.S. В§ 13-4-102(1), which states in pertinent part: “Any provision of law to the contrary notwithstanding, the court of appeals shall have initial jurisdiction over appeals from final judgments of the district courts.” There are no grey areas, and the Colorado Supreme Court may not expand its own jurisdiction by rule of court. People ex rel. City of Aurora v. Smith, 424 P.2d 772 (Colo. 1967). Accordingly, what the Colorado Supreme Court attempted to do in this case is void ab initio. People v. District Court, 560 P.2d 828 (Colo. 1977); In re Marriage of Stroud, 631 P.2d 168, 170 (Colo. 1981) (“[A] court must have jurisdiction over the parties and the subject matter of the issue to be decided if its judgment is to be valid.”).
The framers of the state constitution went to great pains to limit the power of its supreme court. Article III was intended to prohibit the Court from writing laws under the guise of interpreting them. E.g., McCroskey v. Gustafson, 638 P.2d 51 (Colo. 1981). Article VI, sec. 2 severely and strictly limited the Court’s jurisdiction, which it could not expand on its own. People ex rel. City of Aurora v. Smith, 424 P.2d 772 (Colo. 1967); Bill Dreiling Motor Co. v. Court of Appeals, 468 P.2d 37 (Colo. 1970). What’s more, even the General Assembly was prohibited from expanding its jurisdiction via legislation. People v. Carter, 527 P.2d 875 (Colo. 1974). Our courts were to be tightly controlled … but by force of will (and the general government’s neglect), the Mullarkey Court has liberated itself from the corset of our Constitution. They have ceased to be judges, and servants of the law. They have become tyrants, placing themselves above the law.
Now, you get to the analysis of first-degree official misconduct. You have judges taking control of a case that they have no legal right to hear, and deciding it in a way in direct and irreconcilable conflict with SCOTUS precedent which the Court even acknowledges is controlling, for their own personal benefit. Every element of the crime has been established by the Justices’ own public admissions, and if the law is to mean anything, the Justices are by necessity guilty of the crime. Q.E.D.
With all respect, Gentlemen, you have but a BAR-BRI-level understanding of the topic — which is understandable, because no one learns this in law school.
The fact that Brio presents himself as a lawyer simplifies my job considerably, as certain key concepts will be common currency. Foremost among them is a presumed understanding of that bastard child of American law euphemistically known as the unpublished opinion, and how this practice has turned our courts into de facto star-chambers (I trust that I won’t have to explain the procedural evils of these Tudor courts). Further, it is scarcely possible for any capable student to escape law school without encountering Karl Llewellyn.
Judicial misconduct is like a bear in the woods: while you might not always see him, when you find his paw-print in the mud, you know he’s out there. While few litigants can ever expect to see a wad of bills being slipped under a robe, or the kind of judicial “favor-trading” recently described by Professor Dershowitz, Alan M. Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000 (New York: Oxford U. Press, 2001), p. 116, the paw-prints — irrational decisions, in irreconcilable conflict with precedent — are often obvious. Professor Llewellyn bluntly observed that dishonest judges routinely engage in
Karl Llewellyn, The Common Law Tradition: Deciding Appeals (1960) at 133.
When our judges cook the books, the stench is truly unmistakable. As Llewellyn remarked, “[s]uch action leaves the particular point moderately clear: the court has wanted [the result] badly enough to lie to get it.” Id. at 135 (emphasis added).
Fact is, judges lie all the time in their opinions. As Professor Monroe Freedman, one of the nation’s leading scholars on judicial ethics, observed in a speech to appellate judges:
Anthony D’Amato, The Ultimate Injustice: When a Court Misstates the Facts, 11 Cardozo L.R. 1313, 1345 (1990), available at http://anthonydamato…. (reproducing Freedman quote).
Judges are not rational beings; they are rationalizing ones. Many a meritorious claim is buried under a thin veneer of superficial analysis, and many a fact is misrepresented by judges who know that the true facts are almost never to be revealed. Like Saddam Hussein before them, they abuse the rights of the people because they can.
Cuervo’s statement (“you are upset that you were denied addmission to the bar because the board of law examiners found you MENTALLY UNSTABLE.”) is false and quite obviously so; what he missed in his superficial analysis is that what the Bar calls “probable cause” is “any evidence which, in the judgment of the majority of the inquiry panel members, tends to show that the applicant is not mentally stable or morally or ethically fit to practice law.” As any lawyer knows, a standardless standard is no standard at all, and this statute is in facial violation of the Due Process Clause. Moreover, what he has no chance of knowing is that the Inquiry Panel did not even find that there was probable cause to suspect mental instability — a fact that was not in the public record. The Court just flat-out made that “fact” up from whole cloth, knowing the pervasive prejudice that we as a society have against the mentally infirm.
If there is any fixed star in the constellation of American jurisprudence, it is most certainly Marbury v. Madison. Therein, Chief Justice Marshall wrote — as a reminder and a warning:
Article 125 of the former Soviet Union’s 1936 Constitution guaranteed Soviet citizens the freedom of speech and of the press. But the Stalinist law courts never enforced those rights, and if you ever dared to speak freely on public issues of the day, thereby angering your betters in the government, you could be denied the right to work in your profession, branded mentally unstable and eventually, sentenced to the gulags. And like our current crop of Supremes, Stalin’s judges were knowing accomplices to these judicial travesties, never failing to find the `facts’ his government needed to hear. Cognizant of this as an expert in human rights law, Prof. D’Amato of Northwestern asks the question that should haunt all of us:
By counseling me to “just let go,” you are telling this NIGGER — and no, I do not apologize for the use of that word, as the fundamental evil it implies is that of second-class citizenship in this Third World banana republic — to simply “go back to the plantation,” as the rights and privileges appurtenant to American citizenship are not for him. And you wonder why I have such a lofty opinion of the incestuous mass of craven invertebrates otherwise known as lawyers? As a species, you have abandoned principled advocacy in favor of shameful servitude, and deserve all the scorn society can heap upon you. And when you treat a judge as though he is omniscient for long enough, he might begin to believe his own press clippings. Professor Carl Bogus wryly observes:
Here is part of what was written to assistant district attorney Henry Reeve in connection with the request for criminal prosecution:
For me, this is about more than a mere law license; it speaks to the essential that is liberty itself. As Barry Goldwater put it, “Extremism in the defense of liberty is no vice; moderation in the pursuit of justice is no virtue.” If indeed, the demand for it makes us “crazy,” then there is no America left to defend. Thus with Samuel Adams, I seek neither your counsel nor your arms. “Crouch down and lick the hand that feeds you; and may posterity forget that ye were our countrymen.”
Cuervo: Regarding your question, the Colorado Constitution does not provide for the use of Court of Appeals judges as Colorado Supreme Court justices (or for any other purpose).
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Nor does it need to. C.R.S. В§ 13-4-101 states:
The statute informs us that these judges they “may serve in any state court.” Not in “any lower state court,” or “any state court but the Colorado Supreme Court,” but “any state court.” And as the Justices themselves confess, this fact is of dispositive legal significance:
Carlson v. Ferris, 85 P.3d 504, 508 (Colo. 2003) (citations omitted).
Collecting cases spanning two centuries, the United States Supreme Court observes that “[w]e have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992). Thus, as a matter of law — as the Colorado Supreme Court did not allege otherwise in their decision in Smith v. Mullarkey — “any state court” means “any state court.” To rule otherwise, the Court would have to declare that phrase unconstitutional, which they did not do.
Cuervo: In fact, the Colorado Constitution does not even mandate the existence of a Colorado Court of Appeals, and there was no such court for many years.
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And the logical relevance of this is, Counselor? The Rule of Necessity would have applied in the absence of C.R.S. В§ 13-4-101, but the existence of the statute obviates the need for resort to the Rule of Necessity. There is no other way to properly read that statute, as its text is clear.
Cuervo: A Colorado statute does expressly authorize the Chief Justice of the Supreme Court to appoint retires justices/judges for temporary purposes, but only as provided by the Constitution.
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Again, so what? If all of the judges of the Colorado Court of Appeals can sit as substitute judges, there is no need to call up Justice Quinn from the farm team in Colorado Springs.
Cuervo: In any event, the Constitution vests final power over the regulation of attorneys with the Colorado Supreme Court alone. And that is why the Colorado Court of Appeals REQUESTED that the Supeme Court take over the Smith case.
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The devil is always in the details; that’s not true either. the Colorado Court of Appeals issued an order referring the jurisdictional issue to the Colorado Supreme Court, ostensibly pursuant to В§ 13-4-110(1)(a), C.R.S. 2004, which states:
The only question the Colorado Supreme Court was legally authorized to decide was whether the CCoA had jurisdiction. Specifically, the Court was tasked with interpreting В§ 13-2-102(1), C.R.S. 2004, which states in pertinent part that “[a]ny provision of law to the contrary notwithstanding, the court of appeals shall have initial jurisdiction over appeals from final judgments of the district courts….”
“Jurisdiction” is the power to declare the law, not to write it! The Colorado Supreme Court was statutorily tasked with the obligation to interpret the statute, and as the law of statutory interpretation was already ‘set in stone’, the Court had a legal obligation to follow it scrupulously.
Cuervo: Thus, your claim that the Supreme Court took over the case sua sponte is false.
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By disregarding the clearly established law, the Court did precisely that … in a manner of speaking. The technically accurate description is that the Justices acted outside the scope of their lawful authority; on account of the fact that they acted in their own personal interest, the law generally infers that they acted knowingly, as opposed to making an excusable legal error.
Cuervo: Furthermore, Smith’s naming the Colorado Supreme Court as a defendant was clearly a ploy to disqualify that court from his case. The court should not let irrational litigants manipulate the judicial system in that way. Remember, the Smith case was nothing more than a complaint that he was denied admission to the bar….an issue that lies squarely within the purview of the Colo. Supreme Court (and over which the Court of Appeals has no say).
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Again, on what basis do you draw that conclusion? Have you read the complaint … or are you merely taking the Colorado Supreme Court’s word for it?
As state courts have jurisdiction over Section 1983 cases, the only question of fact that a judge should have considered is whether such a claim was brought. And all that is required to make out a proper Section 1983 claim charging a violation of procedural due process rights is an allegation that (1) the claimant was entitled to it as a matter of federal law, and (2) did not in fact receive it. Carey v. Piphus, 435 U.S. 247 (1978).
The federal right to a full, fair, trial-type hearing on the matter of my admission to the state bar was established by the United States Supreme Court, even before I was born. Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232 (1957). Moreover, the federal right to a coherent written explanation as to why an application was denied is equally well established. As the First Circuit put it, scolding a district court in connection with a federal bar admission case:
The only other allegation required is that “the person who has deprived him of that right acted under color of state law.” Houston v. Reich, 932 F.2d 883, 890 (10th Cir. 1991). Thus, as was alleged in the first paragraph of the complaint a hearing was denied, and the Court failed to give a constitutionally adequate explanation as to why the application for admission had been denied, First Amended Complaint (hereinafter, “FAC”) В¶ 1, and the defendants had acted under color of law, FAC В¶ 22, the burden of pleading under Carey was met.
As for the Justices being proper party defendants, it would seem that you are not a seasoned lawyer; otherwise, you would recognize a negligent supervision claim when you see it. State bar examiners are agents of the Colorado Supreme Court, which can be removed at their pleasure; as such, they have an affirmative obligation to supervise, and failures can result in civil and criminal liability (note that this is an exception to the rule of absolute judicial immunity, per Forrester v. White).
I presuke you will recall an incident indelibly etched in America’s collective memory: the savage beating of Rodney King. The commanding officer on the scene, Sergeant Stacey Koon, wasn’t prosecuted for beating King to a pulp; rather, he was prosecuted for failing to prevent King from being beaten to a pulp. The Ninth Circuit noted that police officers have a duty
Clearly, if a lowly police sergeant has an affirmative obligation to stop a gang of adrenaline-charged cops with nightsticks from violating a suspect’s rights, the justices of the Colorado Supreme Court can be obliged to pick up a pen. As such, your claim that the lawsuit against the Justices was a “ploy” is without colorable foundation.
The gravamen of the claims here is not that the Justices denied a law license but rather, that they deprived an applicant of procedural due process and equal protection of the law. According to SCOTUS, that is a separate violation of rights of constitutional proportion, Carey, supra. Thus, it is manifestly obvious that you haven’t a clue as to what you are talking about, Cuervo. But while ignorance is curable, stupidity is forever; if you want to keep your fingers in your ears, do feel free to wait at the curb for the ‘short bus.’
Cuervo: Note also that Smith failed to take his permitted appeal of that initial decision (raising his strange federal constitutional issues) to the US Supreme Court. After failing to take advantage of his opportunity, Smith, like many disgruntled litigants, blames everyone else for his faults…including of course the mean’ol courts.
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Obviously, appellate law is not your forte, Cuervo. The only way you can even go to the Supremes is to exhaust all of your other remedies … and on the face of it, there was another remedy. The Colorado constitution contains a so-called “open courts” provision, expressly guaranteeing every person the right of access to our state courts:
Interpreting the federal constitution at the very dawn of our Republic, Chief Justice Marshall famously explained: “It cannot be presumed that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it.” Marbury v. Madison, 5 U.S. at 174. This principle is self-evident, for if a state court can decide on Monday that Colorado’s `open courts’ provision was only advisory, a federal court can decide on Tuesday that the entire Bill of Rights was mere filler. That sentence is an absolute mandate to every judge in this state.
But what does that mandate mean? The Colorado Supreme Court has told us, in no uncertain terms: If any act of another constitutes an injurious invasion of a right recognized by or founded upon any applicable principle of law, the courts shall provide a remedy, Goldberg v. Musim, 162 Colo. 461, 427 P.2d 698 (1967), even if they have to invent one! Colorado Anti-Discrimination Comm’n v. Case, 151 Colo. 235, 380 P.2d 34 (1962). And though this provision does not create any new rights, if such a right accrues under law, “the courts will be available to effectuate [it].” O’Quinn v. Walt Disney Productions, Inc., 177 Colo. 190, 195, 493 P.2d 344, 346 (Colo. 1972).
The salient facts are simple and undeniable: the Colorado Supreme Court, acting in its capacity as administrators of the state’s attorney licensure program, denied my application. They made the one and only decision in the matter. C.R.C.P. Rule 201.10(2)(e). However, it is unconstitutional in Colorado for a state body to issue a decision affecting a citizen’s substantive rights unless he or she is able to obtain an independent judicial review of the decision as a matter of right. Allison v. Industrial Claim Appeals Office, 884 P.2d 1113 (Colo. 1994). Thus, I am is entitled to be heard in a trial court as a matter of right, as certiorari review does not provide “access to the courts,” as contemplated in article II, section 6. Id.
Since there was a state-law remedy, SCOTUS would have been well within its rights to deny cert at that time. As such, the remedy you speak of did not exist.
Cuervo: And, it’s perfectly proper and necessary to require an applicant for the bar (an applicant for the privilege, not the right, of practing law) to submit to a mental examination when his stablity is under reasonable question
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Your “knowledge” of constitutional law is older and more decrepit than I am … the Supreme Court did away with the “right-privilege” distinction half a century ago. And while I do not seriously question the State’s right to require a mental fitness exam, I insist that they can only do so in a manner consistent with the First, Fourth, and Fourteenth Amendments. The Bar Examiners have an unflagging obligation to adhere to the strictures imposed by their own enabling statute; this, they did not do on numerous occasions.
Cuervo: To require him to pay for the examination makes sense too.
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While it might “make sense” in the abstract, there’s that little problem of federal law ‘getting in the way’ and in particular, the Americans with Disabilities Act. If the State of California can’t charge handicapped persons a lousy $6 for a handicapped placard, how can it impose the cost of a psychiatric exam — which can run into the thousands of dollars — upon bar applicants who were selectively chosen? If every applicant had to go through it, there would be no discrimination (I believe that psychiatrists have to do this as a condition precedent to licensure), and the federal ADA would not apply. Sucks for the courts, but the only recourse is to complain to Washington.
Again, your profound ignorance is laid bare, Cuervo. I expect an appropriately profuse apology.
While DAs and criminal prosecutors play an essential role in our society, it’s disturbing to me that folks might conclude that being a good prosecutor necessarily means the person will be a good governor, senator or representative.
IMHO, higher office holders need to be versed in economics, management of large, complex entities, and able to wrestle with social issues with insight and diplomacy. For example, in Colorado 74% of the state budget is spent on education, health care and human services. How does being a DA make someone an expert on healthcare, education or the delivery of social services?
The Colorado state budget is roughly $17 billion, 26% of which comes from federal sources, 55% from income taxes and the remainder from the cash fund (gas taxes, mineral severance taxes, gaming taxes, etc.). How does being a DA transform someone into a multi-billion $ financial manager or someone who can assess the impact taxes have investment incentives or make decisions about their incidence?
Colorado competes with other states to encourage businesses to locate here. That’s a formula that depends on relative tax structures, comparative workforces, infrastructure (communications, roads, airports, etc.) and sheer salesmanship by the state’s political leaders. How does being a DA prepare one for that role?
Criminal matters and criminal prosecutions — the expertise of a DA officeholder — are but a tiny part of the mechanics of our government.
Being a DA seems to generate publicity. But just because a guy is on TV or in the movies doesn’t mean he’ll be a good political leader.
It’s probably impossible to imagine what background could competently prepare someone for higher office, but IMHO competently handling police shooting complaints isn’t necessarily enough to conclude that someone is qualified for higher office.
I like your reasoning, going to the merits of the particular job skills. I’ve addressed a different angle in previous posts, arguing that how an AG handles the smaller issues (the ones that don’t make it to the scrutiny of the media) are a bona fide indicia of what level of integrity he will have in higher office. Specifically, if his office –with his blessing and leadership– perpetuates or covers-up legal ethics double-standards, non-meritorious overzealous prosecution and scandals –esp. those that were not publicized at the time, then what can we expect of him in higher office. Sure, being an AG or DA requires a certain amount of deal brokering and dealing with policy unions, etc. but I believe that every decision an AG or DA makes can be make with integrity. In Ritter’s case, I’m deeply concerned about the handling of the Lisl Auman case.
typo
policy = police
Morrissey has so much to reveal in the first place.
“As everyone knows, the last DA went on to do pretty well”.
80 plus officer involved shootings without a single prosecution is nothing to be so freaking proud of!
http://www.boulderwe…
Morrissey is a breah of fresh air. It remains to be seen how far he can go with out Ritter sicking some boys in blue on his butt!