SUPREME COURT, STATE OF COLORADO
Case No. 03SA147 [79 P.3d 1221 (Colo. 1993)]
____________________________________________________

ORIGINAL PROCEEDING PURSUANT TO
COLO. CONST. ART. VI, § 3
____________________________________________________

DONETTA DAVIDSON, IN HER OFFICIAL CAPACITY AS
SECRETARY OF STATE FOR THE STATE OF COLORADO,

Petitioner,

v.

THE HONORABLE KEN SALAZAR, IN HIS OFFICIAL
CAPACITY AS ATTORNEY GENERAL FOR THE STATE
OF COLORADO,

Respondent.

Amicus Curiae Kenneth L. Smith, pursuant to the invitation in this Court’s Order and Rule to Show Cause in the above-entitled action dated May 15, 2003 and C.A.R. 29, submits this brief in opposition of the petition filed herein by Attorney General Ken Salazar for a remedial writ and a stay prohibiting enforcement of Colorado Senate Bill 03-0352, pursuant to Colo. Const. art. VI, § 3.

Amicus Smith is the plaintiff in an action styled Smith v. Mullarkey,¹ seeking compensatory and punitive damages on the order of $25,000,000 from the Justices of this Court as the result of their unlawful denial of his application for a license to practice law in the state, further raising an array of facial challenges to Colorado’s bar admission statute. Attorney General Salazar is counsel of record for the Justices in the matter.²

Taken together, the aforementioned facts have the potential to have a profound and possibly dispositive effect upon this litigation, for the reasons stated herein. Moreover, these facts are of such a nature that Attorney General Salazar is unlikely to raise them, and counsel for the defense is unlikely to even be aware of their existence.

The threshold question before this Court is whether Attorney General Salazar has standing, in his official capacity, to file the petition under consideration. Either Mr. Salazar is obligated to defend state governmental actions in the nation’s courts under any and all circumstances, or he is required to uphold and defend the Colorado and federal constitutions for the citizens of Colorado in their stead. While Mr. Salazar has claimed that his ‘mission’ is the latter; Amicus will demonstrate through analysis of his conduct in office that he has abandoned all pretense of acting on the public’s behalf.

Mr. Salazar concedes the legal significance of this issue, in observing that in a suit brought on behalf of the public to benefit the public, he need only show that he will prevail on the merits; if he is deprived of his special status, he will have to meet all of the customary tests for injunctive relief. Petitioner’s Brief at 7. Using the one-man, one-vote standard invoked by Mr. Salazar, Id. at 9-10, Amicus will show that he cannot possibly meet all four of those tests.

But even if Mr. Salazar has proper standing to challenge Colorado Senate Bill 03-352 in his official capacity, another substantive question he left unaddressed is whether the court-authored redistricting plan which set Congressional district boundaries for the 2002 election and “elections thereafter” constitutes an act of legislation proscribed by article III of the Colorado Constitution. Amicus concurs with Mr. Salazar’s observation that “No right is more precious in a free country than of having a voice in the election of those who make the law under which, as good citizens, we must live,”³ further submitting that this is why Colorado’s constitution is so indisputably and unalterably opposed to allowing appointed and unaccountable state judges to author legislation.

The threshold question in this dispute is whether Colorado’s Attorney General is the State’s lawyer or the people’s lawyer. But the more precise question has to do with how much latitude the Attorney General has when he is asked to defend patently unconstitutional state action. On the one hand, if he is merely Colorado’s in-house counsel, he must defend state action no matter how absurdly unconstitutional it is. On the other, if he represents the citizens of Colorado and is obligated to “defend its constitution,” his willful failure to oppose patently unconstitutional state action constitutes malfeasance in office -- an impeachable offense. Colo. Const. art. XIII, § 2.

Amicus submits that the answer to this knotty question is to be found in agency law. As the United States Supreme Court observed just six years after Colorado became a state:

United States v. Lee, 106 U.S. 196, 220 (1882).

Government officials are “creatures of the law,” and whenever they act outside the bounds of their agency as defined by that law, their acts cease to be acts of the State. And again, in the context of civil rights legislation, the United States Supreme Court made this point three years after Colorado became a state:

Ex parte Virginia, 100 U.S. 339, 349 (1879).

An act done by a judge, taken outside the proper bounds of his authority, is not a judicial act or a state act but rather, an illegal act. By the same token, if the Colorado state legislature acted outside the bounds of their constitutional authority, their act is neither a legislative act nor a state act; it is simply illegal, invalid, and void. See, Davidson Chevrolet v. City and County of Denver, 138 Colo. 171, 330 P.2d 1116, 1118-19 (1958).

Like other elected public officials and attorneys, Attorney General Salazar swore an oath to support the federal and Colorado constitutions. Colo. Const. art. XII, § 8. However, if he were legally obligated to defend even patently unconstitutional state action, he would by definition be violating his oath of office. A logical and consistent application of the rules of agency eliminates this apparent conflict, precipitating the following rule: Colorado’s Attorney General must oppose patently unconstitutional state action, irrespective of whether it is taken by Governor Owens, our legislature, or this Court. Anything less is malfeasance of office -- for which he would be liable for impeachment and/or disbarment.

Every civil officer in Colorado must, as a condition of assuming office, “take and subscribe an oath or affirmation to support the [federal and Colorado constitution] . . . and to faithfully perform the duties of the office upon which he shall be about to enter.” Id. And not as an employee and agent of the state, but as the people’s attorney, he is obliged to maintain a paramount duty of loyalty to his client. People v. District Court, 951 P.2d 926, 930 (Colo. 1998). Attorney General Salazar’s “client” is most emphatically not the Colorado Democratic Party, his fellow Democrats who were appointed to this Court, or future Democratic gubernatorial candidate Ken Salazar, but the good citizens of Colorado.

Amicus argues for the rule of law that, since our elected state legislators are duly-authorized representatives of the people of Colorado, Attorney General Salazar is legally and morally bound in his role as ‘the people’s attorney’ to vigorously defend their legislative enactments as long as a credible argument could be made for their constitutionality. As such, in showing that a credible argument could be made for the constitutionality of Senate Bill 03-352, and that Mr. Salazar has used his good offices to vigorously defend far more constitutionally-questionable governmental conduct in another case, Amicus will demonstrate that Salazar has violated his paramount duty of loyalty and abused his public trust -- thereby committing an impeachable and disbarrable offense. But more to the point, by exceeding the bounds of his lawful discretion, he has forfeited any right he might have had to represent the people of Colorado in this matter.

     A.  Attorney General Salazar’s Proper Role in the Matter Before This Court

As a legislative enactment is presumptively the will of the people, expressed by and through their legally elected representatives, the Attorney General’s primary job as ‘the people’s attorney’ is to ensure that their will is translated into substantive law. Accordingly, unless a given statute is so patently unconstitutional that it can’t be defended, Mr. Salazar’s legal and moral obligation is to defend it. Thus, if a credible argument could be made in defense of Senate Bill 03-352, it is incumbent upon Attorney General Salazar to make it.

          1.  Article III of the Colorado Constitution Forbids This Court from Writing Legislation

In his Petition, Attorney General Salazar devotes a great deal of time and effort in showing what no one reasonably disputes: that when the state legislature fails to write legislation creating new Congressional districts in a timely manner, our courts can act to resolve the dispute. What he fails to address is whether that resolution is binding upon successive legislatures.

In writing a constitution, Coloradans went to the extraordinary step of declaring explicitly what is implicit in its federal counterpart: there is an express distribution of powers to the three enumerated branches of our government. We don’t want our judges writing legislation, and we don’t want our legislature adjudicating disputes. E.g., Smith v. Miller, 153 Colo. 35, 384 P.2d 738 (1963). But that is precisely what Mr. Salazar is asking this Court to do: make this Court’s ruling in Beauprez the unalterable law of the State for the next eight years.

It is axiomatic that in our system of checks and balances, the primary legislative check upon a runaway judiciary is the power to pass legislation. If the legislature disagrees with this Court’s rulings, it can legislate them out of existence -- and that is precisely what Senate Bill 03-352 purports to do. Amicus submits that article III exists because Coloradans don’t trust our judges any more than we do any other politicians, and a review of recent history shows that this healthy distrust is certainly well-placed.

The unfortunate fact is that, when the Mullarkey Court has enjoyed untrammeled discretion to decide matters, it has consistently exercised that discretion in a flagrantly partisan manner. By way of example, while this Court granted a license to practice law to a cocaine-dealing convicted felon daughter of a noted Democratic Party apparatchik,⁴ it summarily denied the application of a Republican candidate for the Colorado House of Representatives just TWO DAYS after he failed in his election bid.⁵ Res ipsa loquitur.

The partisan antics of the Mullarkey Court are part of a larger malaise occurring throughout the American judiciary, where the most accurate predictor of how any state court will rule on an election dispute is to identify the party which nominated the judge making the decision. We saw this sorry scenario play out in the Florida fiasco of 2000 and the election of Frank Lautenberg (D-NJ)⁶; against this backdrop and this Court’s partisan practices, it is hardly surprising that it ruled in favor of the Democrats in Beauprez v. Avalos, 42 P.3d 642 (Colo. 2002), irrespective of what the law actually ought to be.

This battle for the judiciary has taken on a truly comical dimension in recent days, as we see the filibustering of federal circuit court nominations such as those of Miguel Estrada and Priscilla Owen,⁷ and the lemming-like exodus of Texas’ Democratic Party legislators to Oklahoma.⁸

But truth be told, judicial corruption and cronyism is as old as the hills. Celebrated Harvard professor Alan Dershowitz claimed that he witnessed it personally in his practice, quoting Roy Cohn’s famous aphorism that “I don’t care if my opponent knows the law, as long as I know the judge.”⁹ And it was equally familiar to the Framers, as Thomas Jefferson observed:

“Our judges are as honest as other men and not more so.”¹¹ As likely to be as corrupt as the average priest, and as likely to cover up the crimes of their fellow judges as a Cardinal Law. To suggest that Colorado’s Framers didn’t take this ugly and practical political reality into account during their deliberations is sheer folly.

          2.  A Reasonable Argument Can Be Made For the Constitutionality of Colorado Senate Bill 03-352

To be certain, Attorney General Salazar has offered reasonable arguments in support of his position -- arguments that any private citizen could make. And Amicus would encourage him to make those arguments -- as a private citizen. But as his arguments can be readily countered, it is not his place to make them as the people’s attorney.

No one reasonably disputes that the courts are at liberty to resolve apportionment disputes as they arise. What is at issue is whether such judicial resolutions are the final word on the matter -- and as is said in the ad, your mileage may vary.

In his case-in-chief against Senate Bill 03-352, Mr. Salazar begins by making the indisputable observation that in interpreting a constitutional provision, this Court is entitled to consider the object to be accomplished and the mischiefs to be avoided in its determination. Petitioner’s Brief at 15 (citation omitted). As such, when considering the proper interpretation of article III of the Colorado Constitution, it must keep in mind that the object to be accomplished is the separation of powers between the branches of government, and one of the mischiefs to be avoided is having unelected judges write legislation.

Section 44 of article V clearly and unequivocally places the obligation of dividing the state into congressional districts in the hands of the state legislature. However, Mr. Salazar’s analysis of the 1974 modification to that provision is hardly compelling. Amicus agrees that the pre-1974 version of the provision “seems to give the legislature discretion in determining when, how, and how often its constitutional representative[sic] could be elected,” Petitioner’s Brief at 16-17, and accordingly, serial redistricting would be theoretically possible. Indeed, it is possible to envision how one party can manipulate the process by creating “safe” districts and competitive districts in successive election cycles, depending on its overall objectives. As the continual shift of congressional districts is certainly a “mischief to be avoided,” and the 1974 emendations to the provision limit the general assembly to ‘one bite at the [redistricting] apple’ per decade, it would seem that they accomplish that valuable objective. By stark contrast, there is no affirmative indication that the people of Colorado ever intended to bestow any right upon its state courts to write legislation that would be binding on future legislatures.

Mr. Salazar goes on to suggest that because Michigan did this and California did that, Colorado is somehow obligated to follow their lead. Of course, the fatal flaw in that argument is that this Court isn’t deciding the fine points of Michigan or California law, and neither state’s constitution has a provision analogous to article III. What Michiganders and Californians intended is of no obvious consequence to this Court.

          3.  Deprived of His Favored Status as The People’s Attorney, Petitioner Salazar Cannot Prevail on the Merits.

Stripped of his favored legal status as “the people’s attorney,” Attorney General Salazar has no realistic hope of prevailing in his quest for injunctive relief; he’ll have to go to the back of the judicial ‘bus’ -- like the rest of us. And that is necessarily fatal to his case, as he cannot possibly show the irreparable injury required to secure an injunction pending a trial on the merits.

It can certainly be argued that Democrats in what is now the Seventh Congressional District would be harmed by Senate Bill 03-352, as it is obvious that this Karl Rove-inspired legislation was intended to turn a competitive district into a Republican fiefdom. But in creating a “swing” district, the courts have relegated countless thousands of Coloradans to “Republican ghettos” -- districts where the only truly meaningful election is the Republican primary, and Democrats are effectively disenfranchised. If, as Mr. Salazar has rightly asserted, no right is more precious in a free country than that of having a voice in the election of those who make the law, and that our other rights are illusory if the right to vote is undermined, Petitioner’s Brief at 3, then Democrats in Amicus’ district have been stripped of their most basic incidents of citizenship. Some citizens benefit as a result of the Legislature’s action, while others are injured -- but it is difficult to claim that, as a whole, the people have suffered an actual injury of constitutional magnitude. Whether for good or ill, the federal and state constitutions permit a certain measure of gerrymandering by our elected representatives -- and as with all political decisions, there are winners and losers.

At the end of the day, Ken Salazar’s contentions are not devoid of merit, and he deserves the right to advance them in our state courts. However, he must make them as Ken Salazar, and not as Attorney General Salazar.

     B.  Attorney General Salazar’s Proper Role in Smith v. Mullarkey

Consideration of Attorney General Salazar’s appropriate role in Smith v. Mullarkey must by necessity begin with the Colorado Rules of Professional Conduct. Specifically, it is professional misconduct for a lawyer to “knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.” Colo. RPC 8.4(f). Thus, if the Justices of this Court have engaged in conduct which is a patently obvious violation of law, and Attorney General Salazar aided them in said conduct by providing them with free legal representation, he has committed professional misconduct. Furthermore, if Attorney General Salazar has a binding obligation to oppose unconstitutional state laws and/or practices, his willful refusal to do so constitutes malfeasance of office punishable by impeachment.

To discharge the duties of his office, Attorney General Salazar must perform an independent evaluation of the constitutionality of the statutory regulation being challenged in Smith v. Mullarkey (Colo. R. Civ. P. 201; hereinafter, “Rule 201”) and if appropriate, join in the litigation on behalf of the people.¹² What he may not do is enter into the litigation on behalf of the Justices unless he is honestly persuaded that the statute is constitutional. Moreover, as an officer of the Tenth Circuit bar, he has a standing obligation to timely inform Circuit officials of any and all professional misconduct engaged in by the Justices of the Colorado Supreme Court. Colo. RPC 8.3.

Colorado’s bar admission statute -- both on its face and as applied -- violates more federal and state constitutional provisions than the typical bar exam essay, and Amicus will not be able to truly do it justice in a brief which is supposed to be, well, brief. But Amicus must indulge in presenting a primer on civil rights law for the special benefit of Chief Justice Mullarkey -- who, despite her Harvard Law School education and experience as a civil rights lawyer, seems to have forgotten every shred of basic civil rights law she’s ever learned, including the law she herself helped create.

          1.  First Amendment Primer

The First Amendment provides that

That these five foundational human rights -- to freedom of conscience, speech, assembly, and the press, and access to the courts -- were enshrined together in the First Amendment was no accident. They are the first rights -- preservative of every other right and privilege of American citizenship we hold so dear. And unless they can be exercised in tandem, they might as well not exist at all. For what good does it do to be free to speak, if I cannot speak my conscience? And what good does it do me to speak at all, if I cannot seek out an audience on the street corner, in the library, on the Internet? And what could I have to say of any value, were I not free to listen, to read, to gather information?

Still, the most foundational right of all to the individual citizen is the right of access to the courts. After all, what good is the right to worship, to speak, to read, to assemble, if they cannot be enforced? As Chief Justice Marshall explained:

Marbury v. Madison, 5 U.S. 137, 163 (1803).

Distilled to essentials and taken together, the First Amendment guarantees the right of every citizen to speak his conscience on the issues of the day, free from the fear of government reprisal, further ensuring that the nation’s courts will be available to vindicate that right. But what does it mean to “abridge” these rights? To answer this question, Amicus will ask no less an authority on the matter than Chief Justice Mary Mullarkey -- who, although she did not write this opinion, did vote for it and presumptively, agrees with it:

If our First Amendment is to mean anything, it must mean that the government cannot punish you for speaking your conscience on issues of the day, either directly or indirectly. But how far does that freedom extend? To answer this question, Amicus will ask no less an authority on the matter than Justice Michael Bender:

Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044, 2002.CO.0000097, ¶ ¶ 44-45, 134 (footnote #14), and 50 (Colo. 2002) (Versuslaw).¹⁴

“The subtle, imponderable pressures of the orthodox.” “Through the harassment of hearings [and] investigations . . . government will hold a club over speech and over the press.” This is the very soul of what the Founding Fathers feared most. An “opinion” extracted under threat of dire punishment is a form of mental rape; our entire system of government presupposes -- and indeed, depends upon -- an active and informed citizenry that is not only free to think the unthinkable but say the unspeakable. Justice Brennan put it thusly:

New York Times v. Sullivan, 367 U.S. 254, 270 (1964).

As Justice Frankfurter adds, “one of the prerogatives of American citizenship is the right to criticize public men and measures -- and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation.” Baumgartner v. United States, 322 U.S. 665, 673-74 (1944). Justice Bender adds that the “purpose behind the Bill of Rights, and of the First Amendment in particular [is] to protect unpopular individuals from retaliation -- and their ideas from suppression -- at the hand of an intolerant society.” Tattered Cover, 2002.CO.0000097 at ¶ 48 (citation omitted).

The well-established rule of law in Colorado -- which Tattered Cover didn’t change -- is that the First Amendment protects all aspects of the communicative process, and it is further intended to shield those citizens who engage in protected activity from government-sponsored harassment and/or retaliation on account of that activity.¹⁵

In Smith v. Mullarkey, Amicus alleged that Colo. R. Civ. P. 201.9(5), a statutory regulation governing whether probable cause exists to question a bar applicant’s “fitness” to practice law, is void for vagueness. It provides:

The due process vagueness doctrine requires lawmakers to set reasonably clear guidelines to prevent arbitrary and/or discriminatory enforcement, Smith v. Goguen, 415 U.S. 566, 572 (1974), and a statute is unconstitutionally vague if its standards are so ill-defined as to create the danger of same. E.g., Smith v. Plati, 258 F.3d 1167 (10^th Cir. 2001), cert. den. 123 S. Ct. 67 (2002) And when “a statute’s literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.” Smith v. Goguen, 415 U.S. at 573.

But does this statutory regulation reach constitutionally sheltered expression? The Inquiry Panel of the Colorado Board of Law Examiners admitted it quite openly:

It is difficult to imagine anything more clearly protected by the First Amendment than “Mr. Smith’s journalistic and internet expose” of a public figure -- the fruits of which have appeared in widely respected Christian publications such as World and Cornerstone magazines, and on NBC and Inside Edition. It is thus beyond question that Colorado’s bar admission statute not only can reach, but in fact has reached, an applicant’s sheltered expression. And it is even more difficult to imagine any criterion more vague than “any evidence we damn well feel like using -- including hearsay and false and malicious accusations.”

“The subtle, imponderable pressures of the orthodox.” “Through the harassment of hearings [and] investigations . . . government will hold a club over speech and over the press.” What Justice Bender feared so much in Tattered Cover -- when the klieg lights of the media were squarely trained upon him -- he was willing to tolerate and even bless when it happened behind the closed doors of Colorado’s ‘star chamber.’

Not only does Colo. R. Civ. P. 201.9(5) reach First Amendment-protected expression, but it necessarily reaches that expression in a constitutionally repugnant way. No attorney would ever be called to account for his involvement in a “journalistic and internet expose” -- but yet, Justice Bender and his agents and colleagues knowingly held that protected expression ‘against’ Amicus during the bar application process. As such, to permit this statute to stand is to hold the sword of Damocles over each and every potential bar applicant’s otherwise protected expression. The bar applicant would never know how his anti-war protests, expression of unorthodox political and/or religious views, or attempts to expose corruption might be received by government apparatchiks like Susan Hargleroad. Inevitably, potential Colorado bar applicants like Smith will be inclined to censor themselves, for as “[w]hen one must guess what conduct may lose him his position, one necessarily will ‘steer far wider of the unlawful zone.’” Keyishian v. Board of Regents, 385 U.S. 589, 604 (1967) (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958)).

          2.  Fourth Amendment Primer

The Fourth Amendment provides, in pertinent part:

The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
 upon probable cause, supported by Oath or affirmation…U.S. Const. amend. IV.

If our government can enter our living room, our bedroom, and even the deepest and darkest recesses of our mind simply because it wants to, we are not, in any meaningful sense of the word, “free.” And this Court has recognized this incorrigible fact, noting that the purpose of article II, § 7 of the Colorado Constitution (Colorado’s analogue to the Fourth Amendment¹⁶) is to protect a person’s legitimate expectations of privacy from unreasonable government intrusions. People v. Sporleder, 666 P.2d 135, 139 (Colo. 1983). Justice Bender properly adds that the constitutional protections contained therein “safeguard citizens against the wide-ranging exploratory searches the Framers [of the Constitution] intended to prohibit.” Tattered Cover, 2002.CO.0000097 at ¶ 61.

But when is a given governmental intrusion upon our privacy “unreasonable?” Reasonable people can reasonably disagree, and often do. But as Justice Bender explains, “[t]he protections afforded by the [federal and] Colorado Constitution are of little value if the [party subject to the proposed search] is not given an opportunity to challenge the law enforcement officials’ action” before the search is conducted. Tattered Cover, 2002.CO.0000097 at ¶ 94. Thus, it can be said that wherever practical, for a search to meet constitutional muster, affected citizens must have a full and fair opportunity to challenge the legality of the proposed search in a court of law before it is conducted.

Justice Bender further observes that courts have further recognized that a very high level of review, often referred to as “strict scrutiny,” is to be undertaken when government action collides with First Amendment rights -- because governmental action which burdens the exercise of First Amendment rights compromises the core principles of an open, democratic society. Id. at ¶ 77. For any search implicating First Amendment expressive rights to meet constitutional muster, the government must show that it has a compelling interest in it, that its action bears an appropriate, direct, and significant connection to that interest, and that the incidental infringement upon those rights is no greater than is essential to vindicate its interests. Id. at ¶ ¶ 77-90.

Finally, it is essential to note that “an act [taken] in retaliation for the exercise of a constitutionally protected right is actionable under [42 U.S.C.] Section 1983 even if the act, when taken for a different reason, would have been proper.” Smith v. Maschner, 899 F.2d 940, 948 (10^th Cir. 1990) (citations omitted).

               a.  Rule 201 Provides No Protection Against Unconstitutional Searches

While the Bill of Rights is a majestic document, it’s only a piece of paper. The only rights we individual citizens have are those that we have the courage to assert, and that judges have the integrity to enforce. Majorities can elect presidents, legislatures, and prosecutors, and generally, can take care of themselves. But the individual enjoys no such protection -- and ultimately, we are all a minority of one.

Rule 201 is the statute the Constitution forgot; it would be far more at home in the former Soviet Union than in a constitutional republic governed by the rule of law. But to illustrate just how unfathomably repugnant it is to the Constitution, we have to examine a situation where our legal system actually worked the way it was designed to. And again, we turn to Tattered Cover.

The salient facts of Tattered Cover are as follows: The suspect was believed to have been running a meth lab in his trailer; when the Feds made the bust, they found an envelope from the Tattered Cover bookstore addressed to him. The Feds found a book on how to make drugs, and they wanted to find out whether the Tattered Cover sold the book to him. So, they got a search warrant, and demanded that the Tattered Cover turn over their purchase records. Owner Joyce Meskis had the courage to say “Hell, no!” So, she trundled down to the courthouse for an injunction. And the rest, as they say, is history. Tattered Cover, 2002.CO.0000097 at ¶¶ 18-36 ;

For those who don’t live here, the Tattered Cover is a Denver institution: by reputation, the largest independent bookstore west of the Mississippi. Meskis has a lot of influence in this town; suffice it to say that if she announces a press conference to say that she intends to defend the First Amendment, the press will actually attend.

Well, the lower courts ruled against Meskis, and even Justice Bender candidly conceded that the search warrant was constitutional under the First and Fourth Amendment. Id. at ¶ 65. But the Mullarkey Court evidently reads the papers; the press was all over this case like a cheap suit, and given that it was Joyce Meskis, everyone pretty much knew how the case would turn out.

For purposes of this brief, whether Tattered Cover was rightly or wrongly decided is beside the point. What does matter was the lavish praise heaped upon Meskis by Justice Bender when the klieg lights of the media were trained upon him:

With that understanding in mind, we then turn to Rule 201. The investigations are trials by ambush which, as this Court has observed, “[do] not promote accuracy or efficiency in the search for truth.” People v. Small, 631 P.2d 148, 158 (Colo. 1981). The proceedings are normally held in secret, and decisionmakers are not constrained by the formal rules of evidence. Rule 201.10(c).

The Colorado Supreme Court has refused to allow independent judicial review of bar examiners’ misconduct, see, Colorado Supreme Court Grievance Committee v. District Court, 850 P.2d 150 (Colo. 1983) (attorney challenged constitutionality of a Disciplinary Rule). There are no written standards, and there is no formal mechanism by which a bar applicant can enforce the few rules that do exist.

The salient facts behind Smith v. Mullarkey are as follows: A Colorado Board of Law Examiners Inquiry Panel conducted an inquisition into what Amicus contends is constitutionally protected speech and petitioning activities. In refusing to certify him as fit for admission, the Panel wrote a report replete with vociferous objections to this conduct such as this:

Some four months after the Panel had reached its decision (the Rule requires them to submit their report within thirty days -- Rule 201.9(6)(a)), the report was provided. Thereupon, Amicus filed a timely request for a formal hearing on the matter of his application for admission pursuant to Rule 201.10, retaining noted civil rights attorney David Lane as counsel. Presumably recognizing that they were outclassed, the Board demanded that Smith submit to an involuntary psychiatric examination, to be conducted by one of their hand-picked psychiatrists (in violation of Rule 201.10(4)) at Amicus’ expense (also in violation of the Americans With Disabilities Act), even though they had not properly raised the issue (in violation of Rule 201.10(1)).

By and through counsel, Amicus politely declined. Exhibit A. Counsel for the Board then sought an “order” for Amicus to submit to an examination, which was rubber-stamped by another Board member without explanation. Amicus continued to refuse on constitutional grounds, and objected to the Colorado Supreme Court. No hearing was ever granted, no opportunity was ever given for Amicus to challenge the “order” in an open court, and no explanation for the denial of licensure was ever given. [Amicus only learned of the official reason for the denial of licensure through a motion filed in Smith v. Mullarkey.]

“This chronology demonstrates the importance of providing . . . an opportunity to contest the actions of law enforcement in an adversarial setting.” But when Amicus stood on principle and refused to comply with the Board’s constitutionally questionable order, the Colorado Supreme Court “rewarded” him by not only summarily denying him his law license but also a due process hearing to plead his case for admission. Hence, while ‘society darling’ Joyce Meskis is praised for her courageous stand, the lowly bar applicant is faced with the choice Justice Bender found so repugnant in Tattered Cover: to submit to a quite possibly illegal search, or be deprived of the very license you need to make a living in your chosen profession.

          3.  Fourteenth Amendment Primer

Section 1 of the Fourteenth Amendment states, in pertinent part:

…nor shall any State deprive any person of life, liberty, or property without due process
of law; nor deny to any person within its jurisdiction the equal protection of the laws.
U.S. Const. amend. XIV, sec. 1

Those rights we refer to as that of life, liberty, and property are the very pillars of republican democracy -- without which, “freedom” could not in any meaningful sense exist. But the Constitution does not say that the government can never take them away, but rather, that it may not take them away without due process of law.

To get a handle on what “due process” means, we turn to Smith v. Whiteside, [67 P.3d 1240 (Colo. 2003)], a decision handed down two months ago by the venerable Justice Bender -- who consistently writes the Mullarkey Court’s most lucid opinions. (And as an added bonus, our self-described ‘champion of the people’ -- Ken Salazar -- was in attendance, striving to enforce a Colorado statute of highly dubious constitutionality burdening the poor, downtrodden working men and women of our state who were injured on their jobs, and desperately seeking much-needed medical attention. Needless to say, Mr. Salazar lost.)

The Due Process Clause requires governmental entities to provide a person whose constitutionally protected interests in life, liberty, or property are being threatened “the opportunity to be heard in a meaningful time and in a meaningful manner. However, this fundamental requirement of due process is not fixed or rigid.” Id. at ¶ 56 (citations omitted). To determine whether these flexible requirements of due process are satisfied, a court must

Id. at ¶ 57 (citing Matthews v. Eldridge, 424 U.S. 319, 335 (1976)).

But the right to be heard, standing alone, is meaningless if the government is not obliged to listen. Accordingly, due process also encompasses what Professor Lawrence Tribe of Harvard describes as “the right to hear why” -- which is “ultimately more understandable as inherent in decent treatment than as optimally designed to minimize mistakes.” L. Tribe, American Constitutional Law, 2d ed., § 10-15 at 744. Due process demands that we be ruled by law and not by fiat, Wisconsin v. Constantineau, 400 U.S. 433, 436 (1971), and the requirement that decisionmakers explain individual decisions in the light of written, objective, and ascertainable standards is thus an elementary aspect of due process. A New Hampshire federal district court perhaps put it best:

It is beyond question that a state “cannot exclude a person from the practice of law . . . for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment.” Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 238 (1957). Thus, the question becomes one of how much process one is due.

Perhaps the most closely analogous case in any state or federal court to the fact situation in Smith v. Mullarkey¹⁷ is that of Judith Berkan, a political activist who was denied admission to the bar of Puerto Rico without either a hearing or a statement of reasons for rejection. In their supervisory capacity, a panel of the First Circuit read that district court the proverbial riot act:

As this Court has also been “obliged to insist” that a citizen denied a license was entitled to a statement of reasons for a denial, Elizondo v. Colorado Dept. of Revenue, 194 Colo. 113, 570 P.2d 518 (1977)), Colorado’s bar admission regime must do the same. Any statute falling short of that is simply and irrevocably unconstitutional.

We then turn to the Matthews calculus as espoused by Justice Bender. The significance of a bar applicant’s private interest in practicing law is enormous -- “often more valuable to him than his home, however expensive that home may be.” Law Students’ Research Council v. Wadmond, 401 U.S. 154, 174 (1971) (Black, J., dissenting). The risk of an erroneous deprivation for wrongfully denied bar applicants who must request a hearing is 100%, as a Colorado bar applicant’s fitness to practice is not even evaluated until after he has passed the state’s bar. Cf., Barry v. Barchi, 433 U.S. 55 (1979). And finally, uncomplicated procedures such as the right to immediate judicial review of bar committee practices would cost virtually nothing, especially if bar examiners made a reasonable effort to respect the limitations placed upon them by the Colorado and federal constitutions.

     C.  Attorney General Salazar Failed in His Obligation to Represent the People of Colorado and Defend the Constitution in Smith v. Mullarkey

To recap, Rule 201 is both constitutionally flawed and quite obviously so, for as we have seen, it abridges bar applicants’ freedom of speech and petition, leaves applicants open to constitutionally repugnant searches, and flagrantly violates basic due process guarantees. And though brevity precludes an exhaustive analysis, one can also find that it runs afoul of the Equal Protection Clause, the Americans With Disabilities Act, and numerous provisions (e.g., article II, § 6) of the Colorado Constitution.

Now, if one were to believe Ken Salazar, one would presume that, as the champion of the rights of the good citizens of Colorado, he would do everything in his power to ensure that this flagrantly unconstitutional regulation were not permitted to stand. But what did he do in Smith v. Mullarkey?

That’s right. Attorney General Ken Salazar appeared on behalf of the Justices, arguing that Smith did not even have standing to challenge the statute.

But even if Ken Smith didn’t have standing, Ken Salazar most certainly did -- and as he has pointed out, all he would have to show in his official capacity to secure an injunction was that he would prevail on the merits. But to do that, he would have to admit that six Democrat-appointed justices of the Colorado Supreme Court have not only willfully violated their oaths of office, but committed a disbarrable act -- and as Colorado’s primary law enforcement officer, he also had an obligation to criminally prosecute them.

In Mr. Salazar’s capacity, not as the people’s attorney or Colorado’s in-house counsel, but as an advocate for the interests of Colorado’s Democratic Party, he chose to defend his political allies. But when the Republican-dominated General Assembly expected him to defend what appears on its face to be colorably constitutional action, he once again assumed his true role: as an advocate for the interests of Colorado’s Democratic Party. And, irrespective of wherever his official duty of loyalty lies, it most certainly does not lie there. See, Berger v. United States, 295 U.S. 78, 86 (1935), quoted with approval in Wilson v. People, 743 P.2d 415, 418 (Colo. 1987).

Again, it is a matter of record well-known to the Justices that Attorney General Salazar is defending both them and the constitutionality of Colorado’s bar admission statute in Smith v. Mullarkey. However, if his proper role in our legal system is to be an independent defender of the federal and state constitutions, he is no longer under an obligation to represent the Justices’ interests. Indeed, he may be obliged to withdraw representation and enter into the litigation on behalf of the people of Colorado to discharge his oath of office.

Even though the Justices may sincerely believe in their own impartiality, it is nonetheless their duty to “eliminate any semblance of reasonable doubt or suspicion that a trial by fair and impartial tribunal may be denied.” Johnson v. District Court, 674 P.2d 952, 956 (Colo. 1984).

Under these facts, if the Court rules that Attorney General Salazar has proper standing to bring the petition, it could be attributed to a quid pro quo arrangement, but if it rules that he is Colorado’s in-house counsel, it can be attributed to the Justices’ desire to ensure that he continues to represent them in this matter. As such, irrespective of the outcome, this Court’s decision could reasonably appear tainted by more than the customary stench of partisan politics, and even the appearance of impropriety is sufficient to warrant recusal. As Justice Bender recently observed:

As Amicus is not a party to this matter, he doesn’t have standing to make a motion to that effect; rather, this issue is being brought to this Court’s attention for its own consideration and introspection. In particular, Amicus would beseech them to peruse Justice Bender’s thoughtful Julien dissent.
 

From this point, the analysis should be straightforward: If Mr. Salazar’s job is to represent the public, he has failed utterly to do so in Smith v. Mullarkey and may be impeached for cause, and if he is Colorado’s in-house counsel, he is not acting in that capacity, and his petition must be denied for a lack of proper standing. And, as Governor Owens has the right to call a special session to attend to Mr. Salazar’s impeachment and install a Republican who will attend to “the people’s business,” the matter of his standing should be decided before this Court can even rule on his petition. Either way, the Petition is moot and should therefore be denied.

 
Respectfully submitted this 12^th day of June, 2003.

_____________________
Kenneth L. Smith, pro se

_____________________________________________________________________________

ENDNOTES

^{1. No. 02-1481 (10th Cir. filed Oct. 25, 2002); Smith v. Mullarkey, No. 02CV0127 (Denver Dist. Ct. filed Jan. 10, 2002) (companion case, held in abeyance pending a determination of federal jurisdiction). In pertinent part, Smith alleges that, among many other causes of action, he was wrongfully deprived of his right to a constitutionally adequate hearing in which to plead his case for bar admission. As denial of due process is an independent tort of constitutional significance, Carey v. Piphus, 435 U.S. 247 (1978), committed in their administrative capacity as supervisors of their subordinates on the Board of Law Examiners, Woodward v. City of Worland, 977 F.2d 1392 (10th Cir. 1992), the Justices are not entitled to absolute judicial immunity in tort. Forrester v. White, 484 U.S. 219 (1988).}

^{2. Amicus has an obvious interest in this Court’s determination of Mr. Salazar’s constitutional role as our Attorney General, as he may be legally obligated to “switch sides” in Smith v. Mullarkey.}

^{3. Petitioner’s Brief at 3 (quoting Wesberry v. Sanders, 376 U.S. 1, 17 (1964)).}

^{4. Steve Garnaas, “Police Blast Adams DA Felon Hired As Prosecutor,” Denver Post, July 15, 1997, at B1.}

^{5. Application of Leonard Alford Thomas, No. LX98-23, Nov. 9, 2000.}

^{6. E.g., Palm Beach County Canvassing Board v. Harris, 772 So.2d 1220 (Fla. 2000), Gore v. Harris, 772 So.2d 1243 (Fla. 2000), New Jersey Democratic Party, Inc. v. Samson, 814 A.2d 1025 (N.J. 2002).}

^{7. Helen Dewar, “Filibuster Rule Change Is Urgent, Frist Says,” Washington Post, Jun. 6, 2003, p. A25, available at http://www.washingtonpost.com/wp-dyn/articles/A21175-2003Jun5?nav=hptoc_p.}

^{8. E.g., Kathy Kiely, “Texas Lawmakers End Oklahoma Exile,” USA Today, May 15, 2003, available at http://www.usatoday.com/news/nation/2003-05-15-texas-lawmakers_x.htm.}

^{9. Alan M. Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000 (New York: Oxford U. Press, 2001), p. 116.}

^{10. Thomas Jefferson, Letter (to Abbe Arnoux), 1789, excerpted at http://etext.lib.virginia.edu/jefferson/quotations/jeff1520.htm.}

^{11. Thomas Jefferson, Letter (to William C. Jarvis), 1820, excerpted at id. at jeff1030.htm.}

^{12. Amicus does not suggest that the Justices are not at liberty to hire private counsel to represent their interests, just as the Colorado State Legislature has done in the instant case. Rather, it is suggested that funds for their legal defense must be paid from the Colorado Supreme Court’s budget, as opposed to the state’s General Fund.}

^{13. As these rights are also enshrined in the Colorado Constitution, Colo. Const. art. II, § § 4, 6, and 10, it need only be said in passing that these rights are enforceable as against the states by virtue of the Fourteenth Amendment under the so-called “incorporation doctrine.” E.g., Gitlow v. New York, 268 U.S. 652, 666 (1925) (speech and press); DeJonge v. Oregon, 299 U.S. 353 (1937) (assembly and petition).}

^{14. Justice Bender’s quotation of concurring opinions is significant, in the sense that they have no precedential value apart from their inherent persuasiveness. Thus, they cease to be the opinions of Justices Brandeis and Douglas, and become the opinions of the Colorado Supreme Court.}

^{15. Justice Bender went on to observe that the Colorado Constitution provides its citizens with even more legal protection for their expressive activities, Tattered Cover, Inc., 2002.CO.000097 at ¶ ¶ 53-58, but the protections afforded by its federal counterpart should be more than adequate.}

^{16. While article II, § 7 of the Colorado Constitution appears at first glance substantially identical to its federal counterpart, it has been consistently interpreted as providing Colorado citizens with more protection into their personal privacy than would otherwise be available under the Fourth Amendment. E.g., Tattered Cover, 2002.CO.0000097 at ¶ 69; see also, People v. Hillman, 834 P.2d 1271, 1279-80 (Colo. 1992) (Quinn, J., dissenting; collecting cases).}

^{17. The only salient difference between this fact situation and that of Smith v. Mullarkey is that Berkan could appeal the District Court’s decision immediately, as a matter of right.}