DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO
Case No. 02CV0127
___________________________________________________

KENNETH L. SMITH,

Plaintiff,

vs.

MARY J. MULLARKEY, et al.,

Defendants.


RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
(INCORPORATING AUTHORITY)


Plaintiff Kenneth L. Smith (hereinafter, “Smith”), pro se, respectfully submits this Response in Opposition to Defendants’ Motion to Dismiss (Incorporating Authority), stating as follows:

SUMMARY OF THE ARGUMENT

Article VI, section 9 of the Colorado constitution grants this Court the right and the duty to hear all civil cases brought before it, and any attempt to take that right and duty away is null and void. People v. Western Union Tel. Co., 70 Colo. 90, 198 P. 146, 149 (1921). Still, Defendants have advanced the astounding proposition that this Court -- a court of general jurisdiction -- does not even have jurisdiction to hold them accountable for violations of federal law; unsurprisingly, the United States Supreme Court emphatically begs to differ. Howlett v. Rose, 496 U.S. 356, 369-75 (1990) (“no valid excuse” rule).

While absolute quasi-judicial immunity is “strong medicine,” Forrester v. White, 484 U.S. 219, 230 (1988), it is only administered when the ‘patient’ doesn’t need it. Specifically, participants in a tribunal only qualify for absolute immunity where the safeguards built into the process are deemed ‘adequate to control unconstitutional conduct.’ Horvitz v. Board of Medical Examiners of the State of Colorado, 822 F.2d 1508 (10th Cir. 1987). And in a case decided only five months ago, evaluating a process substantially identical to Colorado’s, the Second Circuit found virtually identical safeguards inadequate. Diblasio v. Novello, 344 F.3d 292 (2nd Cir. 2003).

Res judicata requires that the matter be decided by a competent court, and Defendants are not legally competent to decide whether they have committed a tort for which they potentially owe $25,000,000 in compensatory and punitive damages. Tumey v. Ohio, 273 U.S. 510 (1927). A dozen fatal flaws in Defendants’ argument were identified, but need not be recounted here.

Also, it is almost unimaginable that any state bar in the 21st century would require an applicant to undergo an invasive psychiatric examination simply because they didn’t like his journalistic and internet expose of a public figure -- much less, that an American attorney would claim that no constitutional rights were violated by such action. But that is precisely what counsel is alleging by invoking the qualified immunity defense -- manifestly frivolous at this point, as the Defendants are stuck with Smith’s facts, and must prove their defense to a certainty. Davidson v. Dill, 180 Colo. 123, 503 P.2d 157 (1972). Due to the astonishing array of civil rights violations committed by the Defendants, the length of this brief has more than doubled, and unavoidably so.

Finally, the Defendants’ frivolous, baseless, and vexatious request for attorneys’ fees must be addressed.

ARGUMENT

I. SMITH’S CLAIMS FALL SQUARELY WITHIN THIS COURT’S JURISDICTION

Smith raised three classes of claim in this case: (1) Section 1983 claims, alleging violations of federal rights committed by persons acting under color of state law, (2) an array of facial challenges to the constitutionality of Colo.R.Civ.P. (hereinafter, “Rule”) 201, and (3) a separate claim for relief pursuant to article II, section 6 of the Colorado Constitution. Smith brings these claims pursuant to article VI, section 9 of the Colorado Constitution, which states:

The district courts shall be trial courts of record with general jurisdiction, and shall have original jurisdiction in all civil, probate, and criminal cases, except as otherwise provided herein, and shall have such appellate jurisdiction as may be prescribed by law.

When a civil claim is first raised in a Colorado trial court, it has both the right and the duty to adjudicate and determine it -- and any attempt to take that right and duty away is null and void. Western Union, supra.

Conversely, the Colorado Supreme Court, “except as otherwise provided in this constitution, shall have appellate jurisdiction only.” Colo. Const. art. VI, § 6(1). It has original jurisdiction to issue writs, Id., art. VI, § 3, but even that authority is discretionary. Shore v. District Court, 127 Colo. 487, 258 P.2d 485 (1953). Unlike its federal counterpart, it has no other judicial powers, and cannot expand its own jurisdiction by rule of court. People ex rel. City of Aurora v. Smith, 162 Colo. 72, 424 P.2d 772 (1967). As such, its authority over bar admission matters can only come from its general superintending control over the courts, Colo. Const. art. VI, § 3, and it can only act as an administrative agency answerable to the Colorado and federal constitutions, and by implication, this Court.1

While the Defendants’ “subject-matter jurisdiction” argument is flimsy enough under state law, it is breathtakingly frivolous under federal law, for under the Supremacy Clause, U.S. Const. art. VI, sec. 2, this Court has a duty to enforce federal law. Howlett v. Rose, 496 U.S. 356, 367-76 (1990). The Howlett Court observed:

A state court may not deny a federal right, when the parties and controversy are properly before it, in the absence of “valid excuse.” “The existence of the jurisdiction creates an implication of duty to exercise it.”

An excuse that is inconsistent with or violates federal law is not a valid excuse.

Howlett, 496 U.S. at 369-70 (citations omitted).

“The force of the Supremacy Clause is not so weak that it can be evaded by mere mention of the word ‘jurisdiction.’” Id., 496 U.S. at 382-83. But if the Defendants could have their way, no state court would have authority to hear Smith’s Section 1983 claims. This is clearly inconsistent with federal law, and would not qualify as a “valid excuse.” Cf., Id., 496 U.S. at 374-75 (“valid excuse” essentially limited to forum non conveniens).

It’s a matter of headnote law: “State courts as well as federal courts have jurisdiction over § 1983 cases.” Id., 496 U.S. at 358. Smith has advanced claims under Section 1983 which allege, for example, that his right to procedural due process was violated. But while Smith may not have a constitutional right to practice law, he has an absolute right to procedural due process, Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232 (1957), a separate tort of constitutional significance, which may be vindicated in this Court irrespective of whether he is entitled to a law license. Carey v. Piphus, 435 U.S. 247 (1978); Searles v. Van Bebber, 251 F.3d 869 (10th Cir. 2001), cert. denied 122 S.Ct. 2354 (2002) (punitive damages).2 Smith is thus entitled to be heard in this Court.

II. THE DEFENDANTS HAVE NOT ESTABLISHED A “CLEAR ENTITLEMENT” TO IMMUNITY IN THIS MATTER.

The bounds of judicial immunity are defined by competing public policy interests: the need to allow judges to render difficult decisions without fear of recrimination, juxtaposed against the citizen’s right to rely upon (and ultimately, claim the protection of) our laws. After all, if a judge can disregard settled law with impunity, we can’t rely on it as a guide to govern our daily affairs, never knowing when some black-robed Uday Hussein might decide to make an ‘exception’ to the rules. See, Planned Parenthood of S.E. Pa. v. Carey, 505 U.S. 833, 844 (1992) (liberty “finds no refuge in a jurisprudence of doubt”). As such, absolute immunity is only bestowed on judges in judicial and quasi-judicial proceedings affording aggrieved parties with timely, well-established, and effective remedies as a matter of right. Horvitz, supra.

To prevail on this motion, the Defendants must establish a “clear entitlement” to absolute immunity, Robinson v. Volkswagenwerk AG, 940 F.2d 1369, 1370 (10th Cir. 1991), and as such, bear the burden of proving that they were engaged in judicial or quasi-judicial acts, Forrester v. White, 484 U.S. 219 (1988), and there is no question of fact whether the procedural safeguards adopted were “adequate,” Ramirez v. Oklahoma Dept. of Mental Health, 41 F.3d 584 (10th Cir. 1994) -- not just on paper, but in actual fact. Devous v. Campbell, 16 F.3d 415 (10th Cir. 1994). Further, as this is a summary judgment motion pursuant to Rule 12(b)(5), all factual disputes and inferences are decided in Smith’s favor. E.g., Medina v. State, 35 P.3d 443 (Colo. 2001).

A.   Colorado’s Bar Admission Process Lacks Adequate Safeguards

      1.   Aggrieved Bar Applicants Are Entitled To An Effective Remedy For Injuries Of Constitutional Magnitude

Absolute judicial immunity is doled out only sparingly, Forrester, 484 U.S. at 224, and only in those situations where the aggrieved party can invoke procedural or other safeguards deemed adequate to control unconstitutional conduct. Horvitz, supra.3 And substance controls.4

The seminal case in this area is Butz v. Economou, 438 U.S. 478 (1978), wherein it was held that federal administrative law judges (“ALJs”) are as entitled to judicial immunity as their counterparts in federal and state trial courts. In so holding, the Butz court reasoned that

…federal administrative law requires that agency adjudication contain many of the same safeguards as are available in judicial process. The proceedings are adversary in nature. They are conducted before a trier of fact insulated from political influence. A party is entitled to present his case by oral or documentary evidence, and the transcripts of testimony and exhibits together with the pleadings constitute the exclusive record for decision. The parties are entitled to know the findings and conclusions on all the issues of fact, law, or discretion presented on the record.

Butz v. Economou, 438 U.S. at 513 (emphasis added, citations omitted).

Butz makes it clear that it is not the act of ‘judging’ that gives rise to absolute immunity5 but rather, the presence of safeguards adequate to right judicial wrongs. In effect, judges enjoy absolute immunity only when they don’t need it. See, e.g., Forrester, supra. Every judicial immunity case can be explained with resort to this rule, including those involving state trial courts.6

And if you aren’t independent, you can’t be a judge for purposes of judicial immunity law.

The Butz Court explained that a proceeding is “adversarial” if the administrative tribunal is exercising judgment “free from pressures by the parties or other officials within the agency,” Butz, 438 U.S. at 513, observing that “there was considerable concern that persons hearing administrative cases at the trial level [under the pre-Administrative Procedure Act (“APA“) system could not exercise independent judgment because they were required to perform prosecutorial and investigative functions as well as their judicial work, and because they were often subordinate to executive officials within their agency.” Id. at 513-14 (citations omitted).

The otherwise unremarkable case of Cleavinger v. Saxner, 474 U.S. 193 (1985), adds an element of timeliness to the immunity equation. In a fact situation close to this one, while the plaintiff was able to have a prison disciplinary board decision overturned upon appeal, he was unable to have it overturned in a timely manner; he lost his “good time,” and with it, his liberty. At least with respect to federal immunity law, “justice too long delayed is justice denied.”7

And if a ‘right’ only exists on paper, it may not as well even exist there, and Butz, Forrester, and Horwitz all presuppose that the procedural remedies in place actually work. But if there was any doubt on that score, the Tenth Circuit eradicated it in Devous v. Campbell, observing that

…Wyoming law [controlled] the unconstitutional conduct in this case as required by the third prong of Horwitz, and in fact, Plaintiff’s rights were vindicated by the Supreme Court of Wyoming’s reversal of his suspension. It was precisely because Wyoming law required certain procedural steps, and because Defendants failed to interpret the law correctly, that Plaintiff was able to gain redress for Defendants’ unconstitutional actions in Wyoming courts prior to filing this suit. Thus, the safeguards set forth by Wyoming law and the Wyoming courts’ willingness to enforce those safeguards in a manner consistent with due process were sufficient to control the unconstitutional conduct in this case.

Devous, 16 F.3d 415, 1994.C10.41454, 12-13 (10th Cir. 1994) (Versuslaw) (emphasis added).

Taken together, these cases hold that unless the aggrieved party has a clear, established, and timely mechanism for forcing government agents to follow the law that actually works, absolute judicial immunity cannot be granted. Every binding judicial immunity decision in this Circuit can be explained by resort to this rule, as can every circuit court case citing Horwitz.8

Diblasio v. Novello is the most recent case in this area of law. Decided just five months ago, that court held on facts substantially identical to the case at bar that New York officials involved in its physician disciplinary process were not entitled to absolute immunity. In distinguishing its decision from the vast array of cases granting immunity (and citing Horvitz), that court observed that “license suspension procedures vary, and the procedures at issue in those cases generally provide physicians much greater protection from erroneous deprivation than New York’s procedure….” Diblasio, 344 F.3d at 300, fn. 2.

Like the regulators in Diblasio, the Board of Law Examiners can only recommend a course of action, Rule 201.10(d)-(e), and Board members are both appointed by and serve at the pleasure of the Justices. Rule 201.2(1)(b). And the Second Circuit found this kind of scheme damning for immunity purposes:

Although these procedures provide some protection to physicians subjected to summary suspension proceedings, the efficacy of those procedures are seriously diminished by other features of § 230. First, by the terms of § 230, the Board’s hearing committee has the power to suggest a course of action only while the commissioner has the final authority to summarily suspend a physician’s license. See § 230(12)(a). Second, although the hearing committee must initiate suspension proceedings, the independence of that body is severely undermined by the commissioner’s appointment and removal powers: eighty percent of the Board members and, derivatively, we can assume that approximately eighty percent of those on the hearing panel, are appointed by the commissioner herself, see, § 230(1), and can be removed at the commissioner’s “pleasure,” see id. at § 230(3). . . . In short, under § 230 the commissioner has virtually unfettered authority….

Diblasio, 344 F.3d at 298-99.

        2.   Binding International Law Guarantees Bar Applicants An Effective Remedy

Ratified in 1992 -- after the immunity cases -- the International Covenant on Civil and Political Rights (“the ICCPR”) requires signatory States “[t]o ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.” International Covenant on Civil and Political Rights, art. 3, cl. (3)(b), 999 U.N.T.S. 171, available at http://www.unhchr.ch/html/menu3/b/a_ccpr.htm. The ICCPR is an “international Bill of Rights,” governing the relationship between a signatory State and her citizens.9 Rights protected under the ICCPR include that to access to the courts (art. 14), to not be subjected to arbitrary or unlawful interference with privacy (art. 17), to freedom of religion (art. 18) and expression (art. 19) to engage in public affairs (art. 25), and to equal protection of the laws (art. 26) -- corresponding to Smith’s Section 1983 claims involving violations of his First, Fourth, and Fourteenth Amendment rights.

While the ICCPR doesn’t create any new rights under domestic law, in this case, it doesn’t have to. The Constitution declares that a validly enacted treaty is the law of the land, U.S. Const. art. VI, cl. 2, and if an act of Congress is not needed to give force to a treaty, it becomes binding law upon ratification. Warren v. United States, 340 U.S. 523 (1951). And this rule makes intuitive sense -- after all, requiring Congress to pass a bill doing exactly nothing would be a colossal waste of time, even for Congress.10 Accordingly, the ICCPR -- at least, as it pertains to the matter before this Court11 -- is either redundant or self-executing.

And timing in this matter is critical, for “international law is part of our law,” The Paquete Habana, 175 U.S. 677, 700 (1900), and an act of congress “ought never to be construed to violate the law of nations, if any other possible construction remains.” Murray v. The Charming Betsy, 6 U.S. 64, 118 (1804). And as it has been ratified by virtually every nation in the civilized world,12 the ICCPR is not just our law by operation of treaty, but it has become jus cogens law.13 Hence, any judge-made law concerning judicial immunity to the contrary is null and void. See, Finley v. United States, 490 U.S. 545, 556 (1989).

Whether this Court finds it in Butz, Devous, Diblasio, or the ICCPR, it has no choice but to find that judges are only immune from personal liability where the law provides an aggrieved citizen an alternative “effective remedy.”

        3.   Colorado’s Bar Admission Procedure Fails The Butz/Cleavinger/Horvitz Test, And Is Unable To Provide An Effective Remedy

Cleavinger v. Saxner lists six factors “characteristic [] of the judicial process”: (a) the need to assure that the individual can perform his function without harassment or intimidation; (b) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (c) insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and (f) the correctability of error on appeal. Cleavinger, 474 U.S. at 202 (citing Butz, 438 U.S. at 512).

In this case, five of the factors weigh in opposition to absolute immunity, of which four can be addressed summarily. First and most obviously, published opinions are not issued in admission proceedings and as such, there is no precedent upon which a participant may rely. Second, the one and only binding decision on an application is made by the state supreme court justices themselves, Rule 201.10(3), and no established avenue exists for a timely appeal on the merits. Third, the process falls comically short of an adversarial one as defined by Butz, insofar as Board members serve at the pleasure of the state supreme court, Rule 201.2(1)(b), and they cannot even be trusted to keep their own prosecutors and triers of fact separate.14 First Am. Complaint (hereinafter, “FAC”), 3. Finally, the justices are elected public officials, who are by definition not insulated from political influence -- a fact further borne out by partisan decisions rendered from the bench.15

However, a careful reading of Butz reveals that the aforementioned Cleavinger ‘factors’ are themselves safeguards, and the list is not intended to be exclusive. Mylett v. Mullican, 992 F.2d 1347, 1353 (5th Cir. 1993) (citation omitted). Accordingly, Horwitz is still good law, and this Court’s only job with respect to this issue is to answer one simple question: Were the safeguards in place in fact ‘sufficient’ to control the unconstitutional conduct Smith has alleged? And the only way to do this is to analyze the admission process on an “as-applied” basis. See, Devous, supra.

a. Initial Investigation Prior To Inquiry Panel Review

In Colorado, extensive investigations into an applicant’s fitness to practice law are not conducted as a matter of course. Rather, Rule 201.9(1) requires the executive director to conduct an investigation “pursuant to guidelines developed by the Bar Committee,” and his initial decision on whether “probable cause” exists to investigate further is to be reviewed by “a member of the Bar Committee” designated by its chair. As investigations are only initiated after the applicant has met all “objective” requirements for admission, time is clearly of the essence; the secondary review process is presumptively designed to keep the Executive Director from making arbitrary or capricious decisions, or decisions otherwise at variance with constitutional requirements.

Under Devous, this Court need not determine whether these procedural safeguards are adequate, because as a practical matter they do not exist. Defendant Coyle warranted that no written guidelines existed, and their putative “oral guidelines” are so vague as to be utterly meaningless. FAC, 30. Similarly, an internal Board document indicates that the legal requirement of review by a Bar Committee member is routinely disregarded, and that Smith’s application was not given the consideration required by law. FAC, 32.

And this is hardly a trivial matter. Smith met every objective qualification for admission to practice on or about May 5, 1996, but as a direct result of Defendant Alan Ogden’s unilateral and unreviewed decision, Smith suffered a four-month suspension of his right to practice law, without notice, a hearing, or even a cursory explanation. When confronted with a similar situation in Diblasio, the Second Circuit found such practices unacceptable:

In short, under § 230 the commissioner has virtually unfettered authority to determine whether a physician’s license should be summarily suspended pending resolution of misconduct charges -- a process that, in this case, took eight months. The absence of meaningful safeguards against arbitrary executive action in a summary suspension proceeding weigh against extending absolute immunity to [the defendants.]

Diblasio, 344 F.3d at 299.

b. The Inquiry Panel Process

The “due process vagueness” problem inherent in Colorado’s bar admission procedure has been discussed at extensive length in Smith’s motion for injunctive relief, incorporated herein by reference. In short, the standardless “any evidence” standard is no “standard” at all, and a statute permitting bar examiners to consider any evidence they damn well please necessarily means that activity sheltered by the First Amendment is fair game. And if that First Amendment line hadn’t been crossed so flagrantly by the Defendants, the matter probably would not be before this Court. It can safely be said that there are no safeguards in the admission process which were adequate to control such McCarthy-esque conduct -- either in theory or practice.

On account of the lack of standards and meaningful judicial review, the dilemma that a bar applicant faces is one of whether to surrender his or her rights in the face of official intimidation and blackmail. At least in the inquiry panel process, Smith succumbed to the Board’s blackmail, answering questions (e.g., “Why don’t you let go?”) which should never have been asked, out of the reasonable fear that failure to cooperate would have dire consequences. Smith drew the line, and reasonably so, at their outrageous demand for an involuntary psychiatric examination, which he was expected to pay for out of his own pocket.

A more concrete example of an ineffectual “safeguard” is the requirement in Rule 201.9(6) that the inquiry panel commit their findings to writing within thirty days of reaching a decision on whether probable cause exists to challenge an applicant’s fitness to practice law. Presumably, this statutory provision is intended to protect applicants’ due process rights, both by requiring the panel to conduct its business with necessary dispatch and to elucidate the legal and factual basis upon which their decision rests. Moreover, this requirement is jurisdictional in nature. See, Shaball v. State Compensation Ins. Authority, 799 P.2d 399, 402 (Colo.App. 1990) (time limit is jurisdictional when delay affects “private rights”).

This “safeguard” again fails the Devous test. The Inquiry Panel Defendants reached their probable cause determination on Smith’s application on July 28, 1998, FAC, 53, but didn’t submit their findings, as required by statute, until October 26, 1988. FAC, 54. What’s more, the Defendants buried the evidence of their willful noncompliance in a stack of documents several inches thick.

                  c. The Hearing Panel Process

As bad as these procedures are, the hearing panel phase of Colorado’s admission process is where justice truly meets high comedy -- for at this point, any resemblance to a court proceeding is strictly accidental.

We start with the hearing panel chair, endowed with authority to rule on motions and issue subpoenas. But not only is the chair not a judge, there is nothing in the statute requiring the chair to be an attorney! Rule 201.10(2); see Rule 201.2(1)(b) (two of the eleven Committee members required to be non-attorneys). As such, you could have the bizarre spectacle of a cosmetologist ruling on subtle issues of First Amendment law, without any mechanism for timely review.

Under Butz, the trier of fact has to be “free from pressures by . . . other officials within the agency.” Thus, even ignoring the ludicrous spectacle of Carlos Samour’s appearance on both the inquiry and hearing panels involved in considering Smith’s application, FAC, 3, there is no real question that the hearing is not ‘adversarial.’ Hearing panel members are chosen from a shallow pool of eleven ‘jurors’ -- who are also named from time to time as inquiry panel members. Rule 201.6. It is not hard to see how members of a hearing panel might be induced to “see things” the inquiry panel’s way, as jurors become prosecutors and vice versa, and they may need a reciprocal favor somewhere down the road.

The formal hearing itself is normally confidential, and the hearing panel “shall not be bound by the formal rules of evidence.” Rule 201.10(2)(c). Again as contrasted to a civil trial, there are none of the customary assurances that allegations made against an applicant are true, relevant, or even reasonably credible.

This situation is compounded by the lack of procedural rules governed by binding precedent and enforced by reviewing courts. The most odious example from this case is Defendant Backes’ summary decision ordering Smith to submit to an involuntary psychiatric examination conducted by one of four psychiatrists hand-picked by the Board, in contravention of federal law, the Colorado constitution, and even the Board’s own enabling statute. Ignoring the apparent illegality of the order itself, if the admission proceeding had been conducted pursuant to the Colorado Rules of Civil Procedure, the request for the examination would have been denied as a matter of law, as “good cause” requires more than a government official’s opinion. (As this matter is discussed at greater length in his motion for a show cause order, Smith incorporates it herein by reference.)

The mischief factor inherent in such an arrangement is enormous. As psychiatry is arguably only two steps removed from shamanism, it is relatively easy to find an “expert” who will testify to virtually anyone (including President Bush16) having a ‘mental illness.’ And as the physicians in question can count on continuing to receive a steady stream of lucrative referrals in exchange for Board-friendly opinions, they have a natural incentive to provide them.

This state of affairs leads inexorably to arbitrary, capricious, and ultimately outcome-based decisions. And while Smith is only privy to two evidentiary rulings by hearing panel chairs, the two rulings are sufficient to indicate that this kind of cronyism and corruption may take place in the agency. When Smith refused to obey the examination order on constitutional grounds, he was denied a Rule 201.10 hearing, but when bar applicant Leonard Alford Thomas refused to submit to the same order, he was granted a hearing. FAC, 87(e). As Mr. Thomas was then a candidate for the state House of Representatives, he could well have received preferential treatment on this account. Or more likely, Smith may have been denied a hearing because the panel members had no legitimate reason for denying him a license, and needed to invent one.

                d. The Colorado Supreme Court’s Role

At least in theory, the Colorado Supreme Court’s role in the bar admission procedure is to review their subordinates’ work, to ensure that constitutional and other strictures were observed. But since the Court, by and through agents serving at its “pleasure,” Rule 201.2(1)(b), maintains plenary control over every aspect of the admission procedure, it blends the roles of investigator, prosecutor, and judge. The Diblasio court found such an arrangement problematic, noting that

as agency head she appears to wear several hats in the course of a summary proceeding: overseer of the investigation, initiator of charges and summary proceedings, and final arbiter of the decision to impose and sustain the summary suspension of a physician’s license. By blending the roles of investigator, prosecutor, and judge, § 230 unduly risks compromising the independence and neutrality of the commissioner’s judgment, and abrogating the checking function achieved in the judicial system by separating investigative, prosecutorial, and judicial staffs.

Diblasio, 344 F.2d at 300.

Judicial independence is a vital ‘check’ on unconstitutional conduct, and its absence weighs overwhelmingly against a grant of immunity. After all, where an independent court is free to say that the Defendants have committed a tort and a crime, the Colorado Supreme Court justices are not “independent” enough to be expected to confess their own criminal negligence. E.g., United States v. Koon, 34 F.3d 1416 (9th Cir. 1994) (supervisory liability under 18 U.S.C. § 241),

A final due process check is the issuance of a detailed written opinion. Without it, there is no assurance that the tribunal’s decision was made on the basis of the record and only the record. The Butz Court found this aspect of federal administrative law crucial to its grant of immunity to administrative law judges operating pursuant to the federal APA:

A party is entitled to present his case by oral or documentary evidence, and the transcripts of testimony and exhibits together with the pleadings constitute the exclusive record for decision. The parties are entitled to know the findings and conclusions on all the issues of fact, law, or discretion presented on the record.

Butz, 478 U.S. at 513 (emphasis added, citations omitted).

If you lose your case in front of, say, the Federal Communications Commission, the ALJ has to follow agency precedent and tell you in detail why you lost, and you have a right to appeal the decision to a higher court. By stark contrast, bar applicant Smith has no way of knowing why a convicted felon and cocaine dealer with known Democratic Party ties received a law license from Democratic Party judges while he did not, and has no readily recognized avenue of appeal on the merits. And more to the point, he has no way of knowing whether he will ever be able to qualify for admission to the profession that he has spent years training for.

e. General considerations

The Defendants have taken some pains to prove to this Court that Smith was represented by counsel in this matter, Mot. at 4, as if the fact somehow has inherent talismanic significance. But that fact should raise more questions than answers for this Court: most notably, that the remedies available to Smith were either so obscure or so meaningless that even an attorney with the reputation and widely recognized skill of a David Lane couldn’t employ them on his behalf. Mot., Exh. M at 1-2. It is impossible to imagine any inherent due process value that a right to be represented by counsel adds in Colorado’s kangaroo bar “court.”

While extensive review of the case law reveals even more flaws inherent in Colorado’s bar admission process, brevity demands limits. Under Horwitz, this Court cannot grant absolute judicial immunity to the Defendants unless it finds that the safeguards in place were in fact adequate to control their alleged unconstitutional conduct.

B. Certain Defendants Were Engaged In Supervision -- A Non-Judicial Act

Even in a quasi-judicial proceeding, not every act is cloaked in immunity. The Colorado Supreme Court justices delegated virtually all of those acts which could fairly be called “quasi-judicial” -- e.g., fact-finding -- to their subordinates on the Board of Law Examiners. Rule 201. As such, their only role in the bar admission process, apart from making the ultimate decisions on applications, was as a supervisor -- an inherently administrative task, for which they are not entitled to immunity. Forrester, 484 U.S. at 229-230. As supervisors, they had an affirmative obligation to ensure that Smith’s federal rights were protected, and thus, are civilly liable for failing to act. Woodward v. City of Worland, 977 F.2d 1392 (10th Cir. 1994).

The same argument applies, a fortiori, to authorized agents of the Board of Law Examiners. For instance, Smith’s Professional Responsibility professor, Linda Donnelly, is named solely due to the fact that she had a legal and an ethical (CRPC 5.1) obligation to properly supervise Board attorney James Coyle. While Ms. Donnelly’s actual or constructive knowledge of the situation at bar is one which can only be ascertained via discovery, it is not an issue that can be wished away through summary judgment. Similarly, as the Board employs Defendants Donnelly, Ogden, and Coyle, Rule 201.2(2), and certain Board members had actual or constructive knowledge of their improper conduct, they had an affirmative obligation to take remedial action. Colo. RPC 5.1(c).

III. DEFENDANTS’ RES JUDICATA MOTION IS FRIVOLOUS, REDUNDANT, OR IRRELEVANT

        1.    The Res Judicata Motion Is Frivolous

The doctrine of res judicata is based on the principle that a final judgment on the merits by a court of competent jurisdiction is conclusive upon the parties in any later litigation involving the same course of action. E.g., Kerndt v. Ronan, 458 N.W.2d 466 (Nebr. 1990). The first question which must be asked here is whether the decision to deny Smith a license is a final judgment on the merits by a court, or a quasi-judicial decision by an administrative agency which just happens to be administered by a court. And to say that a decision is a final judgment on the merits simply because a court happened to make it is to elevate form over substance. See, e.g., Butz, supra.

The Supreme Court dealt with this question squarely twenty years ago, when it held that the decision of a state administrative agency reviewed by a state court is entitled to preclusive effect, but only if the claimant has been afforded the process he is due. Kremer v. Chemical Construction Corp., 456 U.S. 461, 482 (1982) (a state “may not grant preclusive effect in its own courts to a constitutionally infirm judgment”). Thus, as Smith has alleged that the Defendants deprived him of due process of law, this Court would necessarily have to decide that issue on the merits to apply res judicata. As such, Defendants’ motion for res judicata is by definition frivolous.

But it gets worse. Res judicata can only constitute an absolute bar to subsequent litigation where there is an identity of subject matter, causes of action, parties to the action, and identity of capacity in the persons for which or against whom the claim is made. E.g., Consolidated Home Supply Ditch and Reservoir Co. v. Town of Berthoud, 896 P.2d 260, 264 (Colo. 1998) (Mullarkey, J.; citations omitted). But if the Defendants were judges in that action -- as they implicitly claim in their motion -- they couldn’t possibly be “parties” to the current one!

And it only gets worse. Under Kremer, an administrative decision can be given preclusive effect when it is reviewed by a court, but “without some stated guidelines, and specific findings of fact, judicial review is a hollow gesture.” Elizondo v. Colorado Dept. of Revenue, 194 Colo. 113, 118, 570 P.2d 518, 521 (1977). Accordingly, the Hearing Panel chair’s summary decision ordering Smith to submit to an involuntary psychiatric examination, Mot., Exh. F., couldn’t have been “reviewed” under Kremer, and the order denying Smith a license, Mot., Exh. N, has never been reviewed by anyone. As such, they are not entitled to preclusive effect.

And it only gets worse. An otherwise valid court judgment only “operates as res judicata, in the absence of fraud or collusion.” Riehle v. Margolies, 279 U.S. 218, 225 (1929) (citations omitted). Smith has alleged facts indicating that the order for the involuntary psychiatric examination was procured by the active fraud of James Coyle, FAC, 61-66, and collusion between Inquiry and Hearing Panel members, e.g., FAC, 3. Thus, this Court must necessarily decide those questions of fact before that motion can be given preclusive effect.

And it only gets worse. The covert nature of Colorado’s super-sekrit star-chamber makes it an inappropriate venue for adjudication of constitutional issues. Decisions are all presumptively ad hoc and carry no discernible precedential value; neither the Board nor the Colorado Supreme Court bother to issue written opinions, much less publish them. Moreover, the “very privacy of the proceeding militates against a meaningful constitutional adjudication, since the determination will not provide any remedy against the chill which the rules and the filing of charges” would create in other bar applicants. Garden State Bar Assn. v. Middlesex County Ethics Committee, 643 F.2d 119, 126 (3rd Cir. 1981).

And it only gets worse. It is logically impossible for the Supreme Court Defendants to render judgment on a tort claim arising from their own misconduct in issuing a decision. Specifically, a bar applicant is entitled to a detailed statement of reasons and findings of fact pertaining to the denial of his licensure application. In re Berkan, supra.; Elizondo, supra. As the “court order” in question is facially devoid of the kind of detailed explanation due process demands, Mot., Exh. N, the legality of that specific failure to comport with the requirements of the Due Process Clause could not possibly have been decided in a trial on the merits without use of a time machine.

And it only gets worse. Where the basis of a decision is not made clear, it “will not be a bar to a subsequent action on the same cause of action unless the sole possible ground for the decision is a determination on the merits.” 50 C.J.S. Judgment § 728 (1997) (citations omitted). As a bar applicant may be lawfully denied a license on grounds of moral, ethical, or mental unfitness to practice law, the Defendants failure to explain their decision to deny Smith a license is not res judicata with respect to his facial challenges. After all, if they decided, for example, that Smith was not morally fit to be a lawyer, it would not have to have decided whether Rule 201 is unconstitutionally vague, and it must therefore be presumed to not have reached that issue.

        2.    The Res Judicata Motion is Also Redundant

And it only gets worse. Res judicata presupposes that a final judgment rendered by a court of competent jurisdiction, which a judge with a personal interest in the outcome of a case cannot as a matter of law be. Tumey, supra. This, in turn, necessarily renders the issue of res judicata moot, and quite obviously so. After all, if the Defendants are deemed immune from liability in tort, an entire class of Smith’s claims automatically disappears. Conversely, if they can be held personally liable for their tortious conduct, they have an identifiable interest in the outcome of said litigation, and would have had to have recused themselves. Id.

        3.      The Res Judicata Motion Is Also Irrelevant

The only decision relevant to this case that could theoretically have preclusive effect is the one denying Smith a license to practice law. But even if it were a valid court judgment, it is the one and only such decision concerning Smith’s application, and article II, section 6 of the Colorado Constitution guarantees Smith a remedy. And, as the Defendants have granted themselves absolute immunity in tort for state law purposes, the only remedy left is injunctive relief.

IV. THE DEFENDANTS HAVE NOT DEMONSTRATED AN ENTITLEMENT TO QUALIFIED IMMUNITY

The Tenth Circuit explains the procedure for analyzing a qualified immunity defense:

First, the defendant must raise the defense of qualified immunity. Once the defendant has adequately raised the defense, the plaintiff must show that the law was clearly established when the alleged violation occurred and come forward with facts or allegations sufficient to show that the official violated the clearly established law. Then the defendant assumes the normal summary judgment burden of establishing that no material facts that would defeat his claim for qualified immunity remain in dispute.

Woodward, 977 F.2d at 1396-97 (citations omitted).

A.    Pertinent Law Was Clearly Established At The Time Of The Incident

To overcome a defense of qualified immunity, the plaintiff must show that a defendant violated a clearly established constitutional right that a reasonable person in the defendant’s position would have known. Harlow v. Fitzgerald, 457 U.S. 800 (1982). For a clearly established right to be violated, the exact conduct in question does not have to be previously declared unlawful; however, “in light of pre-existing law the unlawfulness must be apparent,” and “the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1995). Thus, Smith is obliged, at the risk of stating the obvious, to tell this Court in gruesome detail what the relevant pre-existing law is.

        1.    The Bar Applicant’s Clearly Established “Portfolio of Rights”

What are the ‘rights’ of a bar applicant? First and foremost, a bar applicant’s interest in the right to practice law is a constitutionally protected liberty or property interest, for which he or she is entitled to equal protection and due process. Schware, supra.

The Bill of Rights further protects an applicant’s right to speak on public issues, Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964), to petition the government for redress of grievances, Nordgren v. Milliken, 762 F.2d 851 (10th Cir. 1985), to be free from unwarranted state intrusions upon their personal privacy, Schmerber v. California, 384 U.S. 757, 767 (1966), and to equal protection of the law. Romer v. Evans, 517 U.S. 620 (1996). Indirect interference in the enjoyment of these rights is as actionable as open and direct interference, Perry v. Sindermann, 408 U.S. 583, 597 (1972), and ‘retaliation’ in particular is specifically proscribed. Worrell v. Henry, 219 F.3d 1197 (10th Cir. 2000). Smith has asserted facts indicating the violation of each and every one of these rights, either individually or in the alternative, thereby meeting his initial burden. Siegert v. Gilley, 500 U.S. 226, 232 (1991).

         2.   What Reasonable Defendants Are Charged With Knowing

“A reasonably competent government official should know the law governing his conduct,” Harlow, 457 U.S. at 818-19 (1982). Further, many if not all of the Defendants are lawyers, who must have a working knowledge of hornbook civil rights law and an ability to spot legal issues sufficient to pass a state bar examination, and an independent ethical obligation to either be competent in the areas of law where they practice or become competent. CRCP Rule 1.1. And with respect to our state supreme court justices, they should reasonably be expected to have an expert-level knowledge of the entire Corpus Juris Secundum.

              a.  The Law of Agency

The law of agency affects virtually everything a lawyer does, from hiring staff to representing clients to figuring out who to sue. It impacts this case in several ways: defining the scope of the Defendants’ authority as agents, their responsibility as supervisors, and the implications of a master-servant relationship upon immunity law.

                  1.  Scope of a government agent’s authority

A government official is a ‘servant of the people’; the bounds of his agency and the limit of his discretion is the law. Ex parte Virginia, 100 U.S. 339 (1879). As such, by way of example, a judge cannot “exclude colored men [from a jury] merely because they were colored,” as that act is not “left the limits of his discretion.” Id. at 348.; see Butz, 438 U.S. at 489-90 (“A federal official who acted outside his statutory authority would be held strictly liable for his trespassory acts.”). Thus by implication, any official’s order without proper support in law is null and void, and a citizen cannot be punished for disregarding it.

                  2.  Principal’s liability for his agent’s conduct

President Truman’s famous motto, “The buck stops here,” is also an axiom of agency law. As L.A.P.D. sergeant Stacey Koon found out the hard way (a 22-month prison sentence for failure to restrain his fellow officers during the beating of Rodney King), a supervisor may be both civilly (Woodward, supra.) and criminally (Koon, supra.) liable for civil rights violations committed by persons under their command and control.

                  3.   Ancillary effects of an agency relationship

The Butz v. Economou doctrine, developed earlier in this brief, is that if a “judge” isn’t truly independent, he or she is not a “judge” for purposes of immunity law. In cases like Diblasio and Cleavinger, where judicial independence is notable only by its absence, Butz precludes immunity. And while Diblasio and Devous create no new law, they retrace the proper analytical process.

              b.  First Amendment Law

The First Amendment creates a safe harbor for citizens engaging in activities essential to the preservation of a free and democratic republic which our government may not enter, either before (prior restraint), during (censorship), or after the fact (retaliation), either directly or indirectly.

                    1. Freedom of Speech, Religion, and the Press: “Journalistic And Internet Exposes” Are Constitutionally Protected Conduct

One of the most obvious rights in our Constitution is the First Amendment17 right to speak one’s mind on issues of the day, free from the fear from retaliation by government officials. As Justice Frankfurter said, “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).

Defendant Michael Bender may be the most capable jurist on the Colorado Supreme Court, and when the klieg lights of the media were trained upon him in Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. 2002), he displayed a solid understanding of clearly established contours of this right. He rightly noted that the purpose of the First Amendment was “to protect unpopular individuals from retaliation -- and their ideas from suppression -- at the hand at an intolerant society.” Id. at 1053 (quoting McIntyre v. Ohio Elections Commission, 514 U.S. 334, 357 (1995)). He quoted Justice Brandeis’ observation that “[Our founders] believed that freedom to think as you will and speak as you think are means indispensable to the discovery and spread of political truth.” Id. at 1052 (quoting Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). And he observed that the First Amendment protected “a wide spectrum of activities,” Id. at 1051, -- most certainly wide enough to protect Smith’s “journalistic and internet expose” of a corrupt public figure. And every relevant precedent invoked in Tattered Cover was settled law long before the matter of Smith’s application ever came before the Defendants.

                     2.   The Right to Petition: Litigation Is Protected Conduct

In Mine Workers, Justice Black stated that the right to petition the government for redress of grievances was “among the most precious of the liberties safeguarded by the Bill of Rights.” United Mine Workers Dist. 12 v. Illinois Bar Assn, 389 U.S. 217, 222 (1967). And this truth is self-evident: the only “rights” that we as citizens have are those we have the courage to claim, and the courts, the character to enforce when asked. Majorities can take care of themselves, but at the end of the day, we are all a minority of one.

The right of access to the courts is an essential aspect of the broader right to petition. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). But even this right has limits. “Just as false statements are not immunized by the First Amendment right to freedom of speech, baseless litigation is not immunized by the First Amendment right to petition.” Bill Johnson’s Restaurants, Inc. v. National Labor Relations Board, 461 U.S. 731, 743 (1983) (citations omitted). And as a matter of necessity, every practicing attorney has to know where those limits are. See, e.g., Rule 11; CRPC 3.1..

As he usually did, Justice Quinn defined those limits clearly in Protect Our Mountain Environment, observing that petitioning activity was not immunized from liability if

(1) the … claims were devoid of reasonable factual support, or if so supportable, lacked any cognizable basis in law for their assertion; and (2) the primary purpose of the … petitioning activity was to harass the plaintiff or to effectuate some other improper objective; and (3) the … petitioning activity had the capacity to adversely affect a legal interest of the plaintiff.

Protect Our Mountain Environment, Inc. v. District Court, 677 P.2d 1361, 1369 (Colo. 1984).

To state the POME rule affirmatively, if a claim is not without factual support or devoid of legal merit, that petitioning activity is sheltered by the First Amendment. Moreover, to say that a lawyer may prosecute a claim with impunity, but a future bar applicant cannot, violates the applicant’s rights under the Equal Protection Clause. See, Romer v. Evans, supra..

                       3.    Indirect Restraints on Protected Conduct Are Impermissible

In Saddam Hussein’s Iraq, you were free to say whatever you wanted to, but if you ever said something the government didn’t like, Uday Hussein was reportedly at liberty to cut your tongue out. But there are more subtle ways for the government to control speech and/or conduct, equally impermissible under our law. As the Colorado Supreme Court, with Defendant Mary Mullarkey voting in the majority, observed:

The government may not deny a benefit to a person on a basis that infringes his constitutionally protected interest . . . For if the government could deny a benefit to a person because of his [exercise of] constitutionally protected [rights], his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to produce a result which it could not command directly. Such interference with constitutional rights is impermissible. Perry v. Sindermann, 408 U.S. 583, 597 (1972).

University of Colorado v. Derdeyn, 863 P.2d 929, 947 (Colo. 1993) (emphasis added).

The doctrine banning acts of indirect governmental retaliation for protected speech is a well-traveled one, most often appearing in retaliation cases against government whistleblowers. E.g., Dill v. City of Edmond, 155 F.3d 1193 (10th Cir. 1998) (application of Pickering test). But it has also been invoked in Baird v. State Bar of Arizona, 401 U.S. 1, 8 (1970), wherein the Court held that “views and beliefs are immune from bar association inquisitions designed to lay a foundation for barring an applicant from the practice of law.”

In Tattered Cover, Justice Bender shows a fine grasp of the clear and present danger indirect restraints pose to free speech and free inquiry. Allowing the government to say that “you can say what you like, but if we don’t like you say, we can destroy your career” is almost as menacing to free speech as the Uday Hussein-approved method. Using one of Justice Douglas’ most memorable concurrences, Bender recites the ‘parade of horribles’ indirect restraints would precipitate:

….[T]he free press as we know it disappears. Then the spectre of a government agent will look over the shoulder of everyone who reads. . . . Fear of criticism goes with every person into the bookstall. The subtle, imponderable pressures of the orthodox lay hold. Some will fear to read what is unpopular, what the powers-that-be dislike. . . . [F]ear will take the place of freedom in the libraries, book stores, and homes of the land. Through the harassment of hearings, investigations, reports, and subpoenas government will hold a club over speech and over the press. [United States v. Rumely,] 345 U.S. 41, 57-58 (Douglas, J., concurring).

Tattered Cover, 44 P.3d at 1053 (emphasis added).

Although the ink is barely dry on Tattered Cover, the principle undergirding it is etched in Constitutional stone: “The First Amendment would, however, be a hollow promise if it left government free to destroy or erode its guarantees by indirect restraints so long as no law was passed that prohibits free speech, press, petition, or assembly as such.” Mine Workers, 389 U.S. at 222.

                   4.   Indirect Restraints: The Due Process Vagueness Doctrine

The due process vagueness doctrine requires lawmakers to set reasonably clear guidelines to prevent arbitrary or discriminatory enforcement of a statute, Smith v. Goguen, 415 U.S. 566, 573 (1974), and it is unconstitutionally vague if its standards are so ill-defined as to create a danger of same. E.g., Kibler v. Colorado, 718 P.2d 531, 534 (Colo. 1979); Smith v. Plati, 258 F.3d 1167 (10th Cir. 2001). Moreover, 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. And the reason is obvious: Unfettered discretion leads inexorably to selective enforcement of a statute, Kolender v. Lawson, 461 U.S. 352, 358 (1983); LDS, Inc. v. Healy, 197 Colo. 19, 21, 589 P.2d 490, 491 (1979), thereby chilling the First Amendment rights of all citizens, Arnett v. Kennedy, 416 U.S. 134, 231 (1983) (Marshall, J., dissenting), because “[w]hen one must guess what conduct or utterances may lose him his position, one necessarily will ‘steer far wider of the unlawful zone.’” Keyishian v. Board of Regents, 385 U.S. 589, 603-04 (1967), (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958)).

But how much specificity is enough? Again, we turn to Defendant Mary Mullarkey for the definitive answer: statutes “confronting First Amendment freedoms must be specific enough not to inhibit the exercise of those freedoms.” People v. Batchelor, 800 P.2d 599, 603 (Colo. 1990) (citation omitted; en banc opinion delivered by now-Chief Justice Mullarkey). And while a facially unconstitutional bar admission statute was upheld, the Court stated that the New York bar examiners’ practice of interpreting it in a manner respecting those freedoms was the dispositive fact. Law Students Civil Rights Committee, Inc. v. Wadmond, 401 U.S. 154 (1971). As such, a reasonable bar examiner would know that he or she was on a short First Amendment leash.

                c.   The Right to Due Process

The Due Process Clause requires governmental entities to provide a person whose constitutionally protected interests in life, liberty, or property18 are being threatened an “opportunity to be heard in a meaningful time and in a meaningful manner.” Matthews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965). The due process standard “is flexible and calls for such procedural protections as the situation demands,” Morrissey v. Brewer, 408 U.S. 471, 481 (1972), determined by the weighing of three factors: the significance of the interest affected, the risk of erroneous deprivation inherent in existing procedures, and an assessment of whether improved procedures are worth the cost. Matthews, 424 U.S. at 335 (citation omitted).

                     1.   The Process Due a Bar Applicant

With respect to professional licensure disputes, federal and state courts have determined the appropriate level of “process” due: a full, fair, trial-type hearing, Willner v. Committee on Character, 373 U.S. 96 (1963), conducted in a timely manner, Barry v. Barchi, 433 U.S. 455 (1979). Applicants can expect their ‘fitness’ to be judged by reference to an ascertainable and reasonably explicit standard, Doe v. Civil Aeronautics Board, 356 F.2d 699 (10th Cir. 1966), that the licensing agency will follow its own statutes, In re Thalheim, 853 F.2d 383 (5th Cir. 1988), and that it will issue a statement of reasons and indication of the proof relied upon by decisionmakers. In re Berkan, supra., cited with approval in In re Suspension of Judith Ward Mattox, 758 F.2d 1362 (10th Cir. 1985); see also, Elizondo, supra.

                     2.    Due Process and the Right to Privacy

Justice Brandeis defined the constitutional right of privacy as “the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men.” Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). It is grounded in the Fourth and Fifth Amendments, and described as protection against all governmental invasions “of the sanctity of a man’s home and the privacies of life,” Boyd v. United States, 116 U.S. 616, 630 (1886), and one elemental aspect of this right is an “individual[’s] interest in avoiding disclosure of personal matters.” Whalen v. Roe, 429 U.S. 589, 600 (1977).

“The Due Process Clause directly protects fundamental aspects of personal privacy against intrusion by the State,” Mangels v. Pena, 789 F.2d 836, 839 (10th Cir. 1986). And here, it is with good reason, as it is difficult to imagine more intimate and personal information than the secrets of a man’s mind, and no act more violative of his privacy and personal dignity than having them rummaged through by a state-mandated psychiatrist on a “fishing expedition” search of supposed “mental instability.” See, e.g., National Fed’n of Fed. Employees v. Greenberg, 789 F.Supp. 430 (D.D.C. 1992). For once that information is disclosed to a third-party, the ethical tie created by the physician-patient privilege disappears, Draft Report of the ABA Section of Individual Rights & Responsibilities Report to the House of Delegates, Feb. 1, 1993, at 2-3, as quoted in Wielobob, Bar Application Mental Inquiries: Unwise and Unlawful, Human Rights, Winter 1997, p. 13, and under the law as it then stood, if a Court functionary entrusted with this extraordinarily sensitive information maliciously disclosed it to third parties, the injured applicant would not even have a remedy in tort! Rule 201.2(5) (1995) (amended 2000) (fixing this problem).

Under federal law, in determining when a person should be required to undergo a psychiatric examination, a court must balance the interests involved, considering whether the subject “has a legitimate expectation of privacy, (2) if disclosure serves a compelling state interest, and (3) if disclosure can be made in the least intrusive manner.” Denver Police Protective Ass’n v. Lichtenstein, 660 F.2d 432, 435 (10th Cir. 1981). As information about a person’s mental fitness can be obtained from his associates, see, In re Anastaplo, 366 U.S. 83, 106-07 (1961) (Black, J, dissenting) (extensive background check by Illinois bar), and the only criteria which may be applied must be related to “the singular objective of ensuring that attorneys are honest and proficient in the basic skills and knowledge of their profession,” Goldsmith v. Pringle, 399 F.Supp. 620, 625 (D.Colo. 1975), it is difficult to credibly contend that any state bar has the right to conduct such a search without first conducting a strenuous background check.

While the Fourth Amendment protections of privacy are considerable, article II, section 7 of Colorado’s constitution provides its citizens with even more zealous protection of their personal privacy. See, People v. Hillman, 834 P.2d 1271, 1279-80 (Colo. 1992) (Quinn, J., dissenting; collecting cases).19 Stating the obvious, Justice Bender adds: “the protections afforded by the Colorado Constitution are of little value if the [aggrieved party] is not given an opportunity” to challenge the constitutionality of a government-conducted search. Tattered Cover, 44 P.3d at 1060. Justice Bender concluded that:

Had it not been for the Tattered Cover’s steadfast stance, the zealousness of the City would have led to the disclosure of information that we ultimately conclude is constitutionally protected. This chronology demonstrates the importance of providing [parties whose rights are affected by a search] with an opportunity to contest the actions of law enforcement officials in an adversarial setting.

Id. at 1060.

If the contents of a man’s bookshelf are so sacred and precious that the government may not examine it without a proper hearing, what about the contents of a man’s mind? Surely, if government voyeurs could rummage through our deepest and darkest thoughts, hopes, and fears, for any reason or no reason at all, the contents of our bookshelves scarcely matter. Article II, section 7 of the Colorado Constitution states, in pertinent part:

The people shall be secure in their persons . . . from unreasonable searches and seizures, and no warrant to search any place shall issue . . . without probable cause, supported by an oath or an affirmation reduced to writing.

As no consent can be “voluntary” where failure to consent results in denial of a government benefit, Derdeyn, 863 P.2d at 947, the State must show a “compelling reason or need” People v. Chard, 808 P.2d 351 (Colo. 1981), to conduct an involuntary psychiatric examination. This, in turn, requires the court to “balance the possible emotional trauma, embarrassment or intimidation to the complainant against the likelihood of the examination producing material, as distinguished from speculative, evidence.” People v. Estorga, 612 P.2d 520, 523 (Colo. 1980). And, for that reason, “good cause” actually means more than “’cause we wants it.” Schlagenhauf v. Holder, 379 U.S. 104 (1964).

                   3.    The Americans With Disabilities Act

In 1990, Congress enacted the Americans With Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”), establishing additional civil rights protections for persons with disabilities. By Jan. 26, 1992, the effective date of the Act, all public entities, including state licensing boards, see, e.g., Ware v. Wyoming Bd. of Law Examiners, 973 F.Supp. 1139 (D.Wyo. 1997); Clark v. Virginia Bd. of Law Examiners, 880 F.Supp. 430, 441 E.D.Va. 1995), were required to comply with its provisions.

Title II prohibits “discrimination” by a “public entity” against a “qualified individual with a disability,” 42 U.S.C. § 12132 (1999), defining such an individual as one “who meets the essential eligibility requirements . . . for the receipt of services or participation in programs” provided by a public entity, Id. § 12131, and an “individual with a disability” includes those who are not disabled, but are nonetheless “treated by a covered [public] entity as having a substantially limiting impairment.” 29 C.F.R. § 1630.2(1); Richards v. City of Topeka, 173 F.3d 1247 (10th Cir. 1999). The ADA’s focus is thus not the impairment itself, but the alleged impairment’s “effect upon the attitudes of others.” MacDonald v. Delta Air Lines, Inc., 94 F.3d 1437, 1444 (10th Cir. 1996).

Section 12132 covers not only “exclusion from participation in or [denial of] benefits of the services, programs, or activities of a public entity, but also being “subjected to discrimination by any such entity.” 42 U.S.C. § 12132 (1999). A public entity discriminates against bar applicants regarded as having disabilities if it imposes additional burdens upon them, Clark, supra., and the imposition of a substantial surcharge upon disabled persons constitutes discrimination forbidden under the ADA. See, Dare v. California, 191 F.3d 1167, 1171 (9th Cir. 1999) ($6 charge for handicapped placard is discrimination; collecting pre-1999 cases).

Similarly, a public entity may not “impose or apply eligibility criteria that screen out . . . any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.” 28 C.F.R.§ 35.130(b)(6). And while it may seem intuitive that a mental fitness requirement could and should be imposed on attorneys, Rule 201.10(6) permits an applicant who has been declared mentally incompetent to even handle his own checkbook to practice law, at the apparently unfettered discretion of the Colorado Supreme Court. Given the vagueness of the standard in place, in light of the profound successes of such notable barristers as Abraham Lincoln20 who are thought to have suffered from mental illness, it is difficult to suggest that those criteria employed by Colorado are necessary.

                 d.   The “Law of Nations

As observed earlier, international law is part of our law, and treaties are the law of the land. And while international human rights law may be almost impossible to Shepardize, its basic contours are firmly rooted in common sense, and violations are often patently obvious. For instance, forcing someone to undergo a psychiatric examination simply because you don’t like the way he exercised his constitutional right to free expression is a violation of that right on a Brobdignagian scale. Such abuses of psychiatry have a very long, exceedingly dark history, and have been uniformly condemned by civilized nations. Yet, they still apparently occur in such islands of political repression as China,21 Cuba,22 and Colorado.

                 e.   Abstention and The Problem of Jurisdiction

If the government violates your rights, you normally expect to go to the court for relief. But in the case of bar admission, there’s nowhere to go until your application is decided. If you went to federal court, your case would be thrown out under the Younger23 doctrine. As now-Chief Justice Rehnquist explains:

Article VI of the United States Constitution declares that “the judges in every state shall be bound” by the federal Constitution, laws, and treaties. Appellee is in truth urging us to base a rule on the assumption that state judges will not be faithful to their constitutional responsibilities. This we refuse to do.

Huffman v. Pursue, Ltd., 420 U.S. 592, 611 (1975).

Just as federal courts presume that states can usually fix their own messes, Colorado courts presume that state administrative agencies can normally fix theirs, adopting their own Younger doctrine. See, e.g., State Board of Cosmetology v. District Court, 187 Colo. 175, 530 P.2d 1278 (1974). As such, there are no pre-deprivation remedies. But in Colorado, bar applicants are the only applicants for professional licensure which do not have the right to a remedy, i.e., Rule 106, for the wrongful deprivation of their rights. Accordingly, their only remedy can be in tort or, as suggested, pursuant to article II, section 6 of the Colorado constitution.

B. In Light Of Pre-Existing Law, The Unlawfulness Of Defendants’ Conduct Is Readily Apparent

In considering a motion to dismiss under Rule 12(b)(5), this court must construe the allegations of the complaint strictly against the moving party. Abts v. Board of Education, 622 P.2d 518 (Colo. 1980). It must also treat all factual allegations of the non-moving party’s pleadings as true, Id., and give that party the benefit of all favorable inferences that may be drawn from those facts. Kaiser Foundation Health Plan v. Sharp, 741 P.2d 714 (Colo. 1987). Summary judgment is a drastic remedy, never warranted except on a clear showing that there exists no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo. 1988). As such, all Smith needs to show is that there is a genuine issue of material fact as to whether the unlawfulness of the Defendants’ conduct was readily apparent at the time the acts complained of occurred.

With that in mind, an examination of the facts alleged in the complaint are in order, though it won’t be comprehensive, lest a fifty-page brief become seventy-five (groups of allegations are placed in block quotes to facilitate easier reading).

        1.   Alan Ogden’s Initial Decision to Convene an Inquiry Panel

Smith alleges (FAC 25-28) that as of May 5, 1996, he had met every objective test for admission to the Colorado bar, and there were no marks on his record which would call his moral, ethical, or mental fitness on his record (FAC 1). He was notified on or about that date that the matter of his application would be considered by a hearing panel, which would convene on or about September 5, 1996. (FAC 33). Defendant Alan Ogden made that decision unilaterally, in contravention of Rule 201.9(1) (FAC 30-32). No written guidelines existed to guide Ogden in making the decision (FAC 30). Smith was not given access to “evidence” supposedly supporting this decision or an explanation of why the decision was made, an opportunity to challenge Ogden’s decision, or provided a reasonable explanation as to why the inquiry panel could not discharge its duty in a timely manner (FAC 34). Defendant Melanie Backes further acknowledges that Smith’s inquiry panel was initiated in part “because of concerns” regarding Smith’s free speech and petitioning activities. (FAC 43). The net effect was a de facto four-month suspension of Smith’s right to practice law, without his receiving any process at all.

What competent attorney wouldn’t have recognized a due process issue here? Applying the Matthews test, the constitutional shortcomings of this process should be patently obvious. First, the applicant’s private interest is enormous. Second, the chances of an erroneous decision, based on unvetted information which an applicant is not given an opportunity to challenge, and in light of the apparent fact (which can only be established via discovery) that almost everyone who goes through the inquiry process is given a license, approaches near-certainty. And there is no reason why Defendants’ procedures couldn’t be improved, at minimal cost: California’s bar admission rules allow applicants to submit their personal information to bar examiners as early as 90 days after they begin law school,24 and the cost of the program is borne by bar admission fees. And there is no reason why Smith’s Inquiry Panel could not have met in June, as opposed to September -- or, in the alternative, why Smith could not have been sent a timely letter outlining Defendant Ogden’s purported concerns and the evidence supporting them and inviting him to explain, thereby giving him at least some opportunity to be heard before he is summarily deprived of the right to make a living in the practice of law for four months.

And, in light of the Inquiry Panel’s eventual inquiries into Smith’s free speech and petitioning activities, what competent attorney wouldn’t have seen a First Amendment indirect restraint problem? What Smith alleges, the Defendants freely admit: Smith’s free speech and petitioning activities were what triggered their investigation. Mot. at 4. If the bar applicant knows or has reason to know that he is going to be deprived of his license summarily for four months, simply because he exercised his First Amendment rights in a way a government apparatchik might not like, he may forego his right to seek redress of legitimate grievances in our nation’s courts, or to speak on issues of the day.

Third, there is a supervision issue. Would a reasonable supreme court justice not know that the Board of Law Examiners was flouting the rules of their own enabling statute, not to mention the federal and state constitutions? Or a reasonable Board member? At absolute minimum, Mr. Ogden’s unilateral decision should have been reviewed by one competent Board member -- who might have seen these problems and stopped this problem from becoming a problem. After all, that is the absolute minimum Rule 201.9 requires.

        2.   The Inquiry Panel’s Witch Hunt

Smith alleges (FAC 35) that Rule 201.9(5) grants bar examiners an unfettered license to probe into an applicant’s religious, free speech, and petitioning activities, permitting them to consider hearsay, false and malicious accusations, and other unreliable “evidence“, and there is no requirement that an applicant even be confronted with it. Pursuant to this constitutionally offensive grant of power, Smith’s Inquiry Panel conducted an inquisition into Smith’s First Amendment protected activities. (FAC 35-50)

What competent attorney wouldn’t have recognized a First Amendment indirect restraint issue here? Certainly Justice Bender, who pontificated so eloquently when the kleig lights of the media were trained upon him in Tattered Cover, should have seen the chilling effect that such an inquiry would have. By and through his authorized agents, Defendant Bender did precisely what Justice Bender supposedly feared: he didn’t merely “hold a club” over Smith’s constitutionally protected activities but in fact, swung it with all the subtlety of a sledgehammer.

At least someone on the Inquiry Panel ought to have been horrified when Defendant Hargleroad asked the constitutionally damning question: “Why don’t you let go?” Every Defendant was noticed on it, including Justices Bender and Mullarkey, who is probably old enough to remember the McCarthy hearings. Even if red flags wouldn’t have gone off in their heads sua sponte, civil rights expert David Lane repeatedly reminded them of it (FAC 74).

        3.   The Inquiry Panel’s Sloth and Open Disregard of Law

Rule 201.9(6) requires the inquiry panel to issue a report within thirty days of the date on which the determination was made, stating with particularity the specific matters indicating that the applicant is not qualified. (FAC 51). Smith alleges that, while the Inquiry Panel reached their probable cause determination on July 28, 1998 (FAC 53), they did not issue their report until October 21, 1998 (FAC 54-55). The Report itself is replete with references to Smith’s constitutionally protected free speech and petitioning activities (FAC 39-50).

First, what competent attorney wouldn’t have seen an enormous First Amendment indirect restraint and/or retaliation issue here? Two courts of competent jurisdiction considered Smith’s libel suit, and two courts found that it was constitutionally protected activity. Smith v. Bob Larson Ministries, No. 96CA1556 (Colo. Ct. App. Jan. 12, 1988) (affirming trial court). Hence, on the basis of Mine Workers and Protect Our Mountain Environment, it could not be used as a pretext for denying Smith a license without running afoul of the First Amendment.

Second, the rationale behind the alleged claim of abuse of civil process is so flimsy that it screams of retaliation. The Defendants deliberately refused to consider the Colorado Court of Appeals decision, that the libel suit was occasioned by defendant Bob Larson’s accusation over the airwaves that Smith was a “stalker,” and that the trial court found it defamatory. They just wanted something to hang Smith with, as evidenced by the infamous “Why don’t you let go?” query, and the facts weren’t about to get in their way (see, Baird, supra.).

And then, there’s the Romer v. Evans issue. If an ordinary citizen were to file a lawsuit, he can do so for any reason or no reason at all, provided it meets the criteria set forth in Protect Our Mountain Environment. But yet, the Board of Law Examiners is permitted to hold bar applicants to a higher standard, sua sponte, without notice? To treat applicants like Smith differently, without a compelling reason for doing so, is a patent Equal Protection Clause violation, of which any competent attorney would be aware.

Finally, what competent attorney wouldn’t have seen a jurisdictional issue here? The statute says “thirty days,” and the right to practice law is certainly a “private right” adversely affected by the Defendants’ inexplicable sloth. And as there are no legitimate grounds for such a delay, this Court may reasonably infer that one or more of the members of the Hearing Panel had a personal vendetta against Smith, and didn’t want to write this report until they were forced to, as they had no grounds for denying him a positive recommendation that didn’t involve their flagrant abuse of his First Amendment rights, and any report they might write would reveal it clearly.

        4.    Misconduct During the Hearing Panel Process

Rule 201.10(1) limits matters to be considered by the hearing panel to those stated in the inquiry panel findings and challenged by the applicant (FAC 52, 56). Though Smith was never noticed on questions regarding mental stability and therefore never challenged them (FAC 56-60), Defendant Coyle, acting as an apparent agent of the Inquiry Panel (FAC 61), asked for and received an order requiring Smith to submit to an involuntary psychiatric examination by one of their “captive” psychiatrists (FAC 66), to be paid for out of his own pocket (FAC 62). Mr. Coyle knowingly misrepresented the law to the Hearing Panel chair (FAC 62-72), also failing to allege a single fact in support of the “motion” (FAC 70-71). Defendant Backes issued a one-sentence “order,” devoid of relevant findings of law or fact (FAC 73).

Defendant Carlos Samour served on both the Hearing and Inquiry panels (FAC 3).

When Smith, by and through his attorney, refused to comply with the involuntary psychiatric examination order on constitutional grounds (see, e.g., Tattered Cover, and cases cited therein), he was summarily denied a due process hearing (FAC 75). On information and belief, bar applicant Leonard A. Thomas was also ordered to undergo such an examination, but was given his due process hearing despite his refusal (FAC 87(e)).

This is really the guts of the case, insofar as Smith alleges (and, the Defendants openly concede, Mot. at 6-8) that the Defendants denied him his due process right to a full and fair hearing on the matter of his admission on account of his refusal to obey their “order.” But if the “order” was unlawful -- whether it was procured on account of fraud or malice, or simply due to want of jurisdiction25 -- Smith had a legal right to refuse to obey it. And because the abstention doctrines deprived him of any opportunity to challenge the “order” in an independent court, Smith’s only legally viable option was to refuse to obey it,26 for once your privacy has been invaded, there can be no adequate remedy. See, Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

At the outset, it should be manifestly obvious to a competent attorney that he is not at liberty to knowingly make a false statement of material fact or law to a tribunal. CRPC 3.3(a)(1); see, Berger v. United States, 295 U.S. 78 (1935) (prosecutor “is not at liberty to strike” foul blows). Similarly, any competent attorney practicing bar admission law in Colorado should have known that Rule 201.10(4) did not give him the right to ask for an order dictating that four and only four of the thousands of licensed psychiatrists and psychologists could perform a mental status examination on a candidate.

By the same token, a reasonably competent hearing panel chair should have known that she did not possess legal authority to grant such a request. The word “or” actually means something, see, Knutzen v. Eben Ezer Lutheran Housing Center, 815 F.2d 1343, 1349 (10th Cir. 1987) “or” means “or”) (citations [to nine cases] omitted), and the drafters of Rule 201 presumably drew a distinction between mental health professionals licensed by the state and substance abuse counselors for good reason. Accordingly, she would have no choice but to follow the statute as written. City of Westminster v. Dogan Construction Co., 930 P.2d 585, 590 (Colo. 1997) (“plain meaning” rule of statutory interpretation).

Indeed, the reasonable hearing panel chair should have known that she had no authority27 to issue an involuntary psychiatric examination order in this case, in any event. First and foremost, the jurisdiction of her tribunal is strictly limited in scope to deciding those issues “in the inquiry panel findings and challenged by the applicant.” Rule 201.10(1). For any issue to be raised, it must be “stated with particularity” and submitted in a timely manner, Rule 201.9(6), and the applicant must affirmatively challenge it in his request for a hearing panel. Rule 201.10(1). Smith alleges quite clearly that the question of his mental stability was never raised, and in fact, that it could not have been raised as a matter of law (FAC 57-59), as the only colorable reference is a verbatim recitation of Rule 201.9(5) (FAC 58). Merely stating that “any evidence . . . tends to show that the applicant is not mentally stable or morally or ethically fit to practice law,” FAC 58 (emphasis in complaint), does not and cannot constitute a finding that there is evidence showing that Smith is not “mentally stable,” for the same reason that a summary ruling does not create res judicata on all possible issues before a court.

A competent hearing panel chair should also have known that the mental fitness standard in Rule 201 was too vague to be enforced, especially in light of the First Amendment issues raised by the inquiry panel report and pointed out by Smith’s counsel. As that report was replete with references critical of Smith’s First Amendment-protected activity, it should have been as clear to her as it was Smith’s lawyers that the inquiry panel was improperly using that activity “to lay a foundation for barring [Smith] from the practice of law.” Baird, supra. It should also have been obvious to any competent hearing panel chair that, while Smith was required by statute to prove his “mental stability,” he had no notice of what “mental stability” was and therefore, no earthly idea as to what it was that he had to prove. The statute certainly doesn’t tell us, and there is no binding case law.

And surely, any competent hearing panel chair should have known that due process required the Board to perform a meaningful background examination before such a drastic search could be ordered, to show there was an actual need for one. Government indolence and sloth is no excuse for short-circuiting the Constitution, or trampling on a citizen’s basic human rights.

In addition, the competent hearing panel chair should have known that “good cause” means more than “’cause we wants it.” To wit, if the hearing panel chair is permitted to analogize from one section of the Colorado Rules of Civil Procedure to find a power the statute doesn’t give her, shouldn’t she also be expected to search through the Rules to find out what “good cause” means?

Both the reasonable Board member and reasonable executive director should have known that Rule 201.8 specifically forbade an inquiry panel participant from serving on a hearing panel, and that the intent of the Rule was to provide applicants their due process right to a fair hearing. Yet, Carlos Samour sat on both panels (FAC 3), and presumably, was assigned to both panels by Alan Ogden. And this was not harmless error, as a competent hearing panel member would have brought obvious constitutional problems like these to the attention of the Chair.

And what competent attorney wouldn’t apprehend due process and equal protection issues, especially in light of the total absence of case law (or even written guidelines) to limit the hearing panel chair’s discretion -- and no requirement that the hearing panel chair explain her decisions? Every decision is ad hoc, and on its face arbitrary and capricious.

And finally, there is the Colorado Supreme Court’s culpable acquiescence in these matters. It’s not like Chief Justice Mary Mullarkey was faced with the impossible dilemma of Sgt. Stacey Koon, charged with controlling a handful of testosterone-charged officers beating the living daylights out of a man. All she had was a file in front of her. A file that screamed of constitutional rights violations. Smith has alleged facts showing “personal direction or of personal knowledge and acquiescence,” Woodward, 977 F.2d at 1400 (quoting Andrews v. City of Philadelphia, 895 F.2d 1469 (3rd Cir. 1990)), of a panoply of civil rights violations, all that is required at this stage of litigation.

From Alan Ogden’s unilateral decision to submit Smith’s bar application to an inquiry panel to the Colorado Supreme Court’s willful refusal to honor their due process obligation to explain their decision regarding it, the Defendants have shown a consistent, conspicuous, and contemptuous disregard for the law they swore an oath to uphold. And as required under Woodward, Smith has adequately alleged the law and facts showing its violation, further demonstrating how the law has been violated.

C. The Defendants Are Not Entitled to Qualified Immunity, In Any Event

Smith alleges that Rule 201.9(6) is jurisdictional in character, Shaball, supra., and as such, certain Defendants knowingly acted outside their scope of authority, thereby depriving them of qualified immunity. Merritt v. Mackey, 827 F.2d 1368 (9th Cir. 1987). Furthermore, the reasoning behind the argument that the ICCPR rewrites absolute immunity law applies with equal force to qualified immunity law. Unless Smith has an “effective” non-tort remedy, he is entitled thereunder to damages in tort; whether the state or federal government sees fit to reimburse them is a political question outside the purview of this Court.

V. DEFENDANTS’ REQUEST FOR ATTORNEYS’ FEES VIOLATES RULE 11

Rule 11(a) states, in pertinent part:

The signature of an attorney constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation.

For the Defendants to even ask for attorneys’ fees, they have to be able to make a good faith argument that they are entitled to them and in this case, that hill looks a little bit like Pike’s Peak. First off, attorneys’ fees may not be awarded if the plaintiff makes a good-faith presentation of an arguably meritorious legal theory and no determinative Colorado authority exists. Cruz v. Benine, 984 P.2d 1173 (Colo. 1999).28 And as Smith is a pro se litigant, for Defendants to prevail under § 13-17-102(6), this Court must find that he clearly knew or reasonably should have known that his suit lacked substantial justification, see, e.g., Bockar v. Patterson, 899 P.2d 233 (Colo. App. 1994), that is, that the action was either frivolous, groundless, or vexatious. See Bilawsky v. Faseehudin, 916 P.2d 586 (Colo. App. 1995). And with that daunting standard established, we turn to each specific defense raised by the Defendants.

A. Defendants Have Advanced Frivolous Defenses

It is difficult to imagine any defense more patently frivolous than Defendants’ subject matter jurisdiction defense, especially in light of Howlett v. Rose. As such, to suggest that Smith clearly knew or should have known that he could not make a ‘good-faith argument’ that this Court could hear his Section 1983 claims is a claim so shocking that it almost defies description.

For reasons previously stated, Defendants’ res judicata argument is almost of equal caliber. If the tribunal deciding the fate of Smith’s bar application did not provide him with the process he is due, it is a federal tort. Period. And obviously, that question cannot be decided in a forum falling short of due process minima, in front of judges who have an obvious personal interest in the outcome of Smith’s claims.

        1.    The Immunity Claims

With respect to Defendants’ immunity claims, the problem is not so much with the concept of immunity itself as it is the authorities they chose to support its invocation. But for purposes of a request for attorneys’ fees, the Defendants have to produce authority not just showing that they could make an argument in support of their position, but that they necessarily must prevail, and quite obviously so. Indeed, one is left to wonder if their authority even supports their position.

For instance, it is difficult to understand why Defendants needed three cases to establish the bedrock principle that conclusory allegations need not be accepted as true, Mot. at 11, or why this Court would care all that much at this stage of the litigation. After all, Smith’s Section 1983 tort claims are essentially Carey claims, where all he has to establish is that he was due a certain level of process, and that he didn’t get it. Similarly, Smith alleged a retaliation claim, and if counsel had bothered to read one of the cases he cited (Ramirez, supra.), he would have learned that only the barest of factual allegations is required to sustain a retaliation claim, as the fact of retaliation is almost always difficult to establish by direct evidence. Smith v. Maschner, 899 F.2d 940, 949 (10th Cir. 1990) (quoted in Ramirez). See also, Miller v. Fairchild Industries, Inc., 797 F.2d 727, 731-32 (9th Cir. 1986) (the fact of a layoff, two months after the plaintiffs engaged in protected activity, coupled with the defendants’ knowledge that plaintiffs had engaged in that activity, was sufficient to survive summary judgment motion; also cited in Ramirez).

It is equally hard to fathom why counsel would quote Rule 201.2(5), the statute granting the Defendants absolute state-law tort immunity, Mot. at 15, as Smith makes no state-law tort claim, and Colorado “cannot immunize an official from liability for injuries compensable under federal law.” Howlett, 496 U.S. at 360 (citing Martinez v. California, 444 U.S. 277 (1980)). Indeed, his article II, section 6 claim literally depends upon the Defendants having state-law tort immunity!

Similarly, it is tough to discern why the Pierson v. Ray line of cases29 bears any relevance to this case, as the Butz/Horwitz line of cases controls immunity law for quasi-judicial acts, and the Defendants have failed to show that they are “performing acts within their judicial jurisdiction.” Mot. at 15. Indeed, as the Colorado Supreme Court’s judicial jurisdiction is strictly appellate in character, Colo. Const. art. VI, § 6(1), and may not be expanded by a rule of court, People v. Smith, supra., the Defendants couldn’t take judicial jurisdiction over this matter if they wanted to. Grievance Committee30 adds nothing in aid of their cause, as it interprets the rule governing attorney discipline (now, replaced by Rule 251), and the Colorado Supreme Court now exercises appellate jurisdiction over those matters. Rule 251.27(a) (2003). Even Defendants’ best cases -- a pair of antiquated Colorado District Court cases -- offer little support to their position, as to the extent to which they are incompatible with Horwitz, supra., they are overruled.

To avoid being charged with attorneys’ fees, all Smith has to do is make a good-faith presentation of an arguably meritorious legal theory, and that no determinative Colorado authority to the contrary exists. And even if this Court could ignore the hundred-odd cases Smith offered in support of his position, his argument based on the ICCPR is a matter of first impression in Colorado courts,31 and Defendants cannot be awarded attorneys’ fees as a matter of law.

In summation, it appears that counsel has made no effort to determine whether the defenses and claims made in the Motion are grounded in fact and warranted by existing law, or are at least presented in good faith. Consequently, what ought to have been a fifteen-page responsive brief now exceeds fifty-one pages, and unavoidably so.

B. “Statement of the Case”

A few brief observations should be made about the “long history” of this dispute. First and foremost, counsel’s predictable histrionics aside, it ought to be recognized that the United States Supreme Court will only hear a case when all state-law remedies are exhausted. Second, certiorari review is not a review of the case on the merits -- and as article II, section 6 of the Colorado constitution gives him that right, Smith would be foolish to trade that certain remedy for a federal crap-shoot when he’d still have the federal crap-shoot available if he lost.

Second, Smith filed this place-holder action as an insurance policy, as odd and even indefensible decisions are inherent risks of litigation, and the responsible litigator covers all his bases. And if you read Smith’s unpublished federal case32 together with Roe v. Ogden, 253 F.3d 1225 (10th Cir. 2001), you are forced to conclude that, while the bar applicant has a theoretical right to have the constitutionality of a state bar admission statute determined by a federal court, that right exists only in theory, because if you actually tried, the Tenth Circuit would throw your case out in an unpublished opinion -- creating super-sekrit special law that would only apply to you.

C. “Factual Background”

The Wyoming Supreme Court once famously observed that “half the truth may be a lie in effect,” Twing v. Schott, 338 P.2d 839 (Wyo. 1959), and it is difficult to spot the relevance of the tendentious and incomplete “Factual Background” section of Defendants’ Motion. Mot. at 4-9.

After all, in a Rule 12(b)(5) motion, Smith’s allegations are presumed true, he gets the benefit of all reasonable inferences, the standards for dismissal are daunting, Abts; Kaiser; Churchey, and the only ones who need to care about the facts in a jury trial are the jurors. Furthermore, telling us that Smith’s application was referred to an inquiry panel pursuant to Rule 201.7 and -9, Mot. at 4, does nothing to address the issue of Alan Ogden’s failure to follow the Rule.

The fact that “Mr. Smith did not respond to the Inquiry Panel’s request for documents until

February 11, 1998,” Mot. at 5, seems astonishingly trivial, in light of the fact that Smith was also represented by counsel, who refused to provide information “related to Mr. Smith‘s publications on the internet relative to any evangelical ministries.” Id. It seems that everyone but the Defendants -- Smith, civil rights expert David Lane, and even Teri Tomsick -- instantly recognized that there was a serious First Amendment issue here.

Counsel tells us that the Inquiry Panel “found that evidence presented [to it] raised concerns about Mr. Smith’s mental stability,” Mot. at 6, but can’t explain what it is and why it is indicative of mental instability, largely because there isn’t any, per the evidence they were gracious enough to provide. Mot., Exh. D. Beyond that, about all that need be observed is that Smith’s attorney, David Lane, repeatedly apprised Defendants of the thin constitutional ‘ice’ upon which they were skating. FAC 74.

Suffice it to say that, while Smith had the best counsel he could afford (when he could still afford it), and arguably among the best available, it availed him little in Colorado’s kangaroo bar court, where the Constitiution is but a minor inconvenience.

Similiarly, counsel’s flagrant attempt to defame Smith before this Court and bias it against him by observing, for example, that the Inquiry Panel also found that “in [his] appearances before it were ‘marked by lack of candor’,” Mot. at 6, reflects more upon counsel’s personal character and professionalism. The only issue before this Court upon this Motion is whether the Defendants can avail themselves of one of four affirmative defenses, and the only people who should have a valid reason to care are potential jurors in this case. Moreover, it has no logical bearing on any other ‘live’ issues in this dispute, such as whether Rule 201 is constitutionally infirm, or whether Smith could lawfully be deprived of his right to a constitutionally adequate hearing pursuant to Schware and Rule 201.10 under the facts at hand. Smith will refute their claims if need be, but only at the proper time and in the proper forum.

CONCLUSION

The government of the United States has been emphatically termed a government
of laws, not of men. It will certainly cease to deserve this high appellation, if the
laws furnish no remedy for the violation of a vested legal right.
33

As an American citizen, Ken Smith has a “portfolio” of vested legal rights -- to due process of law, to equal protection of the law, to privacy, and most importantly, to speak on public issues without fear of official recrimination. These rights have been willfully violated by the Defendants -- who, like Saddam Hussein before them, boldly maintain that they and they alone are above the law. And as a matter of law, this simply cannot be. Accordingly, Defendants’ Motion should be DENIED.

As attorney discipline for willful misconduct resulting in the squandering of scarce judicial resources is more the province of this Court, and it is empowered to initiate Rule 11 sanctions on its own motion, Smith will not affirmatively request relief, noting only that he has had to forego substantial earning opportunities on account of counsel’s misconduct. At the very least, however, Smith asks that Defendants’ request for attorneys’ fees be DENIED, and in no uncertain terms.

Smith further requests any and all other relief consistent with this opinion, including a reasonable time in which to further amend his Complaint, if required.

Respectfully submitted this 5th day of March, 2004.

_____________________
Kenneth L. Smith, pro se

ENDNOTES

1. This argument is developed in greater detail in Smith’s Reply In Support For Plaintiff’s Motions For Preliminary Injunction And Order To Show Cause, hereby incorporated by reference.

2. The same argument applies, a fortiori, to Smith’s facial challenges to Rule 201. The Defendants have claimed that they are foreclosed by res judicata, but that issue is irrelevant to subject matter jurisdiction.

3. Horvitz makes reference to two other prerequisites for the grant of absolute judicial immunity: that the officials’ functions are similar to those involved in the judicial process, and their actions are likely to result in damages lawsuits. As these two elements are invariably present in professional licensure proceedings, they are not germane to this analysis.

4. When a bar committee’s goal has is to deny due process to an applicant, the admission process is always “administrative.” See, e.g., In re Summers, 325 U.S. 561 (1945) (Illinois); In re Berkan, 648 F.2d 1386 (1st Cir. 1981) (District Court of Puerto Rico); see also, Matter of Pressman, 658 N.E.2d 156, (Mass. 1995) (attorney discipline “an administrative process”).

5. To hold otherwise would be to sanction an American Star Chamber, see, Floyd and Barker, 77 Eng.Rep. 1305 (1607), the most profound blot on English juridical history.

6. The rule applies without fail to every judicial immunity case since the principle was established (in Bradley v. Fisher, 80 U.S. 335 (1872)), including, most notably, Pierson v. Ray, 386 U.S. 547 (1967), and Stump v. Sparkman, 435 U.S. 349 (1978). And the rationale was invariably the same. As Justice O’Connor observed:

As the Bradley Court noted, ‘Against the consequences of [judges’] erroneous or irregular action, from whatever motives proceeding, the law has provided for private parties numerous remedies, and to those remedies they must, in such cases, resort.

Forrester, 484 U.S. at 228 (citation omitted).

7. Martin L. King, Jr., “Letter From A Birmingham Jail,” Apr. 16, 1963 (to Bishop C.C.J. Carpenter, et al.; edited for publication by the author) (available at, e.g., http://www.sas.upenn.edu/African_Studies/Articles_Gen/Letter_Birmingham.html).

8. Wherever procedural protections have been deemed adequate to protect constitutional rights, defendants have won every case. E.g., Devous, supra., Dale v. Moore, 121 F.3d 624 (11th Cir. 1997). Conversely, in the relatively few instances where the procedural protections offered were deemed inadequate, the plaintiff has won every time. E.g., Cleavinger, supra., Scott v. Flowers, 910 F.2d 201 (5th Cir. 1990) (as the judge had no other remedies, his only option was a Section 1983 action); see generally, University of Tennessee v. Elliott, 478 U.S. 788 (1986) (limiting the application of Rooker-Feldman to state administrative decisions reviewable by a state’s courts).

9. Todd Howland, Rael v. Taylor and the Colorado Constitution: How Human Rights Law Ensures Constitutional Protection in the Private Sphere, 26 Denv.J.Int’l L. & Pol’y, 1, 11 (1997).

10. If anything can be gleaned from the ICCPR ratification debate, it is that Congress believes that our existing laws are in full compliance with the Covenant, and no further legislation is required. Sen. Moynihan (D-NY) observed that “[e]ven though the covenant is not self-executing, these will now become binding international obligations of the United States.” 138 Cong. Rec. S4,783 (1992) (statement of Sen. Moynihan).

11. The bulk of the case law interpreting the ICCPR involves death penalty cases, and in particular, whether reservations adopted by the Senate in its ratification are valid. E.g., Hain v. Gibson, 287 F.3d 1224 (10th Cir. 2002). The issue of whether the ICCPR provisions which Sen. Pell (D-RI) described as “guarantee[ing] basic rights and freedoms consistent with our own Constitution and Bill of Rights” (138 Cong. Rec., at S4,781) require this Court to account for them in its own jurisprudence is a matter of first impression in Colorado.

12. A current list of ratifying countries is available at http://www.unhchr.ch/pdf/report.pdf (visited Feb. 10, 2004).

13. The Vienna Convention defines jus cogens as “a peremptory norm of general international law” that is “accepted and recognized by the international community” and from which derogation is not permitted. Vienna Convention on the Law of Treaties, May 23, 1969, art. 53, available at http://www.un.org/law/ilc/texts/treaties.htm (visited Feb. 10, 2004).

14. “Anytime an action taken by a judge is not an adjudication between parties, it is less likely that the act is a judicial one.” Cameron v. Seitz, 38 F.3d 264, 271 (6th Cir. 1994) (citation omitted).

15. See, e.g., Steve Garnaas, “Police Blast Adams DA Felon Hired As Prosecutor,” Denver Post, July 15, 1997, at B1 (cocaine-dealing convicted felon with Democratic Party ties given license).

16. E.g., Carol Wolman, M.D., “Is The President Nuts? Diagnosing Dubya,” CounterPunch (on-line journal), Oct. 2, 2002, available at http://www.counterpunch.org/wolman1002.html (visited Feb. 26, 2004). Subsequent investigation shows that a Carol Stone Wolman, M.D., is licensed in California, and is a 1967 graduate of Harvard Medical School living in Mendocino, facts consistent with the article and her Mendocino Community Network e-mail address. See, http://www.-medbd.ca.gov/Lookup.htm (visited Feb. 26, 2004).

17. References to First Amendment rights are made with recognition that they apply to the states by virtue of the Fourteenth via the incorporation doctrine, and that the Colorado Constitution offers even broader protection than its federal counterpart.

18. While this precise issue has never been decided, an applicant who has met every constitutionally permissible requirement for admission to a state bar has probably seen his liberty interest in practicing law mature into a property interest. Cf., Board of Regents v. Roth, 408 U.S. 564, 577 (1972) (rules support “claim of entitlement”) with Schware, supra. (applicant has liberty interest in taking the state bar examination); see also, Jacobson v. Hannifin, 627 F.2d 177 (9th Cir. 1980) (collecting cases); but see, Lynch v. Household Finance Corp., 405 U.S. 538, 552 (1972) (dichotomy between liberty and property interests “a false one”).

19. Defendant Dori Kaplan should have some knowledge of this case, as it was argued by husband David’s law firm.

20. Lincoln is generally believed to have suffered from recurring bouts of severe depression. See, e.g., http://home.att.net/~rjnorton/Lincoln84.html (collecting Lincoln letters), and source material cited therein (visited Feb. 23, 2004).

21. See, e.g., Human Rights Watch, Dangerous Minds: Political Psychiatry in China Today and its Origins in the Mao Era (Aug. 2002), available at http://www.hrw.org/reports/2002/ (visited Feb. 28, 2004) (now being used vigorously against the Buddhist Falun Gong sect).

22. Agustin Blazquez, Castro’s Use of Psychiatry Against Political Opposition, NewsMax.com, available at http://www.newsmax.com/archives/articles/2002/8/8/194813.shtml (visited Feb. 28, 2004).

23. Younger v. Harris, 401 U.S. 37 (1971).

24. See, The State Bar of California website (http://www.calbar.ca.gov/state/calbar/calbar.home-.jsp) (visited Feb. 24, 2004).

25. Specifically, Rule 201.9(6) is to be read as a statute of limitations, by virtue of the rule stated in Shaball, supra.

26. Under ordinary circumstances, there might be a legal issue as to whether the order was void or voidable. But a hearing panel of the Board of Law Examiners is not a “court” and besides, if you can’t get a court to hear a challenge, the order cannot by definition be “voidable.” As such, this Court should apply the long-standing rule that it would be unconscionable for the perpetrator (in this case, the Defendants, by and through their agent, Mr. Coyle) to profit from their deceptions. Marshall v. Holmes, 141 U.S. 589 (1891).

27. Defendants further concede that they had no statutory authority to deny Smith a Rule 201.10 hearing. Rather, counsel admits that “the Chair analogized Mr. Smith’s failure to submit to the mental status examination as ‘akin to failing to appear for an interview with an inquiry panel,’” Mot. at 8, ignoring the fact that Rule 201.10 granted her no such authority.

28. As counsel cited this case, Mot. at 14, he cannot plausibly claim ignorance of its contents.

29. Pierson, supra. n. 6, et al. (in re: immunity in state trial courts providing appellate remedies).

30. Colorado Supreme Court Grievance Cmte. v. District Court, 850 P.2d 150 (Colo. 1993).

31. Based on a Versuslaw search of all published opinions in all Colorado appellate courts, using the protocol “international covenant w/10 (civil w/5 rights)” (conducted Mar. 5, 2004).

32. Smith v. Mullarkey, No. 02-1481 (10th Cir. Jun. 11, 2003).

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