DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO
Case No. 02CV0127, Div. 6
___________________________________________________________

KENNETH L. SMITH,

Plaintiff,

v.

MARY J. MULLARKEY, et al.,

Defendants.


VERIFIED MOTION FOR PRELIMINARY INJUNCTION (INCORPORATING AUTHORITY) [THIS MOTION REQUIRES IMMEDIATE DISPOSITION PURSUANT TO C.R.C.P. 121 § 1-15.4 OR IRREPARABLE HARM WILL RESULT.]


Plaintiff Kenneth Smith, (“Smith”) pro se, respectfully submits this Verified Motion for Preliminary Injunction (Incorporating Authority) pursuant to C.R.C.P. 65, stating the following in support of this motion:

SUMMARY OF THE ARGUMENT

As this is written, our government is spending half a trillion dollars of our money to secure the blessings of liberty to the people of Iraq and their posterity. And chief among these blessings is the freedom to speak one’s mind on public issues of the day, free from the fear of government reprisal. If the average Iraqi said something his government didn’t like, Uday Hussein would by reputation cut out the offender’s tongue, leaving him to bleed to death. Ken Smith conducted a “journalistic and internet expose” of a public figure that some court functionary with the Colorado Board of Law Examiners didn’t like -- and Colorado officials cut out his professional tongue, leaving his legal career to bleed to death.

This is the injustice Smith seeks to remedy in this Court; ensuring that it will never happen again is what Smith hopes to accomplish in this motion.

There are two constitutionally fatal flaws with Colorado’s bar admission statute: excessive vagueness which impairs Coloradans’ right to free speech, and an absence of meaningful judicial oversight over the procedure. The first flaw offends the First and Fourteenth Amendments of the federal Constitution and the second, article II, section 6 of the Colorado constitution. This Court has jurisdiction over the matter, the flaws can be remedied almost immediately, and an injunction is in the public interest. Accordingly, Smith asks that this Court immediately enjoin enforcement of C.R.C.P. (hereinafter, “Rule”) 201 in its entirety.

Facts have come to Smith’s attention in the past week that remove this issue from the realm of airy-fairy theory. Smith’s rights are being impaired. They are being impaired today. They are being impaired irrevocably. Expedited relief is therefore requested.

ARGUMENT

To issue a preliminary injunction, this Court must find that movant has shown:

(1) a reasonable probability of success on the merits; (2) a danger of real, immediate, and irreparable injury which may be prevented by injunctive relief; (3) that there is no plain, speedy, and adequate remedy at law; (4) that the granting of a preliminary injunction will not disserve the public interest; (5) that the balance of equities favors the injunction; that (6) the injunction will preserve the status quo pending a trial on the merits.

Rathke v. MacFarlane, 648 P.2d 648, 653-54 (Colo. 1982) (citations omitted).

A.  Smith is Entitled to Injunctive Relief

The United States Supreme Court has held that a State cannot “exclude a person from the practice of law . . . in a manner or for reasons that contravene the Due Process [Clause].” Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 238 (1957). Whatever exclusive jurisdiction state bar examiners might otherwise have to regulate the practice of law stops there.

     1.  Smith Has A Substantial Likelihood Of Prevailing On The Merits

For purposes of this motion, the only injury that matters is the impairment of bar applicants’ First Amendment rights1 precipitated by Rule 201. Other injuries of constitutional magnitude can and do occur, but the primary vice of this statute2 is excessive vagueness.

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 -- to wit, 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; opinion delivered by now-Chief Justice Mullarkey). Smith not only contends that Rule 201 is capable of reaching sheltered expression (and thereby, inhibiting it), but shows that it has reached sheltered expression in his case and as such, there is a real danger that it will continue to impair the First Amendment rights of potential bar applicants in the immediate future.
 
          a.  Rule 201 Impermissibly Impairs Applicants’ Free Speech Rights

If the First Amendment protection of citizens’ speech is to mean anything, it must mean that we must be free to speak our mind on public issues without fear that government officials would be able to punish us -- either directly or indirectly! -- for the content of our speech. Obviously, if Uday Hussein is at liberty to cut your tongue out for saying the ‘wrong’ thing, prudence demands that you restrain your speech accordingly. Our Founding Fathers had the good sense to reject this tyrannical mode of governance; as Justice Brennan observed (quoting Brandeis), “they eschewed silence coerced by law -- the argument of force in its worst form.” New York Times v. Sullivan, 376 U.S. 254, 270 (1964) (citations omitted). But Rule 201, on account of its excessive vagueness and lack of meaningful judicial remedies for those adversely affected, grants unfettered license to officious government bureaucrats to vent their spleen upon bar applicants with impunity.

By way of example, Smith alleges in his Eighth Claim for Relief that Rule 201.9(5), a statute governing whether probable cause exists to question an applicant’s fitness to practice law, is void for vagueness under the due process vagueness doctrine. In pertinent part, it provides:

In addition, probable cause for denial of an application may be established by any evidence which, in the judgment of the majority of the inquiry panel members, tends to show that the applicant is not mentally stable or morally or ethically fit to practice law.

On its face, “any evidence” presumably means any evidence3; there is no provision in Rule 201.9(5) limiting matters which may or may not be considered, including activities sheltered by the First Amendment. Moreover, there are no narrowing state court interpretations, as the Colorado Supreme Court has refused to countenance them. See, Colorado Supreme Court Grievance Cmte. v. District Court, 850 P.2d 150 (Colo. 1993). Seen against that constitutional backdrop, the Defendants’ admission is astounding:

Matters that had prevented certification . . . and triggered an investigation by the Inquiry Panel included Mr. Smith’s conduct in connection with lawsuits he filed . . . [and] Mr. Smith’s journalistic and internet expose of Mr. [former Trinity Broadcasting Network televangelist Bob] Larson. [Exhibit A at 2, emphasis added.]

It is difficult to imagine anything more clearly protected by the First Amendment than “Mr. Smith’s journalistic and internet expose” of a public figure -- a matter that “had prevented certification.” It is thus beyond question that Colorado’s bar admission statute not only can reach, but in fact has reached, an applicant’s protected expression.4

In Tattered Cover, Justice Bender, speaking for a unanimous Court, explained that the need for an expansive interpretation of the scope of First Amendment protection is dictated by the evil it is designed to guard against: “Through the harassment of hearings, investigations, reports, and subpoenas government [would] hold a club over speech and over the press.” Tattered Cover, 44 P.3d at 1053. Thus, it is not without a certain irony that Defendant Bender, by and through his agents, did precisely what Justice Bender supposedly feared: he didn’t merely “hold a club” over Smith’s constitutionally protected journalistic activities but in fact, swung it with all the subtlety of a sledgehammer.

Not only does the Rule reach protected expression, but it necessarily reaches it in a constitutionally repugnant way. No attorney would ever be called to account for involvement in a “journalistic and internet expose,” but yet, Defendants held Smith’s protected expression against him during the bar application process. As such, to permit this statute to stand is to hold the sword of Damocles over the otherwise protected expression of not just Ken Smith, but literally millions of Americans -- anyone possessing the requisite academic ability and inclination to join this noble profession. A broad swath of our society -- presumably, our best and brightest -- will have to “count the cost” of their precious right to free expression, as they would never know how their anti-war protests, expression of unorthodox political views, or efforts to expose corruption might be received by government apparatchiks like Susan Hargleroad. Inevitably, potential bar applicants will be inclined to censor themselves, for as “[w]hen one must guess what conduct may lose him his position, one necessarily will ‘steer far wider of the unlawful zone.’” Keyishian v. Board of Regents, 385 U.S. 589, 604 (1967) (quoting Speiser v. Randall, 377 U.S. 513, 526 (1958)).

           b.  Rule 201 Impermissibly Impairs Applicants’ Right To Free Religious Exercise

To understand the potential impact Rule 201 has on legally protected religious expression, a cursory review of the Bob Larson expose the Board of Law Examiners took interest in is in order.

Once a prominent radio evangelist, Larson fell from popular grace when Smith and others uncovered credible evidence of a healthy litany of professional sins including adultery, fraudulent fund-raising practices, and later, fake “exorcisms.” A brief and early precis of the scandal is offered in Smith’s 1993 pamphlet, “The Two Faces of Bob.” Exhibit B.

The Christian’s Biblical duty, when faced with such information concerning a putative ‘man of the cloth,’ is clear. He is exhorted to expose the unfruitful deeds of darkness, Eph. 5:11, and if he remains silent, like the watchman on the wall, ‘the blood will be on his hands’. Ezek. 33:1-6. Inaction is not an option, insofar as any man, “who knows the good he should do and does it not, sins.” Jas. 4:17. He thus has a duty to act, albeit within the confines of the law.5

If Rule 201 is permitted to stand unaltered, the next Christian bar applicant in Smith’s situation will be faced with a constitutionally intolerable dilemma: Should he obey his God, or cower in fear of the potential wrath of the Bar Gods? In light of the professional purgatory Ken Smith has been consigned to on account of his actions, it is hardly an idle threat. And if he does act in accordance with his sincerely-held faith, how much effort is enough? How much lawful action is too much? After all, he might have to field the question posed to Smith:

The Panel inquired of Applicant why he had continued to publish items on Bob Larson in 1996. Specifically, he was asked, “Why don’t you let go?” [Exhibit D at 2.]

“Why don’t you let go?” Justice Frankfurter answered that question both emphatically and authoritatively when he wrote: “[o]ne 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). But more to the point, it is quite likely that, had it not been for Smith’s persistence, Larson would not be presiding over a financially insolvent “ministry”6 and languishing on the Elmer Gantry circuit but rather, he’d be helping himself to the Social Security checks of legions of gullible little old ladies.

           c.  Rule 201 Impermissibly Impairs Applicants’ Right To Petition

Smith further alleges in his Thirteenth Claim for Relief that the “mental stability” standard of Rule 201.6(1) is similarly void for vagueness. Specifically, that statute requires bar applicants to “demonstrate that they are mentally stable and morally and ethically qualified for admission.” But as the term “mentally stable” has not been defined in either the statute or applicable case law, the Colorado bar applicant is placed in the absurd position of having to “prove” a fact without fair notice of what it is he has to prove. But more to the point, its vagueness grants a license to unscrupulous state bar examiners who seek to punish applicants whose views they disagree with, as Smith’s experience shows.

On the face of it, bar applicant Ken Smith was a veritable poster child for “mental stability” -- a Certified Public Accountant,7 married to the same woman for nearly two decades, whose life history showed no inclination toward violence, drug abuse, or habitual disregard for the law. But despite this state of affairs, the Defendants insisted that Smith undergo an involuntary psychiatric examination -- at his own expense! -- because they allege that “the manner in which [he chose] to pursue his continuing crusade to expose Bob Larson reveals a significant lack of judgment which resulted in a grave abuse of the legal system.” Exhibit C at 1.

The Defendants’ charge that Smith abused the legal system is without merit, insofar as any action brought with legal and factual support is protected First Amendment activity, whether the lawsuit was brought for any reason or no reason at all. Protect Our Mountain Environment, Inc. v. District Court, 677 P.2d 1361 (Colo. 1984). As their charge had been dismissed by a court of competent jurisdiction, and an appellate court affirmed the dismissal in an unpublished decision, Smith v. Bob Larson Ministries, Inc., No. 96CA1556 (Colo. Ct. App. Jan. 29, 1998)8 -- and they were seasonably advised of these facts -- the Inquiry Panel members were on notice that Smith’s legal activity was sheltered by the First Amendment. But to the Bar Gods, the Constitution is at most a minor annoyance.

If Rule 201 is allowed to stand, bar applicants will know the fear Justice Bender referred to so eloquently when the klieg lights of the media were trained upon him in Tattered Cover -- the fear that took the place of freedom in the libraries, book stores, and homes of the land. Through the harassment of hearings, investigations, reports, and subpoenas, the Colorado Supreme Court will hold a club over speech and over the press. Applicants are still free to engage in journalistic and internet exposes, and file lawsuits when they are defamed -- but like the good citizens of the former Iraqi regime, they will have to worry about a future Saddam Mullarkey or Uday Bender9 leering over their shoulders. The specter of governmental inquiry, in the form of an involuntary psychiatric examination -- an intrusion into one’s personal privacy on an epic scale -- will almost certainly chill their constitutional rights. See, Tattered Cover, 44 P.3d at 1051-54.

The purpose behind the Bill of Rights, and of the First Amendment in particular [is] to protect unpopular individuals from retaliation -- and their ideas from suppression -- at the hand of an intolerant society.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995) (citation omitted; quoted in Tattered Cover). But it is of no substantive value, if the government could do with its proverbial left hand what it could not do with its right. Thus, the United States and Colorado Supreme Court have recognized that indirect restraints upon First Amendment rights are just as pernicious -- and, as impermissible -- as their less-subtle counterparts. As the Colorado Supreme Court (with then-Justice Mullarkey voting in the majority) duly acknowledged,

[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).

      2.   Rule 201 Inflicts Irreparable Injury Upon Colorado Bar Applicants

For purposes of injunctive relief, a plaintiff suffers irreparable injury when the court would be unable to grant him an effective monetary remedy after a full trial. E.g., Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 269 F.3d 1149 (10th Cir. 2001). The injury Smith suffers is not to his future right to practice law but rather, to his present First Amendment right to speak on the issues of the day, free from fear of government reprisal.10 And as his experience with Rule 201 demonstrates, it is not an idle threat. In essence, if his “journalistic and internet expose” of a public figure in 1993 was used against him by bar examiners in 1996, the suggestion that similar activities he might engage in during 2004 cannot be employed as a pretext for denying his application for licensure in 200511 is absurd on its face. See, Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion) (a citizen’s “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”).

      3.  Movant Has No Plain, Speedy, and Adequate Remedy At Law

Smith’s experience, as documented in his companion motion for a show cause order, shows that, irrespective of whether the Colorado Board of Law Examiners applies a facially unconstitutional statute or willfully disregards its own enabling statute, there is little a Colorado bar applicant can do about it as a matter of law. Federal courts avoid bar disputes like the plague, invoking Younger12 abstention during those proceedings and Rooker-Feldman13 afterward. And while applicants for other professional licenses may invoke the protections of Colorado’s Administrative Procedures Act, bar applicants may not. C.R.S. § 24-4-101 (limiting application of CAPA).

      4.  The Proposed Injunction Will Not Disserve The Public Interest

To determine whether an injunction disserves the public interest, one must first determine where the “public interest” lies. It is self-evident that the public has an interest in ensuring that government functionaries adhere to constraints imposed on them by the Constitution. And while the public has an interest in regulation of the practice of law, it most emphatically does not have an interest in permitting the Defendants to willfully disregard the very law that they are charged with regulating. Schware, supra.

That having been said, the rejoinder that “the public interest would be disserved” by striking down Rule 201 fails to survive even cursory examination. After all, the Defendants already have exclusive jurisdiction to regulate the practice of law, Grievance Cmte., supra. -- and presumably, could correct the grievous flaws in this statute even without this Court’s prodding.14

       5.  The Balance of Equities Favors an Injunction

The Defendants are already bound to obey constraints imposed upon them by federal law and the Colorado constitution and as such, cannot be legally ‘harmed’ by any injunction forcing them to observe them, creating a ‘stop-gap’ mechanism to ensure enforcement, and/or imposing punishment for the willful failure to observe them. Conversely, to allow an applicant like Smith to exercise his First Amendment rights, but to require him to submit to an involuntary psychiatric examination as the price for availing himself of this right, is the very evil Justice Black sought to prevent in United Mine Workers of America v. Illinois State Bar Assn., 389 U.S. 217, 222 (1967), when he observed that “[t]he First Amendment would, however, be a hollow promise if it left government free to destroy or erode its guarantees by indirect restraints [on free speech].” The Defendants would suffer no harm if an injunction is issued; millions of Americans will remain relegated to second-class citizenship if it does not. The calculus really is that simple.

Moreover, the Defendants are the classic “bad actors” in this saga. The Colorado Supreme Court justices were acting in their capacities as administrators of Colorado’s bar admission program, and had a legal obligation to properly supervise their subordinates -- an obligation creating not only tort but criminal liability. What the Colorado Supreme Court justices did to Smith, L.A.P.D. Sgt. Stacey Koon actually went to prison for! Koon, supra, n. 10 (police supervisor’s failure to protect Rodney King’s civil rights resulted in a 22-month prison sentence, even though he never once struck an actual blow). Thus, the balance of equities lies heavily in Smith’s favor.

      6.  The Proposed Injunction Preserves The Status Quo

Finally, injunctive relief is intended to preserve the status quo, in the sense that a party suffering injury should not suffer further injury pending a trial on the merits. Graham v. Hoyl, 157 Colo. 338, 402 P.2d 604 (1965). Any order having the practical effect of enjoining Defendants from continuing to operate their illegal star chamber, or otherwise conduct inquisitions into bar applicants’ constitutionally protected activities, will not only protect Smith’s portfolio of rights but those of anyone who might aspire to join this noble profession.

       7.  Ancillary Considerations

Since this motion raises a facial challenge to Rule 201, the only pertinent issue is whether it can, on its face, impair bar applicants’ First Amendment rights, as presently configured; as such, the statute is subjected to strict scrutiny, Tattered Cover, 44 P.3d at 1057, and specific facts need not be alleged. Conversely, if Defendants intend to rely upon Law Students Research Committee v. Wadmond for the proposition that the facial unconstitutionality of Rule 201 should be disregarded because they have been really, really, really good boys and girls,15 then Smith’s direct experience with the admission process becomes relevant, and the Defendants’ own admissions made in connection with his application (properly documented both herein and in his companion motion for a show cause order) constitute conclusive evidence that they failed to show the same professionalism or restraint as their colleagues in New York. Accordingly, this motion should be amenable to decision without a formal hearing, thereby preserving valuable Court time.

B. Smith’s Need For Injunctive Relief Is Immediate

It has been brought to Smith’s attention (Exhibits E, F) that televangelist Larson is poised to return to the nation’s airwaves -- and already, Smith has been called upon to rekindle his public opposition to him. Exhibit G. And even a cursory review of Mr. Larson’s website suggests that he has opened new vistas in religious con-artistry -- including a “personal spiritual coaching program,” Exhibit H, and a “restoration retreat,” at which his victims will be ‘ministered to’ by financial advisors. Exhibit I. Presumably, one of the advisors will be convicted felon Craig Smith of Swiss-America Trading Company, dubious dealers of collectible gold coins.16 It would thus be in the public interest for Smith to speak on this topic.

Under normal circumstances, Smith might choose to reprise his role -- or he might not. But for him to speak again, he would have to ‘count the cost,’ in ways he never dreamt possible when he was a naïve law student. His last foray into the world of free speech cost him dearly. Tens of thousands of dollars in legal fees. Over a million dollars in lost income. Savage attacks upon his reputation. And public disgrace -- for being branded “mentally unfit to be a lawyer” is not unlike being deemed “morally unfit to be a prostitute.”17

If Smith chose to revive his “crusade” to expose Larson, there is a strong likelihood that he would be harassed by the Colorado Board of Law Examiners, should he ever dare to reapply for admission to practice law in the state. Thus, like the unfortunate Iraqi under the yoke of Saddam Hussein, he must make a choice: to speak, or to eat. This choice, in turn, has an unconstitutional “chilling effect” upon his speech. If Rule 201 is permitted to stand, Smith will have little choice but to “steer far wider of the unlawful zone.” Keyishian, supra.

CONCLUSION

The Bill of Rights does not say who shall be doctors or lawyers or policemen. But
it does say that certain rights are protected, that certain things shall not be done.18

The reason this matter is before this Court is because, in self-evident retaliation for those of Smith’s First Amendment-protected activities they disapproved of, the Defendants ordered him to undergo an involuntary psychiatric examination. And when Smith refused their facially illegal demand on constitutional grounds, they further retaliated by not only summarily denying him the right to practice law, but also the right to plead his case for admission, in direct and incontrovertible violation of the Due Process Clause of both the federal and state constitutions.

Smith implores this Court to act to ensure that it will never happen again, for no officer of the law “may set that law at defiance with impunity.” United States v. Lee, 106 U.S. 196, 220 (1882).

As Smith has met all the legal prerequisites for injunctive relief, he respectfully requests that this Court issue an appropriate injunction forthwith.

Respectfully submitted this ____ day of January, 2004.

_____________________
Kenneth L. Smith


 ENDNOTES

1. 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. See, Tattered Cover v. City of Thornton, 44 P.3d 1044, 1054 (Colo. 2002).

2. Rule 201 is a statutory regulation, but the technically proper designation is cumbersome, and the effect is precisely the same.

3. See, City of Westminster v. Dogan Construction Co., 930 P.2d 585, 590 (Colo. 1997) (“plain meaning” rule).

4. Cf., Law Students Research Council v. Wadmond, 401 U.S. 154, 163 (1971) (“loyalty oath” rule not applied in an unconstitutional manner, but see dissent).

5. Jesus’ famous ‘scouring of the Temple’ -- e.g., Matt. 21 -- would almost certainly violate Colorado law and presumably, would not be religious conduct protected by art. II, § 4 of the Colorado constitution.

6. As of December 31, 2001 -- the last date for which information was publicly available -- Bob Larson Ministries reported having only $175,676 in assets, but $522,974 in liabilities, according to http://www.guidestar.org. And in all likelihood, many of those liabilities will never be paid.

7. For purposes of full disclosure, Smith’s license (#8683) was on inactive status, due primarily to the now-defunct ethics rule that a practicing lawyer could not simultaneously hold himself out as a member of any other profession. Smith has not reactivated his license as of this writing, due to the reasonable fear that state officials may retaliate against him as a result of this situation.

8. Specifically, the Court of Appeals noted that the trial court found, with record support, that televangelist Larson’s published reference to Smith as a “stalker” was arguably defamatory under the circumstances and as such, an abuse of process claim could not be established as a matter of law. Smith v. Bob Larson Ministries, slip op. at 3.

9. While indelicate, the analogy is fair. Saddam Hussein will almost certainly by tried for crimes against humanity under the same theory of respondeat superior under which Smith seeks to hold Defendant Mullarkey accountable: They knew or had reason to know that violations of law were occurring, and had supervisory authority over the perpetrators; accordingly, they had a clear duty under law to act. See, e.g., Woodward v. City of Worland, 977 F.2d 1392 (10th Cir. 1992) (civil liability); United States v. Koon, 34 F.3d 1416(9th Cir. 1994) (infamously, criminal liability in re: the Rodney King beating). The only difference is one of degree.

10. Only a cursory mention need be made of Smith’s other facial challenges here. While Rule 201 arguably runs afoul of the Americans With Disabilities Act, basic guarantees of equal protection and privacy, and other rights enshrined in Colorado’s constitution, they do not give rise to a current injury and as such, this Court cannot grant injunctive relief on those grounds.

11. Smith was denied admission on January 13, 2000 and as such, is entitled to reapply on or after January 13, 2005. Rule 201.12.

12.Younger abstention applies to state administrative proceedings, provided that constitutional claims may be raised in a state-court judicial review of those proceedings. Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 477 U.S. 619 (1986).

13. The Tenth Circuit was so eager to avoid this dispute that it invoked the Rooker-Feldman doctrine in putative support for the proposition that it could not decide Smith’s facial challenges to Colorado’s bar admission statute, despite the fact that the Feldman court wrote:

The respondents’ claims that the [bar admission] rule is unconstitutional [does] not require review of a judicial decision in a particular case. The District Court, therefore, has subject matter jurisdiction over these elements of the respondents’ complaints.

D.C. Court of Appeals v. Feldman, 460 U.S. 462, 487 (1983).

Remarkably, we now have a situation in the Tenth Circuit where a published opinion states that at least in principle, potential bar applicants can challenge the constitutionality of Colorado’s bar admission statute, Roe v. Ogden, 253 F.3d 1225 (10th Cir. 2001), but an unpublished opinion holds that potential bar applicant Ken Smith may not challenge the constitutionality of that exact same statute.

14. It seems self-evident that a provision giving bar applicants the right to a timely, expedited, and independent judicial review of all Board of Law Examiners’ actions and interlocutory decisions would cure every constitutional malady alleged in Smith’s complaint. Every other administrative agency in Colorado must answer to independent judges, and there is no conceivable public policy reason why the Defendants cannot be equally answerable for their actions.

15. In effect, that is precisely what Wadmond, supra, n. 4, held: that the self-imposed restraint of Court functionaries somehow rescued the statute! Wadmond is an odd decision, at best; Justice Black’s dissent is probably the sounder view.

16. David Fritze, “Big Pitch On Rare Coins: Paranoia, Fiscal Fears Fanned to Reap Millions,” The Arizona Republic, July 30, 1995 at A1 (copy of article attached as Exhibit J).
Larson has various confederates of questionable character, including Rev. Dr. Terry Smith, a minister convicted of stealing condoms and exposed on Inside Edition for having sexual relations with a follower who came to him for marriage counseling who was then seven months’ pregnant. See, http://members.freespeech.org/boblarson/condoma.htm for salient details.

17. That the legal profession has this sorry reputation among the general public could be a fact this Court could take judicial notice of; that it is not without foundation is suggested by articles such as Chuck Plunkett, “Lawyer Led Crusades -- And A Twisted Life,” Denver Post, Sept. 18, 2003, at A1 (in re: the alleged murder of cocaine-abusing bizarre-sex fiend lawyer Thomas Roberts -- “The two women now charged with his death told police Roberts paid them to watch him dance around in a dress”) and 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 granted license to practice law by Democrat-laden Colorado Supreme Court).

18. Barsky v. Board of Trustees, 347 U.S. 442, 474 (1954) (Douglas, J., dissenting).