October 24, 2005

I'll judge you all, and make damn sure that no one judges me.
-- Ian Anderson, "Thick as a Brick"

Hon. John W. Suthers, Esq.
Colorado Attorney General
1525 Sherman St., 5th Floor
Denver, Colorado 80203

 

Dear Mr. Suthers:

I write today concerning the recent disposition of Smith v. Mullarkey, No. 05-SA238 (Colo. Oct. 17, 2005) (per curiam), and arguably, the most stunning act of misconduct ever committed by an American appellate court. Specifically, the Justices decided a case in which they were defendants in their individual capacities.

Everyone can appreciate how fundamentally wrong it is for a judge to decide a case in which s/he has a personal financial interest. After all, if it could cost you your entire personal fortune if the other fellow wins, you’re probably going to have a pretty hard time being fair and impartial. But as our state attorney general, you will also understand how constitutionally repugnant it is.1

In that case, I raised a vast array of facial challenges to the constitutionality of Colorado’s bar admission statute. But more importantly, I filed suit against the justices of the Colorado Supreme Court in their individual capacity under a negligent supervision theory, pursuant to Woodward v. City of Worland, 977 F.2d 1392 (10th Cir. 1994). And as supervision of direct subordinates is an inherently administrative task, the justices are not entitled to absolute judicial immunity for their tortious misconduct. Forrester v. White, 484 U.S. 219 (1988).2

As I am assured you are aware, pursuant to the Supremacy Clause, U.S. Const. art. VI, sec. 2, state courts have a duty to enforce federal law. Howlett v. Rose, 496 U.S. 356 (1990), and cases collected therein.3 Further, it has been clearly established that a state district court is the proper forum for such claims.4 Yet, this state’s courts have declared that they are not open for business, and will not even entertain my facially valid federal claims.

It is not possible to overstate the ramifications of that decision. A century ago, Justice Moody wrote that the right of access to the courts “is the right conservative of all other rights, and lies at the foundation of orderly government.” Chambers v. Baltimore & O. R. Co., 201 U.S. 142, 148 (1907). And if we lowly American citizens can no longer vindicate our “constitutional rights” in a court as a matter of right, they no longer exist. But even that outrage pales in comparison to the spectacle of a panel of judges deciding a case in which they personally had a multi-million-dollar pecuniary interest.

The damage the Justices have inflicted upon the credibility of our legal system in this matter is both irreparable and incalculable, for as Justice Bender concedes, “the integrity of the judicial system is impugned when it appears to the public that the judge is partial." People v. Julien, 47 P.3d 1194, 1201 (Colo. 2002) (Bender, J., dissenting; citation omitted). And as he proclaims, he does not “stand alone” (Id. at 1202) in this assessment:

It is fundamental to the vitality of our judicial system that litigants believe in the fairness of the process. An unfavorable decision perceived to be the result of an impartial consideration may be bearable, but an unfavorable decision tainted by even the appearance of partiality cannot be condoned.5

Justice Bender further notes that “[t]he Due Process Clause of the Constitution safeguards the right to impartial judges and requires recusal of judges who are or who appear to be biased,” and that the Colorado Code of Judicial Conduct mandates recusal “whenever a judge’s impartiality might reasonably be questioned.” Julien, 47 P.3d at 1203 (emphasis added). In short, Justice Bender admits to being ‘on notice’ that his actions in this matter constitute a federal felony.

There is no conceivable excuse for what the Mullarkey Court did here. As I pointed out to the Court, they had the duty to recuse themselves, and a mechanism for doing so: Judges of the Court of Appeals are authorized under Colorado law to serve as substitute justices. C.R.S. § 13-4-101.6

That the Smith v. Mullarkey decision was skewed by the justices’ personal financial interest is evident from a review of the Mullarkey Court’s jurisprudence. Given the remarkable solicitousness it has shown toward the due process rights of sex offenders, People v. Cooper, 27 P.3d 348 (Colo. 2001), and illicit narcotics dealers, Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. 2002), you would expect it to show similar respect for the rights of law-abiding bar applicants. And you certainly wouldn’t expect an honest judge to omit dispositive facts and fabricate fraudulent ones in an opinion, as has been done repeatedly in this case.7

You have stated during your recent radio ad campaign against underage drinking that it is your job to “hold people accountable.” But surely you must realize that accountability begins at home, and that our courts must faithfully follow the law, or there is no law. Justice Brandeis minced no words:

Decency, security and liberty alike demand that government officials be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself.8

Just as we are to be role models for our children, government leaders serve as role models for society. And to paraphrase the Governator, when the government is no longer accountable to the people, there is tyranny.

As you will recall, the Colorado Supreme Court recently went to some length to establish that as attorney general, you are not the State’s attorney but rather, are charged with acting in parens patriae for the people of Colorado.9 And accountability is also a two-way street. As a citizen, I believe I am entitled to insist that you act in that capacity, and, as an active Republican and delegate the past two cycles, I expect to hold you personally accountable for your faithfulness to that charge. And as Secretary Norton has personally assured me that you are a man of the highest integrity and character -- she specifically recommended that I contact you, at the proper time -- I trust that you will be more than equal to the task before you.

Based on the foregoing, I respectfully request that you use your good offices to rectify this intolerable situation by

Thank you for your prompt attention to this matter. And although I believe that you have more than enough information with which to proceed, I will be happy to answer any questions you may have.

Kind regards,

Kenneth L. Smith
23636 Genesee Village Rd.
Golden, Colorado 80401
(303) 526-5451

cc: as appropriate (example attached)

1. Tumey v. Ohio, 273 U. S. 510, 523, 531-534 (1927) (judge violated due process by sitting in a case in which it would be in his financial interest to find against one of the parties); Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813, 822-825 (1986) (same); Ward v. Monroeville, 409 U. S. 57, 58-62 (1972) (same); Johnson v. Mississippi, 403 U. S. 212, 215-216 (1971) (per curiam) (judge violated due process by sitting in a case in which one of the parties was a previously successful litigant against him); Bracy v. Gramley, 520 U. S. 899, 905 (1997) (would violate due process if a judge was disposed to rule against defendants who did not bribe him in order to cover up the fact that he regularly ruled in favor of defendants who did bribe him); In re Murchison, 349 U. S. 133, 137-139 (1955) (judge violated due process by sitting in criminal trial of a defendant whom he had indicted); see also, Gibson v. Berryhill, 411 U.S. 564 (1973) (administrative agency).

Understandably, Colorado precedent is in complete accord. "Even where the trial judge is convinced of his own impartiality, the integrity of the judicial system is impugned when it appears to the public that the judge is partial." People v. Botham, 629 P.2d 589, 595 (Colo. 1981); see also, e.g., People v. Dist. Court, 192 Colo. 503, 508, 560 P.2d 828, 831 (1977) ("Courts must meticulously avoid any appearance of partiality."); Johnson v. Dist. Court, 674 P.2d 952, 956 (Colo. 1984) ("Although the trial judge is convinced of his or her own impartiality, if it nonetheless appears to the parties or to the public that the judge may be biased or prejudiced, the same harm to public confidence in the administration of justice occurs."); Nordloh v. Packard, 45 Colo. 515, 521, 101 P. 787, 790 (1909) (stating that the impartial administration of justice is necessary "to retain public respect and secure willing and ready obedience to [courts'] judgments").

2. I further alleged numerous violations of my right to procedural due process, which are, of course, justiciable even in the absence of damages. Carey v. Piphus, 435 U.S. 247 (1978). And, as the facts of the case are materially indistinguishable from those in Diblasio v. Novello, 344 F.3d 292 (2d Cir. 2003), absolute immunity is unavailable.

3. The Howlett Court observed:

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

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.”

The force of the Supremacy Clause is not so weak that it can be evaded by mere mention of the word ‘jurisdiction.’

Howlett, 496 U.S. at 369-70, 382-83 (1990) (citations omitted).

4. "Article VI, Section 9 of the Colorado Constitution confers general jurisdiction upon district courts, with original jurisdiction in all civil, probate, and criminal cases. This jurisdiction extends to cases involving federal rights, even when there is no governing Colorado authority.” Telluride Co. v. Varley, 934 P.2d 888 (Colo. App. 1997) (citing United States v. District Court, 169 Colo. 555, 458 P.2d 760 (1969), aff'd, 401 U.S. 520 (1971)).

5. Williams v. Farmers Ins. Group, Inc., 720 P.2d 598, 601 (Colo. App. 1985) (emphasis added).

6. C.R.S. § 13-4-101 states, in pertinent part: “Judges of the court of appeals may serve in any state court with full authority as provided by law, when called upon to do so by the chief justice of the supreme court.” (emphasis added). Presumably, “any state court” means “any state court.” As such, the “rule of necessity” doesn’t apply.

7. By way of example, the Court asserted, “If an applicant requests a hearing, but voluntarily withdraws that request before the hearing is held, the inquiry panel’s findings become the recommendation filed with the Supreme Court,” Smith v. Mullarkey, slip op. at 5, insinuating that I had somehow voluntarily withdrawn my request, a claim refuted conclusively by the record in this case.

8. Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).

9. People ex rel Salazar v. Davidson, 79 P.3d 1221 (Colo. 12/01/2003).