NEWS & COMMENT

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June 23, 2009 - Programming note

I'm traveling over the next couple of weeks and will have limited access to e-mail and blogging opportunities.

June 23, 2009 - An unexpected occasion for laughter

Today, I attended a presentation by a FBI computer forensics special agent regarding peer-to-peer networks, which presentation was sponsored by the HTCIA (I am a member). The seminar was held at a police station precinct training facility. When I returned to my car, I found this attached to my window. (My sides still ache from laughing).

June 22, 2009 - KnowYourCourts.com blogger attends SPJ's "Citizen Journalism Academy"

I attended a couple of weeks ago. It's no substitute for a journalism degree, but was very informative.

June 21, 2009 - Finalists for Colorado federal judgeships down to nine

Robert Boczkiewicz (Reuters) has the story here.

June 17, 2009 - Psycho-Board sting operation reaffirms Colorado as the model state for selective administrative law prosecution

The Psychologist Board of Examiners (hereinafter, "Psycho Board"), has netted another dangerous predator through the use of a sting operation. But, I contend it's just another case of selective prosecution based on anonymous complainants, who will not be available for cross-examination and confrontation.

I have oft-reported Colorado's selective prosecution by Colorado's Attorney Deregulation Council -- for example, In re Chambers, People v. Brennan, inter alia, while the agency will not investigate attorneys who have engaged in truly unethical conduct.¹

Similarly, Colorado's specious Psycho Board filed a complaint and motion for injunction against Elizabeth Paterson from the practice of psychology. The action is based on a sting operation, where the Board employed D.o.R.A. investigator, Kevin Huff, to misrepresent himself as Carl Johnson, a single father, complaining that he suspected his children might be subjected to sexual abuse by an ex-spouse's new husband.

Consider that the Board's action against Paterson is based on complaints concerning court-ordered custody evaluations (e.g., here ("The court ordered the family to attend Dr. Paterson")).

The relevance of this last point is that this agency selectively declines investigations of unethical practices by psychologists under the pretext that a state statute deprives the board of jurisdiction. As examples:

• In re Bill J. Fyfe: "According to the Mental Health Statute, C.R.S. 12-43-215 (7), the Board has determined that it has no jurisdiction:

  The provisions ofthis article shall not apply to mental health professionals acting within the scope of a court appointment to undertake custodial evaluations in domestic relations cases in the courts ofthis state or to mental health professionals acting within the scope of a court appointment to undertake domestic and child abuse evaluations for purposes of legal proceedings in the courts of this state.

  The Board is returning the material to you for your records. The Board does not retain a copy of this documentation.



• In re Marian Camden: "After thorough review of the information available, and pursuant to CRS 12-43-215(7), the Board found that it does not have jurisdiction to intervene in this matter because the services complained about involved a custodial evaluation undertaken in a domestic relations case in the courts of this state or domestic or child abuse evaluation undertaken for purposes of legal proceedings in the courts of this state. Accordingly, the Board determined that further review is not warranted, and will take no further action."



• In re Mary Abbett: "The review of this information resulted in a finding that pursuant to CRS 12-43-215(7), the Board does not have jurisdiction to intervene in this matter because the services complained about involved a domestic or child abuse evaluation undertaken for purposes of legal proceedings in the courts of this state. Accordingly, the Board found that further review and mailing of the Board's 20-day notice letter is not warranted."



• In re Steve Gimpel: "The review of this information resulted in a finding that pursuant to CRS 12-43-215(7), the Board does not have jurisdiction to intervene in this matter because the services complained about involved a domestic or child abuse evaluation undertaken for purposes of legal proceedings in the courts of this state. Accordingly, the Board found that further review and mailing of the Board's 20-day notice letter is not warranted."



• In re Marian Camden: "The review of this information resulted in a finding that pursuant to CRS 12-43-215(7), the Board does not have jurisdiction to intervene in this matter because the services complained about involved a domestic or child abuse evaluation undertaken for purposes of legal proceedings in the courts of this state. Accordingly, the Board found that further review and mailing of the Board's 20-day notice letter is not warranted."



• In re Mark Wilmot: "The review of this information resulted in a finding that pursuant CRS 12-43-215(7), the Board does not have jurisdiction to intervene in this matter because the services complained about involved a domestic or child abuse evaluation undertaken for purposes of legal proceedings in the courts of this state. Accordingly, the Board dismissed the complaint."



• In re Carol Reinert: "The review of this information resulted in a finding that pursuant CRS 12-43-215(7), the Board does not have jurisdiction to intervene in this matter because the services complained about involved a domestic or child abuse evaluation undertaken for purposes of legal proceedings in the courts of this state. Accordingly, the Board dismissed the complaint."



• In re Bill Fyfe: "After due consideration of the information available, and pursuant to CRS 12-43-215(7), the Board found that it does not have jurisdiction to intervene in this matter because the services complained about involved a custodial evaluation undertaken domestic relations cases in the courts of this state or domestic or child abuse evaluation undertaken for purposes of legal proceedings in the courts of this state. Accordingly, the Board has concluded its review and will take no further action."



• In re Shelley Bresnick: "After due consideration of the information available, and pursuant to CRS 12-43-21 5(7), the Board found that it does not have jurisdiction to intervene in this matter because the services complained about involved a custodial evaluation undertaken domestic relations cases in the courts of this state or domestic or child abuse evaluation undertaken for purposes of legal proceedings in the courts of this state. Accordingly, the Board found that further review and mailing of the the Board's 20-day notice letter to Dr. Bresnick is not warranted."



• In re William Fyfe: "After due consideration of the information available, and pursuant to CRS 12-43-21 5(7), the Board found that it does not have jurisdiction to intervene in this matter because the services complained about involved a custodial evaluation undertaken domestic relations cases in the courts of this state or domestic or child abuse evaluation undertaken for purposes of legal proceedings in the courts of this state. Accordingly, the Board found that further review and mailing of the the Board's 20-day notice letter to Dr.Fyfe is not warranted."



• In re Cynthia Duckworth: "After due consideration of the information provided, and pursuant to CRS 12-43-215(7), the Board affirmed that it does not have jurisdiction to intervene in this matter because the services complained about involved a domestic or child abuse evaluation undertaken for purposes of legal proceedings in the courts of this state. Accordingly, the Board has concluded its review and will take no further action."

AND YET, the Psycho Board did not allow C.R.S. 12-43-215(7) to present an obstacle in any of the following custody-related matters:

• In re Bob LaCrosse: "After thorough review and discussion, the Board found probable cause to believe you violated C.R.S. 12-43-222(1)(g), and issued this Letter of Admonition in accordance with C.R.S. 12-43-(3)(d). Specifically, the Board determined:

  Making custody recommendations without doing complete evaluation/ interviewing all parties.

  By this letter, the Board takes the formal disciplinary action of admonishing you for the conduct specified above, and warns you that repetition of such practice may lead to imposition of more severe disciplinary action."



• In re Mark Hoffman (stipulation and final agency order suspending Hoffman's license for conduct "while serving as a court-appointed custody evaluator retained for the express purpose of performing psychological evaluations on all parties in a child custody action" and for conduct, "which was outside the scope of his court ordered custody evaluator role with clients").

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¹ E.g., to name just a few:

• Madeline Wilson, who lied to the court, lied to disciplinary authorities, given false sworn testimony, and aided and abetted in the concealment of a minor child from a parent with a right of access and conservatorship. (If you're wondering why I haven't been sued for these allegetions, attribute her attorney's forbearance not only to to the fair report privilege and SLAPP jurisprudence, but also because, unlike Massachusetts, substantial truth is a defense in Colorado. If Madeline wants a trial on the merits as to whether these factual statements are true, I'd be delighted to finally have a day in court. Don't hold your breath waiting).
• Herman "Hal" Lohse, who was alleged to, among other things, have been sleeping with his then-divorce-client (who he married a few months after the divorce was final).
• Edward W. Nottingham, alleged: to have used a federal court-issued computer to visit porn/swinging Web sites; to have used a federal court-issued cell phone to arrange visits with prostitutes; to have instructed a prostitute to lie to federal investigators; to have misused the prominence of his [former] judicial office in a personal dispute over a handicapped parking space.
• John D. Fognani, alleged to refused to return client files, acquired or attempted to acquire an interest in one or more clients' chattels, assetts, and/or real property, and engaged in "gross negligence in his fiduciary responsibilities," allegedly costing a client [and client's spouse] their entire retirement savings.

June 16, 2009 - KnowYourCourts.com and individual contributor bring about changes to the State Bar of Texas Office of Thief Disciplinary Counsel

On April 21, 2009 (below), I reported that the Louisiana Supreme Court had dismissed disciplinary charges against two attorneys charged with violating bar rules imposing confidentiality of disciplinary proceedings . The court held that the rule violated the First Amendment as an unconstitutional content-based restriction of speech.

I notified another complainant before the State Bar of Texas Office of Thief Disciplinary Counsel about the Louisiana decision, In re Warner, who in turn forwarded her grievances and the Warner decision to Kennon L. Peterson, a "Rules Attorney" for the Supreme Court of Texas. When Peterson announced that she would research the matter, I then provided Peterson with some pertinent secondary authorities (e.g., Roy Simon, Confidential Disciplinary Proceedings and the First Amendment (Part I & Part II)).

Today, the other complainant received the following e-mail, indicating that the Supreme Court of Texas has taken the matter under advisement and that the OCDC will be making immediate changes to their illusory form letters:

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From: Kennon.Peterson@courts.state.tx.us sent: 6/16/2009 2:59:13 P.M. Central Daylight Time To: GGreenfieldMT@aol.com Subject: RE: Referred by Mr. Ted Wood message text: Ms. Greenfield, Thank you again for your letter dated May 11, 2009. As I mentioned in my initial response, you raised important questions that need to be thoroughly researched. After reviewing your letter and the Office of the Chief Disciplinary Counsel’s letter, I analyzed In re Warner, the history of Texas Rule of Disciplinary Procedure 2.16, and the history and text of the American Bar Association’s Model Rule for Lawyer Disciplinary Enforcement 16, which addresses access to disciplinary information. I reported my findings to the Justices of the Supreme Court of Texas. I also provided your letter, the Office of the Chief Disciplinary Counsel’s letter, and In re Warner. After considering the concerns you raised in your letter and my preliminary research, the Court decided that it is time to re-analyze Texas Rule of Disciplinary Procedure 2.16 and consider amending the provisions regarding the confidentiality of disciplinary proceedings. The Court also decided that while this analysis is underway, the Office of the Chief Disciplinary Counsel’s letter may need to be revised to clarify the precise scope of confidentiality set forth in existing Texas Rule of Disciplinary Procedure 2.16. The Court will work with the Office of the Chief Disciplinary Counsel and the Commission for Lawyer Discipline to address these matters. I will promptly inform you of any changes to the Office of the Chief Disciplinary Counsel’s form letter or the text of Texas Rule of Disciplinary Procedure 2.16. In the meantime, please do not hesitate to contact me again if you have additional questions and concerns. Once again, thank you for your input regarding disciplinary proceedings in Texas. Best regards, Kennon

June 16, 2009 - Ken Smith has provided more pithy prose for our featured articles section

Click here

June 15, 2009 - Nottingham spotted at Employment Law CLE

A couple weeks ago, an attorney attending the May 20^th Annual Colorado Employment Law Conference called to notify me that Fast Eddie is an audience-attendee. (Frau Nancy Cohen (Attorney Deregulation Council) was among the esteemed speakers).

While the former chief federal judge was likely there just to earn a few CLE credits to keep his law license in "good standing," ¹ I hope he learns something about employment law:

Recall that, in Phillips v. Pepsi Bottling Group, No. 05-cv-01322-EWN-KLM (filed Nov. 1, 2007), Magistrate Kristen Mix was quoting as advising a plaintiff as follows:

The biggest problem with your case is that Judge Nottingham hates employment cases and there's nothing you can do about it. It's random. Now don't get me wrong, he's a fine judge, but he just hates employment cases. That's why he will try to find any way in the summary judgment briefs to say there's no material issues and grant summary judgment, and if he doesn't, he will make it tough at trial, and you won't win . . . I'm going to look you right in the eye and tell you that you're gonna lose.

Pl.’s Mot. For Recusal of Judge Nottingham Pursuant [Docket #59]

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¹ Note that, although an attorney accused of instructing his prostitute to lie to federal investigators is in no danger of losing his law license, he can be suspended for failing to maintain annual registration fees and CLE credits.

June 03, 2009 - Complaint filed against First Judicial District judge, Jack Berryhill, alleging cover-up of gross attorney misconduct

The complaint was filed today by none other than me and, perhaps, it will again be among the select 5% of complaints investigated. Another of my complaints (here) against Jane Tidball made the cut in 2008.  Readers may also recall that my complaint re: Nottingham was a catalyst for his eventual resignation (see Harrington Complaint Triggered Nottingham Case (Colorado Law Week, 10/21/2008)) and my complaint re: Michael J. Watanabe (U.S. magistrate judge) was under investigation for over eleven (11) months. (99.5% of all complaints are summarily dismissed by the Tenth Circuit Judicial Council within a couple of weeks. See Nov. 3, 2008 entry here).

June 03, 2009 - Colorado's newest federal judge, Christine Arguello, called to back up lofty platitudes from her Investiture Speech

Readers here are aware of how disgusted I am with the frequent citations to the "Rule of Law," by the judiciary, when many of its members either have no understanding of what it means or, alternatively, know exactly what it means, but prefer to exercise their will rather than judgment.

Ken Smith, in a pleading filed today (here), has challenged Judge Arguello to demonstrate her commitment to the Rule of Law.

Smith wrote:

To understand this case, all you need to do is revisit the investiture speech you gave not even six months ago. One passage in particular is especially poignant:

Alongside these false concepts of the law and our lack of confidence in our justice system, I find even more troubling the degradation of the rule of law itself. While our foreign policy seeks to advance this central tenet of free societies as a public value in other nations, the United States of America seems headed in the opposite direction.

Christine M. Arguello, Speech (On Investiture for United States District Judge for the District of Colorado), Dec. 5, 2008.

Coming as it does from a sitting federal judge, your indictment is as audacious as it is accurate. In no small part, you are confessing that the damage has been done. The rule of law is the sine qua non of civil society; as you observed, one of the absolute prerequisites for the existence of freedom is adherence to the law by government officials at the highest level. Id. You go on to declare that:

[i]f we forsake the rule of law for convenience or expediency; if we sacrifice it out of ruthlessness; if we abandon it out of laziness, history will never forgive us. All who have struggled against tyranny, arbitrary rule, despotism, and even simple injustice, will hold us accountable for all time for this unforgivable sin. It cannot be allowed to happen.

Id. Civil society depends, as it necessarily must, on preservation of the rule of law. None can be above the law, and none beyond its protection. And as you say, the situation demands urgency:

To do that requires an extra commitment. So as I pledge that commitment today, I ask all of you to do the same. I ask you to infuse your work in the law with the passion that your lives have forged, with the humanity that has informed your work, and with the decency that has grounded your conduct. Nothing is more important than that we do this, and do it now. Our times demand it. The future of the law, and of American civilization, demands it.

Id.

You ask us to draw upon our “life experience” and “understanding of human nature.” Id. But if there is one inescapable constant in human nature, it is that “power concedes nothing without a demand.” Moreover, one is left to wonder how this noblest of goals could possibly be obtained if the only weapons in our arsenal are banal exhortations and pompous platitudes. Quis custodiet ipsos custodes? Who will guard “the guardians of the law?”

The case is Smith v. Ebel.

June 03, 2009 - Colorado Law Week to do a feature on Attorney Regulation Counsel's selective prosecution of Mark Brennan

Expect to see it in the next print edition.

The Brennan case is here.

June 01, 2009 - Colorado Comm'n for the Abolition of Judicial Discipline has released its 2008 Annual Report

Highlights:

• pro se parties are all dumb-asses



• 95% of all submitted complaints were dismissed out-of-hand. Only ten (10) of the 217 complaints were investigated



• Of the 5% that were investigated, four complaints (including one of my complaints (here)) involved allegations of unreasonable delays in issuing rulings, two involved despotic, opprobrious courtroom demeanor, one concerned allegations of sexual harassment of staff (say it isn't so!), one concerned a traffic violation involving alcohol, one involved participation in extra-judicial activities (swinging, perhaps?), and one concerned a judge’s obligation to report an attorney’s misconduct.



• Of the four (4) disciplinary actions (note the Commission would rather call them "corrective actions"), all were private: Three (3) private letters concerning violations of the Code were issued (one letter of admonition; one letter of reprimand; and one letter of censure) and one judge was directed to seek professional training in judicial demeanor and temperament. One judge voluntarily retired; two complaints were dismissed after further investigation indicated that there was no misconduct; and three complaints were carried over for the Commission’s consideration in 2009.

This is why it's called the Colorado Commission for the Abolition of Judicial Discipline.

Note also that longtime Commission member, John Holcomb, a professor of business ethics and legal studies at the University of Denver's Daniels School of Business, has always had nothing but praise for the former federal judge, Eddie Nottingham. (See my Feb. 29, 2009 post, infra). He's surreptitiously listed on the Commission's member roster as an innocuous non-lawyer "citizen" member and failed to recuse himself from consideration of my complaint (whereas Federico Alvarez and Judge Charles Hoppin did - click here). Is this a fellow you think ought to be responsible for deciding which judges should or should not be disciplined?

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Colorado Commission on Judicial Discipline
Annual Report
 

Background and Jurisdiction

The framework for the Colorado Commission on Judicial Discipline (Commission) is found in Colo. Const. art. VI, § 23. Under § 23(d), a justice or judge of any court of record may be removed or disciplined for willful misconduct in office, willful or persistent failure to perform his or her duties, intemperance, or a violation of the Colorado Code of Judicial Conduct (Code). A judge also may be retired for a disability that interferes with the performance of his or her duties, if the disability is likely to become permanent. Colo. Const. art. VI, § 23(e) provides for certain sanctions short of removal or retirement, where appropriate, including suspension, censure, reprimand, remedial action, or other discipline.

Colo. Const. art. VI, § 23(h) grants authority to the Colorado Supreme Court to provide by rule for the procedures to be followed by the Commission. Accordingly, the Supreme Court has established guidelines for the administration and activities of the Commission in the Colorado Rules of Judicial Discipline (Rules), which are applied in conjunction with the Code. The full text of the Rules and Code are published in Court Rules, Book 1, of the Colorado Revised Statutes.

For a fuller understanding of the scope of the Commission’s disciplinary authority, it is important to note the following:
 

> The Commission’s jurisdiction is limited to disciplinary matters concerning district judges, county judges, Colorado Court of Appeals judges, justices of the Colorado Supreme Court, senior judges, and appointed judges. Excluded from this jurisdiction are magistrates, municipal judges, and administrative law judges (ALJs).
> The Office of Attorney Regulation Counsel (ARC) is charged with disciplinary oversight of magistrates and ALJs, along with its jurisdiction over the conduct of lawyers generally, under the Colorado Rules of Professional Conduct.

> County Judges in the City and County of Denver are considered municipal judges; disciplinary matters for those judges are addressed by the Denver County Court Commission on Judicial Discipline. Certain other cities—for example, Lakewood—have established similar disciplinary bodies to oversee the conduct of their municipal judges.
 

Frequently, the Commission receives calls from individuals who (1) confuse the judicial disciplinary process with the appellate process; and (2) misconstrue a disappointing factual or legal ruling to be judicial misconduct and want to have the decision reversed on that basis. However, appeals of findings of fact and legal conclusions are reserved to courts of record under Colo. Const. art VI, §§ 1 and 2, and by provisions of Colorado Revised Statutes.

Other matters beyond the scope of the Commission’s jurisdiction include concerns about a judge’s overall performance and fitness for the position, rather than an incident or series of incidents of misconduct. Although there may be some overlap with the Commission’s disciplinary role, such concerns may be more appropriate for consideration by the Colorado Commission on Judicial Performance, which disseminates information regarding a judge’s performance prior to the judge’s retention election. The Colorado Commission on Judicial Performance is accessible online at www.cojudicialperformance.com/index.cfm.


Grounds for Judicial Discipline

The grounds for judicial discipline that may trigger the sanctions provided in Colo. Const. art. VI, § 23(d) are described in Rule 5(a). They include:

1) willful misconduct in office, including misconduct that, although not related to judicial duties, brings the judicial office into disrepute or is prejudicial to the administration of justice;
2) willful or persistent failure to perform judicial duties, including incompetent performance of judicial duties;
3) intemperance, including extreme or immoderate personal conduct, recurring loss of temper or control, abuse of alcohol, or the use of illegal narcotics or dangerous drugs;
4) any conduct that constitutes a violation of the Code; or
5) disability interfering with the performance of judicil [sic.] duties that is, or is likely to become, of a permanent character.
 

Because Rule 5(a)(4) incorporates the Code into the Rules, complaints filed with the Commission may involve allegations that a judge has not fulfilled his or her obligations under the nine Canons that are included in the Code. The Canons address the integrity and independence of the judiciary; impropriety or the appearance of impropriety; failure to perform duties promptly, impartially, and courteously; conduct off the Bench that is outside the boundaries of permitted quasi-judicial or extra-judicial activities; and inappropriate political activities. The Code is accessible online at www.deontologie-judiciaire.umontreal.ca/fr/codes%20enonces%20deonto/documents/Colorado_Code_of_Judicial_Conduct.pdf.


The Commission and Its Executive Director

The Commission is comprised of ten Colorado citizens who serve without compensation other than reimbursement for expenses reasonably incurred in the performance of their duties, such as travel to attend Commission meetings. The composition of the Commission is determined by Colo. Const. art. VI, § 23(3)(a) and (b). It includes two judges of district courts and two judges of county courts who are selected by the Supreme Court; two lawyers who have practiced in Colorado for ten years, neither of whom may be a justice or judge, and who are appointed by the Governor with the consent of the Senate; and four citizens who are not and have not been judges, who are not licensed to practice law in Colorado, and who are appointed by the Governor with the consent of the Senate.

Rule 3 provides for the organization and administration of the Commission, including the appointment of an Executive Director, whose duties include the operation of a permanent office; the screening and investigation of complaints; the maintenance of records and statistics; the employment of investigators, special counsel, and masters when necessary; the preparation and administration of the Commission’s operating budget; and the preparation of an annual report.


Complaints

Rules 12 through 14 provide for the filing, screening, and preliminary investigation of complaints. Any person may file a complaint alleging judicial misconduct or disability. A complaint form is provided by the Commission, which includes a brief summary of the grounds for judicial discipline under Rule 5(a) as a guide for the preparation of the complaint. However, complaints also may be made by a letter that describes the alleged misconduct and includes or references other information that may be relevant, such as key dates, case numbers, copies of exhibits and other documents, or transcripts of proceedings. The Commission will consider complaints in any format. Finally, the Commission, on its own motion, also may initiate a complaint.

The Executive Director screens all complaints. An example of a complaint that usually survives the initial screening would involve an inexplicable or unreasonable delay by the court in issuing a decision on an important motion or in rendering a final judgment.
However, Rule 13 provides that "complaints that are frivolous, unfounded, solely appellate in nature, or outside the jurisdiction of the Commission shall be dismissed." The most common example of a complaint that would be dismissed is a claim that a judge’s erroneous ruling should be equated with judicial misconduct. Even if such a ruling can be shown to be in error—for example, failure to adequately consider newly discovered evidence that might result in a new trial, an incorrect credit for time served, a miscalculation of overdue child support, an abuse of discretion in establishing child parenting arrangements, a misapplication of a statute, or an incorrect reading of established precedent—such a determination by the Commission would infringe on the jurisdiction of the appellate courts.

It can be difficult for a complainant, particularly a pro se litigant, to understand the respective functions of trial and appellate courts in the adjudicative process, and to distinguish potentially erroneous rulings from questions of judicial misconduct under the Rules and the Code.

Complaints that survive the initial screening by the Executive Director are reviewed further by the Commission. If the Commission deems there is sufficient cause to proceed on the complaint, it undertakes a preliminary investigation and, under Rule 14, gives notice to the judge of the investigation, the nature of the charge, and the name of the complainant (or that the Commission commenced the investigation on its own motion); and provides the judge an opportunity to respond or appear.

The investigation would include inquiries appropriate in the circumstances, such as an examination of court records and transcripts, interviews with potential witnesses, and requests for further information from the complainant. However, as provided in Colo. Const. art. VI, § 23(3)(g), "all papers filed with and proceedings before the Commission" are confidential, unless and until such time as the Commission recommends formal action to the Supreme Court.

The Commission schedules six meetings each year and holds special meetings when necessary. If circumstances warrant, meetings are held by conference call.


Review of Complaints Received in 2008

In addition to written complaints, the Commission receives telephone inquiries from potential complainants who are seeking information or who are requesting copies of the complaint form or the Rules. When appropriate, callers are redirected to the Commission on Judicial Performance, to ARC, or to municipal court judicial disciplinary commissions. The Commission also receives occasional questions from the judiciary regarding the application of the Rules and the Code. The Executive Director manages the intake of complaints and the interaction with callers.

Through December 31, 2008, the Commission received 217 written complaints. These 217 complaints concerned the conduct of judges and justices sitting in each of the twenty-two judicial districts, the Colorado Court of Appeals, and the Colorado Supreme Court. The 217 complaints represented an increase over the 179 complaints received in 2006 and the 211 complaints received in 2007.

Currently, the judiciary comprises 234 trial court judges (district, juvenile, probate, and county court); twenty-three appellate judges; and seventy senior judges. Of the 217 complaints:

> 163 were based on situations that arose in the criminal law docket
— 147 of which were filed by inmates in Colorado correctional facilities
> 30 involved litigation in the general civil docket
> 14 involved domestic relations cases
> 3 involved juvenile court matters
> 4 involved probate matters
> 3 involved off-the-Bench conduct.
 

In addition to inmates, the complainants included:

> 52 litigants, many of whom appeared in court pro se
> 7 attorneys, who alleged delay in docket management or judicial demeanor issues
> 9 people who were not parties
— family members or courtroom observers
> 1 judge who self-reported personal misconduct to the Commission
> 1 case initiated by the Commission on its own motion.
 

Subject Matter of Complaints

The subject matter of the complaints in 2008 included 207 instances where the complainant was dissatisfied with a judge’s factual or legal rulings. Because these were appellate matters, they were dismissed.

10 of the 217 complaints proceeded beyond the preliminary investigation to formal action by the Commission

• 4 involved allegations of unreasonable delays in issuing rulings


• 2 involved courtroom demeanor


• 1 concerned allegations of sexual harassment of staff


• 1 concerned a traffic violation involving alcohol


• 1 involved participation in extra-judicial activities


• 1 concerned a judge’s obligation to report an attorney’s misconduct.

 

Corrective Action

Corrective action was taken to address judicial misconduct in four instances. The corrective action taken in four cases compared with corrective action taken in two such cases in 2006 and one in 2007. There were two retirements while complaints were pending in 2006 and none in 2007. There was one retirement for medical disability in each of 2006 and 2007, but none in 2008.

The sanctions included:

3 private letters concerning violations of the Code

• 1 letter of admonition
  
• letter of reprimand
  
• letter of censure.

One judge was directed to seek professional training in judicial demeanor and temperament; one judge voluntarily retired; two complaints were dismissed after further investigation indicated that there was no misconduct; and three complaints were carried over for the Commission’s consideration in 2009.


Private Disciplinary Letters

There are three types of private disciplinary letters: (1) a letter of admonition; (2) a letter of reprimand; and (3) a letter of censure.

Admonition. A letter of admonition warns a respondent–judge that his or her conduct suggests an appearance of impropriety falling outside the expected minimum standards of judicial conduct.

Reprimand and censure. Letters of reprimand or censure address violations of a more serious nature. These letters express the Commission’s determination that there has been a direct violation of the Code and that such conduct is unacceptable, but that the conduct does not merit a formal hearing or recommendation to the Supreme Court for public discipline or removal from office.
Private letters of discipline in recent years have been directed at the following misconduct:

> engaging in ex parte contact with litigants or attorneys
> delays in issuing decisions
> loss of temper or control of the courtroom
> inappropriate remarks to the media regarding the conduct of an attorney
> hearing a case, as a part-time judge, involving a client of the judge’s law firm
> intemperance and verbal abuse toward an employee and a customer of a business establishment
> driving while impaired or under the influence of alcohol
> sexual harassment of a court employee.
 

Proactive Measures

The Commission participates in judicial education programs to inform new and continuing judges of their ethical duties and responsibilities under the nine Canons of the Code and to explain the Commission’s responsibilities for oversight and discipline under the Rules. The Commission also takes steps to remind judges of their docket management obligations.

The Commission is undertaking a comprehensive review of its Rules, policies, and procedures, with a view to becoming more transparent in its operations, providing more public information about the Commission’s responsibilities, facilitating the complaint filing process, and providing more judicial education and rehabilitation options. Any changes will continue to respect the principles of confidentiality set forth in the Constitution and in CRS §§ 24-72-401 and -402.


Conclusion

As of December 31, 2008, the Commission’s membership comprised the following persons:
 

Member	City	Category of Appointment
Federico C. Alvarez	Denver	Attorney
Stewart Bliss	Denver	Citizen
James H. Hiatt	Ft. Collins	District Judge
John M. Holcomb	Denver	Citizen
Charles T. Hoppin	Golden	County Judge
Kathleen Kelley	Meeker	Citizen
David Kenney	Denver	Citizen
Martha T. Minot	Durango	County Judge
James Spaanstra	Lakewood	Attorney
Douglas R. Vannoy	Ft. Morgan	District Judge

The Commission operates independently from the Supreme Court and other divisions of the Judicial Branch, but with their cooperation and support. The Commission performs a vital role in maintaining a fair and impartial judiciary. Because the judicial selection and retention system in Colorado is based on merit selection rather than on partisan judicial politics, it is important that the Commission operate effectively and with the public’s confidence.

The Commission recognizes the services of its longtime Executive Director, Rick Wehmhoefer, who retired on December 31, 2008. The Human Resources Division of the State Court Administrator’s Office assumed temporary responsibility for the operation of the Commission’s office until February 11, 2009, when William J. Campbell accepted the Commission’s appointment to serve as Interim Executive Director, following a thirty-seven-year career as a practicing attorney.

Correspondence with the Commission should be addressed to: William J. Campbell, 899 Logan St., Ste. 307, Denver, CO 80203. The Commission’s telephone number is (303) 894-2110.

.

May 28, 2009 - Unpublished, Per Curiam Opinions, and Admissions Pose Problems for Supreme Court nominee Sotomayor

Unpublished, Per Curiam Opinions, and Admissions Pose Problems for Sotomayor
by Ken Smith

When a panel of appellate judges wants to bury an opinion that they are genuinely embarrassed by, they invariably bury it in either an unpublished or a per curiam opinion. In the unpublished opinion, the court declares that it is making law for one set of litigants and only one set of litigants. In a per curiam opinion, the court delivers their opinion as a court, which means that the decision is so squirrelly, no judge is willing to publicly take responsibility for writing it. And now, this reluctance to take responsibility has nothing to do with the quality of the opinion delivered: In many cases, federal judges on the various courts of appeals don't even read the decisions "they" deliver.¹

The most famous per curiam opinion of the past century was Bush v. Gore, 531 U.S. 98 (2000). The court's statement was almost comical in its brazenness: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." Id., slip op. at 10-11. The declaration was absurd on its face; if every citizen's vote must be counted in exactly the same way, as opposed to substantially the same way (the "intent of the voter" standard was the rule of law for a hundred years in the vast majority of jurisdictions), then Bush v. Gore ought to stand for that proposition in the next election -- like the one involving satirist Al Franken and incumbent Norm Coleman. For a panel to declare that they are going to make law in this case, but only for these litigants, is to assume dictatorial authority.

The Second Circuit uses both devices, and Judge Sotomayor has used them in ways that can only be described as dubious.

In what Professor Ilya Solin of George Mason University describes as "potentially the most important federal public use eminent domain case since Kelo v. City of New London [545 U.S. 469 (2005)]," a politically-connected developer tried to extort $800,000 from a landowner who wanted to build a pharmacy on his land. The salient facts are summarized as follows in the plaintiff's appeal to the Supreme Court:

During this meeting, Wasser demanded that Petitioners pay him the sum of $800,000 or make him a 50% partner in the CVS Project. Id. If Petitioners refused, Wasser stated that he would cause the Village to commence a condemnation proceeding and take Petitioners’ properties within the Redevelopment District. Wasser calculated the $800,000 demand solely based upon his estimate that development of the property as a retail pharmacy use would yield approximately $2,000,000 in profit.

Petition For Writ of Certiorari, Didden v. Village of Port Chester, No. 06-652 at 4 (U.S.) (date of filing unknown), cert. denied, 549 U.S. 1163 (Jan. 16, 2007).

Sotomayor and her colleagues dodged this constitutional landmine -- courts throughout the country are split, and this was a matter of first impression in her Circuit -- dismissing this claim in a summary order affirming the district court's finding that the plaintiff's claim was time-barred. In short, no one took responsibility for the decision. Didden v. Village of Port Chester, 173 Fed.Appx. 931 (2d Cir. Apr. 5, 2006) (unpublished).

An even more egregious example of the "Because-I-Said-So doctrine" can be found in Ricci v. DeStefano, No. 06-cv-4996 (2d Cir. Feb. 15, 2008) (unpublished):

We affirm, substantially for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.

Id.

The dispute between the parties is a racial land-mine:

Plaintiffs argue that defendants' decision and/or advocacy against certifying the exam results amounted to intentional discrimination against plaintiffs, 17 of whom are white and one of whom is Hispanic, in favor of Hispanic and African-American examinees who were favored due to their race and their alleged political support of Mayor DeStefano, via the Rev. Boise Kimber. Plaintiffs essentially argue that defendants' professed desire to comply with Title VII's anti-disparate-impact requirements was in fact a pretext for intentional discrimination against white candidates.

Not a dispute that you want to get mired in, if you want to be the first Latina Supreme Court justice, and you know that you are the only logical candidate. Given her well-publicized (and to some, racist) statement that "I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life," Sonia Sotomayor, Speech (at the U.C. Berkeley School of Law), Oct. 26, 2001, a failure to grant relief could be seen as further evidence of racism. While ducking responsibility is the natural inclination, part of being a competent judge means taking on the difficult questions. And this was a very difficult question, as evidenced by the Circuit's 7-6 decision to deny a hearing en banc -- as en banc hearings are extremely rare. Ricci v. DeStefano, 530 F.3d 88 (2d Cir. 2008).

The rationale -- which Judge Sotomayor joined -- for refusing to hear the matter en banc was in itself astounding:

I concur in the denial of rehearing en banc, consistent with our Circuit's longstanding tradition of general deference to panel adjudication - a tradition which holds whether or not the judges of the Court agree with the panel's disposition of the matter before it. Throughout our history, we have proceeded to a full hearing en banc only in rare and exceptional circumstances. The Supreme Court now has before it a petition for certiorari in this case, which I recognize presents difficult issues. As the Supreme Court decides whether to grant certiorari, it has for its review the district court's opinion, the panel's per curiam opinion, and opinions concurring with and dissenting from the decision denying rehearing en banc. The issues are therefore sharply defined for the Supreme Court's consideration of whether to grant certiorari.

Id., 2008.C02.0001355 at ¶ 18 (Versuslaw)

Translated, it has always been Circuit policy to "pass the buck." It is even more absurd in light of her other well-publicized gaffe:

All of the legal defense funds out there, they're looking for people with Court of Appeals experience. Because it is -- Court of Appeals is where policy is made. And I know, and I know, that this is on tape, and I should never say that. Because we don't 'make law,' I know. [audience laughter] Okay, I know. I know. I'm not promoting it, and I'm not advocating it. I'm, you know. [audience laughter] Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating. Its interpretation, its application.

Sonia Sotomayor, Remarks, Duke University School of Law, Feb. 25, 2005, available at http://realserver.law.duke.edu/ramgen/spring05/lawschool/02252005clerk.rm at 43:19.

As everyone knows, it's the courts' job to make policy. The state and federal legislatures are merely there for show. As Justice Scalia noted, if all we were doing is hiring judges to interpret the law, it wouldn't matter if they were conservative or liberal, but inasmuch as we are hiring unelected and unaccountable dictators, Antonin Scalia, “On Constitutional Interpretation” (Speech, Woodrow Wilson Int’l Center for Scholars, Washington D.C.), C-SPAN, Mar. 14, 2005 (copy on file), scorched-earth confirmation battles are an unfortunate necessity.

Clarence "Long Dong Silver" Thomas would no doubt agree.

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¹ See e.g., Perfunctory Justice; Overloaded Federal Judges Increasingly Are Resorting to One-Word Rulings, Des Moines Register, Mar. 26, 1999, at 12 (Eighth Circuit appellate panel decided forty cases in a two-hour session); Alex Kozinski, Letter (to Judge Samuel A. Alito, Jr.), Jan. 16, 2004 at 5 (150 rulings made in a two-day session). Specific Tenth Circuit examples include Harrington v. Wilson, No. 06-1418 (10th Cir. Jun. 7, 2007) (withdrawn) (unpublished) (noted constitutional scholar Michael McConnell didn't know that a judge without jurisdiction couldn't dismiss a case "with prejudice"?!?), Erickson v. Pardus, No. 06-7317, 551 U.S. ___ (2007) (SCOTUS read Circuit the riot act for sloth); Smith v. Mullarkey, 67 Fed.Appx. 535 (10th Cir. Jun. 11, 2003) (since when does the Rooker-Feldman doctrine apply to suits for declaratory relief?).

May 26, 2009 - New transparency law takes aim at doctors, but --as this law is written by lawyers-- don't expect a similar bill to be introduced for lawyers

Colorado's new Medical Transparency Act, effective May 31^st, will require doctors to publicly report certain business dealings, malpractice actions, disciplinary matters and crimes in order to practice medicine. The information is compiled in a searchable database maintained by the Colorado Division of Regulatory Agencies, and is billed as is one of the most comprehensive physician information sources in the nation.

The Gazette has the complete story here.

Don't hold your breath waiting for the transparency fever to catch on with the bench and bar.

May 25, 2009 - The Washington Post reports threats to judges "soaring" - Worried court personnel resort To guards, identity shields, weapons

The Post reports:

Worried federal officials blame disgruntled defendants whose anger is fueled by the Internet; terrorism and gang cases that bring more violent offenders into federal court; frustration at the economic crisis; and the rise of the "sovereign citizen" movement -- a loose collection of tax protesters, white supremacists and others who don't respect federal authority."

The Post quoted Michael Prout, assistant director of judicial security for the marshals, as saying, "We have to make sure that every judge and prosecutor can go to work every day and carry out the rule of law . . . It's the core of our civil liberties."

Unfortunately, Prout may be conflating "the rule of law" as "the rule of judges," in believing that our civil liberties depend solely on ensuring the safe transport of judges to and from their workplace. Rather, the Rule of Law implicates a uniform application of stare decisis, a dispassionate dispensation of justice without favor for rich or poor, and the exercise of judgment rather than will.

Readers here are aware that my belief is not that society has simply become "more violent," but that the America's juristocracy has become increasingly detached from the people it serves and as least accountable as imaginable. It was not always this way, as Ken Smith recently wrote:

Every society has had corrupt judges, and every society has developed their own systems for punishing them. King Hammurabi of Babylon initiated a one-strike rule, wherein the judge who issued a corrupt ruling was fined twelve times the amount of the judgment imposed, and forever barred from trying future cases. Codex Hammurabi § 5. Herodotus informs us of an innovative antidote to judicial corruption, devised by an obscure Persian vassal lord:

[The judge Sisamnes], being of the number of the royal judges, had taken money to give an unrighteous sentence. Therefore [King] Cambyses slew and flayed Sisamnes, and cutting his skin into strips, stretched them across the seat of the throne whereon he had been wont to sit when he heard causes. Having done so Cambyses appointed the son of Sisamnes to be judge in his father’s [courtroom], and bade him to never forget in what way his seat was cushioned.

Herodotus, Histories, Bk. V, § 26 (tr. George Rawlinson, et al.) (D. Appleton & Co. 1889), Vol. III at 192.

It seems that our society has devolved to the point where we have no system for punishing corrupt judges. For example, The Galveston Daily News "connected the dots" regarding the recent scandal involving former federal judge (now, convicted felon) Samuel Kent:

In 2001, there was grumbling about favoritism in Kent’s court on Galveston Island. The Southern District removed 85 cases from the court. The attorney on all 85 was Richard Melancon, Kent’s close friend and the host of the reception for the judge’s wedding. The judicial system looked into it and moved the cases. The judges in charge told the public the reason was a heavy caseload.

Think about it: Eighty-five litigants were denied the right to have their cases heard by a fair and independent tribunal.

I propose neither a return to the law of the club nor of the Persian vassal lord's purported remedy. But, "There can be little doubt that immunity fosters neglect and breeds irresponsibility, while liability promotes care and caution." Rabon v. Rowan Memorial Hospital, Inc., 269 N.C. 1, 13 (N.C. 1967). Unfortunately --at least due in part to the lack of accountability-- some will resort to inappropriate forms of self-help.

May 25, 2009 - program update

I've been busy with studies, family, and gardening, so I haven't updated this section often. However, there have been some new additions to the document repository:

• 09-cv-01018 (Smith v. Anderson, et al.) D.Colo.
• 08CA1371 (Mann v. State of Colorado) Colo.App.

May 19, 2009 - Christine Arguello, federal judge in Denver, tells Reuters reporter Rob't Boszkiewicz, that she's been approached to fill U.S. Supreme Court vacancy

full story

I haven't heard anything problematic about this judge during the relatively short time she's been on the bench, who was sworn in just this past December. Some background reading is here.

She sounds like a nice lady, but given her inexperience on the bench, I don't mind professing concern that a primary reason she is under consideration among her peers is her gender and ethnicity. Affirmative action, in my opinion, is not a valid way to achieve balance on the high court. Her selection should be (and perhaps is) based solely on her qualifications and legal acumen. Boszkiewicz noted that, "Historically, many appointees to the Supreme Court never had been judges."

May 12, 2009 - Prison Awaiting Hostile Bloggers? Proposed congressional legislation would impose up to two years in prison for those whose electronic speech is meant to "coerce, intimidate, harass, or cause substantial emotional distress"

Wow. About the only proposed legislation that I can think of that's more vague is Colorado's SB09-068, concerning funding to "support domestic abuse services," which would add the following conduct to the domestic violence categories: "any other types of abuse and coercive control." (The preexisting list is "homicides, aggravated assaults, and assaults and batteries . . .  [that] occur within the home."

H.R. 1966 was proposed by Rep. Linda Sanchez (D-Los Angeles). full story

The proposed bill provides:

(a) Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass or cause substantial emotional distress to a person, using electronic means to support severe, repeated and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.

(b) As used in this section —

(1) the term ‘communication’ means the electronic transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received; and

(2) the term ‘electronic means’ means any equipment dependent on electrical power to access an information service, including e-mail, instant messaging, blogs, websites, telephones and text messages.

May 12, 2009 - Houston federal judge, Sam Kent, blames his misconduct on "depression, alcoholism, diabetes and bipolar disease."

According to The New York Times, Sam Kent's attorney pleaded for mercy at his sentencing, claiming the judge, "suffered from depression, alcoholism, diabetes and bipolar disease."

Am I the only who's tired of hearing "bi-polar disorder" blamed on everything from the Holocaust to global warming to the recent stock market crash?

Kent was sentenced to 33 months in prison on yesterday for lying to an investigative committee of judges. Judge Roger Vinson of United States District Court said Judge Kent’s conduct was “a stain on the judicial system itself.”

As I noted in my previous post, we do things a little differently here in Colorado, where our very own former federal judge, Edward Nottingham, stands accused of --among other things-- instructing his prostitute to lie to federal investigators. Apparently as a result of some clandestine deal, no criminal charges have been brought and our Attorney Deregulation Counsel has indefinitely shelved the disciplinary investigation against him, thereby permitting him to open up shop and bring in some serious bank as a practicing attorney or arbitrator (see my March 28^th entry, below).

May 12, 2009 - Attorney General: "When a judge knowingly allows perjury to occur it is criminal misconduct"

“When a judge knowingly allows perjury to occur it is criminal misconduct, and that is why we filed these charges.” So says the Michigan Attorney General concerning former Judge Mary Waterstone, who faces four felony charges and is accused of meeting in secret with the prosecution to to discuss the perjury of two police officers, yet neither the prosecutor nor the judge told the defense about the lies. full story

Like ringing in my ears, I can already hear the judiciary sycophants' mantra, "This is yet another attack on the independence of the judiciary."

Not to worry. Here in Colorado, we handle things a little differently. Over in Arapahoe County, D.A. Carol Chambers has been besmirched and --as I understand it-- she is despised by police unions because she has instructed her staff not to use the testimony of officers who lie on the stand or are untrustworthy. Her license has come under attack by Attorney Regulation Counsel, who otherwise have bent over backwards to exonerate no-name divorce lawyer Madeline Wilson from her lies.

Moreover, a Colorado judge's "knowingly allow[ing] perjury to occur," is never characterized as criminal misconduct. Instead, the judge punishes the victim who reports the perjury, as Judge Jack Berryhill (First Judicial District) recently did with me:

As readers may recall, I reported that Madeline Wilson lied to the Colorado court when she denied concealing the whereabouts of my daughter,¹ that she withheld other material information from the court in violation of Rule 3.3(d), that she lied to disciplinary authorities about her knowledge of mother's whereabouts and giving legal advice to her Colorado client in Texas about Texas matters, and that she lied under oath to a Texas court about her activities in Texas. The case is Marriage of Harrington and is now on appeal (here) on these issues.

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¹ A provision of a Nov. 6, 2001 Order required mother to inform me of changes in residential address or telephone. In December, 2004, mother relocated to Texas, notified Wilson, and instructed Wilson to conceal the relocation by providing me with a Colorado address. Id.
       Unable to locate my daughter, I sent Wilson numerous written requests and certified mail, seeking my child’s whereabouts and school and medical records pursuant to C.R.S. § 14.10.128.8 and for telephone contact pursuant to another of provision of the Order. Wilson rebuffed me, yet acknowledged to mother via e-mail, “Sean, as Shelby’s father, is entitled to all of the information he is requesting,” and advised mother how to avoid compliance with the Colorado Order in Texas.
       I filed for contempt against mother (I didn't yet have proof that Wilson was a co-conspirator). The court issued a citation, but I couldn’t locate mother for service. Wilson argued, “mother denies avoiding service of process,” but sent a 12/13/2004 e-mail to mother captioned, “Has he served you yet?” and argued that mother couldn’t attend the contempt hearing because she would be, “out of town.” (Wilson neglected to qualify, “Out of the jurisdiction. Permanently”).
       At that same time, but regarding another incident, a three-judge panel of the Colorado Court of Appeals opined, “[W]e do not approve of mother's attorney's apparent manipulation of the notice provisions and the rules of civil procedure.” Marriage of Harrington, (No. 03CA1825, Dec. 30, 2004) slip op. at 6. In response, Wilson e-mailed mother, “My first reaction, was oh no, what are they thinking? Then I read and realized I won and [Sean] got a scrap of a bone that actually will choke him to death.”
       In January, 2005, I accused both mother and Wilson of concealing my child. Id. at 4. Notwithstanding her receipt of the concealment directive, Wilson denied this to the court. Id. at ¶4. In addition, she contrived a kidnapping-allegation ruse as an ex post facto pretext (see my March 14^th entry, below).

May 11, 2009 - Colorado's Commission for the Abolition of Judicial Discipline claims to be seeking public input

According to this April 29^th memo provided to us by an anonymous site visitor, the Commission proclaims, "we are interested in how we can improve what we do, and are reviewing our procedures and policies."

Pardon me, sir: April Fools Day is April 1^st, not the 29^th.

May 6, 2009 - state supreme court justice sent adult-theme video from court computer to lawyer buddies, defies critics

Okay, so this is a five-day-old story but, as I explained yesterday, I've been busy. Doubtless, I should be studying right now, rather than writing this.

Myron T. Steele, the Chief Justice of Delaware's supreme courts, used his state e-mail account one week ago to send a sexually suggestive video to 38 men, lawyers and judges, with the exhortation, "Write your own caption for this one."

Unfortunately, Steele gave pretext for the hyper-politically-correct (e.g., Susan Koniak, a Boston University School of Law prof and co-author of "The Law and Ethics of Lawyering") to call for his resignation.

However, Steele defended his action, saying, "I don't think there was anything offensive to women . . . I forwarded it to people I thought would find it amusing."

Aside from the suspicions of chauvinism, the obvious problem here is that several of the recipients are lawyers. Most, to whom Steele sent the video, did not return e-mails or phone calls from The News Journal. One said he was "drawing a blank," while another --an out-of-state corporate law professor-- said, "There's no way I'm going near this."   Why not?

Stephen Gillers, a professor at New York University School of Law who specializes in legal ethics, told The News Journal he didn't think the e-mail violated the Delaware Judges' Code of Judicial Conduct, but found it problematic that the e-mail was sent on Steele's official e-mail account to lawyers. Likewise, William Hodes, a professor emeritus of law at Indiana University School of Law, who helped draft the recent American Bar Association revision of the code of judicial conduct, noted the incident raises the issue of Steele fraternizing with lawyers who go before him and asked, "Who were these lawyers and why were they selected? Obviously, they're buddies."

May 5, 2009 - Sad day for the Tenth Circuit

Update: comment sent via e-mail by a Colorado attorney is posted at the end of this blog-entry

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A sad day, indeed!    It would be only fitting that we hire keeners¹ to morn the unexpected resignation of Michael McConnell. His last day is August 31.

Apparently, McConnell's Tenth Circuit appointment was such an impediment to his moonlighting gigs (writing books and teaching at not one, but three universities in his "spare time"), that he decided to "officially" convert to full- time with Stanford University, where he will be a law professor and director of its constitutional law center. Hat tip to Robert Boszkiewicz (here).

McConnell was acclaimed as a runner-up for a Supreme Court nomination. Stanford Law School dean Larry Kramer noted, “Michael McConnell is one of the nation’s most accomplished scholars . . . During the past two decades, he has been the preeminent legal scholar writing about the religion clauses of the United States Constitution, not to mention a leading authority on separation of powers, federalism, originalism, and any number of other subjects in constitutional law."

You bet he is! He personally mentored me on elusive constitutional dogmas that trump even the Fourteenth Amendment, such as selective access to the court by judicial fiat and the venerable Because-I-Said-So doctrine. (Of course, nothing of either secret doctrine is taught in law schools, but both have their roots as long ago as when decision-making over controversies was delegated to judges).

For example, in my case, No. 06-1418, McConnell decreed that I was pursuing a custody determination when the suit sought nothing of the sort.  The opinion, purportedly authored by McConnell, demonstrated that neither he nor his law clerk[s] even glanced at any of the briefs. How could I possibly know that? Aside from the fact that the opinion merely restated Magistrate Watanabe's specious report & recommendations, contained no reference to any of the arguments in the principal briefs (including the Answer Brief), was contrary to every well-settled point of law raised by the arguments, and contained not even the word "complaint" (when the issue central to the case was the dismissal of the complaint for lack of jurisdiction), that opinion was withdrawn (ostensibly upon a petition for rehearing) and reissued to dismiss without prejudice, because I had filed a separate motion regarding that matter (which, by pure chance, someone read). How's that for a run-on sentence?

My point is, the Opening Brief —which was never read— already explicated this same issue as one of the main arguments.

I also note that this handling of undesirable cases is routine for McConnell. He handled Suzanne Shell's case (here) the same way. The published and well-heeled cases are conferred McConnell's stellar "scholarship," whereas all the others (like mine and Shell's) get the two page rubber stamp. Both examples demonstrate that no one read the briefs and he merely paraphrased the ultimate findings of the trial court. See, Caseload Forcing Two-level System for U.S. Appeals, The New York Times, Mar. 14, 1999 ("With the Supreme Court giving full review to no more than 200 cases a year and the highest courts of many states also limited in the number of cases they can hear, some legal scholars say, the increasing use of abbreviated review procedures by intermediate appeals courts means litigants are quickly losing the right to meaningful appeals"). And see Robert A. Mead, "Unpublished" Opinions as the Bulk of the Iceberg: Publication Patterns in the Eighth and Tenth Circuits of the United States Courts of Appeals, 93 Law Libr.J. 589, 596-97 (2001) ("limited publication . . . is fundamentally unfair both to individual litigants whose opinions are not published, and to broad classes of litigants, who are allegedly more likely to receive only limited review from the courts of appeals. Litigants whose opinions are brief and unpublished have limited insight into the court’s reasoning for purposes of appeal. Additionally, [regarding] the practice of using clerks and staff attorneys to screen cases for likely precedential value, . . . “[m]ost people think if you have an appeal, your lawyer argues the case and a judge decides. That’s not what we have. We have a system where there is often no argument, there is no requirement for a judge to write a decision and the decision making is largely done by people who are not judges").

Indeed, even if both Harrington and Shell were wrong on all of the legal issues, does that justify such cursory, shoddy explanation? See Martin P. Golding, Legal Reasoning 8 (1984) (“Reasoned decisions . . . can be viewed as attempts at rational persuasion; and by means of such decisions, losing parties may be brought to accept the result as a legitimate exercise of authority. A judicial justification is offered in order to justify to someone the decision or conclusion; a justification is directed to an audience. Perhaps the first person to whom the justification is directed is the losing litigant; and to this may be added all other people whose interests might be adversely affected by the result.”); see also Eagles, Jr., Address from Chief Judge Eagles, 35 Ind. L.Rev. 457, 461 (2002) ("The winners of the cases often do not really care why they won. They are just very pleased that they did. The lawyers on the losing side, however, need to be satisfied that we have carefully analyzed the law and applied it in a clear and straightforward fashion to their case. They want to be assured that we understood all the facts (especially the facts favorable to their side) and that we understood the law and applied the law in a way that is logical, coherent, and consistent with precedent and statutory intent, if applicable.").

McConnell is a dishonest charlatan, who has deprived ordinary citizens of his honest services. He is worthy of no adulation or accolades.

Further reading:

• Circuit Court Judge and Constitutional Law Scholar Michael W. McConnell Joins Stanford Law School Faculty, Standford Law School Press Release
• Tenth Circuit Press Release
• U. law professor resigns from federal appeals court, The Salt Lake Tribune
• Judge Michael McConnell Leaving the Bench, Blog of Legal Times

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¹ From the Gaelic: professional wailers, usually women.

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From: [redacted] sent: May 7, 2009 12:56 PM To: tipline@knowyourcourts.com Subject: Loved the McConnell post! message text: I enjoyed . . . your delightfully sarcastic post concerning McConnell. As a Stanford Law grad, I was more than a little dismayed that he was made head of the Constitutional Law Center, when truly great scholars such as Paul Brest and Gerald Gunther have in the past been Stanford Law's leading Constitutional scholars. It's an insult to their memory that such a bright but judicially nihilistic errand boy has been allowed to associate himself with the School. I suppose, however, that he could be viewed by many of the School's major donors as a nice counterweight to the comparably nihilistic, and excessively political and left-wing, Pam Karlan. She makes Dean Kathleen Sullivan look downright apolitical and moderate, which is not an easy thing to do. Myself, I would prefer SLS allow only those dedicated to the Constitution and the rule of law the enormous privilege of joining its faculty. Alas, SLS has succumbed more in recent years to the fashion of adulterating scholarship with politics. It could be said that, in this respect, it is just catching up with its peers. That is not, however, an excuse. I assume that, since he was not going to be elevated to the Supreme Court any time soon, McConnell naturally decided he would prefer spending the current President's term in luxurious exile in Palo Alto, where the GOP Establishment can keep him under its wing until another errand boy for their interests is elected, and he can devote himself to producing sophistic decisional templates for Establishment errand boys and girls in the Federalist Society. Of course, at this rate, the GOP may not have anyone in the White House until well after McConnell's shelf life has expired.

May 5, 2009 - Ever wonder why it takes so long to get a ruling?

I have received scores of reports (usually via email) of pro se litigants complaining that many months have gone by and they've received no adjudication of filed motions.

Some litigants motions are never ruled on -- ever. See, e.g., Marriage of Thorup -- note that it seems to help when opposing counsel [allegedly] knows the magistrate, is having a relationship with his client and, shortly after the divorce is final, marries the client).

In one my cases (here), I've been waiting on a ruling for unopposed motions that were filed in June '08 (eleven months ago). Both I and opposing counsel even submitted proposed orders for the magistrate to sign off on, to make his job easier. A few polite calls over the past year to the division clerk have not been fruitful.

Indeed, some of our judges and clerks (both public servants) have adopted the reasoning, "If you ignore problems long enough, they often go away."

In Colorado, there's a statute, 13-5-135, that requires that every motion filed with the district court be ruled on within ninety (90) days. Under 13-5-136, if it a motion is not ruled on, the judge's salary may be forfeited. However, because the enforcement requires a complainant to file a complaint with the feckless Colorado Commission for the Abolition of Judicial Discipline and, because only the Commission must then refer the matter to the Supreme Court --but will not do so-- the statute has never ever been enforced since its enactment.

So what exactly are these judges doing, who seem to have no time to read or review motions? Well, as DailyKos blogger Bouldergeist has reported, many federal judges are too busy moonlighting. And, as the ex-wife of a former federal judge allegedly reported, some judges surf porn from work (while others, in supervisory positions, have urged that such Internet surfing prohibitions be lifted (click here)).

And today, this Web site was visited for a considerable period of time, by someone from the New York court system (probably a judge), referred by the search terms of "Is Judicial Discipline in New York a Threat to Judicial Independence?"

Let me save you some time, so that you can get back to work. Judicial Discipline applies when you violate the oath of your office or the judicial canons (such as failing to rule on motions, because you believe that an ignored pro se party will eventually "go away," or because you're too busy surfing the Internet). A threat to judicial independence happens when another branch of government removes you from office or disciplines you because of disagreement with your legal ruling.

May 5, 2009 - Program update & misc.

I've neglected to post here often because I have been studying for law school exams.

Here are a few updates:

• In the near future, I will be releasing my latest work, "The Role of the CFI in Colorado: A Guide to Causes of Action, Arguments, and Damages." The intended audience is family law attorneys.
• News: Court personnel relieved after guards’ arrival
• News: Money for judicial computer system in, out of budget

Apr. 28, 2009 - Soon, it'll be Law Day, Comrade!

It’s Law Day, Comrade!
by Ken Smith

On Friday, totalitarians of every stripe from Cuba to China come together to celebrate the glorious triumph of the Socialist Revolution in a gala known as May Day. Not to be outdone, our indigenous black-robed despots and their handmaidens of the Bar celebrate the glorious triumph of the rule of judges -- er, I mean, the rule of law-- known as Law Day.

As is the case with Astroturf holidays (like Grandparents’ Day), Law Day is not celebrated by the general public -- but in this case, it is being celebrated appropriately. The Boulder County Bar seems to have put all their energy into a wine-tasting at the St. Julien, thereby putting the BAR into the Bar. The Arapahoe County Bar would rather get plastered at a local comedy club, and the First District Bar (Jefferson and Gilpin Counties) appears to have wisely blown it off altogether.

Predictably, this year’s Law Day theme is Abraham Lincoln, who was born 200 years ago, died seven score and four years ago and undoubtedly, will be rolling in his grave non-stop for the next two weeks. And of course, with one intriguing exception, the speakers for the events are judges and the only people in the audience are lawyers. The Denver Bar invited part-time federal Circuit Judge Ebel to deliver an address, while the Douglas-Elbert Bar could only afford Colorado Supreme Court justice Michael Bender.

Still, in this paroxysm of pontification, the silky-smooth style of Colorado Supreme Court justice (and former disk-jockey) Greg Hobbs stands out. Having Hobbs pontificate on equal justice under law is a little like a burro speaking about ears, but this blunder in the Colorado Lawyer, Greg Hobbs, Abraham Lincoln and Equal Justice Under the Law, 38 Colo. Lawyer 19 (April 2009), was over-the-top, even from the lovable buffoons on 14^th Street:

When Colorado was granted statehood in 1876, the “Centennial State” memorialized 100 years of the Constitution’s existence. [source; emphasis added]

(Psssssst! Greg! The United States Constitution was adopted on September 17, 1787. Did you not know that?)

But that was when it had just begun to get weird.

Justice Hobbs closed his soliloquy with an ode to the First Amendment -- a poem from a book that was actually published.¹ A book on poetry, history, and judging. We've seen how Hobbs butchers history, and we’ve seen how he massacres judging. You be the judge as to how he does with poetry.

And yes, a book review will be forthcoming.

__________________________
¹ Greg Hobbs, “I Am First Amendment,” In Praise of Fair Colorado: The Practice of Poetry, History, and Judging 367 (Bradford Publishing Co., 2004).

Apr. 24, 2009 - Another judge's career finished over ties to sex industry "workers"

"It is axiomatic that 'Judge' and 'Stripper' showing up in a headline is never a good thing, especially if you happen to be the 'Judge,'" Tampa Tribune columnist Daniel Ruth wrote.

He was writing of Thomas G. Stringer¹ an appeals court judge in Tampa Bay, Florida. The full story is here.

Of course, I don't see this purported fall-from-grace as an impediment to Stringer's career. I'm sure, like our own Judge Naughty, he'll just open up a law office and practice under the high standards enforced by the state's attorney regulation system.  (See our Mar 28 & Feb 26 entries, below).

What's really pitiful about this story is how his clerks, not unlike Nottingham's clerks, were quick to come to the judge's defense. One of them, Celene Humphries, said she can imagine him trying to help someone, without thinking of the personal cost. "Everybody is subject to lapses of judgment," she said. "It's just that not everybody gets punished as severely as he did."

Well Celene, allow me make a couple of observations: (1) Stringer wasn't helping out an old lady to paint her house. He was handling a stripper's assets --and her bank accounts, too. Why the hell can't you just be honest and admit that he was getting his phreak on, instead of insulting us all and reminding us why lawyers are generally regarded as liars? And (2), do you suppose the good judge was held to a different standard because he was a judge?  Should we lower our expectations of our judges?  I already have.

______________________
¹ Sorry, I couldn't resist. Actually, his name is Thomas E. Stripper, I mean Stringer.

Apr. 23, 2009 - Breaking News: This just in - Rush fans are cool

Update: letter to the editor re: the article discussed below:

Thanks for the great story on Rush. My inbox has been flooded all morning from friends sharing the article. I went three times on the last tour-I went with two lawyers, a doctor, a CIO, my friend who owns the restaurant chain Biaggi's (22 locations), an actuary and myself, into computer forensics. -Bruce Malter, Hawthorn Woods (Illinois)

---

Quoting from this breaking story from The Chicago Tribune

If you have waited decades for the signal to come out of the closet and declare your allegiance to "The Holy Triumvirate," as Jason Segal dubs Rush in "I Love You, Man," consider this your official notice.

. . . Rush is suddenly cool. In fact, even more remarkably, liking Rush is cool.

. . .

Recently, the band played a major role on "The Colbert Report"; they have had gushing profiles in Rolling Stone [finally] and non-ironic interviews in Entertainment Weekly; they've been a plot thread in "I Love You, Man," referenced on "Family Guy" and effusively adored in the new coming-of-age drama "Adventureland." Later this year, the band will receive a star on the Hollywood Walk of Fame.

But even more notable, perhaps, is that these days Rush is less likely to be a target of snark than reverence. And with reason: The Rushinati have infiltrated the power structure. For instance, the Rushinati control the media: Stephen Colbert is a fan; "I Love You, Man" director John Hamburg and "Adventureland" director Greg Mottola are big fans; Victor Lisle, creative director for WGN-AM (owned by Tribune Co.), will talk your ear off about the grandeur of a Rush concert; Metallica lobbied for Rush's inclusion in the Rock and Roll Hall of Fame during its own induction speech this month; Paul Rudd is a longtime fan, as is Billy Corgan, who, before forming Smashing Pumpkins, honed his chops covering Rush in high school bands.

And, in addition to this list of worthies, Sean Harrington (of KnowYourCourts.com fame; legend only in his mind) also is a fan.

Madeline, if you're still trying to find me to serve a restraining order or contempt citation or libel suit (or whatever), you can always find me at a Rush concert.

Apr. 21, 2009 - Confidentiality of Disciplinary Proceedings Unconstitutional

As some regular readers may recall, I have thumbed my nose at both Colorado's misdemeanor statute regarding the confidentiality of judicial disciplinary proceedings (Article VI, Section 23(3)(g) , Colorado Constitution, and §§ 24-72-401 & 402) and Rule 2.16 of the Texas Rules of Disciplinary Procedure by publishing complaints and responses under the theory that these gag statutes are prior restraints and, therefore, presumptively unconstitutional. See my Jan. 23 entry (below); and see Roy Simon, Confidential Disciplinary Proceedings and the First Amendment (Part I & Part II).

The Louisiana Supreme Court has dismissed disciplinary charges against two attorneys charged with violating bar rules imposing confidentiality of disciplinary proceedings . The court held that the rule violated the First Amendment as an unconstitutional content-based restriction of speech. The matter involved a lawyer who filed disciplinary complaints against three lawyers. The complaining lawyer was discharged prior to the conclusion of the litigation. The bar complaint he filed was against one lawyer who had represented an opposing party; the other two had been retained by the client after the complaining lawyer had been discharged. The complaining lawyer filed a suit against several lawyers. He then filed the bar complaints. He received a copy of the lawyers' responses to his bar complaint without notice from the Office of Disciplinary Counsel that the matters were confidential. He then attached the bar complaint responses to pleadings in the litigation. The bar charges were instituted as a result of the public filing of the response. The second charged lawyer was working with the attorney who had filed the bar responses. The court rejected the proferred justifications for the rule:

The confidentiality rule is a content-based regulation, and thus its substantial restriction of speech may only be deemed constitutional if the rule satisfies the requirements of strict scrutiny analysis. Accordingly, we have reviewed the requirements of strict scrutiny in-depth and have carefully applied these standards to the rule. We conclude that the confidentiality rule does not satisfy the requirements of strict scrutiny. As we interpret the Supreme Court's holdings, the reputational interests of attorneys, while important, do not qualify as compelling under strict scrutiny.

Hat-tip to Prof. Mike Frisch and The legal profession blog for this story.

Apr. 21, 2009 - KnowYourCOurts.com exclusive - A disciplinary case you'll be reading about in a Colorado Lawyer issue coming soon

Yesterday, I updated the docket for People v. Brennan, one of the OARC's specious political persecutions. I note that Chief Deputy Regulation Counsel, Nancy Cohen, was logged on to this site for about two hours this past Friday, spending most of her time on the Brennan page.¹

Here's a quote from Brennan's most recent Motion to Dismiss:

Respondent's nemesis in this case, and the principal witness against him, is an extremely powerful federal judge. The remaining witnesses against Respondent are minions of the judge who dare not contradict him, or those who represented the City at trial and are naturally inclined to blame Respondent (rather than their client or themselves) for their grievous loss . . . That Respondent’s nemesis is a federal judge, before whom members of the Ethics Committee, representatives of the State Courts or Government, and nearly everyone else who plays a role in this case (or their colleagues) may reasonably expect to appear one day, explains why this proceeding commenced despite [ass't regulation counsel]’s recommendation of dismissal for lack of evidence. It also casts doubt upon the probability this tribunal will exonerate Respondent. The injudicious animus displayed by Judge Blackburn in his new trial order should give great pause to anyone disinclined to give him what he wants. He is quite willing to abuse his enormous power to punish those who do not show him sufficient deference.

For some reason, Brennan got the idea that he is entitled to due process in attorney disciplinary proceedings (such as the right to confront his accuser or call witnesses, who have probative and relevant testimony to contribute to the truth-finding process). However, he was recently disabused of that notion by the Presiding Disciplinary Judge.

_____________________________
¹ Recall that Frau Culberson-Smith (the OARC's termagant sentinel), claimed the OARC was forbidden from viewing evidentiary documents on this Web site "Due to concerns about computer viruses and security issues." (Click here).

Apr. 17, 2009 - U.S. Supreme Court Justice has "dishonored the Republic"

So says Bruce Fein --and I agree with him-- in his commentary about Justice Thomas' very poorly-chosen words (see Ken Smith's April 14^th entry, below, for context).

To the Editor:

Re “Rare Glimpse of Thomas, From Bench to Den,” by Adam Liptak (Sidebar column, April 14):

Justice Clarence Thomas’s deprecation of “rights” or “grievances” in favor of “obligations” and “responsibilities” is counterhistorical and counterconstitutional.

The Declaration of Independence proclaims that all persons are endowed by their Creator with the unalienable rights to life, liberty and the pursuit of happiness; and that the purpose of government is to secure these rights. The Declaration recites a list of grievances against King George III that justified the American Revolution, for example, subordinating the civil power to the military. It established a “duty” to overthrow tyrannical governments that were deaf to grievances.

The Constitution brims with individual rights, like freedom of speech, religion, association, habeas corpus, jury trial, private property and so on. To abandon reverence for rights and respect for grievances is to dishonor the Republic envisioned by the founding fathers.

Bruce Fein
Washington, April 14, 2009

The writer is chairman of the American Freedom Agenda and the author of “Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy.”

Apr. 16, 2009 - KnowYourCOurts.com exclusive - Tidball's reversal/remands = 35 to 50% ?

I had a little extra time today and decided to update the Jane Tidball page with some of her latest reversals & remands. After all, we know how much some (but not all) judges appreciate monuments to themselves and I see this Web site as a sort of monument --a legacy-- to her invaluable service to people of Colorado.

Without using a mathematically accurate method and without verifying that the cases I found were all of the possible appeals cases, it appeared to me that approximately 35 to 50% of all appeals taken against her resulted in a reversal, vacatur or remand, either in whole or in part. I also don't have the total appeals court's reversal rates handy and don't know how they're calculated, but it's my understanding that the reversal rate is about 20%.

Somebody please double-check my numbers, in case I'm wrong.

Apr. 14, 2009 - from the "You-can't-make-this-stuff-up" file

By Ken Smith

Physician, heal thyself!

We just can't make this stuff up. From The New York Times:

[Justice Thomas] turned up in a Washington ballroom the other night to respond to questions from the winners of a high school essay contest. His answers and the remarks that preceded them provided a revealing look at his worldview these days.

The event, on March 31, was devoted to the Bill of Rights, but Justice Thomas did not embrace the document, and he proposed a couple of alternatives.

“Today there is much focus on our rights,” Justice Thomas said. “Indeed, I think there is a proliferation of rights . . . I am often surprised by the virtual nobility that seems to be accorded those with grievances,” he said. “Shouldn’t there at least be equal time for our Bill of Obligations and our Bill of Responsibilities?”

Speaking of "responsibilities," Mr. Thomas seems to have forgotten that we hired him to be an Associate Justice on the United States Supreme Court. An integral part of his responsibilities as a justice includes reviewing petitions for certiorari filed with the Court. But it would appear that the man nicknamed Long Dong Silver is too busy giving insipid interviews ( e.g., here or  here or here) and writing paeans to himself (here) to do what we pay him to do. Veteran Supreme Court reporter Tony Mauro observes:

Since only about one percent of the incoming petitions are accepted for review, the net result of the pool arrangement is that virtually all of the cases that come to the Supreme Court are denied review and disposed of with only one or two law clerks -- and no justices -- actually reading the briefs. At the same time, for the cases the Court does grant, how the single pool clerk chooses to write about the petition can have a significant impact.

Thanks to Clarence Thomas' shirking of his responsibilities, many of us have far fewer rights than we were led to believe in grade school American History classes. One should wonder how we can even have equal justice under law, if the Supreme Court cannot be bothered with enforcing its dictates when balky circuit courts and state supreme courts openly defy them. See also, http://www.dailykos.com/story/2007/11/3/404308/-Clarence-Thomas:-His-FATHERS-Son!   Truly, Justice Thomas is his FATHER'S son.

Apr. 8, 2009 - Boulder Darling, Chief Judge Bailin, honored

My Boulder readers --especially two parents I know, who haven't seen their children in years because of her rulings-- will be delighted to learn that Roxanne Bailin was named recipient of the second annual John F. Truhlar Champion of Mental Health Award on January 29, 2009!

She's certainly one of my favorite judges regarding mental health issues, demonstrating sincere concern for mental health consumers and the industry. For example, last year I emailed her a cumulative complaint about Bill J. Fyfe regarding his conduct in several cases, including some in her district. Her clerk, Kathy McDonald, acknowledged receipt, but I never heard from the judge. Upon information and belief, Fyfe is still "practicing" his extortionate schemes in that district with the judge's knowledge of his practices.

Never heard of the John F. Truhlar award? It's okay. You're not expected to have memorized all of the scores, if not hundreds, of award ceremonies and banquets that are bestowed upon this state's exalted judiciary. I'd like to point out here (again) that the many judges, who are faithful to the rule of law, are largely unknown (and uncelebrated), because they're too busy doing their difficult job.

Apr. 8, 2009 - KnowYourCOurts.com exclusive - Harrington appeal filed

A couple days ago, I filed an appeal in the case of Marriage of Harrington.

Unless it gets dismissed out of hand for some unexpected reason, I expect it'll be interesting for a number of reasons, not the least of which is that Wilson will not be writing her usual inept briefs.

I've posted the docket here.

Apr. 7, 2009 - KnowYourCOurts.com exclusive - Emerging profile of an obsessed, paranoid, feminist lawyer

Over the last year and especially the last few months, I've provided readers with an emerging profile of the disturbed, paranoid woman who has stalked me through the courts over the last ten years.

You've read how she's taken joy (schadenfreud) at separating me from my own child; how she's lied to disciplinary authorities and the courts; that she's taken out five (5) restraining orders against me (all dismissed, vacated or denied on the merits at the PRO hearing); how she contrived a kidnapping allegation scheme; that she believes I hacked into her computer and stole her "confidential client list"; that she wanted to have me jailed for 180 days; that she advised mother to light candles, burn incense and wish my spirit away; that she claimed that this fax I sent her was death threat to her and her children; that she told disciplinary authorities that she advised her children to flee the state and change their names because of me; blah, blah, wah, wah.

And, you've read how our Attorney Deregulation Counsel, federal magistrate Michael J. Watanabe, feminist judge Jane Tidball and now Judge Jack Berryhill have all come to her defense, despite her behavior that can only be described as indefensible, execrable and opprobrious. Her name is Madeline Wilson.

Well, it keeps getting better. And the circle of attorneys that Wilson has whipped up into a frenzy has grown.

Today, I came into the possession of several interesting emails. One of these (here) reveals that, in December, 2005, when I arrived in Colorado for a hearing at the federal courthouse, Wilson had someone surveiling me when I arrived at the airport. Wilson reported to my ex-wife the following:

The boys (our attorneys)¹ estimate he is a mere 145 pounds now. His cheeks are sunken, he is very pale, and he is balding but has a PONYTAIL. Other than that, he looks like the picture from the airport. He was wearing a long coat, his brown hat (from the pictures) and round glasses.

Well, I sure as hell wish I was 145 Lbs., because then --and now-- I could stand to get rid of ten or fifteen pounds. And, yes, I'm pale like everyone else who hibernates all winter long in the Great White North. And yes, I'm balding --guilty as charged.

"But wait," Billy Mays shouts, "there's more!"

I also came into possession of yet another fantastically stupid couple of emails, as I'll explain:

Back in March of 2006, I filed a Notice of Change of Address with the federal court, which is required so they know where to mail orders and such. In this notice, I wrote. "Plaintiff . . . pursuant to D.C.Colo.LCivR 10.1(M) . . . advises that . . . his mailing address . . . will be as follows:

Sean Harrington
P.O. Box No 351855
7262 Meade Street
Westminster, Colorado 80035

The ensuing panic was hilarious!   When Wilson learned of the Notice, she e-mailed mother

Randy Dement told me he moved to Westminster and I am sick to my stomach with fear. I will go see the Judge tomorrow at 8:30 a.m. when they do restraining Orders in Denver. I will ask the Sheriff to serve him at the new address Randy gave me: Sean Harrington 7262 Mead Street Westminster, CO

Then Wilson's attorney, Brett Huff --a real Inspector Clouseau-- e-mailed Wilson:

Madeline, For personal curiosity sake, I plugged 7262 Mead Street into Google Earth and took a look at the satellite picture of this address... It looks like the top of a grocery store or some other commercial business with parking around it. I hope that he is not perpetrating a fraud on the courts with his recent filing.

No, no need to worry about that Brett. I couldn't possibly dream up the kind of frauds your client has perpetrated on the courts over the last nine years. By the way, brilliant work there, Brett. Do you suppose that building might be -- the Post Office?

Yet, cracking this case proved too difficult for solo lawyers Randy Dement and Madeline Wilson and White & Steele lawyer, Brett Huff. -- Wilson decided to hire "the big guns," as this following email from Wilson to Dement and Huff reveals:

As for the address Sean provided to you, my investigator says:

The property is listed as commercial property in Adams County Tax records. It is listed to a CFF LLC P.O. Box 27, Broomfield, Colorado 80038.

It's the: Westminster Post Office!!!!! 7262 Meade St.

So, can we snag him because of this???

Nope. Sorry, Madeline. There's no fraud or crime in providing a P.O. Box as a "mailing address" as set forth in the Notice. Better luck next time?

Honestly, who the hell would hire these people? They truly need magistrates and judges putting their finger on the scale of justice, because they couldn't lawyer their way out of a paper bag.

Finally, we have this email from Madeline to mother, writing out of the blue: "Curious if Sean is still paying child support each and every month. It's so weird that he pretends to be Mr. Law Abiding Citizen, yet bugs me and you to no end."

Yes, Madeline, I was paying the $823 every month for all those years for a child that you helped to hide from me. And, amazing `though it may seem (given Wilson's claims), I have no criminal record; I've managed to avoid criminal behaviors, like lying to the courts, making false reports to law enforcement, or attempting to influence public servants. --But then, if I was a licensed attorney in Colorado, I'd be able to do all of these things and get away with it.

_______________________
¹ Wilson is referring to Randy Dement and Brett Huff.

Apr. 7, 2009 - Belated Congratulations from the Caucasian American Bar Association to Michael J. Watanabe on his recent appointment as Lead Magistrate Judge for the United States District Court in Denver!

Never heard of the "Caucasian" American Bar Association?  Why not, indeed?  I learned of Watanabe's appointment from none other than the Asian Pacific American Bar Association.

Perhaps you'll recall that Michael Watanabe is the magistrate to whom it appeared that all or most suits against Colorado divorce industry experts (DIEs) was assigned, notwithstanding the purported random computer assignment. And he was a speaker for the Divorce Industry's lobbying group, the MDIC. In response to an ethics complaint against Watanabe, the MDIC, notwithstanding its lobbying activities, "describes itself as a charitable group." (Click here). This is also the magistrate that, according to an affidavit filed by Suzanne Shell, reminds American peasants that, "Pro se litigants NEVER win in this court."  See document #123-3 filed in D.Colo. No. 1:05-cv-01858 at p. 5.

Madeline Wilson loves this guy because, of course, he bent over backwards to advocate for defendant members of the bar --as, I assume, most judges will do, and such as Berryhill recently did-- without regard for the law in my case against her.

In this doozy of an email, Wilson proclaims, "Magistrate Judge Watanabe was a killer domestic Judge in Arapahoe [County] for many years [which is probably why he gets all the "random" computer-assigned cases regarding domestic relations in Denver's federal court]. Highly qualified, well liked and able to plow through the bull crap." This is lawyer speak for, "If he likes you or has a strong inclination one way or the other, he won't let the law be an obstacle for doing what he thinks should be done."

Apr. 5, 2009 - Senators Udall and Bennet announce bipartisan Judicial Selection Advisory Panel to Fill Federal Court Vacancies

The press release is here.

The ten-member advisory panel will implement a purportedly open process to recommend qualified applicants to fill two vacancies on the United States District Court in Colorado. They claim there is an "urgent need" to fill the vacancies because as long as they remain open, "access to efficient, timely justice is impaired," (Say it isn't so!) and sitting judges are forced to deal with overwhelming dockets. Or surf porn. Or write treatises. Or moonlight as professors as two or three colleges or universities.

Apr. 5, 2009 - Andrews calls for the ouster of four Colo. Supreme Court justices

Former Senate leader John Andrews is calling for the ouster of four Colorado Supreme Court justices. Read full story (The Denver Post).

Meanwhile, a new Web site has come online over the weekend, called, clearTheBenchColorado.org, with a message:

Colorado's Supreme Court is out of control . . . The four justices subject to retention by voters in the next election (2010) have repeatedly violated their oath to uphold our Constitution and the rights of the citizens of Colorado - it is time for them to go. Chief Justice Mary Mullarkey, justices Michael Bender, Alex Martinez, and Nancy Rice have betrayed the trust of the people of Colorado, neglecting the proper judicial function of upholding the law in favor of imposing their partisan political will.

I have not yet taken the time to study the policy assertions of Clear the Bench Colorado to ascertain its reasoning for taking this position.

Some commenters to The Post article, supra, have labeled these criticisms as "an attack on the independence of the judiciary."

Apr. 3, 2009 - Legislators taking steps to improve Fourteenth Amendment guarantee of Access to the Court

Colorado is one of the few states that requires a non-resident to file a cost bond in order to sue in Colorado. I have long argued that this is a denial of the fundamental right of access to the court, as guaranteed under the Fourteenth Amendment, because it means that, if you can't come up with a bond, you can't sue.

HB 1305 would amend § 13-16-101, et seq. to reduce the bond amount to $5K and appears to make the requirement permissive (whereas, previously it was mandatory that a suit would be dismissed with prejudice for failure to file, if the defendant raised the issue. See Edgar Gold & Silver Mining Co. v. Taylor, 10 Colo. 110, 14 P. 113 (1887); Lewis v. Keim, 883 P.2d 610 (Colo. App. 1994)).

According to Face the State, amending the law to comply with the U.S. and Colorado's constitutional guarantee of access to the court would only "encourage" law suits from out of state. For example, the Colorado Civil Justice League argues that, without the exorbitant cost bond requirement, small businesses or individual defendants may be forced to settle a lawsuit, regardless of its merits, rather than risk the costly financial burden of defending the case in court.

Apr. 2, 2009 - Why this is no "fathers' rights site"

Every now and again, I'll receive an email inquiry from someone wanting to know whether the views expressed on this site are sympathetic toward the so-called "fathers' rights movement" or "battered women's rights" or other causes.

Today, I received an mass-email¹ from a person I am not particularly fond of and who purports to represent fathers' rights. This email message, which is reproduced with its original HTML font, exemplifies one of the many reasons why I am affiliated with no fathers' rights or other groups:

The WORD of God is crystal clear.  It expressly COMMANDS:   "Have nothing to do with the fruitless deeds of darkness, but rather expose them."  Ephesians 5:11 (New International Version)   Of course, this is the same base reasoning as to WHY there is going to be a massive "bloodbath" show exposed on Talkshoe Internet Radio, this coming Saturday evening... to *publicly* expel an entire SET of frauds who are still lurking dishonestly within the family rights movement, once and for all, and with the corresponding TOTAL decimation actions actually implemented against each of these evildoers just shortly thereafter..  If you can handle a little bit of vulgar language, stated only in *righteous anger*, get up to speed on this Saturday evening critical event, right now: http://unitedcivilrights.org/movement-frauds-exposed.html   During this same public routing of those various fraudulent family rights movement "activists", there will ALSO be exposed a total, in fact, of THREE very well-known "licensed" professional attorneys out there - two of those who will *not* be tolerated any longer, i.e., who shall meet the same fate as these other frauds, and a third "licensed" attorney who will be very *graciously* allowed one (1) single calendar week to mend his ways and correct his wrongs against the family rights movement, immediately, or else face the exact same wholesale judgment upon every major aspect of his own life, too.   The only hints I will give at this time are these two statenames: -- "Illinois" and "Massachusetts"   BE empowered. PROTECT yourself, and those you care about. Know the TRUTH, and then judge for yourself.   This coming Saturday evening: 7:00pm Eastern / 6:00pm Central / 5:00pm Mountain / 4:00pm Pacific http://www.talkshoe.com/tc/37984 (computer chatboard + listen in) 724-444-7444 is the telephone call-in number to listen/speak on Talkshoe shows. (answer the prompt with the show-channel number, 37984, plus enter your own "PIN" or use the Guest Code of "1")   LEGAL REMINDER: Please do NOT have any minor children within the listening area at your end during this show..

__________________
¹ Unfortunately, my name has become part of many email list-groups over the last several years, which I've never requested membership into.

Apr. 1, 2009 - April fools?

How'd you like the "Site Suspended by administrative or judicial order" message? I posted it on the afternoon of March 31, so that it might not be too obvious.

According to Wikipedia, "April Fools' Day or All Fools' Day, although not a holiday in its own right, is a notable day celebrated in many countries on April 1. The day is marked by the commission of hoaxes and other practical jokes of varying sophistication on friends, family members, enemies, and neighbors, or sending them on fool's errand, the aim of which is to embarrass the gullible. Traditionally, in some countries, the jokes only last until noon: someone who plays a trick after noon is called an 'April Fool.' Elsewhere, such as in Ireland, France, and the USA, the jokes last all day."

Meanwhile, take a look at the latest in our "Article of the Month," by Ken Smith.

Mar. 31, 2009 - Expert hacker secrets revealed!

I received a few emails from well-wishers and did yesterday take and pass the CHFI exam, which I now add to my MCSE, CSOXP and CISSP certifications.

However, although I've been in the IT profession since 1994, I turned my focus to computer forensics work and legal IT only a few years ago. Yet, four years ago, Madeline Wilson peered deeply into her crystal ball and saw my future. It was then that she sent an email to her client (my ex-wife):

A month ago, my computer crashed and I lost all the information back to 9-16-04. Interesting eh? 3 days later, various clients and their spouses/former spouses started contacting me because they received a post-card from Sean.

Wilson not-so-cleverly surmised that I found a way to hack into her computer remotely and stole her client list.

And now, for my "blackhat" hacker trick:

To obtain an attorney's "secret" client list,¹ as I did, it's as simple as contacting the State Court Administrator's Public Access office, paying a fee and obtaining an "attorney caseload report." Then, you obtain a party-page print-out for each case listed, which provides the parties' names and addresses. And if you go about it with courtesy, it can all be accomplished via email without ever leaving your desk. (Hacking into a computer, conversely, is illegal and a lot more work).

______________________
¹ Note that I haven't updated this particular list in about two years. I've been busy with other, more important, priorities.

Mar. 31, 2009 - Massage therapists to be licensed by state -- Aren't we leaving out divorce "counselors" and mystics?

Tomorrow, Colorado will become the 39^th state to require massage workers to be registered with the state that they are trained and licensed and have committed no serious crimes in their work. The new law requires massage therapists to have at least 500 hours of training and imposes potentially significant fines on unregistered misdemeanant practitioners.

According to The Gazette (here), "The practice of massage . . . has evolved into a sophisticated profession worthy of oversight. Massage schools, which can range in costs from a few thousand dollars to $20,000 or more, offer an array of programs and certifications. Massage has become a popular component in wellness programs and is even being used to treat medical conditions."

Indeed, some massage therapists treat not only aches, pains and "medical conditions," but apparently also minister to spiritual needs. For example, the following email written by Denver divorce lawyer, Madeline Wilson, details the advice given by her massage therapist as to how to spiritually manage their parental alienation/kidnapping scheme:

From: EsqMom@aol.com sent: July 19, 2005 8:37 PM To: cryan72@msn.com Subject: Prayer for Shelby message text: I have started a prayer chain for your sweet baby girl. I had a massage recently and told her a little about the case (protecting your identity of course). My massage therapist (who is a sweet Christian lady) thinks it is all about protecting Shelby and that we need to focus on her protection. She wanted you to light candles and pray for Shelby to be bathed in a protecting light to keep her safe and take away all the bad stuff she has experience and seen in her ten years. Beth (my therapist) is a little out there, but I know you would stop at nothing to protect your baby. Anyway, I have so many clients getting the attached post-card and I am asking them to pray for Sean and Shelby and you when they contact me to inquire as to "who the heck is this guy?" I hope you don't mind. I only give first names, even though it is public record. God bless you and Shelby, Love, Madeline P.S. See what the Attorney Regulatory Committee said to Sean. Thank God. Attachment : CherlondaPostCard.pdf (0.03 MB), 7-15-05.pdf (0.06 MB)

Naturally, it occurred to me that another opportunity for regulation might be the licensing and practice monitoring of mystics, who masquerade as massage therapists. What do you think?

Mar. 30, 2009 - divorce, custody, false allegations, and parental alienation: The front lines

Over the last several years, I have casually observed --but not studied-- the raging debate over "Parental Alienation Syndrome." This coming April 25^th is designated as the second annual "Parental Alienation Syndrome Awareness Day," and has been recognized by Gov. Jim Gibbons (NV) and introduced as a bill in Pennsylvania.

As I understand it, the phrase was coined by the late Richard A. Gardner, M.D. and is distinguished from ordinary "parental alienation" by a brainwashing effect where the child[ren] develop feelings of hatred and animosity toward the targeted/alienated parent.¹ Another phrase relevant to the discussion below is " hostile aggressive parenting," according to Phillip Hendrix, a co-founder of Colorado's " Coalition for Equal Parenting."

Since I started this Web site, I've had a number of men contact me, who've claimed to be the victims of false allegations. To be honest, I have no way of knowing whether their accounts are true, but I found most of them to be despondent and saddened --not angry-- and most were motivated to share their experiences with others or to make some token effort towards restoring their right to see their child[ren] (when they knew that a Herculean and cost-prohibitive effort was required). Several finally gave up hope.

I've also had a number of women contact me. Several have shared hair-raising accounts of their ex-husbands or ex-boyfriends who have allegedly threatened to kill them or the child[ren]. As one who has been a victim of false allegations (of abuse, drug use, alcohol use, mental illness, kidnapping schemes,² etc.), I am naturally skeptical of such claims. Nearly all of the individuals offering these accounts have carried on angrily about how the judge had awarded custody of the child[ren] to a domineering "abuser" and punished the mother, the "victim" and I note that their claims of "fearfulness" did have a ring of insincerity (although, like the men described above, I have no way of validating their claims). Nevertheless, in many --perhaps most-- of their anecdotes, the "evidence" against the men was nothing more than the opinions or observations of a therapist, a CFI, a parent coordinator or some other family member. In most cases, the only "evidence" --which these mothers assured me is probative-- is nothing more than allegations. (I don't doubt for a moment that each woman regarded her ex-husband as a jerk, but that --of course-- doesn't justify termination or restriction of a parent-child relationship).

That said, over the last few years, I've seen a number of Web sites and treatises surface on the Internet claiming to debunk P.A.S. as a junk-science that has been used award custody to abusers. Their argument goes something like this:

First described by Richard Gardner in the 1980s, PAS theory describes a cluster of behaviors exhibited by children involved in custody battles in which abuse is alleged. Gardner’s theory claims that many abuse cases are actually a systematic effort by one parent to “alienate” the child from the other, resulting in childhood behavior problems. Gardner further argues that where PAS is identified, courts should grant custody to the parent accused of abuse, in order to punish what he calls the “alienating parent” for fabricating abuse stories.

PAS theory is ripe for misuse. It has been used to discredit mothers who bring legitimate abuse charges to bear in custody proceedings. PAS has been widely invoked in courts despite the total absence of scientific evidence supporting its existence. There is growing consensus in the therapeutic community that PAS has not withstood the scientific burden of proof, which explains its exclusion from the DSM, the single most cited source of psychiatric diagnoses. Moreover, experts say that most of the “symptoms” attributed to PAS—anger at parents, oppositional behavior—are often caused simply by the stress of divorce.

Domestic violence survivors rely on the legal system to render impartial judgments in complex custody cases. Such decisions are made more difficult by the introduction of pseudo-scientific classifications by interest groups seeking to further their agendas.

Quite frankly, without even crediting the possibility --let alone the well-researched & documented reality-- of false allegations against men, it appears that these groups --all women's groups, I should clarify-- are disenfranchised because their constituents occasionally are not rewarded for the allegations, without regard for the truth or falsity. My suspicions are even more heightened with the lack of candor that appears to accompany the proponents' assertions. For example, one purportedly scholarly treatise is entitled "Parental Alienation Syndrome and Parental Alienation: Research Reviews. This paper provides a historical and research overview of PAS and PA, identifies strategic issues for advocates working with abused women and children, and offers guidelines to improve courts' treatment of these issues." Aside from the fact that the article is disseminated by the "National Online Resource Center on Violence Against Women," does not the abstract, which indicates the "research review" was drafted for advocates of women, not suggest that it falls short of being objective?

One of these aforementioned blogs, "Battered Moms Lose Children to Abusers," is replete with scathing invective toward fathers and men, as I can best discern. For example, one recent article, Maternal Deprivation Research imputes the research of a scientist who carried out cruel experiments on Rhesus monkeys --assessing the importance of the maternal bond by severing an infant from its mother for up to a year-- to the fathers, psychologists and judges who find that mothers have engaged in behaviors engineered to sever the relationship between the child[ren] and father. Another article from the same site discusses "maternal deprivation research," and then quickly transitions into how this research is applied in the courtroom to subvert maternal relationships. Death-by-suicide, suicide attempts, depression, academic distress, retaliation by a child against a PAS claimant-father and "untold misery for the victimized children and mothers" are all offered as purported evidence to support the theory.

"A mother's journey for justice," appearing in The Indianapolis Recorder, reports: "According to [mother], biased judges and attorneys have refused to remove [her child] from the father’s home, despite serious allegations of abuse in that household. [Mother], who raised [the child] for the first six years of her life, believes custody should be returned to her."  Notice that the outrage here is that the allegations should have been treated as fact.   Indeed, it is outrageous to these mothers that they cannot simply make the allegations and then have the court hand them the outcome that would be required if the allegations were proved true.³

Another theme that I have found recurring in these rants includes mothers' perceptions that their ex-husbands didn't spend enough time changing diapers, spoon-feeding baby or reading bed-time stories, during the marriage. This disparity of care-giving, they urge, requires that father be deprived of meaningful contact with the child[ren] after divorce. For example, the aforementioned article opines, "Suddenly the father who had little prior involvement wants to take the kids half the time to avoid child support obligations, etc. When the men are really abusive, they ask for sole custody and demand the mother of the child pay them."

This same article enumerates specific behaviors of "especially heinous abusers." I have cherry- picked a few of the more ambiguous ones for discussion, hereinbelow:

• Angry
• Coercive
• Demanding
• Domineering
• Manipulative
• Deceptive
• Un-empathetic (Lacks Empathy)
• Entitled
• Self-centered
• Neglectful
• Guilt inducing
• Harsh, rigid and punitive parenting style
• Outrage at child’s challenge of authority
• Dismissive of child’s feelings and negative attitudes
• Vents rage, blames mother for “brainwashing” child and takes no responsibility
• Challenges child’s beliefs and/or attitudes and tries to convince them otherwise
• Inept and unempathic pursuit of child, pushes calls and letters, unannounced or embarrassing visits
• Emotional abuse
• Economic abuse
• Male privilege

These are among the characteristics that these mothers believe justifies restraining orders, substantive due process deprivations, and that allegedly constitute the abuse that these mothers believes justifies their alienating conduct and termination of the father-child relationship (with the exception of the child support obligation, of course).

Although I cannot defend as "a nice guy" an individual who exhibits all or most of these characteristics, anyone who does not exhibit some of these human characteristics probably wouldn't hire a lawyer and put up any fight to a custody challenge.  Indeed, such a timid person might never leave the house for fear of offending someone. (Or rather, he wouldn't have a house to leave, because upon being served the divorce summons, he would say, "Here take the house. Take it all.  I don't deserve it and I never deserved you.")

If you think these behaviors do not justify deprivations of liberty interests (because, perhaps, they're too subjective and--just maybe-- people ought to grow up and behave as adults, rather than give management of their lives over to the courts), then you may want to take a look at Colorado's SB09-068.

SB 09-068, a pending bill concerning funding to "support domestic abuse services," seeks to add the following conduct to the domestic violence categories: "any other types of abuse and coercive control."  The preexisting list is "homicides, aggravated assaults, and assaults and batteries . . .  [that] occur within the home."

What exactly is meant by "other types of abuse and coercive control," exerted by husbands? Permit me offer a few examples:

• Asking the wife to consult with husband prior to making large purchases
• Implementing a discretionary spending freeze because of economic hardship facing the family
• Raising one's voice during an argument
• Demanding to know the spouse's whereabouts at a particular time when infidelity is suspected
• Placing a disobedient child into "time out" or other forms of negative reinforcement
• Spending too much time at the office; or church; or on the golf-course; or with friends
• Expressing criticism toward or about spouse
• Any other behavior identified by a women's center "volunteer" or feminist lawyer

Clearly, these are behaviors that, if objectionable, should be addressed by a marriage counselor, not a police officer or a court or child protective services agent.⁴

Yet, according to the chair of Colorado's Judiciary Committee, Sen. John Morse, men who testified against the bill, complaining to be a "victims of the domestic violence industry" were "so far off base" that they "didn't speak a word of truth." (Click here).

Conclusion

I have no problem listening to the viewpoint that PAS is be a "junk science" or that it offers opportunity for persons, in some cases, to falsely accuse another parent of alienating behaviors. However, the groups who posit these theories would improve their credibility if they conceded that some parents --mostly mothers-- engage in false allegations, or do not encourage a meaningful relationship between the child[ren] and the other parent, or conflate their resentment toward the other parent with "protecting the child." I further find that their arguments might be more persuasive if they offered realistic and measurable criteria for behaviors that warrant restriction or termination of parent-child contact, rather than a litany of petty, albeit unpleasant, annoyances.

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¹ For more information, see http://www.paskids.com/, Bone & Walsh, Parental Alienation Syndrome: How to detect it and what to do about it, 73 Fla. Bar J. 3, pp. 44-48, Parental Alienation Syndrome - Wikipedia; http://paawareness.org/; Stop P.A.S.!
² See, e.g. my March 14^th entry, below.
³ It seems that many Americans have forgotten the principle of innocent until proved guilty. And, perhaps that is so because, in family courts, it often is "guilty as charged, until proved innocent at father's expense."  See, e.g., Russ Bleemer, N.J. Judges Told to Ignore Rights in Abuse TROs, 140 N.J.L.Rev. 281, 294-95 (April, 1995); David Heleniak, The New Star Chamber, Rutgers Law Review, vol. 57, no. 3 (Spring 2005); June 18, 2008 memorandum opinion, Crespo v. Crespo, (New Jersey Ch. Div.) (The burden of proof in domestic violence cases should be "clear and convincing", not "by a preponderance of the evidence", and that application of the latter standard constitutes a due process violation).
⁴ For another perspective on this same topic, several anecdotes are collected here: http://ejfi.org/News/DV-March_14_2009.htm

Mar. 29, 2009 - True story?

Anyone here following the Mark Brennan saga from this or other Web sites?  I came across a short human rights violation story on the ABA Journal Web site and decided to have a little word substitution fun. Except, the result is not so funny.

I only needed to substitute a few words (which appear as underline text) that did not substantively change the gist of the story and they fit perfectly.  Although my  ad lib. story describes an unfolding event here in Colorado that has yet to come to fruition, the writing is already on the wall:

A solo law firm known for its activist approach to plaintiff's issues and official corruption was closed down by the Colorado government this week.

Although the asserted reason for shutting down the Law Firm for six months was that it had allowed a lawyer to inflame the jury with courtroom theatrics, attorney Mark E. Brennan, who heads the firm, described this as "just a pretext," reports KnowYourCourts.com.

The shutdown on behalf of corrupt officials seeking to keep their names out of the limelight could mean the end of his firm, he says, and he is uncertain it will be allowed to reopen even after six months.

"On the surface they claimed that the punishment is for the protection of the legal system," Brennan tells KnowYourCourts.com, "but in fact it is to cover their crimes and protect bigger interests."

The judicial department, the Attorney Regulation Counsel, that issued the shutdown order declined comment, KYC reports.

"The six-month shutdown sends a chilling warning to all lawyers that the authorities will not tolerate any perceived challenges to their power," says director Sean Harrington in a Human Rights in America press release. "This is not the path to a rule of law."

Again, here's the original story. See also Frank William McIntyre, Whose Interests Does [the] Disciplinary Process Protect? Tex. Law., (August, 2002); and see the Web site www.disciplinaryboardnm.com by New Mexico lawyer, Robert Richards.  Richards' Web site is currently suspended.¹

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¹ In order to display the page for this story, I had to recover a cache copy.

Mar. 28, 2009 - Nottingham, LLC Open for Business (part deux)

On February 26, we reported (below) that Fast Eddie appears to be open for business. He apparently recently incorporated a firm, "Edward W. Nottingham, LLC." At that time, his attorney registration was inactive (click here).

However, in light of the fact that Colorado's Attorney Deregulation Council has given Nottingham a pass by indefinitely suspending the investigation against him (see my February 12^th entry, below), he has moved to convert his law license to active status (click here) as of this writing.

So, just to be clear:

• The Attorney Regulation Counsel has time, resources, and inclination to go after Mark Brennan for winning a case on behalf of his client, embarrassing the City of Denver defendants and annoying a punctilious federal judge (Blackburn); and
• The Attorney Regulation Counsel has inclination to confer with the attorney representing my ex-wife's attorney --herself, a liar-- to develop legal strategies against me (see March 24^th entry, below); and
• The Attorney Regulation Counsel has no inclination to discipline my ex wife's attorney for false swearing (see March 12^th entry, below) or deceitful/dishonest conduct or myriad RPC violations; and
• The Attorney Regulation Counsel has no inclination to investigate and discipline the former federal judge who, we are told, used his former office to browse porn; used his former government-issued cell-phone to arrange prostitution services; availed himself of unlawful prostitution services; and asked a prostitute to give false testimony in an ongoing or prospective federal investigation.

Mar. 28, 2009 - Program update

I have been studying over the last week for the CHFI exam, which I will be taking on Monday. Consequently, I have neglected to post often here (hence, my request hereinbelow for writer-contributors).

Mar. 27, 2009 - Clean slates for youths sentenced fraudulently by judges on the take

The Pennsylvania Supreme Court ordered the records expunged for those youths sentenced in a detention-for-profit kickback scheme. (New York Times). According to Marsha Levick, a lawyer with the Philadelphia-based Juvenile Law Center, “every kid who appeared before [the corrupt judge] was denied an impartial tribunal.”

So, then, I must ask, which criminal and civil matters that were on Edward Nottingham's docket during the time he --allegedly?-- used court computer to surf adult Web sites; used a court-issued cell-phone to communicate with or about prostitution arrangements; and was embroiled in unlawful activities, regardless of whether there is a causal link between those activities and the cases he presided over?

Further reading:

• Despite Red Flags About Judges, a Kickback Scheme Flourished (New York Times)
• Juvenile Records to be Expunged in Response to Judicial Kickback Case (Law.com)
• Ciavarella tells '20/20' he didn't plead guilty to 'kids for cash' (The Citizens Voice of Wilkes-Barre)
• Without Objections (The Citizens Voice of Wilkes-Barre)
• Judge may overturn hundreds of cases in Luzerne scandal (The Philadelphia Inquirer)

Mar. 24, 2009 - KnowYourCOurts.com exclusive - Billing records reveal that counsel for attorney accused of false swearing engaged in secret conferences with the judiciary, the Attorney Deregulation Council and the court's appointee, Bill J. Fyfe, to discuss legal strategy against KnowYourCourts.com blogger, Sean Harrington. Surprised? 

Update: an incorrect link amended

---

Just when you thought things couldn't get weirder --days after a divorce attorney hired outside counsel to represent herself within her own client's case, and after using her client's case to pursue a personal vendetta-- the billing records for Madeline Wilson's attorney reveal the following:

“Telephone conference with co-defense counsel D. Yun regarding case, defense strategy and potential hearing where clients may be called to testify"

“Telephone call from Amy Colony, Attorney General representing the judicial defendants regarding status, outstanding motions and defense strategy"

“Receive and review letter from A. Colony, who represents Judge Tidball regarding her defense strategy"

“Telephone call to co-defense counsel for Attorney Regulation Counsel regarding contacting her client to determine if we could enter into binding agreement with Harrington for no future grievances against client"

One small detail that make these entries especially noteworthy: There are no "judicial defendants." 

How many readers here believe that you'd have a fair hearing before a trial court that had its attorneys secretly meeting with your adversary to discuss a legal strategy against you?  This provides a little insight on the recent seemingly-inexplicable outcome of the Marriage of Harrington case, which outcome stood in stark contrast to well-settled legal principles and case precedents in Colorado.

And how many readers here are surprised to learn that my adversary has been meeting with with Colorado's Attorney Deregulation Counsel to discuss "strategy"?

Mar. 23, 2009 - Colorado to abandon LexisNexis File-and-Serve and implement in-house developed e-filing, including pro se  access portal

According to an employee of the state court administrator's office, the General Assembly has authorized in-house e-filing systems to be developed by the Colorado Judicial Branch’s technology division over the next 3 years. The system will do away with LexisNexis and include both a public access and electronic filing system. The first phase will be the public access system, which is forecasted to be up and running by the end of this year, followed by a new e-filing system targeted for a 2012 release.

The employee noted that, "Over the last 6+ years we’ve tried repeatedly to get Lexis to implement a pro se e-filing service on their site. They were never able to deliver it, which is just one of the many reasons why we’re moving away from them. When we build our own systems, we will include a pro se component."

I have also complained that the File-and-Serve system did not (or does not) support hyperlinks, which thereby defeats the functionality of submitting a digital brief.

I also believe that depriving pro se litigants of File-and-Serve access may constitute an Equal Protection violation: First, the documents are mailed from out-of-state, and now take up to three days longer to arrive in a person's mailbox than they did when mailed by the courts or counsel in Colorado. When the clock is ticking (such as the 15 day requirement for a C.R.C.P. 59 Motion), two or three days is valuable. Second, the pro se party's documents arrive to the courthouse one or more days later than the instantly-filed e-filing (thus, the represented party has a day or two advantage, during which time the court may rule in favor of a party or take opposing party's arguments under advisement for a longer period). Third, the copy the judge receives via e-filing is sharp and clear (if converted directly to PDF from Word or Word Perfect), whereas the pro se party's filing must always be manually scanned in by staff (adding more delay) and will not be as clear and crisp.

In light of the fact that Colorado is developing its own systems, the State Court Administrators' Office does not expect that Lexis will incorporate any enhancements to their Colorado services over the next several years (including the pro se service that had been announced in August, 2008).

As a side-note, I guess I must not have been paying very close attention because, according to this document, an announcement regarding these plans was made in November, 2008. And Don Knox (editor, Law Week Colorado) tells me that he broke this story months ago in their print version (noting "We don't post a lot of the goods stuff on the web. We save it for the paper"). Moreover, I can't find any announcement on the judiciary's Web site.

Mar. 23, 2009 - Teller County District Judge issued prior restraint on woman, prohibiting her from "Publication in any manner or forum, including, but not limited to, the news media, letters to editors, community newsletters, and internet and blog postings" concerning dispute she has with HOA.

4/02/2009 Update: link to original order added, provided courtesy of atty Jack Scheuerman

---

I was tipped off to this matter by a March 18, 2009 story in The Gazette (which itself is about three months after the news event in question).

That event was a Colorado appeals court opinion in the matter of Jackson v. B Lazy M Ranch HOA, No. 07CA2379 (not selected for publication pursuant to C.A.R. 35(f)).

In this bitterly contested HOA dispute, Jan Jackson was accused of defaming the ROA and its Board of Directors by writing letters to the editors of local newspapers, posting comments on homeowners’ forums, and sending e-mails and letters to the other members of the ROA. Jackson complained about homeowners’ associations generally and voiced concerns regarding, among other things, the water rights relating to a lake on Ranch property and “self-help” maintenance measures performed by individual homeowners on common Ranch property. She also continually threatened litigation and accused the Board of violating both civil and criminal statutes.

The ROA sought an injunction prohibiting Jackson from mentioning the ROA or the Board in future publications and damages for alleged libels by Jackson published on the Internet, in e-mails, and in newspapers.

In an October, 2007 Order, Thomas L. Kennedy, district judge, found that Jackson was liable to the ROA for libel per se and enjoined her from the following:

1. Publication in any manner or forum, including, but not limited to, the news media, letters to editors, community newsletters, and internet and blog postings of the name of the [ROA], the names of its property owners, or the names of its past and present board members;

2. Publication in any manner or forum, including, but not limited to, the news media, letters to editors, community newsletters, and internet and blog postings alleging criminal conduct, civil wrongs, and mental and/or psychiatric conditions, which refer directly or indirectly to the [Ranch, ROA], its property owners, or its past and present board members;

3. Communication by any means, including but not limited to, e-mail, letter, telephone, or in person with any member of the [ROA], its property owners, and its past and present board members which in any way alleges criminal conduct, civil wrongs, or mental or psychiatric conditions by any past or present board member of the [ROA].

In addition, Kennedy required Jackson to take action to remove all previous publications by her and relating to the enjoined subject matters from public forums and to prove her compliance with his Order to both the court and to the ROA. To preserve Jackson’s right to seek redress of any future grievances, Kennedy provided that Jackson could petition him for "permission" to publish otherwise prohibited statements, but only after giving advance written notice to the ROA and waiting thirty days for a response.

For those of you who don't already know, any 1L law student would recognize this injunction as a "prior restraint," which is presumptively unconstitutional in this country.

And, thankfully, a panel on our Court of Appeals properly applied that well-settled law.¹ In an opinion authored by Judge Gabriel, the panel applied a line of cases from the U.S. Supreme Court, including Tory v. Cochran, 544 U.S. 734 (2005) and Near v. Minnesota, 283 U.S. 697 (1931) (an elementary case taught in every Constitutional Law class) to hold that an injunction to enjoin a libel is a prior restraint on speech and that speech cannot be subject to prior restraint merely because it is alleged to be defamatory.²

The panel ruled that it is "clear" that limitations on the aforesaid constitutional guarantee will be recognized only in exceptional circumstances, as, for example, where the speech threatens national security, involves obscenity, or has the effect of force and, accordingly, vitiated Kennedy's ruling, writing, "the [trial] court should be mindful of the general rule against such injunctions absent extraordinary circumstances"

I have contacted the ROA's attorney, Jack Scheuerman --with whom I've corresponded previously on other matters-- for his comment. When and if he replies, I will update this entry.

____________________________
¹ Certainly, there are many opinions of the Court of Appeals that I have disagreed with, including some that I have unreservedly classified as incorporating intellectually dishonest reasoning (see fn.1 to my March 5^th entry, below. However, I would be remiss if I failed to mention that a great many of them --perhaps a majority-- seem to reflect an adherence to stare decisis and a respect for the "Rule of Law" by applying the law in a consistent and predictable and well-reasoned fashion.
² The panel also observed that at least some of Jackson's statements "appear to be no more than rhetorical hyperbole or evaluative statements reflecting Jackson’s political, moral, or aesthetic views, as distinct from sense impressions, and therefore would constitute protected opinions, rather than defamatory facts."

Mar. 19, 2009 - More examples of other states far behind Colorado's progressive attorney regulation system

John Gleason of our Attorney Deregulation Council is often quoted by the press for the proposition that Colorado is a model for other states' attorney regulation systems.

Accordingly, I have pointed out on several times ante the disparities between Colorado and the other states, who remain in the Dark Ages (see, e.g., my March 3^rd and January 22^nd entries, below, regarding those primitive states, who still discipline attorneys for false swearing).

Another example concerns an attorney in Virginia, who was disciplined earlier this week for violating the Lawyer-as-Witness rule, which prohibits an attorney under most circumstances from acting as an advocate in an adversarial proceeding in which the lawyer is likely to be a necessary witness. According to the findings of the Virginia State Bar Disciplinary Subcommittee, the attorney was romantically involved with his client during the pendency of that client's marriage dissolution case.

Here in Colorado, our Attorney Deregulation Council has eschewed the anachronous practice of disciplining lawyers who are accused of sleeping with their clients during divorce cases. An example is the allegation against Hal Lohse, a Colorado Springs attorney. The Deregulation Council told the complainant (the husband) to go pound sand. A few months later, Lohse married his client.

Another example is a divorce attorney in Marriage of Harrington, who for years used the case to pursue a personal vendetta against the opposing party (e.g., click here) and even hired an outside attorney to represent herself in her own client's case. Not only did the judge refuse to refer the matter for an investigation to the Deregulation Council, but he properly punished the complaining party by charging him with attorney fees for his vexatious motive in raising an objection.

Colorado is, indeed, a progressive state where lawyers are free to be lawyers, regardless of the outmoded language of the Rules of Professional Conduct. Lawyers everywhere should be free to zealously represent their clients through whatever means necessary, including chicanery, subterfuge, extortion, and even bribery (if the client can afford to underwrite it).

Mar. 19, 2009 - KnowYourCOurts.com seeking writers, editors, researchers, Web designers

At present, I have about 1,500 pages of material (transcripts, pleadings, emails, memoranda, etc.) provided by various known and anonymous contributors that I have not yet been able to process. In fact, I've reached the point where maintaining and contributing to this Web site is competing with my family, work and law school.

Hence, I am seeking volunteer writers for articles, researchers for stories, editors, document processors (persons to scan and OCR paperwork and parse the results), PR people (to reach out to the bar, legislators and MSM journalists/reporters) and Web site designers to post content, manage links and evolve the Web site's interface.¹

KnowYourCourts.com is truly a one-of-a-kind muckraker's resource on the Internet, but serves only Colorado (and half-assed, at that). I would like to see our coverage for Colorado and the federal courts become more robust and comprehensive, and I am not opposed to branching out into other states, if we had the staff to do so (as this post suggests, I don't have enough just for this one state).

Ken Smith and I will maintain senior editorial rights over content and form. There's always room for another person to apply for senior editorial rights and we'll know who that is when we meet him or her. Finally, I don't mean to sound haughty, but as the site's founder and visionary, I maintain --for lack of a better word-- "executive" editorial rights over the site's administration, content and form.

If you're interested, drop us a line here.

___________________________
¹ Future Web work includes optimizing our search engine results (SERPs), giving the Web site a face-lift, creating site search functionality, enhancing/updating site security, inter alia.

Mar. 18, 2009 - Denver mother to hitman: "The only way to get my daughter back is to get rid of [father]"

Yet another divorce/custody saga playing out:

Read full story

Mar. 17, 2009 - - KnowYourCOurts.com exclusive - Colorado House Judiciary Committee Gets a Wakeup Call: Child Custody Recommendations for Sale to the Highest Bidder

Bill Strong, a CFI in the Denver area, had a measurable impact on yesterday's House Judiciary Committee's meeting regarding the parent coordinator (PC) immunity bill SB09-069 (see my March 13^th entry, below, for commentary on the proposed bill).

Unfortunately for Strong, his impact was in abstentia, by way of several emails he allegedly wrote back in 2006, which he doubtless thought would never appear on this Web site or be presented to Colorado's House Judiciary Committee.

According to a mother in a custody case (district court, Arapahoe County, No. 99DR3136), Strong —who had been appointed in the case—  sent her a February 27, 2006 email, to wit:

I have been informed by your attorney that you are refusing to sign the agreement that I drew up. This is unacceptable! Either you sign my agreement for parenting time issues that I am recommending, or I will be forced to go to the judge and recommend custody of [your child] to [father] . . . You have [said] that you have no more money and no one else to borrow from. Well, you need to find it or I will be forced to take you to court for my fees. I will also charge you for the time I spend preparing for court and taking you to court plus court costs . . . I will expect this next retainer of $2,500.00 by March 1st or I go to the judge and have you held in contempt, bill you for my time, and court costs. Then, in my final report, I recommend custody to [father]."

Sidebar: This is nearly identical conduct that I alleged against Bill Fyfe in 99DR3717 but, as noted below in my March 5^th entry, and as I've explicated on this site in detail for over two years (e.g. here), the courts --who are the only entity with the power of plenary review-- bend over backwards to knowingly facilitate such extortion.¹

According to mother, her attorney, Linda Cohn, never reported the conduct to the court. Instead, mother said Cohn informed her that such Strong-arm tactics (pun intended) was "the norm" and mother should find more money to pay Strong. Mother later discovered that Cohn was using Strong on another concurrent case.

Strong's Web site is http://strongsolutionsonline.com/Default.aspx, where he describes his practice as, "Helpful, Caring, Solution-Focused Therapy." The site maintains a tab for his CFI services, to wit:

Bill has extensive experience serving in the role of a Child and Family Investigator (what was formally known as a Special Advocate). For those who find themselves in the unfortunate situation where a court appointed evaluator is needed to assist in resolving parental disputes, a fair and seasoned professional is needed. Bill takes the role of a CFI very seriously and will do his best to help the parents develop a parenting plan themselves, or if necessary, will author and recommended a plan that puts the children's interests first and foremost. As you may know, the court puts a lot of weight into the CFI's recommendation. So make sure you have one that will give the time and attention that your children deserve.

According to mother, the "fair and seasoned" CFI drew a new line in the sand, sending her this March 10, 2006 threatening email:

How are you coming with my $2,500.00 retainer? . . . I told you you need to figure this out and now you are out of time in 5 short days. Remember, I need this by the 15th or I go to the judge as I told you I would.

On May 31, 2006, she said she received another threatening email:

Since you chose to ignore my request for my [additional] retainer of $2,500.00 that was due back on March 15th, I have no choice but to go now to the judge. I will be filing a motion to get myself paid and I will be charging you for the time I spend filing the motion, the time I drive to and spend in court and court costs. You are not going to like my recommendations to the court regarding custody of your son due to your lack of payment of retainers. I have warned you repeatedly.

And, on June 16, 2006, yet another:

[I[f I don't get [yet] another retainer out of you, I will ask the judge to give custody of [your son] to [father], and don't think I can't get the job done! I need to have the next $1,500.00 by the 1st of July or I make my report to the court, accordingly.

All told, at least four parents gave testimony opposing SB09-069 before the Judiciary Committee.

The testimonies were well received and, in particular, the Bill Strong e-mails (copies of which were given to each Committee member) exemplified for the Committee as to what often happens when using a divorce industry expert (DIE) such as the parent coordinator.

The Committee asked numerous questions of those in support of the bill, including about practice standards, consistency in training, implementation, complaint process, follow-up and cost to the consumer. They appeared to recognize they were being asked to provide statutory immunity for a group that had no standards of practice --but rather only guidelines-- and that there was little or no oversight of those serving in the role.

They also acknowledged that a parent’s only recourse when wanting to complain about a parent coordinator was to go through an lengthy and costly litigation process which would involve the judge that appointed the parent coordinator.

Fran Fontana, an attorney, testified against the bill. Her description of an individual serving as a parent coordinator differed from others who were in support of the role and underscored the point that even those that work within the system do not understand what the parent coordinator role entails.

Adoree Blair and Betsy Duvall, supporters of the bill, put forth the idea that they could not get individuals to serve in the role because of lack of immunity. Yet a document, which one of the parents shared, revealed that a little less than ½ of individuals willing to serve as a CFI in the 17^th judicial district were also willing to serve as a parent coordinator for a fee that varied from $80 - $200 dollars an hour and a retainer of $1500 or more. This undermined Blair's testimony indicating that she charged only $25 an hour, which suggested that the probable expense to parents was insignificant.

One parent, who contacted Representative Claire Levy before the hearing, learned that the Committee had taken a straw vote and would likely approve the bill, although Levy indicated she would be a no vote. However, 3 individuals on the committee changed their vote to a NO vote after hearing the parents' testimony. Several committee members met with the parents following the meeting and encouraged them to keep working on the issue, noting that the House might not approve the bill.

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¹ In my opinion, Bill Strong's conduct appears to violate Section 18-3-207, where:

A person commits criminal extortion if . . . [t]he person, without legal authority and with the intent to induce another person against that other person's will to perform an act or to refrain from performing a lawful act, makes a substantial threat to . . . cause economic hardship . . . or damage the . . . reputation of, the threatened person or another person; and . . . [t]he person threatens to cause the results described [above] by . . . invoking action by a third party, including but not limited to, the state or any of its political subdivisions, whose interests are not substantially related to the interests pursued by the person making the threat. . . .For the purposes of this section, "substantial threat" means a threat that is reasonably likely to induce a belief that the threat will be carried out and is one that threatens that significant . . . injury, or damage will occur.

Strong must not have had "legal authority" to make these extortion threats, given that courts' CFI appointments under CJD 04-08 do not include a requirement for a private contract and given that the court did not authorize Strong to sell his custody recommendation to the highest bidder.

Mar. 17, 2009 - Revised Code of Conduct for U.S. Judges Released Today

Effective July 1, 2009

http://www.uscourts.gov/library/codeOfConduct/ Revised_Code_Effective_July-01-09.pdf

The press release is here.

Quite honestly, I don't have time just now to do an analysis and critique, so I'll just wait for one of the other pundits (Arthur Hellman, Tony Mauro, Pamela MacLean, etc.) to come out with some commentary, which I'll post here.

Mar. 16, 2009 - El Paso County parents take their grievances to the D.A.

This past Friday (March 13^th), a group of parents met with the Dan May, the recently elected district attorney for the Fourth Judicial District. The meeting concerned the actions of court-appointed divorce industry experts (DIEs) including Marlene Bizub and Mark Wilmot, among others. The sentiment was that the former D.A. (John Newsome), who left office under dubious circumstances, was unsympathetic to these parents' concerns. Conversely, May has been characterized by the parents as committed to hearing their grievances.

According to one parent, May is "in the information gathering stage of possible charges and has asked for more information from more individuals that have had experiences with these Court appointed 'Professionals'," and, thus, "has scheduled another appointment for people to come in and talk to him directly"

I followed up with May earlier this afternoon and learned that his understanding of the action items differ: He explained that his only articulable follow-up was to determine and convey the proper persons or entities to whom the parents' grievances should be properly redirected and, to that end, he has a meeting with an administrator from the 4th Judicial District Court tomorrow. He did not appear to believe that any of the grievances concerned matters that are within the purview of the District Attorney's office.

Mar. 14, 2009 - One Little Victory

---

A certain measure of righteousness
A certain amount of force
A certain degree of determination
Daring on a different course

A certain amount of resistance
To the forces of the light and love
A certain measure of tolerance
A willingness to rise above

The measure of the moment
In a difference of degree
Just one little victory
A spirit breaking free

How do you define victory?

For several years, I was a man with a broken heart. Today, may I share with you one little victory?

Today, my 13-year-old daughter arrives to spend Spring Break with me and her baby brother and sister. And, it seems, she'll be spending the summer here, and possibly the 2009-10 school year.

Consider Madeline Wilson's May 26, 2006 email to mother, triumphantly proclaiming, "I don't think he's ever going to see Shelby again anyway. At least until she's grown. He is too busy fighting."

Indeed, if Wilson had her way, I would be writing this blog on a piece of toilet paper, sitting in jail. (Click here).

What a depraved and malignant heart this woman must have to contrive such treachery.

I imagine the pool that spawned you.
I am filling it with rocks.
I am holding shut your gills.
To prevent you from taking in air.

The following report, which I submitted to the 18^th Judicial District Attorney, outlines one of Wilson's ham-fisted artifices, a kidnapping-allegation scheme; the evidence speaks for itself:

On November 30, 2004, Christy Ryan ("mother") composed a resignation letter on her computer, which she sent to her employer. The memo explained that, "Due to urgent family matters I must relocate out of state as soon as possible." On January 4, 2005, Ryan composed a memorandum to Madeline Wilson, explaining, "We are in Texas now, staying with my mom to help take care of her." Also on January 4, 2005, Ryan composed a memorandum to Wilson's former law firm (Sturniolo & Associates), to whom Ryan still owed money, writing, "This letter is to inform you that I have moved out of state to help care for my mother." On May 29, 2005, Ryan composed an email to a prayer group (prayer@tacf.org), explaining, in pertinent part: I am a single mom and recently moved out of state to care for my mother. Each of the foregoing emails and memoranda set out that the reason Ryan left Colorado (but without notice to either father or the Colorado court) was to take care of an ailing parent. However, after father continued to send letters to Wilson looking for his child and then hired a P.I. and located her in Texas and then threatened to file suit, a pretext was contrived by Wilson and imputed to Christy, as follows: On January 31, 2005, Wilson (esqmom@aol.com) sent Ryan an email captioned, "For your review - I think Sean has threatened to take Shelby before, right?" Attached to the email was a draft copy of a responsive pleading docketed later that same day. The pleading alleges, among other things: The father has stated on numerous occasions that he knows where the mother lives, and, recently, he has stated he knows where the mother's attorney lives (which can be taken as no less than another threat to the mother's attorney by the father) . . . The father has threatened to take the child in the past and the mother believes he has nothing to lose at this point. Father never threatened to kidnap his child (although she had already been non-criminally kidnapped from him). Moreover, there was no prior allegation and nothing in the record to support this new allegation, which "came out of the blue." On March 7, 2005, Wilson composed an email to Ryan that stated, in pertinent part: You are going to have to get him served, which has been a problem for quite some time, but telling the Judge/Magistrate things like: he has threatened to kill himself; how he threw the stuff in the front yard way back when; and that he has asked shelby if he wants him to kidnap her, are all good things along with some of the pleadings he has sent that are threatening. You can tell them you "escaped" to Texas and he has lost all parenting time but that he has somehow stalked you to TX and you fear for your life and Shelby's if all of that is true. On July 26, 2005, Wilson composed an email to Ryan, reminding her of their kidnapping-allegation story: It is clear that he knows where you are. You were/are in Texas due to kidnap threats. I advise you to get a restraining order where you are, since we can't do it for you here. If I find him, I will let you know. In Wilson's April 25, 2006 written statement to the State Bar of Texas Office of Chief Disciplinary Counsel (OCDC), she stated, "[Mother] is extremely frightened of [Mr. Harrington] and has testified that Shelby claims that [Mr. Harrington] has threatened to kidnap her." No such "testimony" exists. In Wilson's November 14, 2007 written statement to the OCDC, she again wrote, "[Mother] is extremely frightened of [Mr. Harrington] and has testified that Shelby claims that [Mr. Harrington] has threatened to kidnap her." As noted above, no such "testimony" exists.

Mar. 13, 2009 - new bill to provide Colorado "Parenting Coordinators" with statutory immunity for their negligent, tortious and malicious acts.

The Bill is SB09-069. The House Judiciary Committee is meeting to discuss it on Monday, March 16 at 1:30 P.M. As of the time of this writing, the Committee is meeting room 107 of the capitol building. The location and time can be confirmed by contacting the Legislative Counsel at (303) 866-3521.

Among other things, the bill provides that a parenting coordinator appointed by the court is immune from liability for any claim for injury arising from an act or omission of the parenting coordinator during the performance of his or her duties, so long as the parenting coordinator is acting within the scope of his or her duties and the act or omission is not willful or wanton.

Similar language has appeared in statutes and legislative declarations in Colorado previously. For example, the 2005 version of the legislative declaration for Colo. Rev. Stat. §§ 14-10-116 and 14-10-116.5 2005 provided:

The general assembly hereby finds and declares that, due to the need to continue to encourage court appointments of persons to serve the best interests of children in domestic relations proceedings involving the allocation of parental responsibilities, it is the intent of the general assembly that quasi-judicial immunity continue to be granted for a child and family investigator acting within the course and scope of an order of appointment pursuant to Colorado case law.

This statutory language merely codifies what is already in case law (that quasi-judicial immunity applies to court-appointees, but only if they are acting within the scope of their appointment). See Short by Oosterhous v. Short, 730 F.Supp. 1037 (D.Colo. 1990); Awai v. Kotin, 872 P.2d 1332, 1336 (Colo. App. 1993); Snell v. Tunnell, 920 F.2d 673, 686-87 (10^th Cir. 1990); Meyers v, Contra Costa County Dep’t of Social Services, 812 F.2d 1154, 1157 (9^th Cir. 1987); Cok v. Cosentino, 876 F.2d 1, 3 (1^st Cir. 1989).

I might even argue that the "willful and wanton" language here (found in other statutes, like the Colorado Governmental Immunity Act) is helpful to parents, because it provides an exception for outrageous conduct (like much of what we write about on this Web site) that may not currently be recognized by the current applicable case law.

Interestingly (to me, anyway), the Executive Council of my Bar Association's Family Law Section has previously voted against passage of such a bill (click here).¹

______________________________
¹ The Chair of the Executive Council is David Littman, a fan of this site.

Mar. 12, 2009 - KnowYourCOurts.com exclusive - Denver divorce lawyer, Madeline Wilson, to be  indicted for perjury?

Looks that way, depending only upon a minor turn of events yet to occur.

This is another story about our KnowYourCourts darling, Madeline Wilson, a story that I've been sitting on since early December of 2008. I happen to have all details because I also happen to be the "victim."

For context, I invite you to first read my feature article, "The Sacred Oath: An outdated pro forma rite?" (Click here and then select Feb2009 link). And, consider this passage from Perkins & Boyce. (1982) Criminal Law, 3d ed. (p. 510) New York: Foundation Press:

The social interest in the integrity of a sworn statement in a judicial proceeding was well recognized before such statements made elsewhere were either common or thought to be matters of much importance. Hence, common-law perjury was limited to the false oath in a judicial proceeding. The penalty was "antiently death; afterwards banishment, or cutting out the tongue; then forfeiture of goods; and now [in Blackstone's time] it is fine and imprisonment and never more to be capable of giving testimony." It was one of the leading representatives of the so-called crimen falsi and the disqualification to serve as a witness was added rather to prevent the introduction of evidence thought not entitled to credence than as an additional penalty. Thus, in the maturity of the common law, perjury was a misdemeanor, although it carried the brand of infamy.

Times have changed

Today, as a society, we no longer  cut out the tongues of perjurers. Usually, we don't prosecute them at all, ostensibly because of competing priorities (i.e., other crimes of more pressing urgency and social harm). And, if the perjurer is an attorney, our courts punish the victim who reports the crime and rewards the attorney-perjurer (see my March 5^th entry, below).

On December 3^rd 2008, I first reported to the Arapahoe County district attorney the false sworn statements in an affidavit executed by Wilson on September 24, 2008.

We received Wilson's affidavit attached as an exhibit to her Special Appearance, and had one not been aware of her personal and inappropriate involvement in the case, one would have thought it was a boilerplate special appearance affidavit designed to refute the statutory requirements with the intent of defeating a Texas Court's jurisdiction of an out of state resident.

Although the statements were contrary to the actions she had taken in the Colorado and Texas proceedings, Wilson's sworn statements could not be directly contradicted by any physical evidence that we had in our possession at that time. After the Texas Court's ruling on the special appearance, we were able to obtain a number of emails between Madeline and her former client which directly conflicted with her sworn testimony. Many of these you will find attached as exhibits to my Contempt Motion (filed in Colorado court) and other recent pleadings found here.

Before I continue, I will pause here to mention that it surely must offend any reasonable person's sense of right and wrong when a lawyer (in Colorado) tells her client (who is in Texas) what to do (obtain a restraining order); how to do it (tell them he has threatened you and you are in fear of him) and how to use it (and take that restraining order to the child's school . . . ). Further, the emails suggest that she may have spoken with the child's school district and established conclusively that she was aware of the child's whereabouts.  Wilson's affidavit consisted of statements that directly conflict with the facts as we now know them and as she knew them at the time that she executed the affidavit.

Unfortunately, the affidavit was taken as true by the Texas court and used to defeat jurisdiction. As a direct and proximate result of the erroneous content of her sworn affidavit, and to some extent that the fact affidavit came from an officer of the court, Wilson has not (yet) had to answer for her conduct in Texas.

Doubtless, family law attorneys reading this blog are all too familiar with witnesses falsely testifying under oath - they didn't have an affair; there are no other financial accounts; or that they have disclosed all of the assets. You have come to expect that some people do not take their oaths and sworn testimony seriously. Perhaps, you assume when preparing for a proceeding that the opposing party\witness will not tell the truth, but know that justice will be served through the court's ability to hold them accountable for their false testimony by way of the court's orders.

Unquestionably, Wilson made deliberate, false statements under oath, and used those statements to obtain a favorable ruling on her special appearance. In my opinion, but for those false statements, the Texas court would have had no choice but to deny her special appearance. And, obviously, Wilson was aware of what needed to be placed in the affidavit to defeat jurisdiction and she was aware of the content of her communications with Ms. Ryan. The disparity between the affidavit and facts are significant and and intentional.

These same facts were investigated and corroborated by Tom Malone, an investigator in the 18^th judicial district. Malone certified his findings to the District Attorney on or about January 12, 2009, whereupon the task fell to Chief Assistant District Attorney Leslie Hansen to research the applicable law.

Under Section 18-8-502, a person commits perjury in the first degree if, in any official proceeding, he knowingly makes a materially false statement, which he does not believe to be true, under an oath required or authorized by law. Perjury in the first degree is a class 4 felony.

I alleged that Wilson's false sworn statements included that:

• Wilson has not engaged in any business in Texas, including any acts constituting “business” within the meaning of Tex. Civ. Prac. & Rem. Code § 17.042;


• Wilson has not committed any tort in whole or in part in Texas;


• Wilson has not represented any Texas residents in litigation or transactions in the State of Texas;


• All of Wilson’s actions undertaken in connection with Christy Ryan occurred in Colorado; and


• Any attorney-client relationship between Wilson and Ryan was initiated in Colorado and that she remains her attorney in an ongoing matter related to the Colorado custody proceeding.

Today, I learned that Ass't D.A. Hansen is inclined to withhold an indictment at this time because of the issue of materiality. Under Section 18-8-201 (definitions), a "'Materially false statement' means any false statement, regardless of its admissibility under the rules of evidence, which could have affected the course or outcome of an official proceeding, or the action or decision of a public servant, or the performance of a governmental function."

Hansen reasoned that, because the Texas judge was presented with the evidence of the false swearing (but, after he had already granted Wilson's Special Appearance), and that he did not set the matter for hearing, the Motion presenting the new evidence is deemed denied and, therefore, the false statements were not material to the granting of the Special Appearance.

I submitted a memorandum of of law to Hansen, arguing that the "could have" (rather than "would have") language of the statute was permissive and did not require that the statements must affect the outcome of the proceeding. I also argued that an objective standard should apply (i.e., would Texas law ordinarily require a different outcome from any trial court concerning substantially similar fact situations), rather than a subjective standard (i.e., would this particular Texas judge have rendered a different decision, when presented with this evidence).

Although Hansen has not rendered her final decision, it is my impression that she will not bring an indictment out of concern that the materiality element is problematic to try, which decision is doubtless based on her experience. See People v. Onorato, 36 Colo. App. 178, 538 P.2d 898 (1975) (The people have the burden of proving "materiality" of a false statement and that element may not be presumed).

However, Hansen did remind me and my Texas attorney that perjury in Colorado has no statute of limitations. Therefore, if we are able to procure findings from a Texas court¹ that the false sworn statements were material in the granting of Wilson's Special Appearance, the materiality element will be conclusively established and the indictment will be brought.

______________________
¹ E.g., in our imminent Sutphin v. Tom Arnold Drilling contempt proceeding; or in an action for mandamus (because an interlocutory appeal, which can normally be taken from the granting or denial of a special appearance, is not available in Texas "family law" cases); or by filing a Motion to sever and prosecuting an ordinary appeal on this limited issue; or waiting until the conclusion of the case and taking an ordinary appeal. Because the case law is clear that the fact situation present here required that the court deny Wilson's Special Appearance and exercise jurisdiction over her, our chances of success on appeal are not bad.

Mar. 12, 2009 - Missing/altered court transcripts and records: Myth or reality?

I often hear claims of court transcripts being intentionally lost or, worse, altered. In most instances, the complainant has nothing but his or her recollection to swear upon oath that the transcript was modified to conceal some travesty of justice.

Without evidence, I take most such claims with a grain of salt.

So, I was interested when an article appeared last week in The Boston Globe concerning a slew of missing tapes of civil and criminal trials.

Here in Colorado, we had a number of cases where the transcripts were unavailable because of an ailing court reporter, Valeri Barnes, whose notes were "idiosyncratic," and other "reporters could not complete the necessary transcripts without her assistance." (Click here). In 2003, retired Supreme Court Chief Justice Anthony Vollack was appointed to "oversee" the cases on remand. Id. The delays amounted to about five years.

But it's the missing or altered transcripts or records that we would never have heard about, but for this Web site, that I find interesting. Take, for example, the case of Marriage of Patterson & Monk (district court, Boulder County).  A December 3, 2007 order reveals:

The contents of the court's file have traveled back and forth between the district court and the court of appeals. In these travels, all prior CFI (formerly special advocate) reports have vanished. To the extent counsel refer to prior evaluations and reports in their pleadings, they should know that I do not have them.

Mar. 10, 2009 - Houston Chronicle to apologist-attorney of federal judge who pleaded guilty of obstruction of justice: "Cry us a river. Your weepy tune is off-key."

That pithy prose and more you'll find in this latest Houston Chronicle, "Punish Judge Kent: Rogue jurist should be impeached."

Mar. 10, 2009 - Wife of convicted con-artist judge: Being a public official may make you a target, but should not "make you a trophy."

That's the word out of Erie, Pennsylvania, where a former state Superior Court judge, Michael T. Joyce, was sentenced to serve three years and ten months in federal prison for defrauding two insurance companies of $440,000 in 2002. The U.S. Attorney's Office argued that the presumptive sentence should be enhanced because Joyce was a judge when he committed the offenses (thank you). The request was denied.

However, Joyce --aged 60-- was also ordered to serve three years of supervised release, after he finishes the prison term, and to pay restitution and forfeit his house and motorcycle, which he was accused of buying with the $440,000. Read full story.

Mar. 7, 2009 - KnowYourCOurts.com exclusive - First Judicial District cited for use of attorney fee "fines" in contravention of statute as means to prevent pro se participation in litigation

Of course, if you follow this blog, you must know by know that lawyers and judges do not appreciate well-prepared pro se litigants. (It's much easier to dispatch the inept pro se litigant by reasoning that he must be held to the same standard as lawyers and that his prolix arguments are incomprehensible).  They are moved to clandestine fits of anger when a non-lawyer (like me) can play their game with equal or even superior skill in brief-writing or oral argument. It's not a frequent occurrence for them, but it does happen.

When intellectually matched by a pro se litigant at their own game, judges have a trick: they change the rules in the middle of play, because --after all-- they can (see my footnote to the March 5 entry, below). And the attorneys who've been beaten while playing by the game rules usually can count on those certain judges to change the rules to benefit them, also, thereby preserving the status quo ante (restore things back to the former equilibrium).

In fact, I have documented numerous instances of such conduct from various parties' cases on this site, such as procedural rules that are enforced hyper-technically against the pro se party, but relaxed for members of the bar.

Fully aware of the conclusory nature of my statements, allow me offer just a few anecdotal examples from my own cases that come immediately to mind:

The standard for pro se litigants

• When opposing party (in this example, the State) filed a Motion to Dismiss, I never received a copy in the mail. As a result, the judge (James Zimmerman, First Judicial District) granted their Motion (without regard for the substance of it) as "confessed for a failure to deny." When I alerted him of my non-receipt and asked for the opportunity to respond, he stamped DENIED on my request to be heard.
  
  
• In September of 2003, I had filed a Motion in the First Judicial District court in 99DR3717. I mailed a copy of the signed Motion to the court. I produced that copy using the [copy] function of a fax machine. On 10/29/2003, First Judicial District Judge Jane Tidball issued an order striking my Motion, falsely claiming that "all documents filed with the Court must be the original document. The Reply is a facsimile copy and not the original. The Respondent's signature is not an original and therefore the Court cannot accept the Reply as an original pleading." She also awarded attorney fees against me for responding to "a motion that did not comply with the Rules of Civil Procedure." At that time, Rule 121 (district court practice standards) permitted faxed pleadings. To have [wrongly] surmised that the Motion was faxed, it had to have been subjected to a magnifying glass to make out the pixelation of the signature.¹ Of course, it was simply a pretext to prevent me from being heard and fining me.
  
  

  The standard for attorneys
  
  

• In 07CA0379, when attorney Madeline Wilson failed to file a response to my Motion to Strike, what do you think the Court of Appeals did?  Did it grant my Motion as "Confessed for failure to deny?"  Certainly not.  When the time for filing a response had passed,  it issued an Order directing Wilson to file a response giving her an unsolicited additional 14 days.



• In 06-1418, when the State failed to make an Entry of Appearance by the deadline, what did the Tenth Circuit do?  It issued a courtesy reminder to the State's attorney, giving her an unsolicited additional ten days.



• On or about October 9, 2008, I filed a Motion in 99DR3717 in the First Judicial District Court.  Forty-two (42) days later, Madeline Wilson's attorney filed his response.  The time for filing a response is fourteen (14) days.  Although I pointed this out to the court, First Judicial District Judge Jack Berryhill omitted any mention of it in his recent order awarding Huff  attorney fees for filing his inept response, which he had filed in nearly three times the time allowed under the rules (and without leave to do so).

“Lest the citizenry lose faith in the substance of the system and the procedures we use to administer it, we can ill afford to confront them with a government dominated by forms and mysterious rituals and then tell them they lose because they did not know how to play the game or should not have taken us at our word.²

To put this latest matter into some perspective, I recall that I had sent a copy of my Contempt Motion concerning Madeline Wilson to my Texas attorney.  After reading it (and, because he's so busy, it's difficult to get him to read anything), he mentioned in passing (I didn't bring it up) that he thought it was "Excellent work."

Later, when arrived in Texas for the holidays and stopped in to visit, I learned that he had shared that Motion with others in the office.  One august attorney walked up and said, "Is this the feller that wrote that Motion?  There was some good shit in there!" referring --I assume-- to the computer forensics aspect of it.  He then wanted to know how long I've been "practicing," and whether I belonged to a large firm or solo practice.

That Contempt Motion is among those that Judge Berryhill has "found" was substantially frivolous, substantially groundless and substantially vexatious.

I won't bore you with my technical legal arguments in a Rule 59 Motion that I just filed, but of possible interest to you, I revealed:

The First Judicial District Court has established a pattern of using baseless attorney fee awards to silence pro se litigants and prevent them from participating in the adjudicatory process (except to the extent that they are expected to be subject to and obedient to its orders). This pattern is well-established in this case dating back to the year 2000.1 Several instances were caught in an appeal from another case in this district (Marriage of Spofford, (Colo. App. Nos. 06CA0299 & 07CA0077, February 7, 2008) (not published pursuant to C.A.R. 35(f)). The pattern reveals a profound disrespect by certain judges of this district for the intent of the General Assembly, and is an example of the exercise of their will rather than judgment. The practice and policy violates the Constitution’s First Amendment’s Petitioning clause and the Due Process clause. _________________________ 1 Just one instance (of dozens) in this case was caught in Marriage of Harrington, (Colo. App. No. 07CA0379, May 29, 2008) (not selected for publication pursuant to C.A.R. 35(f)) (Harrington IV)

I also noted:

Although this Court has many powers, it cannot delete Madeline Wilson’s emails or undo her actions or erase her pattern of conduct, which became an indelible part of the record long ago.

__________________________
¹ See for yourself how much effort is required to discern that the signature appears to be a fax signature; note that there is no fax header or footer on the pleading.
² Moore v. Price, 914 S.W.2d 318, 323 (Ark. 1996) (Mayfield, J., dissenting).

Mar. 5, 2009 - KnowYourCOurts.com exclusive - JeffCo's Judge Jack Berryhill rules that a divorce attorney's aiding and abetting concealment of a minor child in violation of law and court orders, perjury, and violating Rules of Professional Conduct is not "fraud or malicious conduct." Judge also rules that court-appointed CFIs are not accountable for their conduct.

The allegations and evidence of attorney misconduct reviewed by Berryhill were contained in a Contempt Motion (here). The allegations and evidence concerning a court-appointed CFI were contained in, among other documents, a Motion for Summary Judgment (here).

It must be awfully difficult for a judge to write an order that he knows is completely contrary to law, yet he must do so to achieve some nefarious purpose that the law cannot allow. He must be able to misrepresent facts and overlook others.¹ When binding precedents direct an outcome, he must be able to misrepresent the law or claim that it does not apply or ignore that it exists.² When the statutes enacted by the legislature prescribe an outcome, he must be able to find some discretion that allows him to disregard them. Most of all, he must write his in such a way that has the appearance of legitimacy.

That task fell to Jack Berryhill, a judge of the First Judicial District Court, who crafted his ruling to redeem Colorado's divorce industry, redeem Judge Jane Tidball, reaffirm the bench's tolerance of attorney misconduct (no matter how atrocious), and send a strong message to pro se dissenters.

Those who follow this blog and are already familiar with Bill J. Fyfe, Madeline Wilson and Jane Tidball will understand the import of Berryhill's order (here). An appeal (the fifth) is already in the works. Of course, we all strongly suspected this outcome, so it's not really a surprise.

I admit, however, that I was holding out on a little bit of hope that this judge's respect for the Rule of Law might outweigh whatever personal prejudices exist against me from the First Judicial District. As is often the case, my expectations were too high.

______________________________

¹ See, e.g., Monroe Freedman, 128 F.R.D. 409, 439 (1989) ("Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules") (excerpted from speech to the Seventh Annual Judicial Conference of the United States Court of Appeals for the Federal Circuit (May 24, 1989)); Gennaioli & Shleifer, Judicial Fact Discretion (October 2006) ("Judicial fact discretion is defined as misrepresentation in a judge's decision of facts revealed in a trial . . . judges engage in fact discretion to promote their own agenda");  Hon. Richard Posner, Judicial Behavior and Performance: An Economic Approach, 32 Fla. State Univ. L. Rev. 1259 (2005) ("one expects that personal factors —such as political or ideological concerns personal to the judge rather than embodied in the law, the kind of intellectual laziness that consists of acting on intuition rather than on analysis and evidence, and the delights of tormenting the lawyers that appear before them— will play a larger role in federal district judges’ decisions"); Mark Tushnet, Taking the Constitution Away from the Courts (1999) at 155-56 (Judges typically embrace a desired result and then select whichever theory plausibly permits them to reach that result); Karl Llewellyn, The Common Law Tradition: Deciding Appeals (1960) at 133 (discussing judges "manhandling of the facts of the pending case, or of the precedent, so as to make it falsely appear that the case in hand falls under a rule which in fact it does not fit, or especially that it falls outside of a rule which would lead in the instant case to a conclusion the court cannot stomach"); William L. Reynolds, Who are the Juristocrats? Guerrila Warfare Among the Courts (March, 2005) ("judges . . . manipulate the fact-finding and opinion-writing processes in various ways . . . they twist or thwart the controlling authority in order to reach the desired result."); Hon. Terry Lewis, "Judicial Independence, judicial accountability and activist judges", The Tallahassee Democrat, (Nov. 21, 2007) (discussing judicial conduct, "demonstrating a willingness to ignore legal precedent and principles in order to reach a desired result"); Hon. Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. Chi. L. Rev. 1371, 1374 (1995) ("I have seen judges purposely compromise on an unpublished decision incorporating an agreed-upon result in order to avoid a time-consuming public debate about what law controls. I have even seen wily would-be dissenters go along with a result they do not like so long as it is not elevated to a precedent").
² Id.

Mar. 5, 2009 - KnowYourCOurts.com exclusive - Colorado's attorney regulation immerses itself in family court reformers' rivalries

As noted repeatedly throughout this blog, our Attorney Deregulation Council will not enforce the Rules of professional conduct against attorneys, when the complaints --notwithstanding the unambiguous language of Rule 251.9-- fall outside the narrow scope of the four exceptions I've previously articulated. ¹

However, the agency does always seem to budget time for selective persecution. A repeat casualty of that selective persecution is Suzanne Shell, who was sent a demand notice on the complaint of Tom Dutkiewicz and concerning a pending federal lawsuit (here) in which Dutkiewicz is a defendant.

Dutkiewicz appears to argue that Shell is practicing law by representing the interests of "Family Rights Advocacy Institute," a non-profit corporation (which I suspect Shell is probably the sole proprietor of).

A simple Google query on the name of "Dutkiewicz" and "Suzanne Shell" reveal that the two have long quarreled quite vituperatively over many topics. One would think that the OARC would have better things to do (like discipline of attorneys, who actually harm the public).

But, after reading the Westword article about the OARC and Shell (Alan Prendergast, Beyond Contempt: The Child-Protection System Wants to Shut Down Family-Rights Activist Suzanne Shell, Westword (Feb. 10, 2005)), I'm not surprised.

_____________________________
¹ Recall Harrington's axiom of lawyer discipline in Colorado, which is that the Attorney Deregulation Council will not enforce the Rules of Professional Conduct, except in four situations:

• (1) the respondent-attorney falls behind in child-support;
• (2) there is a fiduciary relationship between the complainant and respondent-attorney;
• (3) there is a political animus behind the prosecution (e.g., the ongoing Brennan matter); or
• (4) there is considerable media attention *and* the facts would warrant discipline under the rules.

Mar. 4, 2009 - How to flush out an establishment despot

Actually, there's no trick involved. They can't help themselves.

Consider this example:

A couple of days ago, I posted a comment on the bulletin board for the Texas District and County Attorneys Association. I was posting to a thread where the specious State Bar of Texas Office of Thief Disciplinary Counsel is scouting for lawyers to persecute. Here's my comment:

State Bar of Texas Office of Chief Disciplinary Counsel I take exception to this sophistry, to put it mildly. My experience is that the OCDC persecutes only when, notwithstanding the rules: (1) a respondent-attorney is behind in child support; or (2) there’s a political animus; or (3) there’s media attention and facts would ordinarily warrant discipline; or (4) there was a fiduciary duty owed by respondent to complainant. See http://knowyourcourts.com/Wilson/TexasStateBar.htm I wish only that the atmosphere of zealous prosecution ordinarily applied in criminal cases was also present in regulation of the bar.

The post generated quite a bit of [additional] traffic to KnowYourCourts.com over the last three days.

However, Shannon Edmonds of the Texas District and County Attorneys Association and administrator of the forum appears not to have very thick skin:

It's good to be the judge quote: ------------------------------------------------------------ -------------------- Originally posted by PeteSmith: I take exception to this sophistry ------------------------------------------------------------ -------------------- Objection overruled. For others considering flaming this thread in the future: Welcome to the TDCAA Bulletin Boards. The discussions in these user forums are for the benefit of prosecutors and their staff members, although we welcome relevant and appropriate input from other members of the criminal justice and government lawyer community. These forums are NOT a source of legal advice for citizens. Call the State Bar of Texas (1-800-204-2222) for information on seeking legal advice.

Mr. Edmonds, I don't need any legal advice from you. And I certainly wasn't giving any (if you think I was, file a complaint with your UPL committee --you probably know some folks on it, anyway). However, I will give some practical guidance: ignore Edmonds' suggestion and avoid calling the State Bar of Texas (unless you enjoy being lied to). And, Shannon, welcome yourself and your OCDC colleagues to existence under the KnowYourCourts.com magnifying glass. (See my Feb. 27^th entry, below).

Mar. 3, 2009 - Base, vile and depraved: Attorney DISBARRED for "false swearing"

Rest easy Colorado attorneys, it didn't happen here. No, unless you piss off someone at the OARC (or they're paying someone a favor, as they appear to be doing in the pending Brennan matter), it's permissible to submit false statements of material facts in an affidavit executed in Colorado (Click here and select Feb2009 article).

Rather, this matter transpired in Indiana, where attorney Robert E. Lehman was disbarred for "false swearing" by "willfully understating his income under penalties of perjury on federal income tax returns."

Mar. 3, 2009 - U.S. Supreme Court considers new rule on judicial bias

A USA Today story begins, "As the Supreme Court heard an important case about judicial independence Tuesday, justices appeared open to crafting a rule that could lead elected state judges to disqualify themselves from disputes involving big donors."

This is one of many, many articles on this developing story. I will write more about it later, as I learn more and whether it has any implications in Colorado.

Mar. 3, 2009 - Bloggers doomed The Rocky Mountain News ?

A dubious claim.  But, you read the article and decide for yourself.

Mar. 2, 2009 - Denver ticket-fixing scandal quietly resolved

March 6, 2009 Update: I received an email this morning from a reporter, who had passed on our coverage regarding the Denver traffic ticket fixing incident (below) to an affiliate, CBS4News (here) and, which was later picked up by Colorado Law Week Online (here).

---

With little fanfare, a public censure was approved for [former] Denver Assistant City Attorney Dani Eliscu for conferring with a police officer about her fiancée's traffic ticket "without adequate reflection or concern about her position as a public official, and without adequate care for the effect talking to the officer would have on the administration of justice" (a poorly-executed circumlocution for 'fixing a traffic ticket').

Our Ken Smith wrote about this extensively on this site here (see May 13, 2008 entry).

This is the same dame who received a written reprimand in 2007 for flashing her badge at a Denver animal control officer during a confrontation over an untagged dog. "We are all on the same side. You're sure you can't give me a break?" she was quoted as saying.

Remember my axiom of lawyer discipline in Colorado, which is that the Office of Attorney Deregulation Council does not enforce the Rules of Professional Conduct, except in four situations: (1) the respondent-attorney falls behind in child-support; (2) there is a fiduciary relationship between the complainant and respondent-attorney; (3) there is a political animus behind the prosecution (e.g., the ongoing Brennan matter); or (4) there is considerable media attention *and* the facts would warrant discipline under the rules.

Obviously, this situation falls under situation #4, above.

If we are to believe anecdotes from one former Denver county & district judge, Ed Simons, ticket fixing (or attempts) is not uncommon (click here).

Further reading:

• Denver Officer Admits Fixing Ticket for Prosecutor (CBS4 News, May 12, 2008)
• City lawyer quits; cop punished over fixed ticket (The Denver Post, May 14, 2008)
• Facing leash-law ticket, ass't city attorney accused of flashing her badge (Rocky Mountain News, March 1, 2007)

Mar. 2, 2009 - Program note

Today and tomorrow, I will be attending as a panelist for an ISLET (Investigative Sciences for Law Enforcement Technologies) workshop. Posts will appear in the evening.

Mar. 1, 2009 - Naming of Extravagant new Justice Center Stymied by racist bickering

You and I may be worried about how to keep our jobs (or find the next job) or how to make our next mortgage payment, but our judges and civic leaders are bickering about how to name the extravagant new justice center. There's been substantial news coverage over the topic in the last few months. The latest is here.

Feb. 28, 2009 - A.G. Suthers says, "Something strange is going on over [at the Colorado Supreme Court]"

As reported by Face the State (here), Colorado's Attorney General speculated about whether Chief Justice Mullarkey, "one of the court's staunchest liberals," is holding up a decision because she is attempting to persuade fellow justices to support the Democrat-championed 2007 Senate Finance Act.

Feb. 28, 2009 - "Lest Ye Be Judged: Does America need protection from it's out-of-control judges?"

That's not my contrivance, but the title of an article appearing in Newsweek and

“While Americans of every stripe worry and bicker and advocate for greater control over the judiciary, whether it's in the family courts, state Supreme Courts, or at the highest court in the land, what the judges hear for the most part is the sound of crickets chirping.

Slate.com by Dahlia Lithwick.

She asks, "Who is watching over the judiciary? Why do we give our judges such extraordinary power over our lives and then leave them to police themselves, until and unless they break the law in hideous ways? . . . How can the people can have confidence in the integrity of justices who answer to nobody?" 

I'm not sure I like her quasi-answer, but you may find her article here.

Feb. 27, 2009 - family court complaint pending Colorado Commission for the Abolition of Judicial Discipline worth a second look

A KnowYourCourts.com contributor contacted me earlier today and supplied a copy of a "family court complaint" recently filed with the Colorado Commission for the Abolition of Judicial Discipline.¹ Because, complainant argues, the grievance does not seek a change of orders, the complainant contends that it "clearly is not 'appellate in nature.'" Complainant considers this matter an opportunity to learn whether the new executive director takes the responsibility of the office seriously, noting that --before today-- about 99% of complaints filed with the Commission are dismissed and described as "appellate in nature."

In addition, the anonymous contributor has again called my attention to Section 13-5.5-105(1)(e), passed last year, regarding District Performance Commissions to add small measure of "oversight" to the family court system. (And see my Feb. 9^th blog entry, below). The contributor suggests that future legislative proposals should include a provision requiring recusal motions filed in domestic relations be forwarded to the Chief Judge and the District Performance Commissions for review.

_______________________
¹ Upon receipt of the complaint, I amended it slightly as to formatting and font prior to posting. However, the complainant (not I) omitted dates, names and other case identifying details.

Feb. 27, 2009 - KnowYourCourts.com expanding geographic scope

Last week, I received an email from a Texas attorney regarding the State Bar of Texas Office of Thief Disciplinary Counsel. Let's call him "Joe":

Sean;

I completely agree with the selective prosecution part. My experience is that the local grievance committees will go after [certain lawyers] but gives a pass to . . . well connected [lawyers]. I also agree they will retaliate against whistle blowers.

. . .

One of my ideas for getting some of this information out to the public is to simply publish the unpublished opinions of the local grievance committees along with a copy of the allegations. That way serious researches can see what facts the local grievance committees regard as disciplinary violations, what facts they don't.

Sounds like a guy with same vision I had, which led to the creation of this Web site.

Joe continued:

I have made, and have assisted others to make, complaints based on attorney conduct that is normally considered to be a disciplinary violation, only to have the local committee dismiss the complaint as an "inquiry" with the comment that the complaint does not state a disciplinary violation.

The flip side is where the local committees vigorously prosecute conduct that is not a normally considered a violation.

If you are studying law, you are no doubt familiar with the concept of a motion to dismiss for failure to state a cause of action. These are often based on prior cases holding that certain conduct does not constitute an offense . . . there are two problems with not publishing dismissal opinions. One is that lawyers accused of disciplinary violations are deprived of access to a large body of opinions that establish the conduct does not constitute a violation. The other is that it opens the door to secret favoritism when the committees fail to prosecute lawyers who have clearly violated disciplinary rules.

I have the ability to obtain and scan complaints, evidence, and unpublished opinions into a computer. But I would need help with publishing that information to a website that would be readily accessible to the public.

Look forward to hearing back from you.

Sounds like Joe is one of the few attorneys who understands First Amendment freedom.

The next day, a non-attorney wrote me:

Dear Mr. Harrington: Thank you for your excellent website, KnowYourCourts.com. I stumbled upon it through a Google search and am very glad I did! My grievance against a Texas attorney has been dismissed as an "inquiry," by means of an objectionable form letter which (as you know) tries to tell you that you have the information you provided "does not allege a disciplinary rules violation." The Client-Attorney Assistance Program at the State Bar of Texas is also a fraud. They hold themselves out as an source of help for complainants, but they are only a front for the establishment. Those representatives there are actually the worst, it seems, in that the "grievance counselors" tell you exactly what's on their website, i.e., "After your grievance is received, it is reviewed by the Chief Disciplinary Counsel's Office to determine whether it alleges a violation of the Texas Disciplinary Rules of Professional Conduct." To a non-lawyer, this means if you allege a RPC violation and show solid proof of it, the grievance will then be classified as a "complaint." But the truth is that the classification attorney is going to hold this to a[n impossible] standard. The CAAP does not tell you that you will have to prove your allegations of RPC violations, to the satisfaction of the classification attorney; they tell you only that "if your grievance involves a Rules' violation, it will be classified as a complaint." Legal double- talk which brings the profession into disrepute!

Therefore, just today, I extended an invitation to the newly appointed Chief Regulation Counsel in Texas, to wit:

Ms. Acevedo:

Congratulations on your recent appointment as Chief Disciplinary Counsel. Your past career achievements and academic accolades doubtless qualify you well for the important position.

I run a Web site, KnowYourCourts.com, that has developed a reputation of credibility within the blogosphere and is respected by traditional journalists and, to some extent, respected (or loathed) by state agencies. An ordinary Google search of KnowYourCourts.com will corroborate the assertion.

The site is the fulfillment of a vision that I had, when I experienced first-hand the illusions and sophistry perpetuated by certain agencies and judicial systems around the country. My focus has primarily been in the state of Colorado and the federal judiciary but, recently, has unfortunately expanded into the state of Texas --specifically your agency.

I certainly realize that you're busy, but in light of the fact that my Web page about your agency (http:// www.knowyourcourts.com/Wilson/TexasStateBar.htm) usually ranks as #2 behind your own site, the public will receive at least some of their information from my Web site. I therefore extend a cordial invitation to you to view that page, in particular, and to take under consideration the concerns and observations that I have expressly or impliedly conveyed.

Because the attorney disciplinary process exists not to punish the lawyer, but [rather] to protect the public and the integrity of the legal system, I extend to you an invitation for continuing dialogue.

. . . with kind regards,

Sean L. Harrington

I believe that I may have received my response. Almost immediately, Ms. Acevedo (or her assistant) visited this Web site and viewed several pages. Moments later, however, when I attempted to send a very brief P.S. to my communiqué, I received the following message delivery error: Message not sent. Server replied: Transaction failed 554 : Recipient address rejected: Policy Rejection- --SENDER_QUOTA_REJECTION--

Upon information and belief, this was not an error produced by my Dreamhost SMTP server, but more likely an error produced by my address being placed on Acevedo's blacklist.

Feb. 27, 2009 - Piercing the 'Veil of Anonymity: Take care with your comments

A few recent or pending lawsuits (see links at the end of this post) indicate that Internet users who post defamatory, libelous content may not be able to hide behind anonymity.

Here in Colorado, attorney Arthur Porter unsuccessfully attempted to overcome the anonymity in Bizub v. Paterson. He might have prevailed, if only he had properly followed through. And readers may recall that Larimer County D.A. Larry Abrahamson charged a man with "criminal libel" under C.R.S. § 18-13-105 over posts he allegedly made on Craigslist's "Rants and Rave" section. (See my Dec. 3^rd entry, below).

On this Web site, I go to considerable lengths to support factual assertions with documentary evidence and to qualify opinions as opinions (not fact) or to flag scathing invective as a rhetorical device (e.g., hyperbole). These measures notwithstanding, this site is protected by heightened First Amendment protections as journalism and consumer advocacy addressing matters of public concern. Moreover, content authored by third parties and posted here does not create defamation liability for this site under the Communications Decency Act.

However, those who submit comments for posting here and those who post on forums (such as The Denver Post, Rocky Mountain News, and The Gazette) should take care to understand their obligations --not to self-censor from fear-- to discern between assertions of fact and opinion and between substantial truth and reckless disregard for the truth.

Further reading:

• Model to NY judge: Make Google ID blogger, The Associated Press (March 11, 2009)
• Marc Fisher, Internet free-for-all promises an ongoing test of free speech, The Washington Post (March 10, 2009)
• David L. Hudson, Jr., Md. high court sets legal standard for outing online foes, First Amendment Center (March, 03, 2009)
• Aaron C. Davis, Media Need Not Reveal Web Posters' Identities, The Washington Post (Feb. 28, 2009)
• Ki Mae Heussner, Lawsuit Cracks Open Online Anonymity, ABC News (Feb. 27, 2009)
• Tracy Frazier, You Read What About Me on the Internet?!: Anonymous Online Libel, theLegality (Feb. 26, 2009)
• Federal District Court Mandates the Disclosure of the Identify of Online Posters in Yale Law Student Case, Internet Defamation Law Blog Sep. 22, 2008)
• Kevin F. Berry, How to Unmask an Anonymous Blogger, Law.com In-House Counsel (Apr. 4, 2006)
• First Amendment Center
• Electronic Frontier Foundation
• Public Citizen
• Citizen Medial Law Project

Feb. 26, 2009 - Nottingham's friends in low places

In a Rocky Mountain News article, Getting on high court docket no easy task: Opinions mixed on case landing before justices, published today, a professor of business ethics and legal studies at the University of Denver's Daniels School of Business, John Holcomb, had nothing but praise for the former judge, Eddie Nottingham.

Holcomb praised the latest Tenth Circuit [sharply divided] opinion, noting that the majority "even adopts some of (trial) Judge (Edward) Nottingham's language that the defense report to qualify (Daniel) Fischel as an expert witness was 'woefully inadequate' or 'woefully insufficient.' It is clear from the majority opinion that any mistakes made were by defense counsel and not by Judge Nottingham."

Actually, professor, I think you meant "Mr. Nottingham."

I wonder what relationship the esteemed professor has with the former judge, "Fast Eddie." It seems that Holcomb has been interviewed numerous times over the past few years by the paper and has always given generous adulation to Nottingham. In another RMN article (here), Holcomb claimed that Nottingham was reversed only 14 times out of 108 appeals during his 17-year career on the federal bench, apparently overlooking cases that were "remanded" or where the Nottingham order was "amended" or "modified" (all of which are a form of reversal).

When asked by The Post about the then-ongoing ethical allegations against Nottingham, Holcomb reported, "He's been very, very busy despite his personal issues . . . He's written 121 orders and opinions since the Nacchio opinion, and I would say, in addition to that, his docket is very current, which means he is up to date. Whatever issues he has, they have not distracted him from getting his work done." (Click here).

So are these two former law firm buddies? Former law school buddies? Hang out together at Elway's?

Feb. 26, 2009 - "Edward W. Nottingham, LLC" open for business

This just in from a loyal tipster:

It appears that on December 1^st, 2008, articles of incorporation were filed for an entity, "Edward W. Nottingham, LLC." It appears that the filing was made by attorney John Moye.

According to the tipster:

Well I suppose Nottingham could be selling Amway. On the other hand, Edward W. Nottingham LLC is listed as his "firm name" on the current attorney registration with the Colorado Supreme Court. Also, both have the same address. I looked it up and it is a 1,400 sq. foot town house condo. There is a street view photo on Google.maps.

You'd think that if he was selling soap, he'd call his business "Eddie's Soap." I think he is setting up a law practice. What does he have to do to change his status from inactive to active?--Get a telephone and a fax machine?????

He knows dirt on other judges.

The tipster has made a salient point. Given that the Colorado Supreme Court Office of Attorney Deregulation Council has given Nottingham a free get-out-of-jail pass (see My Feb. 12¹² entry below), now's a great time to open up shop.

Feb. 23, 2009 - Program note

I will be traveling during the next three (3) days and will likely be unable to post content here (including, for example, Samuel Kent's resignation from the federal bench in Houston) until I return on Thursday.

Feb. 22, 2009 - Dennis Huspeni no longer works for The Gazette

An email returned reveals:

Dennis Huspeni no longer works for the Gazette. If you have a court-related story, tip or question, please contact staff writer Bill McKeown at (719) 636-0197 or bill.mckeown@gazette.com.

Huspeni's focus had been on the courts in Colorado Springs, where he covered many murder trials and other significant happenings. Just a few days ago, he published an article regarding a psychologist there who was just suspended and, which he learned based on documents found only on this site (here).

Feb. 21, 2009 - Dedicated attorney regulators in Colorado work Saturdays

I have learned the staff of our Colorado Supreme Court Office of Attorney Deregulation Council is working overtime and on Saturdays to protect vulnerable widows, orphans, and the down-trodden from incompetent and dishonest attorneys in Colorado.

I know this because someone using an OARC computer has paid visit to this site numerous times yesterday and twice today, according to Web traffic logs.

As I've pointed out previously (Dec. 3, 2008, below), I consider this significant in light of the fact that the OARC refused to view PDF files posted on this site, which contain evidence that a Colorado lawyer gave false testimony in certain affidavits and made false material statements in an official proceeding, because, "Due to concerns about computer viruses and security issues, this office avoids accessing questionable or unsecure websites." (Click here).

Having read these revelations, I've thought that the OARC would've promulgated an inter-office policy to refrain from visiting this site from a work computer (so as to avoid any further embarrassment in being caught red-handed in their lies), but I don't think some of their employees are capable of complying. For example, the Web traffic data indicates that, every couple of months or so, assistant regulation counsel Luain Hensel engages in Egosurfing, which invariably brings her to this site. According to Wikipedia, "Egosurfing can be used to find data spills, released information that is undesirable to have in the public eye."

Feb. 18, 2009 - Colorado Springs convict gets new trial because of attorney incompetence

Note: For context, see my Feb. 9^th entry (below) concerning attorney incompetence.

According to The Gazette, an attorney, who (like F. Maria Sinel, discussed in the Feb. 9^th entry) is now on the ever-convenient "disability inactive status" is responsible for setting aside a jury's verdict.

According to the judge, the attorney "completely failed to prepare for trial," failed to object to "inadmissible and prejudicial" evidence at trial, and also was drunk.

Read full story

Feb. 18, 2009 - Familial conflict of interest in 1st Judicial District courthouse?

KnowYourCourts.com has received "information" from an anonymous tipster that Anne Zubrinic, assistant district attorney (atty. reg. # 17324) in Jefferson County is the sister of First Judicial District Judge Jane Tidball.

According to the tipster, "Dave Thomas, who was Zubrenic's boss at the time, thought it to be true . . . The same story for several former DDAs."

According to the tipster, Zubrinic tried one or more criminal cases before Tidball, but Tidball didn't disclose the relationship or recuse peremptorily.

I've placed an inquiry with Scott Storey, First Judicial District Attorney, but haven't yet heard back. When I do and if I receive further information, I will update this particular post, accordingly.

Finally, based on my ascertainment of the tipster's identity, it appears that the tipster could potentially benefit politically from tarring Storey's office. Therefore, the information should be taken with a grain of salt until the facts can be confirmed.

2/21/2009 Update: Scott Storey emailed me this afternoon. Pertinent text of that email follows:

Sorry for my late reply to your inquiry. Anne Zubrenic is the sister of Judge Jane Tidball. I assure that Anne has never appeared in Judge Tidball's court for any reason and I confirmed that fact with her. I think this came from [an individual] who is well known to this office. If I am correct, please tell [that person] that I would be happy to discuss [] concerns . . . personally. Please let me know if you need additional information. Again, I apologize for not being prompt. Thanks, Scott.

Feb. 14, 2009 - So what if Burris committed perjury before the Illinois Blagojevich impeachment committee?!

First reported by the Chicago Sun-Times, Sen. Roland Burris admitted that former Illinois Gov. Rod Blagojevich's brother asked him for campaign fundraising help before Blagojevich named Burris as Illinois'' junior senator. "The disclosure reflects a major omission from Burris' testimony in January, when an Illinois House impeachment committee specifically asked if he had ever spoken to Robert Blagojevich or other aides to the now-deposed governor about the Senate seat vacated by Barack Obama." (AP).

State Rep. Jim Durkin, the impeachment committee's ranking Republican, told The Associated Press that he and House Republican Leader Tom Cross will ask Sunday for an outside investigation into whether Burris perjured himself.

I don't understand what's the big deal, really:  Just last week, the State Bar of Texas Office of Thief Disciplinary Counsel issued a form letter¹ in response to allegations by KnowYourCourts.com visitor Brian Kenny regarding a Colorado attorney (also licensed in Texas), who made false statements under oath and submitted false material facts during an official proceeding, that such conduct is not a violation of the Rules of Professional Conduct.

____________________________
¹ Why might I consider it a form letter? Compare the response, supra to this response, here (from another case) and here and here and here and here.

Feb. 12, 2009 - Colorado divorce attorney may face justice in Texas.

Last week (Feb. 5th), I interposed to readers a puzzler concerning what should be the next move in In the Interest of S.H., a minor child (No. 07-04-273, district court, Wise County, Texas).  I am not yet ready to post the survey results in particular because I want to wait until I reveal the answer that we have chosen.

Meanwhile, I conversed with the attorney from the Arnold Drilling v. Sutphen case, Henry Novak, of Austin, Texas.  He kindly provided a copy of the contempt Motion that he filed in that case back in 1999, and which was the basis for a very a settlement of the entire case that was very agreeable to his client.

The defendant in Sutphen was another Colorado defendant who submitted false statements under oath in order to avoid a lawsuit in Texas.  When his perjury was discovered, Novak drafted and filed a contempt Motion asking for, among other things, that the contemnor be fined $500 for each of the eleven (11) acts of contempt; that he be confined in the county jail for eleven (11) consecutive terms of six (6) months for each act of perjury; that contemnor be required to pay a Rule 13 fine of $50K; that his false, sworn oaths be certified to the grand jury for prosecution for aggravated perjury; and that  petitioner be awarded attorney fees of $40K.  A copy of Novak's Motion is here.

Feb. 12, 2009 - Oh no! Another attack on the Independence of the Judiciary! This time from an unlikely source: a group of 33 law professors, former state supreme court justices and practitioners.

Reportedly, the group is advising Congress, "the Supreme Court has gotten a little too big for its britches and it would be good for Congress to enact a law or two that says, 'You're part of an enterprise that we have some power over.' "

Read Law Profs, Former Judges, Attorneys Urge Major Reforms for Supreme Court

I would've thought such a quote was coming from a group of "disgruntled litigants." And I would've been wrong.

The group's proposed changes includes the regular appointment of justices and the involvement of appellate judges in the selection of cases to be decided on the merits.

In its cover-letter to legislative drafts, the group notes that Congress has given "scant attention" to the role and structure of the third branch since the "Court-packing" proposal of 1937.

Feb. 11, 2009 - KnowYourCOurts.com exclusive - Criminal investigation of former U.S. district judge, Edward W. Nottingham, in progress? 

That's what the Office of Attorney Deregulation Council would like to have us believe. Yesterday, I received notice that, pursuant to Disciplinary Rule 251.32, the attorney disciplinary matter against the former judge, Edward Nottingham, has been placed, "in abeyance."

Under Rule 251.32(g) (pending litigation), "All disciplinary proceedings which involve complaints with material allegations substantially similar to the material allegations of a criminal prosecution pending against the respondent may be . . . deferred until the conclusion of such prosecution."

Readers may recall that there was considerable speculation that there, "could be an obstruction-of- justice charge waiting to happen." Other journalists and commentators have conjectured about a wide assortment of other possible state and federal charges, ranging from tax-related to solicitation.

However, when I shared this information with a reporter who in is a position to know, the reporter commented, "That is unbelievable. I’m told the criminal investigation probably will never amount to anything and now this office is using the criminal investigation as an excuse not to investigate. Unbelievable."

No, not really. As I've well documented on this site, the OARC --an agency of the Supreme Court of this state-- is an instrument for fulfilling political favors (or retribution) and specializes in defrauding the public.

Feb. 11, 2009 - Not news: Pennsylvania judges accused of jailing kids for cash.

Read Judges accused of jailing kids for cash (AP)

Why didn't I write about this story (AP) last week when it was first called to my attention? It's been widely covered by the MSM and discussed on law blogs across the Internet. According to The Philadelphia Inquirer here, the two judges said they'd plead guilty to charges that they hid $2.6 million in secret payments from a juvenile detention center's owners and a construction contractor. The charges include allegations that the judges sent children to detention without informing them of their right to an attorney and even when juvenile probation officers did not recommend it, documents state.

The sad truth is: this isn't news. Many outer-fringe groups (that no one listens to) have --for years-- been proclaiming that the divorce industry, child protective services, foster parent programs and child support enforcement programs all seize children for a profit motive to the state, for private entities and to secure positions for judges, divorce industry experts (DIEs) and small-time politicians. See, e.g., Sen. Nancy Schafer (GA), The Corrupt Business of Child Protective Services, Nov. 16, 2007.

On various pages of this site, alone, I've documented (not just ranted about) the impliedly-profitable fraternities between DIEs and the judges who appoint them (or consistently rule in their favor or disregard bona fide charges of ethical conduct).

Unlike my examples, the story about these judges taking bribes only seems egregious because it wasn't sanctioned within an official infrastructure; it wasn't developed by lobbying or government marketing departments with a catchy phrase (e.g. "Because Kids Count - Colorado Family Support Registry); the payment was money hidden (rather than withdrawals from the favor bank or business referrals or a grant of immunity) and because the venal motives are palpable.

And at some point in the future, I intend to erect a page regarding the supervised visitation facilities scam in this state (E.g., Cleo Wallace, Kay White's Karlis Center, Harmony House, etc). See Attorney Peter Lomtevas' excellent exposé on the subject.

Feb. 11, 2009 - More evidence of hard times befalling Colorado's divorce industry? The Brodbecks unable to pay property taxes on "Child Family [Dissolution] Center, Inc." ?

A little belated, this October 2008 public notice indicates that the so-called "Child Family Center" was subject to distraint, seizure and sale because of unpaid taxes.

I predict that honest lawyers and intact families throughout El Paso County will be jumping for joy and celebrating the demise of the Brodbecks' family dissolution center,¹ when it finally comes to pass.

________________________
¹ As a journalist and commentator, I take liberty with hyperbole as a rhetorical device from time to time.

Feb. 11, 2009 - "Dear KnowYourCourts.com: How do I get a background on a custody evaluator? I have Googled her & all I find is her name & address"

That was a question sent to me via email, today.

My answer:

Before a resource like KnowYourCourts.com came along, there was no way to get such information, which is why we depend on our information contributors for our success.

If KnowYourCourts.com has no information and you can't find anything on forums using Google, you can do little more than the following:

• interview divorce lawyers in the area - feel lucky if you actually get to speak with one; feel even luckier if you get an honest answer.



• call the coordinator for each judicial district court to find out if the evaluator's on their CFI list



• pose as someone interviewing for a private custody evaluator and obtain the evaluator's curriculum vitae and list of testimonials. Once you get the testimonials, contact those lawyers and/or the parties in one or more of the cases. (You can get a "party page print-out" from Eclipse/ICON from the State Court Administrator's Office by supplying only the case number. The party page print-out will give you the full names of the parties, but not addresses or current telephone).



• wade through the DoRA div. of registrations Web site to look for the evaluator's licensing info. and any discipline on record



• log on to one of the three custody forums mentioned on KnowYourCourt.com's Links pages and ask other forum participants if they've ever heard of the evaluator.

If you find any credible data about the evaluator, send it to KnowYourCourts.com (here).

Feb. 11, 2009 - Colorado's Commission for the Abolition of Judicial Discipline names William J. Campbell as interim executive director

Their press release is here. For more information about the esteemed commission, click here.

Feb. 11, 2009 - Assistant regulation counsel suspended for soliciting prostitution and, in an effort to foil the bust, identifying himself as an undercover agent

Charles N. Pearman, assistant disciplinary counsel in South Carolina was busted for solicitation. I infer from the limited facts set out in the Order that he then impersonated an undercover officer (to the undercover officer in the sting) and flashed his "Disciplinary Counsel badge."

Disciplinary counsel sport tin? Do these ass-wipes pack guns, too?

Here in Colorado, we've nothing to worry about. Gleason and his cronies haven't been busted for solicitation (most of his cronies are angry feminists, anyway) and, so far as we know, none of them are guilty of anything other than lying to reporters (and the public) on a routine basis.

In fact, while the rest of us have been cutting back on spending and our companies have eliminated our travel budgets, John Gleason (regulation counsel), Nancy Cohen (ass't regulation counsel), Michael Gross (mentioned in Huspeni's article, discussed in the prev. post), et al. are all --upon information and belief-- on their way to my hometown of Boston this week for the Nat'l Organization of Bar Counsel's mid-year meeting (Feb. 11 - 14).

Feb. 10, 2009 - The Gazette gives Colorado's Office of Attorney Deregulation Council free advert space (at a time when papers are going out of print because of ad revenue shortages)

Dennis Huspeni, a reporter I have attempted to establish good rapport with over the last couple of years and with whom I've discussed the OARC via email on numerous occasions, decided to finally make good on his promise to write an article about the OARC.

On 6/13/2007, Huspeni wrote me:

As I told Kim [Thorup], I am VERY interested in doing a story on the ARC. I got a copy of the 2006 report and have been reading over it. It does seem like only a minor number are actually investigated, then an even smaller number of discipline actions taken. That concerns me, but I need to let readers know why that's important and why they should care (other than the obvious - you pay a lot of money for attorneys, they should be above reproach ethically). Keep the info coming. I really appreciate it.

I don't get around to deleting email often.

Unfortunately, Huspeni appears either to have completely lost his initial impression or something (or someone) has persuaded him to publish a different viewpoint.

In this February 7, 2009 article, Dennis provided John Gleason with a mouthpiece, quoting him as saying, "Our No. 1 goal is to protect the public; Our No. 2 goal is to serve the public." Gleason loves the attention and, doubtless, appreciates the free advertising.

Huspeni further quoted from an OARC opinion in one case:

"Purposeful deception by an attorney is intolerable, even when it is undertaken as part of attempting to achieve what the attorney believes is the greater good."

Whereas the specious opinion states "Purposeful deception by an attorney is intolerable," the reality is that making false statements under oath and offering material misrepresentations during the course of a disciplinary investigation is tolerable, as I've fully explicated in detail on this page (click on the Feb. 2009 link thereon).

Gleason spryly noted that, "Other states cringe when I tell them here you can make a complaint about a lawyer by picking up the phone."  Perhaps, Huspeni's readers would've cringed if they realized that this is Gleason's way of eliminating the paper-trail, because most caller-complainants are told their complaint has no merit and are turned away. Under his "model system" he not only can manipulate the metrics and manage his workload (discretion that Rule 251.9 does not afford), but he also can claim that the low prosecution rates indicate that Colorado attorneys are of extraordinary character.

At the risk of sounding narcissistic, it seems to me that, through these various consonant interviews, Gleason is laughing at those of us who've reported dishonest attorneys.

I'm very disappointed that Huspeni declined to even concede his knowledge of the contrary viewpoint on this topic.

---

1/10/2009 Update: Shortly after posting this entry, Dennis replied:

Sean, I knew you would attack me on the piece. Though it didn't shred the OARC the way you wanted, its main purpose was to educate the public on what it is, who runs it, how it's funded and how to reach it. I got plenty of feedback from those unhappy with the OARC. Keep up your good work. The public needs justice watchdogs more than ever. Dennis Huspeni

My response, which I'm posting here rather than by email reply, is that Huspeni's article didn't shred the OARC at all. Instead, he wrote, "[W]ho polices the lawyers? That would be the Colorado Supreme Court's office of the Attorney Regulation Counsel. It makes sure Colorado's estimated 34,000 attorneys are following the Colorado Rules of Professional Conduct." Quite the opposite of "shredding" the OARC, Huspeni perpetuated a myth. And then [in his reply] he characterized my criticism of that as mere disappointment in that he didn't write the article the way I wanted.

Rather, I'm disappointed that the article contained intentional and material omissions. One of Huspeni's colleagues from another paper agreed, writing me, "it's surprising he wouldn't give a dissenting viewpoint some space."

Feb. 9, 2009 - "There is no place horrific enough in the bowels of hell for the soul of a lawyer who would flip on his clients to save his sorry . . . butt."

The quote above concerns not the incompetence described in my previous entry, below, --although it should-- but rather the fact that a Colorado defense attorney, Frank Pignatelli, is being suspended by our very esteemed John Gleason of the exalted Colorado Supreme Court Office of Attorney Deregulation Council: our Defender of Truth, Justice and the American Way; our Protector of vulnerable widows and orphans from incompetent and dishonest attorneys.

As Face the State and other media outlets have reported (e.g., Law Week Online), Pignatelli allegedly committed fraud when applying to the Colorado bar in 2006 by failing to disclose that he was the subject of a federal criminal investigation in Ohio or that federal authorities had informed him that they had sufficient information to charge him with federal crimes. In addition, Pignatelli is accused of neglecting clients in Colorado:

Of most interest, Gleason maintains that Pignatelli allegedly agreed to act as a confidential informant for police against individuals who believed that they had an attorney-client relationship with him. Pending approval of the petition, Gleason said the office of attorney regulation is proceeding with attorney discipline charges against Pignatelli.

Also according to Face the State, Pignatelli, after moving to Colorado a couple of years ago, boasted of having represented the mob in Ohio and was often seen in Denver courts wearing flamboyant suits and flashing expensive watches.

I assume that neither Kilmer nor Lane will sorry to see the competition go.

Feb. 9, 2009 - Wei v. Mukasey and Bizub v. Paterson: At the risk of pointing out the obvious, attorney incompetence destroys lives

Disclaimer: The statement that follows is a statement of my opinion and not of fact concerning any particular attorney or law firm. Do you own research and form your own opinions, as I do.

---

I am practically beside myself, overcome with disgust, as I reflect on cases where lives have been destroyed (or are certain to be destroyed) because of inexcusable gross attorney incompetence or laziness or neglect.

Examples that stand out in my mind include Bizub v. Paterson, (District Court, El Paso County, No. 07CV1960, April 11, 2008), where a psychologist in Colorado became the subject of a $1.45M judgment because her attorney --who is currently no longer licensed and who has a history of previous action by the OARC-- appears to have mismanaged the discovery in the case and, therefore, the case was never tried to a jury or tried on the merits. (I.e., the trial was tried to the bench solely on the issue of damages).

Significantly, this was a defamation case that was based substantially upon grievances and filings made under the Petitioning Clause by the defendant, and yet, I can't find the phrase "First Amendment" anywhere in the bench ruling (findings of facts and conclusions of law). Further, on the limited record before me, I can find no indication that defense counsel, F. Maria Sinel, raised any argument concerning Noerr-Pennington petitioning clause immunity.

Then, a second attorney, M Patricia Marrison, took the case on appeal. Immediately thereafter, the funds that defendant paid Marrison for the appeal and transcript fees were seized by plaintiff's attorney, Arthur Porter, to be applied toward the trial court judgment (effectively negating defendant's ability to prosecute her appeal). Obviously, the statutory right to appeal does not include the right to have funds paid to appellate counsel insulated from collection. While awaiting for the transcript monies issue to shake out, Marrison applied for repeated extensions of time for the filing of a Notice of Appeal, which makes no sense to me. The filing of a Notice of Appeal is jurisdictional and can always be amended at some later time; transcripts are not necessary to draft a simple Notice of Appeal. The Court of Appeals denied one of Marrison's subsequent requests for extensions and dismissed the appeal. Bizub v. Paterson, No. 08CA1120. As a result, the $1.45M judgment forever stands, unless some creative attorney can have it set aside under Rule 60(b).

Now, today, I decided to check up on a Tenth Circuit case, Wei v. Mukasey that I first wrote about on November 7^th & Dec. 2^nd & Jan. 15^th (below), and which entry generated some media attention.¹ The bottom-line is that a woman, who should qualify under this country's asylum provisions, is being deported to China because of a filing technicality and an abuse of discretion. She has four American-born small children, including an infant who is likely breast-feeding, yet she faces guaranteed (promised) sterilization, jail time and fines upon her arrival in China.

First, the docket reflects that her counsel forfeited the opportunity to participate in oral arguments on "motion to vacate oral argument due to a medical emergency." Oral arguments are granted in less than 20% of cases. As a result, the appeal was decided on the briefs only (and which I have not read). Second, the Petition for Rehearing was rejected as deficient because the Petition and the Certificate of Service was not signed and the opinion and judgment was not attached. The court then gave an additional ten days within which to file a corrected Petition. According to a USCA10 clerk I spoke with, none was filed.

How friggin' difficult is it to read the USCA10 local rules and comply with them? How difficult is it to sign the Petition & Certificate of Service, attach the opinion and refile it within ten days, when given that opportunity? I don't live in Colorado, either, and yet I've managed not only to perfect an appeal in the Tenth Circuit, but also prevail on a Petition for Rehearing. Unless there are facts not available to me, my conclusion is that this incompetence and failures are inexcusable.

I don't care if Paterson's or Wei's attorneys were working pro bono or whether they were billing at $500 an hour. If an attorney takes a case, he or she has taken on de minimus binding obligations to that case, to the persons (e.g., the children) affected by the outcome of that case, to the Rule of Law, to the court and to the legal profession. Attorneys who are found to be incompetent to the degree I've inferred from these cases should be suspended expeditiously -- or worse.

___________________________
¹ The WorldNetDaily article is here.  LifeNews.com has this article and Colorado Right-to- Life has this article. This memo from Wei's attorney, John Chang, summarizes Mrs. Wei's plight.

Feb. 9, 2009 - Colorado divorce industry news re: § 13-5.5-105 (judicial performance commissions) & CJD 04-08 (child and family investigators)

This just in from one of our contributors:

In the 2008 Colorado legislative session, Senate Bill 54 was introduced ostensibly to improve how judges are evaluated. The bill was modified in the House to include what is now § 13-5.5-105(1)(e), requiring district performance commissions to "obtain information" from parents and lawyers regarding family court performance of judges.¹ One KnowYourCourts.com contributor believes that his communications and meetings with legislators contributed to the introduction of SB54 and particularly the foregoing language of § 13-5.5-105(1)(e) proposed by his representative from Boulder.

Under the amendment, parents may take their complaints to their district performance commission. Parents should be able to obtain contact information for their local commission from the state Judicial Performance Commission at 303-837-3665.

In addition, some of our contributors may have played a part in a change to Chief Justice Directive 04-08 governing Child and Family Investigators (CFIs). Under section IV. B., CFIs cannot do psychological testing unless it is included in the Order of appointment by the court. The contributor thusly exhorts that, if a CFI attempts to administer or require a parent to submit to psychological testing, the parent should decline and call the matter to the attention of the court.² This amendment may collectively save families ensnared in Colorado's Divorce Industry hundreds of thousands of dollars per year.

________________________
¹ The relevant language of Section 13.5.5-105 provides that that district commission has the power and duty to "obtain information from parties and attorneys regarding district and county court judges' handling of domestic relations and family law cases with respect to the judge's fairness, patience with pro se parties, gender neutrality, and handling of emotional parties." C.R.S. § 13-5.5-105(1)(e).
² This is not legal advice. No one should act or refrain from acting based upon the views, opinions or statements expressed by KnowYourCourts.com or any contributor thereof.

Feb. 8, 2009 - Buckley v. Haddock submitted to the Supreme Court

I first wrote (ranted) about this matter on Sept. 11, 2008 and again on Sept. 20th. (here).

Petitioner on behalf of the aggrieved Buckley is the ACLU of Florida. The press release is here; the Petition is here.

Feb. 8, 2009 - Repeat warning to the bar: If you want to keep your law license, DO NOT CRITICIZE THE JUDICIARY (but, in some states including Colorado, submitting false statements under oath regarding any other matter will be fine)

For context, see my Jan. 26, 2009 entry (re: in re Mann, below) and my Jan 20th entry (re: Fieger v. Michigan Supreme Court, below).

This past week, we have some new cases to report:

• On February 2^nd, a Louisiana attorney disciplinary board recommended a six-month suspension for an attorney who stated or implied in a recusal Motion that a judge was racist. In re Bolton, No. 06-DB-013.  The insouciant, disingenuous, reckless, disrespectful, defiant and audacious attorney observed in his Motion that the judge and his staff were exceedingly and inexplicably impudent to him, but appeared to be quite affable in the presence of white attorneys. The Rule applied was that "a lawyer shall not make a statement the lawyer knows to be false, or with reckless disregard as to its truth or falsity concerning the qualifications of a judge." RPC 8.2(a). For a similar case in Colorado, see In re Green, 11 P.3d 1078 (Colo. 2000) (en banc). Green had the opposite (and, in my view, proper) outcome, but the attorney's conduct seemed [to me] to me much less justified.



• On February 2^nd, the Pennsylvania Supreme Court issued a public censure for asserting in an appellate Reply Brief that a decision by a judge in the lower court was politically motivated.  Office of Disciplinary Counsel v. Wilson, No. 150 DB 2007.



• On February 2^nd, the Pennsylvania Supreme Court suspended for five years a 73-year-old attorney with no prior discipline for alleging, while acting as a pro se defendant, that a judge and opposing counsel "were in concert and were part of a conspiracy to extort a settlement . . . numerous perjured statements [in the court's ruling] . . . bribery may be involved."   In an appellate brief, he repeated his allegations that, "his Order and Statement constitute a written and signed admission by Judge Lieberman of his liability . . . . and of his guilt of committing the crimes . . . , in addition to perjury and obstruction of justice, as well as other federal and state crimes."  As another example, the attorney observed that,  "Judge Sprecher deliberately and maliciously makes a false statement that [Warren] made a threat in his pleadings to do bodily harm to [opposing counsel]. . . This statement, which Judge Sprecher knowingly, and with malice, twisted, misquoted and lied bald-facely about, thereby committing the felony on perjury, appears on page 8 of the Statement of Issues." The disciplinary board noted that the defiant attorney declined to bend over and grab his ankles and that he showed no remorse or recognition for his treasonous execrable misconduct.  Office of Disciplinary Counsel v. Warren, No. 151 DB 2007.

My first impressions, after considering the cases from the last few months on this issue, is what a great gig it must be to be a judge. You can't be sued (judicial immunity doctrine, created by judicial fiat); you can't be criticized by those best in a position to provide insight and criticism (the bar), and you can't be removed from office unless there's a sex scandal or you're caught on tape taking a bribe.  Needless to say, it's not a model that encourages transparency, effective self-governance and deterrence of corruption.  To be perfectly candid, it is a similar sort of lawless condition that attracted shady miscreants to Deadwood in 1876 and what attracts many of the most unscrupulous psychologists and therapists to the CFI industry in Colorado today.

My second observation is that, although attorneys are barred from criticizing judges or making any pejorative statements that are not supported by direct (as opposed to circumstantial) evidence, it's acceptable for attorneys in some states --Colorado and Texas, for example-- to submit false statements under oath or during the course of official proceedings. (Click here, then select Feb. 2009 article).

My concluding thoughts concern my own "misconduct" in 99DR3717 (district court, Jefferson County) and  05-cv-01858 (D. Colo.), where I alleged that Fist Judicial District judge Jane Tidball was involved in an extortionate conspiracy with divorce industry expert (DIE) Bill J. Fyfe. Eventually, Tidball recused from the case without reason. Subsequently, I repeated my allegations unequivocally on appeal in 07CA0379.  Not only was I not sanctioned, but I prevailed in that appeal.  Should I conclude that my allegations were well taken?

Feb. 6, 2009 - Colorado's divorce industry impacted by economy

According to David Littman,¹ Chair of the Colorado Bar Association's Family Law Section, "The current economic crisis is seriously impacting families and it is impacting also their decisions regarding professional services relating to divorce. This, in turn, presents us with both unique challenges and many opportunities."

In a January 27 newsletter to section members, Littman continued, "Families in transition may no longer be able to spend substantial sums on traditional legal representation."

Aw, shucks!

"We, as a profession, can moan and cry about possible decreases in our incomes, or we can develop new methods for serving greater numbers of families who are going to be watching their dollars more closely," said Littman.

In recommending alternative dispute resolution, Littman observed, "It is extremely rare that clients come to us hoping that, with our skills, we will escalate the tensions surrounding a case."

Perhaps so, but if you're looking for such an attorney, try Madeline Wilson. Unless you need an attorney who can write a coherent appeal brief. Or unless you need an attorney who is aware that the UCCJA was repealed and replaced with the UCCJEA in 2000. Or unless you expect your attorney to email a Motion intended for the Colorado Appeals Court to the Colorado Appeals Court (rather than the Tenth Circuit). Or unless you're not comfortable with your attorney submitting false statements under oath. Or unless you'd prefer not to have your attorney's daughter notarizing the attorney's own fee affidavits for use in court proceedings.

I'm sorry. I was digressing.

Also included in the newsletter was an observation from William Hood, a district judge in Denver:

The CBA’s website tells me that the Family Law Section is some 900 attorneys strong. Presumably, many of these attorneys practice in the Denver metro area . . . Yet, as I look at the roster of attorneys who presently help [the Metro Volunteer Lawyers] or, who participate in the Colorado Supreme Court Pro Bono Legal Services Commitment and Recognition Program R.P.C. 6.1 ( http://www.courts.state.co.us/supct/probono.htm) or who donate to Colorado Legal Service’s annual Campaign for Justice, it is hard not to hope for more.

Would you honestly expect anything different from the Colorado Divorce Industry?

___________________________
¹ Readers may recall that Littman contacted me to have mention of him removed from this site. See my July 24, 2008 entry here.

Feb. 6, 2009 - New Director of Colorado's Commission for the Abolition of Judicial Discipline has been chosen

According to Mindy Masias, the judicial department's Human Resources Director, a selection for a new director of the Commission for the Abolition of Judicial Discipline has already been made. However, "because not all appropriate parties have been notified [and I]n order to respect the privacy of those involved," the selection will not be revealed until next Wednesday, Masias said.

Feb. 6, 2009 - Who has the license on truth? - blogger offered bribe to remove Web site

According to this article, "Web satirist Rob Cockerham stumbled into the bizarre and sometimes aggressive world of search engine optimization recently after he published a blog entry that criticized Cash4Gold; the firm then offered him money if he’d remove the site . . . Cockerham, however, would have none of it. Instead, he posted Laratro’s e-mail on his Web site, alongside the rest of the saga."

That's just what we do here at KnowYourCourts.com, as well.

Consider these search engine examples, where KnowYourCourts.com ranks as #1 or 2 (as of today):

• Colorado "Judicial Discipline Commission" (Google)
• Colorado "Judicial Discipline Commission" (Yahoo!)
• Colorado "Attorney Regulation Counsel" (Google)
• Colorado "Attorney Regulation Counsel" (Yahoo!)
• "State Bar of Texas" "Office of Chief Disciplinary Counsel" (Google)
• "State Bar of Texas" "Office of Chief Disciplinary Counsel" (Yahoo!)
• Edward W. Nottingham Google
• Judge Edward Nottingham (Google)
• Madeline Wilson Denver attorney (Google)
• Madeline Wilson attorney (Yahoo!)
• John S. Gleason Colorado (Google)
• David Littman, attorney (Google)
• Bill J. Fyfe Denver (Google)
• Dr Bill Fyfe (Yahoo!)
• Mark Hoffman "Colorado Springs" (Google)
• Edwin Shockney Ph.D. (Google)
• David Kieffer (Google)
• David Kieffer (Yahoo!)
• Dee Brodbeck (Yahoo!)
• Al Brodbeck (MSN)
• Robert LaCrosse Denver (MSN)
• Robert LaCrosse Denver (Google)
• Jane Tidball (Google)
• pro se disparate treatment (Google)
• "Colorado Psychologists Board of Examiners" (Google)

Sometimes, the subject of these Web pages institute clumsy attempts to counter back in this domain. One example might be "ColoradoWackoExposed.com," which --according to allegations in a pending case-- was Jefferson County government's effort to smear gadfly-critic Mike Zinna. See Alan Prendergast, The Lords of Payback, The Westword, June 24, 2008.

Feb. 5, 2009 - KnowYourCOurts.com exclusive - A puzzler for lawyers and non-lawyers alike

For those of you who've been following the nine-year saga concerning one of Denver's rising star attorneys, Madeline Wilson, here's a brain-teaser, sort of like a bar exam question, that I hope you'll enjoy:

Fact situation:

• A divorce attorney-CFI living and practicing in Colorado for fifteen years continues to maintains an inactive law license in Texas. (The attorney attended law school in Austin. Maintaining the license requires an annual application, certification under penalty of perjury and a $50 fee).



• For nine (9) years, the attorney contrived and personally participated in a campaign of fraudulent allegations to cause the parental alienation of a father, the ex-spouse of the attorney's client and, which has become a matter of record.



• Between 2003 - 2006, the attorney provided substantial aid, encouragement, assistance and legal advice to her client ("mother") in concealing a minor child in Texas, in violation of a Colorado court order, Tex.Fam.Code §§ 42.002 - 003 and common law.¹ In addition, father alleges that the attorney: (1) contacted a Texas court's security director with a false report that father would pose a security threat; (2) contacted father's attorney's brother --her friend-- in an effort to get exhort father's attorney to withdraw; (3) attempted to use the Texas proceedings as an opportunity to have father served with personal Colorado litigation; (4) contacted mother's Texas attorney to request that she examine father on the record to learn his address for the Colorado attorney's benefit; (5) arranged with mother to violate a Texas stipulated injunction concerning custody actions by filing an ex parte Motion with the Colorado court to undermine the jurisdiction of the Texas court; and (6) withheld information about the Texas injunction from the Colorado court in violation of R.P.C. 3.3(d).



• Father filed a damages-only suit in federal court against mother and Wilson. Although Colorado courts disallow joinder of tort or contract claims with dissolution proceedings, a U.S. Magistrate Judge Michael J. Watanabe, recommended that father’s case be dismissed under the Younger abstention doctrine:

  The state court provides an adequate forum to hear such claims, and this court agrees that Younger abstention is appropriate in this case with respect to all of the [father]’s remaining claims.²

  Watanabe’s recommendations were adopted by [former] district judge, Edward W. Nottingham, who dismissed the case with prejudice. The U.S. Court of Appeals for the Tenth Circuit initially affirmed but, on father’s Petition for Rehearing, withdrew the opinion, reversed and amended the trial court’s judgment to dismiss without prejudice. Harrington v. Wilson, (10th Cir., July 18, 2007) (unpublished, pursuant to Fed. R. App. P. 32.1 (2007)).



• Father then filed under the UCCJEA in district court, Wise County, Texas. No. 07-04-274. Eventually, father added the Colorado attorney to the suit as a third-party defendant under Tex.Fam.Code § 42.003 and common law causes of action for civil conspiracy, among other things.



• As expected, the Colorado attorney filed a special appearance. She alleged in an affidavit under oath that she had no business contacts in Colorado and that the only contact that she had with mother was arising from litigation pending in Colorado. The attorney also provided a statement to the State Bar of Texas Office of Chief Disciplinary Counsel that she could not have aided and abetted in the concealment of the minor child because she did not know mother's physical location and, further, that she had no idea what father was talking about when he alleged that she was giving legal advice to mother in Texas.



• Based on the affidavit, the Texas court granted the special appearance. During a hearing, the trial judge indicated that under no set of facts would he find jurisdiction over a Colorado attorney. He entered no findings of fact or conclusions of law. He thereafter declined to entertain a Motion for Reconsideration.



• Shortly afterward, father obtained through discovery a collection of emails between mother and her Colorado attorney, which showed that the attorney submitted false statements under oath and offered false statements during the course of official proceedings concerning the giving of legal advice in Texas and her activities in aiding and abetting. The emails corroborated all of father's factual allegations in support his previously-asserted causes of action. Father submitted this new evidence to the Texas trial court. The trial court did not set the matter for hearing.



• In Texas, a trial court ordinarily loses it's "plenary power" to take any action in a cause, or against parties and counsel, other than to set aside a void judgment, after a certain period of time following the signing of an order or judgment. Rule 329b.



• In most cases, there is an interlocutory appeal procedure available for the granting or denying of a special appearance. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014. One or more Texas appeals courts have held that failure to take the interlocutory appeal may waive the right to appeal entirely (click here). The time for filing of an interlocutory appeal, if it was available, has passed.



• Father is certain that the trial court erred and that, under this particular fact situation, the trial court should have arrived at no other conclusion-of-law than to find jurisdiction and to deny the Colorado attorney's special appearance.³

So, what is the best course of action?

This is an open book exam question. Here are three additional resources that provide clues to an answer:

• The case docket
• Sutphin v. Tom Arnold Drilling Contr., 17 S.W.3d 765 (Tex.App.-Austin, 2000)
• Chek Investments v. L.R., 260 S.W.3d 704 (Tex. App., 2008)

The following are your multiple-choice possibilities. Choose the best answer:

(A) File a timely Petition for writ of mandamus in the Texas Second Court of Appeals concerning the granting of the special appearance. If denied, refile the case in Colorado under the Remedial Revival Statute

(B) Wait until the conclusion of the case (a final, appealable order that disposes of all claims as to all parties), which may take another year or two or three. Then file an appeal in the ordinary course with the Texas Second Court of Appeals. If the order granting special appearance is affirmed, refile the case in Colorado under the Remedial Revival Statute

(C) File a contempt Motion in the Texas district court concerning the Colorado attorney's fraud-on-the-court (false statements that influenced the court's decision on the special appearance). Regardless of the outcome, contemporaneously refile the damages case in Colorado under the Remedial Revival Statute

(D) File a contempt Motion in the Texas district court. If granted and the court exercises jurisdiction, seek leave to add the Colorado attorney as a third-party defendant under the initially pleaded causes of action or, if barred, a different cause of action (e.g., common law fraud).

(E) File a contempt Motion in the Texas district court. If granted and the court exercises jurisdiction, ask the court for an Order of Severance, so that the issue of the Special Appearance may be appealed in the ordinary course.

(F) Do nothing. All remedies have been exhausted or forfeited.

Email your answer here and feel free to provide a concise explanation for your choice. At a later date, I will post the number of responses for each possible answer.

________________________
¹ See Restatement (Second) of Torts §§ 46(1), 700 & 876(b); and see Silcott v. Oglesby, 721 S.W.2d 290, 292 (Tex. 1986); Fenslage v. Dawkins, 629 F.2d 1107 (5th Cir. 1980); Adena Inc. v. Clifford B. Cohn, 162 F.Supp.2d 352 (E.D. Pa. 2001) (A lawyer can be sued for aiding and abetting a breach of fiduciary duty so long as the allegations include a claim that the lawyer both knew of the breach and provided “substantial assistance or encouragement ... in effecting that breach”) Hall v. Hall-Stradley, 13 Fam. L. Rep. (BNA) 1108 (Colo. Dist. Ct. 1986, Case No 84-CV-2865) (“The court finds that . . . the modern trend has recognized that a third-party who aids or abets a parent tort-feasor may also be liable for such actions”).
² Harrington v. Wilson, 2006 WL 2724094 (D. Colo. 2006).
³ See Nikolia v. Strate, 922 S.W.2d 229 (Tex. App., 1996); Geo-Chevron Ortiz Ranch #2 v. Woodworth, No. 04-06-00412-CV, 2007 WL 671340 (Tex. App. - San Antonio Mar. 7, 2007); Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 585 (Tex. 2007); Am. Type Culture Collection v. Coleman, 83 S.W.3d 801, 808 (Tex. 2002)

Feb. 5, 2009 - "Justice Nasty . . . Scalia wants the publicity, he wants your money, you pay his salary, he’s a public servant, but don’t you dare ask him any pertinent questions."

"I want my Supreme Court Justices to be polite, even humble, even though we all know they are smarter than the rest of us."

Read Scalia's Temper Rises Again: Legal Analyst Andrew Cohen Takes Issue With "Justice Nasty"

AND WHEREAS, they sure as hell aren't smarter than the rest of us, Cohen is correct that they should be polite, even humble.

He continues:

Supreme Court Justice Antonin Scalia’s famous temper is often discussed in legal circles as an indelible part of his forceful personality, as if it were a mole on his cheek or the accent that rolls off his tongue. Whenever he acts like a jerk, and that is a relatively common occurrence for a man who works within the semi-secret world of the High Court, we are told by his sycophants that "he doesn’t suffer fools gladly" and that he has earned the right to be rude.

We are supposed to accept these excuses and explanations, shrug our shoulders, and hear his tribunes declare: well, cut the guy some slack, you know how moody geniuses are! Whatever you think about Scalia’s jurisprudence, his bully routine is getting old.

Old, indeed. Wasn't' that long ago that two reporters were made to erase their work product in violation of federal law by a U.S. Marshall who was enforcing Scalia's longstanding refusal to allow his remarks to be recorded (click here).

I exhort you to read Cohen's article in its entirety (it's scarcely a few paragraphs) and especially his observations about the justices and their book deals. Of note, the incident described in Cohen's article happened while Scalia was on tour "hawking a book called “Making Your Case” that he co-authored with a fellow named Bryan Garner."

Although I have little regard for Scalia's talk of "judicial humility," itself is a form of sophistry (and "sophistry" being a term Scalia reserves when criticizing his peers), I have great respect for Garner and recommend his book, The Elements of Legal Style.

Feb. 7, 2009 update: Frank Cerabino, Student fails to persuade Justice Scalia, Palm Beach Post, ("Hey, it's nice to be a federal judge. It's a lifetime public post with the slightest needs for public approval. And Scalia, of all the justices, wears his imperial disdain by a gaudy cloak").

Feb. 5, 2009 - Good news from PublicCitizen.org

Dear Mr. Harrington: On behalf of Public Citizen, I would like to thank you again for generously volunteering to be a declarant in our suit involving the ban on phthalates in children's toys and care products, and I am excited to announce that we have won our lawsuit! This means that retailers will be prohibited from selling products containing dangerous phthalates after February 10, 2009. Prior to our lawsuit, retailers could continue to sell phthalate products indefinitely, so long as the products were manufactured before February 10th. It was a pleasure working with you on your declaration, and your contribution helped to make this happen. Most importantly, however, your children will now be protected from phthalate-laden products. I have attached the decision from the district judge, in case it is of interest to you. Please do not hesitate to contact me if you have any other questions about the suit. Thank you again, -Leah Nicholls Leah M. Nicholls Fellow, Supreme Court Assistance Project Public Citizen Litigation Group 1600 20th St. NW Washington, DC 20009

Feb. 3, 2009 - "Under the two-judge majority’s panel decision, attorney free speech is governed by permission slip and not the First Amendment."

So argues the Petition for Rehearing filed in Fieger v. Michigan Supreme Court, drafted by Michael Dezsi, here.

Jan. 29, 2009 - KnowYourCOurts.com exclusive - - One more deadline passes; Nottingham fails to file response in proceedings against his law license

On October 28, 2008, Edward Nottingham's attorney was given twenty (20) days by the Colorado Attorney Deregulation Council to file an Answer to the pending complaint against him. His attorney, Michael Berger, then sought and was granted an extension until December 8, 2008. That deadline came and passed. On January 8, 2009, the OARC issued a memorandum indicating that the matter had been turned over to it's "trial division," and that a new deadline of up to and including January 28, 2009 was established. That date has come and passed.

Today, I called and spoke with "Lisa E. Frankel, Esq.," who is responsible for the case at this time. With an impudent tone, she informed me that Mr. Nottingham had not filed a response and she declined to disclose whether his attorney had sought yet another extension of time.

Further reading: Andrew Oh-Willeke, Wash Park Prophet blog, "Is Nottingham Giving Up?"

Jan. 28, 2009 - Please welcome Mark Wilmot, Ph.D., to the KnowYourCourts.com "inner circle"

group leader: I'd like to introduce a new member to our group. Please welcome Mark.

group (in unison): Hello, Mark.

group leader: So, Mark, why don't you tell us a little about yourself and what you brings you here.



Mark Wilmot: Well, I'm feelin' pretty bummed. I'm --you know-- part of the Divorce Industry here-- and, um, I've just been charged with "Substandard Practice" by those cock-suckers at the State Board. And, and there's this Web site out there that somehow found out about it, and they've put up this "Mark Wilmot" page.

group leader: Wow, that's so heavy. Everyone, let's thank Mark for having the courage to share that.

group (not in unison): Right on, man. Way to go! It's kewel, dude. I've been there, man.

group leader: You know, Mark, we're all here because the consequences of our choices caught up with us. One of the first steps on the road to recovery is admitting that there's a problem. Do you think you're in a place to do that, today?

Jan. 27, 2009 - creative strategy suggested by judge when dealing with police officers during a stop

The following are exchanges that took place between a woman being charged with drunken driving, after sideswiping a state police car with her BMW:

• "I don't need a ride home. ... I'm a criminal . . . they got the head nigger in charge"



• If the officer asks, "Do you guys have Triple-A?", answer "Oh, no. We don't. We're ghetto Negroes. We don't have Triple-A."



• When asked if injured, reply: "Yeah, I am. I'm humiliated by your fucking attitude."



• When asked if ill, reply, "I'm sick of being treated like a freaking Negro from the 'hood . . . Write it down, write it. Did you hear what I just said?"



• When asked what the ailment is, answer: "Negro-itis."



• When asked, "Do you need to take any medication now?", rejoin, "Yeah, I need to take anti-Negro"



• When asked for weight during booking, retort: "Why don't you look at me, tell what you think?"



• When asked to take an intoxication test, respond: "Mr. Negro Washington. I need to go to the bathroom, and then I will take the test."



• When giving a urine sample, ask the officer: "Do you have a reading on my urine test, Negro trooper?"



• When asked if taking any drugs, reply: "Oh, yeah, I'm a crack addict. Do I look like that to you?"



• Then turn to the first state trooper on the scene of the accident and ask, "Can you tell me why you came first, and then you had to bring him [Washington]? Is it because you had to make this valid by bringing a Negro?"

This is the course of action suggested by Superior Court Judge E. Curtissa Cofield, who is Connecticut's first black female judge.

Cofield decided to demonstrate by example. Apparently, some judges are quite opposed to being arrested and charged for their seemingly unlawful conduct.

Read full story & watch video.

To be honest, it make me almost want to puke just to contemplate the possibility that someone with this mentality (capable of behaving this way, drunk or not) was placed in a position to pass judgment on child custody cases, criminal cases, sentencing, or civil disputes of any kind. But, of course, my comments are just another example of impermissible attacks on the independence of the judiciary.

Jan. 27, 2009 - Colorado's former U.S. Attorney's career plans stymied by Colorado A.G., a purported friend

John Suthers, A.G., has announced that he's not going to seek the Senate seat recently vacated by Ken Salazar, who himself is a former Colorado A.G.

Suthers' decision may prove ruinous for Troy Eid, who recently stepped down as U.S. Attorney for Colorado while announcing that he would seek Suthers' seat.

Eid told Face The State, that, in light of Suthers' announcement, he was no longer planning to run. “John did a huge U-turn,” he said. “[My wife, Colorado Supreme Court Justice Allison Eid] and I are very surprised by this.” Eid reportedly said Suthers is a great friend and has his support and that Eid has no plans to pursue a different political office.

According to Face the State:

Eid has followed directly in the career path of Suthers over the course of the last several years. The two men worked together in former Gov. Bill Owens’ administration. Eid also helped Suthers during his unsuccessful 1998 attorney general bid. Owens later appointed Suthers to the position when former Attorney General Ken Salazar resigned to run for the U.S. Senate. Eid is noted for his political ambition, having abandoned a 2006 bid for a University of Colorado at-large regent only after he was appointed to U.S. attorney by the Bush administration.

Say, Troy, I've heard they have an opening over there at the Colorado Commission for the Abolition of Judicial Discipline.

Jan. 27, 2009 - It's been an exciting week at the U.S. Supreme Court, as the Police State of the North American continent continues to take shape.

Here are a few highlights from this past week at the U.S. Supreme Court, reminding us that we are, indeed, a Free Nation.

• Prosecutorial immunity clarified and extended in Van DeKamp v. Goldstein. Man wrongly imprisoned for twenty-four (24) years cannot sue the D.A.'s office for negligence. District attorneys who are managing teams of prosecutors should not face the fear they might be sued years later by resentful suspects, the justices ruled. (Damn those resentful suspects. They should be glad to have had three square meals and a place to sleep all those years, anyway).



• In Pearson v. Callahan, the high court also threw out a lawsuit against police in Utah who, based on the word of an informant, entered into a house without a warrant. The justices did not decide whether the search was illegal but concluded that police may be entitled to qualified immunity.



• Last week in Herring v. United States, the Court eroded the Exclusionary Rule, ruling that tainted evidence could be used if police made an honest mistake in searching a suspect. In that case, an officer acted on an arrest warrant that should have been removed from a police computer.



• In a second decision Monday, Arizona v. Johnson, the court ruled police could stop and frisk a passenger in a stopped car, even if there was no reason to suspect the passenger had done anything wrong.

Jan. 26, 2009 - First Amendment jurisprudence? "Unsubstantiated speculation" in criticism of the federal judiciary by an attorney now equals "conduct involving deceit and dishonesty" ?  

Beverly Mann is recommended for suspension from the practice of law for two (2) years and until further order of the court. Beverly has contributed documents to KnowYourCourts.com and has contributed her time and knowledge generously to the issues discussed here.

Unfortunately --and in my opinion-- as happens with otherwise capable attorneys who become outraged at politics substituted for the rule of law and who choose [or have no choice but] to represent themselves, her efforts were for naught and her anger eclipsed the merit of her arguments.

Several of Beverly's cases are found on our Document Repository page.

Here are a few highlight's of Beverly's criticisms, as contained it the Hearing Board's recommendation (I am aware of many others, but will limit the scope of this essay to the text of the recommendation):

• In the complaint she stated that Judge Bauer "dislikes the laws that encroach upon the at-will employment doctrine and will not enforce those laws." She further stated that Judge Bauer "would not enforce the substantive law pertinent to them [counts in her underlying lawsuit] nor even the procedural law that applied to the case."



• [Mann] further stated that "Judge Ripple’s motive was equally self-serving." Additionally, Mann alleged, Judge Ripple's enforcement of employment law "ebbed and flowed with the apparent political fortunes of the front-running Republican presidential nominee of the moment and, thus, his own potential as a Supreme Court nominee."



• [Mann] stated: "Mann wishes to make clear: In moving for the recusal of the appellate panel that decided her then-latest appeal, she does not claim merely that that panel wrongly decided that set of appeals. She claims that the panel deliberately wrongly decided it, and that it outright lied in stating that it deemed unworthy of its discussion the issue she presented in those appeals."



• [Mann] suggested that the court "casually engage[s] in the case-by-case judicial nullification of laws they do not like and in the undisguised and untroubled deceit inherent in selective faux appellate review (or who close their eyes to it when their colleagues do so) will just as casually overlook the inconvenient fact of a jurisdictional bar when doing so enables them to protect their own (conflict of) interest."



• [Mann] sated that Judges Andersen, Bauer, Ripple, and Easterbrook had "consciously contravened numerous long-recognized principles of substantive law and denied [Mann] even the most fundamental procedural due process in order to terminate this litigation." She further stated that she would receive "no meaningful appellate review" of the district court’s decision.



• [Mann] stated that Judge Illana Rovner ruled against her in a prior matter because Judge Rovner’s son worked for the Mayor’s office. She further stated that "Judge Rovner has cultivated a reputation as a staunch defender of women who sue their employer or former employer because of gender-related discriminatory conduct, but only women who are not suing people or entities with ties to her son or to herself."



• [Mann]  . . . also characterized a portion of the court’s decision as "downright weird" and averred that "no judge – no judge -- read any portion of Mann’s opening brief in that appeal except that single section that addressed the erroneous actual-malice jury instruction on the defamation count . . ." [Mann] also characterized the court’s decision as a "shoot-from-the-hip advisory opinion written by a haughty judge as an ostentatious demonstration of fidelity to her impugned colleagues – colleagues whose integrity Mann has questioned because they rendered her an unwitting dupe in two successive ornamental appeals."



• [Mann] also stated that federal judges "enjoy absolute immunity from liability for their judicially related conduct, however brazenly self-serving or outright corrupt that conduct is." She further stated that the judges that decided the matter "view their primary professional obligation as accruing not to the public and to the ideals of justice and law but to one another; thus borderline-comical Pavlovian threats."

For the record, I'd like to point out that, based on the item in bold (supra), Judge Richard Posner (formerly the Chief Judge of the Seventh Circuit), should be prosecuted for attorney misconduct based on the standard established by this Hearing Board.¹ And based on the item in italics (supra), our own federal judge John Kane should be prosecuted for misconduct, too.²

While I'm at it, here are some other folks who should be prosecuted for their "unsubstantiated speculation" in criticism of the judiciary:

• Professor Monroe Freedman³
• Nicola Gennaioli & Andrei Shleifer⁴
• Professor Mark Tushnet⁵
• Professor Karl Llewellyn (deceased, but his memory may still be eligible for blackening by posthumous disciplinary proceedings)⁶
• Professor William L. Reynolds⁷
• Ninth Circuit judge Kim McLane Wardlaw⁸

In the Mann matter, the problem I have with the Hearing Board's decision is that it goes to the heart of Beverly's right to criticize the judiciary. As one reads through the recommendation (and, indeed, some of Bev's briefs), some of the allegations may seem outrageous or insouciant or conjectural, but, as established clearly on this site, at least some of them are probably substantially true.

Whether they are true or not is irrelevant. The Petitioning Clause of the First Amendment immunizes such allegations, unless they fall under the narrow "sham exception" (See Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 144 (1961); and see my Jan. 16 entry, below) and, likewise, ought to be extended to immunize against prosecution of any stripe (criminal or administrative).

Indeed, my objection is not concerning the probity of Bev's evidence or the truth or falsity of her allegations, but rather the discretion exercised by the judiciary to determine the reasonableness of her statements, the First Amendment notwithstanding.

For example, in response to Bev's assertion that she was disallowed from obtaining evidence that would have proved her claims, the Board conclude:

not only did [Mann] lack a reasonable basis to make these statements about the judges, she admits that she had absolutely no basis for making them and made them with a reckless disregard for their truth. Therefore, we find that the numerous statements [Mann] made about sitting judges of the Seventh Circuit were unsubstantiated speculation and violated the Rules of Professional Conduct. Moreover, in making these statements, [Mann] engaged in conduct involving dishonesty, deceit and misrepresentation.

So much for discovery, eh?

The Board concluded that "Respondent repeatedly and purposely attacked the integrity of several judges." We certainly can't permit that sort of thing in an orderly society!

The recommendation the Hearing Board is here.

Bev's [first] response to the recommendation is here.

Endnotes
______________________________
¹ I say this tongue-in-cheek. Posner, himself, had written:

A federal judge can be lazy, lack judicial temperament, mistreat his staff, berate without reason the lawyers and litigants who appear before him, be reprimanded for ethical lapses, verge on or even slide into senility, be continually reversed for elementary legal mistakes, hold under advisement for years cases that could be decided perfectly well in days or weeks, leak confidential information to the press, pursue a nakedly political agenda, and misbehave in other ways that might get even a tenured civil servant or university professor fired; he will retain his office. Richard A. Posner, Overcoming Law, Harvard Univ. Press, 1996 at 111.

² Also tongue-in-cheek. See Ronald D. Rotunda, "The Courts Need This Watchdog," Washington Post, Dec. 21, 2006 at A-29:

[Judge] John Kane (who gave me permission to quote his e-mail), wrote, "I've been a district judge for 29 years and think the federal judicial house has brought this legislation on itself." He sat on the 10th Circuit Judicial Council when the first complaint about a judge came up for consideration: A district judge was trying to coerce counsel into establishing a library on product liability cases in honor of the judge.

Judge Kane's e-mail is worth quoting at length. He voted for discipline. The vote was 3 to 3, "and so the Chief Judge voted against sustaining the complaint because it was the first such complaint and he thought a close vote was too slender a reed upon which to proceed. As we were leaving the meeting, one of the judges who had voted to dismiss collared me and said, 'John, think about it. The next time it could be you or me. We've got to stick together.'"

³ Monroe Freedman, 128 F.R.D. 409, 439 (1989)

Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules

(excerpted from speech to the Seventh Annual Judicial Conference of the United States Court of Appeals for the Federal Circuit (May 24, 1989))

⁴ Gennaioli & Shleifer, Judicial Fact Discretion (October 2006) ("Judicial fact discretion is defined as misrepresentation in a judge's decision of facts revealed in a trial . . . judges engage in fact discretion to promote their own agenda")

⁵ Mark Tushnet, Taking the Constitution Away from the Courts (1999) at 155-56 (Judges typically embrace a desired result and then select whichever theory plausibly permits them to reach that result)

⁶ Karl Llewellyn, The Common Law Tradition: Deciding Appeals (1960) at 133 (discussing judges "manhandling of the facts of the pending case, or of the precedent, so as to make it falsely appear that the case in hand falls under a rule which in fact it does not fit, or especially that it falls outside of a rule which would lead in the instant case to a conclusion the court cannot stomach")

⁷ William L. Reynolds, Who are the Juristocrats? Guerrila Warfare Among the Courts (March, 2005) ("judges . . . manipulate the fact-finding and opinion-writing processes in various ways . . . they twist or thwart the controlling authority in order to reach the desired result.")

⁸ Wardlaw, Circuit Judge, concurring opinion in Quon v. Arch Wireless Operating Co., No. 07-55282 (9th Cir., Jan. 27, 2009) ("No poet ever interpreted nature as freely as Judge Ikuta interprets the record on this appeal. The dissent is not bound by the facts, even those found by the jury").

Jan. 26, 2009 - Colorado attorney suspended from the practice of law for striking daughter "on the bottom three times. He also struck her with his open hand."

Text of the conditional admission summary is here but contains inadequate information for anyone to make an informed assessment of the decision.

But, while it appears you can't spank your kid and practice law in Colorado, it's okay --as a lawyer-- to give false testimony in an affidavit and during a bar disciplinary investigation (see my Jan. 22 entry (below) re: "The Oath").

Jan. 26, 2009 - Federal bankruptcy judge in Colorado goes out on a limb re: judicial accountability; Colorado bar publishes his article but distances itself

Note: an update appears at the end of this short essay

Someone thought I missed this one?

Not quite. I should've written about it back in December, when I first read it.

According to Wikipedia (here), "Honour . . . from the Latin word honos, honoris . . . is the evaluation of a person's trustworthiness and social status based on that individual's espousals and actions. Honour is deemed exactly what determines a person's character: whether or not the person reflects honesty, respect, integrity, or fairness."

Although Wikipedia is not an authoritative source,¹ I think we can all agree on the foregoing definition of honor. And I think that Judge Sidney Brooks fits the definition.²

Brooks, a current federal bankruptcy judge and a former Chief Judge for the District of Colorado, has authored an article entitled, "Judicial Evaluations -- A Proposition." Unlike any other articles I've recently read that were published by The Colorado Lawyer, the official publication for the Colorado Bar Association, a disclaimer was prepended to Brooks' article:

Editor’s Note: Essays are printed at the discretion of the publisher, the Colorado Bar Association (CBA). The opinions and views expressed in this essay are those of the author and not of the CBA or The Colorado Lawyer.

I did a search for the phrase, "Essays are printed at the discretion of the publisher" on the coBar.org Web site and this was the only article that returned a hit.

Why would the bar need to distance itself from something a reputable federal judge might have to say? Read on, and the answer will become clear.

Brooks begins his essay by interposing two questions:

• Why shouldn’t the federal judiciary—or the Bar, with the cooperation of the federal Bench—conduct periodic, statistically reliable judicial performance surveys among attorneys?



• Why shouldn’t all trial judges be subject to periodic, objective, fair, and anonymous performance evaluations by attorneys who have appeared before them?

Brooks makes a number of obvious observations but, which are so seldom heard from his brethren, that they almost qualify as profound. One of them follows:

I also do not agree with the argument that it is inappropriate to publicly scrutinize a judge’s job performance or to suggest that evaluations might embarrass a judge. We live in a merit-based society where virtually everyone, directly or indirectly, is subject to job performance evaluation. What I do find inappropriate is that federal judges are not among them.

From the President of the United States to the local county clerk; from teachers, police officers, architects, and doctors to lawyers, civil servants, and plumbers—one way or another, everyone gets evaluated at what they do and everyone gets feedback to improve job performance.

Among his other observations, Judge Brooks opines that the focus of judges will not likely be redirected, because he has not found documentation to suggest that judges would sacrifice sound decisions for popularity. Here, I disagree. I have previously published a number of anecdotes that indicate that judges certainly do care about what is said of them.³ However, in support of Brooks' conclusion, the evidence seems to indicate that performance evaluations have little effect on a judge's incumbency.⁴ And, as we all know, because the Good Behavior clause has been cross-referenced to the Impeachment clause by our Supreme Court, it is practically impossible to remove a sitting federal judge, no matter what the outcome of a performance evaluation.

Take a minute to read Brooks' article and thank the heavens, your lucky stars, God, Sirius, Zeus or whoever you want for the fact that we've got a few intellectually honest judges somewhere out there.

---

Update: Immediately after writing this short essay, I emailed a link to federal judges John Kane and Sidney Brooks. To Kane, I explained, "I just wrote an article re: one of your colleagues, Sidney Brooks. The more I read and learn about him, the more it seems like you're in good company." He replied, in pertinent part, "I am very proud to claim Judge Brooks as a close and good friend. Not only do I agree with judicial evaluations, I believe that once the meritless, nutty, aberrational grievances against judges and lawyers are screened, all formal complaints against them should be made public. I haven't discussed that view with Judge Brooks, so I don't know whether he agrees."

---

Endnotes
________________________________
¹ See my essay on that topic here, also published in The Reporter, Atkinson-Baker (Sept., 2008); and see Online encyclopedia Wikipedia may tighten editing rules (Jan. 26, 2009)).

² I've quoted Brooks before. See the Rule-of-Law sidebar on this page.

³ See, e.g., Richard Posner, Judicial Behavior and Performance: An Economic Approach, 32 Fla. State Univ. L. Rev. 1259 (2005):

Most decisions that a person makes have no greater impact on his utility than the decision of a judge has on the judge’s utility. A person faced with a choice between two nearly identical items on a menu, such as a choice between two flavors of ice cream, cannot base the choice on the effect on his income or job security, yet his choice will be rational: it will be the choice that generates a larger net increment in his utility. But it may be very difficult to figure out why that particular choice is the one that has that consequence. And so it is with judges. The decision of a federal district judge will not affect his income or job security, but it will affect his utility in some other way— the question is in what way. The difference between this and the ice cream case is that the effect of the judicial decision on the judge’s utility cannot be reduced to a single dimension, such as taste. Deciding a particular case in a particular way might increase the judge’s utility just by the satisfaction that doing a good job produces, which is what we would like. But it might also do so by advancing a political or ideological goal, economizing on the judge’s time and effort, inviting commendation from people whom the judge admires, benefiting the local community, getting the judge’s name in the newspaper, pleasing a spouse or other family member or a friend, galling a lawyer whom the judge dislikes, expressing affection for or hostility toward one of the parties—and the list goes on and on.

See also Russ Bleemer, Judges told to ignore rights in abuse TROs, 140 N.J.L.Rev. 281, 294-95 (1995) (judge discussing judiciary's collective fear of being "tomorrow's headlines"); Adam Liptak, A bit of thin skeen peeks out of the robes, The New York Times (May 7, 2007) ("lately, more and more, they seem to be saying their work should be above criticism"); Natalie O'Neill, Blogger Rumpole Ruffles the Courts, The Miami New Times (August 12, 2008) ("Miami's criminal courthouse is abuzz with talk of a mysterious, irreverent blogger called Rumpole, an anonymous watchdog — and also a public defender — who keeps tabs on the justice system from the inside . . . [lawyer] blogger Sean Conway understands why Rumpole wants to stay on the down-low. A Florida Bar committee recommended [Conway] be reprimanded for writing that Circuit Judge Cheryl Aleman is an 'evil, unfair witch.' . . .'‘it's disappointing that lawyers feel they have to blog anonymously,’ he says. ‘But the bar is waiting to shoot them down with snipers.")); Mark Cohen, "Judges wary of the 'unshaven blogger'" (Minnesota Lawyer Blog 02/26/2008) ("[T]he pernicious blogger . . . . has struck fear deep into the hearts of some of the state's judiciary. One of the judges' concerns I have heard raised about cameras in the courtroom is the specter of the 'unshaven blogger' coming in with cell phone camera at the ready. Apparently the judges are worried about being made to look sinister or downright ridiculous by a slip of the tongue or out-of-context snippet of dialogue winding up as a video posted on a blog or YouTube"); Jordana Mishory, "Some Fla. Criminal Defense Lawyers Take Aim at Beleaguered Judiciary Via Web Log" Law.com (May 11, 2007) ("The Web site has angered many Broward judges and lawyers. Last week at a news conference, Broward Chief Judge Dale Ross blamed the blog's organizers for trying to 'undermine' the judiciary"").

⁴ Susan M. Olson, Voter Mobilization in Judicial Retention Elections: Performance Evaluations and Organized Opposition, 22 Justice System Journal 3 (2001) ("there is little evidence that judges need worry that performance evaluations will lead to the loss of their seats, even if they score lower than colleagues").

Jan. 26, 2009 - Wall Street Journal editorial: How Modern Law Makes Us Powerless

When there are too many policemen, there can be no liberty.
When there are too many soldiers, there can be no peace.
When there are too many lawyers, there can be no justice.

-- Lin Yutang

According to this editorial by Philip K. Howard, there's a threshold problem for our new president:

Americans don't feel free to reach inside themselves and make a difference. The growth of litigation and regulation has injected a paralyzing uncertainty into everyday choices. All around us are warnings and legal risks. The modern credo is not "Yes We Can" but "No You Can't." Our sense of powerlessness is pervasive. Those who deal with the public are the most discouraged. . . You can't even show basic human kindness for fear of legal action.

. . .

Here we stand, facing the worst economy since the Great Depression, and Americans no longer feel free to do anything about it. We have lost the idea, at every level of social life, that people can grab hold of a problem and fix it. Defensiveness has swept across the country like a cold wave. We have become a culture of rule followers, trained to frame every solution in terms of existing law or possible legal risk. The person of responsibility is replaced by the person of caution. When in doubt, don't.

read article

Jan. 25, 2009 - Denver Post: "FBI looks to public to weed out corruption"

read article

May we recommend to investigators checking in on KnowYourCourts.com from time to time?

Jan. 25, 2009 - The never-ending litany of sorry-ass excuses offered by attorneys for their misconduct

I last reported on this in October, 2008. As I learn of new instances, I simply add to and reprint this feature by moving it up here and adding the newest item to the top of the list. (There will be no shortage of creative new (or recycled) excuses; you will see this entry again).

• Asperger's Sndrome was argued as a malady that impaired Frederick B. Cambell's "ability to empathize with others" and, therefore, might excuse or explain his conduct in disseminating photographs of a minor girl engaging in sexual intercourse during an underage drinking party.
• dysthymic disorder was the disability of the day for John E. DiAlbert, offered as a mitigating factor for misleading a client about the filing of a motion that had not been filed and neglecting a legal matter entrusted to him by another client and then avoiding the client until after the statutory time limit for filing her claim had expired.
• obsessive/compulsive disorder, particular subtype of symmetry and ordering urged in mitigation by attorney John F. Mizner (charged with submitting 34 false travel vouchers to his law firm, thereby obtaining approximately $70,000)
• anger offered as a mitigating factor by attorney J. Murray Zeigler (charged with engaging in conduct involving dishonesty, fraud, deceit or misrepresentation)
• ADHD offered as an excuse for "I got greedy" by attorney John M. Sharp (charged with misappropriating his firm's contingency fee for personal purposes)
• depression offered as mitigating factor by attorney Bob Unterberger (charged with unauthorized practice of law and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation)
• "Bipolar" disorder offered as excuse for misappropriation (theft) by attorney Mark Belz
• crack addiction offered in mitigation by attorney Armando A. Crescenzi (charged with conduct involving dishonesty, fraud, deceit or misrepresentations; conduct prejudicial to the administration of justice and intentional conversion of client funds to his own personal use)
• terminal heart condition suggested by attorney James L. Berg in mitigation for misappropriation of the funds of six clients, forgery, false statements to clients.
• "attention deficit hyperactivity disorder with hyperactive impulsivity, inattentiveness and executive dysfunction, leading to substance abuse" among the reasons offered by attorney Jim Budzak for forging a judge's signature.
• "bipolar affective disorder . . . exacerbated by physical health complications" offered in mitigation by law professor Kenneth Kress for forging student evaluations.

But, hey, don't you worry about these lame excuses gaining any traction here in Colorado: You can rest easy under the protection provided by John Gleason, czar of the Attorney Regulation Counsel, which takes all complaints involving misconduct and dishonesty seriously and thoroughly investigates every complaint (click here for a collection of complaints and dispositions as examples therefor).

Jan. 23, 2009 - - KnowYourCOurts.com exclusive - blogger, Sean Harrington, the first to openly defy Colorado's confidentiality statute regarding judicial discipline?

Well, it's a slow news day, so I thought I'd make some news.

Therefore, as of today --and to the best of my knowledge and belief-- I have become the first private citizen (and journalist) to openly defy Colorado law prohibiting and criminalizing the publication of a judicial discipline matter.

Click here to become unremorsefully complicit in this illegality.

I'm not the first to complain about it. See, e.g., Moreno, Ivan, Judges Conduct: A veil of secrecy, The Rocky Mountain News (June 18, 2007); Secrecy and Judges: Shine Light on Misconduct, The Rocky Mountain News (editorial, June 24, 2007). And see Gag rules try to silence citizens who file complaints against judges, The Legal Reformer, Halt.org (spring 2008) at 5.

As I noted in my January 14 entry (below), Richard Wehmhoefer (hereinafter, "Dr. Rick") has vacated his post after twenty-three (23) years of disservice as Executive Director and senior counsel for Colorado's Commission for the Abolition of Judicial Discipline.

As relevant to this essay, Dr. Rick wrote a treatise in 1988 entitled "Confidentiality of Judicial Disciplinary Proceedings," which appeared in The Colorado Lawyer, the official publication of the Colorado Bar Association. R. Wehmhoefer, Confidentiality of Judicial Disciplinary Proceedings, 17 Colo.Law. 1043 (1988). The treatise discusses Colo. Const. Art. VI § 23(g) and Colo.Rev.Stat. § 24-72-401.

The former provides:

Prior to the filing of a recommendation to the supreme court by the commission against any justice or judge, all papers filed with and proceedings before the commission on judicial discipline or masters appointed by the supreme court, pursuant to this subsection (3), shall be confidential, and the filing of papers with and the giving of testimony before the commission or the masters shall be privileged; but no other publication of such papers or proceedings shall be privileged in any action for defamation; except that the record filed by the commission in the supreme court continues privileged and a writing which was privileged prior to its filing with the commission or the masters does not lose such privilege by such filing.

The latter provides:

The record of an investigation conducted by the commission on judicial discipline or by masters appointed by the supreme court at the request of the commission shall contain all papers filed with and all proceedings before the commission or the masters. The record shall be confidential and shall remain confidential after filing with the supreme court. A recommendation of the commission for the removal or retirement of a justice or judge shall not be confidential after it is filed with the supreme court.

Section 24-72-402 further provides that:

Any member of the commission, any master appointed by the supreme court, or anyone providing assistance to such commission or such masters who willfully and knowingly discloses the contents of any paper filed with, or any proceeding before, such commission or such masters, or willfully and knowingly discloses the contents of any recommendation of the commission before such recommendation is filed with the supreme court is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than five hundred dollars. This section shall not apply to any necessary communication between the members of the commission or the masters appointed by the supreme court or anyone employed to aid such commission or such masters in the filing or documentation of any paper filed with, or any proceedings before, such commission or such masters or the preparation of the recommendation of such commission.

According to Dr. Rick:

the parties to all disciplinary proceedings before the Colorado Commission are not allowed to discuss the nature of the complaint nor the outcome of a hearing with people outside of the proceeding except their attorneys. This confidentiality rule applies to members of the Commission, Commission staff, complainant, judge and any attorneys or witnesses involved in the proceedings.

I disagree. I think that Dr. Rick missed a week or two of his Constitutional Law class when the First Amendment was being covered. For this reason, Rick concluded all of his memoranda to complainants with the following statement:

Please be reminded that this matter is strictly confidential pursuant to Article VI, Section 23(3)(g), Colorado Constitution, and sections 24072-401 and 402, Colorado Revised Statutes.

Even if these provisions could pass constitutional muster, I also think that he missed one or more of his classes covering statutory construction. Significantly, the enforcement provision (the $500 fine) applies only to members of the commission or a master appointed by the Supreme Court or anyone providing assistance to the a Commission member or master. It doesn't apply to complainants or respondents or anyone else who has learned of the complaint or proceedings. (If it did, the General Assembly would have inserted this language into the statute). Additionally, both the Constitutional provision and the statute refer to "papers filed" (past tense). How could the statute prohibit discussion of a complaint or judicial misconduct that took place before the filing of the complaint, as is the case with mine, supra?¹

I decided to do a cursory case law search in Colorado to confirm my conclusions. I found only one published case discussing this statute. The Colorado Supreme Court observed in In re inquiry concerning Lichtenstein, 865 P.2d 204, 208 (Colo. 1984) (en banc) that, “This statute also leaves unanswered several questions relating to the scope and duration of the confidentiality and privilege applicable to proceedings before the Commission.”

While the statute may leave unanswered questions as to the intent of the General Assembly, the U.S. Supreme Court has left little doubt as to the constitutionality of such restrictions: In Landmark Communications v. Virginia, 435 U.S. 829 (1978), the Court held that the First Amendment prohibits criminal punishment of a newspaper for publishing truthful information concerning the confidential proceedings of a judicial conduct commission. The Court further reasoned that "there is practically universal agreement that a major purpose of the First Amendment was to protect the free discussion of governmental affairs." Id. at 839. And see Roy Simon, Confidential Disciplinary Proceedings and the First Amendment (Part I & Part II).

_____________________________
¹ I published my complaint here today, but have not yet filed it.

Jan. 22, 2009 - Colorado, Texas, Massachusetts, Minnesota and Louisiana attorneys --and U.S. Presidents-- take five minutes to consider this short essay concerning: The Import of the Oath.

Great superstitious reverence was attached to the oath. Time had been, indeed, when the act of swearing was considered more important than the matter sworn to. In the days of trial by ordeal, a perjured witness risked being struck down by heaven on the spot. Oaths originally were elaborate, ceremonious to a degree. Each detail must be correctly repeated after the judge, and if an oath-taker fumbled, it was because God impeded the perjured tongue.¹

Yesterday at 7:35 PM Eastern Time, this nation's newest President retook the oath. [News]  The reason is because "[T]he oath appears in the Constitution itself. And out of the abundance of caution, because there was one word out of sequence, Chief Justice John Roberts will administer the oath a second time," said White House lawyer, Greg Craig.


(Pete Souza/The White House via Getty Images)

A president is required by our Constitution to utter, "I do solemnly swear that I will faithfully execute the office of president of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States." The first, time around, Roberts instead said: "that I will execute the office of president to the United States faithfully."

Two other presidents, Calvin Coolidge and Chester A. Arthur, were administered the Oath a second time because of unusual circumstances the first time around.

This may be a time for attorneys to reflect on the meaning and origin of the Oath, which historically has great significance to the profession:

During the same year of 1607, the Commons asked Coke and the Chief Justice of King's Bench for an opinion concerning the legality of the oath ex officio, as administered in the ecclesiastical courts. Actually, all courts of Roman law procedure, including Chancery, operated by this oath. Without it, judges could not proceed to that examination of the defendant which was the hub of inquisitorial procedure.

Nobody objected to the oath in any courts but the ecclesiastical and for perfectly good reason. In Chancery as in Star Chamber, defendants were shown the bill of charges against them factual charges to which they swore guilty or not guilty and then proceeded upon questioning under the oath. Such procedure was quick, efficient and far cheaper than the tedious process by jury at common law. In consequence, the prerogative courts of Roman law procedure were thronged with suitors who brought their cases voluntarily, to save time and money. In days long gone by, when suits had been settled by compurgation and oath-helpers, the inquisitorial oath had come as a great step forward; men welcomed a chance to defend themselves by their own answers under oath. As long as such inquisition concerned facts, it was equitable, by all odds the most practical way to get at truth. ²

In Louisiana one week ago, a Hearing Committee reviewed charges filed against Craig Hunter King, a judge who, among other things, had been removed from office for lying under oath in the disciplinary investigation. He was criminally charged with perjury and public salary extortion and pled guilty to a reduced charge of conspiracy to commit public payroll fraud. He was suspended as a result of the conviction and the Supreme Court denied his application for reinstatement and ruled that "necessary disciplinary proceedings be instituted."

In the bar proceeding, King contended that the proceedings be dismissed for lack of jurisdiction because the sanction of removal from office has already been imposed. The Committee recommended that jurisdiction be exercised in light of the Supreme Court directive that the Committee found that the accused had lied under oath and was "evasive and unwilling to accept responsibility for his perjury."

In Massachusetts --also about one week ago-- the Massachusetts Supreme Judicial Court en banc remanded a bar discipline matter to a single justice with direction to impose a six-month suspension of an assistant district attorney, Fawn Balliro, who was found to have testified falsely under oath at a trial where she had been the victim of a domestic assault. The Court noted, "We have stated that 'an attorney who lies under oath engages in "qualitatively different" misconduct from an attorney who makes false statements and presents false evidence,'" and that "the presumptive sanction for lying under oath is a two-year suspension . . . In more egregious circumstances, typically those involving aggravating factors, an attorney's giving false testimony under oath can justify disbarment."

The hearing committee concluded that Balliro's false statements to a prosecutor and her false testimony under oath at trial violated Mass. R. Prof. C. 3.3(a)(1) (lawyer shall not knowingly make false statement of material fact or law to tribunal); Mass. R. Prof. C. 3.3(a) (4), (lawyer shall not knowingly offer evidence that lawyer knows to be false [with exceptions not relevant here] ); Mass. R. Prof. C. 8.4(c), (professional misconduct for lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); Mass. R. Prof. C. 8.4(d), (professional misconduct for lawyer to engage in conduct prejudicial to administration of justice); and Mass. R. Prof. C. 8.4(h), (professional misconduct for lawyer to engage in any other conduct that adversely reflects on fitness to practice law). The hearing committee stated that while the Balliro's psychological state at the time of her false testimony was a causal factor in giving such testimony, it did not so impair her that she was unable to form the mental state --knowing falsity-- required for a violation of rules 3.3(a)(1) and (4), and rule 8.4(c). Rather, the committee continued, the respondent made a conscious decision, based on emotions, to give false testimony, and any impairment she suffered did not negate the elements of her offenses under those rules and under rule 8.4(d) and (h).

And, last week in Minnesota, another attorney who testified falsely under oath at a deposition was suspended for 90 days by that state's supreme court in a per curiam opinion. The Court observed:

Every attorney admitted to practice law in Minnesota must take the following oath:

You do swear that you will support the Constitution of the United States and that of the state of Minnesota, and will conduct yourself as an attorney and counselor at law in an upright and courteous manner, to the best of your learning and ability, with all good fidelity as well to the court as to the client, and that you will use no falsehood or deceit, nor delay any person’s cause for lucre or malice. So help you God.

Minn. Stat. § 358.07 (2008) (emphasis added). Building on the attorney oath, Minnesota Rules of Professional Conduct 8.4(c) and (d) provide that “[i]t is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; [or] (d) engage in conduct that is prejudicial to the administration of justice.”

In rejecting the referee's recommendation of an indefinite suspension with leave to apply for reinstatement within six months, the Court opined:

[W]e emphasize offering false testimony under oath is a serious offense. It is particularly serious when the violation is committed by an attorney whose oath requires him or her not only to exhibit personal honesty but also to uphold the integrity of the judicial system.

Note: Hat-tip to the Legal Profession Blog for reporting on the foregoing three items.

In Colorado, attorneys swear in by the following:

I DO SOLEMNLY SWEAR by the Everliving God (or AFFIRM) that: I will support the Constitution of the United States and the Constitution of the State of Colorado; I will maintain the respect due to Courts and judicial officers; I will employ only such means as are consistent with truth and honor; I will treat all persons whom I encounter through my practice of law with fairness, courtesy, respect and honesty; I will use my knowledge of the law for the betterment of society and the improvement of the legal system; I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed; I will at all times faithfully and diligently adhere to the Colorado Rules of Professional Conduct.

Yet, I have concluded (long ago) that, despite these examples from our President and from around the country just this past week, and despite Colorado agency protestations to the contrary (e.g., here and here), the sacred Oath means very little: A few months ago, I reported that a Denver attorney, Madeline Wilson, made knowing misrepresentation of material facts in disciplinary investigations and gave false testimony to a Texas court in October of 2008. I filed a complaint with the Colorado Office of Attorney Deregulation Council and a separate Complaint with the Texas State Bar Office of Thief Disciplinary Counsel.

In one reply, the OARC argued on behalf of the attorney-perjurer, "Ms. Wilson stated that she did not have her client's physical address. Ms. Ryan stated that she told Ms. Wilson her mailing address.³ As you know from your own experience and the addresses you use, physical address and mailing address can be different. Regardless of my opinion on this issue, the appropriate forum for deciding whether Ms. Wilson lied to the Texas Bar Counsel is the Texas Bar Counsel." [underline emphasis in the original].

In a second response (concerning newly discovered evidence -- copies of Wilson's emails that evidenced her knowledge of mother's physical location and, which also established that Wilson had given false testimony under oath concerning the giving of legal advice in Texas), the OARC declined to review the evidence --posted to this site-- explaining "Due to concerns about computer viruses and security issues, this office avoids accessing questionable or unsecure websites . . . Although I understand your personal opinions about Ms. Wilson . . . I disagree with your interpretation of the Colorado Rules of Professional Conduct."

Yet, the OARC had logged into this site at least forty-five (45) times in 2007 and nine (9) times in 2008, including once the very next day after that response was mailed. (See my Dec. 3, 2008 entry, below, for details).

Meanwhile, the Office of Thief Disciplinary Counsel of the Great State of Texas responded to news (those same newly discovered emails) that Wilson had lied during the course of its two prior investigations, and that she had given false testimony to a Texas court six months after the investigation was closed:

It has been determined that this is your fourth attempt to re-file your complaint after your initial three grievances resulted in a dismissal. Please be advised that this last complaint is being returned to you with this letter.

Needless to say, if one concedes the impossibility of reporting misconduct --Wilson's perjured affidavit-- that will not have occurred until six months after the prior complaint is disposed of, it's equally impossible that the report of the affidavit constitutes a re-filing of the earlier complaint. Moreover, comment 1 to Tex. R.P.C. 8.01 --which I did not author-- provides, “it is a separate professional offense for a lawyer to knowingly make a material misrepresentation or omission in connection with a disciplinary investigation of the lawyers own conduct.”

But, in the world of attorney discipline, as in the Twilight Zone, anything is possible -- or impossible.

You have entered the twilight zone
Beyond this world strange things are known
Use the key, unlock the door
See what your fate might have in store
Come explore your dreams creation
Enter this world of imagination

The simple and unavoidable conclusion is that attorneys in Colorado and Texas are bound neither by the Oath of Admission nor the Rules of Professional Conduct.

__________________________
¹ Catherin Drinker Bowen. 1957. The lion and the throne: The life and times of Sir Edward Coke. (London: Little, Brown & Co.) at 150-51.
² Id. at 296-97.
³ Actually, the deposition transcript states:

Harrington Counsel: Has she been aware of where you have been since you moved to Texas?
Deponent: Yes
Harrington Counsel: Have you told her where you lived?
Deponent: Yes

Jan. 21, 2009 - Government counterparts to the Archdiocese of Boston? Mainstream paper accuses federal judiciary of relocating judge charged with criminal sexual harassment to protect him

The Daily News, Texas' oldest newspaper (since 1842) ran an editorial a couple of days ago, observing that, "it was clear the federal judicial system had failed to do its duty in handling accusations against [Samuel] Kent, who was once Galveston’s only federal judge."

Commentator Heber Taylor further opined:

If the judicial council were going to conduct a serious investigation, it could have begun when Cathy McBroom, Kent’s former case manager, complained of an alleged assault in the judge’s chambers in Galveston’s federal court. The judges who looked into this complaint could have seen to it that assault charges were filed with the proper authorities. Instead, they removed Kent from the bench for four months, with pay. They then transferred him to Houston.

Isn't that what senior Church officials did with pedophile priests? Transfer them to another parish?

The judges also went to extraordinary lengths to protect Kent. Their order reprimanding him was ridiculously vague, giving no hint of the nature of the accusations.

Exactly like the dismissal orders written by our Tenth Circuit Chief Judge Robert Henry. See for yourself by reading the orders posted at the bottom of the page at this link: http://www.ca10.uscourts.gov/ misconduct.php

It was an obvious attempt, by people who are responsible for upholding the law, to protect one of their own, rather than to protect alleged victims or the integrity of the court. In late 2007, some members of the House Judiciary Committee called for an investigation into this case to determine whether impeachment proceedings are justified . . . The Constitution says Congress has a role to play when the federal judicial system fails to keep its own house in order. Can you imagine a more complete failure?

Well said, Mr. Taylor. And your comments are, indeed, newsworthy. “The public’s confidence in the judiciary hinges on the public’s perception of it, and that perception necessarily hinges on the media’s portrayal of the legal system.” ¹

____________________________
¹ Justice Felix Frankfurter, quoted from Journalism and the Judiciary

Jan. 20, 2009 - Sixth Circuit adopts the Tenth Circuit's most strained application of standing doctrine to deal a blow to the First Amendment, leaving intact Michigan's rules that disallow attorneys from making disparaging remarks about the judiciary.

Update 1/21/2008: updated to include recent press coverage (scroll to end of article).

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In Smith v. USCA10, the Tenth Circuit ruled that Ken Smith¹ lacked standing to attack the circuit's unpublished opinion practice, even `though he had been harmed previously by it. The panel established a policy whereby Smith could only "enjoy" standing between the limited time that an unpublished opinion (presumably adverse to him) had issued and the time had expired for filing a Petition for Rehearing. According to the court's reasoning, he would not have standing before the opinion issued and he lacked standing for any such opinion issued in the past that was not subject to further review.

The Sixth Circuit issued an opinion with equally illogical reasoning, today, in an important case argued by Michael Deszi (see my January 13, 2009 entry, below).

Attorney Geoffrey Fieger was accused of making vulgar comments on a radio show he hosted concerning certain judges in a case decided adversely to one of his clients. The Michigan Attorney Grievance Administrator charged Fieger with violating the Rules of Professional Conduct ((MRPC) 3.5(c) and 6.5(a), known as the “courtesy and civility” provisions). Pursuant to a settlement, Fieger stipulated to a reprimand while reserving his rights to challenge the applicability and constitutionality of the rules. Thereafter, the Michigan Supreme Court upheld the violations and the constitutionality of the rules as applied. See Grievance Adm’r v. Fieger, 719 N.W.2d 123 (Mich. 2006).

Fieger and an attorney co-plaintiff filed suit in the U.S. District Court for the Eastern District of Michigan, challenging the constitutionality of the disciplinary rules on facial grounds (and somehow avoiding running afoul of the Rooker-Feldman doctrine, employed dubiously and routinely to rid of such cases). The court ruled in Fieger's favor and held that the courtesy and civility provisions violated the First and Fourteenth Amendments to the United States Constitution because the rules are overly broad and vague. The court enjoined their enforcement.

Today, the Sixth Circuit vacated the district court's judgment and remanded the case with instructions to dismiss Fieger's complaint for lack of jurisdiction. The circuit court held today that Fieger and co-plaintiff lack standing because they supposedly have failed to demonstrate actual present harm or a significant possibility of future harm based on a single, stipulated reprimand; they have not articulated, with any degree of specificity, their intended speech and conduct; and they have not sufficiently established a threat of future sanction under the narrow construction of the challenged provisions applied by the Michigan Supreme Court.

More specifically, although the Circuit recognized that standing jurisprudence is relaxed in First Amendment cases, it created a legal standing minefield that, if applied to similar cases (in contexts other than attorney disciplinary matters), would make it impossible for anyone who had already been harmed by such regulation --and who would most certainly be harmed again by such regulation-- to have standing.

To reach this conclusion, the court first preceded its reasoning by explaining that, although it's irrelevant to the decision, "[W]e doubt that plaintiffs would be successful on the merits of their claim."²

Next, the panel went on to explain that, although the Michigan Supreme Court has already sanctioned Fieger under MRPC 3.5(c) and MRPC 6.5(a), he lacks standing because he hasn't stated with specificity what future speech or conduct he intended to engage in.³ The panel reasoned that Fieger had "not presented sufficient facts to demonstrate a threat of sanction arising from [his] unspecified future criticisms" (as if being disciplined twice, already, was not enough "facts").

Next, after decreeing that it would not do so, the panel went on to analyze the merits of Fieger's factual situation (departing from an analysis limited to the constitutionality of the rules) by finding that "the Michigan Supreme Court emphasized that Fieger violated the rules, not because he criticized judges, but because he made vulgar, personally abusive comments about participants in a pending case." ⁴ To engage is this analysis is called "hypothetical jurisdiction," which supposedly was done away with by our Supreme Court long ago.

By engaging in the foregoing analysis of Fieger's prior speech, the panel was then able to make the following pronouncement:

plaintiffs do not suggest that they or any other Michigan attorneys – at present or at any time in the immediate future – intend to make vulgar, crude, or personally abusive remarks about participants in pending cases for which discipline might be threatened under the challenged rules.

In my opinion, standing certainly does exists for violations of the First Amendment (See, e.g., Brown v. Damiani, 154 F. Supp. 2d 317, 320 (D. Conn. 2001)), which bars prosecution motivated by the improper purpose of interfering with constitutionally protected speech. See U.S. v. P.H.E., Inc. 965 F.2d 848, 849 (10th Cir. 1992). A credible threat of present or future prosecution itself works an injury that is sufficient to confer standing, even if there is no history of past enforcement. See Ward v. Utah, 321 F.3d 1263, 1267 (10th Cir. 2003); Doe v. Bolton, 410 U.S. 179, 188 (1973); Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298-99 (1979); New Hampshire Right to Life Political Action Committee v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996); Gibbs v. King, 779 F.2d 1040, 1046 (5th Cir. 1986). See also L. Tribe, American Constitutional Law 115 (2nd ed. 1988) (“A person subject to criminal prosecution, or faced with its imminent prospect, has clearly established the requisite of 'injury in fact' to oppose such prosecution by asserting any relevant constitutional or federal rights”).

The question here, which I did not find answered in the majority's opinion, is whether making "vulgar, personally abusive comments about participants in a pending case" is constitutionally protected vel non. If it is not protected, then there has been no constitutional violation, could be no constitutional violation and, therefore, there is no standing.

In summation, I believe that this opinion renders a perversely strained application of standing jurisprudence that is aimed solely at preserving the dignity of the judiciary and at the expense of the First Amendment.

Today's opinion includes a dissent, which I encourage you to read. As Beverly Mann⁵ pointed out in her analysis earlier today, the dissent recognizes that today's decision:

conflates facial and as-applied constitutional challenges, and effectively holds that all facial constitutional challenges are themselves unconstitutional because, in order to have standing to bring a constitutional challenge, the plaintiff must show an as-applied constitutional violation. In other words, a favorable as-applied merits ruling is a prerequisite to standing to litigate the issue at all. The majority discussed the specifics of Fieger’s past speech, ruled that that speech is not protected by the First Amendment, and ruled that therefore Fieger lacked standing to bring a facial challenge to the statute. Presumably, this is a tautology that they are now establishing in all challenges to the constitutionality of all statutes, state and federal. I question whether a federal circuit court has the authority to categorically require plaintiffs making facial constitutional challenges to win on the merits as applied to the specifics of their situation in order to then be able to make a facial challenge to the constitutionality of the statute at issue. I certainly know of no other federal circuit court that makes any such requirement.

Further reading:

• Fieger loses case tied to criticism about judges, Detroit Free Press
• Fieger's appeal of Michigan code rejected, Detroit Free Press
• High-profile Michigan attorney loses his 'right to criticize judges' lawsuit, Tha Nat'l Law Journal
• Fieger's suit dealt setback, The Detroit News

___________________________
¹ Ken Smith has been a regular contributor to this site.
² If it's irrelevant, why mention it, except to express disdain for the appellant and his insouciance --or, rather, temerity-- towards the judiciary?
³ It doesn't matter, anyway, as the panel further explained that stating with particularity some intended speech or conduct would be "impermissibly conjectural," citing Morrison v. Board of Education, 521 F.3d 602 (6th Cir. 2008).
⁴ This bit of "ingenious" reasoning reminds me of the Colorado Court of Appeals recent decision in St. Johns v. Scott, where it held that the the gruesome display of aborted children was not a message, but a "method" of conveying a message and, therefore, the injunction based on content really wasn't based on content but rather was designed to reasonably curtail a method.
⁵ Bev Mann has been a past contributor to this site.

Jan. 20, 2009 - Ever wonder what search terms bring visitors to this site?

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Some of them are comical. I've compiled nearly all of the search terms and phrases that have directed visitors to this site from popular search engines like Yahoo! and Google. I filtered out only "KnowYourCourts.com" and derivatives.

Here are a few of my favorites, with commentary in italics:

• colorado courts are a sham | Say it ain't so!
• czar wehmhoefer | Not anymore.
• david littman attorney sucks | So I've heard.
• disbar dan caplis | An intriguing idea.
• edward nottingham where is he now | Check out Elways.
• how likely is it for mother to lose custody for working at strip club? | Depends on how well she knows the judge.
• i found an ipayfriendfinder charge to my husbands credit card | Darling, that's the "code" for "AdultFriendFinder.com," an online swingers' directory.
• i plan to do everything in my power to make sure he reaps what he is currently | Nothing like a woman's scorn.
• jefferson county courts suck colorado | No comment. I have a case pending there right now.
• judge mary celeste denver incompetent | So I've heard.
• judge nottingham pig | Do you mean the judge or the photograph he inserted into one of his orders?
• judge sean harrington | Not quite.
• nottingham do not call phone bully judge |
• nottingham edward porn bush | No comment.
• nottingham porn | (multiple inquiries from the U.K., apparently looking for local adult book stores)
• people should not be afraid of their governments. governments should be afraid of their people james madison | Snap out of it, mate. It's 2009.
• personality disorder litigation pro se | Yes. The term for that disorder is called, "hope," and "faith." It must be eradicated through medication. Of course, we do have "other ways." Mu ha ha ha ha ha ha ha.
• picture of sean harrington | What's it worth to ya?
• porn star nottingham | I hope not! That's a flick I'll avoid!
• pro se brief must include citations | Ya think?
• procedural due process rights of pro se civil litigants | . . . don't exist
• report an unethical colorado lawyer | Good luck!
• restricting parenting time colorado | Easy as pie. File a "Emergency" Motion ex parte under Section 14-10-129(4), which motion need contain nothing more than rank speculation, innuendo, hearsay and manufactured claims of concern, then notify the parent --preferably by phone-- a few hours but not more than a half day before the hearing. I can refer you to several attorneys who specialize in these motions.
• richard matsch knowyourcourts | I've heard nothing but good about this federal judge in Denver, hence no criticisms here are yet to be found.
• robert blackburn federal judge | Blackburn, however, is currently next up on our list for scrutinization.
• sean harrington & jail time | Not quite yet. But I believe Madeline Wilson, Brett Huff, Randy Dement, Jane Tidball and handful of judges and attorneys in Colorado would very much like to make that dream come true.
• sean harrington & judge nottingham | You won't see us together at dinner, a play, or a ball game (I assure you).
• sean l harrington crazy | Crazy enough to start up this Web site, you bet!
• should justice allison h eid of the colorado supreme court te retained in office | If you're leavin' it up to me, I'd say probably not (if I don't know the judge, I err on the side of caution). But, if her husband has his way, it becomes a moot question. (Click here).
• site:www.knowyourcourts.com complaints on dr. fyfe | Yes, we have many --likely a very small fraction of the total-- posted here.
• state of colorado can an individual file pro se papers with no help of an attorney | Well, that depends on whether you're planning on winning your case.
• sturniolo got is ass in a sling | Yes, he sure did. (Click here)
• sturniolo porn star | Not that I know of. However, given that he ostentatiously advertises as a "Christian" attorney, I wouldn't be surprised to learn of it. Look carefully through the amateur section of your local adult book store and let me know if you recognize his mug on any of the DVD cases. ¹
• swinging club nottingham | Once again, some poor bloke searching for casual sex in Nottingham, England, has stumbled across our site. I wonder why these search terms would've attracted these hits?
• the honorable edward w. nottingham | You can dispense with the honorific. It's "Mr. Nottingham."
• to distrust the judiciary marks the beginning of the end of society | Quite true, but seemingly inconsequential.
• tracy yokich, things that shes done wrong | Where should we start?
• unethical behavior from colorado attorney | Really? Could it be?
• what are attorney sanctions colorado | Pretty much non-existent, unless they fall into one of four categories (set forth in my January 14^th entry (below).
• what can the supreme court do when the federal judge shows misconduct? | Not a damn thing.
• what church does chief justice edward w. nottingham belong to? | Why? Who wants to know?
• what does the court do when a pro se becomes annoying? | The same thing it does when the pro se is not annoying: Rule against him, ignore him, rail against him, insult him, and fine him.
• what happens if presiding disciplinary judge in colorado does not rule within time limits | Not a damn thing, C.R.S. Section 13-5-135 notwithstanding.
• what to do if you have a bad parenting time coordinator in colorado | Pay him or her off or, if you're a smokin' hot woman and the PC'is male, you may have yet another viable option. Alternatively, filing a Motion to disqualify is a supreme exercise of futility, if you're into that sort of thing.
• whens the luckiest time for a gemini to go to the casino an play | You clicked on the wrong Web site, lady.
• where do i report unethical conduct against an attorney in colorado | If you're hoping for some action to be taken against the attorney, I'm not aware of anywhere you can file such a report.
• where to report judicial misconduct against a federal judge | If you're hoping for some action to be taken against the judge, I'm not aware of anywhere you can file such a complaint.
• who can remove a federal judge from office for misconduct | The U.S. Senate. Good luck there.
• who hates judge nottingham | Where do we begin?
• why did my attorney suggest we need parenting coordinator | Because he or she doubtless has a very rewarding business relationship with all of the parenting coordinators that were put forth for consideration.
• why mike zinna is an ass | Why don't you ask him? His email is here

The entire list is here.

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¹ Note that this is hyperbole or, more specifically, my own pessimistic, conclusory conjecture. It is neither an allegation nor an informed opinion based on any information or facts that are known to me.

Jan. 16, 2009 - Another SLAPP suit brought against Colorado psychologist

Quite frankly, I'm surprised that any graduate of law school would have contemplated, much less filed this case at all.¹ Nevertheless, Richard Bednarski and Richard Tegtmeier (Tegtmeier & Bednarski, LLC) have done just that.

This defamation lawsuit is at least the second brought against Elizabeth Paterson, a psychologist in Colorado Springs. The essence of the suit appears to be that Paterson reported and exposed Deborah Smith-Winiarski for defrauding the U.S. Government in the pursuit and receipt of social security disability benefits. As a result and, presumably after an investigation and administrative proceedings, the SSA discontinued benefits to Smith-Winiarski, the Complaint alleges.

Despite this administrative outcome, Smith-Winiarski, through her attorney Reichard Bednarski, has asserted the following:

[Paterson] issued correspondence through the mail to: to the United States Social Security Administration and its agents; the Internal Revenue Service and its agents; and the Inspector General of Health and Human Services, and the department's agents. Such correspondence falsely, maliciously and intentionally represented that Plaintiff: Concealed her assets from the SSA while receiving disability benefits for over 15 years; concealed material facts or events that affect eligibility for benefits for over 15 years; misused federal benefits for over 15 years; fraudulently misused contracting funds for over 15 years; committed acts indicative of Medicare and tax fraud for over 15 years; engaged for 15 years in full-time employment as an insurance agent . . . , receiving pay (approximately, $11,500.00 per year) that renders her ineligible for federal benefits she has accepted; and probably received $165,000.00 in income over 15 years that she wrongly failed to report in tax returns. . . . Defendant's correspondence . . . includes intentionally false, malicious and material allegations that Plaintiff brought false complaints and grievances against Plaintiff to insurance provider United Behavioral Health, and to the Colorado Psychology Regulatory board, as a means to fulfill retaliatory and vindictive motives. Defendant used these false representations to induce the SSA, the IRS and the Inspector General to protect Defendant's anonymity

Although