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Sep. 4, 2008 - Surreal Corruption: Jefferson County Colorado

Readers of this blog will note that I've been very outspoken about despotic, imperialist judges, including, but not limited to Edward Nottingham.1 That opinion is shared by many others and my conclusions are informed by facts. As my naivity has faded away over the last few years, I have learned that judges like Nottingham --suffering from gavelitis-- are not the exception, but rather the rule.

One of the gratifying aspects of the work I do is that --like the situation with Nottingham-- I don't have to fabricate my evidence or resort to exaggeration. And I don't have to wait around long for corroboration, anecdotes and facts to fall on my lap.

The same has been true for another capricious judge who, I have maintained, is a militant feminist with no respect for the Rule of Law. As a result of her caprice and personal biases, a blameless eight-year-old girl --my daughter-- experienced most of her childhood without a father. More than a blight on her childhood, this undeserved sentence is often a crippling handicap that many children never overcome.

Aside from the fact that I've reversed this judge 3½ times out of four appeals (it's no wonder why she was finally recused), there's been no shortage of corroboration of the corruption extant in JeffCo's Taj Mahal, within which that district court is located. Some of that corroboration comes from years of chinanery surrounding another "vigilante journalist," Mike Zinna, and his crusade against Jefferson County, about which Alan Prendergast (The Westword) reports:

Whatever ax Zinna has to grind, the guys on the other side [JeffCo] seem to have a much more impressive collection of cutlery: Recently released CBI interviews, internal county memoranda, witness affidavits and court records stemming from the Zinna litigation suggest that a culture of payback is still thriving at Jeffco's Taj Mahal, where the three elected commissioners control an annual budget of $382 million. The documents may not amount to a smoking gun — the case against Congrove, as [federal judge] Matsch noted, is highly circumstantial — but they do present a dismal picture of backroom deals and backstabbing intrigue, cronyism and petty vendettas, snitches and "confidential informants" and veiled threats. And running through it all is a dangerous level of Zinna obsession, something you might find in a weird little art-house film. Take your pick of opening scenes:

A county commissioner heads out to the [county] airport with a pair of binoculars to keep an eye on Zinna. A county attorney talks about knowing people who can make problems like Zinna disappear. Zinna's sex life becomes a topic of discussion — and, apparently, surveillance — on a rogue website created by a tax protester with strong ties to Republican leaders in the county.

Confidential files vanish overnight or are leaked to the press for political leverage. Key employees are hired, promoted or fired not because of their sterling qualifications, but because of who or what they know. The county treasurer is charged with soliciting a kickback from an aide, only to claim that he was set up by a county commissioner.

"Government, even in its best state, is but a necessary evil," Thomas Paine wrote. "In its worst state, an intolerable one." The lords of payback in Jefferson County have boiled this down to a simple motto:

You mess with us, we mess with you.

Prendergast's piece is an interesting read, describing the lengths at which officials in Jefferson County government went to retaliate against Zinna for, among other things, his Web site (archived here) similar in purpose to this site.

Certainly one could argue that the mere Taj Mahal proximity of the court to Jefferson County government (including the county DHS and sheriff's office, as set forth in the Prendergast article) is purely circumstantial; probative of nothing concerning the judiciary or court administration. To that, I say, "Too bad. If you don't like it, get your own damn blog."

Apparently --according to the lawsuit and as suggested in the Prendergast article-- JeffCo did get its own Web site, erected for the sole purpose of taking down Mike Zinna. Go figure.

Further reading:

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1 See, e.g., The Peublo Chieftan, Special Committee Joins Probe of State's Chief Federal Judge (Apr. 29, 2008) ("Sean Harrington . . . had an unsuccessful case in Nottingham's court [had his case 'thrown' (predetermined, notwithstanding the merits or law)] and . . . has made strong public criticisms of the judge"); The Westword, More Naughty Stories About Nottingham (Mar. 24, 2008)("In the pile-on frenzy that has gripped local media outlets and bloggers over Judge Edward Nottingham’s reputed bad behavior recently, nobody probably has a better claim to the story than pro se litigant Sean Harrington and his website, KnowYourCourts.com. Harrington was railing against the arrogance of Colorado’s federal courts, including Nottingham’s bully-boy demeanor, long before the revelations about strip-club visits, parking in a handicapped spot, allegedly having ex parte negotiations with hookers, etc. And it was Harrington who filed a complaint about Nottingham’s personal conduct that is now being investigated by the 10th Circuit Court of Appeals")

Sep. 4, 2008 - Legal journalism at the crossroads?

Who will tell the public the story of the American legal system? Increasingly, it seems it’s the legal system itself, or more specifically, the players within the system—the courts, law firms, local bar associations, specialized legal news publishers, lawyers, and law professors. The days are waning for in-depth coverage of the courts by the mainstream news media. What has replaced it is an intriguing if confusing mix of law-related Web sites, publications, podcasts, and blogs, many of which are coming from outside of journalism, and all of which are contributing to a new definition of what constitutes legal news in America.

So begins this article, Legal Journalism at the Crossroads, appearing in the D.C. Bar's online newsletter.

"I’m not saying we’re at this point yet, but I think there is some danger in having the legal system practically ignored by the mainstream media and covered exclusively by organizations that have a vested interest in the system and the result,” says Mark Obbie, director of the Carnegie Legal Reporting Program at Syracuse University’s S.I. Newhouse School of Public Communications.

The article also observes, "Today’s reporting on the legal system, and especially the courts, is frequently filtered through sophisticated media platforms, such as . . . daring innovators and citizen journalists who slap a masthead on a Web site and call it legal news."

Sounds good to me.

No offense to Dennis Huspeni and Felisa Cardona and others in the local Denver media, but they have constraints that we're not bound by. These constraints include their obligation to the appearance of objectivity, limitations on word count and --as ABC News's Vic Walter explained to me-- a need to dumb down the message to the lowest common denominator of a broad audience.

Robert Boczkiewicz, a Rueters reporter who covers the federal courts in the Tenth Circuit, recalled, "in the past at least couple of years, the amount of coverage of the federal courts in Colorado has gotten less news coverage. The primary reason for that is the cutback in the level of staffing of several news organizantions that have traditionally given more attention to the federal courts."

Indeed, I'd wager that traditional news outlets have, as Legal Journalism at the Crossroads notes, downsized because of the alternative media/fora. I also will go out on the limb to reject the warnings of commentators like Obbie, supra, because it's quite clear [to me] that we have available to us a much more comprehensive (`though sometimes subjective) coverage of law-related issues from alternative journalists including, as examples, Alan Prendergast, Andy Oh Willeke, Evan Schaeffer, "GenghisHitler," William Bedsworth, Mike Frisch, and Burt Hanson. To be honest with you, most of these sources --unlike me-- have no axe to grind about anything. They report news and most judicial decisions with expertise and insights that traditional journalists simply don't have.

I can also reveal that there's a symbiosis between the traditional and alternative media. Journalists regularly check in to blogs like mine daily looking for a scoop or unique insights, while bloggers (like me) check The Denver Post, Rocky Mountain News, and other sources daily looking for something to bloviate about.

Sep. 3, 2008 - Colorado paralegal launches Web site challenging Colorado's Unauthorized Practice of Law rules and the Power of Attorney statute

The Web site is http://www.atyourperil.net.

Sep. 2, 2008 - "Apparent" incompetence of attorney and federal magistrate result in man being "forgotten" in jail for nearly two years

According to St. Louis Post Dispatch, Joseph A. Shepard, 53, "is a man the system forgot, apparently ignored by his own attorney — and the prosecutor and judge — as days ticked by in a municipal lockup where he was confined to a cell 23 hours a day."

His attorney, Michael P. Kelly, who has a private practice and also is a municipal court judge, has not filed a single document on behalf of his client in all of 2007 and 2008, court records reveal. The last was Sept. 29, 2006. And he failed to file documents that could have allowed Shepard to be released on bond more than two years ago, according to court documents and prosecutors.

U.S. Attorney Catherine Hanaway said her office first realized Shepard was still in custody when it negotiated in mid-July with Kelly about a plea bargain. "I am very concerned about his lawyer's performance," she said.

Prosecutors also discovered that U.S. Magistrate Judge Frederick Buckles had never issued a ruling after Kelly challenged some of the evidence in the case."Somehow it just slipped through the cracks," Buckles said.

Only after prosecutors brought the case to the attention of Chief U.S. District Judge Carol Jackson this past Thursday, did she schedule a status conference earlier this morning to discuss releasing Shepard on bond. It will be just over 106 weeks since he last appeared in front of a judge.

Aug. 29, 2008 - Reports of federal judicial misconduct that ought to shock the conscience are old news to KnowYourCourts.com commentators

In one decision by the San Francisco-based 9th U.S. Circuit Court of Appeals in March, U.S. v. Hall, the court remanded the case of two men convicted of securities fraud and ordered that it be given to a different judge.

The opinion noted “the catalog of inappropriate behavior by the trial court is long, so we merely summarize it here.” One example: “Sua sponte interposing adverse evidentiary rulings with such frequency that the government was effectively relieved of its responsibility to make objections.”

. . .

After congressional rumblings in recent years about replacing the judiciary’s self-regulation with an inspector general, the U.S. Judi­cial Conference is pushing harder for circuits to deal more forcefully with errant judges.

The foregoing is an excerpt from an ABA Law Journal article, Real Trouble: A federal judge's behavior could move the line between judicial freedom and misconduct, by Terry Carter and published today.

I find Terry's article refreshingly candid about the import of federal judicial misconduct and the extent to which it is beyond plenary review, a topic that I've been trying to exhort ABC's Vic Walter, Rueter's Robert Boczkiewicz and others to take on. Unfortunately, only a select handful of elite journalists, including Pamela MacLean and Adam Liptak, seem willing to explore the subject earnestly. A couple of others --e.g., Nathan Koppel, Tony Mauro-- gingerly write about the topic by barely scratching the surface, leaving circumspect opining to professors Hellman, Lubet and Geyh.

On the "positive" side, a former prosecutor referring to one federal judge, recalled, "he . . . actually read[] whatever I submitted—which you don’t always expect with other judges." Id.

So, judges aren't reading briefs, as a general rule? Hmmm.  I seem to recall making that allegation about our Judge Naughty (here), which allegation was dismissed as "merits related."

I think we can expect a little more for our tax dollars.  Don't you agree?

Aug. 29, 2008 - Adams County - tragedy and travesty - KnowYourCOurts.com exclusive

This story was supposed to have been about Lorna Hein, to begin this way:
This absurd chronicle is about a criminal misdemeanor case, which has --after seven years of dormancy-- evolved into a bizarre action for declaratory and injunctive relief:

In February of 2000, a defendant was charged with violating a civil protection order. He filed a not guilty plea, but later stipulated to a deferred adjudication agreement with the prosecution on a charge of disorderly conduct, a petty offense. The defendant was ordered to pay $68 in court costs, which the record reveals, was paid, albeit untimely. The clerk assessed a time fee of $25 in late 2000 or early 2001 but, on January 17, 2001 the defendant and the prosecution moved to close the case as successfully terminated pursuant to C.R.S. § 18-1.3-102. The Adams County Court adopted the stipulation and the case was closed.

End of story, right? Not quite.

Seven years later, in April of this year, Lorna Hein of the Adams County Office of the Collections Investigator, contracting with OSI Collections, obtained and served a Notice of Attachment of Earnings on defendant’s employer in Minnesota for $48.87 [no, that's not a typo --forty-nine friggin' dollars!] The employer’s agent, ADP Financial and Compliance Services apparently believed the defendant/employee was a Colorado resident and instituted a wage garnishment. Defendant notified ADP that he was, in fact, a Minnesota resident and that garnishments must be prosecuted pursuant to Minnesota law. ADP agreed and contacted OSI and obtained a promise to honor a stop-payment. OSI then consulted with Adams County's Lorna Hein, who advised OSI to process the garnishment notwithstanding defendant’s domiciliary or the effect of Minnesota law.

Defendant moved to vacate the attachment of earnings, arguing, inter alia, that the the court’s dismissal of the case pursuant to stipulation relating to the terms of the deferred adjudication agreement constituted accord and satisfaction by operation of law and that the Office of the Collections Investigator violated the federal and Colorado Fair Debt Collection Practices Act and the laws of a sister state.

In connection therewith, Hein misrepresented and misused a statute that, in certain circumstances not present here, would have given her access to confidential state databases (such as employment, tax records, inter alia). She relied on that same statute in support of her unlawful refusal to comply with defendant's Colorado Open Records Act request concerning how she obtained his personal information. Defendant subsequently moved the court for declaratory and injunctive relief on the issue of the Open Records Act compliance and the authority under which the Office of the Collections Investigator may obtain private information.

In other words, it appears that the Adams County Office of the Collections Investigator, an arm of the Adams County Court, has been using patently unlawful collections practices. And, it appears, that this particular pursuit of $48.78 seven years later may impact how this office goes about collecting hundreds of thousands of dollars in court costs, fines and fees. The case remains pending.

What is certain is that both Lorna Hein and OSI Collections is violating a contract they entered into with the State of Colorado. Lorna Hein, in particular, appears to be in violation of a certification that her access to state databases was conditioned upon lawful use of that information.

However, this isn't the first time that Lorna Hein --who initially refused to give her name over the phone for fear of retribution-- has been in trouble with the law. In 2003, the Colorado Attorney General filed suit against Hein for violating the Colorado Consumer Protection Act by running one or pyramid schemes that involved many employees of the Adams County Court: The case was filed in District Court, Adams County, People v. Hein, No. 03-CV-1005. Hein entered into a Stipulated Judgment and paid $9,150 in civil penalties and disgorgement of illegal proceeds (restitution).

Significantly, Adams County has refused to defend Lorna Hein in this latest apparent violation of law. Two weeks ago, chief deputy district attorney Sean May, who "recently had been promoted to be one of the 17th Judicial District's chief trial deputies and help[s] oversee the entire Adams County court system" 1 filed a response which, by operation of law, admitted the allegations.
If you've read the news, recently, you may already know that Sean May was gunned down Wednesday night outside his home in northwest Denver's Highland neighborhood. Sean left a wife who is six months pregnant with their first child.

I extend my deepest condolences to Sean's family, friends and to his colleages in the District Attorney's office.

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1 Quoting The Rocky Mountain News, here

Aug. 29, 2008 - Federal judge indicted in sex case: Is Nottingham next?

According to The Houston Chronicle, (here), federal judge Samuel Kent, the subject of Steven Lubet's Bullying from the Bench, has been indicted yesterday on charges of abusive sexual contact and attempted aggravated sexual abuse of a female employee, making him the first federal judge to be charged with federal sex crimes and the first in Texas indicted in recent history.

Additional reading: In other related news, there has been a fourth guilty plea (here) in connection with the prostitution ring tied to New York's [former] governor, Elliot Spitzer (the news of which broke about the same time as the most recent Nottingham scandal).

So, I think the germane question is, what's happened to the prosecution ring investigation here in Denver, including its alleged link to our own bully, chief federal judge Nottingham? At one point, "a judicial source t[old] Fox 31 that things look, in his words, 'grim for the federal judge Edward Nottingham.'" Click here.

Aug. 28, 2008 - Tenth Circuit amends its Web site in an apparent attempt to stifle complaints

Prior to today, the Tenth Circuit's Judicial Misconduct Complaint Web page stated, simply:

Complaints of judicial misconduct can be filed with the Office of the Circuit Executive. For more information on filing a complaint, please download the following document . . .

Now, however, the circuit judges have apparently concluded that site visitors and complainants weren't reading the linked documents and educating themselves sufficiently about the inefficacy and illusory nature of the misconduct complaint procedure. Today's Web site facelift includes not-so-fine print clearly aimed at discouraging complaints:

Congress has created a procedure that permits any person to file a complaint in the courts about the behavior of federal judges-but not about the decisions federal judges make in deciding cases. Below is a link to the rules that explain what may be complained about, who may be complained about, where to file a complaint, and how the complaint will be processed.

There is also a link to the form we suggest that you use.

The great majority of complaints in recent years have been dismissed because they simply do not comply with the law. Section 352(b) of Title 28 of the United States Code states that complaints may be dismissed if they allege claims that do not constitute misconduct or claims that lack sufficient evidentiary support to raise a reasonable inference that misconduct has occurred. The most common examples of non-meritorious complaints are

  • allegations that the judge is biased because he or she ruled against the complainant;
  • similarly, allegations that the judge's ruling is legally or factually wrong and therefore he or she must have another (and improper) motive for ruling against the complainant; and
  • unsupported claims of conspiracy grounded on criticism of the judge's rulings.
If you are a litigant in a case and believe the judge made a wrong decision --even a very wrong decision-- you may not use this procedure to complain about the decision. Errors of law are correctable by an appeal, not a misconduct claim; an attorney can explain the appeal rights you have as a litigant to seek review of a judicial decision.

Judge Henry's predecessor, however, has already conceded that claims concerning legal rulings that are the result of an improper motive are cognizable under the misconduct rules.1 Further, on January 14, 2008, the Judicial Conference Committee on Judicial Conduct and Disability --which the Chief Judge is subordinate to-- issued a decision stating, in pertinent part, that:

a cognizable misconduct complaint based on allegations of a judge not following prevailing law or the directions of a court of appeals in particular cases must identify clear and convincing evidence of willfulness, that is, clear and convincing evidence of a judge's arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law.2

Thus, it follows that, even under pre-existing rules governing the discipline of judges (28 U.S.C. § 372, et seq.), a judge’s arbitrary and intentional departure from prevailing law based on willful indifference to that law is an appropriate ground for discipline.

Nevertheless, we feel your pain, Judge Henry. All these frivolous complaints surely must interfere with your summer golf game (doubtless, why no decisions have issued in over two months).

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1 See Jan. 4, 2001 Order by former Chief Judge Tacha ("I agree with complainant's supposition that a legal ruling done with improper motive can constitute misconduct"); see also May 8, 2008 Order by circuit judge Kelly ("improper motive (discrimination against pro se litigants or a desire to protect colleagues) or incompetence informs the subject judges' rulings . . . are [claims] cognizable here. See Misconduct Rules 3(h)(1)(A) & (D)").
2 Memorandum of Decision (Judicial Conference Committee on Judicial Conduct and Disability, Jan. 14, 2008) at 8.

Aug. 28, 2008 - Colorado's Judicial [non]discipline system receives a D+ on "national report card"

I am member of H.A.L.T., a respected Washington D.C. based lobbying group that has characterized KnowYourCourts.com as "important resource for Colorado’s legal consumers." here. In May of '07, H.A.L.T. notified me [email] that they were "in the process of conducting a comprehensive review of each state’s system of judicial oversight, for our upcoming Judicial Accountability Report Card, and [KnowYourCourts.com] will certainly be an important resource as we carry out our research and evaluation."

The H.A.L.T. report is here, concluding that "Colorado's system of judicial oversight is one of the most secretive in the nation."

In addition, the report found:

that Colorado rules allow some dysfunctional judges to be sanctioned with private admonition, and in these circumstances the public never learns of the judge's history of misconduct. And unlike policies in most states that allow citizens to speak freely about their ethics complaints against judges, Colorado rules have been interpreted to require that complainants not publicly disclose the existence of a disciplinary proceeding against a particular judge.

"The vast majority of states have abolished these sorts of 'gag' rules," said Senior Counsel Suzanne M. Blonder. "Colorado's restrictions not only violate citizens' right to free speech, they also keep the general public in the dark about whether the system of judicial oversight is operating effectively."

Further reading:

Aug. 27, 2008 - Be proud of our men and women in blue, especially those who say, "You're lucky I didn't knock the fuck out of you."

Video taken . . . shows a man, wearing the uniform of a Boulder County sheriff, ordering [ABC News producer Asa] Eslocker off the sidewalk in front of the hotel, to the side of the entrance.

The sheriff's officer is seen telling Eslocker the sidewalk is owned by the hotel. Later, [the officer] is seen pushing Eslocker off the sidewalk into oncoming traffic, forcing him to the other side of the street.

It was two hours later when Denver police arrived to place Eslocker under arrest, apparently based on a complaint from the Brown Palace Hotel, a central location for Democratic officials.

During the arrest, one of the officers can be heard saying to Eslocker, "You're lucky I didn't knock the f..k out of you."

>> full article text >> >>video of the arrest>>

I don't have anything to add. I think "Denver's finest" speak for themselves quite eloquently, as the title for this post indicates.1

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1 This entry quotes the police officer’s uncensored remarks. While the use of profanity herein may be distasteful, it is necessary in order to capture the nature of the offensive and typical conduct displayed by Denver Police. See, e.g., Saldana v. Kmart Corp., 260 F.3d 228, 235-38 (3d Cir. 2001) (repeatedly quoting, without censoring, the word “fuck” where the severity of such language was relevant to motion for sanctions); McColm v. S.F. Hous. Auth., No. 02-5810, 2006 WL 3591208, at *1 (N.D. Cal. Dec. 11, 2006); Lynn v. Roberts, No. 03-3464, 2005 WL 3087841, at *6 & n.36 (D. Kan. Nov. 1, 2005).

Aug. 27, 2008 - DUI stop, woman to officer: "You know what, sir? I'm a judge."

"You know what, sir? I'm a judge."

`Though plenty of time is still left on the clock, this year's Bobbe Bridge Chug-A-Lug Award [“I Know My Behavior Was Inexcusable,” KOMO-TV, Mar. 2, 2003] is almost certain to go to Michigan judge Catherine Steenland. Steenland, 41, a state district court judge in the Detroit suburb of Roseville, was given several sobriety tests on tape earlier this month after running her car into a ditch. [Video report].

When asked to recite the alphabet, she exclaimed: "I don't know if I can do this sober!" And when she refused to take a roadside sobriety test, the officer politely replied: "I can't treat you any different from anyone else [just] because you are a judge," and placed her under arrest. She resisted --well, let's just say she put up about as much resistance as a diminutive woman with an alleged blood alcohol level of .230 (almost three times the legal limit) can.

Year in and year out, Michigan's judicial blotter is the nation's most amusing: One alcoholic judge recently insisted that he hadn’t been drinking, `though he drove SUV into a convenience store. [original story: Kathy Jessup, “Judge’s Removal Sought,” South Bend Tribune, May 1, 2004 (no longer on Web); discipline report here] Another was busted for lighting up a doobie at a Rolling Stones concert [click here]. Others include one judge who reportedly referred to himself as God [here]; another who fixed traffic tickets in return for sexual favors [here]; and another suspended for lying to investigators about her love affair with an attorney, who is now serving life in prison for murdering his wife. [story; disciplinary report. Still, my favorite was the married judge who exposed himself in an airport men’s room, apparently while soliciting anonymous gay sex. [Link to story; disciplinary report. Larry Craig should have been so lucky.

Indeed, "If you go through life without being injured, divorced, robbed, sued or accused of a crime, you may never have reason to wish Michigan's judges were more accountable to the public, or even to their peers. But you might just as easily find yourself standing in a courtroom, wondering how it is that some wackadoo in a black robe got to be the most important person in your life." -- Brian Dickerson, Incumbent judges stil untouchable (Aug. 6, 2008), lamenting the fact that so many incumbent judges in Michigan run unopposed, something he attributes in part to "factors [that] discourage qualified attorneys from challenging even the most incompetent judicial nincompoops" (factors such as the provision in the state constitution that "allows incumbent judges to identify themselves on the election ballot by title (e.g., "Michigan Supreme Court Justice Joe Schlabotnick"), while their challengers' names appear unadorned").

Yet, as a general rule, larger states and states with judicial elections tend to have more effective proceedings for judicial discipline. Try to imagine the absurd spectacle of a federal or state judge in Colorado, actually being disciplined for "[i]rresponsible or improper conduct, including impropriety or the appearance of impropriety, which erodes public confidence in the judiciary, contrary to the Code of Judicial Conduct, Canon 2A," "[f]ailure to respect and observe the law, and to conduct herself at all times in a manner which would enhance the public’s confidence in the integrity and impartiality of the judiciary, contrary to the Code of Judicial Conduct, Canon 2B," and/or "[a]llowing social or other relationships to influence judicial conduct or judgment, contrary to the Code of Judicial Conduct, Canon 2C," thereby exposing "the courts to obloquy, contempt, censure or reproach." Chief Judge Edward "Two Hookers" Nottingham would probably hurl his Viagra!

Now we know you that are a judge, Ms. Steenland. And, thanks to the diligent efforts of law enforcement personnel in Michigan, now you know that you are not a goddess.

Aug. 26, 2008 - judiciary in Colorado has an eye on KnowYourCourts.com

As I've reported here, a few lawyers and divorce industry experts (DIEs) have summoned the huevos to email us to remove their name from this site. However, judges haven't been so bold.

Server logs, however, indicate that both Colorado and federal judges visit the site daily.

"[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...."

Mark Cohen, Judges wary of the 'unshaven blogger' (Minnesota Lawyer Blog 02.26.2008).

As my fellow-blogger at The Daily Judge wrote, "Welcome to the 21st Century."

Although we receive our fair share of threats from lawyers or persons claiming to represent the interests of others, when should we expect our first subpoena? The Legal Blog Watch reports today that Dennis Crouch (of the Patently-O blog) was subpoenaed. And he responded gracefully:

Comments are posted on Patently-O and are publicly available at no charge to you. Because these comments are already available online, this request is likewise unduly burdensome and overbroad. Furthermore, most commentators post anonymously with a strong expectation of privacy in their identity. Similarly, I often receive communications sent under the condition and/or expectation of privacy and anonymity. This happens with any reporter – but is especially common in law and politics where we often find negative retribution for speaking out. I strongly support this right of anonymity and do not plan to reveal particular information that could lead to the identity of those sources without a specific court order on the topic.

Aug. 22, 2008 - Insight into Colorado courts' contortionist interpretations of child support policy (i.e., judicial activism)

On this page, I have described Colorado's child support policies as comprehensively yet broadly as possible. Now we have a new item to add to that list:

Yesterday, in Marriage of Dunkle, the Court of Appeals created new law from the bench, concluding that adoption subsidies and foster care payments paid to a parent are "income of the children on whose behalf they are received" and not income of the parent-obligee. Therefore, the appeals court reasoned, the trial court correctly excluded the payments from the imputation of mother’s gross income or, alternatively, because they are "income" to children who were not father’s, declined to consider the payments in calculating his child support obligation.

Of course, as set forth on my Colorado Child Support Policy Overview, the mother would be permitted to report these tax-free payments as "income" when applying for loans. Moreover, despite the courts' specious reasoning that these monies belong to the child[ren], there is no mechanism in place whatever to ensure that the mother spent the monies for the benefit of the child[ren] rather than gamble them or otherwise squander the monies.

Defying ordinary logic or statutory construction, the court found it necessary to overcome that “Income” for child support purposes is defined in § 14-10-115(3)(c), C.R.S. 2007, as “the actual gross income of a parent,” hence the line of reasoning explained above.

My problem with this decision has nothing to do with gender, per se, (other than the fact that the vast majority of these decisions disparately impact fathers) or that such payments should or should not have offset father's obligation. My problem is with the disingenuous, outcome-based reasoning and judicial activism (the latter a charge I rarely levy): If the monies are not "income" as a matter of law, then obligee-custodial parents should be prevented from including these monies for the purposes of qualifying for loans for any purpose other than residential housing (where the child[ren] will reside) or education loans for the child[ren].

Moreover, if the state has a legitimate interest in ordering and enforcing child support and in classifying such payments as belonging to the child (rather than the parent) and enforces this interest with jail time and other liberty or property interest deprivations, then the state should have a concomitant duty to ensure that the payments are expended for the direct benefit of the child[ren].

The real reason, of course, that no such corresponding mechanism exists is because the state actually doesn't give a damn about the child[ren], but rather has an interest in the allocation, collection and enforcement of child support for the purposes of revenue (kickbacks from the federal gov't under section IV-D of the Social Security Act, inter alia,) and to reduce public welfare for custodial parents (See, generally Jane L. Ross, Child Support Enforcement: Opportunity to Reduce Federal and State Costs (Washington, DC: General Accounting Office, Report # GAO/T-HEHS-95-181), 13 June 1995).

Aug. 21, 2008 - KnowYourCOurts.com exclusive - protestors beware of Colorado's "heckler's veto; protesting activities now = "private nuisance" and planning picketing activities in advance with others now = "conspiracy to commit private nuissance"

In this case, St. Johns Episcopal Church et al. v. Scott, et al., a Denver church had obtained a permanent injunction under a private nuisance theory against Ken Scott and others from protesting on public property in front of its cathedral.

Notwithstanding the weak evidence against Scott and Powell, the Court of Appeals applied a purely deferential standard of review to the trial court's findings and affirmed the judgment. This now means that any protesting activities that are not absolutely unseen and unheard may well be regarded as "private nuisance," thereby subject to civil liability. I mean, heck, if you have not one but two police officers testifying that the protesters weren't disturbing the peace and yet the court credits the testimony of the complainants,1 can anyone ever safely picket and protest?

The court also has impliedly rejected the jurisprudence of other jurisdictions, including, e.g., Center for Bio-ethical Concern v. Los Angeles County Sheriff (9th Cir., 2008) by holding that the display of graphic images of aborted fetuses is a method of conveying a message, rather than a message content, and that the state may restrict it through ordinance or through granting relief to private parties (the "State Action doctrine"). I note that the court did not cite precedent for its rather unintuitive conclusion that " Frightening and gruesome images of dead bodies are a method of communicating a viewpoint." [emphasis in the original]. Compare Center for Bio-ethical Concern, supra (expressly noting that such graphic images are content and declining to set "an unprecedented departure from bedrock First Amendment principles to allow the government to restrict speech based on listener reaction simply because the listeners are children")

The court further held that the restriction preventing Scott and Powell from picketing or protesting near the church "beginning a half hour before and ending a half hour after a religious event or series of religious events" for 365 days a year did not burden the speech any more than necessary, because Scott and Powell are free to picket, protest and express their views during any other time when no one will be present to hear or care. For you lay-people, let me repeat that: The protesters rights were not significantly curtailed, because they're free to express their First Amendment views when no one will be present to hear them. Op. at 27 ("these restrictions do not limit Scott’s and Powell’s right to picket, congregate, patrol, demonstrate, whistle, shout, yell, use bullhorns, use auto horns, or use sound amplification equipment or enter the buffer zone at any other time . . . when many people are [not] likely to be accessing the Church")

If you're not a Constitutional scholar, that's okay; this is not above you. Ask yourself this question: Was the First Amendment enacted by the Founders primarily to protect speech that is not offensive? Does not the First Amendment guarantee the opportunity to reach your target audience in your effort to persuade them to your viewpoint, or does it merely guarantee your opportunity to express your views to the trees, stones and buildings?

The court did, however, conclude that the place and manner restrictions of the injunction may have been overly broad and, thus, remanded to the trial court for further findings.

Finally, I note that the appeals court rejected Scott's assertion of marital privilege. Op. at 35. However, Scott raised this argument neither in his Opening Brief nor his Reply Brief. I am not clear on where the court derived this from.

According to a senior clerk, Susan Johnson, this case is only the second or third time in her eighteen years of service that an invitation was extended to a pro se party for oral argument and it's the only time in as many years that an opportunity has been extended to an amicus party. (The link to the oral argument audio file is here). The opinion is a published decision and is found here.

In my view, this case is ripe for certiorari to the Colorado Supreme Court.

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1 The Denver police may be to blame for this. For example, click here and  here.

Aug. 20, 2008 - KnowYourCOurts.com exclusive - Planned Parenthood, vis-à-vis the City and County of Denver, racks up another legal win, Unclean Hands notwithstanding

A Denver county jury today quickly returned a unanimous verdict, finding Jo Ann Scott guilty of violating Colorado's anti-sidewalk counseling ordinance, CRS § 18-9-122(3) (a/k/a "the bubble law"). This appears to be the first prosecution of a violation of the statute, which prohibits any person from approaching within eight (8) feet of another person in proximity to a medical facility (abortion clinic) for the purposes of counseling, leafleting or protesting. The Colorado statute was found to be constitutional by the U.S. Supreme Court in Hill v. Colo., 530 U.S. 703 (2000).

Jo Scott told KnowYourCourts.com that testimony was adduced during trial that Planned Parenthood used employees, posing as patients and wearing recording devices, to attract Mrs. Scott to them for the purposes of prosecuting her for the violation. In other words, the alleged victims were not patients at all. Because Jo Scott and her husband, Ken, are nationally-known vociferous Pro Life protesters, one might suspect that Planned Parenthood has a vested interest in eliminating her protest activities in Denver. A prosecution scheme is certainly one way to achieve that end.

I wasn't at the trial but, based on the evidence I've seen (click here for the case, People v. Jo Ann Scott), I'm not clear on how this violation was proved. For example, as Scott explains, the prosecution failed to establish that she was within eight (8) feet of the alleged "victims." In fact, the Planned Parenthood employees, according to Scott, admitted that they did not turn around to look at or acknowledge Scott. Scott said the angle/perspective of videos taken at the time as part of the set-up could not establish distance.

Also, by way of analogy, the prosecution has the burden under Colorado's rape statutes of proving that a rape victim did not consent to the unwanted sexual contact. Here, despite the evidence that Scott's contact was, indeed, desired by the Planned Parenthood employees, the court did not impose that same burden of proof on the prosecution (or the defense hadn't raised it).

Additionally, the judge, Alfred Harrell, told a father to remove his three children from the courtroom. The father challenged the direction, saying, "This is an illegal court, if you're throwing American citizens out," and then called the judge's directive, "tyranny." The judge then directed the clerk to depress an emergency button that summoned approximately fifteen to twenty police officers to the courtroom, which the jury observed just as they, too, entered the courtroom.

Despite the outcome, Jo Scott is graceful and maintains her faith in the jury system. Although she requested a jury of twelve, she was tried to a jury of six. And she couldn't have asked for a better jury pool:
  • One man was excused because he works at Planned Parenthood as an escort
  • One woman, Erickson, is witness to Ken Scott's civil case, in St. Johns v. Scott (to be announced by the Court of Appeals tomorrow)
  • Another woman, Baldwin, conceded that she couldn't be fair about the issue of choice (i.e., abortion). She was excluded.
  • Another woman was contributor to Planned Parenthood and was dismissed
  • One man, who now works for Quest, had worked at Planned Parenthood during the Scotts' protests. He, too, made the jury.
  • One man, Williams, a lobbyist, made the jury.
The chicanery notwithstanding, the judge imposed a suspended sentence of six months jail time, provided that Mrs. Scott not be convicted of a similar offense during the next calendar year.

But, isn't chicanery one of Planned Parenthood's fundamental success strategies? Take, for example, the building of one of their latest so-called "clinics" in a Chicago suburb of Aurora, Illinois: During the construction of the facility, area residents were intentionally misled to believe that the new building was the "Gemini Health Center" --not a fetal abortion facility. The cover-up included the building permit applications, false statements made to the Aurora Planning & Development Committee, inter alia. Click here. The Texas-based pro-life group Life Dynamics previously conducted an extensive undercover project in which an adult volunteer posing as a 13-year-old called every Planned Parenthood clinic in the U.S., claiming she was pregnant by a 22-year-old boyfriend. Almost without exception, the clinics advised her to obtain an abortion without her parents' knowledge and told her how to protect her boyfriend, who would be guilty in any state of statutory rape.

Scott says she plans to appeal the decision.

Aug. 20, 2008 - A brief litany of sorry-ass excuses offered by attorneys for their misconduct

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).

Aug. 19, 2008 - Divorce Industry Expert Jackie St. Joan in the news

Jackie St. Joan was featured in a RockyMountainNews story here.

You'll find her name in our table of divorce industry "players" here (which hasn't been updated in about a year --it's on my list).

She's also authored one or two articles found on our resources page (click here and then click on the "Colorado Resources" frame-link).

Aug. 18, 2008 - Colorado Judiciary wants to hear from you!!

That's the story coming out of the State Court Administrator's Office. Click here. "We have no empirical data saying how we're doing - we want real life stories, not just anecdotal rumors about how our courts are functioning," said Robert McCallum, public information officer for the State Court Administrator's Office.

Indeed.

My recommendation is that folks who want to let the judiciary know how they're doing should send their stories to KnowYourCourts.com, because judges and attorneys read this blog. Otherwise, I am skeptical that many of the "real life stories" will be manifested in some meaningful way --stories such as a judge, who terminates telephone contact between a father and his little girl, because --as the judge explained-- "I want to get [father's] attention," referring to father's failure to pay a large lump sum retainer to the judge's friend, a court appointed CFI. (Click here); stories such as judge who won't rule on a motion for 2½ years, because the effect of it suspends the proceedings, thereby depriving the litigant of access to the court (click here); stories such a judge granting a stepparent petition to a petitioner-attorney, over the objections of a father who, not only was paying child support for his daughter, but also had no contact with her because the petitioner-attorney and his wife --the father's ex-wife-- allegedly refused to facilitate contact between the father and his daughter (click here); and stories such as a judge who allegedly directed a complaining litigant to take down her Web site that was critical of the judge (click here).

I have many, many other stories, some even more egregious but which I choose not to report without more substantiating evidence from the complainants.

Will "real life stories" such as these be reflected in some meaningful way by the surveys conducted by the State Court Administrator's Office?

Aug. 15, 2008 - Deconstructing misandry disguised as a law essay

Disclaimer: The use of the term "misandry" in this essay is hyperbole, intended as a rhetorical device, lest this commentary be characterized as "cyberstalking." Read why.
In a recent article appearing in The Colorado Lawyer, "Exercising Personal Jurisdiction over non-resident Cyberstalkers," 37 Colo.Law. 8 (August, 2008) (edited by Denver district judge Morris Hoffman), author- attorney Roni Melamed acknowledges the Due Process Clause as a pesky impediment to obtaining a restraining order. Nevertheless, relying on the gender- based Violence Against Women Act, she presses that "Protective orders play an integral role in ensuring the physical safety and mental well-being of cyberstalked victims."

Significantly, while acknowledging that "cyberstalkers usually do not present a clear and present physical danger to their victims," Melamed focuses almost entirely on overcoming the minimum contacts test necessary to hale a non-resident into Colorado court, but avoids any meaningful analysis of what activities constitute "cyberstalking" and the statutory requirement for obtaining protective orders, what burden-of-proof is required, or the appeals process (or lack thereof). I address each, in turn.

Cyberstalking Defined

As Melamed notes:

In 1999 . . . [former] Vice-President Al Gore requested the U.S. Attorney General to study cyberstalking and to report back with recommendations on how better to protect people from this threat. The Department of Justice’s (DOJ) report explained that cyberstalking is the "kind of harassment [that] can be as frightening and as real as being followed and watched in your neighborhood or in your home." The DOJ’s 1999 study concluded that "cyberstalking is a serious problem that will grow in scope and complexity as more people take advantage of the Internet and other telecommunications technologies."

. . .

In response to the expanding threat of cyberstalking, forty-six states expressly criminalized cyberstalking by amending their stalking statutes to include harassment by means of repeated "electronic communication" or communication initiated through a computer or computer network. The Colorado [] statute was amended in 2000 to provide that:

[a] person commits harassment if, with intent to harass, annoy, or alarm another person, he or she . . . [i]nitiates communication with a person . . . by telephone, computer, computer network, or computer system in a manner intended to harass or threaten bodily injury or property damage. CRS § 18-9-111(1)(e)

Relying on CRS § 13-14-102(1)(a), Melamed contends:

If a state’s prosecutors do not seek to press charges against a cyberstalker, victims may seek civil protection orders that restrict or prohibit stalkers from communicating with their victims. Such protection orders have "paramount importance . . . because protection orders promote safety, reduce violence, and prevent serious harm and death."

However, Section 13-14-102(1)(a) is a legislative declaration, not substantive law. See Walgreen Co. v. Charnes, 819 P.2d 1039, 1045 (Colo. 1991) (en banc). In fact, it appears that the only statutory authority that might exist for issuing a restraining order in the instance of alleged "cyberstalking" is § 13-14-102(1.5)(d):

Any municipal court of record, if authorized by the municipal governing body; any county court; and any district, probate, or juvenile court shall have original concurrent jurisdiction to issue a temporary or permanent civil protection order against an adult or against a juvenile who is ten years of age or older for any of the following purposes: . . . To prevent stalking.

Under § 13-14-103 (emergency protective orders), the non-exhaustive list of reasons for granting such orders "may include . . . Restraining a party from threatening, molesting, injuring, or contacting any other party, a minor child of either of the parties, or a minor child who is in danger in the reasonably foreseeable future of being a victim of an unlawful sexual offense or domestic abuse" C.R.S. § 13-14-103(1)(b)(I). "Cyberstalking" is not one of them. In fact, "stalking" is not mentioned once in §§ 13-14-102, et seq.

Quite frankly, the entire premise of Melamed's article is misleading: She quotes from Colorado's harassment statute CRS § 18-9-111(1), supra, when the "stalking" language is found, instead, under § 18-9-111(4)(a) and § 18-9-111(4)(b)(et seq.), which provides:
(b) A person commits stalking if directly, or indirectly through another person, such person knowingly:
(I) Makes a credible threat to another person and, in connection with such threat, repeatedly follows, approaches, contacts, or places under surveillance that person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship; or
(II) Makes a credible threat to another person and, in connection with such threat, repeatedly makes any form of communication with that person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship, regardless of whether a conversation ensues; or
(III) Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship to suffer serious emotional distress. For purposes of this subparagraph (III), a victim need not show that he or she received professional treatment or counseling to show that he or she suffered serious emotional distress.
(c) For the purposes of this subsection (4):
(I) Conduct "in connection with" a credible threat means acts which further, advance, promote, or have a continuity of purpose, and may occur before, during, or after the credible threat;
(II) "Credible threat" means a threat, physical action, or repeated conduct that would cause a reasonable person to be in fear for the person's safety or the safety of his or her immediate family or of someone with whom the person has or has had a continuing relationship. Such threat need not be directly expressed if the totality of the conduct would cause a reasonable person such fear.
(III) "Immediate family" includes the person's spouse and the person's parent, grandparent, sibling, or child; and (IV) "Repeated" or "repeatedly" means on more than one occasion.
The fact is, there is no statutory authorization to issue a restraining order for allegedly harassing conduct (email, telephone or otherwise) that does not rise to the level of stalking. The required elements for "stalking" are: scienter (not mens rea) 1 and (1) a credible threat -or- (2) repetive conduct "that would cause a reasonable person to suffer serious emotional distress" and actually causes that person to suffer serious emotional distress.

Next, I turn to Rule 365 of the County Court Rules of Civil Procedure, because most restraining orders are applied for and obtained in the county court:

Upon the filing of a complaint, duly verified, alleging that the defendant has attacked, beaten, molested, or threatened the life of the plaintiff, or threatened to do serious bodily harm to the plaintiff, the court, after hearing the evidence and being fully satisfied therein that sufficient cause exists, may issue a temporary restraining order and a citation directed to the defendants, commanding the defendant to appear before the court at a specific time and date, to show cause, if any, why the temporary restraining order should not be made permanent.

Rule 365(b)(1) [emphasis supplied]. Nothing in the language of the Rule governing the issuance of restraining orders contemplates any species of "harassment" (or even of "stalking," as that is defined in § 18-9-111(4), supra).

I would conclude that Melamed is keenly aware of the fact that, notwithsanding the lack of statutory authority for restraining orders (either for residents on non-residents) for alleged conduct that is merely harassing, courts in Colorado routinely issue them anyway. We don't hear about them through appellate opinions because, as I will explain below, they're disallowed from being heard by the Court of Appeals.

In addition, I disagree with the author's following assertion:

Cyberstalkers who send harassing electronic communications to their victims similarly actively target the forum state, and should expect to be haled into the forum state to answer for their tortious conduct. If a cyberstalker merely posts harassing content on a website, however, the cyberstalker likely is not expressly targeting the forum state and, thus, the forum state may not exercise personal jurisdiction over the cyberstalker.

An example of potential "cyberstalking" took place very recently, where a teen's mother posed as a teenage boy to harass another teen online, in the process driving the targeted teen to suicide. Click here. The government is prosecuting the mother's violation of the MySpace Terms of Service as a criminal offense under the Computer Fraud and Abuse Act. Electronic Frontier Foundation and Public Citizen --both groups of which I am a member-- along with the Center for Democracy and Technology and a group of 14 law professors, have filed an amicus brief in the case, arguing that, if the mother is prosecuted using CFAA charges, the case could have significant ramifications for the free speech rights of US citizens using the Internet.


Burden of Proof

The next issue deals with the burden of proof. As Melamed tangentially noted, there are two tracks for dealing with alleged cyberstalking: One is criminal prosecution (under Title 18), which is at the sole discretion of the district attorney; the other is civil (restraining orders). I suspect that Melamed focuses solely on that latter, because TROs can be obtained ex parte and without a scintilla of evidence.3 I, therefore, confine my discussion, accordingly.

Melamed does not categorize her due process arguments as substantive or procedural, but does describe them in terms of notice, service, jurisdiction and "notions of fair play." 2 Frankly, I'm not surprised that her due process arguments were entirely confined to the minimum contacts hurdle only, because --generally speaking-- constitutional principles are seldom respected in domestic relations, domestic violence, juvenile, probate or restraining order cases.4 In other words, if you can get them into a Colorado court, the rest is easy.5

Recently, in the ongoing New Jersey case of Crespo v. Crespo, a judge recognized the due process problems with restraining orders. Relying on landmark due process cases like Mathews v. Eldridge, 424 U.S. 319 (1976) and Addington v. Texas, 441 U.S. 418 (1979) --cases notably absent from Melamed's analysis-- Judge Francis Schultz noted that the function of the standard-of-proof is a concept embodied in the Due Process Clause. Schultz rejected New Jersey's jurisprudence that a mere preponderance of the evidence is appropriate in domestic violence matters and that, instead, the clear-and-convincing standard must be applied to satisfy the Due Process requirements articulated in Mathews. Ibid. at 16-19.

Schultz also observed:

While some domestic violence matters are easy to prove (e.g., objective signs of physical injury), some are extremely difficult. The difficult ones often involve allegations of harassment, terroristic threats, and the judge ultimately acknowledging that this is nothing more than a "he said, she said" matter.

I adopt Judge Schultz's analysis as persuasive and, therefore, conclude that permanent restraining orders must be granted only when there has been adequate notice of the claims, an opportunity to be heard at a meaningful time and in a meaningful manner, by findings supported by credible evidence under the clear-and-convincing standard and supported by a written decision containing substantive findings of fact and conclusions of law. I would further urge that a non-resident defendant should request the court to obtain a cost bond from the plaintiff and that, if defendant prevails, defendant should be awarded not only the attorneys fees and costs of the litigation, but also travel costs and loss of wages and, to the extent that the statutes do not currently authorize the same, they should be amended.6

Moreover, a recent report by RADAR confirms what has long been suspected: false allegations resuting in restraining orders cost taxpayers billions of dollars each year. An example of multiple fraudulent reporting, where the defendant becomes the true victim, could be these five frivolous TROs applied for by one Denver termagant- attorney Madeline Wilson.

I am also concerned about the lack of a jury in these cases. In the unauthorized practice of law case, People v. Shell, (Colo. 2006), the Colorado Supreme Court held that Ms. Shell "was not entitled to a jury trial because the recommended fine is not sufficiently serious to trigger Shell’s constitutional right to a jury trial, and because Shell has no independent right to a jury trial under a Colorado statute." The problem with this, as it pertains to the restraining order scenario urged by Melamed, is that a county court judge --not a jury of peers-- can determine the scienter requirement of § 18-9-111(4)(b) (supra). Once this finding is made, it becomes res judicata. Now, the prevailing plaintiff, who had very light lifting to obtain the restraining order, can file a civil suit for intentional infliction of emotional distress against the defendant, claiming that the defendant knowingly engaged in behavior that caused emotional distress. Nearly all the elements will already have been established, including scienter (the knowingly element) and that serious emotional injury was incurred, except that the finding was established by the lesser standard of § 18-9-111(4)(b)(III) (no requirement of medical treatment sought). If a judge in such a case affords preclusive effect to these findings --as he must-- the plaintiff might already be entitled to full or partial summary judgment. In such a case the award could amount to millions of dollars (click here) and such judgment could be had without the benefit of a jury.

Even if a non-resident defendant manages to prevail, despite the complainant's home-court advantage, there exists has only a very slight chance of persuading a district attorney to charge plaintiff under C.R.S. § 18-8-111 (filing false report) if law enforcement was involved) or under § 18-8-306 for attempting to influence a public servant (in this instance, the judge (see People v. Schupper, 140 P.3d 293, 298-99 (Colo.App. 2006)) or for perjury under §§ 18-8-502, et seq. (if the complaint was verified). (click here). However, a defendant may have a cause of action for "abuse of process" or --if he or she obtained a favorable outcome from the litigation-- a cause of action for "malicious prosecution." As the Court of Appeals impliedly held in Trask v. Nozisko, a restraining order must bot be used "as a weapon instead of a shield." 134 P.3d 544, 554 (Colo.App. 2006)


Appeals

Most of these cases, which originate in county court, can never make it to the Court of Appeals because an appeal from a Colorado County Court judgment is taken to the District Court, where it's ordinarily rubber-stamped by a District Court judge and will never be published. See County Court R.Civ.P. 411. The only appellate avenue from there is directly to the Colorado Supreme Court on a writ of certiorari, which is very, very seldom granted.

footnotes
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