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8th Circuit strikes down judicial campaign restrictions
Jul 29th, 2010 by Mark Cohen
A big day for judicial candidate Greg Wersal
A split three-judge panel of the 8th U.S. Circuit Court of Appeals this morning issued an opinion sweeping away a couple of the state’s remaining restrictions on judicial campaigns.
The federal appellate court struck down rules barring judicial candidates from endorsing candidates for political offices and from personally soliciting contributions from small groups and individuals.
“[W]e think the Constitution favors strict recusal standards and fewer speech restrictions,” wrote Clarence Arlen Beam for the two-judge majority.
In his dissent, Judge Kermit E. Bye, said, “[W]here a state has crafted its restrictions carefully to maintain a fair and impartial judiciary, in both practice and appearance, as Minnesota has done here, the First Amendment must yield.”
The 54-page decision is Wersal v. Sexton, et al.
The ruling is a huge victory for attorney Greg Wersal, currently running for a seat on the Minnesota Supreme Court against Justice Helen Meyer. Wersal has been on a more than a decade-long quest to end the restrictions Minnesota has placed on judicial campaigns that has taken him on several tips to the 8th Circuit and all the way to U.S. Supreme Court. His challenges have eviscerated the framework for the vast majority of the restrictions.
In a release sent shortly after the ruling was announced, Wersal trumpeted, “This is a major victory toward the goal of holding judges accountable through free, open and competitive elections. I now hope to raise the money necessary to tell the people of Minnesota that the judges, including my opponent in this race, want a constitutional amendment that would strip the public of their right to vote for judges. I will do everything I can to protect the right to vote.”
Proponents of the restrictions had argued that they were necessary to preserve the appearance of an unbiased and unbeholden judiciary.
We will post a fuller story on our main site later today.
Posted in Uncategorized
5 Responses to “8th Circuit strikes down judicial campaign restrictions”
on 29 Jul 2010 at 6:51 pm1Levi Swank
So the only remaining restriction is that elections must be non-partisan? Or are there other restrictions left intact?
on 30 Jul 2010 at 9:20 am2Sharon Scarrella Anderson
http://minnlawyer.com/wp-files/blog-folder/wersal.pdfMucho Thanks to Greg Wersal is not fighting aloneIn re:Scarrella4Justice 221NW2d562 Published by Judicial Tryanny without Royalitys to circumvent MN Const. Art. III Separation of Powers, Voting Rights Act Eligible to Vote then and therefore Eligible for ANY OFFICE.Sharon Anderson aka Peterson_Chergosky_1st Husband Scarrella for Quiet Titles Search is the only Certified Sane Candidate for MN Attorney Generalhttp://www.sharonagmn2010.blogspot.com on the Graves of Tenants in Common and Murder of 2nd Husband http://www.cpljimanderson.blogspot.com Sharons Quo Warranto at http://www.taxthemax.blogspot.com We must have Decency,Morality,Judicial Reform 4 Accountability in Government Sharon opposes ShariaLaw_We must Repeal ObamaCare and or “If it aint broke don’t fix it” Medicare does not include Dental_Glasses,Hearin Aids_ Stand with AZ v. the Feds Immigration Reform.WERSAL THE WEASAL4JUSTICE WE LOVE YOU WE THE COMMAN PERSONS.
on 30 Jul 2010 at 11:10 am3Christian
Sharon, I didn’t understand a word you just said.
on 30 Jul 2010 at 1:07 pm4Mark Cohen
LOL, Christian. Puts me in the mood for some tots …
on 30 Jul 2010 at 2:32 pm5John
I would like Professor Heidenreich to review Sharon’s comment.
on 31 Jul 2010 at 7:21 pm6Sharon Scarrella AndersonYour comment is awaiting moderation.
YOUR LAWYERS ARE NO FUN ANYONE CAN WRITE A “CAN BRIEF” fROM Pro Se Candidate for Texas AG Jon Roland.DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADOCase No. 02CV0127___________________________________________________
KENNETH L. SMITH,
MARY J. MULLARKEY, et al.,
RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS(INCORPORATING AUTHORITY)
Plaintiff Kenneth L. Smith (hereinafter, “Smith”), pro se, respectfully submits this Response in Opposition to Defendants’ Motion to Dismiss (Incorporating Authority), stating as follows:
SUMMARY OF THE ARGUMENT
Article VI, section 9 of the Colorado constitution grants this Court the right and the duty to hear all civil cases brought before it, and any attempt to take that right and duty away is null and void. People v. Western Union Tel. Co., 70 Colo. 90, 198 P. 146, 149 (1921). Still, Defendants have advanced the astounding proposition that this Court — a court of general jurisdiction — does not even have jurisdiction to hold them accountable for violations of federal law; unsurprisingly, the United States Supreme Court emphatically begs to differ. Howlett v. Rose, 496 U.S. 356, 369-75 (1990) (“no valid excuse” rule).
While absolute quasi-judicial immunity is “strong medicine,” Forrester v. White, 484 U.S. 219, 230 (1988), it is only administered when the ‘patient’ doesn’t need it. Specifically, participants in a tribunal only qualify for absolute immunity where the safeguards built into the process are deemed ‘adequate to control unconstitutional conduct.’ Horvitz v. Board of Medical Examiners of the State of Colorado, 822 F.2d 1508 (10th Cir. 1987). And in a case decided only five months ago, evaluating a process substantially identical to Colorado’s, the Second Circuit found virtually identical safeguards inadequate. Diblasio v. Novello, 344 F.3d 292 (2nd Cir. 2003).
Res judicata requires that the matter be decided by a competent court, and Defendants are not legally competent to decide whether they have committed a tort for which they potentially owe $25,000,000 in compensatory and punitive damages. Tumey v. Ohio, 273 U.S. 510 (1927). A dozen fatal flaws in Defendants’ argument were identified, but need not be recounted here.
Also, it is almost unimaginable that any state bar in the 21st century would require an applicant to undergo an invasive psychiatric examination simply because they didn’t like his journalistic and internet expose of a public figure — much less, that an American attorney would claim that no constitutional rights were violated by such action. But that is precisely what counsel is alleging by invoking the qualified immunity defense — manifestly frivolous at this point, as the Defendants are stuck with Smith’s facts, and must prove their defense to a certainty. Davidson v. Dill, 180 Colo. 123, 503 P.2d 157 (1972). Due to the astonishing array of civil rights violations committed by the Defendants, the length of this brief has more than doubled, and unavoidably so.
Finally, the Defendants’ frivolous, baseless, and vexatious request for attorneys’ fees must be addressed.
I. SMITH’S CLAIMS FALL SQUARELY WITHIN THIS COURT’S JURISDICTION
Smith raised three classes of claim in this case: (1) Section 1983 claims, alleging violations of federal rights committed by persons acting under color of state law, (2) an array of facial challenges to the constitutionality of Colo.R.Civ.P. (hereinafter, “Rule”) 201, and (3) a separate claim for relief pursuant to article II, section 6 of the Colorado Constitution. Smith brings these claims pursuant to article VI, section 9 of the Colorado Constitution, which states:
The district courts shall be trial courts of record with general jurisdiction, and shall have original jurisdiction in all civil, probate, and criminal cases, except as otherwise provided herein, and shall have such appellate jurisdiction as may be prescribed by law.
When a civil claim is first raised in a Colorado trial court, it has both the right and the duty to adjudicate and determine it — and any attempt to take that right and duty away is null and void. Western Union, supra.
Conversely, the Colorado Supreme Court, “except as otherwise provided in this constitution, shall have appellate jurisdiction only.” Colo. Const. art. VI, § 6(1). It has original jurisdiction to issue writs, Id., art. VI, § 3, but even that authority is discretionary. Shore v. District Court, 127 Colo. 487, 258 P.2d 485 (1953). Unlike its federal counterpart, it has no other judicial powers, and cannot expand its own jurisdiction by rule of court. People ex rel. City of Aurora v. Smith, 162 Colo. 72, 424 P.2d 772 (1967). As such, its authority over bar admission matters can only come from its general superintending control over the courts, Colo. Const. art. VI, § 3, and it can only act as an administrative agency answerable to the Colorado and federal constitutions, and by implication, this Court.1
While the Defendants’ “subject-matter jurisdiction” argument is flimsy enough under state law, it is breathtakingly frivolous under federal law, for under the Supremacy Clause, U.S. Const. art. VI, sec. 2, this Court has a duty to enforce federal law. Howlett v. Rose, 496 U.S. 356, 367-76 (1990). The Howlett Court observed:
A state court may not deny a federal right, when the parties and controversy are properly before it, in the absence of “valid excuse.” “The existence of the jurisdiction creates an implication of duty to exercise it.”
An excuse that is inconsistent with or violates federal law is not a valid excuse.
Howlett, 496 U.S. at 369-70 (citations omitted).
“The force of the Supremacy Clause is not so weak that it can be evaded by mere mention of the word ‘jurisdiction.’” Id., 496 U.S. at 382-83. But if the Defendants could have their way, no state court would have authority to hear Smith’s Section 1983 claims. This is clearly inconsistent with federal law, and would not qualify as a “valid excuse.” Cf., Id., 496 U.S. at 374-75 (“valid excuse” essentially limited to forum non conveniens).
It’s a matter of headnote law: “State courts as well as federal courts have jurisdiction over § 1983 cases.” Id., 496 U.S. at 358. Smith has advanced claims under Section 1983 which allege, for example, that his right to procedural due process was violated. But while Smith may not have a constitutional right to practice law, he has an absolute right to procedural due process, Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232 (1957), a separate tort of constitutional significance, which may be vindicated in this Court irrespective of whether he is entitled to a law license. Carey v. Piphus, 435 U.S. 247 (1978); Searles v. Van Bebber, 251 F.3d 869 (10th Cir. 2001), cert. denied 122 S.Ct. 2354 (2002) (punitive damages).2 Smith is thus entitled to be heard in this Court.
II. THE DEFENDANTS HAVE NOT ESTABLISHED A “CLEAR ENTITLEMENT” TO IMMUNITY IN THIS MATTER.
The bounds of judicial immunity are defined by competing public policy interests: the need to allow judges to render difficult decisions without fear of recrimination, juxtaposed against the citizen’s right to rely upon (and ultimately, claim the protection of) our laws. After all, if a judge can disregard settled law with impunity, we can’t rely on it as a guide to govern our daily affairs, never knowing when some black-robed Uday Hussein might decide to make an ‘exception’ to the rules. See, Planned Parenthood of S.E. Pa. v. Carey, 505 U.S. 833, 844 (1992) (liberty “finds no refuge in a jurisprudence of doubt”). As such, absolute immunity is only bestowed on judges in judicial and quasi-judicial proceedings affording aggrieved parties with timely, well-established, and effective remedies as a matter of right. Horvitz, supra.
To prevail on this motion, the Defendants must establish a “clear entitlement” to absolute immunity, Robinson v. Volkswagenwerk AG, 940 F.2d 1369, 1370 (10th Cir. 1991), and as such, bear the burden of proving that they were engaged in judicial or quasi-judicial acts, Forrester v. White, 484 U.S. 219 (1988), and there is no question of fact whether the procedural safeguards adopted were “adequate,” Ramirez v. Oklahoma Dept. of Mental Health, 41 F.3d 584 (10th Cir. 1994) — not just on paper, but in actual fact. Devous v. Campbell, 16 F.3d 415 (10th Cir. 1994). Further, as this is a summary judgment motion pursuant to Rule 12(b)(5), all factual disputes and inferences are decided in Smith’s favor. E.g., Medina v. State, 35 P.3d 443 (Colo. 2001).
A. Colorado’s Bar Admission Process Lacks Adequate Safeguards
1. Aggrieved Bar Applicants Are Entitled To An Effective Remedy For Injuries Of Constitutional Magnitude
Absolute judicial immunity is doled out only sparingly, Forrester, 484 U.S. at 224, and only in those situations where the aggrieved party can invoke procedural or other safeguards deemed adequate to control unconstitutional conduct. Horvitz, supra.3 And substance controls.4
The seminal case in this area is Butz v. Economou, 438 U.S. 478 (1978), wherein it was held that federal administrative law judges (“ALJs”) are as entitled to judicial immunity as their counterparts in federal and state trial courts. In so holding, the Butz court reasoned that
…federal administrative law requires that agency adjudication contain many of the same safeguards as are available in judicial process. The proceedings are adversary in nature. They are conducted before a trier of fact insulated from political influence. A party is entitled to present his case by oral or documentary evidence, and the transcripts of testimony and exhibits together with the pleadings constitute the exclusive record for decision. The parties are entitled to know the findings and conclusions on all the issues of fact, law, or discretion presented on the record.
Butz v. Economou, 438 U.S. at 513 (emphasis added, citations omitted).
Butz makes it clear that it is not the act of ‘judging’ that gives rise to absolute immunity5 but rather, the presence of safeguards adequate to right judicial wrongs. In effect, judges enjoy absolute immunity only when they don’t need it. See, e.g., Forrester, supra. Every judicial immunity case can be explained with resort to this rule, including those involving state trial courts.6
And if you aren’t independent, you can’t be a judge for purposes of judicial immunity law.
The Butz Court explained that a proceeding is “adversarial” if the administrative tribunal is exercising judgment “free from pressures by the parties or other officials within the agency,” Butz, 438 U.S. at 513, observing that “there was considerable concern that persons hearing administrative cases at the trial level [under the pre-Administrative Procedure Act (“APA“) system could not exercise independent judgment because they were required to perform prosecutorial and investigative functions as well as their judicial work, and because they were often subordinate to executive officials within their agency.” Id. at 513-14 (citations omitted).
The otherwise unremarkable case of Cleavinger v. Saxner, 474 U.S. 193 (1985), adds an element of timeliness to the immunity equation. In a fact situation close to this one, while the plaintiff was able to have a prison disciplinary board decision overturned upon appeal, he was unable to have it overturned in a timely manner; he lost his “good time,” and with it, his liberty. At least with respect to federal immunity law, “justice too long delayed is justice denied.”7
And if a ‘right’ only exists on paper, it may not as well even exist there, and Butz, Forrester, and Horwitz all presuppose that the procedural remedies in place actually work. But if there was any doubt on that score, the Tenth Circuit eradicated it in Devous v. Campbell, observing that
…Wyoming law [controlled] the unconstitutional conduct in this case as required by the third prong of Horwitz, and in fact, Plaintiff’s rights were vindicated by the Supreme Court of Wyoming’s reversal of his suspension. It was precisely because Wyoming law required certain procedural steps, and because Defendants failed to interpret the law correctly, that Plaintiff was able to gain redress for Defendants’ unconstitutional actions in Wyoming courts prior to filing this suit. Thus, the safeguards set forth by Wyoming law and the Wyoming courts’ willingness to enforce those safeguards in a manner consistent with due process were sufficient to control the unconstitutional conduct in this case.
Devous, 16 F.3d 415, 1994.C10.41454, ¶ ¶ 12-13 (10th Cir. 1994) (Versuslaw) (emphasis added).
Taken together, these cases hold that unless the aggrieved party has a clear, established, and timely mechanism for forcing government agents to follow the law that actually works, absolute judicial immunity cannot be granted. Every binding judicial immunity decision in this Circuit can be explained by resort to this rule, as can every circuit court case citing Horwitz.8
Diblasio v. Novello is the most recent case in this area of law. Decided just five months ago, that court held on facts substantially identical to the case at bar that New York officials involved in its physician disciplinary process were not entitled to absolute immunity. In distinguishing its decision from the vast array of cases granting immunity (and citing Horvitz), that court observed that “license suspension procedures vary, and the procedures at issue in those cases generally provide physicians much greater protection from erroneous deprivation than New York’s procedure….” Diblasio, 344 F.3d at 300, fn. 2.
Like the regulators in Diblasio, the Board of Law Examiners can only recommend a course of action, Rule 201.10(d)-(e), and Board members are both appointed by and serve at the pleasure of the Justices. Rule 201.2(1)(b). And the Second Circuit found this kind of scheme damning for immunity purposes:
Although these procedures provide some protection to physicians subjected to summary suspension proceedings, the efficacy of those procedures are seriously diminished by other features of § 230. First, by the terms of § 230, the Board’s hearing committee has the power to suggest a course of action only while the commissioner has the final authority to summarily suspend a physician’s license. See § 230(12)(a). Second, although the hearing committee must initiate suspension proceedings, the independence of that body is severely undermined by the commissioner’s appointment and removal powers: eighty percent of the Board members and, derivatively, we can assume that approximately eighty percent of those on the hearing panel, are appointed by the commissioner herself, see, § 230(1), and can be removed at the commissioner’s “pleasure,” see id. at § 230(3). . . . In short, under § 230 the commissioner has virtually unfettered authority….
Diblasio, 344 F.3d at 298-99.
2. Binding International Law Guarantees Bar Applicants An Effective Remedy
Ratified in 1992 — after the immunity cases — the International Covenant on Civil and Political Rights (“the ICCPR”) requires signatory States “[t]o ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.” International Covenant on Civil and Political Rights, art. 3, cl. (3)(b), 999 U.N.T.S. 171, available at http://www.unhchr.ch/html/menu3/b/a_ccpr.htm. The ICCPR is an “international Bill of Rights,” governing the relationship between a signatory State and her citizens.9 Rights protected under the ICCPR include that to access to the courts (art. 14), to not be subjected to arbitrary or unlawful interference with privacy (art. 17), to freedom of religion (art. 18) and expression (art. 19) to engage in public affairs (art. 25), and to equal protection of the laws (art. 26) — corresponding to Smith’s Section 1983 claims involving violations of his First, Fourth, and Fourteenth Amendment rights.
While the ICCPR doesn’t create any new rights under domestic law, in this case, it doesn’t have to. The Constitution declares that a validly enacted treaty is the law of the land, U.S. Const. art. VI, cl. 2, and if an act of Congress is not needed to give force to a treaty, it becomes binding law upon ratification. Warren v. United States, 340 U.S. 523 (1951). And this rule makes intuitive sense — after all, requiring Congress to pass a bill doing exactly nothing would be a colossal waste of time, even for Congress.10 Accordingly, the ICCPR — at least, as it pertains to the matter before this Court11 — is either redundant or self-executing.
And timing in this matter is critical, for “international law is part of our law,” The Paquete Habana, 175 U.S. 677, 700 (1900), and an act of congress “ought never to be construed to violate the law of nations, if any other possible construction remains.” Murray v. The Charming Betsy, 6 U.S. 64, 118 (1804). And as it has been ratified by virtually every nation in the civilized world,12 the ICCPR is not just our law by operation of treaty, but it has become jus cogens law.13 Hence, any judge-made law concerning judicial immunity to the contrary is null and void. See, Finley v. United States, 490 U.S. 545, 556 (1989).
Whether this Court finds it in Butz, Devous, Diblasio, or the ICCPR, it has no choice but to find that judges are only immune from personal liability where the law provides an aggrieved citizen an alternative “effective remedy.”
3. Colorado’s Bar Admission Procedure Fails The Butz/Cleavinger/Horvitz Test, And Is Unable To Provide An Effective Remedy
Cleavinger v. Saxner lists six factors “characteristic  of the judicial process”: (a) the need to assure that the individual can perform his function without harassment or intimidation; (b) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (c) insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and (f) the correctability of error on appeal. Cleavinger, 474 U.S. at 202 (citing Butz, 438 U.S. at 512).
In this case, five of the factors weigh in opposition to absolute immunity, of which four can be addressed summarily. First and most obviously, published opinions are not issued in admission proceedings and as such, there is no precedent upon which a participant may rely. Second, the one and only binding decision on an application is made by the state supreme court justices themselves, Rule 201.10(3), and no established avenue exists for a timely appeal on the merits. Third, the process falls comically short of an adversarial one as defined by Butz, insofar as Board members serve at the pleasure of the state supreme court, Rule 201.2(1)(b), and they cannot even be trusted to keep their own prosecutors and triers of fact separate.14 First Am. Complaint (hereinafter, “FAC”), ¶ 3. Finally, the justices are elected public officials, who are by definition not insulated from political influence — a fact further borne out by partisan decisions rendered from the bench.15
However, a careful reading of Butz reveals that the aforementioned Cleavinger ‘factors’ are themselves safeguards, and the list is not intended to be exclusive. Mylett v. Mullican, 992 F.2d 1347, 1353 (5th Cir. 1993) (citation omitted). Accordingly, Horwitz is still good law, and this Court’s only job with respect to this issue is to answer one simple question: Were the safeguards in place in fact ‘sufficient’ to control the unconstitutional conduct Smith has alleged? And the only way to do this is to analyze the admission process on an “as-applied” basis. See, Devous, supra.
a. Initial Investigation Prior To Inquiry Panel Review
In Colorado, extensive investigations into an applicant’s fitness to practice law are not conducted as a matter of course. Rather, Rule 201.9(1) requires the executive director to conduct an investigation “pursuant to guidelines developed by the Bar Committee,” and his initial decision on whether “probable cause” exists to investigate further is to be reviewed by “a member of the Bar Committee” designated by its chair. As investigations are only initiated after the applicant has met all “objective” requirements for admission, time is clearly of the essence; the secondary review process is presumptively designed to keep the Executive Director from making arbitrary or capricious decisions, or decisions otherwise at variance with constitutional requirements.
Under Devous, this Court need not determine whether these procedural safeguards are adequate, because as a practical matter they do not exist. Defendant Coyle warranted that no written guidelines existed, and their putative “oral guidelines” are so vague as to be utterly meaningless. FAC, ¶ 30. Similarly, an internal Board document indicates that the legal requirement of review by a Bar Committee member is routinely disregarded, and that Smith’s application was not given the consideration required by law. FAC, ¶ 32.
And this is hardly a trivial matter. Smith met every objective qualification for admission to practice on or about May 5, 1996, but as a direct result of Defendant Alan Ogden’s unilateral and unreviewed decision, Smith suffered a four-month suspension of his right to practice law, without notice, a hearing, or even a cursory explanation. When confronted with a similar situation in Diblasio, the Second Circuit found such practices unacceptable:
In short, under § 230 the commissioner has virtually unfettered authority to determine whether a physician’s license should be summarily suspended pending resolution of misconduct charges — a process that, in this case, took eight months. The absence of meaningful safeguards against arbitrary executive action in a summary suspension proceeding weigh against extending absolute immunity to [the defendants.]
Diblasio, 344 F.3d at 299.
b. The Inquiry Panel Process
The “due process vagueness” problem inherent in Colorado’s bar admission procedure has been discussed at extensive length in Smith’s motion for injunctive relief, incorporated herein by reference. In short, the standardless “any evidence” standard is no “standard” at all, and a statute permitting bar examiners to consider any evidence they damn well please necessarily means that activity sheltered by the First Amendment is fair game. And if that First Amendment line hadn’t been crossed so flagrantly by the Defendants, the matter probably would not be before this Court. It can safely be said that there are no safeguards in the admission process which were adequate to control such McCarthy-esque conduct — either in theory or practice.
On account of the lack of standards and meaningful judicial review, the dilemma that a bar applicant faces is one of whether to surrender his or her rights in the face of official intimidation and blackmail. At least in the inquiry panel process, Smith succumbed to the Board’s blackmail, answering questions (e.g., “Why don’t you let go?”) which should never have been asked, out of the reasonable fear that failure to cooperate would have dire consequences. Smith drew the line, and reasonably so, at their outrageous demand for an involuntary psychiatric examination, which he was expected to pay for out of his own pocket.
A more concrete example of an ineffectual “safeguard” is the requirement in Rule 201.9(6) that the inquiry panel commit their findings to writing within thirty days of reaching a decision on whether probable cause exists to challenge an applicant’s fitness to practice law. Presumably, this statutory provision is intended to protect applicants’ due process rights, both by requiring the panel to conduct its business with necessary dispatch and to elucidate the legal and factual basis upon which their decision rests. Moreover, this requirement is jurisdictional in nature. See, Shaball v. State Compensation Ins. Authority, 799 P.2d 399, 402 (Colo.App. 1990) (time limit is jurisdictional when delay affects “private rights”).
This “safeguard” again fails the Devous test. The Inquiry Panel Defendants reached their probable cause determination on Smith’s application on July 28, 1998, FAC, ¶ 53, but didn’t submit their findings, as required by statute, until October 26, 1988. FAC, ¶ 54. What’s more, the Defendants buried the evidence of their willful noncompliance in a stack of documents several inches thick.
c. The Hearing Panel Process
As bad as these procedures are, the hearing panel phase of Colorado’s admission process is where justice truly meets high comedy — for at this point, any resemblance to a court proceeding is strictly accidental.
We start with the hearing panel chair, endowed with authority to rule on motions and issue subpoenas. But not only is the chair not a judge, there is nothing in the statute requiring the chair to be an attorney! Rule 201.10(2); see Rule 201.2(1)(b) (two of the eleven Committee members required to be non-attorneys). As such, you could have the bizarre spectacle of a cosmetologist ruling on subtle issues of First Amendment law, without any mechanism for timely review.
Under Butz, the trier of fact has to be “free from pressures by . . . other officials within the agency.” Thus, even ignoring the ludicrous spectacle of Carlos Samour’s appearance on both the inquiry and hearing panels involved in considering Smith’s application, FAC, ¶ 3, there is no real question that the hearing is not ‘adversarial.’ Hearing panel members are chosen from a shallow pool of eleven ‘jurors’ — who are also named from time to time as inquiry panel members. Rule 201.6. It is not hard to see how members of a hearing panel might be induced to “see things” the inquiry panel’s way, as jurors become prosecutors and vice versa, and they may need a reciprocal favor somewhere down the road.
The formal hearing itself is normally confidential, and the hearing panel “shall not be bound by the formal rules of evidence.” Rule 201.10(2)(c). Again as contrasted to a civil trial, there are none of the customary assurances that allegations made against an applicant are true, relevant, or even reasonably credible.
This situation is compounded by the lack of procedural rules governed by binding precedent and enforced by reviewing courts. The most odious example from this case is Defendant Backes’ summary decision ordering Smith to submit to an involuntary psychiatric examination conducted by one of four psychiatrists hand-picked by the Board, in contravention of federal law, the Colorado constitution, and even the Board’s own enabling statute. Ignoring the apparent illegality of the order itself, if the admission proceeding had been conducted pursuant to the Colorado Rules of Civil Procedure, the request for the examination would have been denied as a matter of law, as “good cause” requires more than a government official’s opinion. (As this matter is discussed at greater length in his motion for a show cause order, Smith incorporates it herein by reference.)
The mischief factor inherent in such an arrangement is enormous. As psychiatry is arguably only two steps removed from shamanism, it is relatively easy to find an “expert” who will testify to virtually anyone (including President Bush16) having a ‘mental illness.’ And as the physicians in question can count on continuing to receive a steady stream of lucrative referrals in exchange for Board-friendly opinions, they have a natural incentive to provide them.
This state of affairs leads inexorably to arbitrary, capricious, and ultimately outcome-based decisions. And while Smith is only privy to two evidentiary rulings by hearing panel chairs, the two rulings are sufficient to indicate that this kind of cronyism and corruption may take place in the agency. When Smith refused to obey the examination order on constitutional grounds, he was denied a Rule 201.10 hearing, but when bar applicant Leonard Alford Thomas refused to submit to the same order, he was granted a hearing. FAC, ¶ 87(e). As Mr. Thomas was then a candidate for the state House of Representatives, he could well have received preferential treatment on this account. Or more likely, Smith may have been denied a hearing because the panel members had no legitimate reason for denying him a license, and needed to invent one.
d. The Colorado Supreme Court’s Role
At least in theory, the Colorado Supreme Court’s role in the bar admission procedure is to review their subordinates’ work, to ensure that constitutional and other strictures were observed. But since the Court, by and through agents serving at its “pleasure,” Rule 201.2(1)(b), maintains plenary control over every aspect of the admission procedure, it blends the roles of investigator, prosecutor, and judge. The Diblasio court found such an arrangement problematic, noting that
as agency head she appears to wear several hats in the course of a summary proceeding: overseer of the investigation, initiator of charges and summary proceedings, and final arbiter of the decision to impose and sustain the summary suspension of a physician’s license. By blending the roles of investigator, prosecutor, and judge, § 230 unduly risks compromising the independence and neutrality of the commissioner’s judgment, and abrogating the checking function achieved in the judicial system by separating investigative, prosecutorial, and judicial staffs.
Diblasio, 344 F.2d at 300.
Judicial independence is a vital ‘check’ on unconstitutional conduct, and its absence weighs overwhelmingly against a grant of immunity. After all, where an independent court is free to say that the Defendants have committed a tort and a crime, the Colorado Supreme Court justices are not “independent” enough to be expected to confess their own criminal negligence. E.g., United States v. Koon, 34 F.3d 1416 (9th Cir. 1994) (supervisory liability under 18 U.S.C. § 241),
A final due process check is the issuance of a detailed written opinion. Without it, there is no assurance that the tribunal’s decision was made on the basis of the record and only the record. The Butz Court found this aspect of federal administrative law crucial to its grant of immunity to administrative law judges operating pursuant to the federal APA:
A party is entitled to present his case by oral or documentary evidence, and the transcripts of testimony and exhibits together with the pleadings constitute the exclusive record for decision. The parties are entitled to know the findings and conclusions on all the issues of fact, law, or discretion presented on the record.
Butz, 478 U.S. at 513 (emphasis added, citations omitted).
If you lose your case in front of, say, the Federal Communications Commission, the ALJ has to follow agency precedent and tell you in detail why you lost, and you have a right to appeal the decision to a higher court. By stark contrast, bar applicant Smith has no way of knowing why a convicted felon and cocaine dealer with known Democratic Party ties received a law license from Democratic Party judges while he did not, and has no readily recognized avenue of appeal on the merits. And more to the point, he has no way of knowing whether he will ever be able to qualify for admission to the profession that he has spent years training for.
e. General considerations
The Defendants have taken some pains to prove to this Court that Smith was represented by counsel in this matter, Mot. at 4, as if the fact somehow has inherent talismanic significance. But that fact should raise more questions than answers for this Court: most notably, that the remedies available to Smith were either so obscure or so meaningless that even an attorney with the reputation and widely recognized skill of a David Lane couldn’t employ them on his behalf. Mot., Exh. M at 1-2. It is impossible to imagine any inherent due process value that a right to be represented by counsel adds in Colorado’s kangaroo bar “court.”
While extensive review of the case law reveals even more flaws inherent in Colorado’s bar admission process, brevity demands limits. Under Horwitz, this Court cannot grant absolute judicial immunity to the Defendants unless it finds that the safeguards in place were in fact adequate to control their alleged unconstitutional conduct.
B. Certain Defendants Were Engaged In Supervision — A Non-Judicial Act
Even in a quasi-judicial proceeding, not every act is cloaked in immunity. The Colorado Supreme Court justices delegated virtually all of those acts which could fairly be called “quasi-judicial” — e.g., fact-finding — to their subordinates on the Board of Law Examiners. Rule 201. As such, their only role in the bar admission process, apart from making the ultimate decisions on applications, was as a supervisor — an inherently administrative task, for which they are not entitled to immunity. Forrester, 484 U.S. at 229-230. As supervisors, they had an affirmative obligation to ensure that Smith’s federal rights were protected, and thus, are civilly liable for failing to act. Woodward v. City of Worland, 977 F.2d 1392 (10th Cir. 1994).
The same argument applies, a fortiori, to authorized agents of the Board of Law Examiners. For instance, Smith’s Professional Responsibility professor, Linda Donnelly, is named solely due to the fact that she had a legal and an ethical (CRPC 5.1) obligation to properly supervise Board attorney James Coyle. While Ms. Donnelly’s actual or constructive knowledge of the situation at bar is one which can only be ascertained via discovery, it is not an issue that can be wished away through summary judgment. Similarly, as the Board employs Defendants Donnelly, Ogden, and Coyle, Rule 201.2(2), and certain Board members had actual or constructive knowledge of their improper conduct, they had an affirmative obligation to take remedial action. Colo. RPC 5.1(c).
III. DEFENDANTS’ RES JUDICATA MOTION IS FRIVOLOUS, REDUNDANT, OR IRRELEVANT
1. The Res Judicata Motion Is Frivolous
The doctrine of res judicata is based on the principle that a final judgment on the merits by a court of competent jurisdiction is conclusive upon the parties in any later litigation involving the same course of action. E.g., Kerndt v. Ronan, 458 N.W.2d 466 (Nebr. 1990). The first question which must be asked here is whether the decision to deny Smith a license is a final judgment on the merits by a court, or a quasi-judicial decision by an administrative agency which just happens to be administered by a court. And to say that a decision is a final judgment on the merits simply because a court happened to make it is to elevate form over substance. See, e.g., Butz, supra.
The Supreme Court dealt with this question squarely twenty years ago, when it held that the decision of a state administrative agency reviewed by a state court is entitled to preclusive effect, but only if the claimant has been afforded the process he is due. Kremer v. Chemical Construction Corp., 456 U.S. 461, 482 (1982) (a state “may not grant preclusive effect in its own courts to a constitutionally infirm judgment”). Thus, as Smith has alleged that the Defendants deprived him of due process of law, this Court would necessarily have to decide that issue on the merits to apply res judicata. As such, Defendants’ motion for res judicata is by definition frivolous.
But it gets worse. Res judicata can only constitute an absolute bar to subsequent litigation where there is an identity of subject matter, causes of action, parties to the action, and identity of capacity in the persons for which or against whom the claim is made. E.g., Consolidated Home Supply Ditch and Reservoir Co. v. Town of Berthoud, 896 P.2d 260, 264 (Colo. 1998) (Mullarkey, J.; citations omitted). But if the Defendants were judges in that action — as they implicitly claim in their motion — they couldn’t possibly be “parties” to the current one!
And it only gets worse. Under Kremer, an administrative decision can be given preclusive effect when it is reviewed by a court, but “without some stated guidelines, and specific findings of fact, judicial review is a hollow gesture.” Elizondo v. Colorado Dept. of Revenue, 194 Colo. 113, 118, 570 P.2d 518, 521 (1977). Accordingly, the Hearing Panel chair’s summary decision ordering Smith to submit to an involuntary psychiatric examination, Mot., Exh. F., couldn’t have been “reviewed” under Kremer, and the order denying Smith a license, Mot., Exh. N, has never been reviewed by anyone. As such, they are not entitled to preclusive effect.
And it only gets worse. An otherwise valid court judgment only “operates as res judicata, in the absence of fraud or collusion.” Riehle v. Margolies, 279 U.S. 218, 225 (1929) (citations omitted). Smith has alleged facts indicating that the order for the involuntary psychiatric examination was procured by the active fraud of James Coyle, FAC, ¶ ¶ 61-66, and collusion between Inquiry and Hearing Panel members, e.g., FAC, ¶ 3. Thus, this Court must necessarily decide those questions of fact before that motion can be given preclusive effect.
And it only gets worse. The covert nature of Colorado’s super-sekrit star-chamber makes it an inappropriate venue for adjudication of constitutional issues. Decisions are all presumptively ad hoc and carry no discernible precedential value; neither the Board nor the Colorado Supreme Court bother to issue written opinions, much less publish them. Moreover, the “very privacy of the proceeding militates against a meaningful constitutional adjudication, since the determination will not provide any remedy against the chill which the rules and the filing of charges” would create in other bar applicants. Garden State Bar Assn. v. Middlesex County Ethics Committee, 643 F.2d 119, 126 (3rd Cir. 1981).
And it only gets worse. It is logically impossible for the Supreme Court Defendants to render judgment on a tort claim arising from their own misconduct in issuing a decision. Specifically, a bar applicant is entitled to a detailed statement of reasons and findings of fact pertaining to the denial of his licensure application. In re Berkan, supra.; Elizondo, supra. As the “court order” in question is facially devoid of the kind of detailed explanation due process demands, Mot., Exh. N, the legality of that specific failure to comport with the requirements of the Due Process Clause could not possibly have been decided in a trial on the merits without use of a time machine.
And it only gets worse. Where the basis of a decision is not made clear, it “will not be a bar to a subsequent action on the same cause of action unless the sole possible ground for the decision is a determination on the merits.” 50 C.J.S. Judgment § 728 (1997) (citations omitted). As a bar applicant may be lawfully denied a license on grounds of moral, ethical, or mental unfitness to practice law, the Defendants failure to explain their decision to deny Smith a license is not res judicata with respect to his facial challenges. After all, if they decided, for example, that Smith was not morally fit to be a lawyer, it would not have to have decided whether Rule 201 is unconstitutionally vague, and it must therefore be presumed to not have reached that issue.
2. The Res Judicata Motion is Also Redundant
And it only gets worse. Res judicata presupposes that a final judgment rendered by a court of competent jurisdiction, which a judge with a personal interest in the outcome of a case cannot as a matter of law be. Tumey, supra. This, in turn, necessarily renders the issue of res judicata moot, and quite obviously so. After all, if the Defendants are deemed immune from liability in tort, an entire class of Smith’s claims automatically disappears. Conversely, if they can be held personally liable for their tortious conduct, they have an identifiable interest in the outcome of said litigation, and would have had to have recused themselves. Id.
3. The Res Judicata Motion Is Also Irrelevant
The only decision relevant to this case that could theoretically have preclusive effect is the one denying Smith a license to practice law. But even if it were a valid court judgment, it is the one and only such decision concerning Smith’s application, and article II, section 6 of the Colorado Constitution guarantees Smith a remedy. And, as the Defendants have granted themselves absolute immunity in tort for state law purposes, the only remedy left is injunctive relief.
IV. THE DEFENDANTS HAVE NOT DEMONSTRATED AN ENTITLEMENT TO QUALIFIED IMMUNITY
The Tenth Circuit explains the procedure for analyzing a qualified immunity defense:
First, the defendant must raise the defense of qualified immunity. Once the defendant has adequately raised the defense, the plaintiff must show that the law was clearly established when the alleged violation occurred and come forward with facts or allegations sufficient to show that the official violated the clearly established law. Then the defendant assumes the normal summary judgment burden of establishing that no material facts that would defeat his claim for qualified immunity remain in dispute.
Woodward, 977 F.2d at 1396-97 (citations omitted).
A. Pertinent Law Was Clearly Established At The Time Of The Incident
To overcome a defense of qualified immunity, the plaintiff must show that a defendant violated a clearly established constitutional right that a reasonable person in the defendant’s position would have known. Harlow v. Fitzgerald, 457 U.S. 800 (1982). For a clearly established right to be violated, the exact conduct in question does not have to be previously declared unlawful; however, “in light of pre-existing law the unlawfulness must be apparent,” and “the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1995). Thus, Smith is obliged, at the risk of stating the obvious, to tell this Court in gruesome detail what the relevant pre-existing law is.
1. The Bar Applicant’s Clearly Established “Portfolio of Rights”
What are the ‘rights’ of a bar applicant? First and foremost, a bar applicant’s interest in the right to practice law is a constitutionally protected liberty or property interest, for which he or she is entitled to equal protection and due process. Schware, supra.
The Bill of Rights further protects an applicant’s right to speak on public issues, Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964), to petition the government for redress of grievances, Nordgren v. Milliken, 762 F.2d 851 (10th Cir. 1985), to be free from unwarranted state intrusions upon their personal privacy, Schmerber v. California, 384 U.S. 757, 767 (1966), and to equal protection of the law. Romer v. Evans, 517 U.S. 620 (1996). Indirect interference in the enjoyment of these rights is as actionable as open and direct interference, Perry v. Sindermann, 408 U.S. 583, 597 (1972), and ‘retaliation’ in particular is specifically proscribed. Worrell v. Henry, 219 F.3d 1197 (10th Cir. 2000). Smith has asserted facts indicating the violation of each and every one of these rights, either individually or in the alternative, thereby meeting his initial burden. Siegert v. Gilley, 500 U.S. 226, 232 (1991).
2. What Reasonable Defendants Are Charged With Knowing
“A reasonably competent government official should know the law governing his conduct,” Harlow, 457 U.S. at 818-19 (1982). Further, many if not all of the Defendants are lawyers, who must have a working knowledge of hornbook civil rights law and an ability to spot legal issues sufficient to pass a state bar examination, and an independent ethical obligation to either be competent in the areas of law where they practice or become competent. CRCP Rule 1.1. And with respect to our state supreme court justices, they should reasonably be expected to have an expert-level knowledge of the entire Corpus Juris Secundum.
a. The Law of Agency
The law of agency affects virtually everything a lawyer does, from hiring staff to representing clients to figuring out who to sue. It impacts this case in several ways: defining the scope of the Defendants’ authority as agents, their responsibility as supervisors, and the implications of a master-servant relationship upon immunity law.
1. Scope of a government agent’s authority
A government official is a ‘servant of the people’; the bounds of his agency and the limit of his discretion is the law. Ex parte Virginia, 100 U.S. 339 (1879). As such, by way of example, a judge cannot “exclude colored men [from a jury] merely because they were colored,” as that act is not “left the limits of his discretion.” Id. at 348.; see Butz, 438 U.S. at 489-90 (“A federal official who acted outside his statutory authority would be held strictly liable for his trespassory acts.”). Thus by implication, any official’s order without proper support in law is null and void, and a citizen cannot be punished for disregarding it.
2. Principal’s liability for his agent’s conduct
President Truman’s famous motto, “The buck stops here,” is also an axiom of agency law. As L.A.P.D. sergeant Stacey Koon found out the hard way (a 22-month prison sentence for failure to restrain his fellow officers during the beating of Rodney King), a supervisor may be both civilly (Woodward, supra.) and criminally (Koon, supra.) liable for civil rights violations committed by persons under their command and control.
3. Ancillary effects of an agency relationship
The Butz v. Economou doctrine, developed earlier in this brief, is that if a “judge” isn’t truly independent, he or she is not a “judge” for purposes of immunity law. In cases like Diblasio and Cleavinger, where judicial independence is notable only by its absence, Butz precludes immunity. And while Diblasio and Devous create no new law, they retrace the proper analytical process.
b. First Amendment Law
The First Amendment creates a safe harbor for citizens engaging in activities essential to the preservation of a free and democratic republic which our government may not enter, either before (prior restraint), during (censorship), or after the fact (retaliation), either directly or indirectly.
1. Freedom of Speech, Religion, and the Press: “Journalistic And Internet Exposes” Are Constitutionally Protected Conduct
One of the most obvious rights in our Constitution is the First Amendment17 right to speak one’s mind on issues of the day, free from the fear from retaliation by government officials. As Justice Frankfurter said, “one of the prerogatives of American citizenship is the right to criticize public men and measures — and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation.” Baumgartner v. United States, 322 U.S. 665, 673-74 (1944).
Defendant Michael Bender may be the most capable jurist on the Colorado Supreme Court, and when the klieg lights of the media were trained upon him in Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. 2002), he displayed a solid understanding of clearly established contours of this right. He rightly noted that the purpose of the First Amendment was “to protect unpopular individuals from retaliation — and their ideas from suppression — at the hand at an intolerant society.” Id. at 1053 (quoting McIntyre v. Ohio Elections Commission, 514 U.S. 334, 357 (1995)). He quoted Justice Brandeis’ observation that “[Our founders] believed that freedom to think as you will and speak as you think are means indispensable to the discovery and spread of political truth.” Id. at 1052 (quoting Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). And he observed that the First Amendment protected “a wide spectrum of activities,” Id. at 1051, — most certainly wide enough to protect Smith’s “journalistic and internet expose” of a corrupt public figure. And every relevant precedent invoked in Tattered Cover was settled law long before the matter of Smith’s application ever came before the Defendants.
2. The Right to Petition: Litigation Is Protected Conduct
In Mine Workers, Justice Black stated that the right to petition the government for redress of grievances was “among the most precious of the liberties safeguarded by the Bill of Rights.” United Mine Workers Dist. 12 v. Illinois Bar Assn, 389 U.S. 217, 222 (1967). And this truth is self-evident: the only “rights” that we as citizens have are those we have the courage to claim, and the courts, the character to enforce when asked. Majorities can take care of themselves, but at the end of the day, we are all a minority of one.
The right of access to the courts is an essential aspect of the broader right to petition. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). But even this right has limits. “Just as false statements are not immunized by the First Amendment right to freedom of speech, baseless litigation is not immunized by the First Amendment right to petition.” Bill Johnson’s Restaurants, Inc. v. National Labor Relations Board, 461 U.S. 731, 743 (1983) (citations omitted). And as a matter of necessity, every practicing attorney has to know where those limits are. See, e.g., Rule 11; CRPC 3.1..
As he usually did, Justice Quinn defined those limits clearly in Protect Our Mountain Environment, observing that petitioning activity was not immunized from liability if
(1) the … claims were devoid of reasonable factual support, or if so supportable, lacked any cognizable basis in law for their assertion; and (2) the primary purpose of the … petitioning activity was to harass the plaintiff or to effectuate some other improper objective; and (3) the … petitioning activity had the capacity to adversely affect a legal interest of the plaintiff.
Protect Our Mountain Environment, Inc. v. District Court, 677 P.2d 1361, 1369 (Colo. 1984).
To state the POME rule affirmatively, if a claim is not without factual support or devoid of legal merit, that petitioning activity is sheltered by the First Amendment. Moreover, to say that a lawyer may prosecute a claim with impunity, but a future bar applicant cannot, violates the applicant’s rights under the Equal Protection Clause. See, Romer v. Evans, supra..
3. Indirect Restraints on Protected Conduct Are Impermissible
In Saddam Hussein’s Iraq, you were free to say whatever you wanted to, but if you ever said something the government didn’t like, Uday Hussein was reportedly at liberty to cut your tongue out. But there are more subtle ways for the government to control speech and/or conduct, equally impermissible under our law. As the Colorado Supreme Court, with Defendant Mary Mullarkey voting in the majority, observed:
The government may not deny a benefit to a person on a basis that infringes his constitutionally protected interest . . . For if the government could deny a benefit to a person because of his [exercise of] constitutionally protected [rights], his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to produce a result which it could not command directly. Such interference with constitutional rights is impermissible. Perry v. Sindermann, 408 U.S. 583, 597 (1972).
University of Colorado v. Derdeyn, 863 P.2d 929, 947 (Colo. 1993) (emphasis added).
The doctrine banning acts of indirect governmental retaliation for protected speech is a well-traveled one, most often appearing in retaliation cases against government whistleblowers. E.g., Dill v. City of Edmond, 155 F.3d 1193 (10th Cir. 1998) (application of Pickering test). But it has also been invoked in Baird v. State Bar of Arizona, 401 U.S. 1, 8 (1970), wherein the Court held that “views and beliefs are immune from bar association inquisitions designed to lay a foundation for barring an applicant from the practice of law.”
In Tattered Cover, Justice Bender shows a fine grasp of the clear and present danger indirect restraints pose to free speech and free inquiry. Allowing the government to say that “you can say what you like, but if we don’t like you say, we can destroy your career” is almost as menacing to free speech as the Uday Hussein-approved method. Using one of Justice Douglas’ most memorable concurrences, Bender recites the ‘parade of horribles’ indirect restraints would precipitate:
….[T]he free press as we know it disappears. Then the spectre of a government agent will look over the shoulder of everyone who reads. . . . Fear of criticism goes with every person into the bookstall. The subtle, imponderable pressures of the orthodox lay hold. Some will fear to read what is unpopular, what the powers-that-be dislike. . . . [F]ear will take the place of freedom in the libraries, book stores, and homes of the land. Through the harassment of hearings, investigations, reports, and subpoenas government will hold a club over speech and over the press. [United States v. Rumely,] 345 U.S. 41, 57-58 (Douglas, J., concurring).
Tattered Cover, 44 P.3d at 1053 (emphasis added).
Although the ink is barely dry on Tattered Cover, the principle undergirding it is etched in Constitutional stone: “The First Amendment would, however, be a hollow promise if it left government free to destroy or erode its guarantees by indirect restraints so long as no law was passed that prohibits free speech, press, petition, or assembly as such.” Mine Workers, 389 U.S. at 222.
4. Indirect Restraints: The Due Process Vagueness Doctrine
The due process vagueness doctrine requires lawmakers to set reasonably clear guidelines to prevent arbitrary or discriminatory enforcement of a statute, Smith v. Goguen, 415 U.S. 566, 573 (1974), and it is unconstitutionally vague if its standards are so ill-defined as to create a danger of same. E.g., Kibler v. Colorado, 718 P.2d 531, 534 (Colo. 1979); Smith v. Plati, 258 F.3d 1167 (10th Cir. 2001). Moreover, when “a statute’s literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.” Smith v. Goguen, 415 U.S. at 573. And the reason is obvious: Unfettered discretion leads inexorably to selective enforcement of a statute, Kolender v. Lawson, 461 U.S. 352, 358 (1983); LDS, Inc. v. Healy, 197 Colo. 19, 21, 589 P.2d 490, 491 (1979), thereby chilling the First Amendment rights of all citizens, Arnett v. Kennedy, 416 U.S. 134, 231 (1983) (Marshall, J., dissenting), because “[w]hen one must guess what conduct or utterances may lose him his position, one necessarily will ‘steer far wider of the unlawful zone.’” Keyishian v. Board of Regents, 385 U.S. 589, 603-04 (1967), (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958)).
But how much specificity is enough? Again, we turn to Defendant Mary Mullarkey for the definitive answer: statutes “confronting First Amendment freedoms must be specific enough not to inhibit the exercise of those freedoms.” People v. Batchelor, 800 P.2d 599, 603 (Colo. 1990) (citation omitted; en banc opinion delivered by now-Chief Justice Mullarkey). And while a facially unconstitutional bar admission statute was upheld, the Court stated that the New York bar examiners’ practice of interpreting it in a manner respecting those freedoms was the dispositive fact. Law Students Civil Rights Committee, Inc. v. Wadmond, 401 U.S. 154 (1971). As such, a reasonable bar examiner would know that he or she was on a short First Amendment leash.
c. The Right to Due Process
The Due Process Clause requires governmental entities to provide a person whose constitutionally protected interests in life, liberty, or property18 are being threatened an “opportunity to be heard in a meaningful time and in a meaningful manner.” Matthews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965). The due process standard “is flexible and calls for such procedural protections as the situation demands,” Morrissey v. Brewer, 408 U.S. 471, 481 (1972), determined by the weighing of three factors: the significance of the interest affected, the risk of erroneous deprivation inherent in existing procedures, and an assessment of whether improved procedures are worth the cost. Matthews, 424 U.S. at 335 (citation omitted).
1. The Process Due a Bar Applicant
With respect to professional licensure disputes, federal and state courts have determined the appropriate level of “process” due: a full, fair, trial-type hearing, Willner v. Committee on Character, 373 U.S. 96 (1963), conducted in a timely manner, Barry v. Barchi, 433 U.S. 455 (1979). Applicants can expect their ‘fitness’ to be judged by reference to an ascertainable and reasonably explicit standard, Doe v. Civil Aeronautics Board, 356 F.2d 699 (10th Cir. 1966), that the licensing agency will follow its own statutes, In re Thalheim, 853 F.2d 383 (5th Cir. 1988), and that it will issue a statement of reasons and indication of the proof relied upon by decisionmakers. In re Berkan, supra., cited with approval in In re Suspension of Judith Ward Mattox, 758 F.2d 1362 (10th Cir. 1985); see also, Elizondo, supra.
2. Due Process and the Right to Privacy
Justice Brandeis defined the constitutional right of privacy as “the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.” Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). It is grounded in the Fourth and Fifth Amendments, and described as protection against all governmental invasions “of the sanctity of a man’s home and the privacies of life,” Boyd v. United States, 116 U.S. 616, 630 (1886), and one elemental aspect of this right is an “individual[’s] interest in avoiding disclosure of personal matters.” Whalen v. Roe, 429 U.S. 589, 600 (1977).
“The Due Process Clause directly protects fundamental aspects of personal privacy against intrusion by the State,” Mangels v. Pena, 789 F.2d 836, 839 (10th Cir. 1986). And here, it is with good reason, as it is difficult to imagine more intimate and personal information than the secrets of a man’s mind, and no act more violative of his privacy and personal dignity than having them rummaged through by a state-mandated psychiatrist on a “fishing expedition” search of supposed “mental instability.” See, e.g., National Fed’n of Fed. Employees v. Greenberg, 789 F.Supp. 430 (D.D.C. 1992). For once that information is disclosed to a third-party, the ethical tie created by the physician-patient privilege disappears, Draft Report of the ABA Section of Individual Rights & Responsibilities Report to the House of Delegates, Feb. 1, 1993, at 2-3, as quoted in Wielobob, Bar Application Mental Inquiries: Unwise and Unlawful, Human Rights, Winter 1997, p. 13, and under the law as it then stood, if a Court functionary entrusted with this extraordinarily sensitive information maliciously disclosed it to third parties, the injured applicant would not even have a remedy in tort! Rule 201.2(5) (1995) (amended 2000) (fixing this problem).
Under federal law, in determining when a person should be required to undergo a psychiatric examination, a court must balance the interests involved, considering whether the subject “has a legitimate expectation of privacy, (2) if disclosure serves a compelling state interest, and (3) if disclosure can be made in the least intrusive manner.” Denver Police Protective Ass’n v. Lichtenstein, 660 F.2d 432, 435 (10th Cir. 1981). As information about a person’s mental fitness can be obtained from his associates, see, In re Anastaplo, 366 U.S. 83, 106-07 (1961) (Black, J, dissenting) (extensive background check by Illinois bar), and the only criteria which may be applied must be related to “the singular objective of ensuring that attorneys are honest and proficient in the basic skills and knowledge of their profession,” Goldsmith v. Pringle, 399 F.Supp. 620, 625 (D.Colo. 1975), it is difficult to credibly contend that any state bar has the right to conduct such a search without first conducting a strenuous background check.
While the Fourth Amendment protections of privacy are considerable, article II, section 7 of Colorado’s constitution provides its citizens with even more zealous protection of their personal privacy. See, People v. Hillman, 834 P.2d 1271, 1279-80 (Colo. 1992) (Quinn, J., dissenting; collecting cases).19 Stating the obvious, Justice Bender adds: “the protections afforded by the Colorado Constitution are of little value if the [aggrieved party] is not given an opportunity” to challenge the constitutionality of a government-conducted search. Tattered Cover, 44 P.3d at 1060. Justice Bender concluded that:
Had it not been for the Tattered Cover’s steadfast stance, the zealousness of the City would have led to the disclosure of information that we ultimately conclude is constitutionally protected. This chronology demonstrates the importance of providing [parties whose rights are affected by a search] with an opportunity to contest the actions of law enforcement officials in an adversarial setting.
Id. at 1060.
If the contents of a man’s bookshelf are so sacred and precious that the government may not examine it without a proper hearing, what about the contents of a man’s mind? Surely, if government voyeurs could rummage through our deepest and darkest thoughts, hopes, and fears, for any reason or no reason at all, the contents of our bookshelves scarcely matter. Article II, section 7 of the Colorado Constitution states, in pertinent part:
The people shall be secure in their persons . . . from unreasonable searches and seizures, and no warrant to search any place shall issue . . . without probable cause, supported by an oath or an affirmation reduced to writing.
As no consent can be “voluntary” where failure to consent results in denial of a government benefit, Derdeyn, 863 P.2d at 947, the State must show a “compelling reason or need” People v. Chard, 808 P.2d 351 (Colo. 1981), to conduct an involuntary psychiatric examination. This, in turn, requires the court to “balance the possible emotional trauma, embarrassment or intimidation to the complainant against the likelihood of the examination producing material, as distinguished from speculative, evidence.” People v. Estorga, 612 P.2d 520, 523 (Colo. 1980). And, for that reason, “good cause” actually means more than “’cause we wants it.” Schlagenhauf v. Holder, 379 U.S. 104 (1964).
3. The Americans With Disabilities Act
In 1990, Congress enacted the Americans With Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”), establishing additional civil rights protections for persons with disabilities. By Jan. 26, 1992, the effective date of the Act, all public entities, including state licensing boards, see, e.g., Ware v. Wyoming Bd. of Law Examiners, 973 F.Supp. 1139 (D.Wyo. 1997); Clark v. Virginia Bd. of Law Examiners, 880 F.Supp. 430, 441 E.D.Va. 1995), were required to comply with its provisions.
Title II prohibits “discrimination” by a “public entity” against a “qualified individual with a disability,” 42 U.S.C. § 12132 (1999), defining such an individual as one “who meets the essential eligibility requirements . . . for the receipt of services or participation in programs” provided by a public entity, Id. § 12131, and an “individual with a disability” includes those who are not disabled, but are nonetheless “treated by a covered [public] entity as having a substantially limiting impairment.” 29 C.F.R. § 1630.2(1); Richa