Smith Prose DenverColo Brief

Page 1 of 41
Subj: Fw: Judicial Immunity Brief

Date: 7/14/2010 5:20:43 P.M. Central Daylight Time
From: jon.roland@constitution.org
Reply-to: grandjury@googlegroups.com
To: Liberty-List@yahoogroups.com
---------------------------------------
DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO

Case No. 02CV0127
___________________________________________________
KENNETH L. SMITH,
Plaintiff,
vs.
MARY J. MULLARKEY, et al.,
Defendants.
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’
Saturday, July 31, 2010 AOL: Sharon4Anderson

Page 2 of 41
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.
ARGUMENT
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.

Page 3 of 41
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.

Page 4 of 41
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),

Page 5 of 41
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,

Page 6 of 41
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

Page 7 of 41
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

Page 8 of 41
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

Page 9 of 41
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

Page 10 of 41
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)

Page 11 of 41
(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

Page 12 of 41
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,

Page 13 of 41
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

Page 14 of 41
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

Page 15 of 41
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

Page 16 of 41
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.

Page 17 of 41
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

Page 18 of 41
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

Page 19 of 41
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

Page 20 of 41
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

Page 21 of 41
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

Page 22 of 41
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

Page 23 of 41
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

Page 24 of 41
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).

Page 25 of 41
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); Richards v. City of Topeka, 173 F.3d 1247
(10th Cir. 1999). The ADA’s focus is thus not the impairment itself, but the
alleged impairment’s “effect upon the attitudes of others.” MacDonald v. Delta Air
Lines, Inc., 94 F.3d 1437, 1444 (10th Cir. 1996).
Section 12132 covers not only “exclusion from participation in or [denial of]
benefits of the services, programs, or activities of a public entity, but also being
“subjected to discrimination by any such entity.” 42 U.S.C. § 12132 (1999). A
public entity discriminates against bar applicants regarded as having disabilities if
it imposes additional burdens upon them, Clark, supra., and the imposition of a
substantial surcharge upon disabled persons constitutes discrimination forbidden
under the ADA. See, Dare v. California, 191 F.3d 1167, 1171 (9th Cir. 1999) ($6
charge for handicapped placard is discrimination; collecting pre-1999 cases).
Similarly, a public entity may not “impose or apply eligibility criteria that screen
out . . . any class of individuals with disabilities from fully and equally enjoying
any service, program, or activity, unless such criteria can be shown to be
necessary for the provision of the service, program, or activity being offered.” 28
C.F.R.§ 35.130(b)(6). And while it may seem intuitive that a mental fitness
requirement could and should be imposed on attorneys, Rule 201.10(6) permits
an applicant who has been declared mentally incompetent to even handle his
own checkbook to practice law, at the apparently unfettered discretion of the
Colorado Supreme Court. Given the vagueness of the standard in place, in light
of the profound successes of such notable barristers as Abraham Lincoln20 who
are thought to have suffered from mental illness, it is difficult to suggest that
those criteria employed by Colorado are necessary.

Page 26 of 41
d. The “Law of Nations”
As observed earlier, international law is part of our law, and treaties are the law
of the land. And while international human rights law may be almost impossible
to Shepardize, its basic contours are firmly rooted in common sense, and
violations are often patently obvious. For instance, forcing someone to undergo a
psychiatric examination simply because you don’t like the way he exercised his
constitutional right to free expression is a violation of that right on a
Brobdignagian scale. Such abuses of psychiatry have a very long, exceedingly
dark history, and have been uniformly condemned by civilized nations. Yet, they
still apparently occur in such islands of political repression as China,21 Cuba,22
and Colorado.
e. Abstention and The Problem of Jurisdiction
If the government violates your rights, you normally expect to go to the court for
relief. But in the case of bar admission, there’s nowhere to go until your
application is decided. If you went to federal court, your case would be thrown
out under the Younger23 doctrine. As now-Chief Justice Rehnquist explains:
Article VI of the United States Constitution declares that “the judges in

every state shall be bound” by the federal Constitution, laws, and
treaties. Appellee is in truth urging us to base a rule on the assumption
that state judges will not be faithful to their constitutional
responsibilities. This we refuse to do.
Huffman v. Pursue, Ltd., 420 U.S. 592, 611 (1975).
Just as federal courts presume that states can usually fix their own messes,
Colorado courts presume that state administrative agencies can normally fix
theirs, adopting their own Younger doctrine. See, e.g., State Board of
Cosmetology v. District Court, 187 Colo. 175, 530 P.2d 1278 (1974). As such,
there are no pre-deprivation remedies. But in Colorado, bar applicants are the
only applicants for professional licensure which do not have the right to a
remedy, i.e., Rule 106, for the wrongful deprivation of their rights. Accordingly,
their only remedy can be in tort or, as suggested, pursuant to article II, section 6
of the Colorado constitution.
B. In Light Of Pre-Existing Law, The Unlawfulness Of Defendants’ Conduct

Is Readily Apparent
In considering a motion to dismiss under Rule 12(b)(5), this court must construe
the allegations of the complaint strictly against the moving party. Abts v. Board of
Education, 622 P.2d 518 (Colo. 1980). It must also treat all factual allegations of

Page 27 of 41
the non-moving party’s pleadings as true, Id., and give that party the benefit of all
favorable inferences that may be drawn from those facts. Kaiser Foundation
Health Plan v. Sharp, 741 P.2d 714 (Colo. 1987). Summary judgment is a drastic
remedy, never warranted except on a clear showing that there exists no genuine
issue as to any material fact, and the moving party is entitled to judgment as a
matter of law. Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo. 1988). As
such, all Smith needs to show is that there is a genuine issue of material fact as
to whether the unlawfulness of the Defendants’ conduct was readily apparent at
the time the acts complained of occurred.
With that in mind, an examination of the facts alleged in the complaint are in
order, though it won’t be comprehensive, lest a fifty-page brief become seventy-
five (groups of allegations are placed in block quotes to facilitate easier reading).
1. Alan Ogden’s Initial Decision to Convene an Inquiry Panel
Smith alleges (FAC ¶ ¶ 25-28) that as of May 5, 1996, he had met every
objective test for admission to the Colorado bar, and there were no
marks on his record which would call his moral, ethical, or mental
fitness on his record (FAC ¶ 1). He was notified on or about that date
that the matter of his application would be considered by a hearing
panel, which would convene on or about September 5, 1996. (FAC ¶
33). Defendant Alan Ogden made that decision unilaterally, in
contravention of Rule 201.9(1) (FAC ¶ ¶ 30-32). No written guidelines
existed to guide Ogden in making the decision (FAC ¶ 30). Smith was
not given access to “evidence” supposedly supporting this decision or
an explanation of why the decision was made, an opportunity to
challenge Ogden’s decision, or provided a reasonable explanation as to
why the inquiry panel could not discharge its duty in a timely manner
(FAC ¶ 34). Defendant Melanie Backes further acknowledges that
Smith’s inquiry panel was initiated in part “because of concerns”
regarding Smith’s free speech and petitioning activities. (FAC ¶ 43).
The net effect was a de facto four-month suspension of Smith’s right to
practice law, without his receiving any process at all.
What competent attorney wouldn’t have recognized a due process issue here?
Applying the Matthews test, the constitutional shortcomings of this process
should be patently obvious. First, the applicant’s private interest is enormous.
Second, the chances of an erroneous decision, based on unvetted information
which an applicant is not given an opportunity to challenge, and in light of the
apparent fact (which can only be established via discovery) that almost everyone
who goes through the inquiry process is given a license, approaches near-
certainty. And there is no reason why Defendants’ procedures couldn’t be
improved, at minimal cost: California’s bar admission rules allow applicants to

Page 28 of 41
submit their personal information to bar examiners as early as 90 days after they
begin law school,24 and the cost of the program is borne by bar admission fees.
And there is no reason why Smith’s Inquiry Panel could not have met in June, as
opposed to September -- or, in the alternative, why Smith could not have been
sent a timely letter outlining Defendant Ogden’s purported concerns and the
evidence supporting them and inviting him to explain, thereby giving him at least
some opportunity to be heard before he is summarily deprived of the right to
make a living in the practice of law for four months.
And, in light of the Inquiry Panel’s eventual inquiries into Smith’s free speech and
petitioning activities, what competent attorney wouldn’t have seen a First
Amendment indirect restraint problem? What Smith alleges, the Defendants
freely admit: Smith’s free speech and petitioning activities were what triggered
their investigation. Mot. at 4. If the bar applicant knows or has reason to know
that he is going to be deprived of his license summarily for four months, simply
because he exercised his First Amendment rights in a way a government
apparatchik might not like, he may forego his right to seek redress of legitimate
grievances in our nation’s courts, or to speak on issues of the day.
Third, there is a supervision issue. Would a reasonable supreme court justice not
know that the Board of Law Examiners was flouting the rules of their own
enabling statute, not to mention the federal and state constitutions? Or a
reasonable Board member? At absolute minimum, Mr. Ogden’s unilateral
decision should have been reviewed by one competent Board member -- who
might have seen these problems and stopped this problem from becoming a
problem. After all, that is the absolute minimum Rule 201.9 requires.
2. The Inquiry Panel’s Witch Hunt
Smith alleges (FAC ¶ 35) that Rule 201.9(5) grants bar examiners an
unfettered license to probe into an applicant’s religious, free speech,
and petitioning activities, permitting them to consider hearsay, false and
malicious accusations, and other unreliable “evidence“, and there is no
requirement that an applicant even be confronted with it. Pursuant to
this constitutionally offensive grant of power, Smith’s Inquiry Panel
conducted an inquisition into Smith’s First Amendment protected
activities. (FAC ¶ ¶ 35-50)
What competent attorney wouldn’t have recognized a First Amendment indirect

restraint issue here? Certainly Justice Bender, who pontificated so eloquently
when the kleig lights of the media were trained upon him in Tattered Cover,
should have seen the chilling effect that such an inquiry would have. By and
through his authorized agents, Defendant Bender did precisely what Justice
Bender supposedly feared: he didn’t merely “hold a club” over Smith’s

Page 29 of 41
constitutionally protected activities but in fact, swung it with all the subtlety of a
sledgehammer.
At least someone on the Inquiry Panel ought to have been horrified when
Defendant Hargleroad asked the constitutionally damning question: “Why don’t
you let go?” Every Defendant was noticed on it, including Justices Bender and
Mullarkey, who is probably old enough to remember the McCarthy hearings.
Even if red flags wouldn’t have gone off in their heads sua sponte, civil rights
expert David Lane repeatedly reminded them of it (FAC ¶ 74).
3. The Inquiry Panel’s Sloth and Open Disregard of Law
Rule 201.9(6) requires the inquiry panel to issue a report within thirty
days of the date on which the determination was made, stating with
particularity the specific matters indicating that the applicant is not
qualified. (FAC ¶ 51). Smith alleges that, while the Inquiry Panel
reached their probable cause determination on July 28, 1998 (FAC ¶
53), they did not issue their report until October 21, 1998 (FAC ¶ ¶ 54-
55). The Report itself is replete with references to Smith’s
constitutionally protected free speech and petitioning activities (FAC ¶ ¶
39-50).
First, what competent attorney wouldn’t have seen an enormous First

Amendment indirect restraint and/or retaliation issue here? Two courts of
competent jurisdiction considered Smith’s libel suit, and two courts found that it
was constitutionally protected activity. Smith v. Bob Larson Ministries, No.
96CA1556 (Colo. Ct. App. Jan. 12, 1988) (affirming trial court). Hence, on the
basis of Mine Workers and Protect Our Mountain Environment, it could not be
used as a pretext for denying Smith a license without running afoul of the First
Amendment.
Second, the rationale behind the alleged claim of abuse of civil process is so
flimsy that it screams of retaliation. The Defendants deliberately refused to
consider the Colorado Court of Appeals decision, that the libel suit was
occasioned by defendant Bob Larson’s accusation over the airwaves that Smith
was a “stalker,” and that the trial court found it defamatory. They just wanted
something to hang Smith with, as evidenced by the infamous “Why don’t you let
go?” query, and the facts weren’t about to get in their way (see, Baird, supra.).
And then, there’s the Romer v. Evans issue. If an ordinary citizen were to file a
lawsuit, he can do so for any reason or no reason at all, provided it meets the
criteria set forth in Protect Our Mountain Environment. But yet, the Board of Law
Examiners is permitted to hold bar applicants to a higher standard, sua sponte,
without notice? To treat applicants like Smith differently, without a compelling

Page 30 of 41
reason for doing so, is a patent Equal Protection Clause violation, of which any
competent attorney would be aware.
Finally, what competent attorney wouldn’t have seen a jurisdictional issue here?
The statute says “thirty days,” and the right to practice law is certainly a “private
right” adversely affected by the Defendants’ inexplicable sloth. And as there are
no legitimate grounds for such a delay, this Court may reasonably infer that one
or more of the members of the Hearing Panel had a personal vendetta against
Smith, and didn’t want to write this report until they were forced to, as they had
no grounds for denying him a positive recommendation that didn’t involve their
flagrant abuse of his First Amendment rights, and any report they might write
would reveal it clearly.
4. Misconduct During the Hearing Panel Process
Rule 201.10(1) limits matters to be considered by the hearing panel to

those stated in the inquiry panel findings and challenged by the
applicant (FAC ¶ ¶ 52, 56). Though Smith was never noticed on
questions regarding mental stability and therefore never challenged
them (FAC ¶ ¶ 56-60), Defendant Coyle, acting as an apparent agent of
the Inquiry Panel (FAC ¶ 61), asked for and received an order requiring
Smith to submit to an involuntary psychiatric examination by one of
their “captive” psychiatrists (FAC ¶ 66), to be paid for out of his own
pocket (FAC ¶ 62). Mr. Coyle knowingly misrepresented the law to the
Hearing Panel chair (FAC ¶ ¶ 62-72), also failing to allege a single fact
in support of the “motion” (FAC ¶ ¶ 70-71). Defendant Backes issued a
one-sentence “order,” devoid of relevant findings of law or fact (FAC ¶
73).
Defendant Carlos Samour served on both the Hearing and Inquiry

panels (FAC ¶ 3).
When Smith, by and through his attorney, refused to comply with the
involuntary psychiatric examination order on constitutional grounds
(see, e.g., Tattered Cover, and cases cited therein), he was summarily
denied a due process hearing (FAC ¶ 75). On information and belief,
bar applicant Leonard A. Thomas was also ordered to undergo such an
examination, but was given his due process hearing despite his refusal
(FAC ¶ 87(e)).
This is really the guts of the case, insofar as Smith alleges (and, the Defendants
openly concede, Mot. at 6-8) that the Defendants denied him his due process
right to a full and fair hearing on the matter of his admission on account of his
refusal to obey their “order.” But if the “order” was unlawful -- whether it was

Page 31 of 41
procured on account of fraud or malice, or simply due to want of jurisdiction25 --

Smith had a legal right to refuse to obey it. And because the abstention doctrines
deprived him of any opportunity to challenge the “order” in an independent court,
Smith’s only legally viable option was to refuse to obey it,26 for once your privacy
has been invaded, there can be no adequate remedy. See, Bivens v. Six
Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
At the outset, it should be manifestly obvious to a competent attorney that he is

not at liberty to knowingly make a false statement of material fact or law to a
tribunal. CRPC 3.3(a)(1); see, Berger v. United States, 295 U.S. 78 (1935)
(prosecutor “is not at liberty to strike” foul blows). Similarly, any competent
attorney practicing bar admission law in Colorado should have known that Rule
201.10(4) did not give him the right to ask for an order dictating that four and only
four of the thousands of licensed psychiatrists and psychologists could perform a
mental status examination on a candidate.
By the same token, a reasonably competent hearing panel chair should have
known that she did not possess legal authority to grant such a request. The word
“or” actually means something, see, Knutzen v. Eben Ezer Lutheran Housing
Center, 815 F.2d 1343, 1349 (10th Cir. 1987) “or” means “or”) (citations [to nine
cases] omitted), and the drafters of Rule 201 presumably drew a distinction
between mental health professionals licensed by the state and substance abuse
counselors for good reason. Accordingly, she would have no choice but to follow
the statute as written. City of Westminster v. Dogan Construction Co., 930 P.2d
585, 590 (Colo. 1997) (“plain meaning” rule of statutory interpretation).
Indeed, the reasonable hearing panel chair should have known that she had no
authority27 to issue an involuntary psychiatric examination order in this case, in
any event. First and foremost, the jurisdiction of her tribunal is strictly limited in
scope to deciding those issues “in the inquiry panel findings and challenged by
the applicant.” Rule 201.10(1). For any issue to be raised, it must be “stated with
particularity” and submitted in a timely manner, Rule 201.9(6), and the applicant
must affirmatively challenge it in his request for a hearing panel. Rule 201.10(1).
Smith alleges quite clearly that the question of his mental stability was never
raised, and in fact, that it could not have been raised as a matter of law (FAC ¶ ¶
57-59), as the only colorable reference is a verbatim recitation of Rule 201.9(5)
(FAC ¶ 58). Merely stating that “any evidence . . . tends to show that the
applicant is not mentally stable or morally or ethically fit to practice law,” FAC ¶
58 (emphasis in complaint), does not and cannot constitute a finding that there is
evidence showing that Smith is not “mentally stable,” for the same reason that a
summary ruling does not create res judicata on all possible issues before a court.
A competent hearing panel chair should also have known that the mental fitness

Page 32 of 41
standard in Rule 201 was too vague to be enforced, especially in light of the First
Amendment issues raised by the inquiry panel report and pointed out by Smith’s
counsel. As that report was replete with references critical of Smith’s First
Amendment-protected activity, it should have been as clear to her as it was
Smith’s lawyers that the inquiry panel was improperly using that activity “to lay a
foundation for barring [Smith] from the practice of law.” Baird, supra. It should
also have been obvious to any competent hearing panel chair that, while Smith
was required by statute to prove his “mental stability,” he had no notice of what
“mental stability” was and therefore, no earthly idea as to what it was that he had
to prove. The statute certainly doesn’t tell us, and there is no binding case law.
And surely, any competent hearing panel chair should have known that due
process required the Board to perform a meaningful background examination
before such a drastic search could be ordered, to show there was an actual need
for one. Government indolence and sloth is no excuse for short-circuiting the
Constitution, or trampling on a citizen’s basic human rights.
In addition, the competent hearing panel chair should have known that “good
cause” means more than “’cause we wants it.” To wit, if the hearing panel chair is
permitted to analogize from one section of the Colorado Rules of Civil Procedure
to find a power the statute doesn’t give her, shouldn’t she also be expected to
search through the Rules to find out what “good cause” means?
Both the reasonable Board member and reasonable executive director should
have known that Rule 201.8 specifically forbade an inquiry panel participant from
serving on a hearing panel, and that the intent of the Rule was to provide
applicants their due process right to a fair hearing. Yet, Carlos Samour sat on
both panels (FAC ¶ 3), and presumably, was assigned to both panels by Alan
Ogden. And this was not harmless error, as a competent hearing panel member
would have brought obvious constitutional problems like these to the attention of
the Chair.
And what competent attorney wouldn’t apprehend due process and equal
protection issues, especially in light of the total absence of case law (or even
written guidelines) to limit the hearing panel chair’s discretion -- and no
requirement that the hearing panel chair explain her decisions? Every decision is
ad hoc, and on its face arbitrary and capricious.
And finally, there is the Colorado Supreme Court’s culpable acquiescence in

these matters. It’s not like Chief Justice Mary Mullarkey was faced with the
impossible dilemma of Sgt. Stacey Koon, charged with controlling a handful of
testosterone-charged officers beating the living daylights out of a man. All she
had was a file in front of her. A file that screamed of constitutional rights
violations. Smith has alleged facts showing “personal direction or of personal

Page 33 of 41
knowledge and acquiescence,” Woodward, 977 F.2d at 1400 (quoting Andrews

v. City of Philadelphia, 895 F.2d 1469 (3rd Cir. 1990)), of a panoply of civil rights
violations, all that is required at this stage of litigation.
From Alan Ogden’s unilateral decision to submit Smith’s bar application to an

inquiry panel to the Colorado Supreme Court’s willful refusal to honor their due
process obligation to explain their decision regarding it, the Defendants have
shown a consistent, conspicuous, and contemptuous disregard for the law they
swore an oath to uphold. And as required under Woodward, Smith has
adequately alleged the law and facts showing its violation, further demonstrating
how the law has been violated.
C. The Defendants Are Not Entitled to Qualified Immunity, In Any Event
Smith alleges that Rule 201.9(6) is jurisdictional in character, Shaball, supra.,

and as such, certain Defendants knowingly acted outside their scope of authority,
thereby depriving them of qualified immunity. Merritt v. Mackey, 827 F.2d 1368
(9th Cir. 1987). Furthermore, the reasoning behind the argument that the ICCPR
rewrites absolute immunity law applies with equal force to qualified immunity law.
Unless Smith has an “effective” non-tort remedy, he is entitled thereunder to
damages in tort; whether the state or federal government sees fit to reimburse
them is a political question outside the purview of this Court.
V. DEFENDANTS’ REQUEST FOR ATTORNEYS’ FEES VIOLATES RULE 11
Rule 11(a) states, in pertinent part:
The signature of an attorney constitutes a certificate by him that he has

read the pleading; that to the best of his knowledge, information, and
belief formed after reasonable inquiry, it is well grounded in fact and is
warranted by existing law or a good faith argument for the extension,
modification, or reversal of existing law, and that it is not interposed for
any improper purpose, such as to harass or cause unnecessary delay
or needless increase in the cost of litigation.
For the Defendants to even ask for attorneys’ fees, they have to be able to make
a good faith argument that they are entitled to them and in this case, that hill
looks a little bit like Pike’s Peak. First off, attorneys’ fees may not be awarded if
the plaintiff makes a good-faith presentation of an arguably meritorious legal
theory and no determinative Colorado authority exists. Cruz v. Benine, 984 P.2d
1173 (Colo. 1999).28 And as Smith is a pro se litigant, for Defendants to prevail
under § 13-17-102(6), this Court must find that he clearly knew or reasonably
should have known that his suit lacked substantial justification, see, e.g., Bockar
v. Patterson, 899 P.2d 233 (Colo. App. 1994), that is, that the action was either

Page 34 of 41
frivolous, groundless, or vexatious. See Bilawsky v. Faseehudin, 916 P.2d 586

(Colo. App. 1995). And with that daunting standard established, we turn to each
specific defense raised by the Defendants.
A. Defendants Have Advanced Frivolous Defenses
It is difficult to imagine any defense more patently frivolous than Defendants’

subject matter jurisdiction defense, especially in light of Howlett v. Rose. As
such, to suggest that Smith clearly knew or should have known that he could not
make a ‘good-faith argument’ that this Court could hear his Section 1983 claims
is a claim so shocking that it almost defies description.
For reasons previously stated, Defendants’ res judicata argument is almost of

equal caliber. If the tribunal deciding the fate of Smith’s bar application did not
provide him with the process he is due, it is a federal tort. Period. And obviously,
that question cannot be decided in a forum falling short of due process minima, in
front of judges who have an obvious personal interest in the outcome of Smith’s
claims.
1. The Immunity Claims
With respect to Defendants’ immunity claims, the problem is not so much with the
concept of immunity itself as it is the authorities they chose to support its
invocation. But for purposes of a request for attorneys’ fees, the Defendants have
to produce authority not just showing that they could make an argument in
support of their position, but that they necessarily must prevail, and quite
obviously so. Indeed, one is left to wonder if their authority even supports their
position.
For instance, it is difficult to understand why Defendants needed three cases to

establish the bedrock principle that conclusory allegations need not be accepted
as true, Mot. at 11, or why this Court would care all that much at this stage of the
litigation. After all, Smith’s Section 1983 tort claims are essentially Carey claims,
where all he has to establish is that he was due a certain level of process, and
that he didn’t get it. Similarly, Smith alleged a retaliation claim, and if counsel had
bothered to read one of the cases he cited (Ramirez, supra.), he would have
learned that only the barest of factual allegations is required to sustain a
retaliation claim, as the fact of retaliation is almost always difficult to establish by
direct evidence. Smith v. Maschner, 899 F.2d 940, 949 (10th Cir. 1990) (quoted
in Ramirez). See also, Miller v. Fairchild Industries, Inc., 797 F.2d 727, 731-32
(9th Cir. 1986) (the fact of a layoff, two months after the plaintiffs engaged in
protected activity, coupled with the defendants’ knowledge that plaintiffs had
engaged in that activity, was sufficient to survive summary judgment motion; also
cited in Ramirez).

Page 35 of 41
It is equally hard to fathom why counsel would quote Rule 201.2(5), the statute
granting the Defendants absolute state-law tort immunity, Mot. at 15, as Smith
makes no state-law tort claim, and Colorado “cannot immunize an official from
liability for injuries compensable under federal law.” Howlett, 496 U.S. at 360
(citing Martinez v. California, 444 U.S. 277 (1980)). Indeed, his article II, section
6 claim literally depends upon the Defendants having state-law tort immunity!
Similarly, it is tough to discern why the Pierson v. Ray line of cases29 bears any
relevance to this case, as the Butz/Horwitz line of cases controls immunity law for
quasi-judicial acts, and the Defendants have failed to show that they are
“performing acts within their judicial jurisdiction.” Mot. at 15. Indeed, as the
Colorado Supreme Court’s judicial jurisdiction is strictly appellate in character,
Colo. Const. art. VI, § 6(1), and may not be expanded by a rule of court, People
v. Smith, supra., the Defendants couldn’t take judicial jurisdiction over this matter
if they wanted to. Grievance Committee30 adds nothing in aid of their cause, as it
interprets the rule governing attorney discipline (now, replaced by Rule 251), and
the Colorado Supreme Court now exercises appellate jurisdiction over those
matters. Rule 251.27(a) (2003). Even Defendants’ best cases -- a pair of
antiquated Colorado District Court cases -- offer little support to their position, as
to the extent to which they are incompatible with Horwitz, supra., they are
overruled.
To avoid being charged with attorneys’ fees, all Smith has to do is make a good-
faith presentation of an arguably meritorious legal theory, and that no
determinative Colorado authority to the contrary exists. And even if this Court
could ignore the hundred-odd cases Smith offered in support of his position, his
argument based on the ICCPR is a matter of first impression in Colorado
courts,31 and Defendants cannot be awarded attorneys’ fees as a matter of law.
In summation, it appears that counsel has made no effort to determine whether

the defenses and claims made in the Motion are grounded in fact and warranted
by existing law, or are at least presented in good faith. Consequently, what ought
to have been a fifteen-page responsive brief now exceeds fifty-one pages, and
unavoidably so.
B. “Statement of the Case”
A few brief observations should be made about the “long history” of this dispute.
First and foremost, counsel’s predictable histrionics aside, it ought to be
recognized that the United States Supreme Court will only hear a case when all
state-law remedies are exhausted. Second, certiorari review is not a review of
the case on the merits -- and as article II, section 6 of the Colorado constitution
gives him that right, Smith would be foolish to trade that certain remedy for a

Page 36 of 41
federal crap-shoot when he’d still have the federal crap-shoot available if he lost.
Second, Smith filed this place-holder action as an insurance policy, as odd and
even indefensible decisions are inherent risks of litigation, and the responsible
litigator covers all his bases. And if you read Smith’s unpublished federal case32
together with Roe v. Ogden, 253 F.3d 1225 (10th Cir. 2001), you are forced to
conclude that, while the bar applicant has a theoretical right to have the
constitutionality of a state bar admission statute determined by a federal court,
that right exists only in theory, because if you actually tried, the Tenth Circuit
would throw your case out in an unpublished opinion -- creating super-sekrit
special law that would only apply to you.
C. “Factual Background”
The Wyoming Supreme Court once famously observed that “half the truth may
be a lie in effect,” Twing v. Schott, 338 P.2d 839 (Wyo. 1959), and it is difficult to
spot the relevance of the tendentious and incomplete “Factual Background”
section of Defendants’ Motion. Mot. at 4-9.
After all, in a Rule 12(b)(5) motion, Smith’s allegations are presumed true, he
gets the benefit of all reasonable inferences, the standards for dismissal are
daunting, Abts; Kaiser; Churchey, and the only ones who need to care about the
facts in a jury trial are the jurors. Furthermore, telling us that Smith’s application
was referred to an inquiry panel pursuant to Rule 201.7 and -9, Mot. at 4, does
nothing to address the issue of Alan Ogden’s failure to follow the Rule.
The fact that “Mr. Smith did not respond to the Inquiry Panel’s request for
documents until
February 11, 1998,” Mot. at 5, seems astonishingly trivial, in light of the fact that
Smith was also represented by counsel, who refused to provide information
“related to Mr. Smith‘s publications on the internet relative to any evangelical
ministries.” Id. It seems that everyone but the Defendants -- Smith, civil rights
expert David Lane, and even Teri Tomsick -- instantly recognized that there was
a serious First Amendment issue here.
Counsel tells us that the Inquiry Panel “found that evidence presented [to it]
raised concerns about Mr. Smith’s mental stability,” Mot. at 6, but can’t explain
what it is and why it is indicative of mental instability, largely because there isn’t
any, per the evidence they were gracious enough to provide. Mot., Exh. D.
Beyond that, about all that need be observed is that Smith’s attorney, David
Lane, repeatedly apprised Defendants of the thin constitutional ‘ice’ upon which
they were skating. FAC ¶ 74.

Page 37 of 41
Suffice it to say that, while Smith had the best counsel he could afford (when he
could still afford it), and arguably among the best available, it availed him little in
Colorado’s kangaroo bar court, where the Constitiution is but a minor
inconvenience.
Similiarly, counsel’s flagrant attempt to defame Smith before this Court and bias
it against him by observing, for example, that the Inquiry Panel also found that “in
[his] appearances before it were ‘marked by lack of candor’,” Mot. at 6, reflects
more upon counsel’s personal character and professionalism. The only issue
before this Court upon this Motion is whether the Defendants can avail
themselves of one of four affirmative defenses, and the only people who should
have a valid reason to care are potential jurors in this case. Moreover, it has no
logical bearing on any other ‘live’ issues in this dispute, such as whether Rule
201 is constitutionally infirm, or whether Smith could lawfully be deprived of his
right to a constitutionally adequate hearing pursuant to Schware and Rule 201.10
under the facts at hand. Smith will refute their claims if need be, but only at the
proper time and in the proper forum.
CONCLUSION
The government of the United States has been emphatically termed a

government
of laws, not of men. It will certainly cease to deserve this high appellation, if
the
laws furnish no remedy for the violation of a vested legal right.33
As an American citizen, Ken Smith has a “portfolio” of vested legal rights -- to

due process of law, to equal protection of the law, to privacy, and most
importantly, to speak on public issues without fear of official recrimination. These
rights have been willfully violated by the Defendants -- who, like Saddam Hussein
before them, boldly maintain that they and they alone are above the law. And as
a matter of law, this simply cannot be. Accordingly, Defendants’ Motion should be
DENIED.
As attorney discipline for willful misconduct resulting in the squandering of scarce

judicial resources is more the province of this Court, and it is empowered to
initiate Rule 11 sanctions on its own motion, Smith will not affirmatively request
relief, noting only that he has had to forego substantial earning opportunities on
account of counsel’s misconduct. At the very least, however, Smith asks that
Defendants’ request for attorneys’ fees be DENIED, and in no uncertain terms.
Smith further requests any and all other relief consistent with this opinion,
including a reasonable time in which to further amend his Complaint, if required.

Page 38 of 41
Respectfully submitted this 5th day of March, 2004.
_____________________
Kenneth L. Smith, pro se
ENDNOTES
1. This argument is developed in greater detail in Smith’s Reply In Support For Plaintiff’s Motions
For Preliminary Injunction And Order To Show Cause, hereby incorporated by reference.
2. The same argument applies, a fortiori, to Smith’s facial challenges to Rule 201. The
Defendants have claimed that they are foreclosed by res judicata, but that issue is irrelevant to
subject matter jurisdiction.
3. Horvitz makes reference to two other prerequisites for the grant of absolute judicial immunity:
that the officials’ functions are similar to those involved in the judicial process, and their actions
are likely to result in damages lawsuits. As these two elements are invariably present in
professional licensure proceedings, they are not germane to this analysis.
4. When a bar committee’s goal has is to deny due process to an applicant, the admission
process is always “administrative.” See, e.g., In re Summers, 325 U.S. 561 (1945) (Illinois); In re
Berkan, 648 F.2d 1386 (1st Cir. 1981) (District Court of Puerto Rico); see also, Matter of
Pressman, 658 N.E.2d 156, (Mass. 1995) (attorney discipline “an administrative process”).
5. To hold otherwise would be to sanction an American Star Chamber, see, Floyd and Barker, 77
Eng.Rep. 1305 (1607), the most profound blot on English juridical history.
6. The rule applies without fail to every judicial immunity case since the principle was established
(in Bradley v. Fisher, 80 U.S. 335 (1872)), including, most notably, Pierson v. Ray, 386 U.S. 547
(1967), and Stump v. Sparkman, 435 U.S. 349 (1978). And the rationale was invariably the same.
As Justice O’Connor observed:
As the Bradley Court noted, ‘Against the consequences of [judges’]

erroneous or irregular action, from whatever motives proceeding, the
law has provided for private parties numerous remedies, and to those
remedies they must, in such cases, resort.
Forrester, 484 U.S. at 228 (citation omitted).

7. Martin L. King, Jr., “Letter From A Birmingham Jail,” Apr. 16, 1963 (to Bishop C.C.J. Carpenter,

Page 39 of 41
et al.; edited for publication by the author) (available at, e.g.,

http://www.sas.upenn.edu/African_Studies/Articles_Gen/Letter_Birmingham.html).
8. Wherever procedural protections have been deemed adequate to protect constitutional rights,
defendants have won every case. E.g., Devous, supra., Dale v. Moore, 121 F.3d 624 (11th Cir.
1997). Conversely, in the relatively few instances where the procedural protections offered were
deemed inadequate, the plaintiff has won every time. E.g., Cleavinger, supra., Scott v. Flowers,
910 F.2d 201 (5th Cir. 1990) (as the judge had no other remedies, his only option was a Section
1983 action); see generally, University of Tennessee v. Elliott, 478 U.S. 788 (1986) (limiting the
application of Rooker-Feldman to state administrative decisions reviewable by a state’s courts).
9. Todd Howland, Rael v. Taylor and the Colorado Constitution: How Human Rights Law Ensures
Constitutional Protection in the Private Sphere, 26 Denv.J.Int’l L. & Pol’y, 1, 11 (1997).
10. If anything can be gleaned from the ICCPR ratification debate, it is that Congress believes
that our existing laws are in full compliance with the Covenant, and no further legislation is
required. Sen. Moynihan (D-NY) observed that “[e]ven though the covenant is not self-executing,
these will now become binding international obligations of the United States.” 138 Cong. Rec.
S4,783 (1992) (statement of Sen. Moynihan).
11. The bulk of the case law interpreting the ICCPR involves death penalty cases, and in
particular, whether reservations adopted by the Senate in its ratification are valid. E.g., Hain v.
Gibson, 287 F.3d 1224 (10th Cir. 2002). The issue of whether the ICCPR provisions which Sen.
Pell (D-RI) described as “guarantee[ing] basic rights and freedoms consistent with our own
Constitution and Bill of Rights” (138 Cong. Rec., at S4,781) require this Court to account for them
in its own jurisprudence is a matter of first impression in Colorado.
12. A current list of ratifying countries is available at http://www.unhchr.ch/pdf/report.pdf (visited

Feb. 10, 2004).
13. The Vienna Convention defines jus cogens as “a peremptory norm of general international
law” that is “accepted and recognized by the international community” and from which derogation
is not permitted. Vienna Convention on the Law of Treaties, May 23, 1969, art. 53, available at
http://www.un.org/law/ilc/texts/treaties.htm (visited Feb. 10, 2004).
14. “Anytime an action taken by a judge is not an adjudication between parties, it is less likely that
the act is a judicial one.” Cameron v. Seitz, 38 F.3d 264, 271 (6th Cir. 1994) (citation omitted).

Page 40 of 41
15. See, e.g., Steve Garnaas, “Police Blast Adams DA Felon Hired As Prosecutor,” Denver Post,
July 15, 1997, at B1 (cocaine-dealing convicted felon with Democratic Party ties given license).
16. E.g., Carol Wolman, M.D., “Is The President Nuts? Diagnosing Dubya,” CounterPunch (on-
line journal), Oct. 2, 2002, available at http://www.counterpunch.org/wolman1002.html (visited
Feb. 26, 2004). Subsequent investigation shows that a Carol Stone Wolman, M.D., is licensed in
California, and is a 1967 graduate of Harvard Medical School living in Mendocino, facts consistent
with the article and her Mendocino Community Network e-mail address. See, http://www.-
medbd.ca.gov/Lookup.htm (visited Feb. 26, 2004).
17. References to First Amendment rights are made with recognition that they apply to the states by virtue of the
Fourteenth via the incorporation doctrine, and that the Colorado Constitution offers even broader protection than
its federal counterpart.
18. While this precise issue has never been decided, an applicant who has met every
constitutionally permissible requirement for admission to a state bar has probably seen his liberty
interest in practicing law mature into a property interest. Cf., Board of Regents v. Roth, 408 U.S.
564, 577 (1972) (rules support “claim of entitlement”) with Schware, supra. (applicant has liberty
interest in taking the state bar examination); see also, Jacobson v. Hannifin, 627 F.2d 177 (9th
Cir. 1980) (collecting cases); but see, Lynch v. Household Finance Corp., 405 U.S. 538, 552
(1972) (dichotomy between liberty and property interests “a false one”).
19. Defendant Dori Kaplan should have some knowledge of this case, as it was argued by
husband David’s law firm.
20. Lincoln is generally believed to have suffered from recurring bouts of severe depression. See,
e.g., http://home.att.net/~rjnorton/Lincoln84.html (collecting Lincoln letters), and source material
cited therein (visited Feb. 23, 2004).
21. See, e.g., Human Rights Watch, Dangerous Minds: Political Psychiatry in China Today and its
Origins in the Mao Era (Aug. 2002), available at http://www.hrw.org/reports/2002/ (visited Feb. 28,
2004) (now being used vigorously against the Buddhist Falun Gong sect).
22. Agustin Blazquez, Castro’s Use of Psychiatry Against Political Opposition, NewsMax.com,
available at http://www.newsmax.com/archives/articles/2002/8/8/194813.shtml (visited Feb. 28,
2004).
23. Younger v. Harris, 401 U.S. 37 (1971).

Page 41 of 41
24. See, The State Bar of California website (http://www.calbar.ca.gov/state/calbar/calbar.home-

.jsp) (visited Feb. 24, 2004).
25. Specifically, Rule 201.9(6) is to be read as a statute of limitations, by virtue of the rule stated
in Shaball, supra.
26. Under ordinary circumstances, there might be a legal issue as to whether the order was void
or voidable. But a hearing panel of the Board of Law Examiners is not a “court” and besides, if
you can’t get a court to hear a challenge, the order cannot by definition be “voidable.” As such,
this Court should apply the long-standing rule that it would be unconscionable for the perpetrator
(in this case, the Defendants, by and through their agent, Mr. Coyle) to profit from their
deceptions. Marshall v. Holmes, 141 U.S. 589 (1891).
27. Defendants further concede that they had no statutory authority to deny Smith a Rule 201.10
hearing. Rather, counsel admits that “the Chair analogized Mr. Smith’s failure to submit to the
mental status examination as ‘akin to failing to appear for an interview with an inquiry panel,’”
Mot. at 8, ignoring the fact that Rule 201.10 granted her no such authority.
28. As counsel cited this case, Mot. at 14, he cannot plausibly claim ignorance of its contents.
29. Pierson, supra. n. 6, et al. (in re: immunity in state trial courts providing appellate remedies).
30. Colorado Supreme Court Grievance Cmte. v. District Court, 850 P.2d 150 (Colo. 1993).
31. Based on a Versuslaw search of all published opinions in all Colorado appellate courts, using
the protocol “international covenant w/10 (civil w/5 rights)” (conducted Mar. 5, 2004).
32. Smith v. Mullarkey, No. 02-1481 (10th Cir. Jun. 11, 2003).
33. Marbury v. Madison, 5 U.S. 137, 163 (1803) (emphasis added).
--
You received this message because you are subscribed to the Google Groups "Grand Jury" group.
To post to this group, send email to grandjury@googlegroups.com.
To unsubscribe from this group, send email to grandjury+unsubscribe@googlegroups.com.
For more options, visit this group at http://groups.google.com/group/grandjury?hl=en.

Smith Prose DenverColo Brief

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Smith Prose DenverColo Brief

Uploaded by

Copyright:

Available Formats

Page 1 of 41

Subj: Fw: Judicial Immunity Brief

DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO

MARY J. MULLARKEY, et al.,

RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Plaintiff Kenneth L. Smith (hereinafter, “Smith”), pro se, respectfully submits

SUMMARY OF THE ARGUMENT

While absolute quasi-judicial immunity is “strong medicine,” Forrester v.

Saturday, July 31, 2010 AOL: Sharon4Anderson

I. SMITH’S CLAIMS FALL SQUARELY WITHIN THIS COURT’S

Saturday, July 31, 2010 AOL: Sharon4Anderson

Conversely, the Colorado Supreme Court, “except as otherwise provided in this

While the Defendants’ “subject-matter jurisdiction” argument is flimsy enough

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

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

Saturday, July 31, 2010 AOL: Sharon4Anderson

II. THE DEFENDANTS HAVE NOT ESTABLISHED A “CLEAR ENTITLEMENT”

To prevail on this motion, the Defendants must establish a “clear entitlement” to

A. Colorado’s Bar Admission Process Lacks Adequate Safeguards

1. Aggrieved Bar Applicants Are Entitled To An Effective Remedy For

Saturday, July 31, 2010 AOL: Sharon4Anderson

…federal administrative law requires that agency adjudication contain

Butz v. Economou, 438 U.S. at 513 (emphasis added, citations omitted).

The Butz Court explained that a proceeding is “adversarial” if the administrative

Saturday, July 31, 2010 AOL: Sharon4Anderson

…Wyoming law [controlled] the unconstitutional conduct in this case as

Devous, 16 F.3d 415, 1994.C10.41454, ¶ ¶ 12-13 (10th Cir. 1994) (Versuslaw)

Although these procedures provide some protection to physicians

Saturday, July 31, 2010 AOL: Sharon4Anderson

Diblasio, 344 F.3d at 298-99.

2. Binding International Law Guarantees Bar Applicants An Effective

Saturday, July 31, 2010 AOL: Sharon4Anderson

to be construed to violate the law of nations, if any other possible construction

3. Colorado’s Bar Admission Procedure Fails The

However, a careful reading of Butz reveals that the aforementioned Cleavinger

Saturday, July 31, 2010 AOL: Sharon4Anderson

only way to do this is to analyze the admission process on an “as-applied” basis.

a. Initial Investigation Prior To Inquiry Panel Review

In Colorado, extensive investigations into an applicant’s fitness to practice law

In short, under § 230 the commissioner has virtually unfettered

Diblasio, 344 F.3d at 299.

b. The Inquiry Panel Process

The “due process vagueness” problem inherent in Colorado’s bar admission

Saturday, July 31, 2010 AOL: Sharon4Anderson

procedure has been discussed at extensive length in Smith’s motion for

A more concrete example of an ineffectual “safeguard” is the requirement in Rule

c. The Hearing Panel Process

As bad as these procedures are, the hearing panel phase of Colorado’s

Saturday, July 31, 2010 AOL: Sharon4Anderson

(two of the eleven Committee members required to be non-attorneys). As such,

This situation is compounded by the lack of procedural rules governed by binding

The mischief factor inherent in such an arrangement is enormous. As psychiatry

This state of affairs leads inexorably to arbitrary, capricious, and ultimately

Saturday, July 31, 2010 AOL: Sharon4Anderson

obey the examination order on constitutional grounds, he was denied a Rule

d. The Colorado Supreme Court’s Role

as agency head she appears to wear several hats in the course of a

Diblasio, 344 F.2d at 300.

Judicial independence is a vital ‘check’ on unconstitutional conduct, and its

A party is entitled to present his case by oral or documentary evidence,

Saturday, July 31, 2010 AOL: Sharon4Anderson

and the transcripts of testimony and exhibits together with the

Butz, 478 U.S. at 513 (emphasis added, citations omitted).

B. Certain Defendants Were Engaged In Supervision -- A Non-Judicial Act