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Smith Prose DenverColo Brief

Smith Prose DenverColo Brief

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Published by Sharon Anderson
AttorneyProSe Brief on Judicial Immunity,Colorado,Triggers SharonAnderson MN AG_PrivateAG,triggers JUDICIAL REFORM,ABOLISH MN STATE COMMITTMENT PANEL AS SECRET COURT, UNDERMINING GRAND JURY GUARANTEE'S
AttorneyProSe Brief on Judicial Immunity,Colorado,Triggers SharonAnderson MN AG_PrivateAG,triggers JUDICIAL REFORM,ABOLISH MN STATE COMMITTMENT PANEL AS SECRET COURT, UNDERMINING GRAND JURY GUARANTEE'S

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Published by: Sharon Anderson on Jul 31, 2010
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Subj:
Fw: Judicial Immunity Brief
Date:7/14/2010 5:20:43 P.M. Central Daylight TimeFrom: jon.roland@constitution.orgReply-to:grandjury@googlegroups.comTo:Liberty-List@yahoogroups.com
 
Page 1 of 41Saturday, July 31, 2010 AOL: Sharon4Anderson
 ---------------------------------------DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADOCase 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 submitsthis 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 rightand the duty to hear all civil cases brought before it, and any attempt totake 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 advancedthe 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 emphaticallybegs to differ.
Howlett v. Rose,496 U.S. 356, 369-75 (1990)(“no valid excuse” rule).
While absolute quasi-judicial immunity is “strong medicine,”
Forrester v.White,484 U.S. 219, 230 (1988), 
it is only administered when the ‘patient’
 
doesn’t need it. Specifically, participants in a tribunal only qualify for absoluteimmunity where the safeguards built into the process are deemed ‘adequate tocontrol 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 onlyfive months ago, evaluating a process substantially identical to Colorado’s, theSecond 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, andDefendants are not legally competent to decide whether they have committed atort for which they potentially owe $25,000,000 in compensatory and punitivedamages.
Tumey v. Ohio,273 U.S. 510 (1927). 
A dozen fatal flaws inDefendants’ argument were identified, but need not be recounted here.Also, it is almost unimaginable that any state bar in the 21
st
century wouldrequire an applicant to undergo an invasive psychiatric examination simplybecause they didn’t like his
journalistic and internet expose 
of a public figure --much less, that an American attorney would claim that no constitutional rightswere violated by such action. But that is precisely what counsel is alleging byinvoking the qualified immunity defense -- manifestly frivolous at this point, as theDefendants are stuck with Smith’s facts, and must prove their defense to acertainty.
Davidson v. Dill, 180 Colo. 123,503 P.2d 157 (1972 
 
 ).
Due to theastonishing array of civil rights violations committed by the Defendants, thelength 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’SJURISDICTION
Smith raised three classes of claim in this case: (1)Section 1983claims, allegingviolations 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 toarticle II, section 6of the Colorado Constitution. Smith brings these claims pursuant toarticle VI, section 9of 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 criminalcases, except as otherwise provided herein, and shall have suchappellate jurisdiction as may be prescribed by law.
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When a civil claim is first raised in a Colorado trial court, it has both the right andthe duty to adjudicate and determine it -- and any attempt to take that right andduty away is null and void.
Western Union, supra.
Conversely, the Colorado Supreme Court, “except as otherwise provided in thisconstitution, shall have appellate jurisdiction only.”
Colo. Const. art. VI ,
§ 
6(1).
Ithas original jurisdiction to issue writs,
Id., art. VI,
§ 
3,
but even that authority isdiscretionary.
Shore v. District Court, 127 Colo. 487,258 P.2d 485 (1953 
). Unlikeits federal counterpart,
it has no other judicial powers,
and cannot expand itsown 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 canonly 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 theColorado and federal constitutions, and by implication, this Court.
1
 While the Defendants’ “subject-matter jurisdiction” argument is flimsy enoughunder state law, it is breathtakingly frivolous under federal law, for under theSupremacy Clause,
U.S. Const. art. VI, sec. 2 
, this Court has a duty to enforcefederal law.
Howlett v. Rose,496 U.S. 356, 367-76 (1990). 
The
Howlett 
Courtobserved:A state court may not deny a federal right, when the parties andcontroversy are properly before it, in the absence of “valid excuse.”“The existence of the jurisdiction creates an implication of duty toexercise it.”An excuse that is inconsistent with or violates federal law is not a validexcuse.
Howlett,496 U.S. at 369-70 (citations omitted).
 “The force of the Supremacy Clause is not so weak that it can be evaded bymere mention of the word ‘jurisdiction.’”
Id.,496 U.S. at 382-83 .
But if theDefendants could have their way,
no 
state court would have authority to hearSmith’s Section 1983 claims. This is clearly inconsistent with federal law, andwould 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 haveurisdiction over
§
1983 cases.”
Id.,496 U.S. at 358 .
Smith has advanced claimsunder Section 1983 which allege, for example, that his right to procedural dueprocess was violated. But while Smith may not have a constitutional right topractice law, he has an absolute right to procedural due process,
Schware v.
 
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