Dog doo ruling further twists meaning of free speech

By Karen Kataline (kaykat73@aol.com) I know it’s a stinky subject but the recent acquittal of Kathleen Ensz, of a criminal charge, for filling a political mailer with dog feces and returning it to Marilyn Musgrave’s office, got me thinking. Underneath the sheer entertainment value of reporting on the extent of political “dung-slinging” lies a profoundly serious issue. Ensz was acquitted on the grounds of free speech. But what exactly does that mean nowadays? We are living in a time when words are increasingly punished and seen as "violence" -- while actions, which used to be the only thing punishable by the courts, are now defined as speech and protected accordingly.

Is it any wonder that many of us are scratching our heads and wondering when it was that words lost their simple and direct meaning? Was it when Clinton made famous the phrase, “It depends on what the meaning of ‘is’ is”? Or was it when Sunday morning pundits began celebrating how cleverly a politician could use words to obfuscate what he really thinks? Regardless of when it happened, I don’t think I am alone in my concern that the basic principles on which I grew up are being turned upside down.

Would the jury have voted for acquittal if say, Ensz had chosen to burn a cross on Al Sharpton’s lawn and called it free speech? I doubt it. Without clear principles that transcend personal tastes, we are up dung’s creek.

There is a well developed movement that has coined the phrase “verbal violence”. Barak Obama used the term when asked about the horrors at Virginia Tech in April. Obama went on to say that “much of the problem is rooted in our incapacity to recognize ourselves in each other.” Frankly, there is a limit to which I am willing to recognize myself in another—particularly a mass murderer. The blurring of distinctions between who is a victim and who is a perpetrator is another great contributor to this upside down thinking.

Today, the perpetrators of horrific crimes are characterized as victims and the victims of those crimes are asked to master the art of “forgiveness” in order to heal. What’s going on here? Erasing the line between what we think about doing and what we actually do is to ultimately erase personal responsibility for the choices we make. When those distinctions are lost, our safety and civility are at stake. Thought is action, action is thought. Criminals are victims, and victims are criminals.

The growing confusion about the simple and clear definition of free speech itself is also contributing to the problem The First Amendment protects you from being punished by the government for what you say. It does not protect you from being criticized by those for whom you work, clients you serve, or those who choose to watch your movies.

It occurred to me that one of the reasons so many people have trouble with this definition, is because they think of the government and all other private institutions as one in the same. We must stop moving in that direction. Protecting that distinction protects us all.

The right to be offended and the right to disapprove didn’t used to have to be explained and protected. Now, apparently it does. Making clear distinctions and respecting that words have specific meanings, is one of the ways we can turn the world right side up again.

Redistricting: Kourlis had it right

The long legal battle over our 2003 bill to draw permanent congressional districts ended Monday when the US Supreme Court refused to hear the appeal of four Colorado voters seeking redress under Article I, Section 4 of the US Constitution. The Denver Post gloated editorially that this "high-handed and illegal" action of the General Assembly has at last been disposed of. Presumably written by Bob Ewegen, who has had a four-year mad against yours truly about this issue, the editorial did me the honor of personal responsibility for the disputed legislation.

Actually it was a team effort, with much credit also going to now-Congressman Doug Lamborn, former State Rep. Rob Fairbank (now my office mate in the private sector), and former Speaker Lola Spradley, as well as to former State Sens. Cliff Dodge and Jeff Wells, our tactical advisers in the wings.

But in Ewegen's mind this alleged "midnight gerrymander" (it was neither) will always be my baby and mine alone. To his credit as a phrase-maker, that label has gained wide currency -- it was approvingly quoted to me just the other day by Republican State Sen. Steve Ward. Good thing Ward wasn't serving back then; we'd never have gotten our 18 votes.

But as for the actual constitutionality of our 2003 bill, I still cherish the ringing dissent of then-Justice Rebecca Kourlis (joined by Justice Nathan Coats) in the state Supreme Court's 12/1/03 ruling that struck down SB-352. The case is Salazar v. Davidson, and the full opinion is here.

Kourlis and Coats, not coincidentally the only two Republicans on the seven-member court, demolished the partisan-Democrat and doctrinaire-liberal holding of Chief Justice Mullarkey. The opinion as posted online is not searchable, so scroll down past page 63 of the majority opinion to read the dissent (which starts over from page 1).

Its five sections show that: (I) the judiciary has no final authority over redistricting under either the federal or state constitution, (II) courts have only a reviewing role, within limits, (III) there is no time deadline for legislative action on redistricting, (IV) the 2002 court-imposed districts were merely temporary, and (V) the state Supreme Court was wrong in ever granting Salazar's request for original jurisdiction. Becky Kourlis sums up her cogent reasoning as follows:

With its holding today, the court significantly alters our form of government. For the first time in the state’s history, the court restricts the redistricting authority of the General Assembly to a narrow window, and mandates that if the General Assembly fails to act within that time frame, the court will exercise that power for it.

While eliminating political considerations from redistricting may or may not be a laudable goal, redistricting is an inherently political activity, and rests with the democratically elected branch of government for good reason. Absent express constitutional authority granting a role to the judiciary – which I suggest is wholly absent from our constitution - the courts should serve only to protect constitutional interests in redistricting: not to commandeer the process.

Amen! A commandeering of the process by the imperial judiciary, and a consequent profound alteration of our form of government here in Colorado-- away from the rule of law and the will of the people to the rule of judges and the theories of ideologues -- was exactly what Salazar, Mullarkey, and their fellow Democrats accomplished in this case. Ewegen and the Post are free to believe otherwise, but I'm with Kourlis and the Constitution.

Judges coddled by sweetheart reviews

(Denver Post, Feb. 18) “Ninety-nine and 44/100 percent pure.” Remember the old Ivory Soap slogan? It made the sensible point that if you start with a really clean cleaning agent, everything else will clean up better as a result. Squeaky clean is certainly what Coloradans want with our judges, entrusted as they are with interpreting the laws, punishing wrongdoers, and dispensing justice. So you will be glad to learn that by one yardstick, voter approval, state judges are better than 99 percent perfect. It sounds improbable, but the statistic is easy to calculate.

In nine elections since the judicial performance review system began in 1988, over a thousand judges have faced the voters for retention or dismissal. Fewer than one percent were dismissed (seven, to be exact). Only 13 were even recommended as “do not retain” by the sweetheart-minded performance commissions. Be my Valentine, your honor?

State Sen. Ted Harvey (R-Douglas County) thinks these lopsided numbers signal near-impotence in the review process, not near-perfection in the courts. With the goal of keeping judges more on their toes and providing voters better guidance on retention, he proposed Senate Bill 142. Its quick death in committee last week says much about the sad state of self-government today.

The Harvey bill offered six reforms to invigorate the judicial performance commissions. It provided broader input and tougher criteria in evaluating each judge – including fidelity to the constitution. It granted the commissions greater independence, moved against conflicts of interest, and added a mid-term review for powerful appellate judges. The recommendation to retain a judge, or not, would have appeared on the ballot.

All this was tame, by my lights. But then I was a proponent of last year’s Amendment 40, ten years and out for members of the Colorado Supreme Court and Court of Appeals. SB-142 was far gentler. No hint of term limits, nor even of such reasonable ideas as a balance of commissioners between political parties, statewide geographic representation, or disqualifying government employees and ex-judges from commission seats.

The few mild improvements which the bill did include were too much for the Senate Judiciary Committee, however. Majority Democrats voted it down with scarcely a word of discussion, taking their cue from the scornful opposition testimony of Colorado Bar Association spokesman D. A. Bertram.

Lawyers and judges just understand each other so well, you know, and as for citizen oversight – well, three’s a crowd. Some “tweaking” might benefit the present rubber-stamp process, Bertram admitted – but this Republican bill risked “putting judges into politics,” and goodness, we can’t have that. As if judges in politics and politics in judging were not an epidemic problem already.

How the bill could possibly politicize anything, committee chairman Brandon Shaffer and vice-chair John Morse did not ask attorney Bertram. But Sen. Morse did ask me (testifying next) why the eminence and respectability of our judges wouldn’t naturally prompt them to step down “when they should,” with no need for the tougher scrutiny and potential indignity promised by SB-142.

The American way of monitoring those who hold power, I replied, is summed up in Reagan’s motto: “Trust but verify.” Colorado’s judicial performance reviews were established to do that, 20 years after we quit electing our judges. Now, after 20 years, that ridiculous 99 percent pass rate cries out for verifying better.

The rarity of dismissals indicates a broken system, Republican Sen. Shawn Mitchell argued to his committee colleagues. But the bill died anyway on a party-line vote. So our courts will continue with a dysfunctional status quo in which, among other absurdities, the Chief Justice’s report card is written by a panel where her own appointees hold the deciding voice. Politics as usual: no wonder so many people are alienated.

DA Chambers sets the record straight

The 18th Judicial District DA, censured this week by a state regulatory panel, sent the following letter to newspaper editors in response to what many of us believe was grossly slanted coverage of the whole matter. - JA By District Attorney Carol Chambers (cchambers@da18.state.co.us)

Dear Editors: When I took office, I made a commitment to do the right thing, the principled thing in any given situation. I took this job because I wanted to improve a criminal justice system in need of a great deal more accountability to our constituents for the things that we do and the money that we spend. Our judges, deputy district attorneys and public defenders are public servants first and foremost and should conduct themselves accordingly. It is my job as the District Attorney to represent the People of the state of Colorado and I never forget that.

Identity theft is rampant in the state of Colorado. We rank 5th in the nation for identity theft related crime. District attorneys along with law enforcement must promptly and aggressively investigate this crime and assist victims whenever they can.

Laurette Barrentine is my constituent, she is a victim of identity theft, she is not my friend. We have both testified to that under oath. When Ms. Barrentine came to me about the case Mr. Steiner had filed against her, she was not concerned about herself, we both knew that she would prevail. She did not write the checks in question and Mr. Steiner could not prove that she did. In fact, Mr. Steiner testified that he offered to dismiss the case against her long before I ever got involved in the matter.

Ms. Barrentine’s concern was for other victims of identity theft who might not have the time, money or confidence to stand alone against a collections attorney trying to coerce them to pay on checks they did not write. Indeed, Mr. Steiner testified that this was the first time anyone had ever taken him to trial or insisted that he pay the court costs associated with defending a case that should never have been filed.

Mr. Steiner’s coercive conduct was concerning to me for several reasons. First, he did nothing to investigate the case against Ms. Barrentine before he filed it. A quick and simple phone call to the bank was all it would have taken for him to know that the account number on the checks was not and never had been her account. Ms. Barrentine told him she was a victim of identity theft and he still did nothing to investigate. He filed a lawsuit he knew he could not prove because he had not and could not endorse witnesses to substantiate the allegations. He threatened Ms. Barrentine with treble damages and misinformed her that even if she were found not guilty, the judge or jury could still make her pay his attorney fees. He emphasized to her that she was not an attorney, did not know what she was doing, and was taking a risk by going to trial instead of just paying the checks. This is behavior that borders on criminal conduct. I do not believe it is my job to stand back and watch criminal conduct occur in any context including civil court proceedings. It is certainly not my job to stand back and watch victims be revictimized in a system designed to administer justice, protect the powerless and ensure that victims of crime are treated with dignity and respect.

Attorney Regulation Counsel appears completely unconcerned about Mr. Steiner’s conduct. The grievance brought against me impeded my ability to investigate his conduct and intervene to protect other victims of identity theft from the same practices he used against Ms. Barrentine to no avail. The opinion by the Hearing Board censuring me for potentially interfering with a pending civil case ensures that other district attorneys will never act to intervene in any case in which a collections attorney may be inappropriately coercing victims of identity theft to pay on checks they did not write. These victims are on their own to face collections attorneys. Needless to say, I am frustrated by this outcome that does not seem in any way to advance the administration of justice.

There has been much written about this and I appreciate the opportunity to respond.

Very truly yours, Carol Chambers District Attorney 18th Judicial District

Judge Marquez also botched press-freedom case

Not only does Judge Jose Marquez of the Colorado Court of Appeals have what amounts to an F grade on his official performance report for retention (but with a strange recommendation to be retained anyway on a 6-4 vote of the commission). Not only did he rank dead last (37% out of a possible 100) among the appeals court judges in our 1997-2005 scorecard of cases relating to Colorado’s economic growth, prosperity, and job creation.

Not only did he trample constitutional gun rights in the Trinen case, 2002.

Judge Marquez has also ruled that our First Amendment freedoms of press and speech are trumped by the supposed “privacy right” of a convicted felon not to have her crime and punishment described in a newsletter. That was his opinion in Ditmarr (1999), which fortunately was overruled by the Colorado Supreme Court. Here’s the summary we obtained from a Washington DC-based expert on appellate jurisprudence:

Ditmarr v. Joe Dickerson & Associates, L.L.C., 9 P.3d 1145 (Co.App. 1999), 34 P.3d 995 (2001).

A woman was convicted of felony theft of bonds belonging to an elderly customer of her employer. The private investigator firm that uncovered the theft published the story of its investigation and her conviction in its newsletter. The woman then sued the firm for “invasion of privacy”!

The trial court threw out her lawsuit, but Judge Marquez and two other judges on the Court of Appeals reinstated it. Judge Marquez, writing the opinion, said that if the story of the crime and conviction was for private investigator firm’s commercial benefit, the convicted woman could sue for damages.

Happily, the Colorado Supreme Court overturned this decision. The fundamental fact in this case, the Supreme Court held, is that the article related to the arrest and circumstances of a felony conviction—a matter of legitimate public concern. The publication of the story is protected by our constitution.