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Legalbear deals w/ oppressive judge

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  • Legalbear
    The judge JDS, sitting in the supervisory court was buddies with my trial court judge. Every appeal and every extraordinary writ filed in that court was
    Message 1 of 2 , May 8, 2007
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      The judge JDS, sitting in the supervisory court was buddies with my trial court judge. Every appeal and every extraordinary writ filed in that court was assigned to the “honorable” JDS. J He dismissed everything! He just was not going to reverse anything his buddy did in the trial court. I came up with a strategy to send him a message from the top down. I recognize the likelihood that the Colorado Supreme Court would grant a pro per’s discretionary writ was almost nil. However, I recognize that a lot of what happens in courts goes on in the background and that there was a high likelihood that one of the Supreme Court justices would place a call to judge JDS and bring a little pressure to bear. I believe that paperwork like this is what got me two wins on the case where my newly appointed senior judge came to the trial court and said, “The Supreme Court has appointed me to hear these two cases only.” and “I am aware that there have been problems with this case.” I also took great delight in hand delivering a copy of this petition to the judge’s chambers and over the possibility that I may have tweaked his conscience respecting his oppressive behavior toward me; and possibly put him a little on edge concerning the possibility of him getting spanked by a pro per in the Colorado Supreme Court. In summary, I am asking the Colorado Supreme Court to hold one of their trial court judges in contempt. You can learn more about contempt from the contempt package I offer at www.bearscart.com. You can also see other paperwork I have used to put a judge on a leash at www.judgeonaleash.com.

       

      There has always been talk about how bad the courts are. In trial it is possible to do what is called rehabilitating a juror. The judge, or one of the attorneys, takes a biased juror and convinces them to fairly hear the evidence before making a judgement. I believe it is possible to rehabilitate most judges including the ones that have been paid off! All that is needed is some divine inspiration as to what needs to be done to rehabilitate the judge.

       

      Judge JDS got cancer and his judicial career ended by way of retirement shortly after I filed this paperwork.

       

      SUPREME COURT, COLORADO

       

      Case No.______________________

       

       

      C.A.R. 21 PETITION FOR COURT TO ISSUE A SHOW CAUSE ORDER

       

       

      IN RE:

       

      Barry Smith,                                                                                                                                                  Petitioner,

       

      v.

       

      XXXXXXXXXXXXXXXX, judge of the Larimer County District Court,        Proposed respondent.

       

       

       

       

      Petitioner:           Barry Smith

                                   general delivery

                                   Ft. Collins , Colorado 80525-9999

                                   (For messages)

                                   fax

       

      Proposed

      Respondent:       XXXXXXXXXXXXXXXXX

                                   P.O. Box 2066

                                   xxxx, Colorado 80522

                                   xxxxxxxxxxxxx

                                   xxxxxxxxxxxxxxxxx

                                  

       

       

      PARTIES:

       

                    I, Barry Smith am  the Defendant/Appellant in PEOPLE V. BARRY SMITH, Case No. XXXXXXXX, in Larimer County District Court an appeal springing from XXXXXXXXXX in the Larimer County Court Loveland Division.  I am the plaintiff in Barry Smith v. HONORABLE JUDGE JOHN XXXXXXXXXX OF THE LARIMER COUNTY COURT, LOVELAND DIVISION, Case No. XXXXXXX, in Larimer County District Court, a C.R.C.P. 106(a)(2) mandamus proceeding in Larimer County District Court.

                    Judge John DS is the Larimer County District Court judge that has been assigned to hear each of the above cases.  Judge DS is the person against whom relief is sought.

      ACT COMPLAINTED OF:

                    Judge DS dismissed my appeal, Case #xxxxx, and, dismissed my mandamus complaint, Case #xxxxx, before  ruling on my motions to disqualify him first contrary to and in alleged contempt of C.R.C.P. 97, a rule made by this Court, and various case rulings  issuing from this Court.

       

      NO OTHER RELIEF IS AVAILABLE:

                    Prior decisions issuing from this Court hold that a motion to substitute a judge should be the first motion heard and that a judge has  no authority to rule on any other motion until that motion has been ruled on; and that, if a judge fails to rule on the motion first, that he has abused his discretion.   No other relief is available on the appeal, Case #xxxxxxxxx, because it is an appeal as a matter of right, from a county court.  Acts taken by the District Court on such an appeal are not appealable as a matter of right.  A notice of appeal has been filed with the Court of Appeals on the dismissal of the mandamus complaint, Case #xxxxxxxxxxxxx, because an appeal as a matter of right is available because the court of original jurisdiction was the district court.  This Court may want to consolidate those two cases with this instant one.  I had filed what I called a Motion for the Court to do Things in the Right Order in which I informed Judge DS of this Court’s prior rulings and he has ignored it.  Previously, I had petitioned this Court regarding Judge DS’s refusal to rule on  my motions to disqualify him.  That petition was denied [Case #xxxxxxxx].  A petition for this Court to issue a writ in the nature of certiorari on the appeal dismissal has been filed contemporaneously with this petition.

                    Solemn declarations regarding Judge DS’s misconduct have been sent to the Commission for Judicial Misconduct, Governor Owens, and to the Chairman of the House Judiciary Committee, William Kauffman.  At this time no known action has been taken by any of these officials.

       

      ISSUES PRESENTED:

                    Was Judge DS in contempt of this Court when he refused to follow C.R.C.P. 97; a rule issuing from this Court pursuant to Its’ rule making power set forth in Article VI Section 21 of the Colorado Constitution; prior to dismissing my mandamus action and my appeal?

                    Was Judge DS in contempt of this Court when he refused to follow case law issuing from this Court respecting his duty to rule on a motion for change of judge prior to taking any other action on the case.

                    Have I done anything that would give Judge DS a reasonable excuse for failing to follow C.R.C.P. 97 and case law issuing from this Court? 

       

       

      FACTS:

                    The facts of this case are set forth in the Solemn Declaration of Barry Smith, made pursuant to 24-12-102 C.R.S., before a duly authorized notary and is attached.  That solemn declaration is incorporated herein as though set forth fully.      

       

                    ARGUMENT AND POINTS OF AUTHORITY:

                    In Zoline v. Telluride Lodge Association, 1987.CO.40501 <http://www.versuslaw.com>732 P.2d 635 ( Colo. 1987) the Court held:

       

      * * * our cases have held that "good faith and orderly process dictate that if grounds for disqualification are known at the time the suit is filed and a party desires to proceed thereon, a motion to disqualify should be filed prior to taking any other steps in the case." Aaberg v. District Court, 136 Colo. 525, 529, 319 P.2d 491, 494 (1957).  Id. @ ¶ 18.

       

                    This Court in Johnson v. District Court, 1984.CO.40685 <http://www.versuslaw.com>674 P.2d 952 (Colo.1984) gave this Court the following directions:

       

      While we have recognized that when the grounds for disqualification are known, a motion to disqualify should be filed prior to taking any other steps in the case, Aaberg v. District Court, 136 Colo. 525, 319 P.2d 491 (1957), * * *  Moreover, a request for the disqualification of a trial judge is a most serious undertaking which should not be pursued absent thorough factual investigation and legal research. Id. @ ¶ 32. Finally, petitioner claims that the respondent judge abused his discretion by refusing to grant a change of venue. We do not reach this issue.  C.R.C.P. 97 provides in pertinent part: "Upon the filing by a party of such a motion all other proceedings in the case shall be suspended until a  ruling is made thereon." Once the motion for disqualification was made, the respondent judge was obligated to review the motion and decide  whether it was sufficient to require his recusal. See City of Trinidad v. District Court, 196 Colo. 106, 581 P.2d 304 (1978); Brouwer v. District Court, 169 Colo. 303, 455 P.2d 207 (1969). Since we have held that it was, the respondent judge did not have the authority to determine any other substantive matter that was pending before the court. See State ex rel. Cobb v. Bailey, 349 So.2d 849 ( Fla. App. 1977); Creel v. Shadley, 266 Ore. 494, 513 P.2d 755 (Or. 1973). It would be incongruous to permit a disqualified judge to rule on a discretionary motion, such as a request for a change of venue, which affects the substantial rights of the parties. Accordingly, the motion for a change of venue must be decided by the judge to whom this case is assigned as required by C.R.C.P. 97. We hold that the respondent judge abused his discretion by refusing to disqualify himself. The order denying the motion for a change of venue is vacated because the respondent judge had no authority to rule on the matter. We therefore make the rule absolute, in part, and discharge it, in part. A new trial judge should be chosen in accordance with the provisions of C.R.C.P. 97. The judge to whom this case is assigned should  promptly rule on all pending motions and thereafter comply with the remand contained in our earlier decision in John son v. Jefferson County Board of Health, 662 P.2d 463 (Colo. 1983).  Id. @  ¶ 34-36.

                    In City of Trinidad v. District Court, 1978.CO.40225 <http://www.versuslaw.com> 581 P.2d 304 ( Colo. 1978):

                    Joseph Montera and Nick DeBono filed suit against petitioner, the City of Trinidad , seeking, inter alia, compensatory and punitive damages.  The City was served with a summons and complaint on March 31, 1978. On April 24, 1978, without filing an answer, the City filed a motion to disqualify the judge, the Honorable Dean C. Mabry, one of the respondents herein. This had the effect, as a matter of law, of suspending any further proceedings until the judge ruled on the motion to disqualify. C.R.C.P. 97; see Brouwer v. District Court, 169 Colo. 303, 455 P.2d 207 (1969).

                                   On April 25, 1978, counsel for Montera and DeBono requested Frank Zehna, Clerk of the District Court of Las Animas County and respondent herein, to enter a default against the City, pursuant to C.R.C.P. 55(a), because of the City's failure to file any answer or  responsive pleading. The Clerk entered a default on April 28, 1978.

                    Counsel for the City became aware of the default on May 3, 1978, and realized he was on the horns of a dilemma. Counsel could not file a motion to vacate the default, until the trial judge ruled on the motion to disqualify, for fear of waiving the City's right to pursue the disqualification of the judge. Dominic Leone Construction Co. v. District Court, 150 Colo. 47, 370 P.2d 759 (1962); Aaberg v. District Court, 136 Colo. 525, 319 P.2d 491 (1957). A delay in filing a motion to vacate, however, is a ground for a refusal to set aside the default.  See Ehrlinger v. Parker, 137 Colo. 514, 327 P.2d 267 (1958). Counsel for the City then filed its petition for a writ in the nature of mandamus in this court, (1) seeking an order directing the trial court to rule on the motion for disqualification and (2) seeking an order directing the Clerk of the District Court of Las Animas County to vacate the entry of default. We issued a rule to show cause why the relief sought should not be granted. We now make the rule absolute as to part (1) of the relief sought by the City against the respondent judge and discharge the rule as to the respondent clerk, part (2).

                    The respondent judge must initially rule on the disqualification motion. If he fails to rule, a writ in the nature of mandamus is a proper remedy.  Potter v. Anderson, 155 Colo. 25, 392 P.2d 650 (1964).

                    A rule in the nature of mandamus ordering the vacation of the default is not properly postured for disposition at this time. Such a motion is addressed to the sound discretion of the trial judge, Ehrlinger v. Parker, supra. It should be considered by the judge who will try the case, if it is to be tried, whether it is the respondent or another judge who may or may not replace him. It is not a ministerial function, and therefore, mandamus will not lie. Ahern v. Baker, 148 Colo. 408, 366 P.2d 366 (1961); Brown v. Barnes, 28 Colo. App. 593, 476 P.2d 295 (1970).  If the City files a motion pursuant to C.R.C.P. 55(c) and is dissatisfied with the trial court's ruling, it may appeal. Stiger v. District Court, 188 Colo. 407, 535 P.2d 508 (1975).  Id. @ ¶¶ 12-16. (Emphasis added)

       

                    Four things must be shown to prove punitive contempt: "(1) the existence of a lawful order of the court; (2) contemnor's knowledge of the order; (3) contemnor's ability to comply with the order; and (4) contemnor's willful refusal to comply with the order."  In re Boyer, 1999.CO.0042350 < ¶ 23; 988 P.2d 625 ( Colo. 1999).

                   

                    From Palmer v. District Court of City and County of Denver , 1965.CO.40254

      <http://www.versuslaw.com>; 398 P.2d 435 ( Colo. 1965) I found these quotes I hope this Court finds pertinent:             

       

      Section 19, Article II of the Colorado Constitution ordains that "all persons shall be bailable by sufficient sureties except for capital offenses, when the proof is evident or the presumption great." The mandate of the constitutional provision is that persons charged with offenses are bailable with the one exception mentioned. [cites ommitted] The mention of the one exception excludes other exceptions. Courts would violate their mandate if they were to add another to the exception expressed in the quoted provision.  Id. @ ¶ 18.

       

      It seems like Judge DS has violated his mandate when he denies me the procedural due process prescribed by this Court C.R.C.P. 97 under Colo. Constit. Article VI § 21

       

      As we view it, the trial court has in effect said there is a second exception: that one charged with crime becomes unbailable when he pleads not guilty by reason of insanity.   This the trial court was powerless to do, and the denial of bail was erroneous in this respect.  Id. @ ¶ 19.

       

      Judge DS’s actions dismissing my appeal and my mandamus petition was in effect saying that he was not subject to this Court’s rules or prior decisions.

                    Continuing from the Palmer case ante we find this Court saying:

       

                    The following language used in [cite deleted] a case involving a sexual psychopath, construes a like provision of the California Constitution and is applicable to the case herein.

       

                    ...The people of the State of California through their Constitution have provided in Article I, Section 6, that "All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great.

       

      In a similar manner the people of the State of Colorado through their Constitution have provided in Article II § 6 that:

       

      Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial or delay.

       

      and in Article II § 25 that:

       

      No person shall be deprived of life, liberty or property, without due process of law.

       

      and in Article VI § 21 the people mandated that:

       

      The supreme court shall make and promulgate rules governing the administration of all courts and shall make and promulgate rules governing practice and procedure in civil and criminal cases...

       

      In making these rules, including C.R.C.P. 97, this Court has upheld that mandate saying in C.R.C.P. 1:

       

      These rules govern the procedure in the ...district court...[emphasis added]

       

      From Webster’s New World Dictionary, 1964, on page 324 I found the definition for govern to mean in pertinent part, “...direct; control; rule; manage...to restrain; curb...to determine.”

                   

                    This Court governed Judge DS’s conduct in C.R.C.P. 97 by saying:

       

      Upon the  filing by a party of such a motion all other proceedings in the case shall be suspended until a ruling is made thereon.

       

                     Continuing from the Palmer case ante we find this Court saying: 

       

      This mandate of the people cannot be legally set aside by the civil, legislative or judicial branch of the government. * * * Irrespective of the * * * personal views of an individual officer as to the wisdom of the constitutional provision such provision is binding without qualification upon the courts until the people have by inherited processes legally erased  the constitutional mandate.  Id. @ ¶ 22.

       

      In like manner, Judge DS should not be allowed to set aside the rules and decisions issuing from this Court governing his conduct as a judicial officer.     

       

      Continuing from the Palmer case ante:

       

      Only by strict adherence to this principle are we assured of the perpetuity of the guaranties of the Constitution in the equal administration of the laws where there are many judges of differing degrees of education, age, experience and background.  Id. @ ¶ 23.

       

                    To insure the permanence of our free institutions all judicial officers must conform with the criteria established by the organic law.   Id. @ ¶ 24.

       

                    No individual or public official is above, beyond or exempt from the mandates of the Constitutions, state and federal. If  judicial officers do not abide by their solemn pledge to protect and defend the Constitution, as well as to observe the limitations prescribed thereby, we must expect from the average citizen only contempt for our most cherished institutions and legal concepts. If such event should occur the inevitable result will be decay of the republic, and government by men ‑‑ not law ‑‑ will result. Then, democracy will be abased and totalitarianism will drench the land. If the constitutional guaranties are wrong, let the people change them ‑‑ not judges or legislators. Two wrongs cannot make a right.  Id. @  25.

       

                    History has demonstrated beyond a doubt that such a guaranty as is set forth in Article I, Section 6, of the Constitution is necessary for the protection of the citizen, and that it            should be preserved at all hazards. Any judicial official who refuses to give his loyalty to

                  this ideal because of his feeling of revulsion at the nature of the offense charged against the accused either does not conceive the doctrine in its full meaning or he profanes the hallowed words of the patriots who convened in Philadelphia in 1787.   Id. @ ¶ 26.

       

      These last few paragraphs from the Palmer case convey how I feel, and how I think that this Court should feel, about Judge DS’s willful failure to follow rules that the people of Colorado have authorized this Court to make governing his conduct and assuring parties in his court of due process.

       

                    In People v. Hively, 1959.CO.40099 <http://www.versuslaw.com>; 344 P.2d 443 ( Colo. 1959) this Court said the following which is easily adapted to the actions of Judge DS in the case sub judice:

       

      The [Constitutional provisions] under which [C.R.C.P. 97] was imposed, [was put in place after much consideration by the Colorado Supreme Court] under [ authority granted It to do so in Article VI § 21 of the Colorado] constitution, * * * became, by its own intrinsic force, the law to you, to every other [judicial] officer in the State, and [serves as a guide] to all the people [respecting what they should expect from Colorado courts]. You assumed the responsibility of declaring the [rule not applicable to you], and at once determined to disregard it, to set up your own judgment as superior to the expressed will of  the [Colorado Supreme Court], asserting, in fact, an entire independence thereof. This is the first case in our judicial history, in which a [judicial] officer has taken upon himself the responsibility of nullifying [a rule] of the [Colorado Supreme Court respecting the administration of a district court] ‑‑ of arresting its operation ‑‑ of disobeying its behests, and placing his own judgment above [Colorado Supreme Court judicial] authority expressed in the form of [a rule].  Id. @ ¶ 43.

       

      Hively goes on to say, again in adapted form:                 

       

      To the law every [judge] owes homage, 'the very least as needing its care, the greatest as not exempted from its power.' To allow a [district court judge] to decide upon the validity of a [rule], would be subversive of the great objects and purposes of [judiciary], for if one such [judicial] officer may assume infallibility, all other like [judicial] officers may do the same, and thus an end be put to civil government, one of whose cardinal principles is, subjection to the laws.  Id. @ ¶ 44.

       

                    Being a [judicial] officer, the path of duty was plain before [Judge DS]. [Judge DS] strayed from it, and became a volunteer in the effort to arrest the law, and it was successful. Had the [Colorado Supreme Court], who [made Rule 97], considered the law [not applicable to Judge DS], they could, in the [proper format], have [issued a ruling that Judge DS was exempt from Rule 97], and it was their undoubted right so to do. Your only duty was obedience. The collected will of the [Colorado Supreme Court] was embodied in that [rule]. A decent respect to them required that all [ Colorado judges] should obey it.  Id. @ ¶ 45.

       

                    18-8-404 C.R.S. makes Judge DS�

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    • Frog Farmer
      All this time I ve felt like THE LONE DISQUALIFIER, but I guess Bear knew it was first things first all the time! ... * * * Moreover, a request for the
      Message 2 of 2 , May 8, 2007
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        All this time I've felt like THE LONE DISQUALIFIER, but I guess Bear
        knew it was "first things first" all the time!

        Legalbear [mailto:bear@...] wrote:

        > * * * our cases have held that "good faith and orderly process dictate
        > that if grounds for disqualification are known at the time the suit is
        > filed and a party desires to proceed thereon, a motion to disqualify
        > should be filed prior to taking any other steps in the case." Aaberg
        > v. District Court, 136 Colo. 525, 529, 319 P.2d 491, 494 (1957). Id.
        > @ � 18.
        >

        * * * Moreover, a request for the disqualification
        > of a trial judge is a most serious undertaking which should not be
        > pursued absent thorough factual investigation and legal research. Id.
        > @ � 32.

        That is why you go get certified copies of the oaths they put into the
        file. Court-certified documents are good as evidence.

        > the City filed a motion to disqualify the judge, the Honorable
        > Dean C. Mabry, one of the respondents herein. This had the effect, as
        > a matter of law, of suspending any further proceedings until the judge
        > ruled on the motion to disqualify. C.R.C.P. 97; see Brouwer v.
        > District Court, 169 Colo. 303, 455 P.2d 207 (1969).

        Yet most people will ask for more time without trying a disqualification
        first, and using the extra time that provides. Asking for more time
        grants jurisdiction where there may have been none in the first place.

        > The respondent judge must initially rule on the
        > disqualification motion. If he fails to rule, a writ in the nature of
        > mandamus is a proper remedy. Potter v. Anderson, 155 Colo. 25, 392
        > P.2d 650 (1964).

        Here, a judge is not allowed to rule upon his own disqualification,
        except to agree to it and recuse himself.

        > This mandate of the people cannot be legally set aside by the civil,
        > legislative or judicial branch of the government. * * * Irrespective
        > of the * * * personal views of an individual officer as to the wisdom
        > of the constitutional provision such provision is binding without
        > qualification upon the courts until the people have by inherited
        > processes legally erased the constitutional mandate. Id. @ � 22.

        I like this citation because it supports my favorite constitutional
        mandate, that of taking THE REQUIRED OATH OF OFFICE, AND NO OTHER OATH.

        If they have any defense at all now, they try to use a case some Commie
        brought that was off point. The above does away with that stupid
        defense.

        > To insure the permanence of our free institutions all
        > judicial officers must conform with the criteria established by the
        > organic law. Id. @ � 24.

        Darn! That just about ruins their day!

        > No individual or public official is above, beyond or
        > exempt from the mandates of the Constitutions, state and federal.

        Not even Commies?!

        > If
        > judicial officers do not abide by their solemn pledge to protect and
        > defend the Constitution, as well as to observe the limitations
        > prescribed thereby, we must expect from the average citizen only
        > contempt for our most cherished institutions and legal concepts. If
        > such event should occur the inevitable result will be decay of the
        > republic, and government by men, not law, will result.

        Welcome to today's world folks!

        Regards,

        FF
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