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Can a prosecutor represent a judge??

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  • Legalbear
    I filed an original action for prohibition against a judge to prohibit her from moving forward on a criminal case without jurisdiction due to bias. I filed a
    Message 1 of 4 , Jun 12, 2003
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      I filed an original action for prohibition against a judge
      to prohibit her from moving forward on a criminal case without jurisdiction
      due to bias. I filed a criminal complaint against her giving her an
      interest in the case and filed a motion for substitution of judge. She kept
      moving forward anyway forcing me to file a prohibition complaint against
      her. The prosecutor from the criminal case tried to represent her in court.
      This is what I filed to stop him from doing that. Sorry, I don't remember
      the outcome. Bear

      DISTRICT COURT, COUNTY, COLORADO

      CASE #

      PETITIONER'S MOTION TO STRIKE RESPONDENTS MOTION FOR
      JUDGMENT ON THE PLEADINGS

      Petitioner,

      v.

      , COLORADO; THE HONORABLE JUDGE PRESIDING,
      Respondent.


      I, petitioner Cning, move this Court to strike the
      Respondents' Motion for Judgment on the Pleadings pursuant to C.R.C.P. Rule
      12(f) as purviewed through C.R.C.P. Rule 7(b)(1)(Failed to state the grounds
      for the motion with particularity.), C.R.C.P. Rule 9(a)(1)(The District
      Attorney lacks the capacity to defend a Court in a prohibition action.),
      C.R.C.P. Rule 12(c)(Failed to comply with rule.), and C.R.C.P. Rule
      106(a)(4)(II)(Failed to comply with rule.) showing:

      I. THE RESPONDENT HAS FAILED TO STATE THE GROUNDS FOR ITS
      MOTION WITH PARTICULARITY.

      C.R.C.P. Rule 7(b)(1) requires that motions state
      with particularity the grounds therefor. The Respondent's Motion for
      Judgment on the Pleadings paragraph 1 cites to "C.R.S. Section 20-1-10(a)."
      I have made a diligent search of the statutes in Title 20 and have been
      unable to find a statute by this number. Stating a statutory section with
      particularity does not appear to be an empty formality; rather, it appears
      to be an essential element of due process in the context of motions
      practice, because it would seem essential that I be given notice as to what
      I must respond.
      Further, the motion does not state what rule it is
      based on. Again, it would sure be nice if I knew what I was responding to.

      II. THE DISTRICT ATTORNEY LACKS THE CAPACITY TO DEFEND A
      JUDGE AND COURT IN A PROHIBITION ACTION.

      20-1-102(3) C.R.S. states in pertinent part:

      ...the district attorney represents the people of
      the state of Colorado, and nothing within this section shall be construed to
      create an attorney-client relationship between the district attorney and
      any party, other then the people of the state of Colorado,...

      In Stilley v. Tinsley, 385 P.2d 677 (Colo. 1963) the Court
      held that a warden of a state penitentiary did not constitute "the people."
      Id. @ 683. Likewise, I contend that the Respondent Court and Judge in this
      instant matter is not "the people" that the District Attorney has no
      authority to defend the Respond and act as counsel. Also see People v. Ham,
      734 P.2d 623, 626 (Colo. 1987)(D.A. may only represent the people.); People
      v. Silva, 782 P.2d 846, 849-50 (Colo.App. 1989)(Same.).
      Further, if the District Attorney is allowed to
      represent the Court it would appear to be a violation of the Code of
      Judicial Conduct Canon 3(a)(4) requiring that a judge not initiate or
      consider ex parte or other communications concerning a pending or impending
      proceeding. The very nature of defending the judge and acting as counsel
      would require ex parte meetings to which I would not be privy.
      In addition, if the District Attorney is allowed to
      represent the Court it would appear to be a violation of The Colorado Rules
      of Professional Conduct Rule 1.7 regarding conflicts of interest.
      Also, the District Attorney has submitted affidavits
      containing facts in direct contradiction to those set forth in my verified
      petition. I contend that fact that the affidavits are basically testimony
      and that this in and of itself should disqualify the District Attorney as
      counsel under The Colorado Rules of Professional Conduct Rule 3.7 Lawyers as
      Witness. This rule appears to prohibit an attorney acting as both counsel
      and witness in the same case.

      III. THERE ARE NO "PLEADINGS" FOR THE RESPONDENTS MOTION TO
      OPERATE ON

      A pleading is defined in C.R.C.P. Rule 7(a) as:

      ...a complaint and answer; a reply to a counterclaim
      denominated as such; an answer to a cross-claim, if the answer contains a
      cross-claim; a third-party complaint, ... a third party answer,...No other
      pleading shall be allowed, except upon order of court.

      I commenced this action by filing a serving a petition. My
      petition is in substantial compliance with C.R.C.P. Rule 8(a). C.R.C.P. Rule
      1(a) requires that the Rules of Civil Procedure be, "...liberally construed
      to secure the just, speedy, and inexpensive determination of every action."
      I contend that even though I styled my complaint as a petition that I have
      substantially complied with C.R.C.P. Rule 106(a)(4)(II) and have held up my
      end when it comes to supplying a pleading for this Court to rule on.
      However, the Respondent has not held up its end having failed to file and
      answer or other responsive pleading. C.R.C.P. Rule 12(c), if that's what
      the Respondent has based its motion on, provides that a 12(c) motion may be
      made "After the pleadings are closed..." I don't see how the pleadings can
      be closed when the Respondent has not filed an answer. A responsive
      pleading is defined in Black's 6th Ed. as:

      A pleading which joins issue and replies to a prior
      pleading of an opponent in contrast to a dilatory plea or motion which seeks
      to dismiss on some ground other than the merits of the action... Id. @ 1312.

      I contend that based on this definition a motion for
      judgment on the pleadings is not a responsive pleading. Therefore, it would
      seem a necessity that the Respondent first provide an answer or other
      responsive pleading and then move for judgment on the pleadings.

      IV. THE RESPONDENT IS NOT IN COMPLIANCE WITH C.R.C.P. RULE
      106(a)(4).

      Rule 106(a)(4) has its own procedural scheme. See
      Cadnetix Corp. v. City of Boulder, 807 P.2d 1253, 1255 (Colo.App. 1991);
      also Milburn v. El Paso County Court, 859 P.2d 909, 911 (Colo.App. 1993)(The
      issues are joined upon the record in Rule 106(a)(4) proceedings by the
      filing of a complaint, an answer, and the briefs of the parties.); also
      Protect Our Mountain v. District Court, 677 P.2d 1361, 1369, 1370 (Colo.
      1984)(Court should give both parties a reasonable opportunity to present
      their arguments.) For some reason the Respondent has not followed the
      procedural scheme set out in Rule 106(a)(4) and I contend the Respondent is
      in no position to move for a judgment on the pleadings.

      Wherefore, on the above basis, this Court should
      enter an order striking the Respondent's Motion for Judgment on the
      Pleadings;
      Further, this Court should enter an order that the
      District Attorney does not have capacity to represent the Respondent Court
      requiring that the Respondent obtain counsel, probably the Attorney General,
      to represent it in these proceedings;
      Further, this Court should enter an order that
      Deputy District Attorney Jude M. Koenig should be disqualified in the case
      below as having gone overboard to obtain the Respondent's favor by providing
      legal assistance.

      Thank you,


      ___________________________

      SERVICE

      I certify that a true and correct copy of PETITIONER'S
      MOTION TO STRIKE RESPONDENTS MOTION FOR JUDGMENT ON THE PLEADINGS has been
      mailed, postage paid, first class to:


      on the ____ day of __________________, 1996.


      __________________________






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    • Darryl B. McDowell
      So, what happened? Was the DA removed from representing the incompetent client, the female judge? darryl
      Message 2 of 4 , Jun 12, 2003
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        So, what happened?
         
        Was the DA removed from representing the incompetent client, the female judge?
         
        darryl
      • Legalbear
        How did you file a criminal complaint against a judge? It s extremely rare that any prosecutor would consider pursuing such a case unless there was absolute
        Message 3 of 4 , Jul 3, 2003
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          How did you file a criminal complaint against a judge? It's extremely rare

          that any prosecutor would consider pursuing such a case unless there was

          absolute proof of money changing hands (bribery). Of course anyone can go

          file a complaint with the police but that doesn't mean they'll do a damn

          thing about it.

           

          Andrei: 

           

          As to how:  There was a statute and a rule that provided anyone could file a criminal complaint with the court charging the defendant with anything other than felonies.  Service could be affected by any disinterested third party.  I never got a court to issue the summons.  I know for a fact there was a lot of talk about what I was doing behind closed doors.  One judge commented, “I see what you’re doing.  You’re going to go through every judge.”  Well, yes, every one until I found one with integrity that was unbiased.  The legislatures repealed the statute because I and others I taught were making extensive use of it.  The Supreme Court didn’t change the rule so that is still available.

           

          I anticipated non-action on the criminal complaint.  What I tried to create was the impression that I would stop at nothing to accomplish my end.  I wanted to put fear in the judge over the mere possibility that the complaint would end up in front of a prosecutor that had integrity enough to prosecute the judge resulting in embarrassment of a career altering nature.  Here, there were two judges prosecuted for misappropriation of funds they received for performing weddings.  Both were acquitted.  That put the judges on edge.   In Colorado , it's enough to show the appearance of bias.  In one case an attorney turning a judge in for discipline to the Supreme Court was sufficient to show the appearance of bias and to cause the judge to be required to recuse.  The same effect can't usually be accomplished with a civil complaint for damages.  Here it has already been held that the only way a civil complaint against a judge for damages biases a judge enough to require his recusal, is if there is a reasonable probability of success on the suit.  How often is that going to happen?  I did have a judge recuse over a civil rights complaint asking for declaratory and injunctive relief against him.  Is it all making sense now?  Bear

           

          For mailing use:  Excellence Unlimited, 2830 27th St. Ln. #B115, Greeley, CO  80634-7849; 970-330-3883 fax 810-958-6113

          www.legal-research-video.com

          www.legalbears.com

          www.freedivorceforms.net

          http://www.stores.ebay.com/bearscomputersandlawresearch

          To subscribe to Tips & Tricks for court send an email to:

          tips_and_tricks-subscribe@yahoogroups.com

           

           

        • Robert Riggins(C)
          You may consider a RICCO action against the judge and prosecutor ... From: tips_and_tricks@yahoogroups.com Date: Thursday, July 03, 2003 12:37:03 PM Cc:
          Message 4 of 4 , Jul 3, 2003
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             You may consider a RICCO action against the judge and prosecutor
             
            -------Original Message-------
             
            Date: Thursday, July 03, 2003 12:37:03 PM
            Subject: [tips_and_tricks] Can a prosecutor represent a judge??
             

            How did you file a criminal complaint against a judge? It's extremely rare

            that any prosecutor would consider pursuing such a case unless there was

            absolute proof of money changing hands (bribery). Of course anyone can go

            file a complaint with the police but that doesn't mean they'll do a damn

            thing about it.

             

            Andrei: 

             

            As to how:  There was a statute and a rule that provided anyone could file a criminal complaint with the court charging the defendant with anything other than felonies.  Service could be affected by any disinterested third party.  I never got a court to issue the summons.  I know for a fact there was a lot of talk about what I was doing behind closed doors.  One judge commented, “I see what you’re doing.  You’re going to go through every judge.”  Well, yes, every one until I found one with integrity that was unbiased.  The legislatures repealed the statute because I and others I taught were making extensive use of it.  The Supreme Court didn’t change the rule so that is still available.

             

            I anticipated non-action on the criminal complaint.  What I tried to create was the impression that I would stop at nothing to accomplish my end.  I wanted to put fear in the judge over the mere possibility that the complaint would end up in front of a prosecutor that had integrity enough to prosecute the judge resulting in embarrassment of a career altering nature.  Here, there were two judges prosecuted for misappropriation of funds they received for performing weddings.  Both were acquitted.  That put the judges on edge.   In Colorado , it's enough to show the appearance of bias.  In one case an attorney turning a judge in for discipline to the Supreme Court was sufficient to show the appearance of bias and to cause the judge to be required to recuse.  The same effect can't usually be accomplished with a civil complaint for damages.  Here it has already been held that the only way a civil complaint against a judge for damages biases a judge enough to require his recusal, is if there is a reasonable probability of success on the suit.  How often is that going to happen?  I did have a judge recuse over a civil rights complaint asking for declaratory and injunctive relief against him.  Is it all making sense now?  Bear

             

            For mailing use:  Excellence Unlimited, 2830 27th St. Ln. #B115, Greeley, CO  80634-7849; 970-330-3883 fax 810-958-6113

            www.legal-research-video.com

            www.legalbears.com

            www.freedivorceforms.net

            http://www.stores.ebay.com/bearscomputersandlawresearch

            To subscribe to Tips & Tricks for court send an email to:

            tips_and_tricks-subscribe@yahoogroups.com

             

             



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