Ken Smith wrote:
You also know that you have a sympathetic plaintiff -- a "whistle-blower" ...

In other words, a RAT (what in Australia is called a "dobber", the lowest
form of low-life that exists).
--
Theodore A. Kaldis
kaldis@worldnet.att.net

Ken Smith wrote:
Jon Beaver wrote: [snip]
Get a grip, Dude!
---------------------------------------------------------------------------
[Tell you what, Jon. Take the weekend off, and spend a little quality time with your wife. Rent a convertible if you don't own one, and take a drive around Lake Tahoe. Do lunch on the lake at Camp Richardson, and maybe a little cruise. Dinner at Friday's Station -- I highly recommend it. If you two aren't too old to hike, try Emerald Point.]

Translation: Ken is unable to address Jon on the merits of his argument, so
he changes the subject and pretends that he has won. An old Ken trick. (Not
that Jon is the sort to be taken in by this ruse.)
--
Theodore A. Kaldis
kaldis@worldnet.att.net

"Jon Beaver" <jbeaver@NO.com> wrote in message
news:uin8jvgjjog4g9rs65g2ru2j26j1jahcvi@4ax.com... On Fri, 8 Aug 2003 23:05:31 +0000 (UTC), c.c.eiftj@FitnessXto.usenet.us.com (Rahul Dhesi) wrote:Jon Beaver <jbeaver@NO.com> writes:Whether I, as Ken's attorney, would have advised him to refuse thatpsych eval depends on two things: (1) Did I think that the eval wouldhave been adverse? and (2) Did I think I could win the argument beforethe Colorado Supreme Court that the eval wasn't justified by theinformation they had. Relying on the "facial invalidity" of thefitness standards would have been just plain incompetent.For the sake of argument, let's assume that, as Ken's attorney, youbelieved him to be mentally competent, but you also believed that anyevaluation done by a specialist of the bar's choosing would find him tobe mentally incompetent. And you also believed that any appeal to theColorado Supreme Court was likely -- but not guaranteed -- to fail. Inthese hypothetical circumstances, what would you have advised him to do? As his lawyer, I wouldn't be able to afford to debate with myself over whether he "really" was mentally competent. Your hypothetical assumes that I believed the psych eval would be adverse, reminding yourself that there would have to be some reason for me to think so. Even so, I don't think I would advise him to refuse it. It's a desperate move. There are just too many good arguments why a psych eval shouldn't be given any serious weight. At best they are ambiguous and inconclusive. I also see too many good arguments that the dispute between Ken and Larson is not a rational basis for denying bar admission. I also see too many opportunities to show that he had rethought the wisdom of his actions and repudiates them. It frustrates the hell out of me that he gave that up out of pique at being asked. It's as though he wanted to hand them evidence of his inability to make unemotional decisions. Remember that we are speculating here. We only have Ken's word that refusal of the test was the actual reason for denying him. I have represented attorney in bar disciplinary proceedings, and I was successful the one time I had to ask the California Supreme Court to reject a bar court recommendation of disbarment. My experience is that high court justices really do want to be fair, and that it's always a mistake to fly off the handle and start treating an adverse ruling as a hostile act. - Jon Beaver

The fairness of the justices is often dependent on the species of appeal
permitted under the state's laws. If the appeal is limited to cert, you
can be sure a few justices (usually a majority) will do everything possible
to avoid granting a hearing, no matter the harm done. The object is to
relinquish absolute power to the bar. In a state where an aggrieved bar
candidate is required to apply for certiorari and therefore has no right of
appeal, he might as well throw in the towel because he ain't going to get an
appellate hearing, ain't going to get help in the federal courts, and he
shore ain't gonna get the attention of Scotus. He might make a wave and
get a little help with some press publicity and maybe a little help from an
amicus, but this never happens. The hypocritical ACLU never get involved
in this area of litigation, despite the fact the Lawyers' Guild (whose
student lawyers were always having trouble getting admitted to the bar) was
deeply involved in its founding.

In a state where the procedure is set up for a right to an appeal, the
aggrieved candidate still won't have any grounds for optimism if the appeal
ruling is not required to be published in the appellate court's official
reports. If the decision is messy or subject to a challenge in the law
reviews it won't be published. I suspect many of California's appellate
cases are not reported. So if there is a decision adverse to a candidate,
or bar member, in California, is the appellate ruling in black and white and
in plain English?

Not all the states purchase services from the ladies of the night at NCBE,
and those that do usually crawl up trees backwards to avoid rights of appeal
from adverse bar decisions on C&F grounds. The next slick way for a state
to avoid being embarrassed by charges of due process violations is for the
offending state to depublish its appellate decisions in bar admissions
controversies. Peremptory decisions are best done in secret to avoid
exposure to legitimate criticism.

Lately I haven't checked the law in North Carolina, where I used to
practice. I have watched the corporate and banking lawyers -- even lawyers
who do not practice law but sit on corporate directorates -- overtake the
bar leadership and reduce populist lawyer input to mere figurines. I
remember one particular committee -- Membership and Fees (a misnomer, by the
way) -- in which the overwhelming constituency were corporate lawyers from
megafirms, with one or two passive "omega" lawyers from out in the boonies
placed there for show. The last I checked, the bar candidate who was
rejected had an absolute right to an appeal, after which there would be a
published ruling. That makes it safer for due process, because if there's
skulduggery the law reviews will go after it with a vengeance, and then the
appellate judges don't want to be humiliated by violating settled law. A
character and fitness committee is presumably shy about finding facts and
making conclusions not supported by the record, when the record is subject
to review by a court of record with published opinions. And a court of
record with published opinions is loathe to issue a ruling which stands out
as a miscreant in the various publications of American jurisprudence.

While the state's Supreme Court dawdled, the NC State Bar passed some
draconian rules calculated to facilitate blackballing bar candidates. The
NC bar even gave itself authority to jail someone it said practiced law
without a license, without even a semblance of a trial; but a federal judge
quickly ended that smelly practice.

In South Carolina, an NCBE state, the rejected bar candidate has no right to
an appeal, no right to review the written record, and utterly no right to
confront his accusers. As a matter of fact every clear mandate of Willner
v. Committee on Character and Fitness is routinely violated in South
Carolina by its corporate white collar-controlled bar. Once rejected, the
bar candidate had best hire a U-Haulit and vacate. His exclusive forum for
complaint is in usenet where he can state from memory only, the written
record having been destroyed, that the Character and Fitness Committee,
comprised of 4 corporate lawyers from interstate megafirms and one figurine
from a dusty little town, cross-examined him for twenty minutes about his
religion (or whether he really had one) and whether he went to church and
what leadership positions he occupied there.

Years ago in his book, _No Contest: Corporate Lawyers and the Perversion of
Justice in America,_ Ralph Nader complained bitterly about the nationwide
monopoly the corporate lawyers had acquired in bar and lawyer licensing
matters. The corporate bar barely even squirmed, although Nader's
state-by-state anecdotal evidence was shocking.

NCBE's secret character and fitness police in Madison, WI maintain a library
of how-to articles on helping the corporate bar in its rejection process.
Here's the list published by their mental health "experts":
http://www.ncbex.org/pubs/indexI/CharFitness.htm#Mental%20Health
You can be sure these so-called experts have been well paid.

Larry wrote:
Rahul Dhesi wrote: Jon Beaver wrote:
whether I, as Ken's attorney, would have advised him to refuse that psych >>> eval depends on two things: (1) Did I think that the eval would have been adverse? and (2) Did I think I could win the argument before the Colorado Supreme Court that the eval wasn't justified by the information they had. Relying on the "facial invalidity" of the fitness standards would have been just plain incompetent.
For the sake of argument, let's assume that, as Ken's attorney, you believed him to be mentally competent, but you also believed that any evaluation done by a specialist of the bar's choosing would find him to be mentally incompetent. And you also believed that any appeal to the Colorado Supreme Court was likely -- but not guaranteed -- to fail. In these hypothetical circumstances, what would you have advised him to do?
Have him take the mental competetency exam. If I think he's competent and any psych exam that says otherwise was rigged, I'd suggest he take it and be denied admission. It's the only way to argue that either (1) forcing him to take the exam was a constitutional violation of some sort, (2) the psych results on their merits was arbitrary and capricious or not supprted by the record, or (3) the finding him "unfit" was a pretext for their true, unconstitutional reasons for denying him admission.
The point is, he didn't complete the application process. I believe that's an insurmountable hurdle for him to overcome in any due process/first amendment argument.

I told him that months ago. He didn't listen then, and I doubt that he's
going to listen now.
--
Theodore A. Kaldis
kaldis@worldnet.att.net

"Theodore A. Kaldis" <kaldis@worldnet.att.net> wrote:
Ken Smith wrote: You also know that you have a sympathetic plaintiff -- a "whistle-blower" ...In other words, a RAT (what in Australia is called a "dobber", the lowestform of low-life that exists).

Methinks Ted's got some cards he's not showing, what with his red-faced
anger whenever whistle-blowing is mentioned.

---
John Hattan Grand High UberPope - First Church of Shatnerology
john@thecodezone.com http://www.shatnerology.com

On 09 Aug 2003 08:30:51 GMT, solarchase@aol.com (SolarChase) wrote:
(Good Morning everyone !!!!)Jon Beaver wrote:"As his lawyer, I wouldn't be able to afford to debate with myself over whetherhe "really" was mentally competent. Your hypothetical assumes that I believedthe psych eval would be adverse, reminding yourself that there would have to besome reason for me to think so. Even so, I don't think I would advise him torefuse it. It's a desperate move."Just a quick couple of side questions here to everyone....1) wouldnt an civil attorney, by having dealings with the individual thruconsultation and gathering information have enough of a gut feel whether or notthe client "barked at the moon and ate feces" BEFORE actually taking the case ?Granted this might be different in criminal cases, but if the attorney couldntthink in good conscience that his potential client was sane to being with,wouldnt "sorry, not my table, find someone else" be a better track for everyone??

Yes.
2) If the concerns the Bar had with "mental stability" was the big stickingpoint with the inquiry panel, why wasnt he allowed to have evidence presentedon his behalf for them to consider before they insisted on the psych exam ??

That's one of the questions I'd like to have answered from an
examination of the record. The more fundamental question, bearing on
his due process rights, is whether they had information sufficient to
justify the psych exam (from him or anywhere) or whether they just
arbitrarily picked his name out of a hat or only subjected him to the
exam for reasons unrelated to his fitness to practice law -- personal
reasons, as he alleges.
3) If the Bar seems more content with dragging its feet with you in the firstplace (like the "30 day" response that took 82) and then chooses the doctor, asis the case in this "hypothetical", wouldnt *that* give you some suspicion thatits gonna come back "adverse" ?? Like, if the police cant follow the law, whocan....

Sure. But then think through what you do about that. I suggest that
your last choice is to hand them a real reason for denying you.

Dunno about you Jon, but i would be nervous about "Dr Foggytown" giving ME afair shake on anything at any point in the rest of my life..... ;-)

Sure. But think through what you do about that. Ken doesn't say that
they refused him an opportunity to ALSO present a psych eval by his
own doctor.

- Jon Beaver

In article <bh0l6r$ioc$1@blue.rahul.net>,
c.c.eiftj@GameXXsetX.usenet.us.com (Rahul Dhesi) wrote:"David Marc Nieporent" <nieporen@alumni.princeton.edu> writes:
Except that, as I pointed out already, the situation you face is one inwhich not submitting to the "search" is no worse than the worst-casescenario of submitting to it. In the JBR case, if they agreed to bequestioned, they might have talked themselves into a hole. But you'realready _in_ the hole. The worst that happens after the exam is that theydeny you a license, and you're then in the same position you were before the"search."
All this assumes an intimate knowledge of what Ken knew at that time andwhat his ultimate goals are.
Do you believe that Ken knew, or should have known, at the time that hedecided to not consent to the "search", that he would later lose incourt?

Yes. I think he knew that his stance _guaranteed_ that regardless of the
merits of his case for admission, he'd lose in court.
What do you think was Ken's ultimate goal? Was that goal merely to beapproved by the bar? Or was being approved by the bar only a means tosome other end? If so, what was that end, and could the same end beachieved through other means?I don't claim to know the answers to these questions, but I'm not theone who is telling Ken what he should have done.

Well, I agree that if his goal wasn't to be admitted to practice law, then
my analysis doesn't apply. If he was merely on some quixotic crusade to
prove to himself that the bar and courts everywhere are corrupt, then my
analysis doesn't apply. But then, if that was his goal, he succeeded! So
what's he complaining about?

---------------------------------------------
David M. Nieporent nieporen@alumni.princeton.edu

In <none-0908030033090001@192.168.2.4>, none@nowhere.com (Larry) wrote: Ken Smith <nobody@concentric.net> wrote:
God, I should *hope* so! That's why, when it really matters, you getthe best you can afford. I wasn't paying some Jon Beaver-class hack forhis off-the-cuff opinion. I went out and got *top-drawer* talent.
You got "top-drawer" talent (but I thought you were pro se?), and you'reno better off than when you started the process. Since the quality ofyour talent isn't at issue, maybe its the merits of your argument?

Don't be stupid, Larry. The merits are fine. It's the conspiracy.
They're out to get him.

---------------------------------------------
David M. Nieporent nieporen@alumni.princeton.edu

In article <3F33E5EA.5010903@concentric.net>,
Ken Smith <nobody@concentric.net> wrote:David Marc Nieporent wrote: Ken Smith wrote:
[snip]
So, what is *your* explanation for their unethical tactics?
I have seen no "unethical tactics."
You don't find the antics of Jon and the Baby Beaver unethical?

I believe I said that. Assuming the facts to be as you allege them, Merlin
failed to disclose the fact that he is JB's brother while taking JB's side
in a discussion. No, I don't find that to be unethical. I don't even find
it to be interesting, despite your apparent fascination with it.

LOL!You sound like ol' Rush Limburger: "Their side is irredeemably corrupt,while our side is on the side of the angels."

Uh, is that not _your_ position, Ken? You are, after all, the one who
compares all those who disagree with him to Nazis. And who has concluded
that two judges knowing each other is evidence of corruption.

All they did was make fun of you, after a long discussion in which you refused to listen to reason.
Now, it would seem to me that, where reasonable persons can disagree,a refusal to agree with *YOUR* view on the subject hardly constitutes MYrefusal to "listen to reason."

Ah. But I don't believe that reasonable persons can disagree on this
point. In short, I don't think you're reasonable. Or, to be precise, I
don't think you're behaving reasonably in this discussion, or in the
underlying events.
That's the problem with you Ivies: When you get your degree, you havean attitude installed ... by a proctologist. You think you're *better*than the rest of us peons. You'll excuse me if I am not impressed.

Fortunately, my goals in life do not revolve around impressing you.
Therefore, I think I will successfully weather this potentially-shattering
blow to my ego.

---------------------------------------------
David M. Nieporent nieporen@alumni.princeton.edu

On Sat, 09 Aug 2003 11:14:58 GMT, Ken Smith <nobody@concentric.net>
wrote:
Rahul Dhesi wrote: Jon Beaver <jbeaver@NO.com> writes:Whether I, as Ken's attorney, would have advised him to refuse thatpsych eval depends on two things: (1) Did I think that the eval wouldhave been adverse? and (2) Did I think I could win the argument beforethe Colorado Supreme Court that the eval wasn't justified by theinformation they had. Relying on the "facial invalidity" of thefitness standards would have been just plain incompetent. For the sake of argument, let's assume that, as Ken's attorney, you believed him to be mentally competent, but you also believed that any evaluation done by a specialist of the bar's choosing would find him to be mentally incompetent. And you also believed that any appeal to the Colorado Supreme Court was likely -- but not guaranteed -- to fail. Let's change the hypo to get it at least somewhere *near* the harborof reality. Specifically, let's assume it was believed (see, Huffman v. Pursue,Ltd.) that the Colorado Supreme Court would exercise its supervisoryauthority to rein in its subordinates on the Board (no guarantees, ofcourse, but a reasonable supposition). Likewise, assume that in yourdiscussion with disciplinary counsel, he conceded he would not pursuethe Inquiry Panel's "grave abuse of the judicial process" allegation,because he found it to be without substantive merit. Further presumethat you have a private IME in hand showing that your client is quitesane, and know from examination of the material they were required bylaw to provide that they had no material evidence to objectively supportthe charge that your client is mentally unfit. Finally, assume that youbelieve that the real reason behind the Board's IME request was to evadetort liability under Section 1983, and that his consent to the IME wouldbe tantamount to extinguishing what you believe to be a meritorious tortclaim (and you told your client this). You also know that you have asympathetic plaintiff -- a "whistle-blower" -- and are armed with thefact that the Board recommended a convicted felon cocaine dealer withpolitical connections for admission. In your analysis, keep in mind that a fairly compelling argument canbe made for the proposition that the statute is both unconstitutionallyvague and facially violative of the ADA. In these hypothetical circumstances, what would you have advised him to do? In these hypothetical circumstances -- where your client really hassomething to lose by submitting to the exam -- how do you advise him? When you change the facts, the dog limps away....

Okay. I can play with hypotheticals. That's what I do. Okay, your
hypothetical necessarily assumes that I believe that they don't have a
prima facie case of "grave abuse of the judicial process" and I have
already bet the farm on it by standing pat and telling them so. (Sure
doesn't sound like me, but . . .) Once I did that, it would be
inconsistent to submit to their psych eval.

If this hypothetical is really "nearer the harbor of reality," then
they didn't ONLY deny you admission because you refused to submit to a
psych eval, like you insist, but because of your "grave abuse of the
judicial process." Your proper argument is that they didn't have a
threshold case, and your forum for that is appeal. But if they did
have a prima facie case and you "conceded that you would not pursue
it," then you are toast.

I completely understand your argument that "abuse of the judicial
process" is not relevant to your fitness to practice law because "use"
of the judicial process is a fundamental First Amendment right so they
"can't go there." I just don't agree that prohibition of "abuse," on
it's face," unduly chills "use" because of it's vagueness. Under
Schware, and others, they have to prove, as part of that prima facie
case, under your particular circumstances, that you knew or should
have known that your particular manner of "use" of the judicial system
was actually wrongful "abuse." That is the element you should have,
and should be, disputing. But now that's an attack on their prima
facie case. That requires a review of the record. It doesn't matter
what your hand was. You folded. You bet they didn't have openers.
So all that's left is to look at their hand to see if they had Jacks
or better. If they did, you lose. Tragic? Yes. Injustice? No.

- Jon Beaver

Ken Smith's Petition for Rehearing of the
10th Circuit Court of Appeals decision of June 11, 2003 at
http://www.kscourts.org/ca10/cases/2003/06/02-1481.htm

orig posting: Message-ID: <3F2ED23B.2030504@concentric.net>

==================================
Ken Smith <nobody@concentric.net> wrote:

--------------010305020302000403010907Content-Type: text/html; name="10thcircuitenbanc.htm"Content-Transfer-Encoding: 8bitContent-Disposition: inline; filename="10thcircuitenbanc.htm"<!DOCTYPE html PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"><html><head> <meta http-equiv="Content-Type" content="text/html; charset=windows-1252"> <meta name="Generator" content="Internet Assistant for Word Version 3.0"> <title> </title></head> <body> <b><font size="2"></font></b><p align="center"></p><p align="center"><b><font size="2">STATEMENT OF JURISDICTION</font></b></p><p align="center"></p><p><font size="2">* * *Plaintiff-Appellant Kenneth Smith, (“Smith”) <i>prose</i>, respectfully submits this Petition for En Banc Determination and/orRehearing pursuant to Fed. R. App. P. 35(a)(1) and 40, stating the followingin support of it:</font></p> <font size="2"><b><p align="center"></p><p align="center">REQUIRED STATEMENT</p><p align="center"></p> </b></font><p><font size="2">* * *The Panel’s recent unpublished decision in this mattercreates a fundamental constitutional absurdity: While Smith has an absoluteconstitutional right to procedural due process, <i>Carey v. Piphus, 435 U.S.247 (1978), </i>the Panel has declared that he has absolutely no right tovindicate that right in a federal court. Moreover, it further declared thathe doesn’t even have the right to challenge the state statute imperilinghis rights! <i>Cf., Roe v. Ogden, 253 U.S. 1225 (10^th Cir. 2001). </i>As the Panel’s decision is therefore in direct and irreconcilable conflictwith these and an array of other decisions binding on this Court -- including<i>Marbury v. Madison, 5 U.S. 137 (1803) </i>-- consideration by the fullCourt is necessary to secure and maintain uniformity of the Court’s decisions. After all, if a citizen cannot protect his constitutional rights in courtas a matter of right, they no longer exist. <i>See, Chambers v. Baltimore&amp; O. R. Co., 207 U.S. 142, 148 (1907). </i></font></p><p><font size="2">* * *Smith can’t offer a <i>seriatim</i> list of relevantfacts or points of law which were overlooked or misapprehended by the Panel,because the Panel has not stated with any particularity <b><i><u>why</u></i></b>it has found his arguments “unavailing” and “without merit.” However,it can be said with certainty that it either overlooked or misapprehended<b><i><u>the</u></i></b> dispositive fact in this case: that, on accountof his lawful refusal to submit to an involuntary psychiatric examination‘order’ of questionable legality, Smith was denied the hearing he was entitledto as a matter of law [Colo. R. Civ. P. (hereinafter, “Rule”) 201.10], inwhich he could have pled his case for bar admission. </font></p><p align="center"></p> <font size="2"><b><p align="center">ARGUMENT</p> </b></font><p><font size="2"> </font></p><p><font size="2">I. THIS CIRCUIT’S SUDDEN ABANDONMENT OF <i>NESSES V.SHEPARD </i>PRECIPITATES A</font><font size="2"> FUNDAMENTAL CONSTITUTIONALABSURDITY.</font></p><p><font size="2">* * *A. <i><u>Carey v. Piphus </u></i><u>Entitles Smithto a Remedy For An Unlawful Deprivation of Procedural Due Process</u></font></p><p><font size="2"> <i>* * *Carey v. Piphus </i>stands for the propositionthat the right to procedural due process [hereinafter, “PDP”] is both absoluteand an independent tort of constitutional significance, even in the absenceof actual injury. It is thus like the law of battery: If you push John offthe sidewalk, he can sue you for nominal damages, but if you push him intothe path of an oncoming Mack truck….</font></p><p><font size="2">* * *Smith has alleged facts falling squarely within theambit of <i>Carey</i>: he had an absolute right to PDP -- and more specifically,the right to a Rule 201.10 hearing -- which he was unlawfully denied. Smithwas shoved off the procedural sidewalk, and into an oncoming Mack truck (denialof his bar application). Under a straightforward application of <i>Carey</i>,Smith is entitled to seek redress in federal court. </font></p><p><font size="2">* * *Even though Smith <b><i><u>NEVER</u></i></b> askedthe Panel to disturb the Colorado Supreme Court’s decision, it invoked the<i>Rooker-Feldman </i>doctrine, citing <i>Kenman Eng’g v. City of Union,314 F.3d 468 (10^th Cir. 2002), </i>for the proposition that Smithhad no standing to seek redress in a lower federal court. But that bizarreruling can’t even be reconciled with <i>Kenmen</i>, wherein Judge Tacha observedthat:</font></p><dir><dir><p><font size="2">The <i>Rooker-Feldman </i>doctrine asks: is the federalplaintiff seeking to set aside a state judgment, <b>or does he present someindependent claim, </b>albeit one that denies a legal conclusion that a statecourt has reached in a case to which he was a party? If the former, thenthe district court lacks jurisdiction; if the latter, then there is jurisdiction…. </font></p> <font size="2"><i></i></font></dir> </dir><p><font size="2"><i>Kenmen Eng’g, 314 F.3d 468, 2002.C10.0001360 at <font face="Times New Roman">¶</font> 61 (emphasis added).</i></font></p><p><small>* * *For about the fifteenth time, Smith states for the recordthat he is <b><u>not</u> </b>seeking to set aside a state judgment, and thathe is presenting an independent claim -- that may <b><u>or</u> <u>may</u><i><u>not</u></i> </b>deny a legal conclusion that a state court has reachedin a case to which he was a party. Hence, even under <i>Kenmen</i>, Smithis entitled to be heard in federal court. Why? Not because Judge Tachasaid so -- although that is a legally valid reason -- but because it absolutely,positively, <b><i><u>has</u></i></b><i> </i>to be the law.</small> </p><p><font size="2"><i> </i></font></p><p><font size="2">* * *B. <u>The Panel’s Decision Overturns <i>Marbury</i><i>v. Madison </i></u></font></p><p><font size="2">* * *If there is any fixed star in the constellation ofAmerican jurisprudence, it is most certainly <i>Marbury v. Madison</i>.Therein, Chief Justice Marshall observed: </font></p><dir><dir><p><font size="2">The very essence of civil liberty certainly consists inthe right of every individual to claim the protection of the laws, wheneverhe receives an injury. One of the first duties of government is to affordthat protection. In Great Britain the king himself is sued in the respectfulform of a petition, and he never fails to comply with the judgment of hiscourt. . . .</font></p><p><font size="2">The government of the United States has been emphaticallytermed a government of laws, and not of men. It will cease to deserve thishigh appellation, if the laws furnish no remedy for the violation of a vestedlegal right.</font><small>* <i>Marbury v. Madison, 5 U.S. at 163.</i> </small></p></dir></dir> <font size="2"><i><p> </p> </i></font><p><font size="2">* * *Bar applicants have a liberty or property interestin the right to practice law protected by the Fourteenth Amendment, and assuch, it cannot be denied without due process of law. <i>Schware v. Boardof Bar Examiners of New Mexico, 353 U.S. 232 (1957). </i> But even if itcan be said that the failure to provide Smith with PDP during the bar admissionproceeding was a tort so “inextricably intertwined with the state court judgment”that the two cannot logically be separated, certain PDP rights would remainunredressable by definition. As the First Circuit put it:</font></p><dir><dir><p><font size="2">In our supervisory capacity, we are entitled -- in factwe think we are obliged to insist -- that a district court in this Circuitdo more than play at cat and mouse with a rejected but seemingly qualifiedbar applicant, with respect to <b>providing a statement of reasons for herrejection </b>and offering such hearing procedures as may be appropriatein her situation. A federal court, by its silence, may not foist one inBerkan’s position the burden of somehow <b>compelling it to grant the processto which she is entitled as a matter of fundamental right.</b></font></p></dir> </dir> <font size="2"><i></i></font><p><font size="2"><i> </i></font></p><p><font size="2"><i> </i>* * *Smith has the right to hear why ChiefJustice Mullarkey gave a law license to a convicted cocaine dealer, whiledenying that right to him without even so much as a hearing, so he can fairlyevaluate his chances of success upon appeal. But the ‘right to hear why’only accrues <b><u>after</u></b> the applicant’s interest is actually deprived,and cannot by definition be litigated beforehand in a state court proceeding. Thus, in light of the Panel’s ruling, the question raised is obvious: Ifthe Supreme Court doesn’t have original jurisdiction to remedy this PDP violation,<i>see, 28 U.S.C. <font face="Courier New">§</font> 1251</i>, the lowerfederal courts don’t have jurisdiction, and the court which violated thelaw in the first place doesn‘t have jurisdiction, <b>who <u>does</u>? </b></font></p><p><font size="2"> <i>* * *Marbury v. Madison </i>teaches that forevery right, there must be a remedy, but the Panel’s decision creates a classof vested legal rights which cannot be vindicated in any court in the nation! And this is not some airy-fairy law school hypothetical; Smith has alleged,among other things, the salient facts of <i>Berkan</i>. </font></p><p><font size="2"> * * *In short, the Panel, in their apparent zealto protect their colleagues on the Colorado bench from a financially ruinouslawsuit, has managed the jurisprudentially unthinkable: <b>it has overturned<i>Marbury v. Madison</i>. </b></font></p><p><font size="2"> * * *C. <u>The <i>Nesses</i> Doctrine ResolvesThis Constitutional Absurdity</u></font></p><p><font size="2"> * * *To have a clear and undeniable right withouta remedy is “a monstrous absurdity in a well organized government,”<i>Franklinv. Gwinnett County Public Schools, 503 U.S. 60, 67 (1990) (citation omitted);</i>Judge Posner’s <i>Nesses </i>doctrine resolves this otherwise insolubleproblem. It holds that, if a litigant can show that participants in a judicialproceeding have violated an independent right of constitutional magnitude,“then he can, without being blocked by the <i>Rooker-Feldman </i>doctrine,sue to vindicate that right and show as part of his claim for damages thatthe violation caused the decision to be adverse to him and thus did him harm.” <i>Nesses v. Shepard, 68 F.3d 1003, 1004 (7^th Cir. 1995). </i>Judge<i></i>Posner reasoned:</font></p><dir><dir><p><font size="2">Otherwise there would be no federal remedy for a violationof federal rights whenever the violator so far succeeded in corrupting thestate judicial process as to obtain a favorable judgment. . . . This resultwould be inconsistent with cases in which, for example, police officers aresued under 42 U.S.C. sec. 1983 for having fabricated evidence that resultedin the plaintiff’s being convicted in a state court. <i>Id. (citations omitted).</i></font></p> </dir> </dir><p><font size="2"> In turn, <i>Nesses </i>is built on law bindingon this Circuit: <i>Dennis v. Sparks, 449 U.S. 24 (1980), </i>and <i>Robinsonv. Maruffi, 895 F.2d 649 (10^th Cir. 1990). Robinson, Dennis,</i>and <i>Carey</i> all involve the deprivation of PDP rights occurringduring judicial or quasi-judicial proceedings, resulting in the loss of aliberty interest. While <i>Dennis</i> is technically an immunity case, itnecessarily presupposes what this Court also recognized in <i>Robinson</i>:that a person has an independent right to PDP which may be vindicated bya collateral attack on a state court decision. Accordingly, for this Courtto uphold its <i>Smith v. Mullarkey </i>decision, it must declare that itwill no longer follow these binding precedents. And while this Court canoverturn <i>Robinson</i>, it is not at liberty to disregard United StatesSupreme Court decisions. </font></p><p><font size="2">* * *D. <i><u>Carey</u></i><u>-Based Analysis Of AnIndisputable Fact</u></font></p><p><font size="2"> * * *For purposes of summary judgment, the onlyfacts that matter are as follows: Smith qualified for and had a legal rightto a hearing in which to plead his case for bar admission, as provided forby Rule 201.10. But due to his refusal to obey the Board of Law Examiners’‘order’ requiring him to submit to an involuntary psychiatric examination,he was denied that hearing.</font></p><p><font size="2"> * * *The question of the constitutionality of the“order” appears to have been conclusively resolved in <i>Tattered Cover,Inc. v. City of Thornton, 44 P.3d 1044 (Colo. 2002), </i>wherein it was heldthat even a third-party whose constitutional rights may be impaired by asearch had the right to fully litigate its constitutionality before it wasexecuted. Justice Bender explained: </font></p><dir><dir><p><font size="2">Had it not been for the Tattered Cover’s steadfast stance,the zealousness of the City would have led to the disclosure of informationthat we ultimately conclude is constitutionally protected. This chronologydemonstrates the importance of providing [parties whose rights are affectedby a search] with an opportunity to contest the actions of law enforcementofficials in an adversarial setting. <i>Id., 44 P.3d 1044, 2002.CO.0000097at <font face="Times New Roman">¶</font> 97.</i></font></p> </dir> </dir><p><font size="2"> * * *If the contents of a man’s bookshelf are sosacred and precious that the government may not examine it without a properhearing, what about the contents of a man’s mind? For if government voyeurscould rummage through our deepest and darkest thoughts, hopes, and fears,for any reason or no reason at all, the contents of our bookshelves scarcelymatter.</font></p><p><font size="2">* * *Following <i>Schware</i> and its progeny, Smith hada PDP right to a full, fair, trial-type hearing, as contemplated in Rule201.10, wherein he could cross-examine his accusers on the Inquiry Paneland offer evidence in support of his case for admission. And as refusalto follow a legally invalid order is not a valid basis for denying PDP, Smithis entitled under <i>Carey</i> to prosecute his tort claims. Yet, underthe Panel’s decision in <i>Smith v. Mullarkey</i>, he has an absolute rightto PDP with absolutely no remedy in federal court! </font></p><p><font size="2">II. AS THE <i>ROOKER-FELDMAN </i>DOCTRINE REQUIRES THATSMITH’S FACIAL CHALLENGES BE</font><font size="2"> HEARD, 28 U.S.C. <font face="Courier New">§</font> 1367 REQUIRES HIS DAMAGE CLAIMS TO BE HEARD</font></p><p><font size="2">* * *In reviewing a summary judgment motion, this Courtmust presume all well-pleaded allegations in the complaint as true and construethem in the light most favorable to the plaintiff, and only then, find thatit appears beyond doubt that he can prove no set of facts that would entitlehim to relief. <i>Benefield v. McDowall, 241 F.3d 1267 (10^thCir. 2001). </i>And presumably, “no set of facts” means no set of facts-- not necessarily the facts Smith alleged, but no set of facts. Period.</font></p><p><font size="2">* * *Similarly, as it is used in <i>Feldman</i>, the phrase“inextricably intertwined” presumably means what it says and says what itmeans. Thus, if two groups of claims can be separated without great difficulty,they are not inextricably intertwined.</font></p><p><font size="2">* * *Smith petitioned the district court for two discreteclasses of relief: damages in tort for the wrongful deprivation of PDP andindirect impairment of an array of constitutionally protected liberties,and injunctive relief declaring Rule 201 unconstitutional. And if this Courthad jurisdiction over the one class and not the other, they can be separatedby declining jurisdiction over the damage claims and leaving the facial challengesintact. This result is unmistakably mandated by <i>Feldman</i>, as the SupremeCourt observed that</font></p><dir><dir><p><font size="2">[T]o the extent that Hickey and Feldman sought review inthe District Court of the … denial of their petitions for waiver, the DistrictCourt lacked subject-matter jurisdiction over their complaints. . . . Tothe extent that Hickey and Feldman mounted a general challenge to the constitutionalityof [the bar rule], … the District Court should have subject-matter jurisdictionover their complaints.</font></p><p><font size="2">The respondents’ claims that the [bar admission] rule isunconstitutional [does] not require review of a judicial decision in a particularcase. The District Court, therefore, has subject matter over these elementsof the respondents’ complaints.</font></p> </dir> </dir> <font size="2"><i><p>D. C. Court of Appeals v. Feldman, 460 U.S. 462, 482-3, 487 (1983).</p> </i></font><p><font size="2">* * *The Panel tossed ‘the baby’ (elements of Smith’s complaintchallenging Rule 201) out with ‘the bathwater’ (collateral attacks on a decision)-- which even <i>Feldman</i> says it may not do. But if the baby lives,28 U.S.C. <font face="Courier New">§</font> 1367 applies. Period. </font></p><p><font size="2"> </font></p><p><font size="2">III. “<i>BACK IN THE U.S.-- BACK IN THE U.S.-- BACKIN THE U.S.S.R.!”</i></font></p><p><font size="2">* * *Article 125 of the former Soviet Union’s 1936 Constitutionguaranteed Soviet citizens the freedom of speech and of the press. But theStalinist law courts never enforced those rights, and if you ever dared tospeak freely on public issues of the day, thereby angering your betters inthe government, you could have been denied the right to engage in your chosenprofession, subjected to a “psychiatric examination” with a preordained outcome,branded as ‘mentally unstable’ and eventually, sentenced to either a gulagor mental institution in one of Andrei Vyshinsky’s infamous “show trials.” Stalin’s judges were knowing accomplices to this judicial travesty, neverfailing to find the ‘facts’ Vyshinsky needed to hear.</font></p><p><font size="2">* * *Likewise, the First Amendment guarantees Americancitizens the freedom of speech and of the press. But Tenth Circuit courtsare no longer inclined to enforce those rights, and if the Colorado bar applicantever dares to speak freely on public issues of the day, the Panel decreesthat he can be denied the right to engage in his chosen profession or subjectedto a “psychiatric examination” with a preordained outcome and punished forrefusing -- being further branded as ‘mentally unstable’ by Stalin’s judges. </font></p><p><font size="2">A. <u>Judge Anderson is Merely Following Proper JuridicialProcedure -- In The Great Stalin’s Courts</u></font></p><p><font size="2">* * *The Wyoming Supreme Court famously observed that “halfthe truth may be a lie in effect,” <i>Twing v. Schott, 338 P.2d 839 (Wyo.1959), </i>and through a pernicious pattern of selective omission, JudgeAnderson painted a thin veneer of reasonableness on a judicial abortion. His sanitized, homogenized version of ‘the facts’ cunningly obscures incriminatingfacts under the rubric of ‘brevity’, sweeping justice under his robe. Futuregenerations of lawyers will learn that</font></p><dir><dir><p><font size="2">Plaintiff graduated from law school, passed the state barexamination, and passed the professional ethics examination, all prerequisitesto obtaining a license to practice law in Colorado. When plaintiff was orderedto submit to a mental status examination by the Board of Law Examiner’s [sic]Hearing Panel, however, plaintiff refused. Primarily because plaintiff refusedto submit to that examination, the Hearing Panel recommended to the ColoradoSupreme Court that plaintiff’s application be denied. After considerationof the record, including plaintiff’s application, the Hearing Panel’s reportand recommendation, plaintiff’s exceptions to that report, and the responsesfiled by the Board of Law Examiners, the Colorado Supreme Court denied plaintiff’sapplication for admission to the State Bar. <i>Exhibit A at 3-4.</i></font></p> </dir> </dir><p><font size="2">* * *What they <b>won’t</b> learn is that Smith never receivedthe full, fair, and timely trial-type hearing that was his right under theDue Process Clause of the Constitution and Colorado law. What they <b>won’t</b>learn is that the Colorado bar conducted a constitutionally shocking inquisitioninto Smith’s protected speech and petitioning activities, and that they orderedthe mental fitness examination on account of their disdain for those activities. What they <b>won’t</b> learn is the compelling constitutional groundingfor Smith’s refusal to submit to the examination, and the flimsy legal andfactual basis for the ‘order’. What they <b>won’t</b> learn is that in his“exceptions” to the Hearing Panel report, Smith reiterated his request forthe hearing he is legally entitled to. And what they most certainly <b><u>WON’T</u></b>learn is of the Colorado Supreme Court’s callous, continuous, and contemptuousdisregard for the law that it swore an oath to uphold and protect.</font></p><p><font size="2">* * *In reviewing a summary judgment motion, this Courtmust presume all well-pleaded allegations in the complaint as true, and construethem in the light most favorable to the plaintiff. <i>Benefield v. McDowall,supra. </i>But in hallowed Soviet tradition, the Panel didn’t even makea pretense of following that edict, willfully disregarding virtually everyallegation of fact Smith offered.</font></p><p><font size="2">* * *Judge Anderson further followed Soviet legal traditionin dismissing Smith’s legal arguments, in obliquely declaring that they were“unavailing” and “without merit.” In effect, it is the judicial equivalentof “taking the Fifth” -- he knows that the arguments have merit, and he couldn’targue his way around them on a bet, but <i>being a judge means <u>never</u>having to say you’re accountable</i>.</font></p><p><font size="2">* * *For example, Smith asserted his <i>Carey</i>-basedclaims for the deprivation of his right to PDP in his opening brief -- emphasizingrepeatedly that these claims were outside the ambit of the <i>Rooker-Feldman</i>doctrine. Smith offered this in support of this point in his openingbrief:</font></p><dir><dir><p><font size="2"> Recognizing this principle, [the Tenth Circuit] recentlystated that it “is convinced that the <i>Rooker-Feldman </i>doctrine doesnot bar a federal action when the plaintiff . . . lacked a reasonable opportunityto litigate claims in state court.” <i>Johnson v. Rodrigues, 226 F.3d 1103,1110 (10^th Cir. 2000). </i>Other courts agree. <i>E.g., Whitefordv. Reed, 155 F.3d 671, 674 (3d Cir. 2000), cert. denied, 467 U.S. 1210 (2000),Wood v. Orange County, 715 F.2d 1542 (11^th Cir. 1983). </i>Thisexception is necessary to “ensure that the state cannot block access to thefederal court by refusing to allow a state court litigant to raise federalissues in state court.” <i>Lynk v. LaPorte Superior Court No. 2, 789 F.2d554, 564 (7^th Cir. 1986). </i>The Eleventh Circuit explains:</font></p><dir><dir><p><font size="2">[I]interpreting <i>Rooker</i> to preclude a federal districtcourt from considering an issue that the plaintiff had no reasonable opportunityto raise in a state court might pose due process problems. Such a harshrule deprives the plaintiff of any forum, state or federal, where he hasa reasonable opportunity to present his federal constitutional claims, aresult arguably contrary to the requirements of due process. [<i>Wood, 715F.2d at 1547.</i>] </font></p> </dir> </dir> </dir> </dir> <font size="2"><i><p>Aplt’s Opening Br. at 16-17; see also, Collins v. Kansas, 174 F.Supp.2d1195 (D.Kan. 2001).</p> </i></font><p><font size="2">* * *A clear and undeniable right without a remedy is “amonstrous absurdity in a well organized government.” <i>Franklin, supra. </i>And, as Smith explained in extensive detail in Part I of this brief,the reading of <i>Rooker-Feldman </i>the Panel eventually adopted in thiscase would lead inexorably to that “monstrous absurdity.” </font></p><p><font size="2">* * *The obvious question posed to Judge Anderson is why,if this argument was so compelling as to persuade the Third, Seventh, andEleventh Circuits, a lower court in this Circuit, and a panel of this Circuit,it is so completely devoid of merit that it doesn’t even need to be <b><u>acknowledged</u></b>,much less, refuted.</font></p><p><font size="2">* * *It didn’t matter how compelling Smith’s argumentswere, or how competent his advocate was -- when Smith could still affordhim, his counsel was celebrated civil rights attorney David Lane -- <b>inevery phase of this Soviet-class show trial, Smith’s ‘guilt’ was <u>absolutely</u>predetermined! </b>Smith keeps asking for reasons, and he always gets thesame answer: <b>“MOTION DENIED!!!”</b> </font></p><p><font size="2">* * *It is a tragic twist of history that, while the peopleof the former Soviet Union may now speak their mind freely, their counterpartsin America like Ken Smith can no longer claim that they enjoy that most basicof human rights. For the Panel has openly declared -- <b>in a decision withoutprecedential value! </b>-- that America is no longer a republic governedby the rule of law. On June 10, 2003, I went to sleep in America -- butawoke the next morning in the Soviet Union. </font></p><p align="center"></p> <font size="2"><b><p align="center">CONCLUSION</p><p align="center"></p> </b></font><p><font size="2">* * *The Bill of Rights is designed to protect individualcitizens from the depredations of government -- and for our precious civilliberties to even exist, two events must transpire: A citizen must refuseto acquiesce to unconstitutional conduct, and our courts must grant him anappropriate remedy, when asked to do so. Smith has done his job, and hada right to expect that the Panel would do likewise -- for what is being askedof this Court today is <b><u>NOT</u></b> a matter of grace.</font></p><p><font size="2">* * *Smith had <b>a right </b>to expect that, in an unpublishedopinion, the Panel would follow published Tenth Circuit and United StatesSupreme Court rulings. He had <b>a right </b>to expect that, in decidinga summary judgment motion, it would presume the facts he alleged to be trueand draw favorable inferences from them. He had <b>a</b> <b>right</b> toexpect that it would explain why it found his arguments “unavailing” and“without merit.” He had <b>a right </b>to expect that it would explain whyhe could be denied his right to a full, fair, trial-type hearing, to havehis “fitness” to practice law to be judged by reference to an ascertainableand reasonably explicit standard, to have a state licensing agency adhereto its own statutes, and to a statement of reasons and indication of theproof relied upon by the Defendants and still, have received the ‘process’he was due. He had <b>a right </b>to expect that it would explain why hisright to speak on public issues, to petition the government for redress ofgrievances, to personal privacy, and/or to equal protection under the havenot been indirectly impaired by the Defendants actions. Or at the very least,he had <b>a right </b>to expect this Court to explain why these essentialrights of American citizenship can no longer be vindicated <b><u>as</u> <u>a</u><u>matter</u> <u>of</u> <u>right</u> </b>in our federal courts. And, inthe immortal words of Ricky Ricardo, the Panel has “got some ‘splainin’ todo.”</font></p><p><font size="2"> Submitted this 2nd day of July, 2003.</font></p><p><font size="2"> _____________________</font></p><p><font size="2"> Kenneth L. Smith</font></p><br></body></html>--------------010305020302000403010907--

David Marc Nieporent <nieporen@alumni.princeton.edu> wrote:
In article <3F34631C.5020208@concentric.net>, Ken Smith <nobody@concentric.net> wrote:Jon Beaver wrote: [snip]Get a grip, Dude!This explains why Ken keeps losing in court. Whenever his opponents make aconvincing argument, he goes off the deep end, and tries to attack them.---------------------------------------------David M. Nieporent nieporen@alumni.princeton.edu


Jon's points were cogent and convincing while Ken is reduced to
net games, a part of usenet to be sure, and occasionally
entertaining when skillfully and humorously done, which Ken
is also clueless about, yet which most of the misc.legal regulars
could, probably quite rightly, care less about.

For it seems to me that when serious matters are at risk, a
competent lawyer would at least try to think of a constructive
alternative.

So what would Ken do in serious circumstances?
His petition for rehearing provides us with the answer.

Orig Message-ID: <3F2ED23B.2030504@concentric.net>
Republished today in misc.legal
"Ken Smith's Petition for Rehearing"

-Merlin

"Theodore A. Kaldis" <kaldis@worldnet.att.net> wrote in message news:<3F34F885.CC711E91@worldnet.att.net>... Ken Smith wrote: Jon Beaver wrote: [snip] Get a grip, Dude! --------------------------------------------------------------------------- [Tell you what, Jon. Take the weekend off, and spend a little quality time with your wife. Rent a convertible if you don't own one, and take a drive around Lake Tahoe. Do lunch on the lake at Camp Richardson, and maybe a little cruise. Dinner at Friday's Station -- I highly recommend it. If you two aren't too old to hike, try Emerald Point.] Translation: Ken is unable to address Jon on the merits of his argument, so he changes the subject and pretends that he has won. An old Ken trick. (Not that Jon is the sort to be taken in by this ruse.)

----------------------

If you think about it, a wrestling match
ALWAYS ENDS when the folding chair
is introduced into the fracas. Wouldn't
it be nice if someone put an end to this
holy war?

Ken Smith <nobody@concentric.net> wrote:

<trim spam>

Just can't control yourself, huh Ken.
You're quite sick, you know. Get some help and
maybe you can salvage something of what's left
of your life.

-Merlin

"george pearl" <geopearlst@yahoo.com> wrote in message
news:cb3bf3c9.0308091256.49a7354c@posting.google.c om... "Theodore A. Kaldis" <kaldis@worldnet.att.net> wrote in message
news:<3F34F885.CC711E91@worldnet.att.net>... Ken Smith wrote: Jon Beaver wrote: [snip] Get a grip, Dude! --------------------------------------------------------------------------
- [Tell you what, Jon. Take the weekend off, and spend a little quality
time with your wife. Rent a convertible if you don't own one, and take a
drive around Lake Tahoe. Do lunch on the lake at Camp Richardson, and maybe
a little cruise. Dinner at Friday's Station -- I highly recommend it.
If you two aren't too old to hike, try Emerald Point.] Translation: Ken is unable to address Jon on the merits of his argument,
so he changes the subject and pretends that he has won. An old Ken trick.
(Not that Jon is the sort to be taken in by this ruse.) ---------------------- If you think about it, a wrestling match ALWAYS ENDS when the folding chair is introduced into the fracas. Wouldn't it be nice if someone put an end to this holy war?

If you're too shallow to participate, go away.

In article <nieporen-D2DB7B.13375809082003@news.fu-berlin.de>, David Marc
Nieporent <nieporen@alumni.princeton.edu> wrote:
In <none-0908030033090001@192.168.2.4>, none@nowhere.com (Larry) wrote: Ken Smith <nobody@concentric.net> wrote: God, I should *hope* so! That's why, when it really matters, you getthe best you can afford. I wasn't paying some Jon Beaver-class hack forhis off-the-cuff opinion. I went out and got *top-drawer* talent.You got "top-drawer" talent (but I thought you were pro se?), and you'reno better off than when you started the process. Since the quality ofyour talent isn't at issue, maybe its the merits of your argument?Don't be stupid, Larry. The merits are fine. It's the conspiracy.They're out to get him.

Oh, yeah. I forgot about the conspiracy.

(I didn't really forget. But I got the memo saying we're not supposed to
acknowledge it. Didn't you get the memo, David?)

none@nowhere.com (Larry) wrote:
In article <nieporen-D2DB7B.13375809082003@news.fu-berlin.de>, David MarcNieporent <nieporen@alumni.princeton.edu> wrote:In <none-0908030033090001@192.168.2.4>, none@nowhere.com (Larry) wrote: Ken Smith <nobody@concentric.net> wrote:> God, I should *hope* so! That's why, when it really matters, you get>the best you can afford. I wasn't paying some Jon Beaver-class hack for>his off-the-cuff opinion. I went out and got *top-drawer* talent.You got "top-drawer" talent (but I thought you were pro se?), and you'reno better off than when you started the process. Since the quality ofyour talent isn't at issue, maybe its the merits of your argument?Don't be stupid, Larry. The merits are fine. It's the conspiracy.They're out to get him.Oh, yeah. I forgot about the conspiracy.(I didn't really forget. But I got the memo saying we're not supposed toacknowledge it. Didn't you get the memo, David?)

If it was the memo I wrote, I haven't received either of your rsvps
regarding the big meeting. I dare say it wouldn't hurt you
gentlemen take your conspirator responsibilities just a little
more seriously from time to time.

-Merlin

On Sun, 10 Aug 2003 04:44:31 GMT, mag@camelot.org (Merlin) wrote:
none@nowhere.com (Larry) wrote:In article <nieporen-D2DB7B.13375809082003@news.fu-berlin.de>, David MarcNieporent <nieporen@alumni.princeton.edu> wrote:In <none-0908030033090001@192.168.2.4>, none@nowhere.com (Larry) wrote:> Ken Smith <nobody@concentric.net> wrote:>> God, I should *hope* so! That's why, when it really matters, you get>>the best you can afford. I wasn't paying some Jon Beaver-class hack for>>his off-the-cuff opinion. I went out and got *top-drawer* talent.>You got "top-drawer" talent (but I thought you were pro se?), and you're>no better off than when you started the process. Since the quality of>your talent isn't at issue, maybe its the merits of your argument?Don't be stupid, Larry. The merits are fine. It's the conspiracy.They're out to get him.Oh, yeah. I forgot about the conspiracy.(I didn't really forget. But I got the memo saying we're not supposed toacknowledge it. Didn't you get the memo, David?) If it was the memo I wrote, I haven't received either of your rsvps regarding the big meeting. I dare say it wouldn't hurt you gentlemen take your conspirator responsibilities just a little more seriously from time to time.

I'll be there. Rahul, you in?

- Jon Beaver

george pearl wrote: "Theodore A. Kaldis" <kaldis@worldnet.att.net> wrote in message news:<3F34F885.CC711E91@worldnet.att.net>...Ken Smith wrote:Jon Beaver wrote: [snip]Get a grip, Dude!---------------------------------------------------------------------------[Tell you what, Jon. Take the weekend off, and spend a little quality timewith your wife. Rent a convertible if you don't own one, and take a drivearound Lake Tahoe. Do lunch on the lake at Camp Richardson, and maybe alittle cruise. Dinner at Friday's Station -- I highly recommend it. Ifyou two aren't too old to hike, try Emerald Point.]Translation:

[TeddiBeer's tripe snipped]

Anything coming out of that ChristiaNazi hack Kaldis's sorry pie-hole
is bound to be mistranslated. Hell, he's *still* KJV(Gideons)-only! :)

If you think about it, a wrestling match ALWAYS ENDS when the folding chair is introduced into the fracas. Wouldn't it be nice if someone put an end to this holy war?

I am trying to do *my* part. I'm prioritizing.

I'm trimming these threads and moving them out of a.f.b-l.

I'm ignoring the obvious hecklers with obvious agendas ("Merlin," who
was outed as JonBoy's baby brother, the piece of human filth we all know
and loathe as TheOdor Kaldis, and the latest iteration of KSIC).

I've done enough research on Larry the Cub Pwosseccuta to realize
that he's not a serious player, and a bit of an obsessive 'Net junkie in
his own right.

That basically leaves JonBoy, Larry Smith, and the more occasional
bit contributors. Larry Smith (*no* relation!) is by assertion a
retired NC lawyer, and his familiarity with the concepts here shows it.
JonBoy is a CA lawyer, but the amount of time he spends on this
controversy is way out of proportion (and especially, in light of what
he claims his actual interest in this matter to be) and evidently, he's
either neglecting his clients, his family, or both.

For me, this is strictly downtime, which I wouldn't have if I had had
the career which was wrongfully stolen from me. We all know that Kaldis
has no life, and a hatred of me that will not die. But JonBoy?!? There
has to be something going on here more than meets the eye. I mean, what
sane man would spend so much effort defending the already soiled-beyond-
repair "reputation" of the legal profession?

[a.f.b-l trimmed]

Larry wrote: In article <3F33B332.2050607@concentric.net>, Ken Smith <nobody@concentric.net> wrote:This is a multi-part message in MIME format.--------------090808000706020605030308Content-Type: text/plain; charset=us-ascii; format=flowedContent-Transfer-Encoding: 7bitLarry wrote:In article <3F32505D.8040909@concentric.net>, Ken Smith<nobody@concentric.net> wrote:> Exactumundo. If I get to use the shrink I retained -- who happens to>be one of my clients, so you know she puts her money where her mouth is>-- I pass with flying colors, and the MMPI tells the tale. But one of>their shrinks wouldn't even use the standard tests!You don't see anything wrong with having your shrink for a C&F examinationbeing a client of yours? Let me put it this way: If this licensed professional psychiatristhad any legitimate suspicions that I might not be mentally competent tosee to her interests, don't you think she would go elsewhere? Exactly my point, moron! You'd be evaluated by a shrink who has already formed an opinion of you. And one who has her personal reputation on the line to find you competent. Let's say for sake of argument that, to become President, George Bushmust "pass" a C&F examination. But no one knows what "mental fitness tobe a President" is, because no one has ever bothered to define it. Butthe "Presidential Fitness Committee" was appointed by President Clinton,and the "judges" on the Committee are rabidly partisan Democrats -- TedKaldis can find them from the rosters of the FL and NJ Supreme Courts :)-- secretly opposed to Bush's political agenda and views. They could've'passed' on the examination, like their predecessors did with respect toBill Clinton (but then again, Clinton was a lawyer, and everyone knew upfront that much like our JonBoy, he had no *semblance* of personal moralcharacter to begin with). Now, you are representing Dubya. You can find twenty-five of thebest psychiatrists in the world, who could testify that he is perfectlysane. But the PFC's in-house shrink, if she is permitted to examineDubya, can be expected to bust off the attached diagnosis. And if he isfound not to be mentally fit to be President, it's like saying he is notethically fit to be a lawyer, or morally fit to be a prostitute.Indeed, there is some considerable risk that he could be deprived of hislicense to drill for oil (and for sake of argument, let's say that heactually needs that license -- and has the skill to *find* oil :)). Where does the idea of an "in=house" shrink come from? The C&F committee employs doctors who give these exams? If not, your analogy is inapplicable.

Fairly desperate nitpicking. Suffice it to say that there is enough
of a relationship to reasonably cast aspersions upon their independence
as professionals. Quid pro quos do that (see, e.g., the Washington v.
Harper dissent).

Jon Beaver wrote: On 09 Aug 2003 08:30:51 GMT, solarchase@aol.com (SolarChase) wrote:(Good Morning everyone !!!!)Jon Beaver wrote:"As his lawyer, I wouldn't be able to afford to debate with myself over whetherhe "really" was mentally competent. Your hypothetical assumes that I believedthe psych eval would be adverse, reminding yourself that there would have to besome reason for me to think so. Even so, I don't think I would advise him torefuse it. It's a desperate move."Just a quick couple of side questions here to everyone....1) wouldnt an civil attorney, by having dealings with the individual thruconsultation and gathering information have enough of a gut feel whether or notthe client "barked at the moon and ate feces" BEFORE actually taking the case ?Granted this might be different in criminal cases, but if the attorney couldntthink in good conscience that his potential client was sane to being with,wouldnt "sorry, not my table, find someone else" be a better track for everyone?? Yes.
So, you would have to concede that noted civil rights attorney David
Lane knew what he was doing when he advised me as he did?

So, will you also concede that this expert of some regional repute is
more capable in this arena than you?

Now, go take your wife out to dinner, Jon.

2) If the concerns the Bar had with "mental stability" was the big stickingpoint with the inquiry panel, why wasnt he allowed to have evidence presentedon his behalf for them to consider before they insisted on the psych exam ?? That's one of the questions I'd like to have answered from an examination of the record. The more fundamental question, bearing on his due process rights, is whether they had information sufficient to justify the psych exam (from him or anywhere) or whether they just arbitrarily picked his name out of a hat or only subjected him to the exam for reasons unrelated to his fitness to practice law -- personal reasons, as he alleges.

And that, in turn, rests upon the definition of "mental fitness to be
a lawyer." As I have told Jon before ad nauseum, the government cannot
search a citizen unless they have probable cause to do so, and Colorado
case law imposes some fairly severe limitations upon what officials may
or may not do. In particular, Jon keeps ignoring Tattered Cover, which
effectively guarantees independent judicial review of any search order.
Until you get past the "can they," you don't really need to address
the "should they."

3) If the Bar seems more content with dragging its feet with you in the firstplace (like the "30 day" response that took 82) and then chooses the doctor, asis the case in this "hypothetical", wouldnt *that* give you some suspicion thatits gonna come back "adverse" ?? Like, if the police cant follow the law, whocan.... Sure.

As Chase appears to be alluding to, when *a group* of cops willfully
disregard the law, it's a pretty good indication of police corruption.
Here, you have a band of bar examiners playing fast and loose with the
law -- because (like corrupt cops) "they can."
But then think through what you do about that. I suggest that your last choice is to hand them a real reason for denying you.

Sure. Say what Uday wants to hear, and do what Uday wants you to do,
and everything will be all right. (Ever get the feeling Jon would make
a model Ba'athist?)

In a country governed by the rule of law, no man is above the law,
and even the cops and judges may be held accountable for their
malfeasance. In Jon the Ba'athist's AmeriKKKa, your rulers are your
masters, and you must genuflect before them, no matter how outrageous
their actions are.

The scandal here is not so much that Jon the Ba'athist doesn't
realize that we are not free, but that he is advocating the continued
oppression committed by his friends and colleagues.
Dunno about you Jon, but i would be nervous about "Dr Foggytown" giving ME afair shake on anything at any point in the rest of my life..... ;-) Sure. But think through what you do about that. Ken doesn't say that they refused him an opportunity to ALSO present a psych eval by his own doctor.

You presuppose what could not reasonably be presupposed in this
matter -- that the C&F committee will somehow be fair -- because it
serves your dishonest purposes to do so. The fact that Inquiry Panel
members serve as Hearing Panel members (and vice versa) casts a legally
fatal 'shadow' on their ability to serve as fair and impartial arbiters.
(In any other circumstance, it would certainly be grounds for
recusal.)

It seems to me that if the admission process had the same kind of due
process protections we find in a civil trial, most of the obvious abuse
would never happen. Imagine having lawyers selected at random to sit on
the jury! Imagine state court being selected at random to preside over
these cases! Imagine giving applicants a right to appeal on the merits,
like aspiring doctors, CPAs, or beauticians! Imagine reported decisions
creating binding precedent! Horrors! What harm could be visited on the
legal profession if bar applicants actually *received* the full panoply
of constitutional protections?!?

Of course, Jon the Ba'athist doesn't believe in due process, Bigfoot,
or the tooth fairy....

Larry Smith wrote: "Jon Beaver" <jbeaver@NO.com> wrote in message news:uin8jvgjjog4g9rs65g2ru2j26j1jahcvi@4ax.com... On Fri, 8 Aug 2003 23:05:31 +0000 (UTC),c.c.eiftj@FitnessXto.usenet.us.com (Rahul Dhesi) wrote:Jon Beaver <jbeaver@NO.com> writes:>Whether I, as Ken's attorney, would have advised him to refuse that>psych eval depends on two things: (1) Did I think that the eval would>have been adverse? and (2) Did I think I could win the argument before>the Colorado Supreme Court that the eval wasn't justified by the>information they had. Relying on the "facial invalidity" of the>fitness standards would have been just plain incompetent.For the sake of argument, let's assume that, as Ken's attorney, youbelieved him to be mentally competent, but you also believed that anyevaluation done by a specialist of the bar's choosing would find him tobe mentally incompetent. And you also believed that any appeal to theColorado Supreme Court was likely -- but not guaranteed -- to fail. Inthese hypothetical circumstances, what would you have advised him to do?As his lawyer, I wouldn't be able to afford to debate with myself overwhether he "really" was mentally competent. Your hypothetical assumesthat I believed the psych eval would be adverse, reminding yourselfthat there would have to be some reason for me to think so.

And corruption is as good an explanation as any. How many times have
we seen it in our long lives, Gentlemen? (I know that *I* have seen it
far more often than I would care to.)
Even so,I don't think I would advise him to refuse it. It's a desperate move.There are just too many good arguments why a psych eval shouldn't begiven any serious weight. At best they are ambiguous andinconclusive. I also see too many good arguments that the disputebetween Ken and Larson is not a rational basis for denying baradmission.

I'm glad everyone -- even Jon -- finally concedes this one. :)
I also see too many opportunities to show that he hadrethought the wisdom of his actions and repudiates them.

And specifically, which actions should I repudiate? My publication
of materials on a friggin' website? Once you eliminate my protected
speech and my necessarily related and lawful conduct, there is nothing
that can reasonably be questioned in my background. Period.

It frustrates the hell out of me that he gave that up out of pique atbeing asked. It's as though he wanted to hand them evidence of hisinability to make unemotional decisions.

This one wasn't an emotional decision. It was a cold and calculating
one, made in consultation with the kind of specialized counsel Jon is so
proud to refer his clients to. But when your judges are willing to even
disregard Marbury v. Madison, no accurate prediction of their conduct is
even possible.
IOW, had I been aware of how corrupt the Colorado Supreme Court was,
I might have taken a different course of action. I might have applied
in California, Nevada, or Arizona. (Hell, I might have even tried Utah
-- where the surname 'Smith' is the quickest path to red-carpet
treatment. :)) And, if the profession was more candid in confessing the
corruption in our courts, I might have even been on fair notice....


Remember that we are speculating here. We only have Ken's word thatrefusal of the test was the actual reason for denying him.

An admission of same can be found in the proceedings in the federal
case, but you have to remember that this is USENET. I never wanted to
have my case decided here, but rather, in an independent court of law
and in front of a judge who doesn't 'do cocktails' with the Defendants
at the Denver Athletic Club later that evening.

I haverepresented attorney in bar disciplinary proceedings, and I wassuccessful the one time I had to ask the California Supreme Court toreject a bar court recommendation of disbarment. My experience isthat high court justices really do want to be fair,

And Big Larry's experience (Larry the Cub has none at all) seems to
be different.

California and New York aren't Colorado and the Carolinas. In small
states, corruption and cronyism are *a lot* more practicable. When the
klieg lights of the media are trained upon them, you can count on their
justices to issue a popular, pro-media decision -- but what they can do
in the closed-door sewer we know as a star chamber is quite a different
matter.

and that it'salways a mistake to fly off the handle and start treating an adverseruling as a hostile act.

Then my question is, why didn't the Colorado Supreme Court deal with
my objection to the IME order? What *was* reasonably expected was that
the Court would fairly consider my challenge to the legality of the IME
order -- and either admit me forthwith or explain why this was a lawful
order. At worst case, the matter would have been remanded to the Board
for further proceedings.

Unless you assume corruption and cronyism -- especially, in light of
Tattered Cover -- the Supremes' action makes no sense.

- Jon Beaver The fairness of the justices is often dependent on the species of appeal permitted under the state's laws. If the appeal is limited to cert, you can be sure a few justices (usually a majority) will do everything possible to avoid granting a hearing, no matter the harm done. The object is to relinquish absolute power to the bar. In a state where an aggrieved bar candidate is required to apply for certiorari and therefore has no right of appeal, he might as well throw in the towel because he ain't going to get an appellate hearing, ain't going to get help in the federal courts, and he shore ain't gonna get the attention of Scotus. He might make a wave and get a little help with some press publicity and maybe a little help from an amicus, but this never happens. The hypocritical ACLU never get involved in this area of litigation, despite the fact the Lawyers' Guild (whose student lawyers were always having trouble getting admitted to the bar) was deeply involved in its founding. In a state where the procedure is set up for a right to an appeal, the aggrieved candidate still won't have any grounds for optimism if the appeal ruling is not required to be published in the appellate court's official reports. If the decision is messy or subject to a challenge in the law reviews it won't be published. I suspect many of California's appellate cases are not reported. So if there is a decision adverse to a candidate, or bar member, in California, is the appellate ruling in black and white and in plain English? Not all the states purchase services from the ladies of the night at NCBE, and those that do usually crawl up trees backwards to avoid rights of appeal from adverse bar decisions on C&F grounds. The next slick way for a state to avoid being embarrassed by charges of due process violations is for the offending state to depublish its appellate decisions in bar admissions controversies. Peremptory decisions are best done in secret to avoid exposure to legitimate criticism. Lately I haven't checked the law in North Carolina, where I used to practice. I have watched the corporate and banking lawyers -- even lawyers who do not practice law but sit on corporate directorates -- overtake the bar leadership and reduce populist lawyer input to mere figurines. I remember one particular committee -- Membership and Fees (a misnomer, by the way) -- in which the overwhelming constituency were corporate lawyers from megafirms, with one or two passive "omega" lawyers from out in the boonies placed there for show. The last I checked, the bar candidate who was rejected had an absolute right to an appeal, after which there would be a published ruling. That makes it safer for due process, because if there's skulduggery the law reviews will go after it with a vengeance, and then the appellate judges don't want to be humiliated by violating settled law.

Larry Smith: Do you think the law reviews would have a field day with
Smith v. Mullarkey? I mean, creating a whole class of rights for which
there is no right to a legal remedy would seem to be "over the top."
A character and fitness committee is presumably shy about finding facts and making conclusions not supported by the record, when the record is subject to review by a court of record with published opinions. And a court of record with published opinions is loathe to issue a ruling which stands out as a miscreant in the various publications of American jurisprudence. While the state's Supreme Court dawdled, the NC State Bar passed some draconian rules calculated to facilitate blackballing bar candidates. The NC bar even gave itself authority to jail someone it said practiced law without a license, without even a semblance of a trial; but a federal judge quickly ended that smelly practice. In South Carolina, an NCBE state, the rejected bar candidate has no right to an appeal, no right to review the written record, and utterly no right to confront his accusers. As a matter of fact every clear mandate of Willner v. Committee on Character and Fitness is routinely violated in South Carolina by its corporate white collar-controlled bar. Once rejected, the bar candidate had best hire a U-Haulit and vacate. His exclusive forum for complaint is in usenet where he can state from memory only, the written record having been destroyed, that the Character and Fitness Committee, comprised of 4 corporate lawyers from interstate megafirms and one figurine from a dusty little town, cross-examined him for twenty minutes about his religion (or whether he really had one) and whether he went to church and what leadership positions he occupied there. Years ago in his book, _No Contest: Corporate Lawyers and the Perversion of Justice in America,_ Ralph Nader complained bitterly about the nationwide monopoly the corporate lawyers had acquired in bar and lawyer licensing matters. The corporate bar barely even squirmed, although Nader's state-by-state anecdotal evidence was shocking. NCBE's secret character and fitness police in Madison, WI maintain a library of how-to articles on helping the corporate bar in its rejection process. Here's the list published by their mental health "experts": http://www.ncbex.org/pubs/indexI/CharFitness.htm#Mental%20Health You can be sure these so-called experts have been well paid.

Ken Smith wrote:
For me, this is strictly downtime, which I wouldn't have if I had had the career which was wrongfully stolen from me.

NOTHING was "stolen" from you, you thick-headed boor! All your problems
regarding bar admission are of your own making. Get that through your thick
skull, and perhaps you might be on the road to solving those problems.
--
Theodore A. Kaldis
kaldis@worldnet.att.net

Ken Smith wrote:
[a.f.b-l trimmed]

[Which was originally added by Ken Smith in the first place.]
Larry wrote:
Where does the idea of an "in=house" shrink come from? The C&F committee employs doctors who give these exams? If not, your analogy is inapplicable.
Fairly desperate nitpicking.

It's the only way Ken can make his case, after all.
--
Theodore A. Kaldis
kaldis@worldnet.att.net

Ken Smith wrote:
Jon Beaver wrote: Ken Smith wrote:
I have the courage to stand for what's right.

Oh, gimme a break already! When was the last time you stood up for what's
right? You stand up for what Ken Smith wants, and then try to convince
yourself (and whoever else might buy into it) that it's the "right" thing to
do.
As you don't, you don't have the standing to question my moral, ethical, and/or mental fitness.

You yourself call your moral, ethical, and/or moral fitness into question
just about every time you post something here.
So you think we should just sit down, kick our feet and cry about all of the injustices in the world? Or do you think it's a lawyers job to get up off his *** and get on with dealing with it?
I *AM* dealing with it, you dolt!

And you might as well engage in an exercise of self-flagellation they way
you're trying to go about it.
One injustice at a time -- and this one just happens to affect me.

What, where? There's no "injustice" in your case -- you've brought all your
problems upon yourself.
Of course, if it doesn't affect you, why give a ****, right?

And isn't that how you operate?
Stop playing the role of Uncle Tom, Jon.
Either lead, follow, or get the hell out of the way.

The only one in the way here is Ken.
--
Theodore A. Kaldis
kaldis@worldnet.att.net

On Sun, 10 Aug 2003 13:30:20 GMT, Ken Smith <nobody@concentric.net>
wrote:
JonBoy is a CA lawyer, but the amount of time he spends on thiscontroversy is way out of proportion (and especially, in light of whathe claims his actual interest in this matter to be) and evidently, he'seither neglecting his clients, his family, or both.

I'm afraid that you greatly overestimate the importance and complexity
of your problem. On the other hand, bar rejection of an applicant on
moral and mental fitness grounds is an extraordinary thing. Try not
to read something sinister into it. But, of course, your inability to
do that IS the problem, isn't it?

- Jon Beaver

In article <3F364902.7070101@concentric.net>, Ken Smith
<nobody@concentric.net> wrote: I'm ignoring the obvious hecklers with obvious agendas ("Merlin," whowas outed as JonBoy's baby brother, the piece of human filth we all knowand loathe as TheOdor Kaldis, and the latest iteration of KSIC).

Tell me again what Merlin's and Jon's agenda is, here?
I've done enough research on Larry the Cub Pwosseccuta to realizethat he's not a serious player, and a bit of an obsessive 'Net junkie inhis own right.

Please, please enlighten us all on the results of your "research"... Since
you always whine about how anonymous I am, I am interested to see what you
think you've found about me. What makes me a "cub" and not a "serious
player"?

That basically leaves JonBoy, Larry Smith, and the more occasionalbit contributors. Larry Smith (*no* relation!) is by assertion aretired NC lawyer, and his familiarity with the concepts here shows it. JonBoy is a CA lawyer, but the amount of time he spends on thiscontroversy is way out of proportion (and especially, in light of whathe claims his actual interest in this matter to be) and evidently, he'seither neglecting his clients, his family, or both. For me, this is strictly downtime, which I wouldn't have if I had hadthe career which was wrongfully stolen from me. We all know that Kaldishas no life, and a hatred of me that will not die. But JonBoy?!? Therehas to be something going on here more than meets the eye. I mean, whatsane man would spend so much effort defending the already soiled-beyond-repair "reputation" of the legal profession?

In article <3F36490C.20802@concentric.net>, Ken Smith
<nobody@concentric.net> wrote:Larry wrote: In article <3F33B332.2050607@concentric.net>, Ken Smith <nobody@concentric.net> wrote:
Now, you are representing Dubya. You can find twenty-five of thebest psychiatrists in the world, who could testify that he is perfectlysane. But the PFC's in-house shrink, if she is permitted to examineDubya, can be expected to bust off the attached diagnosis. And if he isfound not to be mentally fit to be President, it's like saying he is notethically fit to be a lawyer, or morally fit to be a prostitute.Indeed, there is some considerable risk that he could be deprived of hislicense to drill for oil (and for sake of argument, let's say that heactually needs that license -- and has the skill to *find* oil :)). Where does the idea of an "in=house" shrink come from? The C&F committee employs doctors who give these exams? If not, your analogy is inapplicable. Fairly desperate nitpicking. Suffice it to say that there is enoughof a relationship to reasonably cast aspersions upon their independenceas professionals. Quid pro quos do that (see, e.g., the Washington v.Harper dissent).

"fairly desparate" nitpicking? You claim judges who are in the same
non-legal, social organization are obviously in a conspiracy againt you,
you see *nothing* wrong with one of your clients being the shrink
evaluates you, but you think the question of "in-house" vs. "outside"
shinks doing the psych exams is a nitpick??!?!

And you still haven't answered why there would be any quid pro quo - or
why the C&F people have a stake in the outcome. They're NOT your enemies,
Kenny. Get through this. They're NOT your adversaries in the admission
proceeding. They want a psych exam because they want to know WHETHER you
poisses the C&F necessary.

Ken Smith <nobody@concentric.net> wrote:[a.f.b-l trimmed]Larry wrote:
Where does the idea of an "in=house" shrink come from? The C&F committee employs doctors who give these exams? If not, your analogy is inapplicable. Fairly desperate nitpicking. Suffice it to say that there is enoughof a relationship to reasonably cast aspersions upon their independenceas professionals. Quid pro quos do that (see, e.g., the Washington v.Harper dissent).

Nitpicking? Larry cut off your remaining testicle (the other was
apparently removed by the Co Supremes without anesthetic
while you screamed like a two year old) and you call it
nitpicking?

And now you argue that THEIR paid shrink is biased and
YOUR paid shrink (who is one of your cliients) is unbiased?
You're seriously deficient in the mental department all right.

The Colorado Bar Panel had the the authority to order
a psych exam upon good cause, There is nothing on the
face of that rule that is unconstitutional. Period. As a law
school graduate you knew or should have known of that
rule when you applied, yet you made no facial challenge.

Now your right of appeal has been exhausted (through
incompetence or neglect) and as to you their decision
is final. Whatever the basis for the decision, and however
tragic and injured you feel, there has been no injustice
as to YOU. Got that so far?

Now, even assuming you were wronged at some point
(which I am now personally unwilling to assume) your own
stupidity, temper tantrums, combative and irrational and
insulting responses offered since the Co Supreme Court denied
your application make it abundently doubtful that you are
presently fit to be a lawyer. Now get some help or give it up.

-Merlin

On Mon, 11 Aug 2003 13:10:47 GMT, Ken Smith <nobody@concentric.net>
wrote:
Jon Beaver wrote: On Sat, 09 Aug 2003 11:14:58 GMT, Ken Smith <nobody@concentric.net> wrote:Rahul Dhesi wrote:>Jon Beaver <jbeaver@NO.com> writes:>>>>Whether I, as Ken's attorney, would have advised him to refuse that>>psych eval depends on two things: (1) Did I think that the eval would>>have been adverse? and (2) Did I think I could win the argument before>>the Colorado Supreme Court that the eval wasn't justified by the>>information they had. Relying on the "facial invalidity" of the>>fitness standards would have been just plain incompetent.>>For the sake of argument, let's assume that, as Ken's attorney, you>believed him to be mentally competent, but you also believed that any>evaluation done by a specialist of the bar's choosing would find him to>be mentally incompetent. And you also believed that any appeal to the>Colorado Supreme Court was likely -- but not guaranteed -- to fail. Let's change the hypo to get it at least somewhere *near* the harborof reality. Specifically, let's assume it was believed (see, Huffman v. Pursue,Ltd.) that the Colorado Supreme Court would exercise its supervisoryauthority to rein in its subordinates on the Board (no guarantees, ofcourse, but a reasonable supposition). Likewise, assume that in yourdiscussion with disciplinary counsel, he conceded he would not pursuethe Inquiry Panel's "grave abuse of the judicial process" allegation,because he found it to be without substantive merit. Further presumethat you have a private IME in hand showing that your client is quitesane, and know from examination of the material they were required bylaw to provide that they had no material evidence to objectively supportthe charge that your client is mentally unfit. Finally, assume that youbelieve that the real reason behind the Board's IME request was to evadetort liability under Section 1983, and that his consent to the IME wouldbe tantamount to extinguishing what you believe to be a meritorious tortclaim (and you told your client this). You also know that you have asympathetic plaintiff -- a "whistle-blower" -- and are armed with thefact that the Board recommended a convicted felon cocaine dealer withpolitical connections for admission. In your analysis, keep in mind that a fairly compelling argument canbe made for the proposition that the statute is both unconstitutionallyvague and facially violative of the ADA.>In these hypothetical circumstances, what would you have advised him to do? In these hypothetical circumstances -- where your client really hassomething to lose by submitting to the exam -- how do you advise him? When you change the facts, the dog limps away.... Okay. I can play with hypotheticals. That's what I do. Okay, your hypothetical necessarily assumes that I believe that they don't have a prima facie case of "grave abuse of the judicial process" and I have already bet the farm on it by standing pat and telling them so. (Sure doesn't sound like me, but . . .) Once I did that, it would be inconsistent to submit to their psych eval. If this hypothetical is really "nearer the harbor of reality," then they didn't ONLY deny you admission because you refused to submit to a psych eval, like you insist, but because of your "grave abuse of the judicial process." Your proper argument is that they didn't have a threshold case, and your forum for that is appeal. But if they did have a prima facie case and you "conceded that you would not pursue it," then you are toast. Uh, try reading what I wrote, as opposed to what you want to readinto it. This is a hypothetical, and as such, you are placed in theposition of plaintiff's counsel. In proper context, "he" refers todisciplinary counsel, and "you" and "your" invariably refers toplaintiff's counsel. Your analysis presupposes a bizarre reading of thehypothetical facts -- which could have been recognized with reasonablediligence. Accordingly, your conclusion is completely worthless. Under the facts you suggest, my position would obviously be a lotmore precarious. But I think we're both astute enough to know that.

Oh, I see. My mistake. I misread the only facts that gave me
trouble. That's very different. Then I definitely wouldn't have
advised you to refuse the psych eval. Refusing it enabled "him" to
renege. It's refusing the exam that is "folding." If they had
openers, you lose.

- Jon Beaver

Jon Beaver wrote:
On Mon, 11 Aug 2003 13:10:47 GMT, Ken Smith <nobody@concentric.net> wrote:Jon Beaver wrote: On Sat, 09 Aug 2003 11:14:58 GMT, Ken Smith <nobody@concentric.net> wrote:>Rahul Dhesi wrote:>>Jon Beaver <jbeaver@NO.com> writes:>>>>>>>Whether I, as Ken's attorney, would have advised him to refuse that>>>psych eval depends on two things: (1) Did I think that the eval would>>>have been adverse? and (2) Did I think I could win the argument before>>>the Colorado Supreme Court that the eval wasn't justified by the>>>information they had. Relying on the "facial invalidity" of the>>>fitness standards would have been just plain incompetent.>>>>For the sake of argument, let's assume that, as Ken's attorney, you>>believed him to be mentally competent, but you also believed that any>>evaluation done by a specialist of the bar's choosing would find him to>>be mentally incompetent. And you also believed that any appeal to the>>Colorado Supreme Court was likely -- but not guaranteed -- to fail.>> Let's change the hypo to get it at least somewhere *near* the harbor>of reality.>> Specifically, let's assume it was believed (see, Huffman v. Pursue,>Ltd.) that the Colorado Supreme Court would exercise its supervisory>authority to rein in its subordinates on the Board (no guarantees, of>course, but a reasonable supposition). Likewise, assume that in your>discussion with disciplinary counsel, he conceded he would not pursue>the Inquiry Panel's "grave abuse of the judicial process" allegation,>because he found it to be without substantive merit. Further presume>that you have a private IME in hand showing that your client is quite>sane, and know from examination of the material they were required by>law to provide that they had no material evidence to objectively support>the charge that your client is mentally unfit. Finally, assume that you>believe that the real reason behind the Board's IME request was to evade>tort liability under Section 1983, and that his consent to the IME would>be tantamount to extinguishing what you believe to be a meritorious tort>claim (and you told your client this). You also know that you have a>sympathetic plaintiff -- a "whistle-blower" -- and are armed with the>fact that the Board recommended a convicted felon cocaine dealer with>political connections for admission.> In your analysis, keep in mind that a fairly compelling argument can>be made for the proposition that the statute is both unconstitutionally>vague and facially violative of the ADA.>>>In these hypothetical circumstances, what would you have advised him to do?>> In these hypothetical circumstances -- where your client really has>something to lose by submitting to the exam -- how do you advise him?>> When you change the facts, the dog limps away.... Okay. I can play with hypotheticals. That's what I do. Okay, your hypothetical necessarily assumes that I believe that they don't have a prima facie case of "grave abuse of the judicial process" and I have already bet the farm on it by standing pat and telling them so. (Sure doesn't sound like me, but . . .) Once I did that, it would be inconsistent to submit to their psych eval. If this hypothetical is really "nearer the harbor of reality," then they didn't ONLY deny you admission because you refused to submit to a psych eval, like you insist, but because of your "grave abuse of the judicial process." Your proper argument is that they didn't have a threshold case, and your forum for that is appeal. But if they did have a prima facie case and you "conceded that you would not pursue it," then you are toast. Uh, try reading what I wrote, as opposed to what you want to readinto it. This is a hypothetical, and as such, you are placed in theposition of plaintiff's counsel. In proper context, "he" refers todisciplinary counsel, and "you" and "your" invariably refers toplaintiff's counsel. Your analysis presupposes a bizarre reading of thehypothetical facts -- which could have been recognized with reasonablediligence. Accordingly, your conclusion is completely worthless. Under the facts you suggest, my position would obviously be a lotmore precarious. But I think we're both astute enough to know that. Oh, I see. My mistake. I misread the only facts that gave me trouble. That's very different. Then I definitely wouldn't have advised you to refuse the psych eval. Refusing it enabled "him" to renege.

Renege on what, JonBoy? A prosecutor is the representative of the
sovereign and therefore, not at liberty to prosecute a matter for which
he has no grounds. Ethically speaking, he can't even *make* such a
deal.

But you don't seem to think that the Bar is constrained by *ethical*
concerns....
It's refusing the exam that is "folding." If they had openers, you lose.

That presupposes what you have asserted, but cannot show -- that
their IME order met both state and federal constitutional muster.

And yet again, we return to square one.

On Mon, 11 Aug 2003 23:01:54 GMT, Ken Smith <Ranger57@concentric.net>
wrote:
Jon Beaver wrote: On Mon, 11 Aug 2003 13:10:47 GMT, Ken Smith <nobody@concentric.net> wrote:Jon Beaver wrote:> On Sat, 09 Aug 2003 11:14:58 GMT, Ken Smith <nobody@concentric.net>> wrote:>>Rahul Dhesi wrote:>>>Jon Beaver <jbeaver@NO.com> writes:>>>>>>>>>>Whether I, as Ken's attorney, would have advised him to refuse that>>>>psych eval depends on two things: (1) Did I think that the eval would>>>>have been adverse? and (2) Did I think I could win the argument before>>>>the Colorado Supreme Court that the eval wasn't justified by the>>>>information they had. Relying on the "facial invalidity" of the>>>>fitness standards would have been just plain incompetent.>>>>>>For the sake of argument, let's assume that, as Ken's attorney, you>>>believed him to be mentally competent, but you also believed that any>>>evaluation done by a specialist of the bar's choosing would find him to>>>be mentally incompetent. And you also believed that any appeal to the>>>Colorado Supreme Court was likely -- but not guaranteed -- to fail.>>>> Let's change the hypo to get it at least somewhere *near* the harbor>>of reality.>>>> Specifically, let's assume it was believed (see, Huffman v. Pursue,>>Ltd.) that the Colorado Supreme Court would exercise its supervisory>>authority to rein in its subordinates on the Board (no guarantees, of>>course, but a reasonable supposition). Likewise, assume that in your>>discussion with disciplinary counsel, he conceded he would not pursue>>the Inquiry Panel's "grave abuse of the judicial process" allegation,>>because he found it to be without substantive merit. Further presume>>that you have a private IME in hand showing that your client is quite>>sane, and know from examination of the material they were required by>>law to provide that they had no material evidence to objectively support>>the charge that your client is mentally unfit. Finally, assume that you>>believe that the real reason behind the Board's IME request was to evade>>tort liability under Section 1983, and that his consent to the IME would>>be tantamount to extinguishing what you believe to be a meritorious tort>>claim (and you told your client this). You also know that you have a>>sympathetic plaintiff -- a "whistle-blower" -- and are armed with the>>fact that the Board recommended a convicted felon cocaine dealer with>>political connections for admission.>> In your analysis, keep in mind that a fairly compelling argument can>>be made for the proposition that the statute is both unconstitutionally>>vague and facially violative of the ADA.>>>>>In these hypothetical circumstances, what would you have advised him to do?>>>> In these hypothetical circumstances -- where your client really has>>something to lose by submitting to the exam -- how do you advise him?>>>> When you change the facts, the dog limps away....>>> Okay. I can play with hypotheticals. That's what I do. Okay, your> hypothetical necessarily assumes that I believe that they don't have a> prima facie case of "grave abuse of the judicial process" and I have> already bet the farm on it by standing pat and telling them so. (Sure> doesn't sound like me, but . . .) Once I did that, it would be> inconsistent to submit to their psych eval.>> If this hypothetical is really "nearer the harbor of reality," then> they didn't ONLY deny you admission because you refused to submit to a> psych eval, like you insist, but because of your "grave abuse of the> judicial process." Your proper argument is that they didn't have a> threshold case, and your forum for that is appeal. But if they did> have a prima facie case and you "conceded that you would not pursue> it," then you are toast. Uh, try reading what I wrote, as opposed to what you want to readinto it. This is a hypothetical, and as such, you are placed in theposition of plaintiff's counsel. In proper context, "he" refers todisciplinary counsel, and "you" and "your" invariably refers toplaintiff's counsel. Your analysis presupposes a bizarre reading of thehypothetical facts -- which could have been recognized with reasonablediligence. Accordingly, your conclusion is completely worthless. Under the facts you suggest, my position would obviously be a lotmore precarious. But I think we're both astute enough to know that. Oh, I see. My mistake. I misread the only facts that gave me trouble. That's very different. Then I definitely wouldn't have advised you to refuse the psych eval. Refusing it enabled "him" to renege. Renege on what, JonBoy? A prosecutor is the representative of thesovereign and therefore, not at liberty to prosecute a matter for whichhe has no grounds. Ethically speaking, he can't even *make* such adeal. But you don't seem to think that the Bar is constrained by *ethical*concerns.... It's refusing the exam that is "folding." If they had openers, you lose. That presupposes what you have asserted, but cannot show -- thattheir IME order met both state and federal constitutional muster. And yet again, we return to square one.

Well, you asked me.


- Jon Beaver

Jon Beaver wrote:
On Mon, 11 Aug 2003 23:01:54 GMT, Ken Smith <Ranger57@concentric.net> wrote:Jon Beaver wrote: On Mon, 11 Aug 2003 13:10:47 GMT, Ken Smith <nobody@concentric.net> wrote: >Jon Beaver wrote: >> On Sat, 09 Aug 2003 11:14:58 GMT, Ken Smith <nobody@concentric.net> >> wrote: >>>Rahul Dhesi wrote: >>>>Jon Beaver <jbeaver@NO.com> writes: >>>> >>>> >>>>>Whether I, as Ken's attorney, would have advised him to refuse that >>>>>psych eval depends on two things: (1) Did I think that the eval would >>>>>have been adverse? and (2) Did I think I could win the argument before >>>>>the Colorado Supreme Court that the eval wasn't justified by the >>>>>information they had. Relying on the "facial invalidity" of the >>>>>fitness standards would have been just plain incompetent. >>>> >>>>For the sake of argument, let's assume that, as Ken's attorney, you >>>>believed him to be mentally competent, but you also believed that any >>>>evaluation done by a specialist of the bar's choosing would find him to >>>>be mentally incompetent. And you also believed that any appeal to the >>>>Colorado Supreme Court was likely -- but not guaranteed -- to fail. >>> >>> Let's change the hypo to get it at least somewhere *near* the harbor >>>of reality. >>> >>> Specifically, let's assume it was believed (see, Huffman v. Pursue, >>>Ltd.) that the Colorado Supreme Court would exercise its supervisory >>>authority to rein in its subordinates on the Board (no guarantees, of >>>course, but a reasonable supposition). Likewise, assume that in your >>>discussion with disciplinary counsel, he conceded he would not pursue >>>the Inquiry Panel's "grave abuse of the judicial process" allegation, >>>because he found it to be without substantive merit. Further presume >>>that you have a private IME in hand showing that your client is quite >>>sane, and know from examination of the material they were required by >>>law to provide that they had no material evidence to objectively support >>>the charge that your client is mentally unfit. Finally, assume that you >>>believe that the real reason behind the Board's IME request was to evade >>>tort liability under Section 1983, and that his consent to the IME would >>>be tantamount to extinguishing what you believe to be a meritorious tort >>>claim (and you told your client this). You also know that you have a >>>sympathetic plaintiff -- a "whistle-blower" -- and are armed with the >>>fact that the Board recommended a convicted felon cocaine dealer with >>>political connections for admission. >>> In your analysis, keep in mind that a fairly compelling argument can >>>be made for the proposition that the statute is both unconstitutionally >>>vague and facially violative of the ADA. >>> >>>>In these hypothetical circumstances, what would you have advised him to do? >>> >>> In these hypothetical circumstances -- where your client really has >>>something to lose by submitting to the exam -- how do you advise him? >>> >>> When you change the facts, the dog limps away.... >> >> >> Okay. I can play with hypotheticals. That's what I do. Okay, your >> hypothetical necessarily assumes that I believe that they don't have a >> prima facie case of "grave abuse of the judicial process" and I have >> already bet the farm on it by standing pat and telling them so. (Sure >> doesn't sound like me, but . . .) Once I did that, it would be >> inconsistent to submit to their psych eval. >> >> If this hypothetical is really "nearer the harbor of reality," then >> they didn't ONLY deny you admission because you refused to submit to a >> psych eval, like you insist, but because of your "grave abuse of the >> judicial process." Your proper argument is that they didn't have a >> threshold case, and your forum for that is appeal. But if they did >> have a prima facie case and you "conceded that you would not pursue >> it," then you are toast. > > Uh, try reading what I wrote, as opposed to what you want to read >into it. This is a hypothetical, and as such, you are placed in the >position of plaintiff's counsel. In proper context, "he" refers to >disciplinary counsel, and "you" and "your" invariably refers to >plaintiff's counsel. Your analysis presupposes a bizarre reading of the >hypothetical facts -- which could have been recognized with reasonable >diligence. Accordingly, your conclusion is completely worthless. > > Under the facts you suggest, my position would obviously be a lot >more precarious. But I think we're both astute enough to know that. Oh, I see. My mistake. I misread the only facts that gave me trouble. That's very different. Then I definitely wouldn't have advised you to refuse the psych eval. Refusing it enabled "him" to renege. Renege on what, JonBoy? A prosecutor is the representative of thesovereign and therefore, not at liberty to prosecute a matter for whichhe has no grounds. Ethically speaking, he can't even *make* such adeal. But you don't seem to think that the Bar is constrained by *ethical*concerns.... It's refusing the exam that is "folding." If they had openers, you lose. That presupposes what you have asserted, but cannot show -- thattheir IME order met both state and federal constitutional muster. And yet again, we return to square one. Well, you asked me.

In point of fact, Rahul did. I simply figured that, for a hypothetical to
have any meaning, it should at least come close to the real situation on
the table.

The fundamental question remains, untouched as it often is in the fog
of Usenet: Can a citizen be punished for refusing an illegal order? You
seem to think that he can. I think that where practical, the citizen must
have some legal recourse, including at least the right to challenge such
an order in an independent court. Colorado law seems to agree with
me, but I can't force you (or a court, for that matter) to "go there."

Nope, the law isn't perfect, and flagrant abuses are common. This
has been one of them.

Ken Smith wrote:
The fundamental question remains, untouched as it often is in the fog of Usenet: Can a citizen be punished for refusing an illegal order?

But is this really what happened? In order to arrive at an answer to this
question, we must first ask:

Does the request that the inquiry panel of the Colorado Bar Examiners' Board
made to you that you submit to a psychological examination represent an
"order"? I say "no", as you were free to turn down the request, as you did.
But let's just allow, for argument's sake, that it really was an order. Now
the question becomes, was it an illegal order? The consensus here seems to
be "no". The burden, after all, falls upon the applicant to demonstrate
psychological fitness. On what basis do you declare it "illegal"? Due
process? Equality consideration? So far your arguments seem to have been
quite unpersuasive. In short, it seems that you ain't got a pot to piss in
here.
--
Theodore A. Kaldis
kaldis@worldnet.att.net

Ken Smith <Ranger57@concentric.net> wrote:
"Theodore A. Kaldis" wrote: Ken Smith wrote: The fundamental question remains, untouched as it often is in the fog of Usenet: Can a citizen be punished for refusing an illegal order? But is this really what happened? In order to arrive at an answer to this question, we must first ask: Does the request that the inquiry panel of the Colorado Bar Examiners' Board made to you that you submit to a psychological examination represent an "order"? I say "no", as you were free to turn down the request, as you did. Colorado law says otherwise. But then again, you conveniently ignoreevery case I cite....

Just plonk the troll, Ken. It's obvious that he has no idea what he's
talking about. The only reason he keeps on you about it is because you
continue to get red-faced every time he blusters on about you.

---
John Hattan Grand High UberPope - First Church of Shatnerology
john@thecodezone.com http://www.shatnerology.com

Ken Smith wrote:
Theodore A. Kaldis wrote: Ken Smith wrote:
The fundamental question remains, untouched as it often is in the fog of Usenet: Can a citizen be punished for refusing an illegal order?
But is this really what happened? In order to arrive at an answer to this question, we must first ask:
Does the request that the inquiry panel of the Colorado Bar Examiners' Board made to you that you submit to a psychological examination represent an "order"? I say "no", as you were free to turn down the request, as you did.
Colorado law says otherwise. But then again, you conveniently ignore every case I cite ...

No, you only ASSERT that Colorado law says otherwise. But so far, the court
hasn't agreed with you.
But let's just allow, for argument's sake, that it really was an order. Now the question becomes, was it an illegal order? The consensus here seems to be "no".
Colorado law indicates otherwise. But then again, you and your religious posse aren't about to give my assertions a fair shake.

Again, you only ASSERT that Colorado law says otherwise. And again, the
court hasn't agreed with you.
No one here is trying to discuss pertinent case law.

Jon Beaver has discussed it -- and has explained how you are misinterpreting
it. But you don't want to hear that. So you lie, and say that no one is
discussing it.
The burden, after all, falls upon the applicant to demonstrate psychological fitness.
But the initial burden of going forward lies on the Bar.

Oh? Where did you get this? Did you just make it up?
If they really had substantial evidence of my alleged mental unfitness,

They don't NEED any substantial evidence. Your mental fitness is in question
until you establish to their satisfaction that you are mentally fit. But
when you refused to take the psychological exam, you failed to do