UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT




KENNETH L. SMITH, Plaintiff-Appellant,v.MARY J. MULLARKEY,
personally and in her representative capacity as Justice of the Colorado
Supreme Court; REBECCA LOVE KOURLIS, personally and in her representative
capacity as Justice of the Colorado Supreme Court; GREGORY J. HOBBS, JR.,
personally and in his representative capacity as Justice of the Colorado
Supreme Court; ALEX J. MARTINEZ, personally and in his representative
capacity as Justice of the Colorado Supreme Court; MICHAEL L. BENDER,
personally and in his representative capacity as Justice of the Colorado
Supreme Court; NANCY E. RICE, personally and in her representative capacity
as Justice of the Colorado Supreme Court; GREGORY KELLUM SCOTT, in his
personal capacity only; NATHAN B. COATS, in his representative capacity as
Justice of the Colorado Supreme Court; ALAN K. OGDEN, personally and in his
representative capacity as agent of the Colorado Board of Law Examiners;
SUSAN B. HARGLEROAD, personally and in her representative capacity as agent
of the Colorado Board of Law Examiners; SHARI FRAUSTO, personally and in her
representative capacity as agent of the Colorado Board of Law Examiners; LES
WOODWARD, personally and in his representative capacity as agent of the
Colorado Board of Law Examiners; CARLOS SAMOUR, personally and in his
representative capacity as agent of the Colorado Board of Law Examiners;
JAMES COYLE, III, personally and in his representative capacity as agent of
the Colorado Board of Law Examiners; LINDA DONNELLY, personally and in her
representative capacity as agent of the Colorado Board of Law Examiners;
MELANIE BACKES, personally and in her representative capacity as agent of
the Colorado Board of Law Examiners; and John Does 1-9,
Defendants-Appellees.

No. 02-1481(D.C. No. 00-N-2225 (OES))(D. Colo.)



ORDER AND JUDGMENT*



Before BRISCOE, BARRETT, and ANDERSON, Circuit Judges.




After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument.
Plaintiff Kenneth L. Smith, appearing pro se, appeals from a final
judgment entered by the district court dismissing his complaint against
defendants, which he brought pursuant to 42 U.S.C. § 1983 and the Americans
with Disabilities Act, 42 U.S.C. §§ 12101-12213. The district court ruled
that it did not have subject matter jurisdiction over plaintiff's case. We
affirm.
The facts of this case are well known to the parties and will not be
repeated at length here. The dispute surrounds plaintiff's application to
practice law in the State of Colorado. Plaintiff graduated from law school,
passed the state bar examination, and passed the professional ethics
examination, all prerequisites to obtaining a license to practice law in
Colorado. When plaintiff was ordered to submit to a mental status
examination by the Board of Law Examiner's Hearing Panel, however, plaintiff
refused. Primarily because plaintiff refused to submit to that examination,
the Hearing Panel recommended to the Colorado Supreme Court that plaintiff's
application be denied. After consideration of the record, including
plaintiff's application, the Hearing Panel's report and recommendation,
plaintiff's exceptions to that report, and the responses filed by the Board
of Law Examiners, the Colorado Supreme Court denied plaintiff's application
for admission to the State Bar.
Plaintiff did not seek review of that denial with the United States
Supreme Court, as he is permitted pursuant to 28 U.S.C. § 1257. Instead,
ten months later, plaintiff filed a complaint in federal district court
setting forth twenty claims for relief for alleged violations of federal law
and of plaintiff's constitutional rights. Plaintiff sought declarations
that the Colorado bar admissions process and certain admissions rules were
unconstitutional, as well as money damages "resulting from the wrongful
deprivation of [plaintiff's] property interest in the right to practice
law." R. Vol. I, doc. 5 at 63.
Defendants moved to dismiss plaintiff's complaint for lack of
subject matter jurisdiction and, alternatively, on grounds of absolute
judicial and quasi?judicial immunity. The district court granted that
motion ruling, inter alia, that "[t]he United States District Court for this
district does not have subject matter jurisdiction over this case because it
is a challenge by the plaintiff to a judgment entered in a quasi-judicial
adjudicatory proceeding in his case, and is an improper attempt to review
that judgment in this court, as opposed to seeking review in the United
States Supreme Court." Id., doc. 32 at 2. Plaintiff has appealed,
disputing the district court's determination that it lacked jurisdiction.
We review that determination de novo. Johnson v. Rodrigues, 226 F.3d 1103,
1107 (10th Cir. 2000).
Because federal review of state court judgments may be obtained only
in the United States Supreme Court pursuant to 28 U.S.C. § 1257, "[t]he
Rooker-Feldman doctrine prohibits a lower federal court from considering
claims actually decided by a state court, and claims 'inextricably
intertwined' with a prior state?court judgment." Kenmen Eng'g v. City of
Union, 314 F.3d 468, 473 (10th Cir. 2002) (citing Rooker v. Fid. Trust Co.,
263 U.S. 413, 415-16 (1923); Dist. of Columbia Ct. of App. v. Feldman, 460
U.S. 462, 483 n.16 (1983)). Under this doctrine, a party who loses in a
state court proceeding is barred "'from seeking what in substance would be
appellate review of the state judgment in a United States district court,
based on the losing party's claim that the state judgement itself violates
the loser's federal rights.'" Kiowa Indian Tribe of Okla. v. Hoover, 150
F.3d 1163, 1169 (10th Cir. 1998) (quoting Johnson v. DeGrandy, 512 U.S. 997,
1005-06 (1994)).
In his appeal, plaintiff argues that his federal court complaint
includes general constitutional challenges to Colorado state law that fall
outside this jurisdictional bar. In an opinion released during the
briefing of this appeal, this court discussed the Rooker-Feldman doctrine
and, most relevant to the appeal, addressed the contours of the phrase
"inextricably intertwined" as it has been articulated by the Supreme Court.
See Kenmen Eng'g, 314 F.3d at 475-477. In that opinion, the court stated:
Thus, the Supreme Court has identified two categories of cases that fall
outside Feldman's 'inextricably intertwined' umbrella. First, under
Feldman, a party may bring a general constitutional challenge to a state
law, provided that: (1) the party does not request that the federal court
upset a prior state-court judgment applying that law against the party, and
(2) the prior state-court judgment did not actually decide that the state
law at issue was facially constitutional. Second, under Pennzoil [Co. v.
Texaco, Inc., 481 U.S. 1 (1987)], a party may challenge state procedures for
enforcement of a judgment, where consideration of the underlying state-court
decision is not required.

Id. at 476 (citations and footnote omitted). Noting the difficulty in
formulating a "foolproof test" for guiding the courts in deciding the
inextricably intertwined question, the court articulated the following
inquiry:
in general we must ask whether the injury alleged by the federal plaintiff
resulted from the state court judgment itself or is distinct from that
judgment. Three related concepts - injury, causation, and redressability -
inform this analysis. In other words, we approach the question by asking
whether the state-court judgment caused, actually and proximately, the
injury for which the federal-court plaintiff seeks redress. If it did,
Rooker-Feldman deprives the federal court of jurisdiction.

Id. (citations, quotation, and footnote omitted).
Using these principles as a guide, we are convinced that the
district court did not have jurisdiction over plaintiff's claims. After a
careful reading of plaintiff's complaint, affording him the liberality given
to all pro se litigants, we conclude that each of plaintiff's claims is
inextricably intertwined with the state court's denial of his application
for admission to the state bar; thus, under Rooker-Feldman, those claims may
not be reviewed by the district courts. Plaintiff's continuing attempts to
re-frame the issues so that his claims fall outside the ambit of Rooker-
Feldman are unavailing. Despite his protests to the contrary, it is clear
that plaintiff's injury resulted from the state-court judgment, that his
complaint in federal court sought only to upset that judgment, and that the
resolution of his federal claims necessarily required consideration of the
underlying state-court decision. See Kenmen Eng'g, 314 F.3d at 476.
Accordingly, the district court correctly dismissed plaintiff's complaint
for lack of subject matter jurisdiction.
We have reviewed plaintiff's remaining arguments concerning the
jurisdictional issue and we conclude that they are without merit. The
judgment of the United States District Court for the District of Colorado is
AFFIRMED.


Entered for the Court


Stephen H. Anderson
Circuit Judge

****, he lost on Rooker-Feldman. Too bad, so sad. Guess he wasn't paying
enough attention during CivPro.

little stevie wrote:
****, he lost on Rooker-Feldman. Too bad, so sad.

Kind of weird, isn't it? After all, all the tort claims were Carey-based,
and four circuits have said that that Carey-based claims were outside of
R/F. See, e.g., Nesses v. Shepard, 68 F.3d 1003 (7th Cir. 1995). But
in bar admission-related cases (I wasn't stupid enough to ask the feds to
touch the Court's decision, but rather, I sought damages in tort for PDP
violations), stare decisis is pretty much deceased.
Guess he wasn't paying enough attention during CivPro.

R/F is supposed to prevent you from raising claims twice -- but what
about the claims you were never allowed to raise once?

On Thu, 21 Aug 2003 03:13:42 GMT, Ken Smith <Ranger57@concentric.net>
wrote:
little stevie wrote: ****, he lost on Rooker-Feldman. Too bad, so sad. Kind of weird, isn't it? After all, all the tort claims were Carey-based,and four circuits have said that that Carey-based claims were outside ofR/F. See, e.g., Nesses v. Shepard, 68 F.3d 1003 (7th Cir. 1995). Butin bar admission-related cases (I wasn't stupid enough to ask the feds totouch the Court's decision, but rather, I sought damages in tort for PDPviolations), stare decisis is pretty much deceased. Guess he wasn't paying enough attention during CivPro. R/F is supposed to prevent you from raising claims twice -- but whatabout the claims you were never allowed to raise once?

(1) You're lying.

(2) They told you: APPEAL.

- Jon Beaver

Jon Beaver wrote:
On Thu, 21 Aug 2003 03:13:42 GMT, Ken Smith <Ranger57@concentric.net> wrote:little stevie wrote: ****, he lost on Rooker-Feldman. Too bad, so sad. Kind of weird, isn't it? After all, all the tort claims were Carey-based,and four circuits have said that that Carey-based claims were outside ofR/F. See, e.g., Nesses v. Shepard, 68 F.3d 1003 (7th Cir. 1995). Butin bar admission-related cases (I wasn't stupid enough to ask the feds totouch the Court's decision, but rather, I sought damages in tort for PDPviolations), stare decisis is pretty much deceased. Guess he wasn't paying enough attention during CivPro. R/F is supposed to prevent you from raising claims twice -- but whatabout the claims you were never allowed to raise once? (1) You're lying. (2) They told you: APPEAL.

But if the Colorado Supreme Court -- not in their traditional capacity
as the appellate court of last resort, but as administrators of the state's
bar admission program -- commits due process violations, how do you
hold them to account? And just how do you square your view with the
holding in Carey?

On Thu, 21 Aug 2003 12:53:38 GMT, Ken Smith <Ranger57@concentric.net>
wrote:
Jon Beaver wrote: On Thu, 21 Aug 2003 03:13:42 GMT, Ken Smith <Ranger57@concentric.net> wrote:little stevie wrote:> ****, he lost on Rooker-Feldman. Too bad, so sad. Kind of weird, isn't it? After all, all the tort claims were Carey-based,and four circuits have said that that Carey-based claims were outside ofR/F. See, e.g., Nesses v. Shepard, 68 F.3d 1003 (7th Cir. 1995). Butin bar admission-related cases (I wasn't stupid enough to ask the feds totouch the Court's decision, but rather, I sought damages in tort for PDPviolations), stare decisis is pretty much deceased.> Guess he wasn't paying enough attention during CivPro. R/F is supposed to prevent you from raising claims twice -- but whatabout the claims you were never allowed to raise once? (1) You're lying. (2) They told you: APPEAL. But if the Colorado Supreme Court -- not in their traditional capacityas the appellate court of last resort, but as administrators of the state'sbar admission program -- commits due process violations, how do youhold them to account?

(1) We only have your word for what they did, and you're lying.

(2) "Account" for what? Egregious transgressions against your
imagination?

(3) YOU don't.

(4) They told you: APPEAL. (Be sure to attach the RECORD.)
And just how do you square your view with theholding in Carey?

I wrap them in a wet towel together and place them in a warm dark
place for a few days.

- Jon Beaver

Ken Smith <Ranger57@concentric.net> wrote:
Jon Beaver wrote: On Thu, 21 Aug 2003 03:13:42 GMT, Ken Smith <Ranger57@concentric.net> wrote:little stevie wrote:> ****, he lost on Rooker-Feldman. Too bad, so sad. Kind of weird, isn't it? After all, all the tort claims were Carey-based,and four circuits have said that that Carey-based claims were outside ofR/F. See, e.g., Nesses v. Shepard, 68 F.3d 1003 (7th Cir. 1995). Butin bar admission-related cases (I wasn't stupid enough to ask the feds totouch the Court's decision, but rather, I sought damages in tort for PDPviolations), stare decisis is pretty much deceased.> Guess he wasn't paying enough attention during CivPro. R/F is supposed to prevent you from raising claims twice -- but whatabout the claims you were never allowed to raise once? (1) You're lying. (2) They told you: APPEAL. But if the Colorado Supreme Court -- not in their traditional capacityas the appellate court of last resort, but as administrators of the state'sbar admission program -- commits due process violations, how do youhold them to account? And just how do you square your view with theholding in Carey?

Looks like someone already squared your head with a
two-by-four, blockhead.

(1) They told you: APPEAL.
(2) Jon is correct, as usual. You lie.
(3) Why is no one surprized?

-Merlin

In article <3F44C055.1B702934@concentric.net>, Ken Smith
<Ranger57@concentric.net> wrote:
Jon Beaver wrote: On Thu, 21 Aug 2003 03:13:42 GMT, Ken Smith <Ranger57@concentric.net> wrote:little stevie wrote:> ****, he lost on Rooker-Feldman. Too bad, so sad. Kind of weird, isn't it? After all, all the tort claims were Carey-based,and four circuits have said that that Carey-based claims were outside ofR/F. See, e.g., Nesses v. Shepard, 68 F.3d 1003 (7th Cir. 1995). Butin bar admission-related cases (I wasn't stupid enough to ask the feds totouch the Court's decision, but rather, I sought damages in tort for PDPviolations), stare decisis is pretty much deceased.> Guess he wasn't paying enough attention during CivPro. R/F is supposed to prevent you from raising claims twice -- but whatabout the claims you were never allowed to raise once? (1) You're lying. (2) They told you: APPEAL. But if the Colorado Supreme Court -- not in their traditional capacityas the appellate court of last resort, but as administrators of the state'sbar admission program -- commits due process violations, how do youhold them to account?

By applying for cert to SCOTUS, as one avenue (which the federal court
told you as well, I might point out).

And just how do you square your view with theholding in Carey?

Larry wrote:
In article <3F44C055.1B702934@concentric.net>, Ken Smith <Ranger57@concentric.net> wrote:Jon Beaver wrote: On Thu, 21 Aug 2003 03:13:42 GMT, Ken Smith <Ranger57@concentric.net> wrote: >little stevie wrote: > >> ****, he lost on Rooker-Feldman. Too bad, so sad. > > Kind of weird, isn't it? After all, all the tort claims were Carey-based, >and four circuits have said that that Carey-based claims were outside of >R/F. See, e.g., Nesses v. Shepard, 68 F.3d 1003 (7th Cir. 1995). But >in bar admission-related cases (I wasn't stupid enough to ask the feds to >touch the Court's decision, but rather, I sought damages in tort for PDP >violations), stare decisis is pretty much deceased. > >> Guess he wasn't paying enough attention during CivPro. > > R/F is supposed to prevent you from raising claims twice -- but what >about the claims you were never allowed to raise once? (1) You're lying. (2) They told you: APPEAL. But if the Colorado Supreme Court -- not in their traditional capacityas the appellate court of last resort, but as administrators of the state'sbar admission program -- commits due process violations, how do youhold them to account? By applying for cert to SCOTUS, as one avenue (which the federal court told you as well, I might point out).

IOW, you have a remedy without a right, because (a) cert is discretionary,
and (b) the violation of due process rights is a separate tort of constitutional
magnitude. Overturns Marbury v. Madison.
And just how do you square your view with the holding in Carey?

I didn't think you had an answer, Larry.

Ken Smith wrote:
Larry wrote: Ken Smith wrote:
But if the Colorado Supreme Court -- not in their traditional capacity as the appellate court of last resort, but as administrators of the state's bar admission program -- commits due process violations, how do you hold them to account?
By applying for cert to SCOTUS, as one avenue (which the federal court told you as well, I might point out).
IOW, you have a remedy without a right, because (a) cert is discretionary, and (b) the violation of due process rights is a separate tort of constitutional magnitude. Overturns Marbury v. Madison.

IF a violation of due process has taken place (but here, it hasn't).
And just how do you square your view with the holding in Carey?
I didn't think you had an answer, Larry.

Carey doesn't apply.
--
Theodore A. Kaldis
kaldis@worldnet.att.net

On Fri, 22 Aug 2003 13:57:40 GMT, Ken Smith <Ranger57@concentric.net>
wrote:
Larry wrote: In article <3F44C055.1B702934@concentric.net>, Ken Smith <Ranger57@concentric.net> wrote: But if the Colorado Supreme Court -- not in their traditional capacityas the appellate court of last resort, but as administrators of the state'sbar admission program -- commits due process violations, how do youhold them to account? By applying for cert to SCOTUS, as one avenue (which the federal court told you as well, I might point out). IOW, you have a remedy without a right, because (a) cert is discretionary,and (b) the violation of due process rights is a separate tort of constitutionalmagnitude. Overturns Marbury v. Madison.

Your unexpressed premise is that due process always requires judicial
review -- that finality itself is a violation of due process of law.
That's never been the law.

- Jon Beaver

Jon Beaver <jbeaver@NO.com> writes:
Your unexpressed premise is that due process always requires judicialreview -- that finality itself is a violation of due process of law.That's never been the law.

I can't argue with that. As I said in a previous posting:

Doesn't the judicial branch get to decide what "due process" means?
In other words, whatever the Colorado bar does, with the approval of
the Colorado Supreme Court, *is* by definition "due process", unless
overruled by a higher court.

I do wonder, though: If there is no judicial review, how do we verify
that the "due process" requirement has been satisfied in any specific
case? And if there is no verification mechanism, then what exactly is
the difference between "due process" and merely "process"?
--
Rahul

On Fri, 22 Aug 2003 16:22:24 +0000 (UTC),
c.c.eiftj@SmithXvXXM.usenet.us.com (Rahul Dhesi) wrote:
Jon Beaver <jbeaver@NO.com> writes:Your unexpressed premise is that due process always requires judicialreview -- that finality itself is a violation of due process of law.That's never been the law.I can't argue with that. As I said in a previous posting: Doesn't the judicial branch get to decide what "due process" means? In other words, whatever the Colorado bar does, with the approval of the Colorado Supreme Court, *is* by definition "due process", unless overruled by a higher court.I do wonder, though: If there is no judicial review, how do we verifythat the "due process" requirement has been satisfied in any specificcase? And if there is no verification mechanism, then what exactly isthe difference between "due process" and merely "process"?

Due process is the right to litigate, not RE-litigate.

There are at least three questions involved here. (1) Whether certain
facts are true, (2) Whether those facts fairly and legally justify a
conclusion that Ken is unfit to practice law (substantive due
process), and (3) whether Ken got a fair opportunity to contest those
facts (procedural due process). Who has the jurisdiction and the
"final" say is different for each of those questions. Obviously, it
takes a different court to decide that another court didn't provide a
fair hearing. But whoever has jurisdiction to decide, once it's
fairly heard and decided by them, it's final as to THAT question as
far as due process is concerned. The right to further appeal or
review is purely statutory and/or discretionary.

We do not know what facts the Colorado Supreme Court found to be true.
Ken won't tell us. Nor is he complaining that they aren't true,
whatever they are. Nor is he complaining that the facts the court
found to be true are insufficient to conclude he's unfit. What he
seems to be complaining about is that ONE of the facts they considered
is his dispute with this Bob Larson guy. He says they can't do that.
Well, he's wrong. They can. Perhaps -- perhaps -- it must not be the
ONLY thing they consider, but the fact that it's ONE of the things
they considered isn't a "due process" problem.

He's also complaining that the Colorado Supreme Court has both the
"first" AND "final" say on what the facts are. Manifestly unfair!
Invites corruption and every manner of evil! He says. But what's
new? It's always been the fundamental law that you never get more
than one chance to litigate facts.

And, contrary to Ken's repeated assertions, due process does not
demand a legally "correct" decision. Jurisdiction to decide right
includes jurisdiction to decide wrong -- as a matter of necessity if
not a matter of logic. A right to appeal a "wrong" decision may be a
good idea, and all states provide for it. But the United States
Constitution doesn't.

- Jon Beaver

Jon Beaver <jbeaver@NO.com> writes:
Due process is the right to litigate, not RE-litigate.

That can't be all of it, because we can find many examples of lack of
due process in many countries throughout history despite there being a
right to litigate. Surely, at the very least, there ought to be a right
to litigate before a body independent of the party against which one is
litigating. Read "The Mouse's Tale" by Lewis Carroll -- does that sound
like due process to you?
There are at least three questions involved here. (1) Whether certainfacts are true, (2) Whether those facts fairly and legally justify aconclusion that Ken is unfit to practice law (substantive dueprocess), and (3) whether Ken got a fair opportunity to contest thosefacts (procedural due process).

But my question was not about Ken.
And, contrary to Ken's repeated assertions, due process does notdemand a legally "correct" decision. Jurisdiction to decide rightincludes jurisdiction to decide wrong -- as a matter of necessity ifnot a matter of logic. A right to appeal a "wrong" decision may be agood idea, and all states provide for it. But the United StatesConstitution doesn't.

And my question was not about "correctness".

Here is the question again:

If there is no judicial review, how do we verify that the "due
process" requirement has been satisfied in any specific case? And if
there is no verification mechanism, then what exactly is the
difference between "due process" and merely "process"?
--
Rahul

On Fri, 22 Aug 2003 18:47:24 +0000 (UTC),
c.c.eiftj@SmithXvXXM.usenet.us.com (Rahul Dhesi) wrote:
Jon Beaver <jbeaver@NO.com> writes:Due process is the right to litigate, not RE-litigate.That can't be all of it, because we can find many examples of lack ofdue process in many countries throughout history despite there being aright to litigate. Surely, at the very least, there ought to be a rightto litigate before a body independent of the party against which one islitigating. Read "The Mouse's Tale" by Lewis Carroll -- does that soundlike due process to you?

A duck isn't an orange. But you're right. That isn't the whole
story. A canoe isn't an orange either.
There are at least three questions involved here. (1) Whether certainfacts are true, (2) Whether those facts fairly and legally justify aconclusion that Ken is unfit to practice law (substantive dueprocess), and (3) whether Ken got a fair opportunity to contest thosefacts (procedural due process).But my question was not about Ken.

And my answer was not about Ken.
And, contrary to Ken's repeated assertions, due process does notdemand a legally "correct" decision. Jurisdiction to decide rightincludes jurisdiction to decide wrong -- as a matter of necessity ifnot a matter of logic. A right to appeal a "wrong" decision may be agood idea, and all states provide for it. But the United StatesConstitution doesn't.And my question was not about "correctness".Here is the question again: If there is no judicial review, how do we verify that the "due process" requirement has been satisfied in any specific case? And if there is no verification mechanism, then what exactly is the difference between "due process" and merely "process"?

Is this some sort of a philosophical debate? I spent some time giving
you a good-faith answer to your question, in language I thought you
would understand. Was I wrong?

- Jon Beaver

Jon Beaver wrote:
On Fri, 22 Aug 2003 16:22:24 +0000 (UTC), c.c.eiftj@SmithXvXXM.usenet.us.com (Rahul Dhesi) wrote:Jon Beaver <jbeaver@NO.com> writes:Your unexpressed premise is that due process always requires judicialreview -- that finality itself is a violation of due process of law.That's never been the law.I can't argue with that. As I said in a previous posting: Doesn't the judicial branch get to decide what "due process" means? In other words, whatever the Colorado bar does, with the approval of the Colorado Supreme Court, *is* by definition "due process", unless overruled by a higher court.I do wonder, though: If there is no judicial review, how do we verifythat the "due process" requirement has been satisfied in any specificcase? And if there is no verification mechanism, then what exactly isthe difference between "due process" and merely "process"? Due process is the right to litigate, not RE-litigate. There are at least three questions involved here. (1) Whether certain facts are true, (2) Whether those facts fairly and legally justify a conclusion that Ken is unfit to practice law (substantive due process), and (3) whether Ken got a fair opportunity to contest those facts (procedural due process). Who has the jurisdiction and the "final" say is different for each of those questions. Obviously, it takes a different court to decide that another court didn't provide a fair hearing.

Jon, please identify the "different court" which has decided that the
Colorado Supreme Court did or didn't provide a fair hearing. Carey
tells us that the deprivation of due process is a separate tort of consti-
tutional significance, and the fact of whether I got a fair hearing would
be a question of fact for a *trial* court to determine.

Rahul Dhesi wrote:
Jon Beaver <jbeaver@NO.com> writes:Your unexpressed premise is that due process always requires judicialreview -- that finality itself is a violation of due process of law.That's never been the law. I can't argue with that. As I said in a previous posting: Doesn't the judicial branch get to decide what "due process" means? In other words, whatever the Colorado bar does, with the approval of the Colorado Supreme Court, *is* by definition "due process", unless overruled by a higher court.

And that "higher court" must by definition be a federal district court,
as federal rights are implicated, and a right without a right to a remedy
is no right at all.
I do wonder, though: If there is no judicial review, how do we verify that the "due process" requirement has been satisfied in any specific case? And if there is no verification mechanism, then what exactly is the difference between "due process" and merely "process"?

And this is why I contend that the decision in Smith v. Mullarkey is
not merely unconstitutional, but outrageously so. If a court decides my
due process rights on the merits and I lose, so be it. But that decision
should be made on the merits.

Rahul Dhesi wrote:
Jon Beaver <jbeaver@NO.com> writes:Due process is the right to litigate, not RE-litigate. That can't be all of it, because we can find many examples of lack of due process in many countries throughout history despite there being a right to litigate. Surely, at the very least, there ought to be a right to litigate before a body independent of the party against which one is litigating. Read "The Mouse's Tale" by Lewis Carroll -- does that sound like due process to you?There are at least three questions involved here. (1) Whether certainfacts are true, (2) Whether those facts fairly and legally justify aconclusion that Ken is unfit to practice law (substantive dueprocess), and (3) whether Ken got a fair opportunity to contest thosefacts (procedural due process). But my question was not about Ken.And, contrary to Ken's repeated assertions, due process does notdemand a legally "correct" decision. Jurisdiction to decide rightincludes jurisdiction to decide wrong -- as a matter of necessity ifnot a matter of logic. A right to appeal a "wrong" decision may be agood idea, and all states provide for it. But the United StatesConstitution doesn't. And my question was not about "correctness". Here is the question again: If there is no judicial review, how do we verify that the "due process" requirement has been satisfied in any specific case? And if there is no verification mechanism, then what exactly is the difference between "due process" and merely "process"?

For a decision -- right or wrong! -- affecting a life, liberty, or
property
interest to be constitutional, interested parties must have been afforded
due process. Mere process is not "due process."

If the adequacy of *the process* cannot be challenged as a matter of
right, there is no way to assure that the party received the process that
was due him. That is the underlying rationale of a Carey claim -- even
the guilty are entitled, as a matter of law, to due process.

If I get into court and lose on the merits, then I got the process that I
was due. But if I can't even have the matter heard, then I have no due
process rights at all. And that's what I'm complaining about -- that my
Carey-based claims were thrown out before they were even heard.

Jon Beaver wrote:
On Fri, 22 Aug 2003 16:22:24 +0000 (UTC), c.c.eiftj@SmithXvXXM.usenet.us.com (Rahul Dhesi) wrote:

[snip]
He's also complaining that the Colorado Supreme Court has both the "first" AND "final" say on what the facts are. Manifestly unfair! Invites corruption and every manner of evil! He says. But what's new? It's always been the fundamental law that you never get more than one chance to litigate facts.

I don't know what Jon is drinking here, but he probably shouldn't
get behind the wheel for at least eight hours. I never said that facts
could be relitigated but rather, that a government agency shouldn't
be able to decide those facts without me. :)
And, contrary to Ken's repeated assertions, due process does not demand a legally "correct" decision.

I *never* said that they did. Even an incorrect decision can stand,
but an "unfair" one cannot, unfairness being defined as not providing
the minimum process one is entitled to under appropriate federal and
state law.

That's the problem with Jon -- he's so intent upon defeating me that
he has discarded any shred of honor or integrity he had left, accusing
me of making absurd statements of law because he needs me to say
them. And yet, you wonder why I think he's a complete whack job?

Ken Smith wrote:
Jon Beaver wrote:
Due process is the right to litigate, not RE-litigate.
There are at least three questions involved here. (1) Whether certain facts are true, (2) Whether those facts fairly and legally justify a conclusion that Ken is unfit to practice law (substantive due process), and (3) whether Ken got a fair opportunity to contest those facts (procedural due process). Who has the jurisdiction and the "final" say is different for each of those questions. Obviously, it takes a different court to decide that another court didn't provide a fair hearing.
Jon, please identify the "different court" which has decided that the Colorado Supreme Court did or didn't provide a fair hearing.

The court that rightfully decides that issue is the Supreme Court of the
United States.
Carey tells us that the deprivation of due process is a separate tort of constitutional significance,

You were not deprived of due process.

Next!
and the fact of whether I got a fair hearing would be a question of fact for a *trial* court to determine.

You got a fair hearing, but elected not to comply with the direction of the
court (you refused to submit to a psychological evaluation).

Thanks for playing.
--
Theodore A. Kaldis
kaldis@worldnet.att.net

On Fri, 22 Aug 2003, Ken Smith <Ranger57@concentric.net> wrote:Larry wrote:
By applying for cert to SCOTUS, as one avenue (which the federal court told you as well, I might point out).
IOW, you have a remedy without a right, because (a) cert is discretionary,and (b) the violation of due process rights is a separate tort ofconstitutionalmagnitude. Overturns Marbury v. Madison.

Rubbish. It does not.

On Fri, 22 Aug 2003 20:08:48 GMT, Ken Smith <Ranger57@concentric.net>
wrote:
Jon Beaver wrote: On Fri, 22 Aug 2003 16:22:24 +0000 (UTC), c.c.eiftj@SmithXvXXM.usenet.us.com (Rahul Dhesi) wrote:Jon Beaver <jbeaver@NO.com> writes:>Your unexpressed premise is that due process always requires judicial>review -- that finality itself is a violation of due process of law.>That's never been the law.I can't argue with that. As I said in a previous posting: Doesn't the judicial branch get to decide what "due process" means? In other words, whatever the Colorado bar does, with the approval of the Colorado Supreme Court, *is* by definition "due process", unless overruled by a higher court.I do wonder, though: If there is no judicial review, how do we verifythat the "due process" requirement has been satisfied in any specificcase? And if there is no verification mechanism, then what exactly isthe difference between "due process" and merely "process"? Due process is the right to litigate, not RE-litigate. There are at least three questions involved here. (1) Whether certain facts are true, (2) Whether those facts fairly and legally justify a conclusion that Ken is unfit to practice law (substantive due process), and (3) whether Ken got a fair opportunity to contest those facts (procedural due process). Who has the jurisdiction and the "final" say is different for each of those questions. Obviously, it takes a different court to decide that another court didn't provide a fair hearing. Jon, please identify the "different court" which has decided that theColorado Supreme Court did or didn't provide a fair hearing.

First tell me how you were deprived of a fair hearing. Then we can
discuss what court has jurisdiction to do something about it. The
10th Circuit has said your complaint is essentially a complaint about
the decision, not the process. As far as I can see, your argument is
circular: The failure to provide a judicial review IS the denial of
due process for which you are seeking judicial review. I ultimately
have to ask: Judicial review of what? No opportunity to contest the
facts? No opportunity to contest the law? What? As far as I can
tell, you are not contending that you were deprived of either.
Careytells us that the deprivation of due process is a separate tort of consti-tutional significance, and the fact of whether I got a fair hearing wouldbe a question of fact for a *trial* court to determine.

Like "negligence" is a "separate tort." Not. Duty, breach,
causation, damages. Are you sure you went to law school?

- Jon Beaver

On Fri, 22 Aug 2003 20:09:40 GMT, Ken Smith <Ranger57@concentric.net>
wrote:
Rahul Dhesi wrote: Jon Beaver <jbeaver@NO.com> writes:Your unexpressed premise is that due process always requires judicialreview -- that finality itself is a violation of due process of law.That's never been the law. I can't argue with that. As I said in a previous posting: Doesn't the judicial branch get to decide what "due process" means? In other words, whatever the Colorado bar does, with the approval of the Colorado Supreme Court, *is* by definition "due process", unless overruled by a higher court. And that "higher court" must by definition be a federal district court,as federal rights are implicated, and a right without a right to a remedyis no right at all.

Sometimes there's no remedy because it isn't a right. Ya think?

I do wonder, though: If there is no judicial review, how do we verify that the "due process" requirement has been satisfied in any specific case? And if there is no verification mechanism, then what exactly is the difference between "due process" and merely "process"? And this is why I contend that the decision in Smith v. Mullarkey isnot merely unconstitutional, but outrageously so. If a court decides mydue process rights on the merits and I lose, so be it. But that decisionshould be made on the merits.

What merits?


- Jon Beaver

In article <3F4677FD.3F239E77@concentric.net>, Ken Smith
<Ranger57@concentric.net> wrote:
Rahul Dhesi wrote: Jon Beaver <jbeaver@NO.com> writes:Your unexpressed premise is that due process always requires judicialreview -- that finality itself is a violation of due process of law.That's never been the law. I can't argue with that. As I said in a previous posting: Doesn't the judicial branch get to decide what "due process" means? In other words, whatever the Colorado bar does, with the approval of the Colorado Supreme Court, *is* by definition "due process", unless overruled by a higher court. And that "higher court" must by definition be a federal district court,as federal rights are implicated, and a right without a right to a remedyis no right at all. I do wonder, though: If there is no judicial review, how do we verify that the "due process" requirement has been satisfied in any specific case? And if there is no verification mechanism, then what exactly is the difference between "due process" and merely "process"? And this is why I contend that the decision in Smith v. Mullarkey isnot merely unconstitutional, but outrageously so. If a court decides mydue process rights on the merits and I lose, so be it. But that decisionshould be made on the merits.

What about cases where SCOTUS has original jurisdiction. Suppose a state
sues another, or there is a suitinvolving a foreign ambassador. What
recourse does the loser have? Does that mean there is no due process? Per
se?

"Theodore A. Kaldis" wrote:
Ken Smith wrote: Jon Beaver wrote: Due process is the right to litigate, not RE-litigate. There are at least three questions involved here. (1) Whether certain facts are true, (2) Whether those facts fairly and legally justify a conclusion that Ken is unfit to practice law (substantive due process), and (3) whether Ken got a fair opportunity to contest those facts (procedural due process). Who has the jurisdiction and the "final" say is different for each of those questions. Obviously, it takes a different court to decide that another court didn't provide a fair hearing. Jon, please identify the "different court" which has decided that the Colorado Supreme Court did or didn't provide a fair hearing. The court that rightfully decides that issue is the Supreme Court of the United States.

The issue of whether a trial has comported with due process minima is
often a question of fact, and SCOTUS is generally not a court of original
jurisdiction.
Carey tells us that the deprivation of due process is a separate tort of constitutional significance, You were not deprived of due process.

Why? Because "The Odor" Kaldis says so? Because I don't deserve
the same rights as others because I wouldn't lick Jesus' ***?


[edited for brevity]

Subject: Re: Christianity has compelling proofs
Date: 13 Mar 2002 08:53:43 -0800
From: kaldis@home.com (Theodore A. Kaldis)
Organization: http://groups.google.com/
Newsgroups: alt.religion.christian.calvary-chapel,alt.atheism

Ken Smith wrote:
Teresita wrote: Theodore A. Kaldis wrote:
So I've said "ugga booga". Why don't you go ahead and confess with your mouth Jesus as your Lord? And believe in your heart that God has raised him from the dead, and you shall not be ashamed. You will proudly proclaim how God has saved you to any and all who will listen. And you shall have eternal life. Where's the loss in that?
The loss of honor and self-integrity due to sacrificing reason for a nothing backed up by warm fuzzy emotions of "burning in the bosom."
Ted feels no shame in such an endeavor, because he needs the false hope Christianity provides far more.

Christianity provides _TRUE_ hope. If only Ken would learn how to avail
himself of it, he would certainly be far happier.
He often comes home to an empty hotel room in a strange city, and probably has cause to wonder whether life has any meaning at all.

Nah, that never happens. I'll plug in my laptop, connect through the network
(if LodgeNet is available there) or else dial up Worldnet, and start pounding
away. And I'll turn on the tube and see what's on. (If I'm in Dallas, they
have heaps of religious programming on the TV there.) Or maybe I'll just dig
the Gideons Bible out of the drawer and start reading and meditating on the
Word of God. Or if I'm not in such a spiritual mood, I might run down to the
hotel bar for a few brewski's and shoot the bull with the bartender.

[snipped here for brevity]

Jon Beaver wrote:
On Fri, 22 Aug 2003 18:47:24 +0000 (UTC), c.c.eiftj@SmithXvXXM.usenet.us.com (Rahul Dhesi) wrote:Jon Beaver <jbeaver@NO.com> writes:Due process is the right to litigate, not RE-litigate.That can't be all of it, because we can find many examples of lack ofdue process in many countries throughout history despite there being aright to litigate. Surely, at the very least, there ought to be a rightto litigate before a body independent of the party against which one islitigating. Read "The Mouse's Tale" by Lewis Carroll -- does that soundlike due process to you? A duck isn't an orange. But you're right. That isn't the whole story. A canoe isn't an orange either.There are at least three questions involved here. (1) Whether certainfacts are true, (2) Whether those facts fairly and legally justify aconclusion that Ken is unfit to practice law (substantive dueprocess), and (3) whether Ken got a fair opportunity to contest thosefacts (procedural due process).But my question was not about Ken. And my answer was not about Ken.And, contrary to Ken's repeated assertions, due process does notdemand a legally "correct" decision. Jurisdiction to decide rightincludes jurisdiction to decide wrong -- as a matter of necessity ifnot a matter of logic. A right to appeal a "wrong" decision may be agood idea, and all states provide for it. But the United StatesConstitution doesn't.And my question was not about "correctness".Here is the question again: If there is no judicial review, how do we verify that the "due process" requirement has been satisfied in any specific case? And if there is no verification mechanism, then what exactly is the difference between "due process" and merely "process"? Is this some sort of a philosophical debate? I spent some time giving you a good-faith answer to your question, in language I thought you would understand.

It's a common-sense question, for which you don't seem to have an
intelligible answer. The unaccountable judge is no more than a tyrant.
What mechanism do you suggest to ensure that every person gets the
process that is his due? What will protect us from Ba'athists in black
robes?
Was I wrong?

In a word, yes. It's hard to give an intelligible answer when you don't
understand the issue, and it's patently obvious that you're clueless here.

Larry wrote:
In article <3F4677FD.3F239E77@concentric.net>, Ken Smith <Ranger57@concentric.net> wrote:Rahul Dhesi wrote: Jon Beaver <jbeaver@NO.com> writes: >Your unexpressed premise is that due process always requires judicial >review -- that finality itself is a violation of due process of law. >That's never been the law. I can't argue with that. As I said in a previous posting: Doesn't the judicial branch get to decide what "due process" means? In other words, whatever the Colorado bar does, with the approval of the Colorado Supreme Court, *is* by definition "due process", unless overruled by a higher court. And that "higher court" must by definition be a federal district court,as federal rights are implicated, and a right without a right to a remedyis no right at all. I do wonder, though: If there is no judicial review, how do we verify that the "due process" requirement has been satisfied in any specific case? And if there is no verification mechanism, then what exactly is the difference between "due process" and merely "process"? And this is why I contend that the decision in Smith v. Mullarkey isnot merely unconstitutional, but outrageously so. If a court decides mydue process rights on the merits and I lose, so be it. But that decisionshould be made on the merits. What about cases where SCOTUS has original jurisdiction. Suppose a state sues another, or there is a suitinvolving a foreign ambassador. What recourse does the loser have? Does that mean there is no due process? Per se?

First off, I wasn't aware that a state was a "person" within the ambit of
the
Bill of Rights. Second, by declaring what process is due in the body of the
Constitution, it would seem the question is answered conclusively.

Ken Smith wrote:
But as is the case with Ted Kaldis, I have to attribute that to your personal animus ...

What "personal animus" do I have against you, Ken? The ONLY thing that I
have steadfastly challenged you on is your inane assertion that you were
somehow wronged when you were denied a licence to practise law. I have
contended that the proximate cause of this result is your own actions. And I
seem to have been vindicated by men much more knowledgeable about these
issues than I am. So get your head screwed on, and take whatever steps are
necessary to overcome this problem. Calling us all names won't help the
situation.
--
Theodore A. Kaldis
kaldis@worldnet.att.net

On Sat, 23 Aug 2003 12:59:07 GMT, Ken Smith <Ranger57@concentric.net>
wrote:
Jon Beaver wrote: On Fri, 22 Aug 2003 20:09:40 GMT, Ken Smith <Ranger57@concentric.net> wrote:Rahul Dhesi wrote:> Jon Beaver <jbeaver@NO.com> writes:>> >Your unexpressed premise is that due process always requires judicial> >review -- that finality itself is a violation of due process of law.> >That's never been the law.>> I can't argue with that. As I said in a previous posting:>> Doesn't the judicial branch get to decide what "due process" means?> In other words, whatever the Colorado bar does, with the approval of> the Colorado Supreme Court, *is* by definition "due process", unless> overruled by a higher court. And that "higher court" must by definition be a federal district court,as federal rights are implicated, and a right without a right to a remedyis no right at all. Sometimes there's no remedy because it isn't a right. Ya think? I've asked you to define what my due process rights are, and youseem to think I don't have any. But as is the case with Ted Kaldis,I have to attribute that to your personal animus -- as there's no caselaw to support your position. Tell me which of the rights that I havealleged that I have (attached) you don't believe I am entitled to as amatter of law, and why. Cite appropriate case law.

Due process of law means, at least, that you have the right to
reasonable notice of the factual and legal issues, an opportunity to
be heard commensurate with the gravity of the interests at stake, the
right to be treated like anyone else relevantly similarly situated,
and the right to be judged on a rational basis.

Which of those rights do you say you were denied?
> I do wonder, though: If there is no judicial review, how do we verify> that the "due process" requirement has been satisfied in any specific> case? And if there is no verification mechanism, then what exactly is> the difference between "due process" and merely "process"? And this is why I contend that the decision in Smith v. Mullarkey isnot merely unconstitutional, but outrageously so. If a court decides mydue process rights on the merits and I lose, so be it. But that decisionshould be made on the merits. What merits? E.g., I allege that the statute is void for vagueness and therefore,cannot be enforced. The specific issue has never been decided byany Colorado or federal district court. Seems I ought to have theright to be the first....

"Cannot be enforced?" Are you contending that mentally and morally
unfit applicants must be granted licenses to practice law? As far as
I can see, that's the only place you can go with your argument.

I'm not sure that even "plumb dead crazy" disqualifies someone from
the practice of law. I'd be the first one to denounce standards that
only admit mainstream thinkers and affable drones. And sometimes
being an outright "confrontive [sic] asshole" is a asset to a client.
But a person has to have some minimum abilities bearing on the orderly
administration of justice and protection of the public. A person who
appears to go out of his way to be disagreeable raises the question of
whether he has the ABILITY to be respectful of the authority of the
courts and the rights of others when it's called for. Law is
submission to authority. If you are unable to do that, if you're
"crazy" in THAT way, you can't be a lawyer.

Now, my sincere suggestion is that you exhibit a sudden epiphany, a
stoke of insight, an awakening, of respect for authority and concern
for the rights of others. It doesn't even have to be genuine. If you
can pretend convincingly, you are sane enough to practice law as far
as I'm concerned. But I'm afraid you don't even have the sanity to
fake it!

- Jon Beaver

On Sat, 23 Aug 2003 20:05:02 +0000 (UTC),
c.c.eiftj@SmithXvXXM.usenet.us.com (Rahul Dhesi) wrote:
Jon Beaver <jbeaver@NO.com> writes:Is this some sort of a philosophical debate?Of course it is. Please see my comments in context. You wrote "Yourunexpressed premise is that due process always requires judicialreview -- that finality itself is a violation of due process of law.That's never been the law." and I responded: "I can't argue with that."No debate so far. Here we both agree that "due process" as it isimplemented does not always require judicial review.The debate begins below.As I said in a previous posting: Doesn't the judicial branch get to decide what "due process" means? In other words, whatever the Colorado bar does, with the approval of the Colorado Supreme Court, *is* by definition "due process", unless overruled by a higher court.I do wonder, though: If there is no judicial review, how do we verifythat the "due process" requirement has been satisfied in any specificcase? And if there is no verification mechanism, then what exactly isthe difference between "due process" and merely "process"?


Semantically speaking, one can argue that whether a tree makes a
"noise" when it falls depends on whether there is anyone there to hear
it. Likewise, one can philosophically argue that whether there is
"due process of law" depends on whether there is a someone to review
it. But both are merely arguments over use of language. Our founding
fathers were nothing if not more practical than that.

It has been said that due process of law has no meaning in the
abstract and what "process of law" is "due" depends on the
circumstances, including the importance of the liberty interests
involved and "consideration of our traditional notions of fair play
and substantial justice," and involves "at a minimum, notice and an
opportunity to be heard." I can't say that judicial oversight is
never necessary to due process of law because I haven't seen or
contemplated all possible circumstances, but I am aware of no case
that has ever held that due process of law intrinsically depends on
availability of judicial review. I see no reason why a school
principal who witnesses a student's misconduct can't summarily suspend
the student for a day or so without a formal hearing by an "impartial"
tribunal, but I have argued in such a case (administrative mandamus to
correct his record), and it has been held, that he at least owes the
kid a chance to explain. But no court, no judge, no lawyers, no
courtroom, no impartial tribunal, and no appeal. Death penalty cases,
well, we know a more thorough "process of law" is "due."

- Jon Beaver

Jon Beaver <jbeaver@NO.com> writes:

[ trying to essentially answer the questions: (a) If there is no
judicial review, how do we verify that the "due process" requirement has
been satisfied in any specific case? (b) And if there is no
verification mechanism, then what exactly is the difference between "due
process" and merely "process"? ]

[ longish philosphical discourse omitted ]
I see no reason why a schoolprincipal who witnesses a student's misconduct can't summarily suspendthe student for a day or so without a formal hearing by an "impartial"tribunal, but I have argued in such a case (administrative mandamus tocorrect his record), and it has been held, that he at least owes thekid a chance to explain. But no court, no judge, no lawyers, nocourtroom, no impartial tribunal, and no appeal. Death penalty cases,well, we know a more thorough "process of law" is "due."

Jon is getting very close to the right answer. Here is the answer:

If there is no independent oversight, then we can still assume that
due process occurred, but we will not be sure. The more often and the
greater the degree to which we observe this lack of independent
oversight, the less confidence we will have that "due process"
is actually occurring.
--
Rahul

Jon Beaver wrote:
On Sun, 24 Aug 2003 02:01:11 +0000 (UTC), c.c.eiftj@SmithXvXXM.usenet.us.com (Rahul Dhesi) wrote:Jon Beaver <jbeaver@NO.com> writes:[ trying to essentially answer the questions: (a) If there is nojudicial review, how do we verify that the "due process" requirement hasbeen satisfied in any specific case? (b) And if there is noverification mechanism, then what exactly is the difference between "dueprocess" and merely "process"? ][ longish philosphical discourse omitted ]I see no reason why a schoolprincipal who witnesses a student's misconduct can't summarily suspendthe student for a day or so without a formal hearing by an "impartial"tribunal, but I have argued in such a case (administrative mandamus tocorrect his record), and it has been held, that he at least owes thekid a chance to explain. But no court, no judge, no lawyers, nocourtroom, no impartial tribunal, and no appeal. Death penalty cases,well, we know a more thorough "process of law" is "due."Jon is getting very close to the right answer. Here is the answer: If there is no independent oversight, then we can still assume that due process occurred, but we will not be sure. The more often and the greater the degree to which we observe this lack of independent oversight, the less confidence we will have that "due process" is actually occurring. Your question: "If there is no judicial review, how do we verify that the "due process" requirement has been satisfied in any specific case?

Carey v. Piphus. The deprivation of procedural due process is a
separate and distinct tort of constitutional magnitude -- and nominal
damages are available even if the outcome would not have changed.
Even judges should be accountable for their misconduct.
The answer: The First Amendment.

I don't see how this would fix the problem. If an aggrieved party's
only remedy is to kill the judge, there won't be anyone who wants to
take the job.

Jon Beaver <jbeaver@NO.com> wrote:Ken Smith <Ranger57@concentric.net> wrote:Jon Beaver wrote:
Carey v. Piphus. The deprivation of procedural due process is aseparate and distinct tort of constitutional magnitude -- and nominaldamages are available even if the outcome would not have changed.Even judges should be accountable for their misconduct.But a complete absence of ANY opportunity to be heard on the issue ofthe student's culpability before a permanent suspension from schoolwas the "deprivation of due process" in Carey v. Piphus. What was itin your case? We know, for instance, that you were interviewed, thatyour lawyer was present, that they discussed the reasons why you mightbe denied, that you were given an opportunity to present evidence ofyour mental fitness conditioned only on you permitting them to havetheir own IME conducted, you were permitted to make written objection,you filed extensive briefs. On what issue were you deprived of aright to be heard?

Well, at least Ken has given up the idea of getting a law license.
So now, after the federal courts dismissed a similar action
he wants to bring a 1983 tort action in STATE court against the CO
SUPREME COURT Judges for denial of procedural due process
on the grounds that the admission rules and procedures are
(for some reason) unconstitutional on their face ?
Do I have that right?

Ok then, talking about face, I'm practicing keeping a straight face
here, and its definitely becoming a workout.

But even if the unbelievable happens and Ken wins and
Colorado cannot deny a whacko a law license because
of Kenny's 'magnificent obsession', what proof of any injury
does Ken have? That the denial of a license drove him
buggybumpers? I can hardly wait to see his laborious proof
of the buggybumpers issue, which I'm personally willing to
concede, yet I suspect the evidence will fully establish
he had arrived at 'buggybumpers' long before
the licensing decision. So what proof of injury?

And further.... why wouldn't the members of the court be
entitled to qualified immunity on an issue of previously
undecided constitutional law that virtually all State C&F
decisions violate due process? What about that?

And while we're at this, what is the statute of limitations for
personal injury in Colorado, anyway? Just askin.

So what about all this stuff Kenny, do you think you've
managed to meet the SOL, or are you SOL? Will they turn
the buggybumpers issue around on you and have it bite you
on the ***? Do you think the judges are ultimately immune?
These are questions, huh?

-Merlin

In article <3f4a655b.8096193@news.sf.sbcglobal.net>, mag@camelot.org
(Merlin) wrote: Well, at least Ken has given up the idea of getting a law license. So now, after the federal courts dismissed a similar action he wants to bring a 1983 tort action in STATE court against the CO SUPREME COURT Judges for denial of procedural due process on the grounds that the admission rules and procedures are (for some reason) unconstitutional on their face ? Do I have that right? Ok then, talking about face, I'm practicing keeping a straight face here, and its definitely becoming a workout. But even if the unbelievable happens and Ken wins and Colorado cannot deny a whacko a law license because of Kenny's 'magnificent obsession', what proof of any injury does Ken have? That the denial of a license drove him buggybumpers? I can hardly wait to see his laborious proof of the buggybumpers issue, which I'm personally willing to concede, yet I suspect the evidence will fully establish he had arrived at 'buggybumpers' long before the licensing decision. So what proof of injury? And further.... why wouldn't the members of the court be entitled to qualified immunity on an issue of previously undecided constitutional law that virtually all State C&F decisions violate due process? What about that? And while we're at this, what is the statute of limitations for personal injury in Colorado, anyway? Just askin. So what about all this stuff Kenny, do you think you've managed to meet the SOL, or are you SOL? Will they turn the buggybumpers issue around on you and have it bite you on the ***? Do you think the judges are ultimately immune? These are questions, huh?

And if Ken wins his case, does anyone who was ever denied bar admission
then get to sue for damages and/or bar admission? Open the floodgates!

Jon Beaver wrote:
On Mon, 25 Aug 2003 13:11:03 GMT, Ken Smith <Ranger57@concentric.net> wrote:Jon Beaver wrote: On Sun, 24 Aug 2003 02:01:11 +0000 (UTC), c.c.eiftj@SmithXvXXM.usenet.us.com (Rahul Dhesi) wrote: >Jon Beaver <jbeaver@NO.com> writes: > >[ trying to essentially answer the questions: (a) If there is no >judicial review, how do we verify that the "due process" requirement has >been satisfied in any specific case? (b) And if there is no >verification mechanism, then what exactly is the difference between "due >process" and merely "process"? ] > >[ longish philosphical discourse omitted ] > >>I see no reason why a school >>principal who witnesses a student's misconduct can't summarily suspend >>the student for a day or so without a formal hearing by an "impartial" >>tribunal, but I have argued in such a case (administrative mandamus to >>correct his record), and it has been held, that he at least owes the >>kid a chance to explain. But no court, no judge, no lawyers, no >>courtroom, no impartial tribunal, and no appeal. Death penalty cases, >>well, we know a more thorough "process of law" is "due." > >Jon is getting very close to the right answer. Here is the answer: > > If there is no independent oversight, then we can still assume that > due process occurred, but we will not be sure. The more often and the > greater the degree to which we observe this lack of independent > oversight, the less confidence we will have that "due process" > is actually occurring. Your question: "If there is no judicial review, how do we verify that the "due process" requirement has been satisfied in any specific case? Carey v. Piphus. The deprivation of procedural due process is aseparate and distinct tort of constitutional magnitude -- and nominaldamages are available even if the outcome would not have changed.Even judges should be accountable for their misconduct.

[snip]
The answer: The First Amendment. I don't see how this would fix the problem. [snip] It fixes Rahul's problem. He's trying to be cute again. That's just Rahul. Rahul likes to ask ambiguous questions so he can play the "Nuh uh, your wrong" game. He poses the purely philosophical question of how we "know" due process has been "satisfied" without someone to tell us. When I point out that it's only a philosophical question, he complains that I'M getting philosophical! When I answer the question I thought he was trying to ask, he complains that I didn't answer the question! If his answer, that we don't know, that we just have to trust, is the "right' answer to his question, then it was a philosophical question after all. But if all he's asking is how we know if the courts are treating our citizens fairly, the answer is open public proceedings

What about detailed written opinions, and an adherence to the prin-
ciple of stare decisis? When a judge writes that "Plaintiff's continuing
attempts . . . are unavailing," he is taking the judicial equivalent of the
Fifth Amendment -- especially when he is disregarding an established
precedent of his own Circuit! But you don't seem to have a problem
with that, now do you?
and the right to assemble, discuss, protest, and petition. The idea that it takes a paternalistic government "judicial" body to inform us when we are being treated unfairly comes from the wrong place. We protect ourselves from tyranny by informing ourselves of our rights and/or by asking someone among us who is informed -- like a lawyer.

That's silly! If you can't do anything about it, they are mere tyrants
and you are nothing more than a serf. If you, as an individual citizen,
cannot protect your rights as a matter of law, you do not have them.
I mean, what are you going to do to a judge who goes off the reser-
vation? Impeach him? In which lifetime?!?

I don't even have the right to speak freely on issues of the day, free
from the spectre of government reprisal for that speech! All you can
suggest is that I have no remedy at all -- except for the right of revo-
lution. Rahul is asking the right question: What checks and balances
do we have built into the system? And as a practical matter, your
answer is "None."

I hired who may be the best specialist lawyer in town. Nothing per-
sonal, Jon, but the gentleman is way out of your league (as you would
expect when comparing a brain surgeon to a G.P.). Well, it didn't do
me much good, now did it?

Ken Smith wrote:
Jon Beaver wrote: Ken Smith wrote:
Carey v. Piphus. The deprivation of procedural due process is a separate and distinct tort of constitutional magnitude -- and nominal damages are available even if the outcome would not have changed. Even judges should be accountable for their misconduct.
But a complete absence of ANY opportunity to be heard on the issue of the student's culpability before a permanent suspension from school was the "deprivation of due process" in Carey v. Piphus. What was it in your case?
As you know from Matthews v. Eldridge, the level of process due is a function of the significance of the private interest that will be affected by the official action, the risk of erroneous deprivation inherent in the procedures, and the assessment of the fiscal and administrative burdens that improved procedural requirements would create.

I see that the question goes, essentially, unanswered.
We know, for instance, that you were interviewed, that your lawyer was present, that they discussed the reasons why you might be denied, that you were given an opportunity to present evidence of your mental fitness conditioned only on you permitting them to have their own IME conducted, you were permitted to make written objection, you filed extensive briefs. On what issue were you deprived of a right to be heard?
As an applicant for professional licensure, I am entitled to what the case law says I am entitled to.

And case law is, essentially, what the court says it is.
If I don't get it, it is a tort of constitutional magnitude.
The central question in this case was whether they had a legal right to *require* me to undergo an IME as a condition precedent to my receiving the full, fair, trial-type hearing I was entitled to, pursuant to not only the DP clause but Colorado statute. If the answer is yes, I lose. If the answer is no, I win.

So then the answer is necessarily going to be "yes".

Next case.
--
Theodore A. Kaldis
kaldis@worldnet.att.net

I am honored to have more and more discussion threads named after me,
but really, I do not deserve such fame. If we keep everything under the
same subject heading, future generations will find it easier to look
them up.
--
Rahul

"Theodore A. Kaldis" wrote:
Jon Beaver wrote: I see no reason why a school principal who witnesses a student's misconduct Like, say, smoking marijuana right outside the schoolhouse door. can't summarily suspend the student for a day or so (or 20) without a formal hearing by an "impartial" tribunal, [...] Neither do most Americans. (And neither would Ken, if he weren't trying to use this case to justify himself.)

Sorry, guys. As I see it, even the guilty deserve their day in court.

It is remarkable that both Jon and Ted have joined the Foggytown
Fan Club!

Rahul Dhesi wrote:
I am honored to have more and more discussion threads named after me, but really, I do not deserve such fame. If we keep everything under the same subject heading, future generations will find it easier to look them up.

I was just trying to separate the discussion regarding my case from
the more general question you raised. If it works differently in other
browsers, I apologize for the confusion it creates.

On Tue, 26 Aug 2003 13:16:59 GMT, Ken Smith <Ranger57@concentric.net>
wrote:
The question is whether I was ever properly heard on the constitu-tionality of that order. The Hearing Panel Chair could hardly be animpartial trier of fact, insofar as members of the Board routinely ruleon each others' "motions," and the appearance of impropriety shouldbe obvious. A lower federal court wouldn't hear the matter by virtueof Younger abstention. A lower state court can't hear it, either. See,Grievance Cmte. And since the Board was an agent of the ColoradoSupreme Court, they can only review the matter in their role as super-visors of the process. IOW, there was no proper forum I could go toto challenge that order as a matter of right. All I could do was resist. But even if mere administrative review of the order by the ColoradoSupreme Court was sufficient to meet constitutional muster, the simplefact is that they did not properly consider my objections. After all, ifthey had in fact considered them, they would have remanded the mat-ter to the Board for further proceedings, either declaring the order tobe invalid, or requiring me to submit to the IME as a condition prece-dent to my receiving the Rule 201.10 hearing. Obviously, the "right tobe heard" means the right to at least be listened to.

Constitutional due process doesn't require a "trial type hearing" if
there is no triable issue of FACT. You don't have one of those, do
you? It does not prohibit waiver of a factual hearing. Your
arguments are pregnant with this issue and cry out for the rest of the
story. And there is nothing more naive than imagining a right to be
"listened to." You can lead a judge to bull****, but you can't make
him swallow it.

- Jon Beaver

Larry wrote:

[baby Bobby Beaver's mewling snipped]
And if Ken wins his case, does anyone who was ever denied bar admission then get to sue for damages and/or bar admission? Open the floodgates!

Every case turns on the facts. Colorado's bar admission law differs
from that of every other state, and as such, it is unlikely to have much
of an effect outside of Colorado. For instance, Texas allows denied
bar applicants the right to sue for admission in state court -- a remedy
which would have obviated the need for this suit in the first place.

I see nothing wrong with holding government officials liable for their
willful misconduct.

On Tue, 26 Aug 2003 13:36:12 GMT, Ken Smith <Ranger57@concentric.net>
wrote:
Jon Beaver wrote: On Mon, 25 Aug 2003 13:11:03 GMT, Ken Smith <Ranger57@concentric.net> wrote:Jon Beaver wrote:> On Sun, 24 Aug 2003 02:01:11 +0000 (UTC),> c.c.eiftj@SmithXvXXM.usenet.us.com (Rahul Dhesi) wrote:> >Jon Beaver <jbeaver@NO.com> writes:> >> >[ trying to essentially answer the questions: (a) If there is no> >judicial review, how do we verify that the "due process" requirement has> >been satisfied in any specific case? (b) And if there is no> >verification mechanism, then what exactly is the difference between "due> >process" and merely "process"? ]> >> >[ longish philosphical discourse omitted ]> >> >>I see no reason why a school> >>principal who witnesses a student's misconduct can't summarily suspend> >>the student for a day or so without a formal hearing by an "impartial"> >>tribunal, but I have argued in such a case (administrative mandamus to> >>correct his record), and it has been held, that he at least owes the> >>kid a chance to explain. But no court, no judge, no lawyers, no> >>courtroom, no impartial tribunal, and no appeal. Death penalty cases,> >>well, we know a more thorough "process of law" is "due."> >> >Jon is getting very close to the right answer. Here is the answer:> >> > If there is no independent oversight, then we can still assume that> > due process occurred, but we will not be sure. The more often and the> > greater the degree to which we observe this lack of independent> > oversight, the less confidence we will have that "due process"> > is actually occurring.>> Your question: "If there is no judicial review, how do we verify that> the "due process" requirement has been satisfied in any specific case? Carey v. Piphus. The deprivation of procedural due process is aseparate and distinct tort of constitutional magnitude -- and nominaldamages are available even if the outcome would not have changed.Even judges should be accountable for their misconduct. [snip]> The answer: The First Amendment. I don't see how this would fix the problem. [snip] It fixes Rahul's problem. He's trying to be cute again. That's just Rahul. Rahul likes to ask ambiguous questions so he can play the "Nuh uh, your wrong" game. He poses the purely philosophical question of how we "know" due process has been "satisfied" without someone to tell us. When I point out that it's only a philosophical question, he complains that I'M getting philosophical! When I answer the question I thought he was trying to ask, he complains that I didn't answer the question! If his answer, that we don't know, that we just have to trust, is the "right' answer to his question, then it was a philosophical question after all. But if all he's asking is how we know if the courts are treating our citizens fairly, the answer is open public proceedings What about detailed written opinions, and an adherence to the prin-ciple of stare decisis? When a judge writes that "Plaintiff's continuingattempts . . . are unavailing," he is taking the judicial equivalent of theFifth Amendment -- especially when he is disregarding an establishedprecedent of his own Circuit! But you don't seem to have a problemwith that, now do you?

No. Why should anybody have a "problem" with that? It's clear enough
to the rest of us what that means. It means you aren't fooling them
with your disguised appeal.
and the right to assemble, discuss, protest, and petition. The idea that it takes a paternalistic government "judicial" body to inform us when we are being treated unfairly comes from the wrong place. We protect ourselves from tyranny by informing ourselves of our rights and/or by asking someone among us who is informed -- like a lawyer. That's silly! If you can't do anything about it, they are mere tyrantsand you are nothing more than a serf. If you, as an individual citizen,cannot protect your rights as a matter of law, you do not have them.I mean, what are you going to do to a judge who goes off the reser-vation? Impeach him? In which lifetime?!?

Oh, now you want to change Rahul's question from "How do we know?" to
"What do we do about it?" Now, that's silly!
I don't even have the right to speak freely on issues of the day, freefrom the spectre of government reprisal for that speech! All you cansuggest is that I have no remedy at all -- except for the right of revo-lution. Rahul is asking the right question: What checks and balancesdo we have built into the system? And as a practical matter, youranswer is "None."

I applied for a license to practice medicine. They denied me without
a hearing!!!!!! Can they do that? Apparently you think they can't.
In fact, based on your arguments, I can sue them for violating my
civil rights. Did I ever go to medical school? That's irrelevant.
My right to a "trial type hearing" is "absolute," you say.
I hired who may be the best specialist lawyer in town. Nothing per-sonal, Jon, but the gentleman is way out of your league (as you wouldexpect when comparing a brain surgeon to a G.P.). Well, it didn't dome much good, now did it?

The important fact is that he's way out of YOUR league.


- Jon Beaver

none@nowhere.com (Larry) wrote:
In article <3f4a655b.8096193@news.sf.sbcglobal.net>, mag@camelot.org(Merlin) wrote: Well, at least Ken has given up the idea of getting a law license. So now, after the federal courts dismissed a similar action he wants to bring a 1983 tort action in STATE court against the CO SUPREME COURT Judges for denial of procedural due process on the grounds that the admission rules and procedures are (for some reason) unconstitutional on their face ? Do I have that right? Ok then, talking about face, I'm practicing keeping a straight face here, and its definitely becoming a workout. But even if the unbelievable happens and Ken wins and Colorado cannot deny a whacko a law license because of Kenny's 'magnificent obsession', what proof of any injury does Ken have? That the denial of a license drove him buggybumpers? I can hardly wait to see his laborious proof of the buggybumpers issue, which I'm personally willing to concede, yet I suspect the evidence will fully establish he had arrived at 'buggybumpers' long before the licensing decision. So what proof of injury? And further.... why wouldn't the members of the court be entitled to qualified immunity on an issue of previously undecided constitutional law that virtually all State C&F decisions violate due process? What about that? And while we're at this, what is the statute of limitations for personal injury in Colorado, anyway? Just askin. So what about all this stuff Kenny, do you think you've managed to meet the SOL, or are you SOL? Will they turn the buggybumpers issue around on you and have it bite you on the ***? Do you think the judges are ultimately immune? These are questions, huh?And if Ken wins his case, does anyone who was ever denied bar admissionthen get to sue for damages and/or bar admission? Open the floodgates!

Egad! I forgot about the evil floodgates! But you know perfectly
well that Republicans would never let that happen, Larry. At least,
lets agree to tell the kids that so they can sleep at night.

But remember that Jon suggested that if Ken were able to at
least _pretend_ he was sane enough to practice law Jon would
consider him fit. On reflection, I would accept that standard also.
(Don't worry, Ken also doesn't meet that standard. He needs help!)
Still, Jon has been successfully pretending for over thirty
years, so how hard could it be for the rest of us? Piece o'cake.

But, think of it.... under that standard the psych exam is
unnecessary, even irrelevant, although psychiatric testimony
might still be useful to help explain the lines between conduct
which assertive, aggressive, obsessive, and totally
banana-crackers.

The Colorado rule requiring a psych exam would then be
arbitrary and unconstitutional! What about them apples?

Anyway, if I have inadvertently given Ken a winning legal
argument, then I'm sorry and I suppose I'll be severely
punished in the next life, maybe even (woe is me) criticized!
Oh, well, I'll chance it.

-Merlin

Jon Beaver <jbeaver@NO.com> wrote:
On Tue, 26 Aug 2003 13:16:59 GMT, Ken Smith <Ranger57@concentric.net>wrote: The question is whether I was ever properly heard on the constitu-tionality of that order. The Hearing Panel Chair could hardly be animpartial trier of fact, insofar as members of the Board routinely ruleon each others' "motions," and the appearance of impropriety shouldbe obvious. A lower federal court wouldn't hear the matter by virtueof Younger abstention. A lower state court can't hear it, either. See,Grievance Cmte. And since the Board was an agent of the ColoradoSupreme Court, they can only review the matter in their role as super-visors of the process. IOW, there was no proper forum I could go toto challenge that order as a matter of right. All I could do was resist. But even if mere administrative review of the order by the ColoradoSupreme Court was sufficient to meet constitutional muster, the simplefact is that they did not properly consider my objections. After all, ifthey had in fact considered them, they would have remanded the mat-ter to the Board for further proceedings, either declaring the order tobe invalid, or requiring me to submit to the IME as a condition prece-dent to my receiving the Rule 201.10 hearing. Obviously, the "right tobe heard" means the right to at least be listened to.Constitutional due process doesn't require a "trial type hearing" ifthere is no triable issue of FACT. You don't have one of those, doyou? It does not prohibit waiver of a factual hearing. Yourarguments are pregnant with this issue and cry out for the rest of thestory. And there is nothing more naive than imagining a right to be"listened to." You can lead a judge to bull****, but you can't makehim swallow it.- Jon Beaver

I can't save him, you can't save him, Larry can't, David can't,
he can't save himself, except maybe for getting 'born again'
he's doomed.

He doesn't get it, he ain't gonna get it, he can't buy it, he can't
intimidate and threaten the courts into to giving it to him, and
even if he somehow got it, it wouldn't fit him anyway.

In any event, if he intended to martyr himself to the cause
of bringing down Bob Larson, at least he succeeded doing that.
Call it his 'consolation prize'.

-Merlin

In article <3F4B7338.D9AE4094@concentric.net>, Ken Smith
<Ranger57@concentric.net> wrote:
"Theodore A. Kaldis" wrote: Jon Beaver wrote: I see no reason why a school principal who witnesses a student's misconduct Like, say, smoking marijuana right outside the schoolhouse door. can't summarily suspend the student for a day or so (or 20) without a formal hearing by an "impartial" tribunal, [...] Neither do most Americans. (And neither would Ken, if he weren't trying to use this case to justify himself.) Sorry, guys. As I see it, even the guilty deserve their day in court.

You're not entitled to a day in court before being suspended from school.
Just like you're not entitled to a full, trial-type proceeding because
your application to practice law is denied.
It is remarkable that both Jon and Ted have joined the FoggytownFan Club!

In article <3F4BAE8C.C833B14B@concentric.net>, Ken Smith
<Ranger57@concentric.net> wrote:
Larry wrote: [baby Bobby Beaver's mewling snipped] And if Ken wins his case, does anyone who was ever denied bar admission then get to sue for damages and/or bar admission? Open the floodgates! Every case turns on the facts. Colorado's bar admission law differsfrom that of every other state, and as such, it is unlikely to have muchof an effect outside of Colorado. For instance, Texas allows deniedbar applicants the right to sue for admission in state court -- a remedywhich would have obviated the need for this suit in the first place. I see nothing wrong with holding government officials liable for theirwillful misconduct.

But you can't say "every case turns on the facts" if you're arguing the
statute is void for vagueness!

Ken Smith <Ranger57@concentric.net> wrote:
Larry wrote: Ken Smith <Ranger57@concentric.net> wrote: In point of fact, Colorado's C&F doesn't deny bar applications, and itsSupreme Court doesn't perform an appellate function. You seem to haveforgotten that. The DP safeguard of appellate review does not exist here. Ken, Jon has been telling you for months now that appellate review is NOT required under due process. I never said that it was. However, it is a safeguard which falls within theambit of due process. Duh!

That's a pretty stupid look on your face, Ken.
Making it a permanent fixture?
Your arguments were based on the premise that due process
necessarily required apellate review. You were called on it.
You lost, you look like a moron, that's settled so try to move on.
The point here is that the Colorado Supreme Court is the only entity that'makes the call'. If their procedures fall short of due process minima, theycan't be rescued (for purposes of judicial immunity) by resort to an appel-late court. Cf., In re Berkan.
No. Cf., In re Grey Poupon.
I had a right to be heard pursuant to Rule 201.10. I was denied that right.If I was denied that right illegally, it is a due process violation. Get it?

You have no due process right to be heard where you refuse to
comply with the admission process. Where the rules call for you
to submit to a mental status exam and you advise the comittee
to "take a long walk off a short pier" .... that is reasonably
regarded as a refusal to comply with admission procedures.
Get it?

When you declined to appeal the denial of license,
you waived any right to review the DECISION to deny you a
license, including challenging the sufficiency of the grounds
for requiring the mental status exam.
Got that?

As for injustice... you have not offered such a case and
as to YOU, no injustice is evident.
You were applying for a license to advise and represent others
in legal matters. You weren't a baby, but had supposedly been
trained to understand the legal significance of your choices.
Did you seriously imagine it would be one of those
deals where they just throw the whacko a license and
"caveate citizens; let the mareketplace decide"? It more
than begins to look like that's what you thought.

The Bar gave you a competence and mental status test of
their own device, Ken. I'm pretty sure they already knew
you were going to flunk but just wanted to prove it to the
rest of us. You obliged. So Whoooopeeedeeedo.

Any more questions? Alrighty then!
You have a nice day now, y'hear?

-Merlin

Larry wrote:
In article <3F4B5F5F.3504BC3D@concentric.net>, Ken Smith <Ranger57@concentric.net> wrote:This is a multi-part message in MIME format.--------------6FC03568761C6D1D8FD363E9Content-Type: text/plain; charset=us-asciiContent-Transfer-Encoding: 7bitJon Beaver wrote: But a complete absence of ANY opportunity to be heard on the issue of the student's culpability before a permanent suspension from school was the "deprivation of due process" in Carey v. Piphus. What was it in your case? As you know from Matthews v. Eldridge, the level of process due is afunction of the significance of the private interest that will be affected bythe official action, the risk of erroneous deprivation inherent in the proce-dures, and the assessment of the fiscal and administrative burdens thatimproved procedural requirements would create. Ummm, no. Matthews says you're entitled to due process for deprivation of a property or liberty interest. We've been through this, Ken. Jon and I have property interests in our law licenses, so we're afforded more process in an attempt to disbar us than a bar applicant is affored in their quest to obtain a law license. See Perry v. Sindermann and Roth v. Bd. of Regents.

And I say you're wrong, because SCOTUS says so. If I don't have
a liberty or property interest, I'm not *entitled* to *any* process.
Don't you remember this discussion? I asked you whether you thought the right to be granted a law license was a property or liberty interest, and you sputtered for awhile before conceding that it was neither.

I never conceded anything, liar. I don't know whether it is a liberty or
a property interest, but the fact remains that it is a protected interest --
because SCOTUS says so. If I didn't have a liberty or property interest,
there would be no federal issue *at all* -- rather by definition.
(After a bunch of ranting about how you're a second-class citizen) We know, for instance, that you were interviewed, that your lawyer was present, that they discussed the reasons why you might be denied, that you were given an opportunity to present evidence of your mental fitness conditioned only on you permitting them to have their own IME conducted, you were permitted to make written objection, you filed extensive briefs. On what issue were you deprived of a right to be heard? As an applicant for professional licensure, I am entitled to what thecase law says I am entitled to. If I don't get it, it is a tort of constitu-tional magnitude. Right, but you're not entitled to what YOUR INTERPRETATION of the case law says you're entitled to. You're entitled to what the SUpreme Court's interpretation of the case law says you're entitled to.

No, I am entitled to what an independent court's interpretation of the
case law says I am entitled to. Even the Colorado Supreme Court is
answerable to the federal and state constitutions, aren't they? (A "yes"
or "no" answer will do on this one, Lar.)
The central question in this case was whether they had a legal rightto *require* me to undergo an IME as a condition precedent to myreceiving the full, fair, trial-type hearing I was entitled to, pursuant tonot only the DP clause but Colorado statute. If the answer is yes, Ilose. If the answer is no, I win. Bingo. So convince us that they're not allowed to impose an IME as a step in the application process (note, it's not a "condition precedent," its part of the process)

They are only permitted to impose an IME under certain specified
circumstances. If they don't meet them, they can't require it. Period.
If a government entity can't be forced to obey the law, we might as
well not bother even *having* laws....
A summary of my avenues of attack on that order are as follows:1) The Board didn't have the standing to challenge my admission, asRule 201.9(5) is jurisdictional. Shaball; Swift v. Smith. Who does, then?

They did -- until *they* waived it via inaction. The alternative is to let
them take as long as they damn well pleased -- not just thirty days, but
thirty years. As Colorado courts have said that that is unconstitutional,
thirty days means thirty days, and shall means shall.
2) The "mental fitness" requirement is void for vagueness. Kolender,LDS v. Healy. We've been through this. There is some conduct - even you admit it as to some examples (cocaine users) - that renders someone mentally unfit to practice law, right? So it's definable, even if its not defined.

Whether there is definable conduct is not the issue -- if Colorado
can't be bothered to define it, it is Colorado's problem. See, e.g.,
LDS, Inc. v. Healy.
3) The IME order constitutes retaliation for my protected expression.Tattered Cover; Worrell v. Henry. Prove it. This is your biggest problem. PROVE THIS POINT.

When I have time. I'll be doing that in the motion for a show cause
order.
4) "Good cause" for the IME order was not shown. Schlagenhauf. Do they have to?

Yes. Did you read Schlagenhauf? Tattered Cover?
5) The Board repeatedly and flagrantly disregarded its own enablingstatute and procedures. Thalheim. Repeatedly? Flagrantly? By ordering an IME?

The Bar Committee was required by statute to develop guidelines for
determining whether an inquiry panel is to be convened. They failed to
do so.

The Executive Director was supposed to designate a Bar Committee
member to review his decision to convene an inquiry panel. He failed
to do so.

The Inquiry Panel was required to reduce its findings to writing within
thirty days after reaching its probable cause determination. It failed to
do so, and that failure was jurisdictional. Shaball.

The Inquiry Panel was supposed to set forth their findings with parti-
cularity, and I was supposed to challenge those findings, as a condition
precedent to placing my mental fitness into controversy. They failed to
do so, and that failure was jurisdictional.

The Board does not have statutory authority to dictate which four of
the thousands of licensed psychiatrists and psychologists are qualified
to perform an IME, and as such, had no power to dictate who could
and could not perform such an examination. [Hint: consider the legal
hurdles inherent in allowing the Court to create an exclusive franchise
without competitive examination.]
Have they ever imposed the IME requirement on another applicant?

Under facts reasonably similar to this case? I don't know, because all
of that is deliberately kept under wraps -- except in one case of which I
am aware, wherein the applicant defied the order, and was given a Rule
201.10 hearing anyway.
As you know, there are more, but this will do for now. The question is whether I was ever properly heard on the constitu-tionality of that order. The Hearing Panel Chair could hardly be animpartial trier of fact, insofar as members of the Board routinely ruleon each others' "motions," and the appearance of impropriety shouldbe obvious. A lower federal court wouldn't hear the matter by virtueof Younger abstention. A lower state court can't hear it, either. See,Grievance Cmte. And since the Board was an agent of the ColoradoSupreme Court, they can only review the matter in their role as super-visors of the process. IOW, there was no proper forum I could go toto challenge that order as a matter of right. All I could do was resist. Did you try,

I was represented by competent counsel, and one would presume that
his failure to seek an appropriate remedy, if one was indeed available, is
malpractice....
or did you throw up your hands and proclaim "I'm screwed" and beg for the sympathy you're now seeking as a martyr? But even if mere administrative review of the order by the ColoradoSupreme Court was sufficient to meet constitutional muster, the simplefact is that they did not properly consider my objections. After all, ifthey had in fact considered them, they would have remanded the mat-ter to the Board for further proceedings, either declaring the order tobe invalid, or requiring me to submit to the IME as a condition prece-dent to my receiving the Rule 201.10 hearing. Obviously, the "right tobe heard" means the right to at least be listened to. The right to be listened to, yes. But not the right to tell them what to do. This whole paragraph says "If they listen to my argument, I'll win!"

That's inane. If they had properly reviewed the matter and found my
objections invalid, they could have remanded with the direction that I
either submit to their IME or forfeit my right to a Rule 201.10 hearing.
If they found them valid, they could have remanded with the direction
that I was not obliged to submit to the IME. Either way, I would have
had at least that choice: the choice the Colorado Constitution demands
that I have.

Larry wrote:
In article <3F4BAE8C.C833B14B@concentric.net>, Ken Smith <Ranger57@concentric.net> wrote:Larry wrote: [baby Bobby Beaver's mewling snipped] And if Ken wins his case, does anyone who was ever denied bar admission then get to sue for damages and/or bar admission? Open the floodgates! Every case turns on the facts. Colorado's bar admission law differsfrom that of every other state, and as such, it is unlikely to have muchof an effect outside of Colorado. For instance, Texas allows deniedbar applicants the right to sue for admission in state court -- a remedywhich would have obviated the need for this suit in the first place. I see nothing wrong with holding government officials liable for theirwillful misconduct. But you can't say "every case turns on the facts" if you're arguing the statute is void for vagueness!

False dilemma. If a statute is void for vagueness, it wouldn't necessarily
affect states having rules which meet constitutional muster....

Larry wrote:
In article <3F4B7338.D9AE4094@concentric.net>, Ken Smith <Ranger57@concentric.net> wrote:"Theodore A. Kaldis" wrote: Jon Beaver wrote: > I see no reason why a school principal who witnesses a student's misconduct Like, say, smoking marijuana right outside the schoolhouse door. > can't summarily suspend the student for a day or so (or 20) > without a formal hearing by an "impartial" tribunal, [...] Neither do most Americans. (And neither would Ken, if he weren't trying to use this case to justify himself.) Sorry, guys. As I see it, even the guilty deserve their day in court. You're not entitled to a day in court before being suspended from school. Just like you're not entitled to a full, trial-type proceeding because your application to practice law is denied.

I am entitled to a full, fair, trial-type proceeding in which to plead my
case for admission to practice law -- because SCOTUS said so. If I
am not, then Larry Smith is right: admission to the state bar is purely a
matter of grace.

If that is the answer, you can at least admit it, and cut this crap about
the rule of law.

On Mon, 01 Sep 2003 13:25:46 GMT, Ken Smith <Ranger57@concentric.net>
wrote:
Larry wrote: The right to be listened to, yes. But not the right to tell them what to do. This whole paragraph says "If they listen to my argument, I'll win!" That's inane. If they had properly reviewed the matter and found myobjections invalid, they could have remanded with the direction that Ieither submit to their IME or forfeit my right to a Rule 201.10 hearing.If they found them valid, they could have remanded with the directionthat I was not obliged to submit to the IME. Either way, I would havehad at least that choice: the choice the Colorado Constitution demandsthat I have.


Why wouldn't a "proper review" of the "matter" of your "objections"
result in a decision on the real "matter" before them -- your
application to practice law? That would, of course, necessarily be a
ruling on your "objections." Why wouldn't we be required to conclude
that their denial necessarily implied a ruling that your "objections"
had no merit, or were irrelevant, or that you exercised that "choice"
when you told them to "take a long walk off a short pier?" Are you
saying the Colorado Constitution gives you a right to "choose" to tell
them that AGAIN?

- Jon Beaver

On Mon, 01 Sep 2003 13:26:02 GMT, Ken Smith <Ranger57@concentric.net>
wrote:
Larry wrote: In article <3F4BAE8C.C833B14B@concentric.net>, Ken Smith <Ranger57@concentric.net> wrote:Larry wrote: [baby Bobby Beaver's mewling snipped]> And if Ken wins his case, does anyone who was ever denied bar admission> then get to sue for damages and/or bar admission? Open the floodgates! Every case turns on the facts. Colorado's bar admission law differsfrom that of every other state, and as such, it is unlikely to have muchof an effect outside of Colorado. For instance, Texas allows deniedbar applicants the right to sue for admission in state court -- a remedywhich would have obviated the need for this suit in the first place. I see nothing wrong with holding government officials liable for theirwillful misconduct. But you can't say "every case turns on the facts" if you're arguing the statute is void for vagueness! False dilemma. If a statute is void for vagueness, it wouldn't necessarilyaffect states having rules which meet constitutional muster....

I think Larry meant "void on it's face" not "void for vagueness." In
that case it's not a false dilemma. "On it's face" MEANS "without
regard to extrinsic facts," doesn't it?

- Jon Beaver

Jon Beaver wrote:
Ken Smith wrote: Larry wrote: Ken Smith wrote:> Larry wrote:
>> And if Ken wins his case, does anyone who was ever denied bar admission>> then get to sue for damages and/or bar admission? Open the floodgates!
> Every case turns on the facts. Colorado's bar admission law differs> from that of every other state, and as such, it is unlikely to have much> of an effect outside of Colorado. For instance, Texas allows denied> bar applicants the right to sue for admission in state court -- a remedy> which would have obviated the need for this suit in the first place.
> I see nothing wrong with holding government officials liable for their> willful misconduct.
But you can't say "every case turns on the facts" if you're arguing the statute is void for vagueness!
False dilemma. If a statute is void for vagueness, it wouldn't necessarily affect states having rules which meet constitutional muster ...
I think Larry meant "void on it's face" not "void for vagueness." In that case it's not a false dilemma. "On it's face" MEANS "without regard to extrinsic facts," doesn't it?

Ken doesn't know. That is, until you just defined it for him. And he should
thank you for it.
--
Theodore A. Kaldis
kaldis@worldnet.att.net

On Mon, 01 Sep 2003 13:28:27 GMT, Ken Smith <Ranger57@concentric.net>
wrote:
Larry wrote: In article <3F4B7338.D9AE4094@concentric.net>, Ken Smith <Ranger57@concentric.net> wrote:"Theodore A. Kaldis" wrote:> Jon Beaver wrote:>> > I see no reason why a school principal who witnesses a student's misconduct>> Like, say, smoking marijuana right outside the schoolhouse door.>> > can't summarily suspend the student for a day or so>> (or 20)>> > without a formal hearing by an "impartial" tribunal, [...]>> Neither do most Americans. (And neither would Ken, if he weren't trying to> use this case to justify himself.) Sorry, guys. As I see it, even the guilty deserve their day in court. You're not entitled to a day in court before being suspended from school. Just like you're not entitled to a full, trial-type proceeding because your application to practice law is denied. I am entitled to a full, fair, trial-type proceeding in which to plead mycase for admission to practice law -- because SCOTUS said so.

Absolute bull****! Fact/Law. ****/Shinola. "Trial-type proceedings"
are to resolve disputes of FACT, not for "pleading" anything! You can
do all your "pleading" in written briefs. No court has ever said
otherwise.
If Iam not, then Larry Smith is right: admission to the state bar is purely amatter of grace. If that is the answer, you can at least admit it, and cut this crap aboutthe rule of law.

Why would he stoop to answer an argumentative question -- one premised
on the utterly absurd proposition that the "rule of law" requires the
Colorado Supreme Court to be personally insulted by you?

- Jon Beaver

Jon Beaver wrote:
Ken Smith wrote:
I am entitled to a full, fair, trial-type proceeding in which to plead my case for admission to practice law -- because SCOTUS said so.
Absolute bull****! Fact/Law. ****/Shinola. "Trial-type proceedings" are to resolve disputes of FACT, not for "pleading" anything! You can do all your "pleading" in written briefs. No court has ever said otherwise.

So then Ken disputes the fact that he is crazy as a sh*thouse rat and needs
to pass a psychological exam before he can be given a licence to practise
law.
--
Theodore A. Kaldis
kaldis@worldnet.att.net

Jon Beaver wrote:
On Tue, 26 Aug 2003 13:16:59 GMT, Ken Smith <Ranger57@concentric.net> wrote: The question is whether I was ever properly heard on the constitu-tionality of that order. The Hearing Panel Chair could hardly be animpartial trier of fact, insofar as members of the Board routinely ruleon each others' "motions," and the appearance of impropriety shouldbe obvious. A lower federal court wouldn't hear the matter by virtueof Younger abstention. A lower state court can't hear it, either. See,Grievance Cmte. And since the Board was an agent of the ColoradoSupreme Court, they can only review the matter in their role as super-visors of the process. IOW, there was no proper forum I could go toto challenge that order as a matter of right. All I could do was resist. But even if mere administrative review of the order by the ColoradoSupreme Court was sufficient to meet constitutional muster, the simplefact is that they did not properly consider my objections. After all, ifthey had in fact considered them, they would have remanded the mat-ter to the Board for further proceedings, either declaring the order tobe invalid, or requiring me to submit to the IME as a condition prece-dent to my receiving the Rule 201.10 hearing. Obviously, the "right tobe heard" means the right to at least be listened to. Constitutional due process doesn't require a "trial type hearing" if there is no triable issue of FACT. You don't have one of those, do you?

Actually, I do. Rather by definition....

Jon Beaver wrote:
On Mon, 01 Sep 2003 13:25:46 GMT, Ken Smith <Ranger57@concentric.net> wrote:Larry wrote: The right to be listened to, yes. But not the right to tell them what to do. This whole paragraph says "If they listen to my argument, I'll win!" That's inane. If they had properly reviewed the matter and found myobjections invalid, they could have remanded with the direction that Ieither submit to their IME or forfeit my right to a Rule 201.10 hearing.If they found them valid, they could have remanded with the directionthat I was not obliged to submit to the IME. Either way, I would havehad at least that choice: the choice the Colorado Constitution demandsthat I have. Why wouldn't a "proper review" of the "matter" of your "objections" result in a decision on the real "matter" before them -- your application to practice law?

Because the law logically requires it? You shouldn't have to make the
choice between abandoning your constitutional right to privacy and aban-
doning the right to practice your chosen profession that you have earned.

On Mon, 01 Sep 2003 20:06:20 GMT, Ken Smith <Ranger57@concentric.net>
wrote:
Jon Beaver wrote: On Mon, 01 Sep 2003 13:28:27 GMT, Ken Smith <Ranger57@concentric.net> wrote:
I am entitled to a full, fair, trial-type proceeding in which to plead mycase for admission to practice law -- because SCOTUS said so. Absolute bull****! Fact/Law. ****/Shinola. "Trial-type proceedings" are to resolve disputes of FACT, And as the case with virtually every bar admission proceeding, disputesof fact necessarily have to be resolved.

Except that you aren't prepared to say what facts you dispute! On the
contrary, you keep insisting that the facts are irrelevant because
your arguing that the C&F standard for admission illegal "on it's
face!" Going in circles circles.

- Jon Beaver

On Mon, 01 Sep 2003 20:06:44 GMT, Ken Smith <Ranger57@concentric.net>
wrote:

If I had a due process right to a trial-type hearing -- and bar admissiondecisions necessarily turn on the facts -- and was wrongfully denied it, itis a PDP violation. Carey says that that is a separate tort, irrespective ofwhether there are actual damages.

I understand that you aren't a lawyer, and this is your own case, so I
can understand why you are too close to see the obvious. Look back at
your posts. Tell me if you have ever made a contention that there
were any facts relied upon by the bar examiners which you contest.

- Jon Beaver

In article <3F53A85D.1B87BFF@concentric.net>, Ken Smith
<Ranger57@concentric.net> wrote:
Jon Beaver wrote: Absolute bull****! Fact/Law. ****/Shinola. "Trial-type proceedings" are to resolve disputes of FACT, And as the case with virtually every bar admission proceeding, disputesof fact necessarily have to be resolved.

Absolutely not true.

You and the bar committee