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Must convictions for attempting to influence a public servant be vacated when they are based not on a true threat of violence, but on constitutionally protected statements in pro se pleadings?
That is one of the three issues presented to the Colorado Court of Appeals in the matter of Rick Stanley of Denver, gun rights activist and Libertarian candidate for the U.S. Senate.
Stanley is currently free on $80,000 appeal bond after being found guilty in June, 2004 of two counts in two separate cases of attempting to influence a public servant, those "servants" being Charles Rose, a judge of the Thornton Municipal Court and Donald Marshall Jr. an Adams County District Court judge. The cases were consolidated for trial.
Stanley was found guilty of two counts of attempting to influence a public servant after jury trial before Senior Judge Joseph Quinn, a retired justice of the Colorado Supreme Court who was assigned to adjudicate the Stanley case after other Adams County judges were disqualified.
Stanley was sentenced in September, 2004, to two three year terms in state prison to be served consecutively for a total of six years as well as a fine of $10,000. He was also ordered to pay restitution of $8,249.64.
The appeal, filed by Norman R. Mueller and Rachel A. Bellis of Haddon, Morgan, Mueller, Jordan, Mackey and Foreman of Denver, also raises the crucial issues if reversal of convictions for attempting to influence a public servant is required when the jury is incorrectly instructed on the definition of "threat" which is a critical element of the offense, and on related First Amendment issues.
More importantly, the appeal raises the oath of office issue and asserts that the proceedings in the Stanley case were coram non judice, which renders Stanley's convictions void because the unrebutted record establishes that Justice Quinn had not executed the oath of office required by his senior judge contract and the Colorado Constitution before presiding in Stanley's case.
At the sentencing hearing, Stanley had challenged the jurisdiction of the court because there was no executed oath of office for Quinn on file with the Secretary of State. Although no evidence contrary to Stanley's supporting evidence was offered, Quinn denied Stanley's motion and proceeded to sentencing.
Stanley is an ardent proponent of the second amendment right to bear arms, a right which he believes is under serious and prolonged attack in this country. In 2002, while campaigning for the U.S. Senate, Mr. Stanley exercised his right to bear arms and was charged with violating a Thornton municipal ordinance prohibiting the carrying of a weapon. He subsequently was convicted in a trial to the court in which he represented himself. Still appearing pro se, he unsuccessfully appealed to the Adams County District Court. When he was ordered to appear to serve the 90 day jail sentence which had been imposed by the municipal court, Stanley did not appear but instead filed in both the Thornton Municipal Court and the Adams County District Court a pleading entitled "Notice and Order" demanding that his conviction be overturned.
In his pro se pleadings, Stanley argued that failure to overturn his unconstitutional conviction would result in the judges being subject to treason charges for failure to uphold their oaths of office to defend the Constitution. In turn, Stanley argued, a treason charge would result in the issuance of a "mutual defense pact militia warrant" for the arrest of the judges. Stanley's conviction for two counts of attempt to influence a public servant stem from the filing of these two pleadings.
The facts surrounding the Thornton case involve that while Stanley was campaigning as the libertarian candidate for the Senate in the 2002 election, he openly wore a pistol and holster during a campaign appearance in Thornton. He was eventually arrested and charged with violating a municipal ordinance prohibiting the
carrying of a dangerous weapon.
Stanley represented himself in the Thornton Municipal Court where Judge
Charles Rose presided. At the continued arraignment on Nov. 6, 2002, Stanley attempted to orally challenge the constitutionality of the Thornton
ordinance. Judge Rose instructed Stanley to file a written motion and continued the arraignment. However, no due date was set for the filing of the motion. Stanley expressed his intention to continue representing himself.
He appeared on Dec. 3, 2002, having filed his motion the previous day. Even though no due date had been set for the filing of motions, Judge Rose sarcastically rebuked Mr. Stanley for the "eleventh hour" filing and repeatedly chastised him for "wasting" the court's time. The court informed Stanley he was going to require him to enter a plea "so you don't jerk us around anymore" and accused Stanley of simply trying to get a continuance. When Stanley said he wasn't seeking a continuance, the court accused him of playing "politics" and reminded him that the election was over. The court then set the motions hearing and trial on the same day.
Throughout Judge Rose's intemperate remarks, Stanley remained polite and
respectful, a fact Judge Rose conceded during his trial testimony. Stanley appeared for hearing and trial on Jan. 29, 2003. The court first denied Stanley's motion. A brief trial to the court followed and Stanley was found guilty of violating the Thornton
municipal ordinance. The court immediately sentenced Stanley to 90 days in jail and a $500 fine.
Stanley appealed his conviction to the Adams County District Court and the case was assigned to Judge Donald Marshall. Stanley continued to represent himself. There were no court appearances and the appeal was decided on the briefs. On Aug. 26, 2003, Judge Marshall issued an order affirming Mr. Stanley's conviction. Stanley had been at liberty on an appeal bond, and he was ordered to surrender to begin serving his jail sentence on Oct. 15, 2003.
Stanley did not appear to begin serving his sentence on that date. Instead, he prepared and signed a pro se pleading captioned "Notice and Order" which his secretary delivered and filed with the Thornton Municipal Court, obtaining a file stamped copy. The secretary also mailed another appropriately captioned Notice and Order which was identical in content to the Adams County District Court. Both Judge Rose and Judge Marshall eventually reviewed Stanley's pleading and both testified that the pleading caused them concern for their personal safety although neither initiated a call to law enforcement.
The pleadings captioned Notice and Order filed by Stanley reiterated his
argument that the Thornton municipal code was unconstitutional. Stanley
posited that Senate Bill 25 which had been signed into law on March 18, 2003, had affirmed the constitutional right to bear arms and had preempted the Thornton ordinance, thus rendering his conviction invalid.
Stanley demanded that his conviction be overturned and argued that the
failure to do so would constitute an act of "treason" on the part of the judges for failing to uphold their oaths to defend the constitution. Stanley additionally argued that the act of treason would lead to a "mutual defense pact militia" warrant for the arrest of the judges. Additionally, Stanley demanded the return of his bond and his seized weapon and bullets.
For filing these pleadings, Stanley was convicted of two counts of
attempt to influence a public servant.
The appeal argues that the First Amendment protects the person who makes a threatening statement, a statement that threatens violence, unless the statement is a "true threat." The U.S. Supreme Court recently defined "true threat" as
a statement where the speaker has a subjective intent to communicate an
intention to commit an act of unlawful violence to a particular individual
or group. Statements that, viewed in context, are not "true threats" are
absolutely protected under the constitution.
The pro se pleading filed by Stanley contesting the constitutionality of
his conviction on a municipal weapons charge conveyed no "true threat." Yet
Stanley was charged and convicted with attempting to influence a public official by means of a threat of violence solely because the two judges who received the pleading perceived Stanley's rhetoric as threatening.
Application of section 18-8-306 to a statement that is not a "true threat"
punishes protected speech and renders the statute unconstitutionally
overbroad under the First Amendment. If the statute reaches only "true
threats," then the evidence is constitutionally insufficient to support
Stanley's convictions and they must be vacated, the appeal brief argues.
The jury instructions incorrectly explained the First Amendment/"true
threat" issues that (as the prosecution itself conceded) framed this case.
The jury was not instructed to consider either the context in which Stanley's statements were made or whether he subjectively intended his statements to be taken as a threat of violence, two keys to the First Amendment analysis of "true threats." Rather, the jury was instructed that any "threat of violence" was unprotected by the First Amendment, both an incorrect statement of law and a conclusive presumption relieving the prosecution of its burden of proof on a critical element of intent. These plain errors require the reversal of Stanley's convictions, the appeal argues.
Finally, the appeal asserts, there was a jurisdictional defect in the trial of this case which renders Stanley's convictions void. Justice Quinn was not qualified to
act as a judge because he did not execute the oath of office required by both the constitution and his agreement to return to temporary judicial service as a senior judge. He therefore did not exercise the jurisdiction of the district court when he heard Stanley's case.
The appeal brief argues that Stanley's conviction must be vacated because his convictions for attempting to influence a public servant are based on constitutionally protected speech and to apply the section of law used to Stanley's case renders the statute unconstitutionally overbroad as applied and the evidence in support of the convictions insufficient as a matter of law.
Section 18-8-306, attempt to influence a public servant, was found to be
facially constitutional in People v. Janousek, 871 P.2d 1189 (Colo. 1994).
However, as the court recognized, application of the statute may still run
afoul of constitutional protections. This is such a case. The context
of this case reveals Stanley is being punished not for a true threat,
but for the constitutionally protected use of political rhetoric.[6]
The offense of attempting to influence a public servant by unlawful means is
defined as follows:
Any person who attempts to influence any public servant by means of deceit
or by threat of violence or economic reprisal against any person or
property, with the intent thereby to alter or affect the public servant's
decision, vote, opinion, or action concerning any matter which is to be
considered or performed by him or the agency or body of which he is a member
commits a class four felony.
The purpose of the statute is to protect public servants from undue influence or intimidation by means of deceit or by threat of violence or economic reprisal.
The appeal brief argues that Stanley was not convicted for any action he took. Rather, the statute was applied in this case to prohibit speech, specifically expression
contained in a pro se pleading filed with two different courts. When a
statute such as this one criminalizes a form of pure speech, it "must be
interpreted with the commands of the First Amendment clearly in mind. What
is a threat must be distinguished from what is constitutionally protected
speech (the First Amendment does not permit a state to forbid advocacy of use of force or of law violation except where such advocacy is directed to inciting imminent lawless action and is likely to incite such action, but does permit a state to ban "true
threats.").
The First Amendment does not protect a so-called "true threat." 'True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals."
It is crucial to analyze the context of the remarks the State seeks to punish as criminal because of the "profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government or public officials.
Threat of violence is not defined in the statute at issue here. However,
in other contexts, the Colorado Supreme Court had defined threat to mean a
"statement of purpose or intent to cause injury or harm to the person,
property or rights of another, by the commission of an unlawful act."
Here, of course, the definition is even more narrow since the threat must be
one "of violence." Thus, the prosecution must prove beyond a reasonable
doubt that the defendant expressed an intention or purpose to inflict harm
or injury to another's person or property through an unlawful act of
violence. In addition, of course, the threat must be a true threat, not the
mere use of threatening language.
Stanley's pro se pleadings do not contain a true threat of violence, the appeal argues. Rather, Mr. Stanley engaged in political hyperbole in accusing the two
judges of treason for their respective decisions convicting him of violating
the Thornton municipal ordinance and affirming the conviction. That
statement conveys Stanley's strongly held opinion that his Thornton
conviction was unconstitutional and that any court which would convict him
under the circumstances of his case would be acting in violation of the
judge's oath to uphold the Constitution. It is a coarse, impolite and imprudent way to argue that a court's decision is unconstitutional, but it is not a true threat of violence.
Similarly, Mr. Stanley's claim that a "mutual defense pact militia" warrant
would be issued for the arrest of the judges is a prediction of political
theater, not a true threat of violence. Stanley' prognostication was
not a threat he would take any action. It was a metaphorical statement that
the judges, in Stanley's opinion, should be held accountable by the
public-which has the right to vote on retention of judges-for what he viewed
as their unconstitutional rulings.
Criticism of judges is protected by the First Amendment. As the Supreme
Court recognized in In Re Green, 11 P.3d 1078, 1085 (Colo. 2000), that
protection serves the principal purpose of the First Amendment:
"safeguarding public discussion of governmental affairs." In refusing to
discipline an attorney for strong criticism of a judge, the court
acknowledges that "restrictions on attorney speech burdens not only the
attorney's right to criticize judges, but also hinders the public's access
to the class of people in the best position to comment on the functioning of
the judicial system." Id. Pro se litigants such as Stanley share an
equal right to be critical and can speak from a unique perspective. Id.
(attorney cannot be disciplined for calling a judge "racist and bigot" with
a "bent of mind" and writing to the judge "merely sitting on this powder keg
will not prevent it from exploding.").
Comparisons of Stanley's speech with the communication at issue in
case law confirms that Stanley's words were constitutionally
protected.
The additional contextual factor which demonstrates that Stanley's
speech was protected is that the comments were made in pleadings filed by a
pro se litigant attempting to forcefully, albeit crudely, make his point.
Statements made during criminal and civil proceedings are absolutely
privileged if they are relevant to the proceedings, even if the statements
are defamatory.
While a "true threat" will not become privileged simply because it is made
in a pleading, the forum in which an expression is made is nevertheless an
important factor in the analysis of context to determine whether the First
Amendment protects the expression. The additional crucial factor here is
that the speech was engaged in by a pro se litigant exercising his
constitutional right to represent himself. U.S.Const. Amend VI. Those
additional factors confirm the conclusion that flows from an analysis of the
statements themselves. Stanley's statements were constitutionally
protected. Criminalizing those statements renders application of § 18-8-306
unconstitutionally overbroad and this Court "should deem" the prosecution
invalid.
The appeal also argues that the jury instructions were constitutionally defective and the convictions must be reversed.
The Colorado Supreme Court recently determined that erroneous jury
instructions must be reviewed not under the constitutional harmless error
standard traditionally employed in Colorado, but under the plain error
standard developed by the United States Supreme Court to address errors not
preserved by objection as required by federal law.
The United States and Colorado Constitutions guarantee a criminal defendant
both the right to have a jury decide his case and a right to have the
prosecutor prove to that jury, beyond a reasonable doubt, every element of
the charged offense. To preserve these guarantees, the trial court is required to properly instruct the jury on each and every
element of the crime. The jury was not properly instructed here, the appeal argues.
Perhaps the most important point of the appeal, one that will be watched nationwide, is that Stanley's convictions are void because Justice Quinn had not executed the oath of office required by his senior judge contract and the Constitution. He was not qualified to serve as judge and he proceeded without jurisdiction.
The portion of Stanley's appeal dealing with the oath of office issue is as follows:
"One who is not a judge, though he may at one time have been a judge, does
not possess the power and authority to act as a judge." Olmstead v.
District Court, 157 Colo. 326, 331, 403 P.2d 442, 444 (1965). Judicial
power and authority can be delegated to a former judge or justice, however.
The Chief Justice of the Colorado Supreme Court is authorized under the
constitution to appoint a qualified retired judge or justice "temporarily to
perform judicial duties in any court." Colo. Const. Art. VI, sec. 5(3).
These temporary appointments must be made in writing. § 24-51-1105,
C.R.S.[11] Thereafter, when the retired judge is assigned to serve in a
particular court, he or she can exercise that court's jurisdiction. People
v. Jachnik, 116 P.3d 1276, 1277 (Colo.App. 2005) ("Courts, not judges, are
vested with jurisdiction.").
"Jurisdiction does not attach unless the appointment and assignment meets
every statutory and constitutional requirement; if every requirement has not
been met, all of the court proceedings are coram non judice. E.g.,
Olmstead, 157 Colo. at 331, 403 P.2d at 444 (district court judge whose term
has expired no longer possesses the authority to act as a judge, and his
orders are a nullity); Merchants Mortgage & Trust Corp. v. Jenkins, 659 P.2d
690, 692 (Colo. 1983) (judgment entered by former district court judge was
void when neither Supreme Court nor Chief Justice had authorized former
district court judge to render decision after his appointment to Court of
Appeals); People v. Torkelson, 22 P.3d at 560, 564 (Colo.App. 2000) (absent
the written order of appointment that was required by chief judge's standing
order, county court judge was not properly appointed to act as district
court judge, and that judge's actions in the district court case were void);
Jachnik, 116 P.3d at 1277-78 (where chief judge's order authorized county
court judges to preside only over felony pleas and sentencing hearings,
county court judge was without authority to preside over defendant's felony
jury trial and conviction is void).
"Justice Quinn did not invoke the district court's jurisdiction when he took
on Mr. Stanley's case. Before he was assigned to the district court,
Justice Quinn had failed to complete and file the written agreement for
temporary appointment. Specifically, he did not execute and file with the
Secretary of State the oath of office demanded by both the constitution and
the terms of his agreement to serve. Accordingly, Mr. Stanley's convictions
are void.
"Before he was sentenced, Stanley moved the court to dismiss the case for
want of district court jurisdiction. He supported his motion with an affidavit in which he averred that Justice Quinn, serving as a senior judge, had failed to execute a renewed contract and oath of office following the expiration of his previous three-year term on Jan.11, 2000.
"Stanley attached to the affidavit true and complete certified copies of
what he attested were the only "pertinent" records on file addressing
Justice Quinn's service:
The January 15, 1997 cover letter from the Office of the State Court Administrator indicating that Justice Quinn had begun participating in the Senior Judge Program on Jan. 12, 1993, and had executed a three-year renewal contract on January 12, 1997. Attached to this letter was Justice Quinn's Senior Judge's oath of office dated Jan. 11, 1993, witnessed by then-Chief Justice William Erickson.
"The signed Jan. 12, 1997 three-year contract. The
contract contains a provision stating that "the Judge agrees to execute the
attached oath of office." Attached to the executed contract was Justice
Quinn's Senior Judge oath of office dated Jan. 14, 1997, witnessed by
then-Chief Justice Anthony Vollack.
"Justice Quinn responded directly to Stanley's allegations and implicitly
denied his motion, asserting:
"I would state that I did execute an oath of office, and I believe that was
witnessed by Judge McMullen in the Denver District Court. And that was
executed upon the expiration of my last term as a Senior Judge. So, that
would have been 2000-believe 2002, which is still in effect."
"The district attorney offered nothing to oppose or respond to Stanley's
motion and added nothing to Justice Quinn's comments. Justice Quinn then
proceeded to sentence Stanley to a six year term and a $10,000 fine.
"Stanley's motion directly challenged the court's jurisdiction to act in
his case. Whether a judge was properly appointed to act as district court
judge in a particular case presents a jurisdictional question. It was therefore incumbent on the State to prove that Justice Quinn's appointment to hear this matter was proper and that the district court's jurisdiction was certain. "[I]f the court's jurisdiction is put at issue, the burden is on the People to show that the court, whether district or county, has jurisdiction to hear the case."
"The People opted to do nothing. They could have-and should have-sought a
recess either to document Justice Quinn's recollection or to refute Mr.
Stanley's averments and evidence. Instead, they stood silent and let
Justice Quinn make a record describing his recollection of the relevant
jurisdictional "facts."
"The presiding judge is not competent, however, to offer evidence of
jurisdictional facts, or any other facts. Rule 605 of the Colorado Rules of
Evidence, titled "Competency of Judge as Witness," states that "[t]he judge
presiding at the trial may not testify in that trial as a witness. No
objection need be made in order to preserve the point." Id.
"The record underlying Stanley's jurisdictional claim thus stands
unrebutted: Justice Quinn did not execute a renewed oath of office after
his 1997 Senior Judge's contract expired.
"Justice Quinn acted without jurisdiction because he did not execute the oath of office required by both the Constitution and his agreement to return to temporary judicial service.
"Article VI, sec. 5, ¶(3)(b) of the Colorado Constitution authorizes the
Chief Justice to temporarily assign any retired justice to undertake
judicial duties in any court, conditioned upon the retired justice's
consent:
"Whenever the chief justice deems assignment of a judge necessary to aid the
administration of the courts, he may . . . assign any district, probate, or
juvenile judge, or retired justice or district, probate, or juvenile judge
who consents, temporarily to perform judicial duties in any court.
"This "consent" must be evidenced by a written agreement. Section
24-51-1105, C.R.S., authorizes the Chief Justice to enter into a "written
agreement" with retired supreme court justices or other retirees from the
judicial division, to return to "temporary judicial duties" pursuant to the
constitutional provisions while receiving service retirement benefit The statute limits these written agreements to a term of three years, but it allows a retired justice to make subsequent, separate contracts for service up to an aggregate of 12 years.
"The record here contains an example of such a written agreement. The Chief
Justice and Justice Quinn apparently executed two of them, the first as
Justice Quinn retired from active service in Jan. 1993 and the second in
January 1997. See letter dated Jan.5, 1997, noting that
Justice Quinn began participating in the Senior Judge Program effective
January 12, 1993, and referencing "the enclosed renewal contract." The
January 1997 contract recites that "the purpose of this agreement is to
establish the terms and conditions for service and receipt of benefits by a
retired judge under Section 24-51-1105."
"Significantly to the issue of jurisdiction, the "Duties of the Parties"
section of the agreement includes the following provision:
"The Judge recognizes that she or he is bound by the Code of Judicial Conduct
and subject to the jurisdiction of the Commission on Judicial Discipline
during the effective period of this agreement. The Judge agrees to execute
the attached oath of office. (Emphasis added.)
"This last provision is no mere formality, it is a constitutional requirement
for all judges. Judges are civil officers who "perform[ ] duties
essentially public in their nature" and occupy a position of "public trust,"
In re Thomas, 16 Colo. 441, 446, 27 P. 707, 708 (1891). For them, the oath
of office is demanded by Article XII, sec. 8 of the Colorado Constitution:
"Every civil officer, except members of the general assembly and such
inferior officers as may be by law exempted, shall, before he enters upon
the duties of his office, take and subscribe an oath or affirmation to
support the constitution of the United States and the state of Colorado, and
to faithfully perform the duties of the office upon which he is about to
enter. (Emphasis added.)
"See also Colo. Const. Art. XII, sec. 9 ("Officers of the executive
department and judges of the supreme and district courts . . . shall file
their oaths of office with the Secretary of State."); Chief Justice
Directive 85-25 at ¶3 ("All judicial oaths, except for county judges, must
be filed with the Secretary of State."). The written agreement thus plainly
demands that a retired judge returning to temporary service comply with all
the requirements imposed on sitting judges, including those arising under
the constitution.
"Justice Quinn did not satisfy the requirements for his return to service
because he did not execute the oath of office, as required under the
constitution and his agreement with the Chief Justice. The record
establishes that he last executed an oath of office in 1997 in connection
with a contract that by its terms expired by January 12, 2000, and that no
subsequent oath of office was executed or on file with the Secretary of
State. Justice Quinn, therefore, was thus not qualified to act in any
judicial capacity and could neither accept temporary appointment to the
district court nor hear Stanley's case in 2004. The proceedings in this
case were thus coram non judice".
10-29-05
© 2005 North
Country Gazette
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