Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01067-MSK-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

04-cv-1067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. CITY AND COUNTY OF DENVER, COLORADO, JAMES A. SESTRICH, KELLEY S. CALDWELL, JOSEPH R. HART and FRANK J. HOFFMAN, Defendants.

PLAINTIFF' R S O S T CVLS R IEC MMISO ' N N S E P N E O II E VC O S I NS O -PARTY MOTION TO QUASH

Within the stringent limits imposed by the timing of the Civil Service C mmi i 'd leae try t nt Q a h notwithstanding its knowledge since o s o s eb rtl ad Moi o u s 1 sn i y o the filing of the Final Pretrial Order that its members and staff would probably be called as witnesses, Plaintiff William R. Cadorna ("lni o " Cadorna"hereby responds Pa t " rMr. if f ) to that Motion to Quash: 1. As University of Iowa Professor of Law Gerald Wetlaufer explained in his

brilliant 1990 Article, " Justifying Secrecy: An Objection to the General Deliberative Pil e, 65 Ind. L.J. 845, the mental process and deliberative process privileges are a r ig " ve relatively modern invention, and of dubious parentage. Evidently forgetting that our

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Which could easily have been the subject of a Motion in Limine filed well before now.

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Constitution was forged in the flames of revolution against governmental tyranny, and tempered in rivers of blood in places such as Antietam, Shiloh and Gettysburg, the courts have, as a matter of modernist expedience and devotion to the aggrandizement of state power, complaisantly conflated the interest of public bureaucrats in avoiding accountability for their actions with the true public interest: The general deliberative privilege was unknown in the United States federal courts until 1958 and represents a body of ideas that was conveyed, first, from the British House of Lords and from Dwight Eisenhower's principles of military leadership to the United States Court of Claims and, then, from the Court of Claims to the federal district courts. The federal courts' acceptance of this privilege was part of a long-standing and multifaceted contest between the proponents of open and closed government. The history of that contest includes chapters devoted to the Housekeeping Act and its amendment, the range of common law privileges available to the executive, the contest between Dwight Eisenhower and Joseph McCarthy, the enactment and implementation of the Freedom of Information Act, the struggle over the privilege provisions of the Federal Rules of Evidence, the Watergate break-in and the ensuing contest between Richard Nixon, the Congress, and the courts, the IranContra scandal, and the testimony of Oliver North. This is a play in which there is a finite set of actors who have played their parts with great consistency. The foremost of these, of course, has been the federal executive. Other institutional actors have included the Supreme Court, the Congress, the freedom of information movement and the political and media interests that comprised that movement, and the Court of Claims. The principal individual actors have been Justice Stanley Reed, General-cum-President Dwight Eisenhower and President Richard Nixon. The music in this drama is provided by two competing choruses, one singing "The Urge to Secrecy" (n38) and the other, "The Ode to Democracy and Accountability." These choruses celebrate the competing values that are at stake in this controversy, and they vary in their relative strength from one time and place to another. In the broad arena of national politics, the urge to secrecy and executive prerogative was strongest during the period from which the general deliberative privilege emerged, a period marked by the administrative aspirations of Roosevelt's presidency, the military contingencies of World War II, and the early period of the Cold War, the era of the Rosenbergs, of Hiss and of Joseph

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McCarthy. The urge to democracy and accountability, barely audible in national politics from the beginning of World War II through the early 1950s, became strongest during and after the Vietnam War and Watergate. And, of course, even within a single period of time, the strength of these choruses has varied dramatically from one institutional location to another -- "secrecy" being strongest in the executive and, more particularly, the national security establishment, and "democracy and accountability" being strongest in the media and the Congress. 65 Ind.L.J. 857-58. 2. How remarkable that, in this era in which it has become painfully clear that

the highest reaches of government are most easily accessed by the highest bidder, courts see fit to apply a double standard that has no place in a true democracy devoted t "o en n o tep o l b tep o l a dfrh p o l . o g v rme t fh e p , y h e p , n o te e p " e e e 3. On the one hand, private citizens or corporations enjoy no immunity from

scrutiny of the most intimate details of their lives, or the process by which they reach their decisions (lest Kenneth Lay and Jeffrey Skilling would still be looking forward to a sybaritic retirement in Boca Raton or Aspen, instead of Lompoc or some other federal quarantine for those infected with the virus of hubristic entitlement). 4. On the other hand, those in government whose motives and methods are

no more virtuous or enlightened, and who more often than not enjoy their positions of power solely by virtue of their willingness to subvert the public interest in favor of their sponsors in Big Government or Big Business, escape scrutiny of their actions by cloaking themselves in an ill-fitting gown of virtue and nobility. 5. All modern bureaucracies, private or public, are inherently corrupt,

dominated as they are by people more devoted to a regular paycheck or petty

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prerogatives than the civitas that motivated our Founding Fathers to pledge their lives, their fortune and their sacred honor to the creation of this great country. 6. T eC mmi i 'a l b t s-than-forthcoming, counsel would have h o s o s b ,ul s sn e e

this Court believe that it should be obvious to anyone with any sense of the proper balance of powers in this country that there are no circumstances under which the pe u b h rfn " na po e s s ta l t teC mmi i 'reliance upon a rs ma l ory g me tl rc se "h t d o h o s o s y ii e sn "o -evidentiary non-finding of non-fc may be scrutinized. nn at " 7. He attempts to cloak not only the Commissioners and Hearing Officer

( h s c aa tr ai a e e "u s u ia ofiss ga ei u t e ey w o e h rc i t n s v n q a i d i" fc lia rv n l o v r ez o -j c l ia st conscientious judge in this Court or elsewhere), with protections that do not apply in this context, in which the jury will obviously not engage in judicial review of the Commission decision, but will instead examine the facts related to their decision to determine w eh rh y iae Pa t 'C n t t n l n s ttr r hs h te te v l d lnis o st i a a d t uoy i t ot if f i o u a g . 8. Numerous courts with a better respect for the Constitution have been

disinclined to endorse what is tantamount to absolute immunity in these circumstances. They require examination of the context (judicial review versus claims of corruption or constitutional violations), the importance of the information to the claims in the case, and a number of other factors that a court must weigh in determining whether b ra caipil es o l t mpaci n c n t t n li t Franklin Savings v. ue u rt r ig h u r c ve d u i e ' o st i a r hs t s z i o u g . Ryan, 922 F.2d 209 (4th Cir. 1991); Singer Sewing Machine v. NLRB, 329 F.2d 200 (4th Cir. 1964) United States v. Hooker Chemicals, 123 F.R.D. 3 (D.W.N.Y. 1988); Boyd v. City and County of San Francisco, 2006 U.S. Dist. LEXIS 27647 (N.D.Cal. 5/1/2006);

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Kluth v. City of Converse, 2005 U.S. Dist. LEXIS 15222 (W.D.Tex. 2005); Lawrence v. Van Aken, 2004 U.S.Dist. LEXIS 956 (W.D.Mich. 2004); Klein v. Jefferson Parish Schools Board, 2003 U.S. Dist LEXIS 6514 (E.D. La. 2003); Carter v. City of Philadelphia, 2000 U.S. Dist LEXIS 6658 (E.D. Pa. 2000); Doubleday v. Ruh, 149 F.R.D. 601 (E.D. Cal. 1993); EEOC v. Otto, 1976 U.S. Dist. LEXIS 16542 (D.Md. 1976); Franklin Savings v. Ryan, 922 F.2d 209 (4th Cir. 1991); Singer Sewing Machine v. NLRB, 329 F.2d 200 (4 Cir. 1964); 9. T tee tn teC mmi i e e e j s o fr "u s u ia o h x th o s o v n n y s me om q a i d i" e sn o -j c l
th

status, which is hardly to be assumed given the serious allegations of malfeasance made in this case, see, e.g., Saavedra v. Albuquerque, 73 F.3d 1525 (10th Cir. 1996), Ramirez v. Oklahoma Dept. of Mental Health, 41 F.3d 584 (10th Cir. 1994), its scope and extent is limited, and does not entitle the Commissioners or their staff to immunity from examination about opinions or facts, such as whether they had in their possession exhibits and documents proving beyond any shadow of a doubt that when they seized upon the H ai O fe'n gg n mi ttme t h d c i ta Pa t a pe e r g f r e le t s ae n i i e io h t lni p ld n i s c i s n s sn if f i frei me tpi t d mi a ,h y i s wt c n t cv o a ta k o l g o o rte n "r ro i s l te d o i o s u te r c ln we e f r o s s" d h r i u d its utter falsity. 10. The Hearing Officer, who could not be bothered2, notwithstanding his

obligation to do so under the Judicial Code of Conduct, to correct a patent error in his decision that was belied by other statements in the same decision, and could easily have been confirmed by examination of exhibits on file at the Commission, would

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In reliance upon the pretext that he had destroyed his notes.

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undoubtedly prefer to avoid being compelled to admit under oath in federal court that he made a stupid mistake, was not man enough to admit that he had made it, and was so i i rn t Pa t 'c n t t n li t ta h c u n t eb tee t correct a n f e to lnis o st i a r hs h t e o l o b oh rd o df e if f i o u g d negligent error that has now cost Plaintiff two years of his life, and many thousands of dollars to try to correct in this Court. That is not cause for permitting him to avoid testifying about these facts. 11. As the parties have stipulated, the Hearing Officer and Commission were

the final policy-making officials for the City. Therefore, their decisions are those subject to scrutiny under the Constitution. The asserted privileges do not, cannot, and must n tt mpPa t 'r h t afih o,r u lnis i to a earing of his claims. if g f r 12. Plaintiff does not concede that the Commission or its staff, as the policy-

making officials or body of the City, can claim any protection of the deliberative process or mental process privileges. They are in fact inapposite in these circumstances, e p c l w e Pa t 'a iy oe tbs teCts iai o h C n t t n l s e il h n lnis bi t s lh h i'v l o f i o st i a ay if f l t ai y o tn s i o u rights depends upon scrutiny of the fact available to the Commission in seizing upon a known falsehood to deprive Plaintiff of his property and liberty. 13. E e i h c ut d i le t jnPa t 'c u s l a efrt p t v n f i o ri in i d o o lnis o n e i n f to u ts s s cn i if f n o

the malevolent genies of the mental process and deliberative process privileges back into the fetid bottle of rancid bureaucratic wine whence they seeped, this Court is not entitled under prevailing law to quash the subpoenas. At most, the privileges upon which the Commission relies to quash the subpoenas require that questioning not intrude too far into mental processes of the Commissioners, to the extent there were

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any A teC mmi i 'a l c u s la$ 5 /o r ate a an t n l wfm wt . s h o s o s b o n e ( 4 0h u p r r t ai a l i i sn e n o a r h numerous eager minions at his beck and call) knows quite well, there is absolutely no basis in law for the complete quashing of the subpoenas. WHEREFORE, good cause having been shown, Plaintiff respectfully requests that this Court d n teC mmi i 'Moi t Q a h e yh o s o s tn o u s. sn o DATED this 16th day of June, 2006. Respectfully submitted,

/S/

Mark E. Brennan

Mark E. Brennan, P.C. P.O. Box 2556 Centennial, CO. 80161-2556 (303) 552-9394 (office) (303) 797-7687 (cell) [email protected] Attorney for Plaintiff

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CERTIFICATE OF SERVICE In compliance with D.C.COLO.LCivR. 6.1(D), the undersigned hereby certifies that, on this 16th day of June, 2006, he served, o tiC ut e c o ifn ss m rh o rs l t n i g yt s ' er cl i e served, a copy of the foregoing R s o s t C mmi i 'Moi t Q a hon the ep ne o o s o s tn o u s sn o following person(s) via electronic mail: Richard Saul Mandelson Baker & Hostetler th 303 E. 17 St. #1100 Denver, CO. 80203 Jack Wesoky, Esq. Christopher Lujan, Esq. Office of the City Atty. 201 W. Colfax, Dept. 1108 Denver, CO. 80202 /S/

Mark E. Brennan

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