Kenneth L. Smith, in propria persona Genesee Village Rd. COURT USE ONLY Golden, CO Phone: (303)

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1 DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO Kenneth L. Smith, Plaintiff, v. Hon. Andrew S. Armatas, and County Court, City and County of Denver, Defendants, and Mitchell Morrissey, Indispensable Party. Kenneth L. Smith, in propria persona Genesee Village Rd. COURT USE ONLY Golden, CO Phone: (303) Case No: COMPLAINT COMES NOW Kenneth L. Smith (hereinafter, Smith ), in propria persona, who states as follows in this Complaint for certiorari relief pursuant to C.R.C.P. 106(a)(4): PARTIES, JURISDICTION AND VENUE 1. Smith is a natural person who, for all times pertinent to this Complaint, has resided in the State of Colorado. 2. The County Court, City and County of Denver, is a lower judicial body, as defined in C.R.C.P. 106(a)(4). 3. On information and belief, Hon. Andrew S. Armatas is Presiding Judge, County Court, City and County of Denver. 1

2 4. On information and belief, Mitchell Morrissey is and has been for all times pertinent to this Complaint, the District Attorney for the City and County of Denver. 5. Venue is proper in this Court pursuant to C.R.C.P. 98(b)(2), as this claim arose from the failure of a public officer to perform an act or duty which he is by law required to perform. FACTUAL BACKGROUND AND GENERAL ALLEGATIONS 6. C.R.S states, in pertinent part: The judge of a court having jurisdiction of the alleged offense, upon affidavit filed with the judge alleging the commission of a crime and the unjustified refusal of the prosecuting attorney to prosecute any person for the crime, may require the prosecuting attorney to appear before the judge and explain the refusal. If after that proceeding, based on the competent evidence in the affidavit, the explanation of the prosecuting attorney, and any argument of the parties, the judge finds that the refusal of the prosecuting attorney to prosecute was arbitrary or capricious and without reasonable excuse, the judge may order the prosecuting attorney to file an information and prosecute the case or may appoint a special prosecutor to do so. 7. C.R.S (1) states: A public servant commits first degree official misconduct if, with intent to obtain a benefit for the public servant or another or maliciously to cause harm to another, he or she knowingly: (a) Commits an act relating to his office but constituting an unauthorized exercise of his official function; or (b) Refrains from performing a duty imposed upon him by law; or (c) Violates any statute or lawfully adopted rule or regulation relating to his office. 8. First degree official misconduct is a class 2 misdemeanor, punishable by imprisonment of up to 12 months. 9. The County Court, City and County of Denver, has jurisdiction over the prosecution of all misdemeanors committed within the limits of the City and County of Denver. 10. On or about March 20, 2007, Smith filed an Affidavit of Victim, in the County Court, alleging the commission of a crime and the unjustified refusal of prosecuting attorney Mitchell Morrissey to prosecute any person for the crime. 11. In the aforementioned Affidavit, Smith alleged facts indelibly established in the public record which, taken together, constitute conclusive proof of every element of the crime of first degree official misconduct, to wit: 2

3 a. The proposed defendants in the criminal case are all public servants, as defined by C.R.S (3)(o); b. Extinguishment of a civil lawsuit that could result in an award of $30,000,000 in compensatory and punitive damages qualifies as a benefit for the public servant ; c. A person acts "knowingly" with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists. C.R.S (6); d. The issuance of a judicial decision is an act relating to [a judge s] office, and e. An act in violation of federal law is by definition an unauthorized exercise of [a public official s] official function. 12. The First Amendment guarantees a citizen s right to have federal civil rights claims heard in a state court of general jurisdiction. Claflin v. Houseman, 93 U.S. 130 (1876); see also, e.g., Boulder Valley Sch. Dist. R-02 v. Price, 805 P.2d 1085 (Colo. 1991) (adjudicating federal rights claim). 13. The United States Supreme Court is the final judicial interpreter of the federal Constitution, Cooper v. Aaron, 358 U.S. 1 (1958); Lujan v. Colorado State Bd. of Educ., 649 P.2d 1005 (Colo. 1982), and in particular, its decisions interpreting the scope of the First Amendment's protections are binding. People v. Berger, 185 Colo. 85, 89, 521 P.2d 1244 (Colo. 1974). 14. The proposed defendants -- the justices of the Colorado Supreme Court -- extinguished Smith s federal civil rights claims, in defiance of binding law as established by the United States Supreme Court. 15. The proposed defendants acts therefore constituted an unauthorized exercise of [their] official function. 16. In the alternative, as a judge cannot lawfully decide a case in which he is a party in the absence of the consent of all parties to the action pursuant to C.R.S , the proposed defendants had committed an unauthorized exercise of [their] official function and violated a statute or lawfully adopted rule or regulation relating to [their] office. 17. In the alternative, as [a]ny judge who knows of circumstances which shall disqualify him in a case shall, on his own motion, disqualify himself, C.R.S (2), the proposed defendants refrained from performing a duty imposed upon him by law. 18. Given that as few as nineteen to many as thirty or forty judges were legally authorized to hear the case in the Justices stead, C.R.S , there was no legally valid excuse for the proposed defendants action. 19. The issuance of the opinion itself in Smith v. Mullarkey, 121 P.3d 890 (Colo. 2002) (per curiam) was the operative fact conclusively proving all five elements of the crime of first degree 3

4 official misconduct. 20. As all elements of the crime of first degree official misconduct are proven by definition (subject, of course, to the judicial noticing of all salient documents), District Attorney Mitchell Morrissey s refusal to prosecute was by definition unjustified. 21. On information and belief, a complete record of correspondence between Smith and the District Attorney s office was submitted with the motion for relief. 22. Alternative bases for prosecution were outlined in detail, along with appropriate citation, in both the extensive correspondence and a brief in support of criminal prosecution submitted to the Court. 23. While Judge Armatas and District Attorney Morrissey are invested with some discretion, that discretion is necessarily limited by their oaths of office, and their concomitant obligation to ensure that no Colorado public official is above the law, and no Coloradan is beyond its protection. 24. Although Smith was advised verbally by a clerk in the County Court s Criminal Division that Judge Armatas had ruled on the matter and denied his Motion on Monday, April 2, 2007, and that a copy of the decision would be mailed, it has not been received at the time of this writing. FIRST CLAIM FOR RELIEF (Certiorari Relief Pursuant to C.R.C.P. 106(a)(4)) 25. Plaintiff hereby realleges and incorporates herein all prior allegations by reference. 26. On information and belief, Judge Armatas has refused to process Smith s petition for relief, assign it to a judge with jurisdiction and/or issue an order requiring District Attorney Morrissey to file an information within the statutory deadline, despite Smith s persistent entreaties. 27. C.R.C.P. 106(a)(4) provides Smith with a basis for relief because, based on the evidence in the record, the Court abused its discretion and acted in a manner that was arbitrary, capricious, and not in accordance with law, when it denied Smith s Motion for Relief pursuant to C.R.S The competent evidence in the record before the Court was sufficient to compel a finding that the refusal of District Attorney Mitchell Morrissey to prosecute the crimes alleged was arbitrary and/or capricious, and without reasonable excuse. 4

5 WHEREFORE, Plaintiff Smith prays that this Court grant certiorari relief, finding that Judge Armatas abused his discretion in refusing to conduct a hearing in compliance with C.R.S Smith further prays that the Court grant his reasonable costs and attorney s fees, if any, and for such other relief as the Court deems just and proper. Respectfully submitted this 12 th day of April, Kenneth L. Smith, in propria persona Genesee Village Rd. Golden, CO Phone: (303)

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