STANLEY NOTE:  I have been out of jail for 14 months after paying an $80,000.00 Appeal Bond.  This Appeal is being filed today.  I expect an answer in the next 6 to 12 months.  As you can see, the Appeal issues are VERY strong indeed.  One is absolute.  Is the POLICE STATE OF AMERICA complete?  As I have said in the past, this is just one more barometer.  Do we live in a land of freedom and liberty?  I have not seen it the last 5 years in the judicial branch of government. Without a judiciary to uphold and defend our rights in the courts, we certainly do not have freedom and liberty on the streets of this country...  Many of us believe this country has been overthrown from within. Lets find out one more time:

PDF of brief available here for download.


      COLORADO COURT OF APPEALS

      Colorado State Judicial Building

      2 East 14th Avenue, 5th Floor

      Denver, CO  80203

              court use only

       Case No. 04CA2164

 Appeal from the District Court, Adams County, Honorable Joseph R.
Quinn, Judge

      Case No. 03CR2956 and 03CR2971

      Plaintiff-Appellee:

      THE PEOPLE OF THE STATE OF COLORADO

      Defendant-Appellant:

      RICHARD E. STANLEY

      Haddon, Morgan, Mueller, Jordan, Mackey & Foreman, P.C.

      Norman R. Mueller, Reg. No. 5853

      Rachel A. Bellis, Reg. No. 12723

      150 East Tenth Avenue
      Denver, Colorado 80203
      Telephone: 303-831-7364
      Facsimile: 303-832-2628
      E-mail:nmueller@hmflaw.com
      Attorneys for Defendant-Appellant

      OPENING BRIEF



INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1

STATEMENT OF ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. PROCEDURAL STATEMENT. . . . . . . . . . . . . . . . . . . . .. . . . . .  2

II. STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . .. . . 4

  A. The Thornton Case. . . . . . . . . . . . . . . . . . . . . . . . . . . .5

  B. The Appeal to the Adams County District Court. ...... . . . . . . . . . 7

  C. The Notice and Order. ....................... . . . . . . . . . . . . . 7

SUMMARY OF THE ARGUMENT ................. . . . . . . . . . . . . . . . . . .9

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11



Cases

Aguilar v. People,
886 P.2d 725 (Colo. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . 16

Brandenburg v. Ohio,
395 U.S. 444,89 S.Ct. 1827,23 L.Ed.2d 430 (1969) . . . . . . . . . . . . . .16

Club Valencia Homeowners Ass 'n, Inc. v. Valencia Associates,
712 P.2d 1024 (Colo.App. 1985) . . . . . . . . . . .  . . . . . . . . . . . 21

Griego v. People,
19 P.3d 1 (Colo.2001) . . . . . . . . . . . . . . . . . . . . . . . . 22,28,29

In Re Green,
11 P.3d 1078 (Colo. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . 20

In re Thomas,
16 Colo. 441, 27 P. 707 (1891)  . . . . . . . . . . . . . . . . . . . . . . 38

Jolly v. People,
742 P.2d 891 (Colo. 1987) ...... . . . . . . . . . . . . . . . . . ........ 29

McDonald v. Lakewood Country Club,
170 Colo. 355,461 P.2d 437 (1969) . . . . . . . . . . . . . . . . . . . . . 21

Merchants Mortgage & Trust Corp. v. Jenkins,
659 P.2d 690 (Colo. 1983) . . . . . . . . . . . . . . . . . . . . . . . .   32

NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17


New York Times Co. v. Sullivan,
376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) . . . .. . . . . . . . .. 15

Olmstead v. District Court,
157 Colo. 326,403 P.2d442 (1965).......... . . . . . . . . . . . . . ....31,32

Organization for a Better Austin v. Keefe,
402 U.S. 415, 91 S.Ct. 1575,29 L.Ed.2d 1 (1971) . . . . . . . . . . .  . .. 17

People v. Hickman,
988 P.2d 628 (Colo. 1999) ....... . . . . . . . . . ......... 12, 15, 16,22,26

People v. Hines,
780 P.2d 556 (Colo. 1989) .......... . . . . . . . . . . . ................ 15

People v. Jachnik, 116 P.3d 1276 (Col0.App. 2005) . . . . . . . . . . 32,33,35

People v. Janousek, 871 P.2d 1189 (Colo. 1994) ....... 11,13,17,18,20,23,26,27

People ,v. Miller,
113 P.3d 743 (Colo. 2005) ......................... . . . . . . . . . . . . 25

People v. Norman,
703 P.2d 1261 (Colo. 1985) .............. . . . . . . . . . . . . ...... 12,23

People v. Torkelson,
22 P.3d at 560 (CoIo.App. 2000) ...... . . . . . . . . . .............. 32, 35

Renner v. Chilton,
142 Colo. 454, 351 P.2d 277 (1960) . . . . . . . . . . . . . .  . . . . . . 21

Schott v. People,
174 Colo. 15,482 P.2d 101 (1971) . . . . . . . . . . . . . . .  . . . . . . 15


United States v. Cassel,
408 F.3d 622 (9th Cir. 2005) .. . . . . . . . . . ...................... 18,28

Virginia v Black, 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed. 2d. 535 (2003)passim

Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399,22 L.Ed.2d 664 (1969). . . .. 13, 14, 16-18,26

Whimbush v. People,
869 P.2d 1245 (Colo. 1994) . . . . . . . . . . . . ........................ 16

Statutes

18-8-306, C.R.S. .. . . . . . . . ..................................... passim

24-51-1105, C.R.S. .. . . . . . . . .................................... 32,37

Other Authorities

U.S. Const. Amend. III .... . . . . . . ................................... 23

U.S. Const. Amend. VI .................. . . . . . . . .................... 23

U.S. Const. Amend. XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Colo. Const. Art. II .................................. . . . . . ......... 23

Colo. Const. Art. VI . . . . . .. . . . . . . . . . . . . . . . . . . . 31, 36

Colo. Const. Art. XII. . . . . . . . . . . . . . . . . . .  . . . . . . . . 38

Crim.P. 8(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2



Appendices

1.                  Notice and Order filed in Thornton Municipal Court (Ex.__)

2.                  Notice and Order filed in Adams County District Court

3.                  Motion and Attachments




Defendant-Appellant Richard Stanley was the defendant in the trial court and
will be referred to by name or as the defendant.  Plaintiff-Appellee, the
People of the State of Colorado, will be referred to as the prosecution or
the State.  References to the record are by volume and page and appear in
parentheses.


1.            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.

2.            Is reversal of convictions for attempting to influence a
public servant 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.

3.            Were the proceedings in this case coram non judice, and are
Mr. 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 constitution before presiding in Mr. Stanley's
case.



4.                  PROCEDURAL STATEMENT.

In two separate criminal cases filed in Adams County, Mr. Stanley was
charged with attempting to influence a public servant in violation of C.R.S.
§ 18-8-306.  In Case No. 03CR2956, Mr. Stanley faced a single count
information charging him with attempting to influence Charles Rose, a judge
on the Thornton Municipal Court.  (V.1, pp.1-3)  In Case No. 03CR2971, Mr.
Stanley faced another single count information of attempting to influence a
public servant, this time naming Donald Marshall, Jr., an Adams County
District Court judge, as the involved public servant.  (V.2, pp.379-381)

Due to the fact that Judge Marshall of the Adams County District Court was
the public official named in one of the cases and was an endorsed witness,
members of the Adams County bench were disqualified from presiding at Mr.
Stanley's trial.  (V.1, pp.20-30)  Senior Judge Joseph Quinn, a retired
justice of the Colorado Supreme Court,  was designated to handle Mr. Stanley
's case and presided at the preliminary hearing, the motions hearing and
trial.



On motion of the district attorney and without objection by the defense, the
two cases were consolidated for trial pursuant to Crim.P. 8(2).  (V.1,
pp.45-46)  Trial commenced on June 21, 2004.  The jury returned its verdict
on June 24, 2004, finding Mr. Stanley guilty of both counts of attempt to
influence a public servant.  (V.1, p.142; V.2, p.552)

At the sentencing hearing, Mr. Stanley challenged the jurisdiction of the
court because there was no executed oath of office from Senior Judge Quinn
on file with the Secretary of State.  (V.11, pp.29-35)  Although no evidence
contrary to Mr. Stanley's supporting evidence was offered, Justice Quinn
implicitly denied Mr. Stanley's motion and proceeded to sentencing.

Mr. Stanley was sentenced on September 10, 2004 to consecutive three year
terms of imprisonment in the Department of Corrections in each case, and
also fined $5,000.00 in both cases.  In addition to the six year sentence
and $10,000.00 fine, Mr. Stanley also was ordered to pay restitution of
$8,249.64.  (V.1, p.358; V.2, p.562)

Mr. Stanley's timely Notice of Appeal was filed on October 20, 2004, duly
perfecting this appeal.  Mr. Stanley has been at liberty after posting the
appeal bond set by the trial court.


2.                  STATEMENT OF FACTS

Mr. 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 United States 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, Mr. 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, Mr. 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, Mr. Stanley argued, a treason charge would result in
the issuance of a "mutual defense pact militia warrant" for the arrest of
the judges.  Mr. Stanley's conviction for two counts of attempt to influence
a public servant stem from the filing of these two pleadings.

3.                  The Thornton Case.

While campaigning as the libertarian candidate for the Senate in the 2002
election, Mr. Stanley openly wore a pistol and holster during a campaign
appearance in Thornton.  (V.6, p.368)  He was eventually arrested and
charged with violating a municipal ordinance, § 38-237, prohibiting the
carrying of a dangerous weapon.  (V.6, p.375)

Mr. Stanley represented himself in the Thornton Municipal Court where Judge
Charles Rose presided.  At the continued arraignment on November 6, 2002 Mr.
Stanley attempted to orally challenge the constitutionality of the Thornton
ordinance.  (Ex. 2; Ex. 7, p.5)[1]  Judge Rose instructed Mr. Stanley to
file a written motion and continued the arraignment.  However, no due date
was set for the filing of the motion.  Mr. Stanley expressed his intention
to continue representing himself.[2]  (Ex. 7, pp. 9-10)

Mr. Stanley appeared on December 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.
(Ex. 9, pp. 2-3)  The court informed Mr. Stanley he was going to require Mr.
Stanley to enter a plea "so you don't jerk us around anymore" and accused
Mr. Stanley of simply trying to get a continuance.  (Ex. 9, p. 4)  When Mr.
Stanley said he wasn't seeking a continuance, the court accused him of
playing "politics" and reminded him that the election was over.  (Ex. 9, pp.
4-5)  The court then set the motions hearing and trial on the same day.
Throughout Judge Rose's intemperate remarks, Mr. Stanley remained polite and
respectful, a fact Judge Rose conceded during his trial testimony.  (Ex. 9;
V.5, p.216)

Mr. Stanley appeared for hearing and trial on January 29, 2003.  The court
first denied Mr. Stanley's motion.  (Ex. A, pp. 3-6)  A brief trial to the
court followed and Mr. Stanley was found guilty of violating the Thornton
municipal ordinance.  (Ex. A, p. 42)  The court immediately sentenced Mr.
Stanley to 90 days in jail and a $500.00 fine.  (Ex. A, p. 44)

2.                  The Appeal to the Adams County District Court.

Mr. Stanley appealed his conviction to the Adams County District Court and
the case was assigned to Judge Donald Marshall.  Mr. Stanley continued to
represent himself.  There were no court appearances and the appeal was
decided on the briefs.  On August 26, 2003, Judge Marshall issued an order
affirming Mr. Stanley's conviction.  (Ex. 2)  Mr. Stanley had been at
liberty on an appeal bond, and he was ordered to surrender to begin serving
his jail sentence on October 15, 2003.  (Ex.2; V.5, p.187)

3.                  The Notice and Order.

Mr. Stanley did not appear to begin serving his sentence on October 15,
2003.  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.  (Ex.1; V.6, pp.265-266)
The secretary also mailed another appropriately captioned Notice and Order
which was identical in content to the Adams County District Court.  (Ex.3;
V.6, p.265)  Both Judge Rose and Judge Marshall eventually reviewed Mr.
Stanley's pleading and both testified that the pleading caused them concern
for their personal safety although neither initiated a call to law
enforcement.  (V.5, pp.190-191; V.6, p.307)[3]

The pleadings captioned Notice and Order filed by Mr. Stanley reiterated his
argument that the Thornton municipal code was unconstitutional.  Mr. Stanley
posited that Senate Bill 25 (Ex. B), 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.
Mr. 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.  Mr.
Stanley additionally argued that the act of treason would lead to a "mutual
defense pact militia" warrant for the arrest of the judges.[4]
Additionally, Mr. Stanley demanded the return of his bond and his seized
weapon and bullets.

For filing these pleadings, Mr. Stanley was convicted of two counts of
attempt to influence a public servant.


The First Amendment protects the person who makes a threatening statement,
even a statement that threatens violence, unless the statement is a "true
threat."  The United States 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 Mr. Stanley contesting the constitutionality of
his conviction on a municipal weapons charge conveyed no "true threat."  Yet
Mr. Stanley was charged and convicted under section 18-8-306 with
attempting to influence a public official by means of a threat of violence
solely because the two judges who received the pleading perceived Mr.
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 Mr.
Stanley's convictions and they must be vacated.

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 Mr.
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 Mr. Stanley's convictions.

Finally, there was a jurisdictional defect in the trial of this case which
renders Mr. 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 Mr. Stanley's case.




A.  MR. STANLEY'S CONVICTION MUST BE VACATED BECAUSE HIS CONVICTIONS FOR ATTEMPTING TO INFLUENCE A PUBLIC SERVANT ARE BASED ON CONSTITUTIONALLY PROTECTED SPEECH.  APPLICATION OF SECTION 18-8-306 TO MR. 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.[5]  This is such a case.  The context
of this case reveals Mr. 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.  § 18-3-306, C.R.S.

As articulated in People v. Norman, 703 P.2d 1261, 1269 (Colo. 1985), the
critical elements of the offense are "(1) an attempt to influence a public
servant, (2) by means of deceit or by threat of violence or economic
reprisal, (3) with the intent to alter or affect the public servant's
decision or action."  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.  Janousek, 871 P.2d at 1194.

Mr. 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."  Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22
L.Ed.2d 664 (1969).  Accord Virginia v Black, 538 U.S. 343, 359-60, 123
S.Ct. 1536, 1547-48, 155 L.Ed. 2d. 535 (2003) (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.").


1.  The First Amendment Protects Threatening Speech Unless It Constitutes a True Threat.

The First Amendment does not protect a so-called "true threat."  Black, 538
U.S. at 359, 123 S.Ct. at 1548.  "'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."  Id. Thus, intimidating symbolic speech will be a type of true
threat "where a speaker directs a threat to a person or group of persons
with the intent of placing the victim in fear of bodily harm or death."  Id.
at 360, 123 S.Ct. at 1548 (cross-burning may be constitutionally protected
under circumstances where it is not done with intent to intimidate).
Conversely, the mere figurative or crude use of threatening language in a
situation where the words constitute mere hyperbole or political rhetoric
does not constitute a true threat subject to the sanctions of the criminal
law.  Watts, 394 U.S. at 708, 89 S.Ct. at 1401 (statement that speaker would
shoot President of United States made at political rally constituted
protected political hyperbole).  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."  New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct.
710, 721, 11 L.Ed.2d 686 (1964).


2.  The "Threat of Violence" Element of § 18-8-306 Requires Proof of a "True Threat."

Threat of violence is not defined in the statute at issue here.[7]  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."
People v. Hines, 780 P.2d 556, 559 (Colo. 1989) (felony menacing); Schott v.
People, 174 Colo. 15, 482 P.2d 101, 102 (1971) (theft receiving).  In
Hickman, the court surveyed various definitions of "threat" before
concluding that threat in the statute prohibiting retaliation against a
witness or victim, must be construed in a "narrow" fashion to pass
constitutional scrutiny: "an expression of an intent or statement of purpose
to commit harm or injury to another's person, property, or rights through
the commission of unlawful acts."  988 P.2d at 637.

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.

It is well established that some threats are protected speech.  In Aguilar
v. People, 886 P.2d 725, 728 (Colo. 1994), for example, the court recognized
that "constitutionally protected speech may be threatening."  In Hickman,
the court acknowledged that "even threats of violence or force may be
protected speech," explaining that "'mere advocacy' of force or violence
does not remove speech from the protection of the First Amendment."  988
P.2d at 639 (citing Brandenburg v. Ohio, 395 U.S. 444, 447-49, 89 S.Ct.
1827, 23 L.Ed.2d 430 (1969)).  Importantly, the court also held that
"[t]hreats of violence that are not true threats, but which are 'political
hyperbole' are protected speech."  Id. (citing Watts, 394 U.S. at 706-08, 89
S.Ct. at 1401).  And in Whimbush v. People, 869 P.2d 1245, 1248 (Colo.
1994), the court noted that the U.S. Supreme Court found protected
expression in a consumer boycott even though the "threat" of social
ostracism was used, NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910, 102
S.Ct. 3409, 3424, 73 L.Ed.2d 1215 (1982) ("Speech does not lose its
protected character . . . simply because it may embarrass others or coerce
them into action."), or that the speech was intended to have a coercive
impact.  Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91
S.Ct. 1575, 1578, 29 L.Ed.2d 1 (1971) ("[t]he claim that the expressions
were intended to exercise a coercive impact . . . does not remove them from
the reach of the First Amendment").

3.  A "True Threat" Requires Proof of the Speaker's Subjective Intent to Threaten.

It is only the "true threat" that is not protected by the constitution.  As
Chief Justice Mullarkey recognized in her concurring opinion in Janousek,
"the critical inquiry for First Amendment purposes is whether the
statements, viewed in the context in which they were spoken or written,
constitute a 'true threat.'"  Citing Watts, 394 U.S. at 708, and subsequent
tenth circuit authority, Chief Justice Mullarkey went on to define a "true
threat" as a "serious threat, as opposed to a mere political argument, talk
or jest" requiring inquiry whether those aware of the threat reasonably
believed an actual threat had been made.  871 P.2d at 1198.

More recently Justice O'Connor, in her plurality opinion in Black,
redirected the true threat inquiry back on the speaker: whether a statement
is a "true threat" must be determined by focusing specifically on the
speaker's subjective intent when the statement was made.  Id., 538 U.S. at
359, 123 S.Ct. at 1548.  See United States v. Cassel, 408 F.3d 622, 631-33
(9th Cir. 2005) (noting that Watts' "true threat" analysis was changed by
Black, and holding that a "true threat" is determined by the speaker's
subjective intent to threaten and not the hearer's reasonable belief that a
threat had been made).

Thus, application of § 18-8-306 to Mr. Stanley's words is unconstitutional
unless Mr. Stanley's words constituted a true threat.


4.   Mr. Stanley's Pro Se Pleadings Were Protected by the First Amendment Since, In Context, No "True Threat" Was Made.

Mr. Stanley's pro se pleadings do not contain a true threat of violence.
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 Mr. 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.[8]  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.  Mr. Stanley' prognostication was
not a threat he would take any action.  It was a metaphorical statement that
the judges, in Mr. 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.  Pso se litigants such as Mr. 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 Mr. Stanley's speech with the communication at issue in
Janousek confirms that Mr. Stanley's words were constitutionally
protected.[9]  Mr. Janousek's threats were in a personal letter to the
judge, not a pro se pleading.  Instead of seeking relief from a court order,
a proper function of pleadings such as those of Mr. Stanley, Mr. Janousek
was demanding payment of money from the judge.  And, unlike Mr. Stanley's
pleading, Mr. Janousek's letter contained numerous expressions of violent
thought.


5.  The Privilege of Pro Se Statements in Judicial Proceedings.

The additional contextual factor which demonstrates that Mr. 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.  McDonald v. Lakewood Country Club, 170 Colo. 355, 461 P.2d
437 (1969) (allegations made by a district attorney in criminal information
are privileged); Renner v. Chilton, 142 Colo. 454, 351 P.2d 277 (1960)
(defamatory allegations in a complaint are privileged).  The absolute
privilege to defame in connection with judicial proceedings is broad and
extends beyond trial proceedings to encompass preliminary proceedings in
pretrial communications.  See Club Valencia Homeowners Ass'n, Inc. v.
Valencia Associates, 712 P.2d 1024 (Colo.App. 1985) (attorney's letter
regarding proposed judicial action was privileged), cert. denied (1986).


6.  Application of § 18-8-306 to Mr. Stanley's Statements Renders the Statute Unconstitutionally Overbroad.

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.  Mr. 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.  Hickman, 988 P.2d at 635.


7.  The Evidence is Insufficient to Support Mr. Stanley's Conviction Because his Statements are Constitutionally Protected.

The prosecution bears the burden of proving every essential element of an
offense beyond a reasonable doubt.  Griego v. People, 19 P.3d 1, 7 (Colo.
2001).  U.S. Const. Amend. III, VI, XIV; Colo. Const. Art. II, §§ 16, 23,
25.  Because Mr. Stanley's statements were constitutionally protected speech
and not a "true threat" of unlawful violence, the prosecution failed to
establish one of the essential elements of the offense of attempting to
influence a public servant by unlawful means.  See  Janousek, 871 P.2d at
1197 (Mullarkey, J., specially concurring).  Accordingly, his convictions
must be vacated.

B.  MR. STANLEY'S CONVICTIONS MUST BE REVERSED BECAUSE THE COURT FAILED TO CORRECTLY INSTRUCT THE JURY ON CRITICAL ELEMENTS OF THE OFFENSE AND THE RELATED FIRST AMENDMENT ISSUES.

As discussed above in Argument I, supra, the critical elements of the
offense of attempting to influence a public servant are "(1) an attempt to
influence a public servant, (2) by means of deceit or by threat of violence
or economic reprisal, (3) with the intent to alter or affect the public
servant's decision or action."  Norman, 703 P.2d at 1269.  Instruction No.
10 detailed the elements of this offense for the jury as follows:

The elements of the crime of Attempt to Influence a Public Servant are:

1.            That the defendant,
2.            in the state of Colorado, at or about the date and place charged,
3.            with intent to alter or affect the public servant's decision, vote, opinion or action,
4.            concerning any matter which is to be considered or performed by the public servant,
5.            knowingly,
               a.          attempts to influence the public servant,
               b.          by means of deceit, or by threat of violence.

Instruction No. 11 defined "threat" in the following terms:

"Threat" means a statement or statements that are likely to induce a belief
in a reasonable person that the stated act or actions of unlawful violence
will be carried out. The speaker or author need not intend to carry out the
threat.  A threat of violence is not protected under the free speech
provisions of the Colorado or Federal Constitutions, nor under the
constitutional provisions regarding the right to petition the government for
redress of grievances.  Words used as mere political argument, or as idle
talk or in jest, even if made in a very crude or offensive manner, do not
constitute a threat.

(V.I, pp.126-27; V.II, pp.535-36).  Though counsel for Mr. Stanley did not
object when the court gave these instructions, the instructions were
constitutionally defective and Mr. Stanley's 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.  People v. Miller, 113
P.3d 743, 749 (Colo. 2005).[10]

Under the plain error standard, the record must demonstrate that the
instruction affected a substantial right and that there is a reasonable
possibility that the error contributed to the defendant's conviction.  Id.
at 749.  Unless the evidence of guilt is overwhelming, plain error will be
found if the relevant instruction, read in conjunction with other
instructions, does not adequately inform the jury of the law on an issue
that was contested at trial.  Id. (internal citations omitted).

Plain error occurred in this case.  The jury was incompletely and
erroneously instructed on core contested issues of intent and constitutional
privilege, and it is more than reasonably possible that these errors
contributed to Mr. Stanley's convictions.

1. The Definition of "Threat" Incorrectly States the Law and Does Not Satisfy the First Amendment Because it Does Not Direct the Jury
to Consider the Context in Which the Allegedly Threatening Statements are Made.

The term "threat" is not defined in § 18-8-306 or in the pattern jury
instructions.  The definition provided to the jury in Instruction No. 11
appears to be an amalgam of language pulled from the concurring opinion in
Janousek, 871 P.2d at 1198, and from the majority opinion Hickman, 988 P.2d
at 637-38.  It appears the instruction was intended to convey the "true
threat" exception to the First Amendment's free speech protection arising
from the Supreme Court's opinion in Watts, 394 U.S. at 708.  However, the
instruction incorrectly stated the exception.

Instruction 11 flatly states that "[a] threat of violence is not protected
under the free speech provisions of the Colorado or Federal Constitutions."
This is an incorrect, or at best incomplete, statement of the law.  Hickman
itself holds that "even threats of violence or force may be protected
speech," in some contexts.  Id., 988 P.2d at 639 (collecting and discussing
cases).

Significantly, the definition of "threat" given in Mr. Stanley's case did
not direct the jury to consider the context in which the statements
purportedly threatening violence were made.  Yet "the critical inquiry for
First Amendment purposes is whether the statements, viewed in the context in
which they were spoken or written, constitute a 'true threat.'"  Janousek,
871 P.2d at 1198 (Mullarkey, J., specially concurring, citing authority)
(emphasis added).

Context was critical to the First Amendment inquiry here, where the alleged
threats of violence were made in pro se court pleadings filed to seek
redress for convictions Mr. Stanley asserted were unconstitutional.


2.  The Definition of "Threat" Incorrectly States the Law and Does Not Satisfy the First Amendment Because it Does Not Require the
Jury to Determine if Mr. Stanley Intended His Statements to be Taken as a Threat of Violence.

The primary lesson of the Supreme Court's 2003 decision in Virginia v. Black
is that the speaker's intent to convey a threat is critical to determining
whether a statement is or is not a "true threat" that is excluded from the
protections of the First Amendment.  Id., 538 U.S. 359 (plurality opinion);
id. at 368 (Stevens, J., concurring); and id. (Scalia, J., concurring in
part).  Black, decided before Mr. Stanley's case went to trial, has added a
new element to the First Amendment analysis that should have been addressed
in the jury instructions.

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.  Griego, 19 P.3d at 7.  To preserve these guarantees,
the trial court is required to properly instruct the jury on each and every
element of the crime.  Id.  The jury was not properly instructed here.

Black holds that a statement that is objectively threatening may not be
punished unless it was made with an intent that the victim be threatened by
the statement.  Id., 538 U.S. at 359-60.  Even a statement as implicitly
intimidating as cross-burning cannot be punished if it was not accompanied
by an intent to intimidate those who see it.  Id.; see Cassel, 408 F.3d at
631 ("The Court's insistence [in Black] on intent to threaten as the sine
qua non of a constitutionally punishable threat is especially clear from its
ultimate holding that the Virginia statute was unconstitutional precisely
because the element of intent was effectively eliminated" by a conclusive
presumption).

The jury was not instructed that it had to find Mr. Stanley intended the
statements in his pleadings to be received as threats of violence against
the judges in whose courts they were filed, as Black requires.  This was a
crucial issue in this case given the context in which Mr. Stanley's
allegedly threatening statements were made.


3. The Definition of "Threat" Set Up a Conclusive Presumption that Relieved the State of its Burden of Persuasion on an
Essential Element of the Offense.

When coupled with the court's omission of the intent instruction required by
Black, the instruction that a "threat of violence" was unprotected by the
First Amendment directed the jury to presume the very thing that Black
requires-that Mr. Stanley's statements were, in fact, intended to be
received as threats of violence.  The supreme court has held that conclusive
presumptions such as this relieve the prosecution of its burden of
persuasion and so violate a defendant's constitutional right to due process
of law.  Jolly v. People, 742 P.2d 891, 896 (Colo. 1987); see Griego, 19
P.3d at 7 (the defendant in criminal case has the right, guaranteed by the
due process clauses of the state and federal constitutions, to have the
prosecutor prove every element of the charged offense beyond a reasonable
doubt).


4.  The State's Closing Arguments Emphasized the Constitutional Shortcomings in the Jury Instructions.

The constitutional misstatements and omissions in the jury instructions were
exacerbated by the prosecutors' closing arguments.  Relying on the defective
instructions, the prosecutor repeatedly misled the jury on the issues of
constitutional privilege and the intent requirement necessary for a
conviction.

In both the opening and rebuttal closing arguments, the prosecutors
emphasized the incorrect statement in the definition of threat that "a
threat of violence is not protected" under either the state or federal
constitution.  (E.g., V.4, pp.32-33, 62)  That incorrect, or at best
incomplete, statement of the law was used to support what, in essence, was
an argument that there was a conclusive presumption of Mr. Stanley's guilt
if the judges had felt threatened by Mr. Stanley's words.  The prosecutors'
argument-that Mr. Stanley's words and their effect on the judges was all
that the jury needed to consider-ignored the constitutional requirement that
the context of the words must be considered before there could be a finding
of a true threat necessary for conviction.

In addition, the prosecutor explicitly misled the jury in the rebuttal
closing argument by incorrectly telling the jury that whether or not Mr.
Stanley intended his words to be a threat, he should be found guilty if a
reasonable person would have been put in fear by those words.  "Under all of
these circumstances a reasonable person would certainly be put in fear,
concern that something could happen, whether or not Mr. Stanley meant it as
a threat or whether or not he was being deceitful."  (V.4, p.67)  This
misstatement of the law, directly contrary to the holding of Virginia v.
Black,  demonstrates the plain error that occurred in this case.


C.   MR. 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.

"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.

1.  Factual Background.

Before he was sentenced, Mr. Stanley moved the court to dismiss the case for
want of district court jurisdiction.  (V.11, pp.29-35)  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 January 11,
2000.  (V.1, pp.154-169)

Mr. 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 January 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 January
11, 1993, witnessed by then-Chief Justice William Erickson.  (V.1,
pp.156-58, 163-65)

  The signed January 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 January 14, 1997, witnessed by
then-Chief Justice Anthony Vollack.  (V.1, pp.159-62, 166-69)

Copies are attached to this brief as Appendix 3, along with Mr. Stanley's
motion to dismiss.

Justice Quinn responded directly to Mr. 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."  (V.11, p.35)

The district attorney offered nothing to oppose or respond to Mr. Stanley's
motion and added nothing to Justice Quinn's comments.  Justice Quinn then
proceeded to sentence Mr. Stanley to a six year term and a $10,000 fine.


2. Mr. Stanley Raised a Proper Jurisdictional Challenge that the State Failed to Rebut.

Mr. 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.  Torkelson,
22 P.3d at 564.  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."  Jachnik, 116 P.3d
at 1277 (emphasis supplied).

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 Mr. 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.

3.  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.

Id.

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 benefits.  §
24-51-1105(1)(b) & (6).  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.

§ 24-51-1105(1)(b).

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 January 1993 and the second in
January 1997.  See V.1, p.156, letter dated January 15, 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 Mr. Stanley's case in 2004.  The proceedings in this
case were thus coram non judice.




For the reasons stated in Argument I, Mr. Stanley's convictions must be
vacated and his cause remanded to the district court with directions to
dismiss.  Alternatively, for the reasons stated in Arguments II and III, his
convictions must be reversed and his cause remanded for further proceedings
or new trial.

DATED:            October 28, 2005

HADDON, MORGAN, MUELLER, JORDAN, MACKEY & FOREMAN, P.C.

By___________________________________

Norman R. Mueller #5853
Rachel A. Bellis #12723
150 East Tenth Avenue
Denver, CO 80203
(303) 831-7364
Fax:  832-1015
Attorneys for Richard E. Stanley


[1]Ex. 2 is a certified copy of a portion of the Thornton Municipal Court
file in Thornton v. Stanley, Case No. 02-12423.  Ex. 7 is the transcript of
the appearance on November 6, 2002.  Complete transcripts of other
proceedings in the Thornton Municipal Court also were received in evidence.
See Ex. 8 (initial advisement on October 8, 2002); Ex. 9(continued
arraignment on December 3, 2002; Ex. A (hearing on motion and trial on
January 29,2003).

[2]During the colloquy with Mr. Stanley, Judge Rose expressed his
familiarity with Mr. Stanley's political views on the second amendment
stating: "Well, Mr. Stanley, let me put it this way, I mean, I don't live in
a vacuum.  I'm aware of what a lot of your views are in terms of what your
campaign was.  And, you know, I'm aware of the fact that you do advocate,
you know, full possession, rights regarding firearms.  So, I mean, I've been
a resident of this state for many, many, many years.  And I'm-you know, and
I'm politically, I think, aware of what goes on and, you know, I'm aware of
what your stand has been regarding the issues of the Second Amendment
rights."  (Ex. 7, pp.5-6)

[3]Since the appeal had been concluded, Judge Marshall no longer had
jurisdiction over Mr. Stanley's case.  Judge Marshall did not review the
pleading in the normal course of business.  Rather, it was brought to his
attention by the Adams County Sheriff's Department.  (V.6, p.307)

[4]The Notice and Order filed in the Thornton Municipal Court, Ex. 1, is
attached as Appendix 1.  The Notice and Order filed in the Adams County
District Court, Ex. 3, is attached as Appendix 2.  The specific language at
the core of Mr. Stanley's conviction is: "Failure to do so [overturn the
Thornton conviction] will result in a treason charge against [the named
judge] for failure to uphold the oath of office to defend the Constitution,
which this court has ['on record' or 'a copy of'] and [the named judge],
swore to, as a 'condition' of his office.  This treason charge will result
in a Mutual Defense Pact Militia Warrant for the [named judge's] arrest if
the following conditions are not met:"

[5]"If a person engaged in protected speech is prosecuted under the statute,
the court should deem the particular prosecution invalid, not invalidate the
entire statute."  People v. Hickman, 988 P.2d 628, 635 (Colo. 1999)
(retaliation against witness or victim statute).

[6]Mr. Stanley's pretrial motion to dismiss on grounds that the statute was
unconstitutional as applied to him was denied.  (V.1, p.61)

[7]While the statute prohibits attempting to influence a public servant by
three different means-deceit, threat of violence or economic reprisal-only
threat of violence is at issue in this case.  The court struck "economic
reprisal" from the Information at the preliminary hearing (V.1, p.3; V.2,
p.381) and the trial produced no evidence of "deceit."

[8]Mr. Stanley argued that the Thornton ordinance prohibiting the carrying
of a weapon was unconstitutional in violation of the state constitutional
right to defend his own life and liberty guaranteed by Art. II, sec. 3 and
the right to keep and bear arms guaranteed by Art. II, sec. 13.  Mr. Stanley
also argued the Thornton ordinance had been preempted by the enactment of
Section 29-11.7-101, et. seq., establishing statewide standards for the
regulation of firearms, and specifically Section 29-11.7-103 prohibiting a
local government from enacting an ordinance prohibiting the possession of a
firearm and declaring any such ordinance "enacted by a local government
prior to March 18, 2003, is void and unenforceable."  (Emphasis added.)  See
Ex. B.

[9]The result today in Janousek might be different, informed by the more
recent Supreme Court decision in Black requiring proof of the speaker's
subjective intent to threaten.

[10]But see Miller, 113 P.3d. at 756-57 (Bender, J. concurring in result)
("While the [United States] Supreme Court has not specifically addressed
what standard of review should apply to an appeal of an unpreserved
constitutional ... error from a state court criminal trial, its precedent
shows no indication that it would diminish the value of constitutional
rights by subjecting unpreserved claims of constitutional error to plain
error review.").

[11]The procedure for temporary assignments is outlined in Chief Justice
Directive 95-03, titled "Priorities for Assignment and Procedures for
Implementation of Senior Judge Program," and in Chief Justice Directive
95-01, titled "Authority and Responsibility of Chief Judges."

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