We are handling some interesting cases and we've put the word out in print. We often make our voices heard at the podium. And there's always something to talk about within the firm.

The Donna Auguste Case:
Miracles and the One Million Dollar "Dogfight"

Since 2003, our law firm's website has reported on the status of Donna Auguste's Colorado civil rights case against Santa Clara County, California prosecutors and Larimer County, Colorado sheriffs. The case was filed in 2003 in Colorado's U.S. District Court. It claimed that law enforcement officers had conducted an unconstitutional search of Donna's home in Lyons, Colorado. On December 8, 2009, U.S. District Judge Philip Brimmer signed an Order dismissing the case pursuant to the parties' settlement agreement. After six years of litigation, including law enforcement defendants' two interlocutory appeals to the U.S. Tenth Circuit Court of Appeals, the long legal slog is over. Read the story of the pursuit and settlement of Donna's civil rights claims here. Donna Auguste remains dedicated to making her family's long journey through justice mean something more than the sum of its parts.

An integral part of Donna’s pursuit of justice also involved challenging the conduct of a high profile California prosecutor before the California State Bar’s lawyer disciplinary committee. Benjamin Field had been the lead prosecutor in the major felony conviction of Donna’s nephew in California in 1999. Based upon Field’s misconduct and new evidence, the conviction was overturned. It was Field’s desperate efforts to preserve the wrongful conviction that led him to undertake the unconstitutional search of Donna’s home in Colorado in 2003. On February 12, 2010, the California State Bar Court’s review panel of three appellate judges upheld its trial judge’s decision to suspend Field’s license to practice law. “Calling former Santa Clara County prosecutor Ben Field’s ethical misconduct ‘inexcusable,’ a State Bar appeals panel has upheld a judge’s landmark recommendation that [Field] be suspended from practicing law for four years.” San Jose Mercury News, Feb. 16, 2009. The appellate decision can be accessed here. Field’s attorneys have stated that they will appeal to the California Supreme Court, which has the discretion to hear or deny any appeal.

Federico Alvarez led Donna's Colorado legal team until he left Kelly Garnsey Hubbell + Lass at the end of 2008. He had help from Terry Kelly and Christy Murphy. When Freddie and Christy left KGHL, Terry Kelly was joined by Martha Tierney and Jerremy Ramp.

Read Terry Kelly's opinion piece entitled "TABOR backers don't care about Colorado" from the Denver Business Journal.

Bill Walters completed his term as the President of the Colorado Bar Association. Read Bill's farewell address entitled "Back to My Practice: Thank You Falettinme Be Mice Elf Agin (hint: think Sly & the Family Stone).

CCLP Honors KGHL
KGHL has a long history with and a great respect for The Colorado Center on Law and Policy ("CCLP"). Our connections include CCLP board chair Jean Dubofsky, our former partner, and Ed Kahn, our present partner who is Special Counsel to CCLP. On December 4, 2008, CCLP surprised KGHL by naming the Center's conference room after the firm. Executive Director Maureen Farrell made the announcement and thanked the firm for its backing over the years, and Special Counsel Ed Kahn had many kind and warm words for KGHL in terms of what the firm's support, hard work and sacrifices have meant to him.

Jim Hubbell is representing sugar beet growers who are dissatisfied with the Western Sugar Cooperative and are seeking to terminate the contracts with the co-op. See the story here.

Ed Kahn recently handled arbitrations involving a cable tv franchise agreement and a physician expulsion from a practice group, and he successfully mediated a dispute involving alleged malpractice of an attorney working for a collection company.

The parties tried the case within the parameters of historical TABOR litigation, i.e. arguing out the "plain meaning," "ordinary meaning" of the TABOR Amendment language. The State government defendants lost in the trial court, and the parties' briefs in the Supreme Court continued the trial court arguments. In a different approach supporting the Governor's and legislature's action, Terry Kelly's amicus brief for CCLP sought a broader base for constitutional interpretation, beyond "plain meaning" and adding additional interpretive factors such as context, purpose, results or consequences, history and precedent. It also directly challenged the constitutionality of initiative language that sought to remove from the judiciary its fundamental obligation to interpret the law. (TABOR directs the judiciary to adopt a specific method one-of-a-type interpretation for TABOR cases giving TABOR super-constitutional status.) It challenged the treating of statutory-like language in constitutional initiatives as if such language recited fundamental principles. The brief is available here.

The trial court held that TABOR's text, instructing that "Its preferred interpretation shall reasonably restrain most the growth of government," trumped the "generally accepted standard of review requiring that the unconstitutionality of a given statute must prove its unconstitutionality 'beyond a reasonable doubt.'" CCLP's amicus brief contested that analysis, pointing out that the trial court's conclusion was based upon a purely literal reading of a TABOR clause, disregarding the other interpretive factors that are to be applied to TABOR's standard of review provision. In addition, "...there is no precedent for the position that constitutional initiatives can be used to compel the judiciary to employ some particular interpretive method, let alone the 'preferred' method set out in TABOR."

In its decision of March , the Colorado Supreme Court overturned the use of TABOR's "preferred" standard of review method, holding that:

"As an initial matter, the plaintiffs assert, and the trial court held, that the presumption of constitutionality and the beyond-a-reasonable-doubt standard necessary to overcome it do not apply in this case. The trial court instead found a different standard applicable in this case because article X, section 20, states that, “[i]ts preferred interpretation shall reasonably restrain most the growth of government.” Colo. Const. art. X, § 20(1). However, this tenet of construction is not a refutation of the beyond-a-reasonable-doubt standard, but rather an interpretive guideline a reviewing court may employ when it finds two separately plausible interpretations of the text of article X, section 20. A challenge to the constitutionality of a state statute cannot be resolved by relying on article X, section 20's tool of construction." Mesa Co. Bd. of County Com'rs v. State of Colorado, 203 P.3d 519, 527 (Colo.,2009).
The Opinion of the Colorado Supreme Court in Mesa County Board of County Commissioners vs. State of Colorado is available here

Terry Kelly of Kelly, Garnsey, Hubbell & Lass is a mentor to other MVL volunteers. He helps MVL handle tough issues, and he perseveres through MVL clients' cases that have grown too complicated for the FLCP to handle.

Kelly received his J.D. from the University of Notre Dame in 1968. He worked as a Staff Attorney for the Legal Aid Society of Multnomah County, in Portland, Ore., and then as a Staff Attorney and Managing Attorney for the Legal Aid Society of Metropolitan Denver. At his firm, Kelly negotiates and litigates complex civil law and family law matters.

His associate Jerremy Ramp serves on MVL's governing board and represents MVL clients on a regular basis.

"It is a personal and professional blessing to have a mentor - in fact, an entire firm of mentors - that supports and encourages involvement with MVL and other pro bono endeavors," Ramp said. "From a young lawyer's perspective, it is excellent training in the art and mechanics of dealing with clients, opposing parties and the court."

Kelly said MVL clients keep him grounded, because they offer perspective on the issues facing his other clients from other communities. MVL practice helps him understand judges and the judicial system.

"I liken it to surgery. It is hard to be a good surgeon if you aren't regularly in the operating room," said Kelly. "I ask our young lawyers to get involved for the selfish reason of getting themselves into a courtroom on a regular basis. Smell the paint. Locate the podium. Pick up on the unwritten customs. Learn to be helpful. Practice empathy. It doesn't hurt to have judges see you helping them with this work."

- Diane A. Van Voorhees, The Docket, April 2008.

• We are happy to announce that Linda Long has joined the firm. Linda is a talented and skilled paralegal, bringing with her over 30 years of experience in the legal field. Linda is a wonderful addition to the KGHL family.



• Jane Taylor, a bright and promising law student at the University of Colorado, spent last summer with the firm and continues to work with the firm at least one day a week while she completes her final year of law school. She also provided a moving yet inaccurate rendition of Jingle Bells at the firm holiday party.



• Jen Elmi left the firm in December of 2009 to relocate to Washington D.C. to pursue her Master's Degree in International Conflict Resolution at George Mason University. We wish Jen the best but already miss her.



• Bill Walters just received a letter advising that he was "selected by [his] peers for inclusion in the 2010 edition of The Best Lawyers in America in the specialties of Antitrust Law and Non-profit/Charities Law." They said it was a "singular honor"--- whatever that means.

In this year's election, the Obama campaign and the Colorado Democratic Party recruited and trained 2,000 volunteer attorneys to ensure that Colorado voters would be allowed to cast their votes and have those votes counted on election day. Martha Tierney led the effort for the Colorado Democratic Party. Read the story here.

In addition to continuing to serve on the CBA Executive Council, Legislative Policy Committee and Joint Management Committee, Bill Walters will be keeping busy with the following:

• Member of CLE Program Committee for "Institute on Advising Nonprofit Profit Organizations in Colorado - 2010"
• Presentation on "Managing Legal Risks" to boards of directors of various nonprofit organizations
• Presentation to CBA Bar Leadership Class on "Professionalism" (February 19, 2010)
• Presentation on "Legal Update" to Colorado Society of Association Executives (April 8, 2010)
• Presentation on "Employment Law for Veterinarians" to American Animal Hospital Association (April 22, 2010)
• Regional Presentations on "Statutory Update for Motor Vehicle Dealers" throughout Colorado (Grand Junction, Glenwood Springs, Pueblo, Colorado Springs, Denver, Loveland)

Bill Walters has been busy in the first half of 2010:

March 18th - Bill was made an "honorary member" of the American Animal Hospital Association's Past President's Club---the only non-veterinarian to be so honored in the over 80 year history of the organization. Bill has served as the AAHA Legal Counsel for almost 25 years.

March 23rd - contrary to numerous predictions, Bill turned 65. Canes and walkers were raised in joyous celebration.

April 8th - 2010 Legal Update program for the Colorado Society of Association Executives which included legal issues related to governance, employment law, social media, antitrust, and contracting.

April 30th - Bill, a member of the Institute's Program Committee for the 19th straight year, was a speaker at the 19th Annual Institute on Advising Nonprofit Organizations in Colorado on the interplay of social media and individual rights of privacy.

Americans For Limited Government Foundation, one of the several right-wing nut houses bunkered in Northern Virginia, recently honored Terry Kelly by letter advising that it was putting him "in our database," as part of its

monitoring all reports of a wide variety of leftist organizations. As your name appears in subsequent reports, it is our intent to publicize your involvement in your local community.

Read the letter and accompanying "memorandum from our [Foundation's] legal counsel" here.

In January, 2008, Terry Kelly returned to his home town of Decorah, Iowa to work for Barack Obama in the Iowa presidential caucuses.
Read Terry Kelly's memorandum essay on this here.