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"

Earlier this year, our law firm's website 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 Phillip 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.

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.

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 linked here. The case has been briefed and argued, and is awaiting decision.

Auguste case update. Terry Kelly, Martha Tierney and Jerremy Ramp continue to work on litigating Donna Auguste's §1983 illegal search and seizure civil rights case in U.S. District Court for the District of Colorado before District Court Judge Phillip Brimmer. Freddie Alvarez manned the laboring oar until he withdrew from the firm at the end of 2008.

California star-prosecutor, Ben Field, had prosecuted Donna Auguste's nephew and led the fight against Donna's attempts to get her nephew's conviction overturned. Donna's nephew was in prison for six years before his conviction was overturned based on prosecutorial and complaining witness misconduct. While Donna was working to set aside Field's conviction of her nephew in a civil habeas corpus proceeding, Field obtained a search warrant (a tool that is almost always restricted to the government's use in criminal cases) and searched Donna's home in Larimer County, Colorado. In August, 2005, U.S. District Court Judge Wiley Daniel, the prior judge on the case until he was named Chief Judge, denied Field's assertion of absolute immunity for his search conduct, which was unanimously upheld by a panel of the Tenth Circuit Court of Appeals (Lucero, J., Seymour, J., O'Brien, J.) Terry Kelly argued that case to the appellate court on behalf of Donna.

When the case was remanded to the trial court, U.S. District Court Judge Philip Brimmer was named to preside over the case. On March 26, 2009, Judge Brimmer entered a detailed order on cross summary judgment motions, finding that the Defendant's search warrant lacked probable cause rendering the search unconstitutional and severely restricted the qualified immunity claims of the California and Larimer County defendants. One week before trial, one of the Defendants filed a notice that he was appealing this ruling to the Tenth Circuit Court of Appeals, which automatically stayed the case, removing jurisdiction to the 10th Circuit until it resolves the defense appeal.

Not only did Ms. Auguste put the light on the Santa Clara County's District Attorney's Office (San Jose, Calif.) by getting her nephew's conviction overturned and by bringing a civil rights action in her own name, she also placed Field's conduct before the California State Bar Court, the disciplinary tribunal for California attorneys. Field's prosecutorial and investigative conduct became a major topic in a week long series and several follow-ups in the San Jose Mercury News, headed up by Pulitzer Prize winning journalist Rick Tulsky. An extensive trial was held by the California State Bar Court to determine whether Field's conduct in the Auguste case and several others warranted discipline. For an article on the disciplinary hearing, See the Mercury News article here.The California State Bar Court issued its 67 page decision in February, 2009, finding Field responsible for extensive misconduct, requiring Field's suspension from the practice of law for at least four years and until such time that he proves he is rehabilitated. Not surprisingly, Field has announced he will appeal that decision too. Field's defense attorney in the disciplinary proceedings was Alan Ruby, a high profile California criminal defense attorney who is also presently representing Barry Bonds. Ten to fifteen assistant DAs from Field's office were present at each session in a show of support for Field.

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.

• Jane Taylor, a bright and promising law student at the University of Colorado, is spending the summer with the firm and focusing on family law. We suspect that she may secretly be studying the rates of mental illness in attorneys as compared to normal people.



• The firm will be hosting a French intern (Maeva Szlovik) who is doing graduate work in legal studies at the University of La Rochelle. She plans on comparing the French and U.S. legal systems with a special emphasis on nonprofit organizations.

Bill Walters tells us this is what he's been up to:


• Bill represented the Colorado Bar Association at ABA Law Day in Washington, D.C. on April 21-23. He and other members of the CBA met with the Colorado Congressional delegation to advocate additional funding for the Legal Services Corporation to help Americans address their legal needs in these difficult economic times.



• The Family Violence Task Force of the CBA will be meeting to discuss its future directions. Bill will provide a history on the work of the Task Force with which he has been involved for the past several years.



• Having just celebrated a birthday, Bill can be found wandering about the firm singing "Will You Still Love Me When I'm 64?" Sadly, no one has answered Bill's sing-songy question yet.

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.

Prior to the November election, Martha Tierney was a speaker at the CBA Civil Rights Committee presentation entitled "Voting Rights." The other two speakers at the event were Jenny Flanagan of Common Cause and John Zakhem of Zakhem Atherton.

The three-day Colorado State Judicial Conference for Colorado state court judges was held at Beaver Run Conference Center in Breckenridge, September 21-23, 2008. Terry Kelly joined Mary Kelly (family law attorney and mediator), District Court Judge Terry Ruckreigle and District Court Judge Tamara Russell in a panel arranged by District Court Judge Angela Arkin to discuss the role of Rule 16.2 Initial Status Conferences in divorce and parenting cases.

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.