December 3, 2008 is the deadline for the U.S. S.Ct. Cert - see the end of the next column for the questions I propose to present - revised after a conversation with HALT.org
The Colorado Supreme Court is refusing to acknowledge the lawful application of the Power of Attorney Act. By their silence, these judges are shaming the integrity of the judicial branch. They are stomping on the constitutionally protected rights of the people to (a) select counsel of their choice; (b) the right to contract and (c) the Rule of Law. They have disregarded the Legislature's powers to provide a lawful contract between parties. They are ignoring the constitutionally imposed limitations of their power when they deny the public the same access to legal assistance as attorneys have. If the legislature wanted non-lawyers to be prosecuted for unauthorized practice of law while performing under the authority of the Power of Attorney Act, they would have provided a procedure for punishment (such as they have for prosecuting CPAs. An unlicensed accountant is prosecuted for a misdemeanor under the authority of C.R.S. § 12-2-129, and the criminal code). What is going on here is blatantly unlawful. Was there not ONE judge in our State Supreme Court with the integrity to stand up and admit that I had the right to rely on the plain language of enacted law?
As yet, I have not decided if this case should be taken to the U.S. Supreme Court. One has a better chance at winning the lottery these days. What do you all think? Would anyone care to sponsor the litigation? (The filing fee and publication costs to Cockle Printing). Call me, Linda Sanders, (303 359 7199) orPETITION FOR REHEARING:
This honorable court entered an Order on August 21, 2008 and this Petition for Rehearing in brought pursuant to C.A.R. 40.
The court’s order recites a list of pleadings that have been filed in this case, and then states, “LINDA SANDERS shall be and the same hereby is enjoined from engaging in the unauthorized practice of law.” Then the order imposes costs.
There has never been any confusion as to whether or not I can “practice law without a license” – I conceded that I always was, and am, enjoined from “practicing law without a license.” The whole point to this litigation is the fact that there is one statute on the books that contradicts another – and leaves the public to rely on law at their peril. The whole point to this litigation is to address the fact that the Power of Attorney Act gives an “agent” (not defined with any limitations) the authority to “prosecute or defend” for another, a claim “in any court.”
The court’s order of August 21, 2008, does not address any of the issues raised regarding the application of the Power of Attorney Act – neither mine nor those raised by the OARC, that presented four issues for review and stated that the issues have never been addressed before. On page 13 of their Answer brief, the OARC states,
“This Court has not yet addressed Sanders’ separation of powers argument . . . “ [but has addressed it under attorney disciplinary proceedings].
On page 21, the OARC states that the discussions surrounding the Power of Attorney Act – before its enactment – are silent as to whether it was intended to allow a non-attorney to appear in court for another, to wit:
“There was no discussion whatsoever about the portion of the bill that eventually became C.R.S. §15-1-1313.”
The OARC also cites HB 94-1228, whereby the Legislature declared,
“The General Assembly hereby recognizes that each adult individual has the right as a principal to appoint an agent to deal with property or make personal decisions for the individual.”
Without interpreting the Statute at issue, and reviewing the legal arguments, I am still left to wonder why acting under the authority of the Power of Attorney act is deemed unlawful. The OARC asserts that the “separation of powers” doctrine precludes the Act from being interpreted as applying to non-attorneys. However, I rebutted that by saying (a) it is not the legislature who is authorizing an individual to speak in court on behalf of another – it is the individual – thereby eliminating the trespass upon the judiciary’s powers, notwithstanding that, (b) the Article in the Colorado Constitution upon which the judiciary relies to assert that they can void the Power of Attorney Act only allows the judiciary to make rules – not amend laws.
If it can be assumed that the State Supreme Court has adopted the Hearing Master’s findings, it must be pointed out that his Order did not address the issues because it states, “The PDJ finds that neither the Colorado Supreme Court nor the PDJ have previously recognized a statutory power of attorney that allows a respondent the ability to practice law without a license.” Just because something has not “previously” been addressed does not mean it should be automatically rejected. Laws change all the time. Additionally, the Hearing Master’s order quotes off-point cases decided before the Statute at issued was enacted or it quotes the Shell case - (148 P. 3d 162) which was not about the statute at all – that case was about holding Ms. Shell accountable to a previously entered stipulation.
This issue is ripe for review because the statute has never been interpreted before. This case is a case of first impression, and without providing findings of facts and conclusions of law – the public is being advised that, in this case, we do not operate under the rule of law – but only the rule of the Big Stick.
Question 2: How are non-attorneys subject to the “sui generis” procedures[1] for disciplining licensed attorneys? If “practicing law without a license” is a violation of a statute, (C.R.S. § 12-5-101), why is it not prosecuted by the Executive Branch before a jury?
IN THE ALTERNATIVE, I request an order that clearly states that I am enjoined from the application of the Power of Attorney Act at sections 1304 and 1313, and the reasons therefore.
Respectfully submitted:
[1] Proceedings by the Office of Regulatory Counsel are performed in a “sui generis” jurisdiction. Smith v. Mullarkay, 121 P. 3d 890 (Colo. 2005).
Issues for presentation to the SCoTUS:
1. When the State Supreme Court voids a section of the Power of Attorney Act which specifically provides for a non-lawyer (the agent) to represent a litigant (the grantor of a Power of Attorney), does it violate the Constitutionally protected rights of the parties to contract?
2. Does it violate a non-attorney’s constitutionally protected right to due process when the non-attorney is prosecuted for unauthorized practice of law in a “sui generis” jurisdiction without the right to a jury or the right to confront the accuser, or the right to an impartial forum, when there is no nexus (or license) bringing the non-attorney into the “sui generis” jurisdiction?
