I went to the Schlegel v Pippin permanent protective order hearing today, 4-27-2012. The Denver Post’s immediate coverage of the hearing seems to be scripted to a narrative the Post is comfortable with. I have some different take-aways.
First, with regard to C.R.S. 13-14-102. Civil protection orders – legislative declaration, the following excerpts appear relevant to a preamble colloquy between the attorney for Elbert County, Alex Beltz, and Judge Palmer Boyette.
(3) A motion for a temporary civil protection order shall be set for hearing, which hearing may be ex parte[.]
(5) Upon the filing of a complaint duly verified, alleging that the defendant has committed acts that would constitute grounds for a civil protection order, any judge or magistrate, after hearing the evidence and being fully satisfied therein that sufficient cause exists, may issue a temporary civil protection order to prevent the actions complained of and a citation directed to the defendant commanding the defendant to appear before the court at a specific time and date and to show cause, if any, why said temporary civil protection order should not be made permanent. In addition, the court may order any other relief that the court deems appropriate.
(9) (a) On the return date of the citation, or on the day to which the hearing has been continued, the judge or magistrate shall examine the record and the evidence. If upon such examination the judge or magistrate is of the opinion that the defendant has committed acts constituting grounds for issuance of a civil protection order and that unless restrained will continue to commit such acts, the judge or magistrate shall order the temporary civil protection order to be made permanent or order a permanent civil protection order with different provisions from the temporary civil protection order.
(b) Notwithstanding the provisions of paragraph (a) of this subsection (9), the judge or magistrate, after examining the record and the evidence, for good cause shown, may continue the temporary protection order and the show cause hearing to a date certain not to exceed one hundred twenty days after the date of the hearing if he or she determines such continuance would be in the best interests of the parties and if both parties are present at the hearing and agree to the continuance. In addition, each party may request one continuance for a period not to exceed fourteen days which the judge or magistrate, after examining the record and the evidence, may grant upon a finding of good cause.
Attorney Beltz inquired of Judge Boyette,
“Your honor it was my impression that according to the statute 13-14-102 that this was now a show cause hearing in which the defendant was to show cause in why the aforementioned temporary civil protection order was not to remain permanent.”
Judge Boyette responded,
“I agree with the initial reading of the statute as you state that it places the burden upon the person that was not present at the initial hearing. My concern is that this is a public agency, a government that is seeking to take action against a citizen of that government agency and as far as I’m concerned I think the burden still resides with the county and the officials in the county when they are acting against a citizen. Just as in a suppression in a criminal case it’s always the state’s burden to establish that they are acting constitutionally and appropriately. I think under these circumstances in fairness to Mr. Pippin, he was not present, he has numerous county officials filing affidavits and paperwork against him, as far as I’m concerned it’s still the county’s burden to establish the need for the protection order against him, and the statute I think goes on to state that the court still has to find that an imminent danger exists to the persons and the person that is seeking the protection order. It speaks numerous times about what findings the court still has to make and given the circumstances of this, I think it’s only fair to Mr. Pippin that the county still has the burden to prove that it is necessary for the county’s protection to have this order issued against one of its citizens.”
To recapitulate, the statute allows for a temporary protection order to be issued ex parte, or without the defendant party present. In this case, Judge Holmes heard the evidence, determined it was sufficient, and issued the temporary protective order against Donald Pippin.
The statute then shifts the burden of proof to the respondent in subsequent proceedings to show cause why the temporary protection order should not be made permanent. In evaluating the temporary order for permanency, subsequent courts have duties to examine the record and evidence before making further orders.
Nothing in the statute allows for shifting the burden of proof from the defendant to the county, yet that is precisely what Judge Boyette did today. He didn’t merely interpret the statute in a favorable light to one party, he changed the plain meaning of it.
Judge Boyette’s changing the rules of the game in this case raises a good question. Are statutes meant to be elastic guidelines for judges to deviate from as circumstances develop? Is the proper role of judges in our society to not only interpret statutes but to apply a different plain meaning to them when they determine the need arises? And as in this case, should they do so before the proceedings have even begun, before the evidence has been heard?
In Judge Boyette’s conclusion he said,
“It’s quite clear that the county has failed to meet their burden of establishing the danger to the employees and the need to have this protection order issued to protect all of the employees from you [Mr. Pippin]. I believe that even if this was just a regular employment office, a business, I would not grant it even under the circumstances of a business. I believe the government has a higher duty. To impose this upon a citizen, that would remove some of your freedoms and some of your rights, prohibit you from going into a building, having contact with various individuals. The court, although having gone to law school and being an attorney and a judge for a long time, I did not lose my common sense.“
Perhaps at the beginning of the hearing, when the judge decided to depart from the statute and reallocate the burden of proof, his conclusion had already come into view.
Judge Boyette went on to say,
“A common sense tells me that you are not a threat, however I will warn you that apparently the county attorney and various officials and individuals in the county consider you a threat. I would expect that you in your relations with them, which I’m sure will continue, hopefully are professional and that hopefully you have learned a valuable lesson in regards to how to deal with these circumstances.“
With due deference to Mr. Pippin’s service to our country, and based on the evidence presented today, it appears Mr. Pippin did not present himself very diplomatically in some of his dealings with county personnel. County personnel deserve cordiality from everyone, especially from members of the public who push them to go beyond their normal job duties and satisfy exceptional requests in a timely manner to the public. And when these requestors are people who don’t appear to be acting in a bona fide interest for the greater good, but who appear to be gaming the system to find a “gotcha” piece of evidence they can use to publicly embarrass an elected official they’d like to see defeated in the next election, well, let’s just say that the need for cordiality is palpable.
Hopefully Judge Boyette’s handling of the situation today sufficiently impressed upon Mr. Pippin, and just as importantly on the supportive mob who applauded Pippin from the gallery, that the standard of behavior in our official dealings with county employees does not allow for anger, belligerence, bullying, harassment, and intimidation.
I applaud Commissioner Schlegel for standing up for the county employees he was elected to lead. Judge Boyette questioned whether Commissioner Schlegel had the unilateral authority to defend the county employees over their safety concern with Pippin. But Schlegel was the only one who could reasonably have done it. Involved in their own campaigns, Schwab and Shipper would have been accused of a politically motivated attack had they publicly participated. All three commissioners took the high roads afforded to them on this matter. That’s leadership.
Stepping back to the larger story, of which this case is one chapter, the one-sided political disposition of the preponderance of requestors for open records information has already been shown on this blog. These are the same people who take advantage of public meetings at the county to endlessly grieve over the various injustices they routinely perceive. This situation is entirely political. The multitude of open record requests, the free association venting sessions at commissioner meetings, they’re all opposition political theater.
Unfortunately it’s an unimaginative, predictable, unproductive, expensive, and time wasting show that militates against the execution of good government. The whole point of this theater is to discredit the current commission, to create the impression that a crisis exists, and to build momentum for change upon a false narrative.
Commissioners have bent over backwards to accommodate these detractors, but notice how their detractor’s narrative never changes. It’s categorically negative to the BOCC and contains all the stereotypical shibboleths of the left – the BOCC is stupid, they’re tools of capitalist oppressive industry, they want to pollute our water and air, they’re enemies of the people, so on and so forth. Chairman Mao could script this stuff.
So where do we go from here?
Since open records requests have become a tool of political harassment in Elbert County, the county should establish a records request regimen that comports with requirements of the Open Records Act, but that also prevents disruption to the business environment in county offices.
As for the kumbaya open mic session at each BOCC meeting — currently abused with blatant political aggrandizement by candidates and their cheerleaders — the BOCC who sit in quasi-judicial capacity at those meetings may want their meetings to also be a court of first impression where anyone can stand up and hold forth at will. But it’s not working out very well. Perhaps a more formal process for bringing new issues to the BOCC should be instituted and the free association sessions should go the way of the Dodo bird.
Mr. Rowland likes to talk about a bit of megalomania he calls the “right to participate” in county government. In our system of government it takes a successful election to perfect that right. You don’t just walk in the door and start holding forth.