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Remember the rise and fall of Rome? Well, it's happening again -- right here in our own country. Historians tell us that the United States is in its last phase of social and financial decline (as if intelligent and rational Americans didn't already know that). Americans who have been paying attention know that our legal system appears to be irreparably broken, and that our local, state and federal governments appear to be in corrupt shambles. Illegal aliens (most from Mexico) appear to be taking over our country. I also read (from reputable and reliable sources) that the United States, Canada and Mexico have plans to merge into one country. Can intelligent and rational Americans peacefully stop this madness? Or will there be another bloody American Revolution? Those two questions are what this blog is all about. Please join me in discussing what steps We The Intelligent And Rational People need to take to turn our country around before it's too late. Jan Jackson

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DID THE TRIAL COURT ERR? - Part V

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Contributed by: Jan Jackson on 7/4/2008

Part I of "Did The Trial Court Err?" concerned Jan Jackson's attorney's Opening Brief in the Colorado Court of Appeals. It was a SUMMARY OF THE ISSUES of Jan's lawsuit against her homeowners association, as well as some BACKGROUND INFORMATION.

Part II was about the VALIDITY OF HER HOMEOWNERS ASSOCIATION'S COVENANTS.

Part III was mainly about the TRIAL COURT'S FINAL ORDER/DECISION.

Part IV concerned her attorney's legal arguments about her homeowners association's DEFAMATION counterclaims.

Part V (see below) is about an INJUNCTION against Jan which was sought by her homeowners association and then ordered by the court. An injunction which severely limited Jan's Constitutional right to FREEDOM OF SPEECH. That is, for all intents and purposes -- as regards her homeowners association -- it was a court-ordered "gag order."

Jan's attorney argues, in the Appeals Court in Denver, that "gag order" was improper and must be dissolved.

IV. INJUNCTION

The Association's second counterclaim (Vol. 1, pp. 12-13), never amended, sought injunctive relief against Jackson. The five paragraphs of that counterclaim asserted that Jackson interfered with the "functioning of the Board of Directors in management of Association affairs" (Id., Section 13). The prayer asked for an injunction "enjoining the Plaintiff from specifically naming the Association or its board members ... enjoining her from threatening or implying [civil or criminal matters] ... enjoining her from disruptive conduct at... meetings ..." (Id, p. 13).

The Association is the only counterclaimant. To the extent the Association asks for injunctive relief for anyone other than itself (except possibly the directors when clearly acting in director capacities), the Association lacks standing to seek such relief. Pueblo School District No. 60 v. Colorado High School Activities Association, 30 P.3d 752 (Colo. App., 2001).

The injunction entered by the trial court is in the Appendix at page 5. The first three numbered paragraphs enjoined speech ("Publication," "Publication" and "Communication"). No conduct (other than pure speech) is enjoined. The fourth numbered paragraph mandated her to request removal of prior posted publications and to file with the court proof of her compliance with that mandate, which she did (Vol. 4, pp. 612-651). The injunction did allow her (last paragraph) to seek Association and/or court approval should she desire to say something that facially could be prohibited by numbered paragraphs 1, 2, or 3. The final sentence of that last paragraph then read (emphasis added), "No publication which is otherwise prohibited above shall occur without prior court approval."

The first numbered paragraph bans Jackson from stating even the name of the Association, the names of "past and present board members," and the names of BLM property owners. Jackson cannot even refer to her own property owners association by name. Nor can she refer to the directors (present or past) of the Association by name. Nor any owner. The ban of paragraph 1 is total. She cannot, no matter what the circumstances, "in any manner or forum," refer by name to the Association or by name to any of its past or present directors or BLM owners.

Paragraph 2 bans her "in any manner or forum," even "indirectly," from making certain statements, even if true. She cannot, now, even mention the undisputed fact that the Association (but no names -- paragraph 1 still applies) did not have, never did have, and did not have as of trial 'legal' water storage rights for Lake Jordan. Or mention the assault unquestionably committed on her.

Paragraph 3 (also subject to paragraph 1) bans Jackson from '[c]ommunication by any means, including . . . in person with . . . [the BLM] owners, and . . . board members which in any way alleges criminal conduct, civil wrongs, or mental . . . conditions by any past or present board member of the . . . Association" (emphasis supplied). Jackson cannot even talk to her friends who also are owners in BLM-- and contrary to the impression the Association wants to make, Jackson does have friends among the owners -- or even talk to her husband (he is an owner), in a face-to-face casual conversation over dinner about any perceived possible improper goings-on, including those concerning Lake Jordan and the assault committed on her, even if brought up initially by her dinner companion(s). She can only smile.

Those three paragraphs are not limited to just new matters. She cannot even mention known and undisputed facts of past matters without violating this injunction. All she can really say -- but without naming names -- is that everything is just dandy in her unnamed subdivision run by an unnamed association by unnamed directors. As Jackson would say in one of her publications, "Can anyone spell free speech?"

The trial court's "balancing" of Jackson's free speech rights guaranteed by both the Colorado and the federal constitutions is no balance at all. The injunction is a gag order. The entire last paragraph process likely would take at least thirty days.

Given the Association's attitude toward Jackson, there is no reason to believe that the Association will respond sooner than the allotted 30 days -- and then with a likely "no." She then would be left to the mercy of the court as to how much longer she would be kept waiting -- even for a true statement.
Jackson's hands are absolutely tied by this overarching injunction. What the Court entered was totally unbalanced. No injunction, especially one enjoining speech, should ever have been entered. It is noteworthy that the Association did not ask for a temporary restraining order or a preliminary injunction. The Association's claim of "irreparable harm" is hollow. It was content to wait years before making its case.

As stated in Langlois v. Board of County Commissioners of the County of El Paso, 78 P.3d 1154, 1158 (Colo. App., 2003),

A party seeking a permanent injunction must show that: (1) the party has achieved actual success on the merits; (2) irreparable harm will result unless the injunction is issued; (3) the threatened injury outweighs the harm that the injunction may cause to the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest. [Citations omitted.]

Jackson was enjoined only from "Publication" and "Communication." The publications are discussed above. They are not defamatory. But even if they were, the Association, as is demonstrated by its defamation counterclaim, has a remedy at law for true libel. One would think that if the Association truly were concerned about what Jackson was publishing, and if it truly believed it had been libeled with no adequate remedy at law, it would have acted much, much sooner.

The Association has failed to satisfy even one of the four elements to be entitled to a permanent injunction. Given the word "and" in front of the fourth element, a failure to satisfy even one dooms a request for a permanent injunction.

The first element is not satisfied because the Association has not shown success on the merits -- i.e., the publications are defamatory on their faces. The second element is not satisfied because no irreparable harm will result. If the Association in the future claims defamation, it does have a remedy at law-- sue for defamation. The third element is not satisfied because the harm accruing to Jackson far outweighs the sensitivities of the directors of a quasi-governmental entity who occupy offices they purposely sought. The fourth element is not satisfied because this injunction does affect the public interest. Diversified Management v. The Denver Post, supra; Woodard v. Tamarron Association of Condominium Owners, Inc., supra.

"The first principle of a free society is an untrammeled flow of words in an open forum." -- Adlai Stevenson.

"Only the suppressed word is dangerous." -- Ludwig Borne.

"Criticism of government finds sanctuary in several portions of the 1st Amendment."-- Hugo Black.

"Free speech is intended to protect the controversial and even the outrageous word, and not just comforting platitudes too mundane to need protection."-- Colin Powell.

Although the Association alleged interference with ". . . management of Association affairs," it offered no evidence of interference. It offered only speculation about the increased cost of obtaining water rights and the increased costs of insurance. When asked directly if increased insurance costs could be attributed to anything Jackson did, the answer was "No." Tr, Vol. 4, p. 90, l. 19, to p. 91, l. 4. For the water rights, the Association (as of trial) had not yet even applied for water rights (Tr., Vol. 4, p. 85, ll. 7-11). Mr. Ledford offered no evidence -- none-- that Jackson did anything to hinder an application process that is totally under the control of the board of directors. Tr., Vol. 4, pp. 50-106. Nor did anyone else.

Jackson's right of free speech has been improperly enjoined. This court must dissolve the injunction.

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Part VI of "Did The Trial Court Err?" is about attorneys fees

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