Source = Justice Watch Forum
IN THE UNITED STATES DISTRICT COURT
Civil Action No.____________________
ALEXANDER M. HUNTER, as
Plaintiff Linda Hoffmann-Pugh, by her undersigned Attorney, sues Alexander M. Hunter as the District Attorney for the 20th Judicial District (Boulder) of the State of Colorado, and alleges:
1. This is an action for declaratory and injunctive relief to enforce rights guaranteed to the plaintiff under the First Amendment of the United States Constitution.
2. This Court has jurisdiction over this action pursuant to 28 U.S.C. 1343, authorizing jurisdiction of claims brought under 42 U.S.C. 1983 to enforce rights guaranteed by the United States Constitution, and under 28 U.S.C. 1331.
3. This Court is authorized to issue a declaratory judgment and injunctive relief pursuant to 28 U.S.C. 2201 and 2202, 42 U.S.C. 1983, and Rule 65 of the Federal Rules of Civil Procedure.
4. Linda Hoffmann-Pugh ("Pugh") is a citizen of the United States and of the State of Colorado, residing in the city of Platteville. Pugh is authoring a book concerning her experiences as a housekeeper while she worked for John and Patsy Ramsey in Boulder, Colorado. Pugh was "advised" by the district attorney's office that if she didn't "volunteer" to appear before the Boulder County grand jury in September of 1999, she would be subjected to subpoena. She agreed to appear "voluntarily."
5. Alexander M. Hunter ("Hunter") is the District Attorney for Boulder County of the State of Colorado. In that capacity, pursuant to the color of authority conferred upon him by the laws and Constitution of the State of Colorado, he is responsible for enforcing the criminal laws of Colorado.
6. Linda Hoffmann-Pugh testified before a Boulder County grand jury in September of 1999. She appeared "voluntarily," under the threat of subpoena, to testify by the defendant Alex Hunter (and those authorized by him to act on his behalf), who acted under color of authority conferred upon him by the laws of the State of Colorado. The Boulder grand jury's term ended in October of 1999 without the grand jury issuing an indictment or a report.
7. During Pugh's appearance before the Boulder grand jury, she was required to swear to an oath of secrecy, pursuant to Rule 6.2 of the Colorado Rules of Criminal Procedure. The Rule reads in part: "The oath of secrecy shall continue until such times as an indictment is made public, if an indictment is returned, or until a grand jury report dealing with the investigation is issued and made public as provided by law." (Exhibit 1)
8. Rule 6.3 ("Oath of Witnesses") of the Colorado Rules of Criminal Procedure reads as follows: "The following oath shall be administered to each witness testifying before the grand jury: "DO YOU SWEAR (AFFIRM), UNDER PENALTY OF PERJURY, THAT THE TESTIMONY YOU ARE TO GIVE IS THE TRUTH, THE WHOLE TRUTH, AND NOTHING BUT THE TRUTH, AND THAT YOU WILL KEEP YOUR TESTIMONY SECRET, EXCEPT TO DISCUSS IT WITH YOUR ATTORNEY, OR THE PROSECUTOR, UNTIL AND UNLESS AN INDICTMENT IS ISSUED?" (Exhibit 2)
9. Linda Hoffmann-Pugh intends to write and publish an account of her story as a housekeeper who worked for a family whose daughter was murdered. Part of her story will include her appearance before the Boulder grand jury, whose term has ended without an indictment or a report, and it will recount her testimony before the grand jury investigating the death of her employers' daughter.
10. Linda Hoffmann-Pugh is concerned that, if she publishes any of the questions addressed to her before the Boulder grand jury, or her answers, the defendant Alex Hunter, pursuant to Colorado law, will criminally prosecute her.
STATUTORY PROHIBITION OF DISCLOSURE OF GRAND JURY TESTIMONY AND PROCEEDINGS
11. Rules 6.2 and 6.3 of the Colorado Rules of Criminal Procedure ["the "Statute"] provide a blanket and permanent prohibition of disclosure of testimony by a witness examined before a Colorado grand jury, even after the grand jury's term has ended, if the grand jury fails to issue an indictment or report. Any violation of the Statute's secrecy provision could result in criminal penalties.
12. Disclosure of a witnesses' grand jury testimony is permitted only to their attorney or a prosecutor if the grand jury term ends without an indictment or report. No provision is made in the Statute for a witnesses' testimony if the grand jury term ends without action being taken. Presumably, the witness is still bound by their secrecy oath, in perpetuity, to silence.
CLAIM FOR RELIEF
13. Plaintiff realleges and incorporates herein by reference paragraphs 1 through 12, above, as if set forth in full.
14. This proceeding for declaratory judgment, pursuant to 28 U.S.C. 2201 and 2202 and 42 U.S.C. 1983, is for the purpose of determining the following issue and actual controversy between the parties:
Whether enforcement of Rules 6.2 and 6.3 of the Colorado Rules of Criminal Procedure, after the Boulder grand jury's term has ended, against Linda Hoffmann-Pugh for her written or oral publication of her experience and testimony before the Boulder Grand Jury, is violative of the First Amendment to the United States Constitution under color of state law.
15. Defendant Alex Hunter, acting under color of authority conferred upon him by the laws of the State of Colorado, is obliged to enforce the criminal laws of the State.
16. Now that the Boulder grand jury's term has ended, Linda Hoffmann-Pugh has the desire to exercise her First Amendment right to freedom of speech by relating publicly her experience and testimony before the grand jury. Linda Hoffmann-Pugh is aware of the criminal provisions for contempt and perjury under the Statute, and is therefore unconstitutionally chilled from exercising her right to speak by the defendant Alex Hunter, based upon the color of authority conferred upon the defendant by the constitution and laws of the State of Colorado to enforce the Statute against her.
17. This action is brought by Linda Hoffmann-Pugh to have her rights and the constitutionality of the Statute's prohibition on her speech clarified by this Court. Pursuant to that declaration, Pugh also seeks to enjoin the defendant Alex Hunter from enforcing the Statute because such enforcement would deprive her under color of state law of her rights under the First Amendment to the United States Constitution.
18. The Statute's blanket prohibition of grand jury witnesses' disclosure of their own testimony to anyone except their attorney or a prosecutor, unless or until an indictment or a report is delivered up, violates the First Amendment to the United States Constitution for the following reasons:
(a) it indiscriminately and permanently imposes, in the event there is no grand jury indictment or report, under color of state law, a direct burden upon the exercise of a witnesses' fundamental right of free speech, while failing to serve any compelling state interest once a grand jury's term has ended;
(b) the goals traditionally deemed to justify secrecy in grand jury proceedings do not require for their preservation the blanket and potentially permanent prohibition on speech imposed therein once a grand jury's term has ended. Such goals could be accomplished through means that are less restrictive on constitutional freedoms;
(c) it provides criminal penalties for all forms of disclosure, except for those made to a witnesses' attorney or to a prosecutor, thereby making it a crime to utter the truth. These penalties chill the right to speak, causing persons like Linda Hoffmann-Pugh who would otherwise exercise that right to curtail or refrain from such speech;
(d) it is contrary to the United States Supreme Court ruling in Butterworth v. Smith, 494 U.S. 624 (1990), in which the Court held that a State's interest in preserving grand jury secrecy was either not served, or was insufficient to warrant, proscription of truthful speech on matters of public concern; and that a State statute that had the effect of prohibiting witnesses from ever disclosing their testimony violates the First Amendment insofar as it prohibits a witness from disclosing his own testimony after a grand jury's term has ended.
WHEREFORE, plaintiff Linda Hoffmann-Pugh respectfully requests that this Court render judgment:
A. Declaring the Statute unconstitutional as an overbroad prohibition on the right to speak in violation of the First Amendment to the United States Constitution.
B. Declaring the Statute unconstitutional as a blanket and permanent prohibition on the exercise of the First Amendment right to speak without requiring demonstration that the prohibition is narrowly tailored to serve a specific, overriding state interest on a case-by-case basis;
C. Enjoining district attorney Alexander M. Hunter from attempting to enforce the penalties under the Statute against Linda Hoffmann-Pugh.
D. Ordering the district attorney to turn over a transcript copy of the Linda Hoffmann-Pugh's grand jury testimony;
E. Awarding Plaintiff costs and attorneys' fees pursuant to 41 U.S.C. 1988, and such other relief as this Court deems just and appropriate.
Dated: August 4, 2000