County Court, Boulder County, State of Colorado 1777 Sixth St.

, Boulder, Colorado 80302 (303) 441-3750 CITY OF BOULDER, a municipal corporation of the State of Colorado, Petitioner, v. SETH R. BRIGHAM, Respondent. COURT USE ONLY Case No. 12C175

KILLMER, LANE & NEWMAN, LLP David A. Lane, #16422 Faisel Salahuddin, #40758 1543 Champa Street, Suite 400 Denver, Colorado 80202 Phone: (303) 519-8442 Fax: (303) 571-1001 dlane@kln-law.com fsalahuddin@kln-law.com

Division

MOTION TO ADVANCE HEARING FORTHWITH

SETH R. BRIGHAM, by and through his counsel David A. Lane and Faisel Salahuddin, respectfully moves this Court for an Order advancing the Permanent Restraining Order hearing in this matter from May 15, 2012 to any date the week of May 7-11, 2012. The grounds for this motion are set forth fully herein: 1. This Court issued a TRO on May 3, 2012, essentially enjoining Seth Brigham from petitioning his government for redress of grievances, in violation of the First Amendment to the United States Constitution. This Court set a hearing for May 15, 2012. On that date, undersigned counsel will be in a federal trial involving First Amendment issues captioned Independence Institute et. al. v. Buescher, before the Honorable Judge Phillip A. Brimmer. That fact, coupled with the ongoing harm to the First Amendment resulting from this Courts erroneous granting of a TRO, should lead this Court to set this matter for a hearing forthwith. 2. The United States Supreme Court held in Elrod v. Burns, 427 U.S. 347, 373-374 (U.S. 1976) [t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. See New York Times Co. v. United States, 403 U.S. 1

713 (1971). The Court went on to state that [t]he timeliness of political speech is particularly important. See Carroll v. Princess Anne, 393 U.S. 175, 182 (1968); Wood v. Georgia, 370 U.S. 375, 391-392 (1962). It further held that: "[T]he purpose of the First Amendment includes the need 'to protect parties in the free publication of matters of public concern, to secure their right to a free discussion of public events and public measures, and to enable every citizen at any time to bring the government and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon them.'" Id., at 392 (quoting 2 T. Cooley, Constitutional Limitations 885 (8th ed. 1927)). 3. Political speech, such as that engaged in by Mr. Brigham, enjoys the highest order of protection in the law. The right to speak freely and petition the government has long been protected from retaliatory action by the government. Speech and association for political purposes is the kind of activity to which the First Amendment ordinarily offers its strongest protection. See New York Times Co. v. Sullivan, 376 U.S. 254, 269, (1964) (The First Amendment "'was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people'" (quoting Roth v. United States, 354 U.S. 476, 484 (1957)). Indeed, the First Amendment protects a significant amount of verbal criticism directed at the government. Accordingly, [a]ny form of official retaliation for exercising one's freedom of speech, including prosecution, threatened prosecution, bad faith investigation, and legal harassment, constitutes an infringement of that freedom." Worrell, 219 F.3d at 1212. 4. C.R.S. 13-14-102 (4) (a) reads as follows: A temporary civil protection order may be issued if the issuing judge or magistrate finds that an imminent danger exists to the person or persons seeking protection under the civil protection order. In determining whether an imminent danger exists to the life or health of one or more persons, the court shall consider when the most recent incident of abuse or threat of harm occurred as well as all other relevant evidence concerning the safety and protection of the persons seeking the protection order. However, the court shall not deny a petitioner the relief requested solely because of a lapse of time between an act of abuse or threat of harm and filing of the petition for a protection order. (emphasis added). 5. It is believed that this Court far exceeded its authority in granting a TRO in this matter. There is not a scintilla of evidence that any party is in imminent danger of life or health from Seth Brigham. Indeed, there is no evidence that he has abused or threatened harm to any party presently or ever. 6. Shockingly, the TRO is based upon the fact that Mr. Brigham sent emails to City Council members detailing personal financial information about them. The Petitioners found these to be troubling. It is unfortunate that City Council members are troubled by disclosing personal financial information which is subject to public scrutiny and can be found on-line with minimal effort, however this is not a threat of harm. Petitioners are also troubled that Mr. 2

Brigham called them nasty names, like fascists, fucking fascists and uttered a few fuck yous to members of the council. They also believe that because Mr. Brigham is admittedly bipolar he should be stripped of his rights under the First Amendment. Mr. Brigham also mailed one council member an article on workplace violence, however it was in context of a council discussion on workplace violence. 7. Even more troubling than the disclosure of financial data of public officials may be to Petitioners, Respondent and counsel for Respondent are even more deeply troubled by the fact that a psychologist named John Nicoletti, who has never met, evaluated or spoken to Seth Brigham, is somehow using his psychic abilities to predict the future and opine that Mr. Brigham presented a risk to Petitioners and based upon Nicolettis remarkable ability to predict the future, this Court issued a TRO. 1 Essentially, Seth Brighams First Amendment rights have been stripped away based upon a drive-by psychic forecast from a psychologist who has never obtained one shred of evidence that Seth Brigham has ever threatened any living human being with violence. 8. The Boulder Police Department has taken no steps to date to arrest Mr. Brigham for any of the complained of actions contained in the TRO and charge him with any crimes involving the making of threats to members of the Boulder City Council. Indeed, they should be commended for their restraint in not acting as a rubber stamp for the City Council as they undoubtedly realize that the First Amendment protects precisely the sort of speech Mr. Brigham engaged in. 9. Overwrought hand-wringing by elected officials cannot form the basis for this Court granting a TRO much less a permanent injunction. Because this TRO represents a continuing violation of the First Amendment to the United States Constitution, it is respectfully requested that this Court immediately, forthwith, hear this case. Thomas Carr, counsel for Petitioners does not object to an immediate hearing assuming his witnesses can be available. WHEREFORE, it is respectfully requested that this Court grant this motion and any other relief which this Court deems just and proper. Respectfully submitted,

______________________________ DAVID A. LANE FAISEL SALAHUDDIN CERTIFICATE OF MAILING

The 2002 movie Minority Report comes to mind wherein psychologists from 2050 America were alleged to be so adept at predicting future criminal behavior that citizens were incarcerated preemptively before they could commit the crimes these super shrinks were certain they were going to commit.

I certify that a true, accurate and complete copy of the foregoing was emailed to the following on May 6, 2012: Thomas Carr City Attorney CarrT@bouldercolorado.gov