Citizen Kane
When John L. Kane first donned the black robes of a federal court district court judge and climbed the steps of the judicial pulpit in 1977, most Colorado residents had not even been born. He was appointed by President Jimmy Carter who became known for idiosyncratic judicial picks. Eight years ago, this Editorial Board praised Judge Kane over him taking to task the Denver City Attorney’s Office over the torture case of Jamal Hunter in the city jail. He had been compared to film hero Sheriff Will Kane in the western High Noon. While Will Kane knew when to retire, apparently Judge John Kane does not. The octogenarian jurist is being compared more these days with another film protagonist, the megalomanic John Foster Kane in the film Citizen Kane.
Federal judges have, according to the U.S. Constitution, a lifetime tenure which some judges such as Ruth Bader Ginsburg took literally. It appears octogenarian Judge Kane appears to take a similar view to Justice Ginsburg for his position as a District of Colorado federal judge much to the detriment of the people Colorado. His judgement and acuity appear substantially diminished over the years and it’s getting worse. In the fall of last year, he issued an injunction stopping parents in Douglas County from exempting their children from wearing masks in public schools. The public officials and people of Douglas County had spent months fighting to free themselves from the dictatorial mandates of Tri-County Health and its somewhat crazed executive director Dr. John Douglas who singlehandedly destroyed the oldest and largest health department in the state with his mask mandates.
In September of last year, the duly elected Douglas County commissioners voted to finally be freed of Tri-County and set up its own Douglas County Health Department. The new health department issued a ruling allowing a parent or guardian to sign a written declaration exempting their children from school mask mandates.
Free at last, free at last! The children who have the least risk from COVID-19 were liberated from mask oppression at least with the consent of their parents. But while Douglas County was liberated from the malicious hands of Dr. Douglas they were unfortunately delivered into the hands of germaphobe Judge Kane. The School District with teacher union board members and nine students claimed the health department could not make health decisions for the county; that was up to an 84-year-old federal judge. He issued a highly quixotic ruling claiming under the Americans with Disabilities Act children must be masked. Once the governor declared the COVID-19 pandemic to be over it mooted the bizarre ruling but in theory Judge Kane could become his own health department.
What was pathetic about the ruling was Judge Kane’s apparent inability to even understand the federal courts’ own declarations about mask requirements. A statewide declaration had been issued saying those entering federal courtrooms in Colorado could, but were not required to wear masks, except in high COVID areas of the state. While Grand Junction was considered a high-risk, Denver was not. Directives posted on the courtroom doors of federal judges in Denver, other than Kane, correctly indicated that masks could be worn but were not required. On Kane’s courtroom door, it announced masks must be worn. A judge who cannot read and understand orders on masks probably should not be issuing mask mandates.
Kane’s most recent outrage, and there are many others, was his ruling on the effort of five Republican plaintiffs not to have their nominating process overwhelmed by unaffiliated voters who do not share their political beliefs. Kathryn Murdoch and various other Democrats has been pouring money into Colorado Republican primaries to elect ever more left leading Republicans.
“Rosebud”
In theory, in federal court the judge assigned to your case is random so that plaintiffs cannot forum shop. Whether federal judges can try to get certain cases assigned to them is less clear. The plaintiffs in the open primary challenge case were assigned to President George W. Bush appointee Chief Judge Philip A. Brimmer, considered a favorable draw. But then all of a sudden, Brimmer had a conflicting criminal trial and “abracadabra,” up pops Carter appointee Judge Kane who was generally considered the worst pick the plaintiffs could have gotten.
The Colorado Secretary of State Jena Griswold through the attorney general’s office filed a motion to dismiss for “lack of standing” of the plaintiffs because the Republican Party itself was not a party.
Normally a motion to dismiss for lack of standing is considered first as if granted everything else is moot. The plaintiffs had to know that Kane was itching to get them when he combined the motion to dismiss with the request for a temporary preliminary injunction on what appeared to be specious grounds. It was obvious that Judge Kane wanted to get his pound of flesh from plaintiffs’ attorney Dr. John Eastman, a bete noire to Democrats like Kane for advising Trump and speaking on January 6th at the Capitol.
Kane’s 32-page Memorandum and Order was every bit as biased as expected. On the dozens of issues, law, and fact, Kane found every one in favor of Jena Griswold and then some. It was so one-sided that a 710 KNUS radio personality leeringly read out parts of the opinion on his morning radio show (replacing Peter Boyles) various parts of opinions calling it a “b**** slap” to the plaintiffs and their counsel.
When a radio jock finds your legal opinion so biased as to be entertaining, it’s probably time to retire as a judge. Unfortunately, Judge John Kane appears to enjoy pushing Coloradans around so much they will get to carry him off the bench only after expiring and whispering “Rosebud.”
— Editorial Board