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Zinna wins lawsuit against former commissioner

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Jurors give county critic symbolic damage award

By Emile Hallez

 

Longtime county critic Mike Zinna won his First Amendment lawsuit Dec. 9 against former county commissioner Jim Congrove when jurors awarded him $1,791 — a number corresponding with the year the Bill of Rights was ratified.

The former talk-radio host and gadfly blogger alleged Congrove and others violated his First Amendment rights by taking steps to prevent him from speaking at public hearings and to halt his investigations into county government.

The closing arguments concluded Wednesday, Dec. 9, leaving the jury to begin its relatively brief deliberations. During the process, a juror reportedly asked U.S. District Judge Richard Matsch for the effective year of the First Amendment. The jurors returned to the courtroom shortly afterward to deliver their verdict.

“You could not have scripted a more perfect ending to this case,” Zinna said. “It was a clear message that the First Amendment is not to be trifled with.”

Zinna said he felt a sense of vindication and was happy with the verdict despite the modest damage award. But he admitted the victory in the long-awaited court battle was also bittersweet.

“After five years of having my name dragged through the mud … it feels pretty good,” he said.

“I feel bad for the taxpayers of Jefferson County. I would’ve settled these cases four years ago for an apology.”

The county paid for Congrove’s legal defense and now must pay the award to Zinna and his attorney fees, which will far exceed the financial award. Zinna has filed another lawsuit, for wiretapping violations, in federal court, alleging Congrove, former assistant county attorney Duncan Bradley and Robert Cook played roles in accessing Zinna’s private e-mails and posting them on the now-defunct website Coloradowackoexposed.com.

Congrove’s attorney, Patrick Tooley, said the verdict — and the monetary award — were acceptable results.

“We were actually very happy with the verdict,” Tooley said. “It recognizes the importance of the First Amendment. … We were very pleased.”

The damage award, he contended, was reasonable.

By contrast, Zinna is seeking statutory damages in the wiretapping case, which he said could reach millions of dollars.

“The judgment could easily exceed $50 million,” he said. The amount would come from statutory damages for every view the defamatory website generated for each of the 14 private e-mail transactions that were posted online, he said. A trial date for that case has not been set.

With the First Amendment trial concluded, Tooley said he hopes that dispute can be laid to rest.

“Our hope is that Jefferson County can put this behind them,” he said.

During the trial’s eight days, testimony came from a slew of witnesses.

Central to Zinna’s case was evidence that came from current and former Jeffco employees, including former county attorney Frank Hutfless and County Administrator Jim Moore, who was fired hours after the trial ended in a unanimous vote by the county commissioners.

Moore said Congrove frequently expressed animosity toward Zinna, though he did not remember Congrove mentioning interest in creating a defamatory website.

The commissioners also discussed installing a microphone kill switch, which Moore authorized, in a public hearing room. The device, which Moore said some officials referred to as the “Zinna switch,” was used to prevent amplified speech, including Zinna’s, during public comment portions of hearings.

Former county attorney Hutfless testified that he hired private investigator Daril Cinquanta to determine whether Zinna was keeping a permanent residence at the Rocky Mountain Metropolitan Airport, which is owned by the county. By Zinna’s own account, he never made a secret of living in a hangar that was part of a building he managed on airport property. Recordings from public comment sessions at county meetings reflect that Zinna consistently listed his airport address, along with his name, before speaking.

Moore testified that the move was part of an attempt to stop Zinna’s blogging on jeffcoexposed.com and coloradoexposed.com, websites on which Zinna posted articles critical of Jefferson County government.

“They generally talked about ways to shut him up, shut him down,” Moore said. “I really tried to distance myself from those kinds of discussions.” Such talks, he said, took place both in and out of executive sessions — which by law are private meetings reserved only for legal advice or discussions of personnel.

Zinna alleges Congrove and Bradley created and maintained Coloradowackoexposed.com, the website that had the sole purpose of defaming him. The site included Zinna’s mugshot — the same photo witnesses said was posted in Congrove’s office — and an exhaustive rap sheet. Printouts from the site arrived in the mailboxes of Zinna’s business associates, including personnel at radio station KHOW and its owner, Clear Channel Communications. Zinna claimed he lost potential income after Clear Channel received a “wacko package” mailing, and his contracts for three shows on KHOW were swiftly terminated, though the station offered to sell Zinna brokered air time at a much higher rate.

Judge Matsch ruled that the potential lost income was speculative and that Zinna could not recover economic damages relating to it.

In addition to receiving “wacko packages,” Zinna’s business associates’ names and contact information were posted on the defamatory website. Zinna said that while he wasn’t necessarily afraid for his own safety during the ordeal, he was worried about his friends.

“I was afraid someone was going to poison my dog,” he said. Fonzi, Zinna’s dog, was often used as a pseudonym on his websites.

Though Zinna is now out of the radio business, he hosts a political commentary show, “Tough Love with Mike Zinna,” on KBDI Channel 12. The show is a far cry from the opinionated exposés from his blogs and one of his radio shows, he said. But a return to investigative work isn’t possible, he said, since his credibility has essentially been ruined.

“It’s fluff. Prominent politicians come on the show, and we shoot the breeze,” he said. “It’s like Larry King. It’s not hard-hitting journalism.”