Clear The Bench Colorado Director Matt Arnold interviewed by Jimmy Sengenberger of SengCenter radio on the importance of impartial justices, judicial philosophy, and upholding the rule of law against the backdrop of President Obama’s nomination of Sonia Sotomayor to the U.S. Supreme Court and the failure of the “Mullarkey Majority” on the Colorado Supreme Court to live up to the standards of jurisprudence demanded of justices at the highest level.

Matt discusses some of the reasons that Colorado voters should “clear the bench” in 2010 by voting “NO” on four “unjust justices” of the Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) and how the Sotomayor nomination provides a teaching moment on the attributes, qualities, and standards expected of judges.

Listen to the interview (which starts at about halfway through the show, @29 minutes)

Another excellent article (by Thomas Sowell) amplifies my earlier critique of “empathy” as a basis for selecting judges (particularly for the highest court - state or federal Supreme Court).  ALL citizens are entitled to fair and equal treatment before the law - Justice must be blind to race, class, ethnicity, or social status.  We must uphold the rule of law - not “rule by whimsy” to benefit a favored few.

‘Empathy’ in Action
A poisonous doctrine for any judge, much less a justice of the Supreme Court.   (some excerpts follow)

Appearing as the guest speaker at the next Larimer County Republican Breakfast Club event on Monday June 1st at the Cottonwood Club, Clear The Bench Colorado Director Matt Arnold will discuss the grassroots movement to vote “NO” on retaining the four Colorado Supreme Court justices facing voters in 2010…

(Although this article doesn’t deal directly with the Colorado Supreme Court, it sheds an important light on the issue of judicial qualifications and attributes desirable in our judges - particularly on the highest court at both the State and Federal levels.  Cross-posted by permission of the author, Rossputin).

Well, we can’t say we weren’t warned. Obama has always said that the Constitution is essentially irrelevant, in the sense that it can and should mean whatever the newest, most liberal generation of activists in judges’ robes says it should mean.

And now we have the Supreme Court nominee to prove that Obama really meant it - and that elections have consequences.

Much fuss will be made over Sonia Sotomayor’s humble beginnings and Puerto Rican heritage, as if those things are qualifications for the nation’s (the world’s?) most important court. However, those beginnings and that heritage will remove the spine from enough Republicans that Sotomayor will have a relatively easy time getting approved.

For the record, I believe that the Senate should generally approve a president’s judicial nominations because that’s clearly a prerogative of winning an election unless the nominee is incompetent or was nominated through corruption, nepotism, etc.

But even a cursory look at some of Sotomayor’s decisions make one realize that she is a dangerous judge and one whose view of the importance of the Constitution is so twisted that she is, in my view, on the borderline of incompetence.

Most media discussion about Sotomayor’s judicial history is turning on a recent case in New Haven, Connecticut, where the city refused to promote firefighters after the results of the test created to judge who should be promoted ended up with no minorities passing the test. White firefighters sued, correctly saying that it was an obvious case of reverse discrimination. It has been widely reported that a highly respect judge on the same court, the Second Circuit Court of Appeals, strongly criticized Sotomayor, saying that the 7-6 majority opinion essentially ignores “the weighty issues” involved in the appeal, particularly the weighty constitutional issues.

The Supreme Court has agreed to hear the case and, with luck, will overturn Sotomayor’s decision from the Court of Appeals…just as they did on a 6-3 vote a few weeks ago in the case of Entergy v. Riverkeeper.

Riverkeeper is a case which should make supporters of property rights and of rational, limited government shudder. In that case, Sotomayor ruled that the EPA was not permitted to perform a cost/benefit analysis of technologies used to protect animals located near power plants. Instead, all that mattered was whether the industry could afford the “best” technology. The Supreme Court overruled Sotomayor, saying that the EPA could choose to use cost/benefit analysis. Can you imagine the implications for government and society if government agencies didn’t just avoid rational cost/benefit calculations from time to time, but were actually not permitted to make them?

Sotomayor has also cited international law or practices in her court decisions, another aspect of her approach which should frighten Americans.

A CNN review of Sotomayor’s rulings which have been heard by the Supreme Court shows that she is usually overruled, and that when she is not she is still often criticized for faulty logic or a faulty understanding of the law.

All in all, Sonia Sotomayor is exactly what we should have expected and feared from Barack Obama: A liberal activist who legislates from the bench, using any twisted logic she can find to squirm through existing law and obviate our Constitution.

Yes, Virginia, elections have consequences…

Link to Original post at Rossputin.com.

What makes a good judge?  According to President Barack Obama, the replacement he’s seeking for retiring Justice David Souter “must be an individual endowed with ‘empathy’.”

A recent article by Mike Rosen in the Denver Post explores the topic in greater depth.  Rosen notes that President Obama proclaimed of his potential Supreme Court nominee that ”‘I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book.  It is also about how our laws affect the daily reality of people’s lives.’  (Oprah, perhaps?)  Compassionate and seductive as this pronouncement may sound to some, it represents a radical and dangerous departure from traditional American jurisprudence.”

“When empathetic judges rule on their feelings, they are exceeding their authority …  The point is that the role of the judicial branch of our government is to rule on the Constitution as written and the law as passed by Congress and signed by the president.  The courts are a co-equal branch of government, not a superior branch.  Their job is not to rule on what they think the law ought to be.”

As noted in a previous post, there is a fundamental difference in principle between those (such as President Obama) who advocate for judges to render decisions based on “empathy”, twisting the law as necessary to reach a preferred outcome (as in recent rulings by our own Colorado Supreme Court), and those who hold judges accountable to exercise their proper function (and sworn duty) to uphold the rule of law. 

ALL citizens of Colorado (and the United States) are entitled to equal treatment before the law.  Judges who rule by “empathy” are playing favorites, “helping” a select few while harming everyone else.  Unless judges are restricted to their proper role as referees, not players, we all lose.

If Democrats in the 2007 General Assembly were devious for passing Gov. Ritter’s infamous property tax hike without voter approval, the current crop plunges to new depths.

In an act of sheer arrogance, this year’s Democrat majority poked taxpayers in the eye just for spite.

Recall that the aforementioned property tax hike increases the burden on local property owners while reducing the state’s obligation to fund K-12 education.

Recall also that Colorado’s constitution says that no “tax policy change directly causing a net revenue gain” can be enacted without a vote of the people and that this policy change increased property tax revenues by $117 million in the first year alone.

Finally, recall that crafty Democrats hinged permission for their tax hike on 174 separate, previous votes by taxpayers in all but four of the state’s 178 school districts.  Never mind that those voters were repeatedly assured by school and state officials that their taxes would not increase as a result.

Not satisfied that the Colorado Supreme Court slipped this nonsense through a previously undiscovered loophole in the state constitution, Democrats added arrogance to insult by swiftly passing a bill to now prevent any of those 174 school districts from reconsidering.

That’s arrogance, plain and simple.

…

However, Colorado Democrats have already proven that they will ignore the constitution when it’s inconvenient and that the state supreme court can be counted on to back them up.

 (Cross-Posted by permission of the original author, Mark Hillman.  For the remainder of the article, please click here).

At a recent event in Golden, Colorado (at the Independence Institute) a panel of experts discussed the state of individual property rights in the face of mounting attacks by government entities abusing the power of eminent domain to seize land and other holdings for a variety of “public interest” reasons.

According to the findings of their recent publication, “From New London to Telluride and Beyond, Legal Developments Surrounding Eminent Domain in Colorado from 2004-2009,”  the greatest threat is currently being generated by property seizures for “transit-oriented development” (think modern-day “Robber Rail Barons” - but with the power of government).  The panel concluded that these modern-day rail barons, led by the Denver-metro Regional Transportation District (RTD), “could usher in a new era of eminent domain abuse in Colorado.”

Although the government power to exercise eminent domain to seize property for “public use” (such as public utilities, waterways, roads, and, yes, railroads) has long been recognized, it has also long acknowledged not only a requirement for “just compensation” to the original owner, but strict limitations on what constitutes “public use.”  That long-standing consensus, codified in the U.S. Constitution’s 5th Amendment (”"…nor shall private property be taken for public use, without just compensation”) was shattered by the infamous 2005 U.S. Supreme Court case, Kelo vs. New London, in which the heavily divided court upheld a Connecticut government’s ability to take a woman’s small home for the purpose of transferring ownership to a privately-owned pharmaceutical giant that could purportedly generate greater tax revenue.

The Colorado Legislature, responding to public outrage over the Kelo decision, enacted new protections for property owners in the 2006 legislative session, designed to curb the worst abuses of eminent domain power by state and local government entities.

However: the express intent of the legislature, and the will of the people of Colorado, was overturned by the Colorado Supreme Court in the infamous “Telluride Land Grab” case (Town of Telluride vs. San Miguel Valley Corp) in June 2008. 

This case upheld the exercise of eminent domain by the town of Telluride over property OUTSIDE the town limits - and thus, one  would think, outside the jurisdiction of the town.  … The upshot of the ruling is that ANY home rule entity (municipality) can exercise eminent domain ANYWHERE in the state (NOT bounded by geography).

Local and regional government entities have become increasingly bold in their exercise of eminent domain power since the Telluride ruling.  The Colorado Supreme Court has negated the efforts of the legislature to impose at least some reasonable restrictions on the use of this power - which has destroyed many long-standing businesses and uprooted homeowners around the state.  This Supreme Court, in its arrogance, recognizes no limitations on its own power, or that of government in general.

THIS is Colorado’s Kelo case - if you’re a property owner )or if you ever wish to become one) be afraid… be very afraid.

The recently-announced impending retirement of U.S. Supreme Court Justice David Souter - thus giving President Obama his first opportunity to nominate a Supreme Court judge - has focused attention and discussion on the desired characteristics and qualifications to assume that important position.

Recent decisions and actions by our own Colorado state Supreme Court - and the potential for “retiring” four of the current Colorado Supreme Court justices in judicial retention elections in 2010 - raise(s) similar questions about the desired characteristics and qualifications of judges for that court as well.

What makes a good judge?

“An independent, fair and impartial judiciary is indispensable to our system of justice … the judiciary plays a central role in preserving the principles of justice and the rule of law.“

Two Opposing Judicial Philosophies: Rule of Law vs. “Preferred Outcome”

In our system of justice, judges are analogous to referees at a sporting event: at least, that’s the view of the “Rule of Law” school of jurisprudence.  Like referees, judges are supposed to be impartial - taking no sides, applying the rules equally to both teams and all players.  Judges can’t ”play favorites”, and are NOT supposed to be players themselves.

An alternative view holds that judges should NOT hold themselves above or outside the debate, but instead should be “part of the process” - influencing the results to reach a desired outcome.  This view is not necessarily restricted to a particular political party or ideology; there are both “conservative” and “progressive” judges who rule based on what  they personally FEEL to be “right” or “fair” - rather than the stated intent and letter of the law.

However, a judge’s feelings - or personal preferences - are an unreliable (at best) and dangerous basis for a legal system.  Imagine playing a sport in which the rules are constantly subject to change, at the whim of the referee.  Even worse, the referee is friends with some of the players on the other team.  Sound like fun?  Not so much…

Now suppose that you’re forced to play that sport - and your earnings, your property, your freedom, even your life, might depend on the score.  Welcome to the world of “Rule by Whimsy” or judicial activism:

 …when judges substitute their own political opinions for the applicable law, or when judges act like a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of the legislative branch, rather than limiting itself to the powers traditionally given to the judiciary.

 Sound familiar?

HOW (NOT) TO CHOOSE A JUDGE

A recent online article (Obama’s empathetic judicial poison) clearly illustrates the dangers and pitfalls of the “preferred outcome” approach to selecting judges:

Barack Obama’s statement that “empathy” would be a key qualification he’d look for in a nominee to replace David Souter on the Supreme Court is not simply soft liberal thinking, it’s a direct attack on the rule of law, an abrogation of Obama’s oath of office – and entirely consistent with Obama’s prior statements.

Obama’s statement about the process of selecting his nominee included this:

I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.

What Obama is saying here is that the rule of law should be secondary in judicial reasoning to a judge’s own personal feelings. It is nothing short of a recipe for a breakdown of our legal system, and the death of an expectation by participants in court proceedings that they will be treated fairly, particularly if they are not highly sympathetic.

ALL citizens MUST be equally able to expect fair treatment from the courts - and reasonably presume that the law means what it says, so that they can make decisions accordingly.

SO WHAT IS THE STANDARD?  HOW DO WE “JUDGE THE JUDGES?”

The American Bar Association (ABA) - an organization that may be politically suspect, but can at least be presumed to know something about judges and legal standards - has developed a “Model Code of Judicial Conduct” as a standard for “judging the judges.”  Among the key “rules”:

RULE 1.1  Compliance with the Law

A judge shall comply with the law,* including the Code of Judicial Conduct.

RULE 2.2 Impartiality and Fairness

A judge shall uphold and apply the law,* and shall perform all duties of judicial office fairly and impartially.*

COMMENT

[1] To ensure impartiality and fairness to all parties, a judge must be objective and open-minded.

[2] Although each judge comes to the bench with a unique background and personal philosophy, a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.

GENERAL CONSIDERATIONS

[1] Even when subject to public election, a judge plays a role different from that of a legislator or executive branch official. Rather than making decisions based upon the expressed views or preferences of the electorate, a judge makes decisions based upon the law and the facts of every case.

It is clear that the current majority on the Colorado Supreme Court fails this standard.

In 2010, render your verdict - vote “NO” to retain Justices Mullarkey, Bender, Martinez, and Rice.

Our lawmakers are poised to make liars and knaves out of former school board members all over the state. They’re about to make fools out of state education officials of the past two decades. They’re about to make chumps out of local voters from one corner of Colorado to another.

And Gov. Bill Ritter is likely to endorse their high-handed political maneuver, known as Senate Bill 291.

But do not worry: This double cross, which passed the Senate and a first reading in the House this week, is being conducted in the name of the children, so of course it’s all OK.

Ah yes - it’s for the children.  The subterfuge of scurrilous scoundrels since time immemorial…

However, our lawmakers and scoundrel-in-chief-executive Gov. Bill Ritter would be powerless to perpetrate the passage of this double-cross if not aided and abetted by the unjust justices of the Colorado Supreme Court.  Recall that it was the Mullarkey ruling on the Mill Levy Tax Freeze case that enabled the legislature to seize over $117 million in tax payments (and counting) from Colorado voters - without asking them first, as required by the plain language of the Colorado Constitution.

Bill Ritter, of course, praised the court’s decision: “But the real winners today are Colorado’s children…” despite the fact that “none of the funds are actually earmarked specifically for schools. The extra revenue from the mill levy rate freeze flows directly into the state’s general fund.”

The high court, you see, was also determined to help the children - so to heck with the constitution.

 So why is this a double-cross?

First, a little background: When a large majority of school districts in the 1990s asked voters if they could keep all of the tax revenue they were then collecting rather than return surpluses under the Taxpayer’s Bill of Rights, they were careful to assure homeowners that the change would not trigger a long-term escalation in property taxes.

Absolutely not, district officials promised. As the assessed value of property continued to rise, they added, mill levies would tick downward as they had before.

Those officials had every reason to believe they were telling the truth, too, since literally no expert contradicted them. To the contrary. The state repeatedly reinforced the same position. …

“Since your voters are NOT voting to change state law, the de-Bruce election outcome . . . will have NO effect on your district’s school finance mill levy.“

The Colorado Supreme Court’s ruling - and subsequent actions by the governor and the majority in the state legislature - has retroactively made liars out of honest, honorable public servants.  Many of them have already expressed outrage - it was, after all, the Mesa County board who were the named plaintiffs in the suit challenging this travesty of a law - and many others are quietly seething.  ALL of them have suffered a loss of trust with the voters they represent…

NOW the state legislature - with the assumed complicity of the governor and Colorado Supreme Court - is acting to block any attempt by local officials to salvage their good name, honor, and integrity by going back to the voters to allow them to have a say on their original intent:

SB 291 now closes the circle. It punishes any district that wants to reverse its decision to keep the TABOR surplus should its voters now fear a future of ever-rising property taxes. The bill doesn’t actually prevent voters from reversing course, but it ensures that their children will pay a price if they do.

The bill is written and supported by the same people who for two years have insisted that they changed the law on property taxes only because voters had given the green light. “All we were doing was giving voice and respecting the will of the voters,” the governor claimed earlier this year.

Really?  Ensure that your legislators (the House is hearing the bill this week) and Governor Bill Ritter hear your voice and know your will as a voter in opposing this end-run around your rights.

And in 2010 - DON’T GIVE YOUR APPROVAL to the Colorado Supreme Court majority that made this possible.  Vote “NO” on retaining the four “unjust justices” - Mullarkey, Bender, Martinez, and Rice -  who have conspired to take away your constitutional rights.

For those unable to attend - a recap of Clear The Bench Colorado Director Matt Arnold’s speech at the Lincoln Club luncheon, 29 April 2009. 

[Note that this is not a transcript - some differences in text vs. speech may have occurred]

Typically, when people discuss politics, they think of legislators - Federal and State, House and Senate - or executives, such as the president, governor, county commissioners or city mayors.

But in our system of government, there is a 3^rd branch that is equally important: the judiciary.

In Colorado, our judges are not elected - and many have come to believe that they are also unaccountable.  They are not.  Every ten years, even our Supreme Court justices must face voters and receive their approval in order to stay in office.  In 2010, FOUR  of them - Chief Justice Mary Mullarkey, along with justices Michael Bender, Alex Martinez, and Nancy Rice - need your approval in order to stay in office and continue taking away your rights.  DON’T GIVE IT TO THEM!

This Supreme Court recognizes no limits on its power.  THIS majority has arrogated to itself the ultimate power to decide all questions - legislative, executive, or judicial.  For them, THEIR WORD IS LAW - according to them, the Constitution is what THEY say it is.  They do not recognize a standard, or limit.

 If that is truly the case - Why do we need a Constitution at all?

Recent Colorado Supreme Court Rulings - Against the Constitution:

A.      Mill Levy Tax Freeze case (16 March 2009)

WHAT’S IN YOUR WALLET?  The sticky fingers of the legislature - aided and abetted by the Colorado Supreme Court.

The majority’s ruling upholding the Mill Levy Tax Freeze ignored the clear letter of the law, ignored and violated TABOR, and violated the rights of the people of Colorado (entitled to a vote on “tax policy changes… resulting in a net revenue gain“).  The majority justices just made up the rationale for their ruling as they went along.  The impact?

- $117 Million in additional taxes levied on the people of Colorado - and counting.

- Deprived people of the right - guaranteed in the Constitution - to have a say on tax increases.

- Made local school board LIARS after the fact - after they had campaigned on the promise that “de-brucing” would NOT result in an increase in taxes.  This was a Colorado Supreme Court-imposed breach of faith between local government and the people they represent.

Additional impacts of this case are still developing.  Literally hours after the Office of Legislative Legal Services informed the Joint Budget Committee that the ruling also opened the door to eliminating long-standing tax credits and exemptions previously sheltered by TABOR (the now-notorious “April Fool’s Briefing“), Rep. Mark Ferrandino proposed  a new tax - now en route to becoming law.

A few excerpts from Justice Eid’s scathing dissent help to illustrate just how far the majority had to stretch (or outright redefine) clear constitutional language in order to reach their verdict:

“The majority’s rationale for its decision - namely, that SB 07-199 is simply not covered by Article X, Section 20 - is, in my opinion, utterly unconvincing…  it is undisputed in this case that, prior to SB 07-199, state law prevented local school districts from keeping the $117 million in excess revenues that they had collected after conducting waiver elections.  It is similarly undisputed that SB 07-199 removed that provision of state law…  SB 07-199 is thus a ‘tax policy change directly causing a net tax revenue gain to any district’ under the plain language of Article X, Section 20 and requires a vote of the people.”

Even Colorado State Treasurer Cary Kennedy “acknowledged that SB 07-199 was a state tax policy change.”

Eid notes: “Subsection (4)(a) - in plain, straightforward, and unambiguous language - requires ‘voter approval in advance’ for such a “tax policy change.”

So how did the majority reach the opposite conclusion?  Simple - by redefining the language.  This semantic skullduggery goes beyond even a Clintonesque ”depending on what the definition of ‘is’ is…”  calling the Mill Levy Tax Freeze a “reflect[ion]” of local school district elections, a “recogni[tion] of those elections,” an “implement[ation] of those elections, a “stabiliz[ation] of mill levies,” a “legislative direct[ion] concerning use of those funds…”  “Whatever label is affixed, the result is the same: SB 07-199 enacted a change in state tax policy, and therefore voter approval was required.”

“The purpose of Article X, Section 20 “is to require that the voters decide for themselves the necessity for the imposition of new tax burdens.  … Today the majority deprives the voters of this opportunity regarding SB 07-199.  I therefore respectfully dissent.“

B.      “Telluride Land Grab” case (2 June 2008)

This case upheld the exercise of eminent domain by the town of Telluride over property OUTSIDE the town limits - and thus, one  would think, outside the jurisdiction of the town.  However, the majority on the Colorado Supreme Court ruled that, because Telluride is a “home rule municipality” that limits - including those imposed by law by the state legislature - simply don’t apply.  The upshot of the ruling is that ANY home rule entity (municipality) can exercise eminent domain ANYWHERE in the state (NOT bounded by geography).

Also, the ruling denied the role of the legislature in prohibiting or limiting extraterritorial condemnations - thus further disenfranchising the people.  Again, the court took over the function of the legislature, and undermined the rule of law and government accountability to the people.

The ruling majority on the Colorado Supreme Court eliminated standards and guidelines - then declared that because of the lack of standards, the decision rests solely at the discretion of the reigning majority of the Colorado Supreme Court.

THIS is our Kelo case - if you’re a property owner, be afraid… be very afraid.

C.      Salazar vs. Davidson - Congressional Reapportionment Case (1 December 2003)

Another infamous ruling by the Colorado Supreme Court - delivered by Chief Justice Mullarkey, with Justices Bender, Martinez, and Rice concurring, Justice Coats and then-Justice Kourlis dissenting - created the odd 2/3-donut-shaped 7th Congressional District as a gift to current Rep. Ed Perlmutter (who waited two terms to claim it).

The key issues with the resdistricting decision were not so much the creatively invented criteria (”competitiveness”) or odd shape of the resulting district, but the rationale for the decision (indeed, the rationale for the Colorado Supreme Court even participating in the decision).  The critical issue was the fact that the Colorado Supreme Court majority arrogated to itself the powers and privileges of the legislative branch - declaring that “we are part of the general assembly” for the purpose of redistricting.

“Three words in the state constitution grant the General Assembly exclusive power to draw Colorado’s congressional districts: “General Assembly shall.”

However, the ruling majority declared: “The term ‘General Assembly’ encompasses the entire legislative process, as well as voter initiatives and redistricting by court order.”

“In sum, the term ‘General Assembly’ in the first sentence of Article V, Section 44, broadly encompasses the legislative process, the voter initiative, and judicial redistricting.  Regardless of which body creates the congressional districts, these districts are equally valid.”

The circularity of the logic - ’judicial redistricting is part of the definition of General Assembly, therefore we are justified in declaring ourselves part of the General Assembly for the purpose of conducting judicial redistricting’ - along with the breadth of seizure of power (essentially declaring that for redistricting purposes, ‘we are the government’), is simply breathtaking.   When these judges rule from the bench, they really rule from the bench.

As Justice Kourlis noted in her dissent:  “With its holding today, the court significantly alters our form of government.”

Unlike Dave Barry, they really are making this up as they go along.

In conclusion:

Inform yourselves, and help to inform others, about the unconstitutional rulings of this Colorado Supreme Court majority.

Visit Clear The Bench Colorado frequently - we are a resource not only of information on these rulings (our Reference Library is growing broader and deeper each week) but also on related legislation, events, and developments.  Also, we provide an opportunity for citizens and legal professionals to Sound Off! on issues, events, and rulings and contribute personal experiences, insight, or knowledge.

Finally, please help support the cause with your financial contributions - freedom isn’t free.

Thank you.