Monday Media Week in Review – did Clear The Bench Colorado influence Colorado Supreme Court Chief Justice Mullarkey’s retirement?

Media coverage of Colorado Supreme Court Chief Justice Mary Mullarkey’s announcement of her intent to retire rather than be held accountable by voters in the November elections over the last week began to go beyond the initial ‘news’ articles mostly just recounting the announcement itself (along with the obligatory paeans to her lengthy career) to conduct some assessment of her legacy in office, what her departure might mean for future of Colorado’s highest court, and the role of the judicial accountability movement spearheaded by Clear The Bench Colorado in influencing her departure from the bench.

Perhaps the most comprehensive published assessment of Chief Justice Mullarkey’s legacy to appear in newsprint this last week was Denver Post editor/columnist Vincent Carroll’s Saturday, June 5th piece (entitled, appropriately enough, “Mary Mullarkey’s Troubling Legacy – Mullarkey Court altered Constitution’s true meaning“).

Starting with a nod to Mullarkey’s “moderating influence” in her early days on the court – Carroll states (correctly, in my view) that Mullarkey’s “written opinion for the four-justice majority upholding Davis’ 1987 death sentence was a model of rigor and deference to the plain meaning of the law” but then continues:

If only more of her decisions of the past decade had revealed similar restraint.

Carroll then lists a large number of cases in which Chief Justice Mullarkey’s rulings departed from the “plain meaning” of the Constitution, statute, and other documents:

  • The 2003 Salazar v. Davidson redistricting case, in which Mullarkey re-defined the term “General Assembly” to include the courts in order to justify a judicial usurpation of redistricting authority (redistricting is of course properly – and constitutionally –  a legislative function)
  • A number of rulings against ballot initiatives that Mullarkey “attempted to suppress”

I defy anyone to locate a consistent principle or line of reasoning behind the court’s opinions on the single-subject requirement for ballot initiatives. When opponents of illegal immigration tried to put a simple, straightforward (and wrongheaded, in my view) measure on the ballot in 2006, Mullarkey joined a court majority throwing it off for what can only be assumed were raw political objections. As Justice Nathan Coats wrote in dissent, the majority “understands the term ‘subject’ to be so elastic as to give this court unfettered discretion to either approve or disapprove any popularly initiated ballot measure at will.”

  • Ruling to uphold an unconstitutional tax increase (as it turns out, several unconstitutional tax increases) in the notorious “Mill Levy Tax Freeze” case:

More notoriously – or commendably, if you think the state constitution is in need of some creative judicial revision – the court last year approved a legislative measure that will result in escalating property taxes despite clear TABOR language requiring a vote for any “tax policy change directly causing a net tax revenue gain to any district.” In the same decision, the court announced that lawmakers might eliminate tax exemptions without voter approval so long as the revenue didn’t exceed TABOR’s spending limits – and never mind that TABOR doesn’t even hint at such legislative leeway.

  • And finally – the full implications of this decision have yet to be felt, but it’s a coming fiscal trainwreck – Mullarkey’s ruling in the Lobato v. State of Colorado case that will

result in judges, rather than elected representatives, deciding how much Colorado spends on schools. It’s hard to imagine a case that could do more to undermine representative democracy and the separation of powers in this state.

That’s quite a legacy.

On the airwaves that same Saturday, the Face The State Weekend Edition (listen to the podcast) assessed Chief Justice Mullarkey’s announced retirement in light of the growing momentum of the judicial accountability campaign lead by Clear The Bench Colorado:

Colorado Supreme Court chief justice Mary Mullarkey announced this week she would retire effective Nov. 30; what impact did a campaign to ouster a majority of the court’s members have on her decision? Face The State catches up with Matt Arnold, director of the “Clear the Bench Colorado” issue committee.  Play segment

Sunday’s Backbone Radio (AM710 KNUS) show also picked up on the topic of Chief Justice Mullarkey’s retirement, the continued issue of retention elections for the remaining 3 Colorado Supreme Court justices subject to a vote in November (Michael Bender, Alex Martinez, and Nancy Rice) and the importance of civic participation and defense of constitutional limits on government power (Listen to the podcast – 2 segments: 1st begins halfway into the 6:00PM segment, continues in the 6:30 segment)

During the week, other media across the state picked up on the story.  On-air Tuesday (June 8th), the Cari and Rob Show (“Independent Talk Radio for Independent Americans”) in northwestern Colorado broadcast an interview on the Colorado Supreme Court retention elections generally and Chief Justice Mullarkey’s retirement specifically (and the role of Clear The Bench Colorado in both issues).

Guest: Matt Arnold – Director of Clear The Bench Colorado. The impact of Colorado Supreme Court rulings has lead to massive expansion of government power and CTBC advocates not returning the three Colorado Supreme Courts up for election this year.  (Listen to the podcast – starts in the 11AM hour)

In print and online Wednesday June 9th, the Mountain Valley News also noted that “Judge’s decision to step down bears closer look“:

Last week we received notice from the Colorado Supreme Court that Chief Justice Mary Mullakey was stepping down to “pursue other interests.” We think there is more to the story.

Justice Mullarkey has been on the bench since being appointed by Governor Roy Romer in 1987. She was designated Chief of the Court in 1998. For the last eight years she has been involved in one controversial decision after the other, many of which we think are more politically motivated than she would like to admit. …

About 40 years ago Colorado decided to at least make an attempt to take the politics out of the judge selection process. While it was a step in the right direction, not having judges elected did not completely get rid of political influence. The judges are appointed by the governor, then are retained or rejected by the voters. The typical ballot question is: Should Judge Doe be retained in her position as Supreme Court Judge? That is the only chance voters have to remove a person from the bench of any court in Colorado.

This year, along with a strong movement to oust a number of incumbent politicians, there is also a significant movement to reject the retention of several judges, including Mullarkey and three other Colorado Supreme Court justices. Clear the Bench Colorado is a vocal group that has been advocating for the complete overhaul of the court.

Let there be no doubt that Mullarkey’s decision to step down had something to do with the fact that she may have to suffer the humiliation of rejection by the voters, something that does not happen very often. And let there be no doubt that the timing of her resignation is very politically motivated.

Well, THAT’s no malarkey.

On Friday, the defenders of the judicial status quo weighed in with a guest commentary in the Denver Post in defense of judicial incumbents generally (and Chief Justice Mullarkey specifically).  The piece (written by a career politician) called “Criticism of retiring Judge (sic) Mullarkey unfair” and attempted to characterize any critique or assessment of judicial performance outside of the lawyer-and-political-insider-dominated Judicial Performance Review Commission as “attacks” and “over-the-top charges.”  (So much for the 1st Amendment and accountability to the citizens, eh?)

Informed voters discount the Judicial Performance Review Commission reports not only for their pro-incumbent bias (recommending for retention about 99% of the time) but also for the lack of substantive information provided on which to base an informed decision – as noted in an earlier Denver Post Guest Commentary article (published February 13th) entitled “Evaluating the Performance of Justices.”

(Stay tuned for more on this topic)

Rounding out the week, Clear The Bench Colorado was also featured on-air (the Richard Randall show, AM 740 KVOR) on Friday (briefly) and Saturday as well, discussing Chief Justice Mullarkey’s retirement, retention elections, and the Colorado Supreme Court in general.

All in all, another busy week.

Chief Justice Mullarkey’s announced retirement does not change the fact that We The People retain the right to Clear the Bench - we can still exercise our right to vote “NO” this November on the four (er, three remaining) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority”- (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.”  Continue to support Clear The Bench Colorado with your comments (Sound Off!) and your contributions – and vote “NO” on giving these unjust justices another 10-year term!

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