Never before in Colorado history has so much attention been paid to the extremely important issue of judicial retention elections - and, as citizens across Colorado are discovering, the attention is long overdue.

The Colorado Supreme Court - and particularly, the Chief Justice - exercises enormous power (”clout”) over the lives of Colorado citizens.  The current majority has repeatedly demonstrated that it does not exercise this power with restraint or consideration for your constitutional rights - ruling consistently against individual protections and in favor of expanded government power.  Upholding tax increases (such as the “Mill Levy Tax Freeze” property tax increase, or the “Dirty Dozen” new tax laws) imposed without the required vote of the people, enabling taxes to be collected under the guise of “fees” (such as the Colorado Car Tax), expanding eminent domain abuse to seize people’s property, and grabbing the (legislative) power to draw up voting districts (aided by the recent “Mary-mandering” bill) - this court is acting like rulers, with you as the subjects; re-writing the laws, instead of upholding them.

Awareness is also growing that the system of “judicial performance evaluations” by a select few (10) politically connected individuals on the State Commission on Judicial Performance, with members appointed by the Governor (3), Senate President (2), House Speaker (2), and Chief Justice (3) (talk about the fox watching the henhouse!) has consistently served more to protect incumbents (recommending “retention” for 98.5% of judicial reviews!) than to provide substantive, useful information to the public to enable them to exercise their rights as informed citizens to hold our judiciary accountable.

Defenders of this status quo - advocates of keeping the public in the dark about the actual performance of the Colorado judiciary, particularly our highest court, have already fired off the first salvos (“Criticism of retiring Judge (sic) Mullarkey unfair”).  Our response to this attempt to pull the wool over the eyes of Colorado voters (Accountability, Transparency apply to the Colorado Supreme Court, too) - published (in abbreviated form) in the Denver Post as “Demand accountability from judges, too” has triggered a lively discussion, on the pages of the Post (”readers respond” with comments, and “more reader response” later in the week) and elsewhere.

The latest edition of the Colorado Statesman examines the issue of judicial retention in greater detail (”Judges up for retention face widespread scrutiny this year“).  Beginning with an overview of the retention election process and timelines (including the terms of office for various levels of the judiciary - for the Colorado Supreme Court, the term is 10 years), the article continues with a description of the “evaluation” and review process and the “players” in that process:

Judicial evaluations are governed by the State Commission on Judicial Performance. …

The state commission is made up of ten members; four attorneys and six non-attorneys. Members, who serve four-year terms, are appointed by the Chief Justice, governor, Senate President and Speaker of the House.

The article summarizes the evaluation process, and notes some of the statistics demonstrating it’s lack of rigor and effectiveness:

At the end of the process, each evaluation produces a narrative for the ballot and the Legislative Council Blue Book, which recommends that the judge be retained, not be retained or that the commission has no opinion on retention. The evaluations will also be available on August 3 on the website of the Office of Judicial Performance Evaluation (www.coloradojudicialperformance.gov/index.cfm).

Since judicial retention evaluations began in 1988, there have been 953 judges on the ballot. Fifteen got recommendations against retention and 10 got “no opinion.” Another seven were voted out. In the last retention election in 2008, 102 out of 103 judges were retained by voter approval.

The article goes on to note that “Commission members must read the opinions written by judges when they do the evaluations.  Unfortunately, the article also put out some apparent misinformation, quoting the commission’s current chair (Paul Farley) that “rules requiring the reading of every opinion put too much of a burden on the members.”  Farley appears to be angling for a job, or at least fishing for sympathy, because there is no such requirement in the rules - in fact, the commission must read only 5 opinions submitted by the justice being reviewed, plus another five selected by the commission.  The commission’s Rule 11 (e) states:

“(e) Each appellate judge or justice shall submit to the state commission five opinions he or she authored, including both civil and criminal cases, at least one separate concurrence or dissent, and in the case of a judge of the court of appeals, at least one unpublished opinion. The state commission shall review the decisions, as well as five additional opinions authored by the appellate judge or justice, for compliance with the statutory criteria for legal knowledge and for adherence to the record, clarity of expression, logical reasoning, and application of the law to the facts presented.

Farley also presents the false analogy of playing the numbers game, suggesting that “majority rules” in evaluating decisions “by the numbers”:

One case where a judge may “miss the mark” in ten years “doesn’t tell us much,” Farley said. In a situation where one opinion may be viewed negatively “we wouldn’t say it was a terrible judge who should be thrown out. You’d want to see a trend - a judge who misses the mark over a period of time,” Farley said.

Clear The Bench Colorado agrees completely that only a consistent pattern of violating the Constitution and the rule of law should provide grounds for removal - but rejects the false notion that we should give justices a “pass” on significant violations.  Our analysis has highlighted several (not “one or two”) decisions that have the most impact on Colorado citizens and the state as a whole, and that have most blatantly and egregiously violated the clear language of the Colorado Constitution.  The fact that the “Supremes” might get it right on several less broadly consequential cases does NOT excuse the fact that on the most impactful cases, dealing with core issues of constitutional law and affecting the entire population of the state, the current majority has repeatedly come down on the wrong side of the law and violated your rights under the Colorado Constitution.

The Colorado Statesman article concludes with a critique of the lack of public participation and transparency in the review process (which operates almost entirely behind closed doors, shielding the evaluations from public scrutiny, blocking public participation, and necessarily undermining confidence in the system’s impartiality and accountability).  Clear the Bench Colorado Director Matt Arnold was interviewed for the article:

Arnold said he is less concerned about the performance evaluation process at the lower court levels. “You have more public input at [those levels],” he said. For those judges, there’s more public input, a larger sample size and more opportunities for a broad range of public participation.

But in general, Arnold said there isn’t enough public participation and transparency in the process. All documentation and deliberations are secret, he said, which creates a “fatal flaw. For a system that supports transparency it fails miserably.”

Part of the problem is the rules of the commission, which Arnold says limits what members can consider and can put out for the public. Arnold said the same people who evaluate the judges or justices often have business before them, and in the case of the Colorado Supreme Court, at least one member is appointed by the Chief Justice who then can take part in the evaluation of that justice’s performance.

Arnold said that under the commission rules, the judges and justices can “cherry-pick” five of the cases for review, and the last five are sometimes recommended by the judges and justices, too. In addition, those under review have the opportunity to review the critiques from surveys and commissioner input and then weigh in on those reviews. “It’s like giving your job review and rewriting it before it becomes official,” Arnold said. “That cries out for reform.”

Arnold notes that the state commission is required by rule to look at issues for appellate judges and justices that have little to do with the judge’s adherence to the constitution and the rule of law, Arnold explained. That includes whether the judge runs a neat and orderly courtroom, whether the judge is on time for hearings and has an “appropriate demeanor. It’s like a kindergarten report card, not a professional review.”

Finally, the Blue Book itself gives short shrift to the performance evaluation, according to Arnold. Each judge is described by five paragraphs, only one of which is on judge’s performance. The last four paragraphs list biographical information, the commission’s recommendation and other matters that are not germane to performance, such as volunteer work. In a recent column on his website (www.clearthebenchcolorado.org/) Arnold said the Blue Book analysis is “so watered-down and lacking in substance that it’s almost impossible to make any distinction between ‘excellent’ and ‘poor’ judicial performance.”

Arnold said he would like to see the review process include more opportunity for public input. “There’s very little opportunity for independent review in a process that is very insular,” he said. Arnold is also troubled by how commissioners are chosen - as political appointees and “largely beholden to the people who put them there in the first place. It undermines credibility and transparency and that’s not public accountability.”

“I like the idea of a performance review,” Arnold said. The problem is “the process is too closed…it’s like the fox guarding the hen house.”

We The People can (indeed, as citizens, we must) hold our public officials - both elected and appointed - accountable.  Be a citizen, not a subject - get informed, then exercise your 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 - soon to be minus 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.”  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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