Colorado Supreme Court justices backed by legal establishment – State Commission on Judicial “Performance” recommends retention despite consistent pattern of disregarding clear constitutional language

Yesterday’s publication of the Colorado Office of Judicial Performance Evaluation  “Judicial Performance Reviews” for 2010 surprised absolutely no one in the state by continuing a decades-long pattern of ‘rubberstamping’ retention recommendations for nearly all (but one) of the Colorado judges and justices subject to voter accountability on the ballot this November.  True to form, the commissions maintained their pattern of recommending a “retain” vote in 99% of the retention questions on the ballot (actually slightly increasing their historic average of 98.5% to 99.25% “retain” recommendations this year).

The State Commission on Judicial Performance (the commission “reviewing performance” of Colorado Supreme Court justices and Colorado Court of Appeals judges) continued their decades-long pattern of 100% “retain” recommendations by endorsing incumbent Colorado Supreme Court justices Bender, Martinez, and Rice despite their consistent pattern of disregarding clear constitutional language in a succession of rulings (such as the “Mill Levy Tax Freeze” property tax increase, the “Dirty Dozen” tax increases and of course the Colorado Car Tax (er, “vehicle registration fee”) increase, among others).

Have the commissions completely lost all remaining shreds of credibility?  Many commenters believe so…

Although the commissions (and the non-transparent, unaccountable and political insider-dominated “performance review” process that has served to protect the incumbent judicial officeholders) have their defenders, as exemplified by a recent Denver Post guest commentary (“Criticism of retiring Judge (sic) Mullarkey unfair“) and the “usual suspects” such as the bar associations, trial lawyers associations, and other legal profession advocacy groups (such as the Grueskin group formed to defend Colorado Supreme Court incumbents and oppose the growing influence of Clear The Bench Colorado), an increasing number of Colorado Citizens are beginning to question the commission’s legitimacy and are looking behind the curtain – demanding greater transparency and accountability from our government.

Clear The Bench Colorado has been critical of the lack of substantive information provided by the “Judicial Performance Review” commissions (c.f.  Accountability, Transparency apply to the Colorado Supreme Court, too) as have other independent analysts (for example, this article published by the Denver Post, “Evaluating the performance of justices“, back in February).  As noted previously,

The reports issued on each judicial officeholder by the commissions (and appearing in the “Blue Book”) take the form of a “narrative” which by rule “shall consist of 5 short paragraphs totaling not more than 500 words” – only one of which (paragraph 4) may even address “description of the performance of the justice or judge” at all!  The remaining paragraphs (the bulk of the “evaluation”) list the commission recommendation, including vote (1); describe “biographical data” (2); list “previous employment” (3); and conclude with a catch-all mostly devoted to survey statistics (5).

The narratives are heavily biased towards retention of incumbents; rules restrict the recommendations based on results of questionnaires distributed to a select group (predominantly other judges, attorneys, and a very limited number of people actually appearing before the highest court).  Also, the incumbents under “evaluation” have the opportunity to respond to the draft narrative and request changes prior to publication (wouldn’t you like the chance to re-write your own job review?)

What does eventually appear in the “Blue Book” is so watered down and lacking in substance that it’s almost impossible to make any distinction between ‘excellent’ and ‘poor’ judicial performance.  In fact, if anyone thinks that these reviews are helpful in evaluating appellate court judges and justices, please let me know – and explain how they helped you “judge the judges.”

Reviewing this year’s “performance review” narratives on the Colorado Supreme Court justices subject to voter retention this year, it is difficult (if not impossible) to discern just how the commission reached the conclusion to “retain” these justices in office for another 10-year term.

Take, for example, the commission’s “review” of Colorado Supreme Court Justice Michael Bender.  The one short paragraph (of five total) actually purporting to address Bender’s “performance” on the bench includes the following:

Several attorney comments reflected concern that Justice Bender’s opinions are result oriented. The judges surveyed indicate that Justice Bender’s performance is somewhat weaker for refraining from reaching issues that need not be decided, making reasoned decisions, and being fair and impartial…  some opinions are overly detailed and difficult to follow.

Opinions that are “results-oriented” (i.e. textbook definition of judicial activism) and “difficult to follow” while “reaching issues that need not be decided” (again, judicial activism) while receiving weak ratings for “making reasoned decisions, and being fair and impartial…”  What’s not to like?  Clearly, a ringing endorsement for a “retain” vote.

Colorado Citizens deserve better.  Most importantly, Clear The Bench Colorado agrees with critics of the commission “reviews” (see “Judging Colorado’s Supreme Court justices” letter to the editor)  that voters need “relevant, substantive and vigorous information” – based on “the written decisions of the court” – in order to make an informed decision on whether to retain, or NOT to retain, the three out of the seven justices on the Colorado Supreme Court who will be on the ballot this November.   Based on our analysis of the most impactful decisions rendered by these Colorado Supreme Court justices during their tenure – led by the “Mill Levy Tax Freeze” property tax increase case, the “fees are not taxes” case, the“Telluride Land Grab” eminent domain abuse case, the ‘Lobato’ school funding case, and the judicial usurpation of legislative authority in the Congressional redistricting case, among others – the verdict is clear: these unjust justices deserve a resounding “NO” vote in the November elections.

Become an informed voter; conduct your own evaluation of the performance of these justices, based on how (and whether) they follow the Constitution and uphold the rule of law.  Armed with information, Yes, you can exercise your right to vote “NO” on the four (er, now three) ‘unjust justices’ of the Mullarkey Majority (Michael Bender, Alex Martinez, Nancy Rice, and 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 homes and business from seizure by abuse of eminent domain, and your right to enjoy the benefits of the rule of law, instead of rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your comments (Sound Off!) and your contributions – and vote “NO” on retaining these unjust justices in the November elections!