Last week’s Colorado Supreme Court ruling in the Volunteers of America v. Gardenswartz case created a windfall win for personal injury trial lawyers (the “ambulance-chaser” set) and incidentally, some of the clients they represent, in collecting damage reimbursements above and beyond amounts actually paid.

The Colorado Supreme Court’s “Mullarkey Majority” (yes, Chief Justice Mary Mullarkey wrote the opinion, in what may be her last parting shot at the Colorado Constitution and the rule of law) in a 4-3 decision (joined by usual suspects Michael Bender, Greg Hobbs and Alex Martinez forming the hard core of the “make it up as we go along” crowd) overturned both a lower court and clear statutory language (13-21-111.6. Civil actions - reduction of damages for payment from collateral source) limiting double-dipping damage recovery.

In plain language, the court ruled that plaintiffs (and their lawyers, who typically collect about a third or more of the total “recovered damages”) are entitled to the amount of medical costs originally billed, even if subsequent bargaining or other arrangements reduces the amount actually paid.

As commented in former State Treasurer Mark Hillman’s blog article (”Phantom damages defy law, common sense“), which was also published in today’s Denver Post (as “Damages ruling illogical“):

As Justice Nancy Rice noted in her dissent, the majority fortified its opinion by selectively misquoting a key co-sponsor of the bill, Sen. Al Mieklejohn, who argued, “I don’t think a person ought to collect more than once . . . for hospital costs and things like that.”

Mieklejohn argued that the victim’s insurer should “be allowed to collect” from the at-fault party “to get their money back.”  That is, the insurer should be allowed to recover the costs it actually paid.  Nowhere did the legislature suggest that the victim had a legitimate claim to a greater amount simply by virtue of buying insurance.

The dissenters, also including justices Allison Eid and Nathan Coats, noted that the majority’s opinion is contrary to “the legislature’s clear intent, the statute’s plain language and sound public policy.”

Why should you care?

Those of us with respect for the rule of law as a matter of principle are outraged at yet another blatant example of judicial “legislating from the bench” in overturning clear statutory language to achieve a desired outcome.

Those of us who believe in a truly independent judiciary free from conflict of interest and potential quid pro quo corruption are concerned that this ruling, by handing over a windfall to the trial lawyers who supported the incumbent judicial majority in retaining office (violating Colorado campaign finance law in the process), further undermines confidence in the courts and the rule of law in our state by raising a perception of potential legal-judicial collusion and quid pro quo corruption).

ALL of us who might receive medical care at some point in our lives (particularly those of us who actually bother to pay for medical insurance) should be concerned about the ruling’s impact on insurance costs (they’ll be going up) and enhanced potential for abusive lawsuits (they’ll increase).

Colorado’s out-of-control state supreme court continues to cost our populace millions (from upholding unconstitutional tax increases, re-defining other tax increases as “fees”, abuse of property rights, and now one more example of civil tort abuse run amok).

Unfortunately, Colorado voters failed to take advantage of their once-in-a-decade opportunity to hold these particular ‘unjust justices’ accountable for the actions - but the fight to reform Colorado’s corrupt legal/judicial complex continues.  Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for violations of Colorado campaign finance law.  Longer term, Clear The Bench Colorado will work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public.  For both of those endeavors, we would appreciate your continued support - via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

In a development which should come as no shock to astute observers of Colorado’s “judicial merit selection and retention” system, the state’s 10th Judicial District performance review commission has been charged with bias in conducting “reviews” of judges in the district, as reported in a Pueblo Chieftain newspaper article (”Officials stand behind performance commission“) earlier this week.

Also unsurprisingly, as reported in the same story,

The powerful entities atop state government that appointed members of the 10th Judicial District judicial performance commission are standing behind their appointees…

Who are the “powerful entities” in question?

House Speaker Terrance Carroll, D-Denver, appointed Karn. Outgoing Colorado Supreme Court Chief Justice Mary Mullarkey appointed Naranjo and Esquibel. Senate President Brandon Shaffer, D-Longmont, appointed Vigil.

The 10th Judicial Commission members in question - all Democrats, appointed by Democrats  (including Mullarkey) voted to recommend against retention for Judge Jill Mattoon (a Republican, although appointed by Democrat Governor Bill Ritter - who has actually appointed several good judges).

Although it is possible that “There is no reason to believe that this recommendation was the result of anything but the conscientious work and sound judgment of the commission as a whole,” there is conversely no reason not to believe otherwise.  Without evidence either way, it’s a matter of dueling opinions.

Since the deliberations of the commission, and basis for their recommendation, are not transparent to the public, suspicions of partisan or institutional bias (in addition to being Democrats, the commissioners in question “have or have had ties to the public defender’s office and another is a criminal defense lawyer”) have been raised by numerous individuals - including Judge Mattoon herself (who, incidentally, was retained in office).

Overall, the “judicial performance review commissions” (at both the district and state level) demonstrate a consistent ‘pro-incumbent’ (pro-”retain”) bias; over the entire history of the existence of the “review” commissions, only 16 judges have EVER been recommended for a “do not retain” vote (that’s an endorsement of over 99% for judicial incumbents), ALL at the district level or below.  At the state level, the commission has recommended to “retain” the incumbent every single time they’ve issued a review (a 100% “retain” recommendation that would make even Fidel Castro or Saddam Hussein envious).

Allegations of bias have been raised in nearly every instance in which the commissions have issued a “do not retain” recommendation.

The main problem with the judicial performance review commissions is a lack of transparency and accountability along with a lack of substantive, documented evaluation. Voters are simply urged to accept at face value whatever recommendations the commissions put forth, without any insight into the process or possible bias of any commissioners (indeed, most often lacking any substantive information whatsoever on which to base an informed decision).

Clear The Bench Colorado has long 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).

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, judges (at all levels) on the ballot.

Perhaps it’s time for the legislature - or citizen initiative - to address much-needed system reform in our judiciary.

The fight to reform Colorado’s corrupt legal/judicial complex continues.  Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for violations of Colorado campaign finance law.  Longer term, Clear The Bench Colorado will work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public.  For both of those endeavors, we would appreciate your continued support - via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

“Amateurs study tactics, professionals study logistics.” (Military aphorism, variously attributed)

Translating from the military vernacular to the political, “amateurs” focus on short-term electoral gains (transitory shifts in legislative majorities or changes in who holds political office) while “professionals” focus on building long-term institutional and philosophical shifts - holding the “high ground” and winning the “hearts and minds” of the electorate by determining the terms of political discourse.

In Colorado this year, the elections with the greatest and most long-lasting implications for the future of the state were not the votes for legislative or executive office, but the once-in-a-decade opportunity to hold an increasingly powerful and expansive judicial branch accountable to the public and to their sworn duty to uphold the Colorado Constitution and the rule of law.

Unfortunately, the effort to educate Colorado voters to what was at stake fell short (despite achieving the greatest percentage of “NO” votes for incumbent state supreme court justices in Colorado history) due to insufficient resources to reach all of the states’ voters.

Among the most important near-term implications on the political front: the continued dominance of the judicial branch in determining the boundaries of Colorado’s state legislative and Congressional districts - with major implications for the future of the tenuous toehold of Republicans in the state legislature (merely gaining a meager one-member majority in a single chamber in what was otherwise a landslide year for the GOP nationwide).

Republicans in Colorado shot themselves in the foot by failing to realize and effectively mobilize resources to deal with this fact at the state level.

Interestingly, a recent Denver Post article continues their tradition of providing information of interest and relevance to the elections after the vote is held (and too late to actually influence the outcome).

The article (”Who holds the key on redistricting?“) published in The Spot political blog, educates the political “amateurs” with a summary of who truly holds the power in drawing the state legislative and congressional maps:

Conventional wisdom holds that Republicans gained a toehold in the looming 2011 redistricting battle by winning back the state House* last Tuesday.

While a House majority helps the GOP’s cause, the balance of redistricting power - particularly of state legislative districts - rests squarely with Democrats, should they choose to exercise it. That point was likely reaffirmed Wednesday, when Justice Michael Bender, a registered Democrat, was appointed Chief Justice.

The political “professionals” running the show for the “progressive” majority which continues to dominate Colorado politics (despite a public majority view that runs counter to that ideology in this state) once again outmaneuvered the amateurs on the “right” - putting resources where they could influence the longer-term big picture:

In 2001, when Dems held only a majority in the Senate, they knew the courts were their best alternative. The balance of the current high court - where five of seven members were appointed by Democratic governors - still appears to rest with Democrats…

In reapportioning state legislative districts (which was taken out of the hands of the legislature several years ago and handed to an appointed commission), the Democrat advantage (thanks to the recent elevation of partisan Democrat Michael Bender to the office of Chief Justice) is even more pronounced. The 11-member commission is appointed by the legislative branch (4 picks total, 2 from each side), the executive (governor picks 3) and the final (and decisive) 4 judicial branch appointments (chief justice).

(Injecting the chief justice into this inevitably political process is yet one more corrupting influence contributing to the increasing polarization and politicization of our judiciary in Colorado).

As the Post’s political editor Curtis Hubbard sums up:

Put simply: Democrats have the edge in the capitol and the courts on congressional redistricting, and have an overwhelming 9-2 advantage in appointing members to the committee that will oversee legislative redistricting.

Although Colorado voters failed to exercise their right to remove 3 politicized judicial incumbents from office via the ballot box this November, Citizens should insist upon (and legislators should implement) measures to remove the judicial branch from the corrupting position of influencing policy and politics in order to concentrate on their primary duty to defend the Constitution and uphold the rule of law.

The fight to reform Colorado’s corrupt legal/judicial complex continues.  Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for violations of Colorado campaign finance law.  Longer term, Clear The Bench Colorado will work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public.  For both of those endeavors, we would appreciate your continued support - via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

Clear The Bench Colorado and this year’s Colorado judicial retention elections - along with the subsequent selection of Justice Michael Bender (who was retained in office with the lowest percentage approval in state history) as the next Chief Justice of the Colorado Supreme Court - continue to garner significant media coverage in the weeks following this year’s historic elections.

Numerous articles across the country continue to weigh in on the subject of judicial retention elections in general, with mention of the successful effort to oust incumbent state supreme court justices in Iowa and coverage of other statewide efforts which fell short (including our neighbor to the east, Kansas, and of course in Colorado).

Many of the articles note that this year’s judicial retention elections may be the harbinger of a real paradigm shift in how the public views judges on the ballot, with a growing movement to hold judges - particularly the more politicized and politically-active state supreme court justices - accountable.

Clear The Bench Colorado noted several of the relevant articles in our Post-Election Media Review post just after the elections, and in our last week’s post (”A New Era for Judicial Retention Elections?“) and most recently “A Tale of Three States” (comparing the judicial retention elections and outcomes in Iowa, Kansas, and Colorado) last Friday.

Judicial retention elections this year may well have been the most significant underreported political story of the year, with opposition and accountability efforts mounted in more states than ever before - which has some defenders of the status quo legal establishment worried.

A recent article published in The Palm Beach Post News (”Florida judges may be on political hot seat“) profiled the campaign to unseat two Florida Supreme Court justices against the backdrop of similar efforts nationwide:

Using e-mails, websites and YouTube videos, conservative groups waged a stealth campaign against Florida Supreme Court Justices Jorge Labarga and James Perry.

And some legal watchers are worried.

Among the “worried” legal watchers quoted in the article: former Colorado Supreme Court justice Rebecca Love Kourlis (executive director of the Institute for the Advancement of the American Legal System, IAALS, which is the subject of a campaign finance complaint for their electioneering activities in support of Colorado’s incumbent justices this year).

“I think we’re going to see it more and more,” she said. “Retention elections around the country are becoming the new battleground.”

Colorado Supreme Court Goes on a ‘Bender’

The other significant news in the aftermath of this year’s judicial retention elections was the selection of Justice Michael Bender as the next Chief Justice of the Colorado Supreme Court.

As previously noted, Justice Bender - a close political ally and ideological inheritor of the mantle of outgoing Chief Justice Mary Mullarkey, who resigned rather than face the voters this year - retained his office by the narrowest margin in Colorado history for an incumbent state supreme court justice (along with his colleague, and ideological ally, Alex Martinez) less than a week earlier.  His retention in office was supported by an organization (the Institute for the Advancement of the American Legal System, IAALS) in which he sits on the board (potentially violating the judicial code of conduct); the group is also the defendant in a pending campaign finance law violation case, which the group’s attorneys recently obtained a delay in bringing to a hearing (originally set for 12 November 2010).

Numerous media outlets around the state noted the selection of Bender for the Chief Justice slot with varying degrees of detail, including:

• Denver Post (”Michael L. Bender to lead Colorado’s top court“)
• Durango Herald (”Colorado Supreme Court names Michael Bender new chief justice“)
• Grand Junction Sentinel (”Bender to lead Colo. Supreme Court“)
• Pueblo Chieftain (”Bender to lead Supreme Court“)

An interesting addition to the list of mainstream media outlets commenting on the appointment was the left-wing political gossip site Colorado Pols.  Normally I wouldn’t credit this collection of closed-minded chatty-kathies (literally; outside comments on the gossipy back-and-forth snark that passes as political discussion on the site are not allowed) with a link, but the insight provided by their reaction to the news (and partisan spin on it) along with their take on the significance of Bender’s appointment for the upcoming legislative reapportionment and Congressional redistricting battles (the Pols consensus view, with which I agree, is that it bodes VERY well for their side) is illuminating.

Stay tuned for more on that subject…

Although this year’s campaign (and election) is over, the fight to reform Colorado’s out-of-control legal/judicial complex continues.  In the near term, Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for their violations of Colorado campaign finance law.  Longer term, Clear The Bench Colorado will work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public.  For both of those endeavors, we would appreciate your continued support - via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

This year’s judicial retention elections were not just a hot topic in Colorado, but also in numerous states across the country.  Judicial incumbents faced opposition to their continued retention in office in states ranging from Alaska (where an anti-retention movement against one of the incumbent state supreme court justices got off to a late start and fell short of success) to Illinois (where the state’s Chief Justice came under fire by business groups fed up with consistent anti-business rulings) in states following the “merit selection & retention” model.

Perhaps the most interesting comparisons are among neighboring states Iowa (which succeeded, thanks to a well-funded, resourced, and politically supported effort, in ousting three incumbent state supreme court justices), Kansas (which failed to oust 4 incumbent state supreme court justices) and Colorado (which succeeded in  encouraging the reigning Chief Justice to resign, but fell short in removing the remaining three incumbent state supreme court justices on the November ballot).

An article entitled “A Judicial Tidalwave?” related the results of the Iowa ouster of three incumbent state supreme court justices to similar judicial-accountability movements in these neighboring states.  After covering the results of the Iowa vote (removing the three incumbents at the supreme court level while retaining some lower-court judges with similar voting records), the article addressed efforts in Kansas and Colorado, ascribing the difference in results to lack of support from existing organizations and groups (including the state party hierarchy, ‘business’ groups, & other ideologically-allied associations:

But despite their efforts, the Republican Party in particular, and even conservatives in general, failed to make this an election issue.

and lack of resources, particularly funding:

[in Colorado] all three justices were retained, though with only about 60% of the vote rather than the usual 70% plus. Unlike the effort in Iowa, Clear the Bench was hampered in its ability to conduct radio and television advertising by only raising $45,000 for its efforts.

The article concludes by noting:

In the end, though a good year for conservatives, the 2010 tsunami was powerless to sweep the judicial retention elections as it did other races. Time will only tell whether the successful anti-retention campaign against Iowa’s Supreme Court justices was an anomaly, or whether it can be duplicated here and elsewhere in the future.

Although this year’s campaign (and election) is over, the fight to reform Colorado’s out-of-control legal/judicial complex continues.  In the near term, Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for their violations of Colorado campaign finance law.  Longer term, Clear The Bench Colorado will work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public.  For both of those endeavors, we would appreciate your continued support - via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

In a development which bodes ill for the rule of law in Colorado (but which was eminently predictable - in fact, predicted by Clear The Bench Colorado Director Matt Arnold in numerous appearances and presentations) the Colorado Supreme Court earlier today announced the impending takeover of the Chief Justice’s position by Michael Bender, who must be viewed as the handpicked heir and ideological inheritor of outgoing Chief Justice Mary Mullarkey.

Justice Bender retained his office by the narrowest margin in Colorado history for an incumbent state supreme court justice (along with his colleague, and ideological ally, Alex Martinez) less than a week earlier; his retention in office was supported by an organization (IAALS) in which he sits on the board (potentially violating the judicial code of conduct) which is also under the cloud of a pending campaign finance law violation case, which may be heard as early as this Friday (12 November 2010).

As remarked in the Law Week article covering the announcement (”Bender Will Be New Colo. Supreme Court Chief Justice“),

Bender, like Mullarkey, is considered a member of the court’s liberal wing. He and fellow justices Alex Martinez and Nancy Rice earlier this month survived an effort by a political group, Clear The Bench Colorado, to oust them. The effort failed, but citizens in some rural counties voted to reject one or more of the three justices.

The article went on to describe some of Bender’s most controversial (and anti-constitutional) opinions, including two of the cases highlighted in Clear The Bench Colorado’s Evaluation of Judicial Performance for Justice Bender, the Barber v. Ritter “fees don’t count as taxes” case (which opened the door for the Colorado Car Tax - er, vehicle registration fee - increase) and the Lobato v. Colorado “judges get to decide school funding levels” case:

Bender is the author of some of the high court’s most controversial recent opinions. In November 2008, he wrote the opinion in the 4-3 Barber v. Ritter decision, which held that the transfer of special cash funds to the state general tax fund is not subject to voter approval under the state’s Taxpayer Bill of Rights, or TABOR. This has been criticized by conservatives as giving the state legislature free rein to circumvent TABOR by increasing fees instead of increasing taxes.

Bender also wrote the October 2009 opinion in Lobato v. Colorado, another 4-3 decision, which revived a lawsuit that alleges the state’s current funding scheme for public education violates the constitutional requirement that funding be “thorough and uniform.” If the lawsuit is successful, the state could be held liable for an additional $2.9 billion a year for public schools. Republican Attorney General John Suthers publicly came out against the decision, which he said “is not good news for the Colorado taxpayer.”

The article concluded with the most recent controversial decision penned by Bender, in the weeks leading up to the election (which Denver Post columnist Vincent Carroll described at the time as “yet another reason why two justices up for retention should be bounced from the bench“:

In a decision last month that gained national attention, Bender authored the opinion in Montes-Rodriguez v. Colorado, which held that a person’s use of another’s social security number is not criminal impersonation. The court split 4-3 on the decision.

Now-Chief Justice Bender is also highly likely to follow in outgoing Chief Justice Mullarkey’s partisan footsteps in determining the boundaries of Colorado’s legislative and Congressional districts (via his appointment powers on the state-level reapportionment commission, and by continuing along the path set in the notorious Salazar v. Davidson redistricting case upholding a judicial power grab to decide Congressional redistricting).

Unfortunately, Bender’s contempt for the Colorado Constitution and disregard for the rule of law is likely to continue to define the out-of-control Colorado Supreme Court for years to come; an already discredited court truly “going on a Bender” as we enter the second decade of the 21st Century.

The most recent edition of the Colorado Statesman uncharacteristically missed the boat entirely in highlighting the election results for the three incumbent Colorado Supreme Court justices on this year’s ballot (possibly allowing the quest for quotable verbiage to overcome accuracy in reporting).

The article (”‘No!’ was on voters’ minds when it came to weighing in on ballot measures - But Supreme Court judges rate ‘thumbs up‘”) published last Friday (5 November 2010) began with the following lede:

Voters Tuesday night gave a resounding “no!” to eight of the nine measures on the 2010 ballot, but an enthusiastic “thumbs up” to retaining Supreme Court and appeals court judges.

An “enthusiastic “thumbs up” to retaining Supreme Court” justices on the ballot?

Hardly.

The percentage of “NO” votes recorded (approximately 40%, with some minor differences between each justice, and significant variation across different counties) was the highest ever recorded for any incumbent Colorado Supreme Court justice since unopposed retention elections were instituted in Colorado in the mid-1960’s; the incumbents’ retention in office was due much more to inertia (along with the taxpayer-funded incumbent-protection “retain” recommendations promulgated in the taxpayer-funded “Blue Book” pamphlets distributed to every Colorado voter) than to any “enthusiasm” for retaining these consistently anti-constitutional unjust justices in office for an additional 10-year term.

The electioneering activities of a consortium of legal-establishment special-interest groups attempting to (and possibly succeeding in) buying the election for their buddies on the bench in violation of Colorado campaign finance law may have contributed to the outcome as well (it would certainly be ironic if the judicial branch incumbents were retained in office due to the illegal activities of their supporters in the legal community).

The Colorado Statesman article similarly erred in stating that the efforts of Clear The Bench Colorado advocated for the non-retention of the four incumbent Colorado Court of Appeals judges appearing on this year’s ballot; even the most superficial review of the CTBC Evaluations of Judicial Performance page would have confirmed CTBC’s recommendation for a ‘Yes’ vote on 2 of the 4, and no recommendation for or against the remaining two incumbents.  The mischaracterization is at worst malicious, more likely evidence of sloppy journalism.

However, the article at least concludes with otherwise accurate information and quotes on the subject from Clear The Bench Colorado Director Matt Arnold:

The effort to oust the judges was led by Clear the Bench Colorado. Executive Director Matt Arnold said Wednesday the “other side” had spent money illegally to support the judges, and his resources got tied up in “frivolous lawsuits.” He attacked an editorial run in The Denver Post from former Supreme Court Justice Jean Dubofsky that supported the judges, which Arnold said was full of “falsehoods.”

However, Arnold said his efforts got more people to pay attention to the issue of judicial retention than had ever happened before. Justices and judges got the most “no” votes on retention in history, with most around 40 percent. “It shows what can be done with raising awareness,” Arnold said. “If nothing else, what I’ve done is sparked attention to the issue, and I’m encouraged by it and by those who paid attention.” But in the end, “David didn’t have enough stones against Goliath.”

Although this year’s campaign (and election) is over, the fight to reform Colorado’s out-of-control legal/judicial complex continues.  In the near term, Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for their violations of Colorado campaign finance law.  Longer term, Clear The Bench Colorado will work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public.  For both of those endeavors, we would appreciate your continued support - via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

Although Clear The Bench Colorado fell short of removing the trio of incumbent Colorado Supreme Court justices on this year’s ballot, the approximately 40% “NO” vote (with some minor fluctuations between individual justices on the ballot and extreme variations in county results) was not only the largest percentage of “NO” votes ever received at the state supreme court level since the institution of unopposed retention elections in Colorado, it may have signaled the dawn of a new era in judicial retention elections, statewide and nationally.

At least that’s the premise of an article published in the nationwide Stateline - State Policy and Politics publication.

Clear The Bench Colorado Director Matt Arnold was interviewed for the article (”Judge fights in Iowa, Illinois signal new era for retention elections“) which appeared online earlier today.

Although the majority of the article focuses on the hotly contested (and big-spending) judicial retention elections in Illinois (where incumbent Chief Justice Thomas Kilbride successfully campaigned to keep his seat) and Iowa (where a trio of incumbent state supreme court justices were ousted thanks to a well-resourced anti-retention campaign), it concludes with a quote from Clear The Bench Colorado Director Matt Arnold on the wider implications of the high-profile judicial retention battles this year:

The result in Iowa is “indicative of a movement to hold that third branch more accountable,” says Matt Arnold, the founder of Clear the Bench Colorado. Arnold’s group sought to remove three Colorado Supreme Court justices this year over a series of tax-related decisions. The campaign wasn’t successful, but Arnold says it may be a sign of more fights to come. “A lot of people are waking up to the fact that our courts have been increasingly usurping power that does not rightfully belong to that branch.”

The movement to hold Colorado’s judicial branch - particularly, but not exclusively, our Supreme Court justices - accountable to the Colorado Constitution and to the people of Colorado is an ongoing effort.  Although Clear The Bench Colorado failed to win this first major battle, the war for judicial accountability continues.

In the near term, Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for their violations of Colorado campaign finance law.  In the longer term, Clear The Bench Colorado will work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public.  For both of those endeavors, we would appreciate your continued support - via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Suppose they gave an election, and nobody (well, only a few) knew?

(Shamelessly paraphrasing Bertoldt Brecht’s epic quote, “Suppose they gave a war, and nobody came?“)

Sadly, we’ve just seen the question answered: the status quo wins - especially when the status quo is aided and abetted by big money.

Curiously (or perhaps not), there has been more extensive coverage of the failure to the oust three incumbent Colorado Supreme Court justices on the ballot this year than coverage of the fact that they were up for a vote in the first place - much less coverage of their performance in office that gave rise to the call to remove them from the bench.

Although coverage of Colorado’s judicial retention elections picked up in recent weeks, for much of the last year awareness of the most consequential and far-reaching election on this year’s ballot was mostly restricted to the most active and observant portions of the electorate alone.  Colorado’s major regional media (especially network television, but also major “news” publications) perpetuated the managed lack of knowledge about the elections - and the issues at stake - in the general public.

A sample of news coverage of this year’s Colorado Supreme Court retention election results - which achieved the highest percentage of “NO” votes in state history - follows:

The Denver Post’s court/legal affairs beat reporter Felisa Cardona was likely the first to post on the results, late Tuesday/early Wednesday: (”Three Colorado Supreme Court justices appear to retain seats“) and scooped most other coverage with a relevant quote:

Throughout the campaign, Arnold was concerned that voters didn’t know enough about the justices or their legal opinions and said the state evaluation system doesn’t go far enough in judging performance.

“People are finally paying attention for the first time ever,” he said. Arnold believes the 60-40 split reflected the highest percentage of no votes for a Supreme Court justice.

The justices have declined to comment.

The George Soros funded “Justice At Stake Campaign” also closely followed results from various judicial retention elections around the nation, highlighting the ouster of three incumbent state supreme court justices in Iowa by a well-funded campaign while noting the triumph of status quo forces against judicial accountability efforts in Colorado and half a dozen other states.

An editorial in Wednesday’s Aurora Sentinel misrepresented the facts (and demonstrated remarkable historical ignorance) in trumpeting the narrowest retention in state history as a “rejection” of judicial accountability (”Voters were clear on this failed partisan attack“).  Although the writer is certainly entitled to an opinion (and in the Aurora Sentinel, the opinion is reliably left-wing), getting a few basic facts correct (such as characterizing CTBC as an “effort to oust members of the state’s supreme and appeals courts appointed by Democrats” when in fact CTBC did not recommend against ANY appeals court judges, and recommended a retain vote for both Democrat- and Republican-appointed appeals court judges, based on judicial performance and adherence to the law, not partisan affiliation) would have helped the writer’s credibility.  Oh, and misreporting the election results by about 10% to support an assertion that the final vote was “unaffected by the campaign” doesn’t help on the credibility front, either.

An interesting but as-yet unreported fact is the variance in the retention vote across various counties and regions in the state; as more complete results become available, look for a more detailed analysis.

Meanwhile, it’s been a long week (capping a long and, ultimately, disappointing year).

Although the campaign (and the election) is over, the fight to reform Colorado’s out-of-control legal/judicial complex continues.  In the near term, Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for their violations of Colorado campaign finance law.  Longer term, Clear The Bench Colorado will work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public.  For both of those endeavors, we would appreciate your continued support - via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free - nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

Arriving somewhat late to the party, but nonetheless providing decent coverage of the issue, the Denver Post joined in the coverage of the campaign finance complaint against the “Know Your Judge” consortium with an (online-only) article late Tuesday afternoon (”Clear the Bench files campaign finance violation claim“).  Following Monday’s Westword article (”Clear the Bench Colorado’s Matt Arnold on campaign complaint about KnowYourJudge.com“) and last Friday’s initial coverage of the blockbuster campaign finance complaint (at up to $500,000 in penalties and fines, potentially the largest in Colorado history) against the Know Your Judge consortium by Law Week Colorado and Face The State, the Denver Post article was the first to obtain a comment from any of the groups directly involved.

“We are having our attorneys look at it …. we will respond accordingly,” said Charles Turner, COBAR executive director. “I can say that the Bar Association has a relatively long history of pointing the public to public information about the retention process.”

The article joins other coverage in noting, however, that the “Know Your Judge” campaign (described as such by several of the involved organizations) does not limit itself to describing the retention process, but in fact does advocate for a vote:

The Know Your Judge website encourages voters to vote, rather than skip over judges on the ballot. “When judges are on the ballot, what do you do? Don’t skip them. Be informed. Get the simple, impartial, nonpartisan facts here,” the website says.

However, the “simple, impartial, nonpartisan facts” that are presented uniformly support a “retain” vote for the 3 incumbent Colorado Supreme Court justices on the general election ballot - a completely one-sided advocacy that identifies this “campaign” as a political committee, under Colorado campaign finance law:

Colorado Constitution Article XXVIII, § 2(12)(a) defines a “political committee” as “any person, other than a natural person, or any group of two or more persons, including natural persons, that have accepted or made contributions or expenditures in excess of $200 to support or oppose the nomination or election of one or more candidates.”

Since the “Know Your Judge” consortium consists of a group of 4 “persons” (including organizations) that have made expenditures in excess of $200 (at least $85,000 to run over 4,000 advertisements in August and September alone) in support of one or more candidates - they are, by law, a “political committee” (just like Clear The Bench Colorado).

The same rules apply to both sides - but the “Know Your Judge” consortium arrogantly acted as if the rules don’t apply to them.

They’re lawyers; they should (and do) know better.

It’s more than a little bit ironic that a consortium of legal-establishment special-interest groups should spend so much money, without any transparency or accountability, to support the retention of Colorado Supreme Court justices against citizens wishing to hold them accountable for their performance.

The outcome of this case will be a strong indicator of whether or not the rule of law applies at all in Colorado; either the same rules apply to both sides, or we are living without law.

Unfortunately, the outcome of this case (in fact, coverage of the news of this case) will arrive too late to influence this election cycle; however, it remains part of the ongoing struggle to hold our officials and institutions accountable to the same laws imposed upon ordinary citizens.

Although the elections are over - the votes are in, and we’re awaiting the results - the fight for an accountable judiciary goes on.  Please continue to support Clear The Bench Colorado with comments (Sound Off!) and contributions - stand up for your rights as citizens.