The Constitution of the United States begins with the words “We the people.” But neither the Constitution nor “we the people” will mean anything if politicians and judges can continue to do end runs around both.

So begins a superb article by esteemed economist and commentator Thomas Sowell, published Tuesday (”Political End Runs“).

Sowell states the case as eloquently as I have seen about the need for citizens to hold not only their elected officials, but also unelected bureaucrats and judges accountable - to constitutional limits specifically and the rule of law in general.

Sowell’s piece begins with an expose of how bureaucrats in the Medicare office are quietly implementing rules for the healthcare “reform” legislation that were explicitly rejected by Congress (during debate - such as it was - on the same legislation).  As many critics pointed out at the time, the healthcare law ceded extraordinary power and authority to unelected bureaucrats to make up implementing rules as they went along.

The article quickly proceeds to a much more wide-reaching (and dangerous) trend in “political end runs” - judicial usurpation:

It is not only members of Congress or the administration who treat “we the people” and the Constitution as nuisances to do an end run around. Judges, including justices of the Supreme Court, have been doing this increasingly over the past hundred years.

Naturally, Sowell’s focus is at the Federal level - but the problem he articulates is very much a threat at the state level:

Professor Roscoe Pound likewise referred to the need for “a living constitution by judicial interpretation,” in order to “respond to the vital needs of present-day life.” He rejected the idea of law as “a body of rules.”

But if law is not a body of rules, what is it? A set of arbitrary fiats by judges, imposing their own vision of “the needs of the times”?

Actually, that describes quite adequately the condition of law in the state of Colorado - at least at the highest levels.  The Mullarkey Court has repeatedly injected its own vision of “the needs of the times” over the clear letter of the law and the constraints of the Constitution.  The Bender Court appears pre-disposed to follow this trend into the next decade - cementing Colorado’s status as a “judicial hellhole.”

The institutions that should be addressing the problem - Colorado’s legal establishment, sworn to “support the Constitution” and uphold the rule of law (which is actually part of the oath taken by lawyers in order to practice law in this state) - are instead fighting to expand the power of their “guild” and promote the special interests of the legal caste, even if it means playing fast and loose with the law.  (A consortium of legal-establishment special-interest groups, including the Institute for the Advancement of the American Legal System, IAALS; the Colorado Bar Association, COBAR; the Colorado Judicial Institute, CJI; and the League of Women Voters, LWV banded together to run a campaign in support of incumbent judges on the ballot this year, but failed to comply with Colorado Campaign Finance Law in the process).  Apparently, members of the legal establishment feel that the rules applying to ordinary citizens should not constrain their own activities.

This is, unfortunately, indicative of the mindset which dominates our would-be “ruling class”:

In other words, judges were encouraged to do an end run around rules, such as those set forth in the Constitution, and around the elected representatives of “we the people.” As Roscoe Pound put it, law should be “in the hands of a progressive and enlightened caste whose conceptions are in advance of the public.”

Sowell’s solution?

Unsurprisingly, the same solution advocated by Clear The Bench Colorado: accountability.

The Constitution cannot protect us unless we protect the Constitution, by voting out those who promote end runs around it.

A superb article that should have been written (and widely disseminated) three or more months ago.

Although Colorado voters lost an opportunity (and a battle) this last November, the fight for judicial accountability continues.  For those of us who would like to see Colorado’s judiciary reformed and returned to a proper role of upholding the Constitution and individual rights, we would appreciate your continued support - your comments (Sound Off!) and contributions are still needed. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

Last month’s Colorado Supreme Court ruling that created a “right” for plaintiffs (more accurately, their lawyers) to collect “recovered damages” over and above costs actually paid was apparently the straw that broke the camel’s back for a group that rates the performance of courts nationwide (as if the Mullarkey-Bender Court’s rulings to sanction unconstitutional tax increases by way of eliminating tax exemptions and credits or by re-defining taxes as “fees”, erosion of property rights, and usurpation of legislative authority wasn’t enough), adding Colorado to the list of jurisdictions nationally qualifying as a “judicial hellhole.”

The American Tort Reform Association’s annual “Judicial Hellholes” report for 2010 lists Colorado as one of only three state supreme courts nationwide to qualify for the “honor” (Colorado joins Michigan and perennial favorite West Virginia in being so recognized).

“Traditionally, Judicial Hellholes have been considered places where civil judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants in civil lawsuits,” explains ATRA general counsel Victor Schwartz.  “The jurisdictions we name as Judicial Hellholes each year are not the only unfair courts in the nation, but they are among the most unfair, based on our survey of litigants and considerable independent research.”

Congratulations, Colorado - the legal-establishment special-interest groups that spent so much time and money this Fall (violating campaign finance laws in the process) telling you that our state’s judicial system is “nationally recognized” were right (in that statement) after all.

For those of us who would like to see Colorado’s judiciary reformed and recognized for upholding the Constitution and individual rights, we would appreciate your continued support - comments (Sound Off!) and contributions are still needed. 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 continues to make news (except in the pages of the Denver Post, which apparently continues its editorial policy of suppressing information that might upset its highest-paying - $1.6M/year - tenants) around the state in the aftermath of this year’s judicial retention elections (which gained attention not just in Colorado - again, largely excepting the Post - but in national news reports).

The big news for CTBC - and of course from our perspective the most welcome news - was last week’s confirmation by Administrative Law Judge (ALJ) Robert Spencer that “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) was ordered to pay Clear The Bench Colorado over $13,000 in legal fees stemming from their “substantially groundless and frivolous” campaign finance complaint against CTBC (originally filed in May 2010).

The story was first reported online in Law Week Colorado (a generally reliable observer and source of information regarding the Colorado legal-judicial scene) on 15 December (”Ethics Watch Must Pay Attorney Fees In Clear The Bench Case“).  The Law Week article summarizes the judgement, provides some background on the complaint, and provides the full text of the ALJ ruling ordering CEW to pay Clear The Bench Colorado.

Also covering the story on 15 December was leading Colorado political online news outlet Face The State (publishing within an hour or so of the Law Week article).  The Face The State article (”Self-styled ethics watchdog slapped with the tab for its legal attack“) adds context and background information on CEW, CEW’s complaints, and CEW’s history of filing harassment claims (along with a copy of the judge’s order for Colorado Ethics Watch to pay Clear The Bench Colorado’s legal fees in pdf format).

Picking up the story on Friday, Denver’s alternative weekly Westword (often a source of excellent investigative journalism) covered the issue in a bit more depth (landing some quotes from the loser, CEW’s Luis Toro): “Colorado Ethics Watch told to pay Clear the Bench Colorado $13,000 in legal fees.”  CEW signaled their intent to “keep on doing what we’re doing” despite the legal rebuke.  (Surprise!)

Other news coverage of Clear The Bench Colorado concerns the ongoing campaign finance complaint against the legal-establishment special-interest consortium behind the “Know Your Judge” Campaign in support of Colorado’s judicial incumbents in this year’s retention elections.  Again, Face The State was on top of the story noting that former Colorado Speaker of the House Terrance Carroll (D-Denver) is on the legal team “defending a consortium of legal groups accused of violating state campaign laws.”  The article (”Your witness, Mr. Speaker“) notes that the “Know Your Judge” Campaign (consisting of nonprofit groups The League of Women Voters, the Colorado Bar Association, the Colorado Judicial Institute, and the Institute for the Advancement of the American Legal System) may have “illegally campaigned for the justices’ retention by not filing with the state as a political committee.”

Face The State’s article was also picked up by Law Week (published as “Outgoing Speaker Will Handle Election-Law Case“).  Both articles noted:

At the heart of the complaint was a website funded by the groups called Know Your Judge, which led visitors to information explicitly recommending retention. They also paid for radio and television advertisements.

As detailed earlier by Face the State, if the complaint is upheld, a judge can levy fines of $50 per day for late reporting, plus a fine of between $170,000 and $425,000.

If successful (the case has now been set for hearing on 23 February 2010, thanks to delays generated by a barrage of legal maneuvering by the former Speaker’s “politically connected” law firm team from Greenberg Traurig) the combined fines and penalties would represent the largest adjudicated Campaign Finance Law violations in the history of Colorado.

In Other News…

The big news about the Colorado Supreme Court was the accession of the newest justice, Monica Marquez, to replace outgoing Chief Justice Mary Mullarkey (who wasn’t voted out, but chose to resign before facing the voters in this year’s retention elections).  While the accession of a new justice to the Colorado Supreme Court is certainly newsworthy,  the number of news stories referencing the ethnicity and sexual orientation of the Colorado Supreme Court’s newest justice - a matter which should be of supreme indifference in assessing judicial qualifications, character, temperament, and performance - continues to be astounding.

From the Denver Post’s article (”Colorado Supreme Court milestone a family affair“) - which at least has the good taste to lead first with the human-interest family connection before bringing up her ethnicity and sexual orientation - to a veritable plethora of blogs, journals, and other media - the phrase “Marquez is the first Latina and the first openly gay jurist on the state’s high court” comes up again and again.  A representative sample:

• “Colorado has new Supreme Court Justice“, KWGN TV2
• “Lesbian justice seated at state Supreme Court“, Pueblo Chieftain
• “Newest Colorado Supreme Court justice’s milestone a family affair“, Boulder Lesbian blog (copied the Denver Post story in its entirety; interesting to see if that triggers the Post’s copy-protection policy - if not, good ammunition for a selective enforcement defense against future Post lawsuits)
• “First Latina, Openly Gay Colorado Supreme Court Justice“, Fox News Latino
• “All in the Family: First Latina and Openly Lesbian Judge of Supreme Court, Colorado“, Lez Get Real blog
• “Colo.’s new state Supreme Court justice sworn in“, Aurora Sentinel
• “Marquez Sworn In as First Latina/Gay Judge“, South Florida Gay News

…and a host of other niche publications (I got tired of counting after the first half-dozen or so).

One of these days it would be nice to focus on a jurist’s qualifications and performance rather than the distractions of ethnicity and sexual orientation.

As far as CTBC is concerned the jury is still out on Justice Marquez’s performance, although we remain skeptical that she was the most-qualified of the potential picks, and continue to harbor concerns about her background in advocating for several unconstitutional rulings in the past few years.  She deserves - and should get - a fair review with careful scrutiny given her track record (as an attorney; she’s never before been a judge) and circumstances of her selection to the state’s highest court.

Fortunately, voters will have the opportunity to render judgement on Justice Marquez’ performance in two short years, as she comes up for a retention vote in November 2012.

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.

Welcome to the 2010 Christmas edition of the Clear The Bench Colorado Friday Funnies!

In all of the tumult, toil, and trouble of the weeks leading up to the 2010 judicial retention elections (and in the weeks following), Clear The Bench Colorado has been far too serious, falling short in our mission to amuse, in addition to our successful mission to educate & inform (as 9News reporter Adam Schrager recently commented at a forum evaluating this year’s election coverage, “the information was there if voters chose to get it” (referring in particular to Clear The Bench Colorado Director Matt Arnold’s appearance on the Your Show television program) and CTBC’s Evaluations of Judicial Performance.  Sadly, it’s been almost three months since the last edition of the CTBC Friday Funnies!

Although remaining mindful of what’s at stake - holding our judiciary accountable for serial violations of our constitutional rights (to vote on taxes, even when taxes are called “fees”; keep our own property; bear arms in self-defense; and almost too many others to list); highlighting the judiciary’s dominant role in drawing up state legislative and congressional districts; and upholding the integrity of the judicial retention election process against the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench in violation of Colorado campaign finance law - is serious business, all work and no play makes Matty a dull boy.

While receiving the news earlier this week that “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) was again ordered to pay Clear The Bench Colorado thousands of $ in legal fees (owed since the judge’s original ruling in July found their complaint “frivolous, groundless, and vexatious”) brought a smile, the following video clip (although targeting the national level) elicited a hearty laugh:

…and a Leftist Judiciary!

While still afflicted with the (black-robed) ghosts of Christmas past in our Christmas present, we can still act to save our Christmas future. Continue to support Clear The Bench Colorado with comments (Sound Off!) and contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

Better Late Than Never…

The latest chapter in the ongoing saga of the legal harassment of the grassroots judicial accountability organization Clear The Bench Colorado by ‘Colorado Ethics Watch’ (CEW, pronounced “sue” - it’s what they do) was wrapped up with this week’s ‘Order Awarding Attorney Fees and Costs‘ to CTBC resulting from CEW’s “frivolous, groundless, and vexatious” complaint filed against CTBC on 5 May 2010.

The court denied CEW’s latest attempt to weasel out of paying their debt to Clear The Bench Colorado pursuant to the judge’s 21 July 2010 ruling on CEW’s 5 May 2010 complaint.  (CEW had earlier engaged in legal maneuvering to delay payment, which should have been forthcoming in October at the latest, in order to push resolution of the case past the elections).

The ’Order Awarding Attorney Fees and Costs‘ confirmed the complete lack of legal merit in CEW’s original complaint against Clear The Bench Colorado:

Because CEW’s claim was not supported by the undisputed evidence or by the plain language of the law, the ALJ found CEW’s complaint substantially groundless and frivolous.  The ALJ therefore granted CTBC’s request for attorney fees and costs…

Unfortunately - despite relevant case law that entitles CTBC to “all fees and costs incurred prior to the dismissal of the original complaint” - the ALJ reduced the amount of the award based on a subsequent complaint that CEW filed, because some of the defense against the original “frivolous, groundless, and vexatious” complaint supported defense of the later complaint as well.

As a result, the ALJ (Administrative Law Judge) ended up ’splitting the baby,’ awarding CTBC “$12,987.20 in legal fees and $60 in costs” instead of the full amount necessary to defend against the original complaint (a total of $23,712.50 in fees and costs).

Confirmation of the award of legal fees and costs  - and more importantly, confirmation of the “frivolous, groundless, and vexatious” nature of CEW’s original complaint - comes as both victory and vindication for Clear The Bench Colorado.  As noted previously by CTBC and knowledgeable observers of the legal and political scenes, the award of legal fees to the defendant is an extreme rarity.

In fact, the monumental nature of Clear The Bench Colorado’s victory in this case - particularly the award of attorney’s fees - is difficult to overstate.  It is rare (indeed, almost unheard of - though not totally unprecedented) for attorney’s fees to be awarded in this type of case, as noted in a previously-published article (”Judicial-reform group lashes back at ‘frivolous, groundless’ complaint“):

Attorneys fees are awarded sparingly by Colorado judges, largely because those requesting the sanction must prove opposing counsel pursued legal action knowing they had little chance of prevailing or failed to do basic research before filing.

The award of legal fees and costs to CTBC indicates that the judge not only thought that CEW’s case (or “complaint”) was bad - he thought it was SO bad that he took the unusual step of censuring CEW and ordering CEW to pay for their professionally unethical conduct.

However, the precedent set in granting only a partial award of incurred costs is troubling.  By giving CEW an ‘out’ for part of the costs forced on CTBC because CEW came back for a second round, the intended deterrent effect of the award (intended to dissuade unethical ‘junk’ lawsuits and complaints) is minimized.  Indeed, in a perverse way, by splitting out that portion of the costs incurred which might support defense against additional claims, the ALJ’s ruling in effect encourages additional harassing attacks by losers in such cases, as long as they have the resources to continue pressing a claim (continuously doubling down in the hopes - as occurred in this case - of eventually getting lucky).

Groups like CEW - with the massive amounts of funding they receive from their parent organization (Washington, DC based CREW) and from local leftist funders Tim Gill, Pat Stryker, Jared Polis, and Rutt Bridges right here in Colorado, can continue to draw upon deep reservoirs of cash in support of attacks and legal harassment of their ideological foes - abusing the legal system as a political weapon.

Unless and until meaningful sanctions against such abuse of the legal system as a political weapon are implemented and consistently enforced, citizens engaging in civic activity (along with political campaigns at all levels) can expect to continue to be subject to these kinds of harassing attacks.

Clear The Bench Colorado’s victory against the unethical ‘Colorado Ethics Watch’ - holding them accountable for their abuse of the legal system - is one small step in the direction of restoring some measure of sanity (and accountability) to the courts.

Score another one for the underdog!

It should come as no surprise that the allies of those on the courts abusing the constitutional rights of Colorado citizens would themselves attempt to abuse the courts to achieve their goals.  What may have come as a surprise to CEW is that this time - once again - the good guys fought back: effectively.

Fortunately, they can be stopped - by citizens with the courage to fight back.  Show your support today - stand up to unethical attorneys and sleazy solicitors, and contribute to help provide the resources for Clear The Bench Colorado to prevail against what are ultimately attacks on YOUR freedom.  Support Clear The Bench Colorado with your comments (Sound Off!) and 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.