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.”
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.
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.”
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:
“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)
…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.
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.
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.
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 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.
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).
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).
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.
“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.
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.
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.
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.
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.
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.
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).
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.
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.”
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.
