Clear The Bench Colorado filed a motion to dismiss an additional frivolous, groundless, and vexatious attack (er, ‘Supplemental Complaint”) filed by left-wing attack organization “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) earlier this week (Wednesday).

After Secretary of State Bernie Buescher failed in his duty to provide legal clarity and act to forestall an ongoing series of harassing attacks (er, campaign finance “complaints”) launched by his roundly rebuked ideological ally “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) against judicial accountability organization Clear The Bench Colorado, “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) continued attacks despite knowing that they lacked legal merit.

In fact, CEW’s Supplemental Complaint selectively omits key language from the Colorado Constitution in an attempt to deceive the judge - a clear violation of legal ethics (Colorado Rules of Civil Procedure, Rule 11).  Indeed, CEW’s actions demonstrate a consistent pattern of pursuing harassing and ‘vexatious’ attacks against Clear The Bench Colorado:

A vexatious claim “is one brought or maintained in bad faith to annoy or harass, and may include conduct that is arbitrary, abusive, stubbornly litigious, or disrespectful of truth.” (ref. Colorado Court of Appeals, No. 08CA0425. Munoz v. Measner.)

Even knowing the facts of law and the Secretary of State’s guidance to Clear The Bench Colorado, “CEW chose to litigate the matter and file its Supplemental Complaint, subjecting Clear The Bench to additional attorney’s fees and costs, damage to its reputation, and hampering its fundraising efforts due to the cloud created by litigation.”  (Clear The Bench Colorado Motion to Dismiss, Case No. 2010-0009)

So, to summarize: CEW’s latest attack fits an ongoing pattern of unsuccessful, politically motivated “ethics” complaints designed to distract, disorient, and sling mud in the (vain) hope that something might stick.  Ultimately, they don’t care if they win or lose the case (their lopsided loss-win ratio bears this out), since their priorities are (1) smear, (2) frame the media debate and gain attention, (3) divert resources & attention, (4) intimidate, and (5) maybe (if they get lucky) occasionally win a case.

Now more than ever - stand with Clear The Bench Colorado in defense of your constitutional rights. Exercise your right to vote “NO” on the 4 (er, 3 now) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority” (Justices Michael Bender, Alex Martinez, Nancy Rice, and soon to be minus Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business from against eminent domain abuse, your right to fair representation in government, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.” Support Clear The Bench Colorado with your comments (Sound Off!) and your contributions - and exercise your right to vote ”NO“ on retaining these unjust justices in office for another 10-year term!

Clear The Bench Colorado Director Matt Arnold discusses the impact of Colorado Supreme Court rulings leading to a massive expansion of government power (at the expense of YOUR constitutional rights) and vastly increased taxation (such as the “Mill Levy Tax Freeze” property tax increase, the “Dirty Dozen” tax increases and of course the Colorado Car Tax (er, “vehicle registration fee”) increase, along with the dominant role of the Colorado Supreme Court in determining the boundaries of our legislative districts (at both the State and Federal level) - deciding how YOU will be represented in Congress and in the Colorado Legislature - tonight on SengCenter Radio starting at 6PM.

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

Be a citizen, not a subject - exercise your right to vote “NO” this November on the four (er, three now) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority”- (Justices Michael Bender, Alex Martinez, and Nancy Rice; soon minus Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your comments (Sound Off!) and your contributions - and vote “NO” on giving these unjust justices another 10-year term!

The resurgence of “We The People” in the form of local citizens banding together in grassroots civic action organizations to defend our constitutional rights is THE continuing political story of the year 2010 in America and is profoundly affecting Colorado Politics in this year and beyond…

Clear The Bench Colorado Director Matt Arnold is both proud and humbled to have been invited as a guest speaker to several such groups over the last several months - beginning with the massive (7000+) crowd at the first Tax Day Tea Party rally at the Denver Capitol and continuing through several events throughout the Spring (examples here, and here), Summer (examples here, here, and here) Fall (examples here, here, here, here, and here) and Winter (examples here, and here) of 2009 - we’re back for more in 2010, most prominently at the Tax Day Tea Party rallies on April 15th.

Clear The Bench Colorado Director Matt Arnold discusses the impact of Colorado Supreme Court rulings leading to a massive expansion of government power (at the expense of YOUR constitutional rights) and vastly increased taxation (such as the “Mill Levy Tax Freeze” property tax increase, the “Dirty Dozen” tax increases and of course the Colorado Car Tax (er, “vehicle registration fee”) increase, along with the dominant role of the Colorado Supreme Court in determining our legislative district boundaries (including both the State and Federal level - deciding how YOU will be represented in Congress and in the Colorado Legislature) and the issue of judicial retention elections for the Colorado Supreme Court following the announcement by Chief Justice Mullarkey that she would retire rather than be held accountable by Colorado voters - in Walden Wednesday evening starting at 7:00PM at the River Rock Cafe, continuing a tour of northwest Colorado this week (after being in Steamboat Springs over the weekend, and again earlier today for a special in-studio appearance on the Cari & Rob Show).

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

Be a citizen, not a subject - get informed, then exercise your right to vote “NO” this November on the four (er, three remaining) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority”- (Justices Michael Bender, Alex Martinez, Nancy Rice, and soon-to-be-minus Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.”  Continue to support Clear The Bench Colorado with your comments (Sound Off!) and contributions - and vote “NO” on giving these unjust justices another 10-year term!

Clear The Bench Colorado Director Matt Arnold discusses the impact of Colorado Supreme Court rulings leading to a massive expansion of government power (at the expense of YOUR constitutional rights) and vastly increased taxation (such as the “Mill Levy Tax Freeze” property tax increase, the “Dirty Dozen” tax increases and of course the Colorado Car Tax (er, “vehicle registration fee”) increase, along with the dominant role of the Colorado Supreme Court in determining the boundaries of our legislative districts (at both the State and Federal level) - deciding how YOU will be represented in Congress and in the Colorado Legislature - on the Cari & Rob Show Wednesday starting at 11:30AM.

(Listen to the podcast!)

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

Be a citizen, not a subject - exercise your right to vote “NO” this November on the four (er, three now) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority”- (Justices Michael Bender, Alex Martinez, and Nancy Rice; soon minus Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your comments (Sound Off!) and your contributions - and vote “NO” on giving these unjust justices another 10-year term!

Colorado taxpayers have taken a real beating over the last several years, courtesy of several Colorado Supreme Court rulings which have set aside the clear language of the Colorado Constitution (Article X, Section 20 - the Taxpayer’s Bill of Rights) to enable a series of unconstitutional tax increases by other names; some of the most prominent examples:

• ‘Mill Levy Tax Freeze‘ property tax increase (calling the tax increase a “rate freeze”)
• ‘Dirty Dozen‘ tax increases (2010) and the 2009 tobacco tax increase (calling tax increases “elimination of Tax Credits & Exemptions“)
• ‘Colorado Car Tax’ (enabling tax increases by calling them “fees” instead of taxes)

Another assault on taxpayer rights - and a potential blow to local governments, since the state government is proposing to take revenue away from localities - is brewing with the Colorado Supreme Court’s announcement Monday that it will review (and potentially reverse) the finding of the Colorado Court of Appeals that a severance-tax increase violates the Colorado Constitution (Article X, Section 20 - the Taxpayer’s Bill of Rights).  As announced on the Law Week Colorado website yesterday (Monday) (”Colorado Supreme Court Will Hear Coal-Severance Tax Case“),

The Colorado Supreme Court announced on Monday that it will review the Court of Appeals’ February decision that the state’s coal-severance tax violates the Taxpayer Bill of Rights, or TABOR. The case was a rare win in the appellate courts for TABOR.

It would be an even rarer win for Colorado taxpayers (in fact, it would be unprecedented - since the current Mullarkey Majority has NEVER found in favor of taxpayer’s rights despite the clear language of the Colorado Constitution (Article X, Section 20 - the Taxpayer’s Bill of Rights) in over a dozen major cases) if the Colorado Supreme Court does not overturn the lower court.

It would continue a pattern of politicized rulings by the incumbent majority on the Colorado Supreme Court overturning lower courts who faithfully apply the law and support the Constitution, as written.  The lower court (Colorado Court of Appeals) got it right; outgoing Judge Sean Connelly (a recent - 2008 - Ritter appointee who is returning to private practice, one of several well-qualified, non-political judicial appointments the governor has made, to his credit) issued a superbly clear and concise opinion (which, as the Law Week article pointed out, could be essentially reduced to a few simple sentences):

We hold that TABOR precludes the challenged coal severance tax adjustments. Our holding is based on a simple syllogism:

(1) TABOR prohibits increasing tax rates without voter approval. Colo. Const. art. X, § 20(4)(a); Nicholl v. E-470 Public Highway Auth., 896 P.2d 859, 867 (Colo. 1995).

(2) Applying the statutory formula increased the coal severance tax rate (initially from $0.54 to $0.76 per ton) without voter approval.

(3) Therefore, TABOR was violated.

So simple, even a caveman could understand it.

Unfortunately, the Mullarkey Majority on the Colorado Supreme Court has consistently demonstrated a more sophisticated view of the Colorado Constitution - redefining clear language and twisting logic to reach a pre-determined outcome in pursuit of a personal, political agenda.  The incumbent majority has demonstrated time and again that it is less interested in upholding the law (acting as fair and impartial referees, the proper role of a judge) than in advancing an agenda (as players, supporting their ‘team’).

Ironically (or perhaps not so ironically, given the role on the Supreme Court Nominating Commission played by retiring Chief Justice Mary Mullarkey, who announced in June that she would retire rather than be held accountable by Colorado voters this November), the lead attorney in advocating for the violation of taxpayer’s rights in this case is none other than:

Deputy Attorney General Monica Marquez, one of three finalists for the upcoming vacancy on the state Supreme Court, [who] handled Court of Appeals briefing and oral arguments for the state.

Marquez has actively advocated on several occasions against Colorado taxpayers; in addition to this case, she also argued that “fees” are not taxes in the Barber v. Ritter case, advocated in favor of the 2003 judicial takeover of legislative redistricting authority in the Salazar v. Davidson redistricting case, and has sought to restrict the 1^st Amendment rights of citizens seeking to address ballot issues in recent and ongoing cases.  If appointed to the Colorado Supreme Court, she would likely have to spend a considerable portion of her first term (the ‘probationary’ initial 2-year term for any new judge) recusing herself from many cases coming before the court (or be guilty of massive conflict of interest).

We The People can (indeed, as citizens, we must) hold our public officials - both elected and appointed - accountable.  Be a citizen, not a subject - get informed, then exercise your right to vote “NO” this November on the four (er, three remaining) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority”- (Justices Michael Bender, Alex Martinez, Nancy Rice - soon to be minus Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your comments (Sound Off!) and contributions - and exercise your right to vote “NO” on giving these unjust justices another 10-year term!

Speak Now, or Forever Hold Your Peace…

Governor Ritter has asked for public comment on the three nominees (he’ll pick one of the three) put forward by the Supreme Court Nominating Commission to replace outgoing Chief Justice Mary Mullarkey, who announced in June that she would retire rather than be held accountable by Colorado voters this November.

Send E-mails to judicial.appointments@state.co.us with your comments, concerns, or suggestions.

Our view is that 2 of the 3 nominees (Colorado Appeals Court Judge Robert Russel, and El Paso District Judge David Prince) appear to be qualified, while the 3^rd (Deputy Attorney General Monica Marquez) lacks any judicial experience and seems to have built her entire career on policy & political activism.  Marquez advocated in favor of the 2003 judicial takeover of legislative redistricting authority in the Salazar v. Davidson redistricting case, argued that “fees” are not taxes in the Barber v. Ritter case, and has sought to restrict the 1^st Amendment rights of citizens seeking to address ballot issues in recent and ongoing cases.  She appears to be Colorado’s version of Elena Kagan.

Although it may be possible to overcome a lifetime habit of political activism and advocacy to become a fair, impartial judge who upholds the rule of law, appointing someone without judicial experience to our highest court would only further erode public confidence in a Colorado Supreme Court already damaged by a decade of highly-politicized, anti-constitutional rulings.

Don’t let your opportunity to weigh in on this important issue slip away by failing to act when you had the chance - indeed, when you were asked to offer your opinion.  Write the governor today to express YOUR views on selecting our next Colorado Supreme Court justice…

We The People can (indeed, as citizens, we must) hold our public officials - both elected & appointed - accountable.  Be a citizen, not a subject - get informed, then express your opinion on which of these three nominees the governor should be appoint to become the next justice of the Colorado Supreme Court (it will be another 2 years before you’ll be able to weigh in at the ballot box, at the conclusion of their first - probationary - term of office).

Exercise your right to vote “NO” this November on the four (er, three remaining) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority”- (Justices Michael Bender, Alex Martinez, Nancy Rice - soon minus Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your comments (Sound Off!) and contributions - and exercise your right to vote “NO” on giving these unjust justices another 10-year term!

Clear The Bench Colorado Director Matt Arnold called in to the Mike Rosen Show Wednesday following up on an interview with nationally syndicated analyst Michael Barone regarding Congressional redistricting and state-level reapportionment of legislative districts.

Michael Barone spoke broadly on the issue of redistricting nationwide - and was almost certainly unaware of the peculiarities of how the redistricting and reapportionment processes in Colorado are dominated by the Colorado Supreme Court (which ultimately has the final say on both).

After explaining how the reapportionment (state legislative districting) process works in Colorado, and how Congressional redistricting was hijacked by the Colorado Supreme Court following the 2000 census (and how the groundwork has been laid to do so again), the discussion shifted to Tuesday afternoon’s announcement of the three finalists to replace outgoing Chief Justice Mary Mullarkey, who announced in June that she would retire rather than be held accountable by Colorado voters this November.   After providing a brief overview of the judicial nomination process, the discussion concluded with some remarks on the potential replacements for the Colorado Supreme Court.

(Listen to the podcast here - the CTBC segment runs from about the 30 to the 38 minute marks)

An interesting addendum was provided by a follow-up caller, identifying herself as a former Supreme Court Nominating Commissioner named “Mary” from Longmont.

Her stated intent was to “rebut” the CTBC Director - but missed the mark by a bit (although she did provide some interesting insight into the nominating/selection process and commissioner mindset).

She stated that the nominating commission process was, quote, “the most nonpartisan activity I ever engaged in” (although, in response to Mike Rosen’s follow up question “Was it non-ideological?” she conceded “not exactly.”)

She stated that the commission was “more interested in not getting the ‘Black Robe Syndrome’, where judges think they’re above God almighty and can do whatever they want.”  (Rosen nailed it with his follow-up: “You mean like the liberal majority currently on the state Supreme Court?”  Couldn’t have said it better myself…)

After some more discussions along those lines, the caller veered away from reality to advance a ’strawman’ criticism of Clear The Bench Colorado:

Caller: “My plea… is that we don’t change the system… where judges…  don’t have to raise thousands of dollars to run…”

Rosen responds: “The system is not perfect - so the question is: would any changes make it better or worse?”

Caller: “If there can be a degree of public scrutiny… I wouldn’t be opposed to it.” [Ed: gracious of her to concede the point]

Rosen: “We have a retention [vote] option, but unfortunately that [has been] more theoretical than practical.”

Caller: “Maybe that needs to be beefed up…. maybe you need to do a better job of getting the opinions of existing judges before they go to the ballot”  [Ed: that is the point of Clear The Bench Colorado - informed citizens making informed choices on judicial officeholders, and holding them accountable]

Rosen: “The ‘Blue Book‘ just before an election, when this committee gives us the appraisal of judges… that is the most platitudinous, worthless appraisal ever… and rarely do they ever not recommend retention, so I find that of no value whatsoever.”

The caller then concluded by bemoaning that “the voting thing is so skewed with dollars…”  I think that people like my father would turn over in his grave if he knew there was some movement to have elected judges.”

(Listen to the podcast here - the call starts off the 11AM hour, and continues to the 11 minute mark)

Let me be clear on one point:  that concluding statement was either ignorant,  or a deliberate lie.  Either way, it is a gross mischaracterization.

Clear The Bench Colorado has not advocated for a return to contested elections for judges.  The entire point is to increase voter awareness of our rights within the system, provide some much-needed information (doing a “better job of getting the opinions of existing judges before they go to the ballot”, for example) - since, as Rosen correctly points out, the Blue Book summation of the Performance Review Commissions “evaluations” is “platitudinous, worthless… and of no value whatsoever” in providing substantive information with which voters can make an informed decision.

An additional, hypocritical, gross mischaracterization advanced by the caller is the role of money in the judicial retention evaluation and election process.  Yes, the “voting thing” is skewed with dollars - in favor of retaining incumbents.  Not only are large amounts of taxpayer dollars spent on the whitewash judicial performance review “evaluations” (and subsequent printing & distribution in the “Blue Book”) which have ALWAYS (100%!) recommended retention for Colorado Supreme Court justices, but legal establishment special-interest groups have spent hundreds of thousands, if not millions, on incumbent-protection campaigns (including the “Grueskin Group” formed specifically to counter the judicial-accountability message of Clear The Bench Colorado and protect incumbents judging their cases).  Yet despite the obvious conflict of interest posed by attorneys spending to protect incumbent judges who will rule on cases in which the same attorneys take part, they are allowed to spend freely - since, by maintaining the status quo, they need only point to the judicial review commission’s “retain” recommendations and claim a purely “educational” mission free of direct advocacy.  These groups are also not subject to campaign finance law reporting and accountability, in contrast to grassroots organizations like Clear The Bench Colorado - allowing them to work outside of public scrutiny.  Corrupting influence?  Perish the thought!

Become an informed voter; conduct your own evaluation of the performance of these justices, based on how (and whether) they follow the Constitution and uphold the rule of law.  As an informed citizen, Yes, you can exercise your right to vote “NO” on the four (er, now three) ‘unjust justices’ of the Mullarkey Majority (Michael Bender, Alex Martinez, Nancy Rice; soon minus Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your homes and business from seizure by abuse of eminent domain, and your right to enjoy the benefits of the rule of law, instead of rule by activist, agenda-driven ‘justices.’  Support Clear The Bench Colorado with your comments (Sound Off!) and your contributions - and vote “NO” on retaining these unjust justices in the November elections!

The front page of Wednesday’s Denver Post heralded the late-Tuesday announcement of the list of three names from which Governor Ritter will select the replacement for outgoing Chief Justice Mary Mullarkey, who announced in June that she would retire rather than be held accountable by Colorado voters this November.  The article (”Three finalists emerge for Colorado Supreme Court vacancy“) concludes with comments by Clear The Bench Colorado director Matt Arnold critiquing the lack of transparency and public accountability in the closed-door process for evaluating potential nominees to the Colorado Supreme Court, following up on an article earlier this week (”No More Secrecy in Colorado Supreme Court judicial hiring“) calling for improvements and reform in the selection/nomination process.

“These are people who are auditioning to become government employees occupying some of the highest offices in the state about which there is no knowledge or public input or transparency or accountability,” Arnold said. “I would certainly urge the legislature to take a look at this next session.”

Unfortunately, Colorado citizens know more about the process of picking the Pope than about how our state selects nominees to judicial office.

This is unfortunate - because, despite some flaws (most importantly, a lack of transparency and public accountability - secrecy encouraged by the legal establishment, who are more interested in protecting their members and covering for their ‘buddies on the bench’ than allowing them to be called to account), the process does provide some level of front-end vetting of judicial applicants, filtering out the obviously unqualified and excessively partisan (weeding out the ‘worst of the worst’).

However, the lack of transparency and public understanding of the process leads to a general lack of confidence in our judiciary and undermines the right and ability of Colorado Citizens to hold our judicial branch officials accountable - leading to ignorant statements such as “why bother to vote out the bad ones?  They’ll just replace ‘em with more of the same.”  (That attitude reminds me of nothing so much as someone clinging to an abusive domestic relationship - putting up with the beatings because it’s what they know.  Step One: remove the source of the abuse.  Step Two: make better choices for the future…)

So how does the Supreme Court Nominating Commission try to make ‘better choices’ for replacing outgoing justices?

Clear The Bench Colorado published an overview of the judicial selection process (”Selecting the next Colorado Supreme Court justice(s) post-Mullarkey retirement and retention elections - who decides?“) both online and in print (next appearing in the September edition of The Constitutionalist Today, due out next week).  More information about the commission’s inner workings has since come to light, thanks to some former commissioners offering their views in response to our articles and comments earlier this week.  Some details (such as the current commission’s votes to select the just-announced nominees, any particulars on their deliberations, or the names of other applicants) will remain unknown unless any of the current commissioners step forward or otherwise release the information.

By the Numbers: How the Judicial Selection Process works

1. On announcement of the vacancy and solicitation for application, prospective nominees submit an extensive application packet (including a long questionnaire, writing sample, background information, resume of relevant professional experience, and references).
2. Commission members review the applications, and select from the total list (this year, 31 people applied for the impending vacancy) for interviews (a particular candidate will be interviewed if any commissioner expresses a strong desire to have them appear).  Commissioners consider the current makeup of the court, and may advocate for a specific constituency - a particular area of legal expertise - such as water or business law, or possibly a regional or ethnic representation in pursuit of court ‘diversity’).  Interviews are based on a common set of ‘core’ questions (for consistency of comparison & evaluation); each commissioner develops and uses their own evaluation criteria.
3. Following interviews, the commission deliberates/discusses the candidate, voicing comments or concerns to the group at large.
4. Following all of the interviews, the commission casts a ballot - three unranked votes per opening (for the Colorado Supreme Court or Court of Appeals - lower courts may only require 2-3 nominees).  The top vote-getters become the finalists - with the caveat that any finalist MUST receive a majority of total Commission votes (i.e. 8 of 15), irrespective of how many are actually present.  Multiple ballots may be (generally are) necessary.  (Note that the current makeup of the Nominating Commission - 7 Democrats, 5 Republicans, 3 Unaffiliated -  ensures that any finalists MUST receive at least one vote from multiple party affiliations).
5. The names of the three finalists are submitted for consideration by the governor, who has 15 days to make a selection from the list.

ALL of our sources (from differing party backgrounds) have stressed that the Nomination Commission deliberations are non-partisan (which is not to say, as our sources admit, that the deliberations and considerations do not reflect ideology or judicial philosophy - which is, in our view, entirely appropriate).

The role of the ‘ex officio’ chair of the commission - retiring Chief Justice Mary Mullarkey, who presides over the commission vetting applicants for her replacement, although she does not get a vote - is also worthy of comment.  Even though the chair does not get a vote in the process (the role is restricted primarily to running the meetings - although the chair can, in subtle or not-so-subtle ways, influence the discussion), there would certainly appear to be a strong potential for conflict of interest in presiding over the process of replacing one’s own position.  Propriety would strongly suggest (at a minimum) that the Chief Justice should have recused herself from participating.

Another interesting comment from one of the former commissioners regards the list of current finalists - noting that, although the best source of judges for the highest court should presumably be the next-lower court (the Colorado Court of Appeals), it has been 27 years since a judge has been elevated from the Court of Appeals to the Colorado Supreme Court.  (One of the three finalists is an appellate judge).

Finally - for the first time in the history of the Colorado Supreme Court Nominating Commission, more information concerning the finalists has been made available to the public than just a list of names.  Thanks to the increased attention on the Colorado Supreme Court this year, and the consistent efforts of the legal-affairs journal Law Week Colorado for longer than that, the public applications of the three finalists (complete except for removal of purely personal information shielded for privacy reasons - entirely appropriately) which include some relevant background on the candidates for judicial office - were made public.  The public applications may be viewed in their entirety on the Law Week website (”Governor’s Office Makes Public Applications Of Justice Finalists“) or downloaded for more leisurely perusal.

Most importantly, the governor’s office is soliciting public comment on the three nominees to become the next Colorado Supreme Court justice (send E-mails to judicial.appointments@state.co.us with your comments, concerns, or suggestions), along with providing contact information for the three nominees:

• Monica Marquez, 1525 Sherman Street 2nd Floor, Denver CO 80203, (303) 866-5163
• David Prince, 270 S. Tejon, Colorado Springs CO 80903, (719) 448-7507
• Robert Russel, 101 W. Colfax Avenue Suite 800, Denver CO 80202, (303) 837-3725

We The People can (indeed, as citizens, we must) hold our public officials - both elected & appointed - accountable.  Be a citizen, not a subject - get informed, then express your opinion on which of these three nominees the governor should be appoint to become the next justice of the Colorado Supreme Court (it will be another 2 years before you’ll be able to weigh in at the ballot box, at the conclusion of their first - probationary - term of office).

Exercise your right to vote “NO” this November on the four (er, three remaining) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority”- (Justices Michael Bender, Alex Martinez, Nancy Rice - soon to be minus Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your comments (Sound Off!) and contributions - and exercise your right to vote “NO” on giving these unjust justices another 10-year term!

“What’s good for the goose is good for the gander…”

We find ourselves in rare agreement with the Denver Post’s editorial board, as they seek greater transparency in the hiring process for government officials, calling for “No More Secrecy in Aurora hiring.”

But if “closed-door meetings to interview city manager candidates” is “disheartening” to the Denver Post editorial board, what of the similarly closed-door process for evaluating potential nominees to the Colorado Supreme Court, who will exert exponentially greater power over ALL of Colorado citizens, not just the residents of a single city?

A common critique of Colorado’s system of “merit selection & retention” for judges is the lack of transparency in commission deliberations (both during front-end judicial selection, and in back-end judicial performance review and retention) and lack of meaningful opportunity for public participation and comment.  This lack of transparency leads to a lack of public confidence in our judiciary and ultimately to a lack of accountability for the increasingly active and powerful Third Branch of our government.

Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens - that our supreme court justices are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.

In sports, referees who violate the rules and demonstrate a consistent bias for one team lose their jobs.

In government, because Colorado Supreme Court justices wield so much power, the stakes are much more important than an athletic contest - or the hiring of a city manager for Aurora.

Of course, the biggest political “players” (especially in the ‘legal establishment’) are well aware of this - they naturally prefer the closed-door, non-transparent, unaccountable, political insider-dominated process that allows them enormous influence behind the scenes.

Our view: an informed citizenry and active citizen participation is vital in restoring accountability and transparency to the 3rd branch of state government, the judicial branch - most particularly for the Colorado Supreme Court.

We call upon the Denver Post editorial board to demonstrate some integrity and consistency in their position, and join Clear The Bench Colorado in requesting that the state Supreme Court Nominating Commission (meeting Monday and Tuesday behind closed doors, with NO opportunity for public review or input) release the names and relevant background of the 31 applicants to replace outgoing Colorado Supreme Court Chief Justice Mary Mullarkey (who opted to retire rather than face the voters in the upcoming November elections to fight for another 10-year term in office).

We The People can (indeed, as citizens, we must) hold our public officials - both elected and appointed - accountable.  Be a citizen, not a subject - get informed, then exercise your right to vote “NO” this November on the four (er, three remaining) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority”- (Justices Michael Bender, Alex Martinez, Nancy Rice - soon to be minus Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your comments (Sound Off!) and contributions - and exercise your right to vote “NO” on giving these unjust justices another 10-year term!

The results are in from the first scientific, statewide survey on the Colorado Supreme Court justices appearing on the November ballot (Justices Michael Bender, Alex Martinez, and Nancy Rice).

Survey Results Show Overwhelming Discontent With Incumbent Colorado Supreme Court Justices

ALL THREE JUSTICES REJECTED BY 78% OR BETTER

Made aware of the anti-taxpayer decisions of the incumbent Colorado Supreme Court justices appearing on the November ballot, an overwhelming majority of the state’s likely voters say they will opt against retaining the justices for another 10-year term.

A survey conducted this week by Magellan Data and Mapping Strategies statistically validates the huge impact and overwhelming resonance of the Clear the Bench Colorado message of judicial accountability with the voters of this state.

The Colorado Supreme Court justices up for voter retention are Michael Bender, Alex Martinez and Nancy Rice.”

The following are the topline results of an autodial survey of 874 likely general election voters in the state of Colorado, conducted the evening of 16 August 2010.  The survey has a margin of error of +/- 3.31% at the 95 percent confidence interval, and was weighted based upon voter turnout demographics from the 2008, 2006, 2004 and 2002 general election cycles.

When asked, “Did you know that Colorado voters have the right to vote “NO” on retaining incumbent Colorado Supreme Court justices in office?” voters answered 68% YES.

When asked, “Did you know that three Colorado Supreme Court justices, Michael Bender, Alex Martinez, and Nancy Rice, are seeking another 10-year term in office in the November election?” voters answered 65% NO.

When asked, “If you were to cast your ballot today, would you vote to retain incumbent Colorado Supreme Court justice Michael Bender in office for another 10-year term?” voters answered 79% NO.

When asked, “If you were to cast your ballot today, would you vote to retain incumbent Colorado Supreme Court justice Alex Martinez in office for another 10-year term?” voters answered 78% NO.

When asked, “If you were to cast your ballot today, would you vote to retain incumbent Colorado Supreme Court justice Nancy Rice in office for another 10-year term?” voters answered 78% NO.

Colorado voters of all ages, ethnicities, gender, and party affiliation in all regions of the state (complete demographic breakdown and crosstabs of survey results available as a separate file) reject these three particular Colorado Supreme Court justices due to a consistent pattern of ruling against what the Colorado Constitution provides.  Thanks to the increased attention focused on the way that these ‘unjust justices’ have violated the public trust and enabled the constitutional rights of Colorado citizens to be set aside, the electorate is waking up to their right to vote “NO” on retaining these incumbents in office for another 10-year term.

Clear The Bench, Colorado!

http://www.clearthebenchcolorado.org

Survey Methodology

This survey was conducted using automated telephone touch tone technology.  The sample was randomly drawn from a Colorado voter file among households with a representative mix of demographics (Gender, Age, Ethnicity, and Political Affiliation) statewide.  The sample included 894 respondents, distributed as follows:

• Gender: 53% Female, 47% Male
• Age: 18-34 (12%), 35-44 (16%), 45-54 (23%), 55-64 (24%), 65+ (25%
• Ethnicity: White (83%), Hispanic/Latino (11%), Black/African American (4%), Other (2%)
• Party Affiliation: Republican (39%), Democrat (34%), Unaffiliated/Other (27%)

(Full crosstabs available as a separate attachment)

About Magellan Data and Mapping Strategies

Magellan CEO David Flaherty has extensive experience in survey research, and applying political data and technology to political campaign decision-making gained throughouthis18yearcareerat the Republican National Committee, the U.S. House of Representatives, and public affairs firms specializing in influencing public opinion. The Magellan team has extensive knowledge constructing and building voter registration databases, performing data analysis, applying GIS mapping technology, conducting quantitative live and automated survey research, predictive modeling analysis, and redistricting technology. Visit MagellanStrategies.com for more information.

Be a citizen, not a subject - get informed, then exercise your right to vote “NO” this November on the four (er, three remaining) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority”- (Justices Michael Bender, Alex Martinez, Nancy Rice, soon minus Chief Justice Mary Mullarkey, who’s retiring rather than face the voters ) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.”  Continue to support Clear The Bench Colorado with your comments (Sound Off!) and contributions - and vote “NO” on giving these unjust justices another 10-year term!