Colorado Judicial Institute

Movie Ticket Tax (er, “fee”) coming soon to a theater near you?

Apparently, some folks still haven’t gotten the memo…

As reported in the Denver Post (“Bill proposes 10-cent fee on movie tickets“) online Friday afternoon,

Two Republican lawmakers introduced a bill today that would impose a 10-cent fee on every movie ticket sold in the state, beginning July 1, to help fund an incentive program for promoting film production in Colorado.

The mania to circumvent the Colorado Constitution and avoid seeking voter approval of tax increases by calling them “fees” is apparently not an affliction restricted to the Democrat party alone.  Leaving aside the policy implications of picking industry favorites for government support and subsidies (“corporate welfare”) at taxpayer expense, the proposed new “fee” is clearly a tax – since those paying derive no benefit (receiving neither good nor service) from the payment – and therefore subject to prior approval by a vote of the people (Colorado Constitution, Article X, Section 20 – the Taxpayer’s Bill of Rights).

(For an in-depth discussion of the difference between fees and taxes, see When is a “fee” not a tax?)

It is not uncommon for lawmakers to propose measures involving fee increases in lieu of tax hikes, which require voter approval under provisions of TABOR, the Taxpayer’s Bill of Rights.

Legislators of both parties swear an oath to ‘support and uphold’ the Constitution – which includes that pesky Article X, Section 20.  Like the executive and (especially) judicial branches, they don’t get to pick and choose which parts of the Constitution to support or ignore without violating their oath of office.  Republicans should be especially sensitive of this oath – and of the constitutional requirements and restrictions imposed by TABOR – because they made constitutionality (or lack thereof) the centerpiece of their (principled) opposition to last year’s “Dirty Dozen” tax increases (many of which they are now attempting to repeal).

To avoid the taint of hypocrisy, Republican party and legislative leaders should call on the bill’s sponsors to withdraw the proposed legislation.  Otherwise, the GOP may find itself on shaky moral ground when (justifiably) calling for the repeal of last year’s “Dirty Dozen” tax increases – and set itself up for near-permanent minority status as the energized grassroots electorate turns away in disgust at the party’s perceived lack of principle.

“Supporting party above principle does a disservice to both”–El Presidente (Slapstick Politics blog)

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

Ultimately, though – it’s worth the effort.

Clear The Bench Colorado wins opening rounds in legal battle over “Know Your Judge” campaign finance law violations

As reported in Friday’s Face The State (“Judge clears the way for Clear the Bench“),

plaintiff Clear the Bench Colorado (CTBC) has won some key battles in its effort to prove that a consortium of groups behind the Know Your Judge website constituted a political committee that failed to comply with laws governing spending and electioneering.

Last week, an administrative law judge denied a motion by Know Your Judge to quash CTBC’s subpoenas and another motion seeking a protective order limiting the amount of discovery in the case.

The victory is all the more remarkable because the case against the “Know Your Judge” consortium is being argued by a non-attorney: CTBC’s citizen-soldier Director Matt Arnold.  Despite a litany of legal maneuvering and a barrage of legal briefs filed by the high-powered (and highly-paid) attorneys representing the legal-establishment special-interest groups making up the “Know Your Judge” Campaign, it was CTBC’s clear, concise reasoning that won the day:

Know Your Judge, which is represented by a team of lawyers – including former Speaker of the House Terrance Carroll – said in its motion to quash that the subpoenas were irrelevant, unreasonable and overly broad.

CTBC’s Response Brief demonstrated otherwise, laying out the grounds for requested discovery (getting the facts, which KYJ’s defense attorneys attempted to suppress) and the judge agreed:

Judge Judith Schulman was unconvinced by Know Your Judge’s motions, writing that “intent clearly is a relevant factor in establishing the elements of CTBC’s claim that Respondents constituted a political committee.” She also denied the defendants motion for a protective order, noting they’d failed to show that the records requested under subpoena contained any “privileged or private information that requires special protection.”

Although the legal game is far from over, at the end of the first period of play, so far it’s Underdog: 2, Big Bad Lawyers: 0

Score another one for the underdog!

As the Face The State article notes:

The matter is currently scheduled for a hearing Feb. 23. If the complaint is upheld, the defendants can be levied fines of $50 per day for late reporting, plus two to five times the amount of contributions. The latter fine would equal between $170,000 and $425,000.

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

Ultimately, though – it’s worth the effort.

Clear The Bench Colorado Director Matt Arnold interviewed on Rob McNealy Show

Clear The Bench Colorado Director Matt Arnold discussed the Colorado judicial accountability effort in 2010 (and beyond) on the Rob McNealy show, Thursday 13 January 2011.

(Listen to the podcast here – the segment starts at the 47:00 minute mark)

The fight to reform Colorado’s corrupt legal/judicial complex continues.  Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for violations of Colorado campaign finance law.  Longer term, Clear The Bench Colorado will work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public.  For both 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.

Colorado State of the Judiciary: “lean and efficient” courts or “Judicial Hellhole?”

Newly appointed Colorado Supreme Court Chief Justice Michael Bender (who was retained in office by the most narrow margin in Colorado history for an incumbent state supreme court justice along with his colleague, and ideological ally, Alex Martinez) delivered his first “State of the Judiciary” address before a joint session of the Colorado General Assembly on Friday, 11 January.

(Highlights and full text of the address were published Monday (14 January) by Law Week Colorado, “Colo. Judicial Branch Lean, Efficient Says Chief Justice In State Of Judiciary Address“)

Unsurprisingly, Chief Justice Bender painted a rosy (and self-serving) picture of the state of Colorado’s judicial branch, touting the successes of some specialty courts (a veterans’ court in El Paso County, and a truancy court in Pueblo County) along with some personnel and administrative efficiencies achieved statewide.  Bender even went so far as to claim credit for the judiciary having “helped balance the state budget” through various cost-cutting measures, and went on to claim that Colorado “continues to lead the nation in court technology applications” such as a new “statewide e-filing system for all cases” designed to increase efficiency and “yield additional revenue.”  (Since when is “yielding additional revenue” a function of the courts?)  Oh, and speaking of revenue – he was able to get in a plug for the new $258M judicial complex financed by a combination of debt (er, “not-debt”) and new “fees.”

Although the listed accomplishments are laudable achievements, they amount to somewhat superficial marginalia – not quite as trivial as tinkering with the deck chairs on the Titanic, but rather missing the point on the primary function of the courts: upholding the rule of law.

A more accurate assessment of the actual state of Colorado’s judiciary in that regard was contained in the American Tort Reform Association’s annual “Judicial Hellholes” report for 2010, released just last month. The report lists Colorado as one of only three state supreme courts nationwide to qualify for the dubious “honor” of being declared a “judicial hellhole” (Colorado joins Michigan and perennial favorite West Virginia in being so recognized).

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“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.”

Actions speak louder than words; and although Bender’s speech gives lip service to the primacy of the rule of law, his actions on the bench have demonstrated the opposite.  Indeed, Bender has been one of the most egregious perpetrators of putting personal views (his own) above the letter of the law.

The hypocrisy is stunning.  Justice Bender opened his remarks with reference to our 2nd President:

As John Adams, one of our founding fathers, said we are a government of laws, not men.

“. . . that a form of government which unites all virtue . . . in a reverence and obedience to the laws, is the only one in which liberty can be secure, and all orders and ranks compelled to prefer the public good before their own; that is the government for which we plead.”

Adams’ point rings true today — to have a government that secures liberty and freedom, all branches of the government must be obedient to the law.

Yes, Justice Bender; ALL branches of the government.

To paraphrase another great president, “I knew John Adams…  John Adams is my great-great-great-something grandfather [Ed. on my mother's side; true fact] and you’re no John Adams.”

Have you no shame, sir?

Such contrast between rhetoric and reality; the trueState of the Judiciary” in Colorado.

The fight to reform Colorado’s corrupt legal/judicial complex continues.  Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for violations of Colorado campaign finance law.  (Perhaps not coincidentally, Justice Bender sits on the board of one of the defendant groups).  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.

Political End Runs: How Judges violate the law (and your rights)

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.

It’s Official! Colorado is a “Judicial Hellhole”

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).

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“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.

Merry Monday Media Review: Clear The Bench Colorado, Colorado Supreme Court in the news

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 Postbut 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:

…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.

Mid-month Media Review: Colorado Supreme Court, judicial retention elections, and Clear The Bench Colorado in the news

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

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

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

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

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

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

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

And some legal watchers are worried.

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

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

Colorado Supreme Court Goes on a ‘Bender’

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

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

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

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

Stay tuned for more on that subject…

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

Ultimately, though – it’s worth the effort.

A Tale of Three States: Comparing judicial retention elections in Iowa, Kansas, and Colorado this year

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

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

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

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

and lack of resources, particularly funding:

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

The article concludes by noting:

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

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

Ultimately, though – it’s worth the effort.

Colorado Supreme Court embarks on a “Bender” as narrowly-retained Justice Michael Bender is promoted to Chief Justice

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

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

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

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

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

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

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

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

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

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

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

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