Colorado Office of Judicial Performance Evaluation
Friday Funnies: …and a Leftist Judiciary! (reprise, again)
Welcome to the 2012 Christmas edition of the Clear The Bench Colorado Friday Funnies!
Another tumultuous year has come and gone for the Colorado judiciary – and once again, Colorado Citizens and taxpayers have been hammered by the gavels of Colorado judges pounding their personal preferences over the will of the people – and the rule of law.
Last year closed with Colorado courts deciding the boundaries for Congressional districts (after the state senate reprised the 2000 playbook of abdicating responsibility to send it to the courts) and state legislative districts (following the Colorado Reapportionment Commission’s public hearings on re-setting the boundaries of our state legislative districts over the summer), both of which played a prominent role in determining Colorado’s electoral destiny in 2012.
Colorado courts were also a central battlefield for Education policy, as one Denver District judge threw out Douglas County’s attempts to enable greater school choice, and another Denver District judge declared the state system of funding schools “unconscionable” while advancing the power of the courts to determine “proper” levels of school funding (despite the Constitution’s delegation of that power to the legislative branch) – although that decision is likely to be overturned after an expensive – and long - appeal to the Colorado Supreme Court.
The first stages of the court appeal seeking to preserve school choice concluded last month (Nov 2012) with oral arguments before the Colorado Court of Appeals (a ruling by the 3-judge panel isn’t expected until early next year, most likely late January or February).
Meanwhile, the ‘Lobato’ school funding lawsuit – called the “Super Bowl of school funding litigation” – continues to slog its way through the courts as well.
Earlier in the year, after two years of legislative inaction failed to repeal or roll back the unconstitutional and unpopular tax increase, the ‘FASTER’ Colorado Car Tax was challenged in court as a violation of the Colorado state Constitution (specifically, Article X, Section 20 – Taxpayer’s Bill of Rights, TABOR).
Another, wider-ranging challenge to TABOR is still being fought out in Federal court: the notorious “Fenster’s Folly” frivolous anti-TABOR lawsuit (which not only challenges TABOR in particular, but more generally citizens’ right to petition under a flawed reading of the “republican form of government” language in the Constitution’s “Guarantee Clause” (United States Constitution, Article IV, Section 4 – “The United States shall guarantee to every State in this Union a Republican Form of Government“) which multiple U.S. Supreme Court cases have ruled non-justiciable (meaning, not subject to determination by the courts).
One major ruling by the Colorado Supreme Court DID uphold the law – and the rights of Colorado citizens – when striking down the University of Colorado’s illegal gun ban (March 2012). Unfortunately, the CU administration (backed by the CU Board of Regents) moved almost immediately to circumvent the court’s ruling and continue to violate state law by promulgating policies banning guns in certain areas (not authorized by statute) and additional gun ban legislation (unfortunately backed by many on the CU Board of Regents) to further restrict and roll back hard-fought self-defense rights is coming.
Finally, to close out the year, the Colorado Supreme Court and Court of Appeals moved into the palatial new ‘Colorado Judicial Center’ (at significant taxpayer expense and incurring massive new “non-debt” debt, without required voter approval) just one week before closing for the holidays.
All of these issues were comprehensively documented by Clear The Bench Colorado over the last year – while the “mass media” and the majority of the state’s “news” organizations gave them short shrift.
Clear The Bench Colorado also continued the public service of providing comprehensive, well-referenced evaluations of judicial performance in 2012 – again, in contrast to the “official” taxpayer-funded “Blue Book” rubberstamp “reviews” disseminated at great expense (and, when put out at polling locations, in violation of state law) by the Colorado Office of Judicial Performance Evaluation.
Although remaining mindful that what’s at stake – holding our judiciary accountable for serial violations of our constitutional rights (to vote on taxes, even when taxes are called “fees”; defend our property against unjust seizure; bear arms in self-defense; and too many others to list) is serious business, all work and no play makes Matty a dull boy.
Although still awaiting payment over two year later after “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) was once again ordered to pay Clear The Bench Colorado thousands of $ in legal fees (owed since the judge’s original ruling in July 2010 found CEW’s complaint to be “frivolous, groundless, & vexatious”) brings a rueful chuckle, the following video (even if focused on the national level) elicited a hearty laugh:
…and a Leftist Judiciary!
While still afflicted with the (black-robed) ghosts of Christmas past in our Christmas present, we can still act to save our Christmas future. Continue to support Clear The Bench Colorado with comments (Sound Off!) and contributions. Freedom isn’t free – nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Are Colorado’s “official” judicial performance reviewers violating state election laws?
Colorado’s “official” judicial performance reviewers – the state’s “Commissions on Judicial Performance” and the “Colorado Office of Judicial Performance Evaluation” (COJPE) – are charged under state statute to
…establish a system of evaluating judicial performance to provide persons voting on the retention of justices and judges with fair, responsible, and constructive information about judicial performance… (C.R.S. 13-5.5-101)
Although one can certainly argue about whether the commissions, and COJPE, have fulfilled their mandate (Clear The Bench Colorado is among the many critics – including several former judicial performance commissioners – who find the “reviews” or “narratives” produced by the commissions and COJPE actually provide little information of substance to help inform voters), not even advocates of the commissions and COJPE would seriously advance the notion that either is above, or not otherwise subject to, state law.
Yet the commissions, and COJPE – aided and abetted by others within the legal/judicial industrial complex – have repeatedly acted as though Colorado’s elections and campaign finance laws do not apply to them.
Many Colorado voters may remember the massively-funded (approaching or even exceeding $250,000) “Know Your Judge” campaign established to counter Clear The Bench Colorado‘s success in raising voter awareness during the 2010 election cycle. Although the “Know Your Judge” campaign (self-described AS a “campaign”) raised and spent “big money” to influence elections, they did NOT register a campaign committee (a requirement under state law) even though they ran thousands of ads in support of candidates on the ballot. (Ironically, the “Know Your Judge” campaign escaped sanctions for their violations of state law in large part by claiming that their campaign advertisements were a purely “educational effort.” Curiously, the legal-establishment special-interest groups funding the “Know Your Judge” campaign haven’t continued their “purely educational” efforts this year…)
The violations committed by the “Know Your Judge” campaign, blatant and brazen as they were, pale in comparison to the systematic and comprehensive violations of Colorado’s prohibition of electioneering activities perpetrated on an ongoing basis by the commissions and the COJPE in every election cycle.
Colorado election law prohibits
…any electioneering on the day of any election within any polling place or in any public street or room or in any public manner within one hundred feet of any building in which a polling place is located, as publicly posted by the designated election official. As used in this section, the term “electioneering” includes campaigning for or against any candidate who is on the ballot or any ballot issue or ballot question that is on the ballot. (C.R.S. 1-13-714, Electioneering)
Since the “Blue Book” materials include the commissions’ and COJPE’s “Reviews of Judicial Performance” with “recommendations” advocating votes for “any candidate who is on the ballot” for judicial office, the presence of those materials at polling places constitutes a violation of Colorado election law.
As reported by the Law Week Colorado weekly (“ Judicial Branch Critic Files Election Complaint“), the Colorado Secretary of State’s office is investigating a complaint filed by Clear The Bench Colorado Director Matt Arnold noting that
“(COJPE and CJP) are systematically violating the prohibition on Electioneering activities by having their “recommendations” (advocating a vote) for candidates for judicial office (“retention”) placed at polling locations throughout the state.”
by utilizing state (taxpayer) resources to produce and disseminate the electioneering materials, these organizations are violating state law (C.R.S. 1-45-117, State and political subdivisions – limitations on contributions) prohibiting the use of state funds to advocate “in campaigns involving the nomination, retention, or election of any person to any public office…”
Why do we have political appointees (judicial performance commissioners are appointed by the governor, attorney general, state legislators and the Chief Justice of the Colorado Supreme Court – the latter seeming to have a conflict of interest) using taxpayer money to tell Coloradans how to vote?
What can you do about it? If you observe a “Blue Book” at your early vote center, mail-in ballot drop-off location or Election Day Polling Place, ask the election judges on site to remove the offending material, and file a complaint of electioneering activity with the Colorado Secretary of State’s office using this simple form: http://www.sos.state.co.us/pubs/elections/HAVA/files/HAVA_complaint_form_05-15-08.pdf
You CAN make a difference – take a stand for election integrity and against the waste of your tax dollars by government officials trying to tell you how to vote.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need 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 helps Colorado voters “Know Your Judges” with substantive evaluations of judicial performance
[Clear The Bench Colorado Director Matt Arnold's article, below, was published Friday 26 October as a Guest Commentary by the Denver Post ("Evaluate the performance of Colorado judges before voting" in the Idea Log online opinion section, and in the Colorado Springs Gazette, in the Sunday 28 October print edition]
“Know Your Judges” with substantive evaluations of judicial performance
We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.
— Abraham Lincoln
As Coloradans prepare to cast their ballots in the 2012 elections, despite being bombarded with political ads, MOST voters have little to no information on up to a third of the people asking for their vote: our state’s 3rd Branch of government, the judges.
The official, government-sanctioned incumbent-protection “reviews” produced by the state’s Commissions on Judicial Performance (published and disseminated, at taxpayer expense, in the “Blue Book”) fail to provide much (if any) substance behind the published “recommendations” (almost uniformly in favor of “retaining” judicial incumbents in office). In that respect, the Blue Book “reviews” are little more than (taxpayer-funded) political ads for incumbents.
The Commissions on Judicial Performance (groups of political appointees charged with evaluating and reporting on the job performance of judicial incumbents) routinely fail to actually evaluate judicial job performance or provide adequate information sufficient for voters to base a decision. Summarizing an incumbent’s resume and tabulating the results of surveys sent out to a select group of lawyers and other judges fails to answer the question posed to voters, “do they deserve another term – and why?”
A Denver Post guest commentary by a former Judicial Performance commissioner (February 2010) noted,
There has been a failure of real performance evaluation and a lack of analytical content in the write-ups for the voters.
If narratives provide meaningful information about how a justice has decided cases, there will be accountability and the system will work as it is designed to do. Too often in the past, narratives have amounted to complimentary resumes instead of job performance evaluations. Some commentators and observers have denigrated the narratives as a “rubber stamp” exercise for retaining judges.
Why do we have political appointees (commissioners are appointed by the governor, attorney general, state legislators and the Chief Justice of the Colorado Supreme Court – the latter seeming to have a conflict of interest) telling Coloradans how to vote?
Colorado voters deserve better information on these unelected officials, who (usually with little notice) exert enormous influence over their lives. For the second straight election cycle, Clear The Bench Colorado has researched and evaluated the performance of the appellate court (statewide) judges appearing on the 2012 ballot (1 Supreme Court justice, 6 Court of Appeals judges), collected inputs on district and county judges from around the state, and published this information in an easy-to-read “scorecard” format as a resource for Colorado voters.
Our courts rule on important issues that seriously impact all Colorado citizens, including:
- Tax increases without constitutionally-required voter approval (property taxes, vehicle registration taxes – er, “fees”, energy taxes, and the so-called “Dirty Dozen” tax increases on everything from candy to doggy bags)
- Free Speech issues (including both academic and political speech rights)
- School funding and school choice issues
- Self-protection or “gun” rights (including overturning an illegal ban on concealed-carry by the University of Colorado)
- Healthcare issues (including insurance coverage, medical records privacy and liability for malpractice resulting in death)
- Congressional and state legislative redistricting and reapportionment, setting Colorado’s district boundaries for a decade
View Clear The Bench Colorado’s Evaluations of Judicial Performance 2012 for substantive evaluations of judicial performance – to better “know your judges” before casting your vote this year. (http://www.clearthebenchcolorado.org/evaluations-2012/)
Colorado judges seeking retention in office 2012
This week, the Colorado Office of Judicial Performance Evaluation (COJPE) released the names of those Colorado judges seeking to be retained in office (subject to voter approval) in 2012.
This year, the number of those judges seeking voter approval for another term (10, 8, 6, or 4 years depending on the level of court) is down slightly from last year. Colorado judges seeking retention in 2012 (appearing on the November general election ballot with a “Yes” or “No” vote option) are:
- 1 Supreme Court Justice
- 6 Court of Appeals judges
- 83 District & County judges
(View the comprehensive list of Colorado judges seeking to be retained in office in 2012)
The Colorado Office of Judicial Performance Evaluation (COJPE) simultaneously published the “judicial performance evaluations” (based predominantly on surveys of attorneys and other parties appearing before each judge). As usual, almost all of the judges “evaluated” received a “Retain” recommendation from the respective review commission (the single exception being a county judge in El Paso County,
4th Judicial District – who was given a “Do Not Retain” recommendation based on “Demeanor”).
Unfortunately, the survey methodology employed by the Colorado Office of Judicial Performance Evaluation and the resultant 5-paragraph “Judicial Performance Review” narratives fail to provide substantive information on which to base an informed decision on “should they stay or should they go.” (See: Evaluating the Performance of Justices, Denver Post Guest Commentary by former State Judicial Performance Commissioner William M. Banta, for a critique of JPE relevance and effectiveness)
For example, in the case of the single judge receiving a “Do Not Retain” recommendation this year, based predominantly on attorney responses to surveys: was the judge’s courtroom “demeanor” truly disrespectful and lacking in neutrality, or is she a “no-nonsense judge who follows the letter of the law… [who acts to] incarcerate dangerous drunk drivers for the protection of the public”? Are the “surveys” reliable, or the result of manipulation by disgruntled attorneys? Unfortunately, it’s difficult to tell from the data presented in the “judicial performance review” narratives.
Our View:
Colorado voters deserve better – a broader, more substantive evaluation based on “relevant, substantive and vigorous information” about how (and whether) the judge upholds the rule of law.
Most importantly, Colorado voters should receive information from a variety of truly independent sources. The quasi-official, government-appointed Commissions on Judicial Performance Evaluation are inherently prone to political bias, conflicts of interest (attorneys practicing before the very judges they “evaluate”) and groupthink. Most dangerously, in publishing and distributing (at taxpayer expense) a “recommendation” on judicial retention, these commissions represent the government telling the public how to vote on another branch of government – completely undermining the independent accountability mechanism at the heart of Colorado’s “merit selection & retention” system for the courts.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need 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.
Judicial Performance Review Commission charged with bias
In a development which should come as no shock to astute observers of Colorado’s “judicial merit selection and retention” system, the state’s 10th Judicial District performance review commission has been charged with bias in conducting “reviews” of judges in the district, as reported in a Pueblo Chieftain newspaper article (“Officials stand behind performance commission“) earlier this week.
Also unsurprisingly, as reported in the same story,
The powerful entities atop state government that appointed members of the 10th Judicial District judicial performance commission are standing behind their appointees…
Who are the “powerful entities” in question?
House Speaker Terrance Carroll, D-Denver, appointed Karn. Outgoing Colorado Supreme Court Chief Justice Mary Mullarkey appointed Naranjo and Esquibel. Senate President Brandon Shaffer, D-Longmont, appointed Vigil.
The 10th Judicial Commission members in question – all Democrats, appointed by Democrats (including Mullarkey) voted to recommend against retention for Judge Jill Mattoon (a Republican, although appointed by Democrat Governor Bill Ritter – who has actually appointed several good judges).
Although it is possible that “There is no reason to believe that this recommendation was the result of anything but the conscientious work and sound judgment of the commission as a whole,” there is conversely no reason not to believe otherwise. Without evidence either way, it’s a matter of dueling opinions.
Since the deliberations of the commission, and basis for their recommendation, are not transparent to the public, suspicions of partisan or institutional bias (in addition to being Democrats, the commissioners in question “have or have had ties to the public defender’s office and another is a criminal defense lawyer”) have been raised by numerous individuals – including Judge Mattoon herself (who, incidentally, was retained in office).
Overall, the “judicial performance review commissions” (at both the district and state level) demonstrate a consistent ‘pro-incumbent’ (pro-”retain”) bias; over the entire history of the existence of the “review” commissions, only 16 judges have EVER been recommended for a “do not retain” vote (that’s an endorsement of over 99% for judicial incumbents), ALL at the district level or below. At the state level, the commission has recommended to “retain” the incumbent every single time they’ve issued a review (a 100% “retain” recommendation that would make even Fidel Castro or Saddam Hussein envious).
Allegations of bias have been raised in nearly every instance in which the commissions have issued a “do not retain” recommendation.
The main problem with the judicial performance review commissions is a lack of transparency and accountability along with a lack of substantive, documented evaluation. Voters are simply urged to accept at face value whatever recommendations the commissions put forth, without any insight into the process or possible bias of any commissioners (indeed, most often lacking any substantive information whatsoever on which to base an informed decision).
Clear The Bench Colorado has long been critical of the lack of substantive information provided by the “Judicial Performance Review” commissions (c.f. Accountability, Transparency apply to the Colorado Supreme Court, too) as have other independent analysts (for example, this article published by the Denver Post, “Evaluating the performance of justices“, back in February).
Colorado Citizens deserve better. Most importantly, Clear The Bench Colorado agrees with critics of the commission “reviews” (see “Judging Colorado’s Supreme Court justices” letter to the editor) that voters need “relevant, substantive and vigorous information” – based on “the written decisions of the court” – in order to make an informed decision on whether to retain, or NOT to retain, judges (at all levels) on the ballot.
Perhaps it’s time for the legislature – or citizen initiative – to address much-needed system reform in our judiciary.
The fight to reform Colorado’s corrupt legal/judicial complex continues. Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for violations of Colorado campaign finance law. Longer term, Clear The Bench Colorado will work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public. For both of those endeavors, we would appreciate your continued support – via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Balance of Power on Congressional Redistricting & Legislative Reapportionment rests with Bender, Colorado Supreme Court
“Amateurs study tactics, professionals study logistics.” (Military aphorism, variously attributed)
Translating from the military vernacular to the political, “amateurs” focus on short-term electoral gains (transitory shifts in legislative majorities or changes in who holds political office) while “professionals” focus on building long-term institutional and philosophical shifts – holding the “high ground” and winning the “hearts and minds” of the electorate by determining the terms of political discourse.
In Colorado this year, the elections with the greatest and most long-lasting implications for the future of the state were not the votes for legislative or executive office, but the once-in-a-decade opportunity to hold an increasingly powerful and expansive judicial branch accountable to the public and to their sworn duty to uphold the Colorado Constitution and the rule of law.
Unfortunately, the effort to educate Colorado voters to what was at stake fell short (despite achieving the greatest percentage of “NO” votes for incumbent state supreme court justices in Colorado history) due to insufficient resources to reach all of the states’ voters.
Among the most important near-term implications on the political front: the continued dominance of the judicial branch in determining the boundaries of Colorado’s state legislative and Congressional districts – with major implications for the future of the tenuous toehold of Republicans in the state legislature (merely gaining a meager one-member majority in a single chamber in what was otherwise a landslide year for the GOP nationwide).
Republicans in Colorado shot themselves in the foot by failing to realize and effectively mobilize resources to deal with this fact at the state level.
Interestingly, a recent Denver Post article continues their tradition of providing information of interest and relevance to the elections after the vote is held (and too late to actually influence the outcome).
The article (“Who holds the key on redistricting?“) published in The Spot political blog, educates the political “amateurs” with a summary of who truly holds the power in drawing the state legislative and congressional maps:
Conventional wisdom holds that Republicans gained a toehold in the looming 2011 redistricting battle by winning back the state House* last Tuesday.
While a House majority helps the GOP’s cause, the balance of redistricting power – particularly of state legislative districts – rests squarely with Democrats, should they choose to exercise it. That point was likely reaffirmed Wednesday, when Justice Michael Bender, a registered Democrat, was appointed Chief Justice.
The political “professionals” running the show for the “progressive” majority which continues to dominate Colorado politics (despite a public majority view that runs counter to that ideology in this state) once again outmaneuvered the amateurs on the “right” – putting resources where they could influence the longer-term big picture:
In 2001, when Dems held only a majority in the Senate, they knew the courts were their best alternative. The balance of the current high court – where five of seven members were appointed by Democratic governors – still appears to rest with Democrats…
In reapportioning state legislative districts (which was taken out of the hands of the legislature several years ago and handed to an appointed commission), the Democrat advantage (thanks to the recent elevation of partisan Democrat Michael Bender to the office of Chief Justice) is even more pronounced. The 11-member commission is appointed by the legislative branch (4 picks total, 2 from each side), the executive (governor picks 3) and the final (and decisive) 4 judicial branch appointments (chief justice).
(Injecting the chief justice into this inevitably political process is yet one more corrupting influence contributing to the increasing polarization and politicization of our judiciary in Colorado).
As the Post’s political editor Curtis Hubbard sums up:
Put simply: Democrats have the edge in the capitol and the courts on congressional redistricting, and have an overwhelming 9-2 advantage in appointing members to the committee that will oversee legislative redistricting.
Although Colorado voters failed to exercise their right to remove 3 politicized judicial incumbents from office via the ballot box this November, Citizens should insist upon (and legislators should implement) measures to remove the judicial branch from the corrupting position of influencing policy and politics in order to concentrate on their primary duty to defend the Constitution and uphold the rule of law.
The fight to reform Colorado’s corrupt legal/judicial complex continues. Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for violations of Colorado campaign finance law. Longer term, Clear The Bench Colorado will work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public. For both of those endeavors, we would appreciate your continued support – via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
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.
An “enthusiastic thumbs up” to retain a trio of incumbent Colorado Supreme Court justices?
The most recent edition of the Colorado Statesman uncharacteristically missed the boat entirely in highlighting the election results for the three incumbent Colorado Supreme Court justices on this year’s ballot (possibly allowing the quest for quotable verbiage to overcome accuracy in reporting).
The article (“‘No!’ was on voters’ minds when it came to weighing in on ballot measures – But Supreme Court judges rate ‘thumbs up‘”) published last Friday (5 November 2010) began with the following lede:
Voters Tuesday night gave a resounding “no!” to eight of the nine measures on the 2010 ballot, but an enthusiastic “thumbs up” to retaining Supreme Court and appeals court judges.
An “enthusiastic “thumbs up” to retaining Supreme Court” justices on the ballot?
Hardly.
The percentage of “NO” votes recorded (approximately 40%, with some minor differences between each justice, and significant variation across different counties) was the highest ever recorded for any incumbent Colorado Supreme Court justice since unopposed retention elections were instituted in Colorado in the mid-1960′s; the incumbents’ retention in office was due much more to inertia (along with the taxpayer-funded incumbent-protection “retain” recommendations promulgated in the taxpayer-funded “Blue Book” pamphlets distributed to every Colorado voter) than to any “enthusiasm” for retaining these consistently anti-constitutional unjust justices in office for an additional 10-year term.
The electioneering activities of a consortium of legal-establishment special-interest groups attempting to (and possibly succeeding in) buying the election for their buddies on the bench in violation of Colorado campaign finance law may have contributed to the outcome as well (it would certainly be ironic if the judicial branch incumbents were retained in office due to the illegal activities of their supporters in the legal community).
The Colorado Statesman article similarly erred in stating that the efforts of Clear The Bench Colorado advocated for the non-retention of the four incumbent Colorado Court of Appeals judges appearing on this year’s ballot; even the most superficial review of the CTBC Evaluations of Judicial Performance page would have confirmed CTBC’s recommendation for a ‘Yes’ vote on 2 of the 4, and no recommendation for or against the remaining two incumbents. The mischaracterization is at worst malicious, more likely evidence of sloppy journalism.
However, the article at least concludes with otherwise accurate information and quotes on the subject from Clear The Bench Colorado Director Matt Arnold:
The effort to oust the judges was led by Clear the Bench Colorado. Executive Director Matt Arnold said Wednesday the “other side” had spent money illegally to support the judges, and his resources got tied up in “frivolous lawsuits.” He attacked an editorial run in The Denver Post from former Supreme Court Justice Jean Dubofsky that supported the judges, which Arnold said was full of “falsehoods.”
However, Arnold said his efforts got more people to pay attention to the issue of judicial retention than had ever happened before. Justices and judges got the most “no” votes on retention in history, with most around 40 percent. “It shows what can be done with raising awareness,” Arnold said. “If nothing else, what I’ve done is sparked attention to the issue, and I’m encouraged by it and by those who paid attention.” But in the end, “David didn’t have enough stones against Goliath.”
Although this year’s campaign (and election) is over, the fight to reform Colorado’s out-of-control legal/judicial complex continues. In the near term, Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for their violations of Colorado campaign finance law. Longer term, Clear The Bench Colorado will work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public. For both of those endeavors, we would appreciate your continued support – via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
A New Era for Judicial Retention Elections?
Although Clear The Bench Colorado fell short of removing the trio of incumbent Colorado Supreme Court justices on this year’s ballot, the approximately 40% “NO” vote (with some minor fluctuations between individual justices on the ballot and extreme variations in county results) was not only the largest percentage of “NO” votes ever received at the state supreme court level since the institution of unopposed retention elections in Colorado, it may have signaled the dawn of a new era in judicial retention elections, statewide and nationally.
At least that’s the premise of an article published in the nationwide Stateline – State Policy and Politics publication.
Clear The Bench Colorado Director Matt Arnold was interviewed for the article (“Judge fights in Iowa, Illinois signal new era for retention elections“) which appeared online earlier today.
Although the majority of the article focuses on the hotly contested (and big-spending) judicial retention elections in Illinois (where incumbent Chief Justice Thomas Kilbride successfully campaigned to keep his seat) and Iowa (where a trio of incumbent state supreme court justices were ousted thanks to a well-resourced anti-retention campaign), it concludes with a quote from Clear The Bench Colorado Director Matt Arnold on the wider implications of the high-profile judicial retention battles this year:
The result in Iowa is “indicative of a movement to hold that third branch more accountable,” says Matt Arnold, the founder of Clear the Bench Colorado. Arnold’s group sought to remove three Colorado Supreme Court justices this year over a series of tax-related decisions. The campaign wasn’t successful, but Arnold says it may be a sign of more fights to come. “A lot of people are waking up to the fact that our courts have been increasingly usurping power that does not rightfully belong to that branch.”
The movement to hold Colorado’s judicial branch – particularly, but not exclusively, our Supreme Court justices – accountable to the Colorado Constitution and to the people of Colorado is an ongoing effort. Although Clear The Bench Colorado failed to win this first major battle, the war for judicial accountability continues.
In the near term, Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for their violations of Colorado campaign finance law. In the longer term, Clear The Bench Colorado will work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public. For both of those endeavors, we would appreciate your continued support – via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.