Following last Friday’s initial coverage of the blockbuster campaign finance complaint (at up to $500,000 in penalties and fines, potentially the largest in Colorado history, by several orders of magnitude) against the Know Your Judge consortium by Law Week Colorado and Face The State, the consistently thorough and professional investigative journalist Michael Roberts of Westword weighed in today with an article (”Clear the Bench Colorado’s Matt Arnold on campaign complaint about KnowYourJudge.com“) gaining the first comment from supporters of the judicial incumbents.  Although Democrat Party attorney Mark Grueskin and his ‘Colorado Judiciary Project’ group are not part of the “Know Your Judge” consortium (and not named in this complaint), they are allied parts of the legal establishment united in opposing the upstart judicial reform and accountability movement led by Clear The Bench Colorado.

Grueskin echoes the position taken by the “Know Your Judge” consortium in dismissing the complaint by parroting the party line that ‘Know Your Judge’ is “simply educating voters about resources they can use in making their decisions” - but later gives the game away, admitting that the group has “urged voters to… be knowledgeable and vote.”

‘Urging a vote’ counts as “electioneering” - particularly when that ‘urging’ includes spending close to $100,000 to run over 4,000 ads on radio and TV - which these groups have done.

The groups, which include the Colorado Bar Association, the Colorado Judicial Institute and the League of Women Voters of Colorado, “violated Colorado campaign finance laws,” Arnold asserts. “And they’re lawyers, so they ought to know better.

“They think they’re being clever to express advocacy to vote,” he continues. “But if you go to their website and click through” — to the page for the Colorado Office of Judicial Performance Evaluation, “you get their recommendations — which are to retain all three Supreme Court judges on the ballot this year.”

Arnold concedes that the organizations “have the right to express their opinion, but they have to follow the same rules that I do. And instead, they’ve chosen to intentionally violate the rules and spend this money without the proper accountability.”

Another key difference in the “educational” activities of the ‘Know Your Judge’ consortium vs. the substantive Evaluations of Judicial Performance provided by Clear The Bench Colorado: CTBC presents information from both sides, whereas the only “educational information” provided by Know Your Judge points to a “retain” vote.

The activities of the consortium - and of each of the individual organizations funding those activities - are not conducted out of ignorance, but are willful violations of campaign finance law; the participants know the law, and know better.  As a result, the consortium (and the participating organizations individually)

could face huge penalties as a result of their failure to file as a political committee. “They’ve been closely following what happened with me, and they’ve been snickering about it,” he alleges. “But they’re subject to the same $525 per-person-per-cycle limits as I am. And if, as I understand, the Colorado Bar Association contributed $50,000 to this campaign, it’s about $49,475 over the limit. So you could see fines tacking up pretty high, pretty fast.”

As for Arnold’s feelings about tomorrow’s elections, he says he’s “cautiously optimistic” his message has gotten out, despite all the legal hurdles that have been placed before him over the past several months. He adds that “this is a case of the underdog taking on the giants — but they’re in the wrong. They’re violating the rules, and they’re not above the law.”

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 resigning 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!

Clear The Bench Colorado has more than once criticized the dearth of coverage provided by the Denver Post on the “long train of abuses and usurpations” perpetrated by the Colorado Supreme Court; we have on occasion been frustrated at the limited opportunity to respond in print to some of the most spurious accusations and misinformation purveyed by guest commentaries (particularly a June commentary attacking the right of citizens to criticize the courts, and most recently, last Sunday’s attack piece by former justice Jean Dubofsky which presented a litany of distortions, misrepresentations, and outright untruths in attacking the judicial accountability group Clear The Bench Colorado.

However, CTBC has not shirked in giving credit where credit is due - and today’s (Sunday) Denver Post editorial (Vincent Carroll’s “A magnificent abstraction“) not only noted:

Just days before the election, the Colorado Supreme Court has given voters yet another reason why two justices up for retention should be bounced from the bench. The high court, in one of those quirky rulings for which it is now notorious, reversed the conviction of a man who used another person’s Social Security number to obtain an auto loan.

The editorial went on to take former justice Dubofsky to task for making deliberately false “suggestions” in her previous week’s guest commentary:

Even the modest efforts of the group Clear the Bench, which urges a “no” vote on all three justices, has provoked charges from establishment figures that it seeks to “politicize” the judiciary. In a recent column in The Denver Post, former Supreme Court justice Jean Dubofsky repeatedly suggested that Clear the Bench promotes contested judicial elections - which simply isn’t the case. [Ed. emphasis added]

Dubofsky’s article, her appearance (without prior notice) to debate me on the ‘Your Show with Adam Schrager’ television program the previous week, and the massive ($85,000+) spending on numerous advertisements in support of judicial incumbents by a consortium of legal-establishment special-interest groups (in the process, committing several violations of Colorado campaign finance law) highlights the extent to which the legal/judicial complex has rallied to preserve their monopoly of control over the courts:

While Colorado’s judicial retention system is superior to electing judges, most voters know next to nothing about jurists up for retention, and the legal establishment does its best to keep us in the dark. Only a lavishly funded campaign to dislodge a justice would have a chance of success.

I’m somewhat more optimistic than the view expressed in the editorial about the 3 judicial incumbents maintaining their seats; all across the state, people “get it” that their rights have been serially violated by the incumbent majority on the Colorado Supreme Court.  CTBC has been absolutely flooded with online comments, E-mails, and even phone calls seeking more information on which to base a decision for voting on judges (at all levels); the distrust and dismissal of the review commission’s rubber-stamp “retain” recommendations published in the “Blue Book” is palpable.  Tuesday’s results will tell if the legal/judicial complex will have been able to buy their incumbent allies another term on the bench, or if a feisty and underfunded grassroots effort will succeed in dislodging a few “politicians in black robes.”

In related news…

Apparently the big spenders in the legal/judicial complex are not the only ones opposing the efforts of Clear The Bench Colorado to inform the voting public of our right to vote NO on unjust justices…

In addition to the ongoing theft of Clear The Bench Colorado yard signs (apparently fairly standard practice in campaigns) - reportedly among the most-stolen (hey, it’s nice to be popular), some of the larger CTBC signs were vandalized sometime on Halloween (I’m reasonably sure it wasn’t trick-or-treaters).  In what was apparently an orchestrated effort, vandals pulled down some 4×8 signs in the Southeast Metro area, damaging the mounting stakes (which took some effort).  Police reports have been filed; any witnesses are encouraged to contact CTBC to assist in locating the perpetrators.

(Reports of 3 black-robed suspects fleeing the scene are probably exaggerated, although the image of black-robed judges and/or pinstripe-suited lawyers sneaking away from the dirty deed is comical…)

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 resigning 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!

In a “fair and balanced” media universe (even in a world in which the concept of “journalistic integrity” still had any meaning), the violation of Colorado campaign finance laws by a consortium of some of the largest and most powerful legal-establishment special-interest groups in the state (headed by the Colorado Bar Association, joined by the Colorado Judicial Institute, the Institute for the Advancement of the American Legal System and the Colorado chapter of the League of Women Voters) with potential fines and penalties approaching a half-million dollars would be BIG news.

Instead, the majority of the Colorado press and media remain asleep at the wheel…

However, two media outlets have been paying attention to the issue, and have each written a fair summation of the complaint.

First out the gate (which has often been the case when it comes to coverage of Colorado legal issues) was Law Week Colorado.  Their article, published online Friday (”Judicial-Ouster Group Files Complaint Against Colo. Bar Association, 3 Others“) notes that

[t]he four groups named in the complaint each contributed to the “Know Your Judge” campaign, which produced public service announcements urging voters not to skip judges up for retention on the ballot

and noted that the “Know Your Judge” campaign universally recommended a “retain” vote for the incumbent Colorado Supreme Court justices on the ballot.

The article goes on to note the irony in the fact that

Clear The Bench’s complaint relies in part on an administrative law judge’s ruling in a campaign finance complaint brought against it this year by Colorado Ethics Watch. The ruling found that committees that advocate for or against a judge must register as political committees.

Law Week’s article also includes the full text of the complaint, as filed (excepting attached Exhibits).

The first news organization to actually actively seek information on the story (you know, what used to be called investigative journalism and reporting) was Face The State online/radio news.  Their article (”Complaint: Know Your Judge doesn’t know state campaign finance laws“) was also published Friday afternoon.  Face The State’s article notes the extent to which the special-interest groups named in the complaint have funded the “Know Your Judge” campaign, as well as the potential fines and penalties to which they may be subjected once the complaint is resolved in court:

According to an article in Law Week, the Colorado Bar Association paid $50,000 to produce the ad spots; the Institute for the Advancement of the American Legal System paid $25,000, and the Colorado Judicial Institute pitched in $10,000. The organizations, plus the League of Women Voters, are listed as sponsors on the Know Your Judge “About Us” page.  [Ed. the amounts for IAALS and CJI were switched in the FTS article - it should be $10,000 by IAALS, and $25,000 by CJI - which, BTW, is a 501(c)3 organization prohibited from contributing to campaign activities].

Had Know Your Judge registered with the Secretary of State as a political committee–Arnold believes it should have–it would be limited to receiving contributions no greater than $525 per contributor per election cycle. If the complaint is upheld, a judge can levy 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.

“Collectively and as individual organizations, they have all violated the law,” Arnold said. “They should have had to come together to file as a committee, or they could have done so individually.”

These legal-establishment special-interest groups are not above the law; the same rules should (and do!) apply to these groups, and their political activities, as apply to anyone else.  They apparently consider themselves (along with the anti-constitutional incumbents they are working to keep in office) in a separate class - they seem to believe that laws only apply to the “commoners” (and not the legal-judicial “ruling class”).

Clear The Bench Colorado’s complaint serves notice that they - along with the judicial incumbents they are supporting - can and will be held 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 minus Chief Justice Mary Mullarkey,  who’s resigning 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!

Clear The Bench Colorado has been under sustained attack by a number of well-funded special-interest groups for a number of months; from the politically-motivated “campaign finance complaint” filed by “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) on 5 May 2010 (ruled to be “frivolous, groundless, and vexatious” on 21 July by a judge who also awarded CTBC thousands in legal fees - totaling $23, 712.50, which CEW is now refusing to pay), followed up by a second round of attacks in which they finally got a judge to see things their way (contrary to all logic, and even against the testimony by the Elections director of the Office of Secretary of State).

More recently, Clear The Bench Colorado has been falsely accused of wanting to scrap Colorado’s system of judicial selection & retention to push for partisan elections for judges (most prominently by former justice Jean Dubofsky, who insinuated as much in a televised debate and then, even after being corrected, proceeded to spread the false allegations in print).  We’ve even been accused of being a shill for “secret and powerful special interests” seeking to inject ‘big money’ into judicial elections (which is a total laugh, as anyone who’s seen CTBC’s campaign finance reports can attest).  CTBC’s finances are completely open and accessible to the public, by the way, in contrast to the ‘Colorado Judiciary Project’, a special-interest group which refuses to disclose finances, which is sponsoring Dubofsky’s appearances and publications).

In fact, pretty much all of the entrenched legal-establishment special-interest groups have brought out the big guns against Clear The Bench Colorado.

Why?

For reminding Colorado voters of our right to vote in judicial retention elections, providing a substantive evaluation of the performance of judicial incumbents at the highest levels (particularly for the incumbent Colorado Supreme Court justices), and urging voters to exercise their rights on the ballot.

Over the last few months (since August), a consortium of the entrenched legal-establishment special-interest groups has been running advertisements in print, on the radio and on television to convince Colorado voters that “all is well” with our judicial incumbents; in fact, this special-interest-group consortium has spent over $85,000 to run over 4,000 ads on radio and television in September and August alone - in support of the incumbents at the top levels (pretty soon, you’re talking real money).

Now, there’s nothing wrong with spending money on advertisements; but this special-interest group hasn’t been following the rules…

Other groups (including Clear The Bench Colorado) engaging in political advocacy or electioneering communications (talking about candidates on the ballot) must file as a political committee with the Office of Secretary of State.  These organizations - either individually or collectively - have NOT filed the required registration, nor have they filed the required reports.  They have also collected and spent money FAR above the $525 contribution limit that applies to contributions for political committees.

The rules apply to both sides in any contested issue or campaign.

Tens of thousands of dollars have been spent by these organizations with no accountability or transparency, in sharp contrast to Clear the Bench Colorado - which has followed the ever-changing law to the letter (despite all the changes) - while conducting similar political advocacy activities.

In a clear case of “what’s good for the goose should be good for the gander,” Clear the Bench Colorado simply wants these organizations held to the same legal standard as is everyone else in the state.

To that end, we have filed a campaign finance complaint against this consortium of entrenched legal-establishment special-interest groups (collectively and as individual organizations) to ensure that they follow the same rules as everyone else.

If Clear the Bench receives a favorable judgment, these organizations will be subject to fees ($50 per day that they didn’t file) as well as fines of 2-5 times the contribution totals above and beyond the $525 contribution limit for a political committee (which, since these groups spent at least $85,000, will add up to a hefty sum).

These groups, with armies of accountants and lawyers at their beck and call, should (and do) know better.  Apparently, they thought that they could get away with violating the law, since CTBC’s resources (and ability to challenge their activities) have been strained almost to the breaking point.  However, they messed with the wrong guy…

Clear The Bench Colorado may be the underdog in this fight - but it’s not the size of the dog in the fight that matters, but the size of the fight in the dog.  CTBC doesn’t have armies of attorneys and accountants on call - but CTBC is… an Army of One.

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 resigning 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!

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!

Colorado Secretary of State Bernie Buescher yesterday failed in his duty to provide legal clarity and 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.  Rather than formalize the adoption of a draft rule circulated over a year ago (and on which Clear The Bench Colorado has relied, along with other guidance issued by the Secretary of State’s office, for over a year - the legal term is “estoppel“), Secretary of State Buescher’s decision not to back the reasoned conclusions of his own professional staff and allow a flagrant attempt by CEW to retroactively change the rules “in the middle of the game” to go forward undermines reliance on the rule of law by individuals and grassroots groups participating in civic activity, and calls his professional qualifications and integrity into question.

The Secretary of State’s letter denying Clear The Bench Colorado’s request for legal clarity by merely formally adopting the draft rule previously discussed and recommended by the office’s professional staff over a year ago even (again) documented the fact that the SOS office had issued specific guidance to file as an Issue Committee (the CEW complaint alleges that Clear The Bench Colorado should have filed as a Political Committee instead and should be held retroactively liable for fines despite reliance on the Secretary of State’s guidance):

… the Secretary of State provided informal guidance to Clear The Bench that the group might more appropriately register as an issue committee.

Clear The Bench submitted another [amended] committee registration in June of 2009, registering as an issue committee.  This registration was accepted by the Secretary of State, and Clear The Bench has since been registered as an issue committee. [emphasis added]

If citizens and grassroots groups wishing to participate in the civic and political process cannot rely on the guidance issued by the Secretary of State - either due to ignorance, incompetence, or ideological leanings - and are left open to “frivolous, groundless, and vexatious” attacks by groups such as CEW which exist solely to tie up their resources, who will be left able to participate?  Only the entrenched special-interest groups and “big-money” political groups that are tied in with established incumbents - leaving the average citizen out in the cold.

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!

For perhaps the first time in our state’s history, an increasing number of Colorado Citizens are taking an interest in the Colorado Supreme Court  judicial retention elections - our only opportunity, as Citizens, to hold the officeholders in our 3rd branch of government (the judiciary) accountable (to the rule of law generally, to the Constitution specifically, and ultimately to We The People, in whom ultimate political authority is constitutionally vested).

Some voices - notably professional politicians such as Susan Thornton, as expressed in her Denver Post article (”Criticism of retiring Judge (sic) Mullarkey unfair“), or other legal professional advocacy groups (such as the Grueskin group formed to defend Colorado Supreme Court incumbents and oppose the growing influence of Clear The Bench Colorado) believe that Citizens have no place in the process.  Their message?   ”Trust us, the elite political insiders, not your lying eyes. We know better.”

Others - spearheaded by Clear The Bench Colorado, but also including a large number of legal reform groups, transparency and good-government advocates - believe that Citizens not only have the right (as clearly expressed in the Colorado Constitution) but even the responsibility and duty to get informed and act (”vote “NO on unjust justices!“) accordingly. (Responding to Thornton’s attack on independent critiques of the judiciary -  Accountability, Transparency apply to the Colorado Supreme Court, too - we defend the constitutional right of Colorado Citizen participation in the process).

The following article, published in the August edition of The Constitutionalist Today, expands upon that point:

Restoring Accountability and Transparency to Colorado Courts -

Why Citizen participation in judicial selection and retention is vitally necessary

A number of years ago, Colorado embarked upon an experiment in government that was touted as a great reform. Attempting to “take the judges out of politics” our state did away with direct, contested elections of judges in favor of the “merit selection and retention process” pioneered by the State of Missouri (the “Missouri Plan”), under which judges and supreme court justices are nominated by commissions, appointed by the governor, and only subjected to checks and balances by the citizens of the state in periodic “retention” elections (posed as a simple yes/no question on the ballot).  For Colorado Supreme Court justices, the opportunity to hold them accountable comes around only once every TEN years, posed as a ballot question: “Should Justice [name] be retained in office?” (Yes/NO)

In theory, the system looked like a good idea; after all, selecting judges and supreme court justices on the basis of “merit” instead of “ability to win an election” - putting professional qualifications ahead of political ones - appeals to our common desire for fair play and “equal justice before the law” and removes some of the most direct and obvious temptations for corruption via “quid pro quo” campaign contributions.

In practice, however, the “Missouri Plan” systems in place in several states seem to have merely shifted the potential for undue influence to well-connected interest groups (particularly the “in-crowd” of bar associations, other attorney groups, lobbyists, and others directly involved with the courts) operating largely outside of public scrutiny.  Lack of transparency - in both the up-front selection and back-end review & retention processes - has actually led to an utter lack of accountability for Colorado Supreme Court justices in Colorado.

A recent Wall Street Journal article (”Voters vs. George Soros - Taking judicial selection away from the lawyers guild“) highlighted some of the concerns with the judicial selection and retention process under the “Missouri Plan” used by Colorado:

“Designed to take politics out of the courtroom, the plan has in practice handed disproportionate influence over the judiciary to lawyers and bar associations. The effect has been to give a single profession control over a third of state government, with little political accountability.”

As with many things brought to us by the “good idea fairy”, the devil is in the details. Colorado’s Judicial Performance Review Commission (JPRC) “performance” reviews are heavily biased in favor of judicial incumbents (over the last several decades, issuing only 15 recommendations for non-retention resulting in only 7 judges being voted out of office) and provide little substantive information for citizens trying to decide how to vote on judges, especially supreme court justices. These JPRC review “narratives” (published at taxpayer expense in the “Blue Book” voter guides) focus almost exclusively on qualifications (essentially, have they checked all the right boxes) instead of performance (have supreme court justices, for instance, properly carried out their duties - and lived up to their oaths and obligations, or not).  The most important judicial quality of all - upholding the law, as written (not fabricated or “interpreted” according to a personal or political agenda) - is given short shrift or even no consideration at all.  (Additional information on the shortcomings of Colorado’s Judicial Performance Review process is available in a pair of Denver Post articles: “Demand accountability from judges, too” July 2nd CTBC guest commentary; and “Evaluating the performance of justices“, Feb. 13th [non-CTBC] guest commentary).

The recently announced impending retirement of Colorado Supreme Court Chief Justice Mary Mullarkey - who decided to quit rather than be held accountable by voters this November - has also raised interest in how Colorado appoints and evaluates judges (and particularly supreme court justices), in the first place.  The process is not merely of “academic” interest.  From an Institute for Legal Reform publication reviewing “merit selection” systems and best practices across several states:

“The procedures that determine how state judges are selected and placed on the bench, particularly those in the highest courts, are central to the ultimate quality of justice in our courts. Every American has a stake in the way state judges are chosen.(emphasis added) Some states that select their judges through a commission-based appointive system have been criticized for the absence of public input into the process, lack of transparency, secretiveness in their procedures, and the political cronyism that can occur when commissions and the governor operate in what is essentially a closed system.”

The common theme in critiques of the “Missouri Plan” system of “merit selection & retention” 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.

Of course, the biggest political “players” 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.  The usual suspects include the “lawyers guilds” and similar groups.  The WSJ article also singles out another powerful and well-connected cabal:

“The system has powerful defenders, however, including groups connected to the George Soros-funded Justice at Stake.”

Soros’s group would be more aptly named “Justice put to the Stake”.

Here in Colorado, a new pressure group of apologists was recently formed by politically influential and well-connected attorneys (led by Democrat super-lawyer and frequent Colorado Supreme Court litigator, Mark Grueskin) specifically to counter the growing supreme court reform and accountability movement spearheaded by Clear The Bench Colorado.  (Story broken by Law Week Colorado, “Group aiming to defend Colorado judiciary comes to light“, followed up in Westword and on Clear The Bench Colorado (”More details emerge on group formed to oppose accountability for Colorado Supreme Court incumbents“).

Along with articles published in mass media outlets (for example, a recent Denver Post article calling “Criticism of retiring Judge Mullarkey unfair“), these groups are attempting to maintain the crony system of political insiders picking and preserving in power supreme court justices who rule against the rights of the people in favor of big government - putting you in your place as a subject, not protecting your rights as a citizen.  They can get away with it only as long as they succeed in keeping voters in the dark.

That is why public participation - not just by a select few politically connected individuals put on commissions, but by fully informed public discussion and debate - is so critically important to maintaining good government (and accountability) in our judiciary.  Become an informed citizen - review sources such as Clear The Bench Colorado and get to Know Your Courts to get “the rest of the story”.

“The original purpose of using a commission-based merit selection system was to reduce the politicization of the judiciary system. As such, it is imperative that merit selection systems not simply hide the politics behind the closed doors of a Commission but drive out destructive influence through a system that is transparent and accessible to the public.”

“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

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!

After Sunday’s Denver Post editorial (”Unintended consequences in judicial push“) missed the point of Clear The Bench Colorado (hint: it’s not about selecting replacements for the incumbent justices; it’s about holding the current justices accountable to the Colorado Constitution, the rule of law, and the citizens whose rights they are sworn to uphold) and ended up by spinning an implausible scenario of justices “retiring” after being voted out this November (the ol’ “you can’t fire me; I quit! routine), the remainder of the week brought out more serious news coverage related to Clear The Bench Colorado and the Colorado Supreme Court.  (Unfortunately, none of the actual news appears to have been covered by the Denver Post - although they did publish the important stories such as the “supporting roles” of Romanoff’s family on his campaign, Bennet’s time spent with his daughters, and the theft of “more than 100 gnomes” in Arvada.  Yep, hard-hitting investigative reporting and “serious” journalism…)

Meanwhile, other more topically substantive publications have been following the unraveling of the “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) “frivolous, groundless, and vexatious” campaign finance “complaint” against Clear The Bench Colorado.

This week’s coverage of the story opened up with Monday’s radio news segment on 1310AM KFKA with Face The State managing editor Brad Jones discussing how “liberal litigation shop Colorado Ethics Watch is ordered to pay up for a misfired lawsuit.”  (The “Colorado Ethics Watch” - CEW, pronounced “sue”, it’s what they do - segment begins at 10:45 on this audio clip).  A few highlights:

“Colorado Ethics Watch in particular exists solely to tie up conservative causes in court… and that is an established campaign tool.  Mark Grueskin, a major Democratic attorney who takes up a lot of these kinds of cases… basically admits as such.  Litigation is now an expense, both in prosecution and defense, for campaigns…

The part that’s really important to note here is that… in Colorado, an attorney being forced to pay the opposing counsel’s attorneys fees is a very rare event indeed, because under Colorado’s judicial rules, when a lawyer signs that complaint, they are certifying that it is a legitimate question of law… and in this case, the judge said that ‘you have no business filing this complaint because you knew that the facts were not with you and that you had no chance of prevailing, but you pursued it anyway…

On Tuesday, Law Week Colorado picked up the story of last week’s ruling by Administrative Law Judge Robert Spencer which not only dismissed CEW’s frivolous, groundless, and vexatious “complaint” against Clear The Bench Colorado but also took the rare step of directing CEW to pay thousands in legal fees because the “complaint” was so completely without merit.  Law Week’s article (”Denver Administrative Judge Upbraids Colorado Ethics Watch“) noted that the judge soundly rebuked ”Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) in his written order (published Monday), which the article also included in full.  Some excerpts:

An administrative law judge has chastised a Denver-based ethics-watchdog group, calling a recent complaint filed by the group “substantially groundless and frivolous.”  …

In the written order, Spencer said Ethics Watch “was in possession of facts putting it on notice that its claim was groundless but at no time did it seek to voluntarily dismiss its claim.”

Today, Law Week also covered Clear The Bench Colorado’s request (filed Tuesday) for the Secretary of State’s office to provide legal clarity (and foreclose CEW’s plans for an endless cycle of additional “complaints” in their ongoing efforts to harass our grassroots movement) by issuing a definitive ruling which codifies the guidance issued by that office to Clear The Bench Colorado over a year ago:

Clear The Bench wants the Secretary of State to adopt a rule that says “a committee whose purpose is the support or opposition of the retention of a judicial seat shall register as an issue committee…” The group, which all state Supreme Court justices now up for retention, registered as an issue committee on the advice of the Secretary of State’s office.

Clear The Bench Colorado also received coverage in the context of the controversy currently surrounding the Colorado governor’s race.  In addition to the Denver Post editor’s misguided assumptions about what constitutes a “good outcome” for CTBC’s efforts to hold our incumbent Colorado Supreme Court justices accountable to the law (hint: it’s not dependent on who’s governor), Clear The Bench Colorado received national exposure in the latest Human Events article by Colorado correspondent Ross Kaminsky (”GOP in Disarray in Colorado Governors Race“) which highlights the importance of the Colorado Supreme Court vote in upholding the principles of constitutional limits on government power, in Colorado and beyond:

In addition to the redistricting following the results of this year’s census, there is also a grassroots movement called Clear the Bench Colorado which aims to get Coloradoans to vote out three ultra-liberal state Supreme Court justices.

CTBC has put enough pressure on the judges that the chief justice of the Colorado Supreme Court, a woman who has demonstrated no respect for the rule of law or the will of the people, announced her retirement a few weeks ago rather than face the voters.  If CTBC is successful in causing the removal of one or more justices, the next governor will appoint the replacement(s).  As important as Kagan or Sotomayor is on a national level, these vacancies will be at least as important within our state. [emphasis added]

Also today, the Face The State radio minute (broadcast on a variety of stations across Colorado) focused on the unethical practices of “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) conducting legal harassment of opposing groups.  The broadcast segment (entitled “Names can be deceiving”) called CEW to task for its habit of filing harassing “complaints” without legal merit:

Would a group called Colorado Ethics Watch ever do something out-of-bounds? Names can be deceiving…

Political attack ads are often funded by some group with a name like, “Coloradans for fluffy bunnies” or “The campaign for rainbows and sunshine.” Names can be deceiving. Take for example Colorado Ethics Watch, which purports to use the courts to pursue unethical political behavior. Well, so long as the target is a conservative, that is. Despite their intentions, the group has every right to access the legal system. But last week, CEW was slapped with attorneys fees for filing a complaint it knew had no merit. In Colorado, fees are assessed sparingly, and only in clearcut cases like this. It’s the second time in four years CEW has been rebuked like this. Legal harassment doesn’t sound very “ethical” to me.

Finally, in news breaking later in the day, Law Week also published the number of applicants (31 people applied) for the impending vacancy on the Colorado Supreme Court that will be created once the announced retirement of Chief Justice Mary Mullarkey (who announced her intent to retire rather than be held accountable by voters in the November elections) becomes effective (currently scheduled for November 30th).  In keeping with current practice and tradition (but not as a statutory requirement), the Judicial Nominating Commission has NOT released the names of the would-be Colorado Supreme Court justices to the public.  (Clear The Bench Colorado is pursuing that information in the interest of public accountability and government transparency - stay tuned for upcoming announcements).

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!

A few days ago - following the announcement of Clear The Bench Colorado’s resounding win against the frivolous, groundless, and vexatious “complaint” filed by the legal attack group “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do), with the judge even going the extra mile and awarding Clear The Bench Colorado ‘tens of thousands’ in legal fees payable by CEW attorneys - Editor Dan Haley of the Denver Post left me a cryptic message stating that he “had a question” for me (unrelated to ‘this’).  On returning to my computer that evening, I replied with my cellphone number and asked for the question - but didn’t hear back.

Today’s (Sunday) Denver Post provided some clues as to what Dan Haley’s question(s) might have been: his editorial in the “Perspective” section purports to address “Unintended consequences in judicial push” (meaning, of course, Clear The Bench Colorado).

Unfortunately, Haley probably would have benefited from first getting the answer(s) to his question(s) of Clear The Bench Colorado, as his editorial contains a few errors of both fact and interpretation.

Although Haley starts out with a reasonably accurate summation of the “judicial push” (to vote “NO” on the unjust justices of the Colorado Supreme Court subject to voter approval this November) he misses the mark on “unintended consequences”:

A conservative group called Clear the Bench Colorado wants Coloradans to clear the Supreme Court bench this November and oust three Supreme Court justices who are up for retention.

(They originally had four justices in their sights, but earlier this summer Chief Justice Mary Mullarkey announced her retirement as of Nov. 30.) [Ed. quitting rather than facing voters]

In Colorado, judges and justices are appointed by the governor, but they must be retained every few years by voters.

The justices’ crimes, according to the group’s website, include “aiding and abetting . . . unconstitutional property tax increases; the unconstitutional elimination of tax credits and exemptions; and unconstitutionally re-defining taxes as fees,” among other things.

Those three rulings, of course, came after controversial decisions by Gov. Bill Ritter - decisions many on the right derided as unconstitutional but the court upheld nonetheless.

Actually, those were only two rulings (the “Mill Levy Tax Freeze” property tax increase ruling also created the loophole the legislature exploited with the “Dirty Dozen” new tax laws; another ruling enabling taxes to be collected under the guise of “fees” led to the Colorado Car Tax and other “fees”) among many.  Other key rulings expanded eminent domain abuse to seize people’s property, grabbed the (legislative) power to apportion legislative district boundaries (aided by the recent “Mary-mandering” bill) and set the state up for fiscal disaster by grabbing the power to set school funding levels (Lobato v. Colorado) for unelected judges away from elected legislators and school boards.

The Denver Post editorials have been appropriately critical of these rulings (neatly summarized in Vincent Carroll’s excellent piece, “Mary Mullarkey’s Troubling Legacy - Mullarkey Court altered Constitution’s true meaning“) so it is unfortunate that, until recently, the Post has given scant coverage to the very important issue of judicial retention elections for the authors of those rulings.

Where Haley most seriously misses the mark (and misstates the facts) in his editorial (which could have been avoided with that follow-up message or phone call) comes in his review of the process in the aftermath of a “NO” vote for the incumbent Colorado Supreme Court justices in the upcoming elections.  Although he starts out on solid ground,

If voters choose not to retain a justice, and the judge finishes out his term, the next governor would appoint the successor.

Haley then veers off into some tenuous territory:

Here’s the rub: Should a justice decide to resign after not being retained, it would trigger a 30-day clock for the Supreme Court nominating commission to propose replacements.

Three names would then be sent to Ritter for each vacancy, and he would have 15 days to appoint someone. If he failed to appoint someone, the Supreme Court chief justice would appoint someone within 15 days.

That strict timeline is laid out in the Colorado Constitution. So if an ousted justice resigns within nine days of the retention vote, Ritter would appoint the successor.

This is an implausible and, frankly, silly scenario.  Once voted out, the justices have no office to resign - like any other lame-duck politician, they would serve out their terms (which, for the incumbent justices up for a vote this NOvember, expire the 2nd Tuesday in January) but lack authority to dispose of their office in such fashion.  Otherwise, every officeholder losing a vote would “retire” instead…

Any attempt to repudiate the will of the voters in such blatant fashion would not only “look nakedly political” - it would likely trigger a constitutional crisis, if not “torches & pitchforks.”

Haley’s mention of such a ridiculously implausible scenario is most likely an attempt to “poison the well” for those few Republican backers of Clear The Bench Colorado who might allow a narrowly partisan view to cloud their judgement.  It won’t work - Colorado voters are smarter than that.  The prospect of ten more years of “the devil you know” - three Colorado Supreme Court justices with a consistent record of violating the constitutional rights of Colorado citizens, who would lock in a Democrat majority via their lock on the state-level legislative reapportionment and congressional redistricting process IF (but only if) the current majority remains in power to elect the next Chief Justice after that office comes vacant following retirement of the current chief - balanced against the chance to give a new governor the chance to appoint three replacements who will be subject to another vote in only TWO years (instead of TEN) will serve to remind Colorado voters that the MOST important votes on this year’s ballot are “NO” votes on the remaining three ‘unjust justices” who seek their approval for another decade’s leave to violate their rights.  No matter who becomes governor, Clearing The Bench of these three incumbents is a net win for Colorado.

“Unintended consequences?”  No.  ”Intentional disinformation?”  Perhaps.

It’s nice to know, at least, that the Denver Post and editor Dan Haley “have no problem with groups like Clear the Bench trying to educate voters about judges and justices” - we’re looking forward to our opportunity to discuss these vital votes with the Denver Post editorial board and express the hope that they will (finally!) step up their coverage of this critically important issue on the news pages as well.

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!

Clear The Bench Colorado wins!

Yes, it’s still more than three months until the judicial retention elections in November, when Colorado citizens will be able to exercise their right to vote “NO” on the three remaining ‘unjust justices’ of the Colorado Supreme Court’s incumbent ‘Mullarkey Majority’ who have declared their intent to allow themselves to be held accountable (minus, of course, Chief Justice Mullarkey herself, who last month announced her intent to resign rather than be held accountable by voters in the November elections).

Earlier today, however, Clear The Bench Colorado won a stunning victory when Administrative Law Judge Robert Spencer not only dismissed the frivolous, groundless, and vexatious “complaint” by self-proclaimed watchdog (actually, attack dog) “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) - which we have been predicting for weeks - but also ordered CEW to pay ‘tens of thousands’ in attorney’s fees to Clear The Bench Colorado because the complaint was so completely without merit.  Face The State broke the story earlier today (”Self-styled ethics watchdog ordered to pay ‘tens of thousands’ to judicial-reform campaign“):

For the second time in its four-year history, the group Colorado Ethics Watch has watched one of its trademark ethics complaints backfire after it was ordered to pay attorneys’ fees to one of its targets. An administrative law judge today threw out the group’s claims against Clear The Bench Colorado, an issue committee that seeks to oust three state Supreme Court justices on this November’s ballot.

The monumental nature of Clear The Bench Colorado’s victory in this case - particularly the award of attorney’s fees - is difficult to overstate.  It is rare (indeed, almost unheard of - though not totally unprecedented) for attorney’s fees to be awarded to the defendant in this type of case, as Face The State had pointed out in an earlier article (”Judicial-reform group lashes back at ‘frivolous, groundless’ complaint“):

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

The award indicates that the judge not only thought that CEW’s case (or “complaint”) was bad - he thought it was SO bad that he took the unusual step of slapping CEW with the entire bill (which, as noted, runs into the ‘tens of thousands’).

CEW’s attacks against Clear The Bench Colorado fit 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.  As many publications noted at the time, CEW’s attack was just another cheap political stunt.  Even the Secretary of State’s office called CEW Director Toro’s statements “disingenuous” (which is a polite way of saying, ‘lying through your teeth’).

Sadly, “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) doesn’t seem to know when to quit.  Even after being definitively slapped down, CEW Director Luis Toro announced his intent to file an amended or “supplemental” complaint and continue CEW’s harassment of the judicial accountability group Clear The Bench Colorado.  And why not?  It’s not as if they’re spending their own money - not only are they well-funded by Colorado’s own “4 horsemen” - multi-billionaire activists Tim Gill, Jared Polis, Rutt Bridges, and Pat Stryker (as documented in the excellent book  The Blueprint by former Rep. Rob Witwer & 9News Reporter Adam Schrager) but also by their parent organization in Washington D.C. (with a reported 2008 revenue of $1.35M - that’s million).  That’s if they’re even spending money at all - apparently Toro’s co-attorney (Aaron Goldhamer of Sherman & Howard, LLC) is working the case pro bono (donating his time, and the firm’s resources, for free).  Perhaps Sherman & Howard clients might wish to ask about how their money is being spent?

Even with all that money, power, and legal talent (when mentioning “talent”, I’m talking about Goldhamer, and other attorneys working behind the scenes - not Toro, who’s pretty much a legal hack, not even capable of doing the most basic legal research before attacking) lined up against Clear The Bench Colorado -  we still win!

Comes from doing the right thing (as previously noted, CTBC registered in a timely manner, fulfilling all reporting requirements, in accordance with the Secretary of State’s guidance and established campaign finance regulations and procedures) - but still, score one for the underdog!

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

Fortunately, they can be stopped - by citizens with the courage to fight back.  Show your support today - stand up to unethical attorneys and sleazy solicitors, and contribute to help provide the resources for Clear The Bench Colorado to prevail against what are ultimately attacks on YOUR freedom.  Also, since sweet success is the best revenge - spread the word about why the four (er, three remaining) incumbent justices of the Mullarkey Majority (Michael Bender, Alex Martinez, Nancy Rice, and soon to be minus Chief Justice Mary Mullarkey) deserve a “NO” vote in November (and why CEW has been sicced on Clear The Bench Colorado to cover for special interests who benefit from keeping them on the bench).  Remember, they 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 on the bench for another 10-year term!