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!

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 retire 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!

The discussion continues…

More readers (including a vehement critic of citizens exercising their 1st Amendment rights to evaluate judicial officeholders) have weighed in on our article (published on Friday, July 2nd under the “My Turn” header as “Demand accountability from judges, too”) in response to a June 11th article defending incumbent judges and attacking critiques of the court (“Criticism of retiring Judge (sic) Mullarkey unfair”).

Clear The Bench Colorado previously excerpted some of the most interesting comments (since Post readership is declining, you may have missed it) and invite additional comment here or on the Post’s website.  Also, the full version of the original article (the Post’s version was heavily edited for space) is available for comparison (Accountability, Transparency apply to the Colorado Supreme Court, too).

Below is our response to the several comments submitted thus far on the Denver Post website:

Judging from the overwhelming tenor of responses posted as comments to this article, a majority of Colorado citizens who are paying attention to the issue of judicial performance reviews and retention elections in this state “get it” - our courts (particularly the incumbent justices on the Colorado Supreme Court) are out of control, and need to be held accountable - to their oath to support the Constitution, uphold the rule of law, and defend (not eviscerate) the constitutional rights of Colorado citizens.

The tone of the responses and comments posted - by my count, commenters (some with multiple postings) include a dozen favorable, one opposed, one neutral-ish, and one paid hatchetman (c’mon, “Paul W.” - come clean on who hires you to troll the site and post comments - at least have the courage to post your actual name and stand behind the attacks) reflect what I’ve encountered over the last several months speaking to various civic-minded groups around the state: there’s a HUGE unrequited thirst for substantive information about the performance of our unelected (and heretofore largely unaccountable) judiciary, the critically important 3^rd branch of our system of government.

Some of the comments (particularly the attacks on Clear The Bench Colorado and its supporters, but also a few of the supportive comments) have gotten off-track, so I’ll attempt to recap the issues and address some major points.

First, to clarify: Clear The Bench Colorado is not advocating for any radical changes to our current system of judicial selection and periodic retention elections at this time.  Despite serious concerns expressed from a number of perspectives that the current system (the “Missouri Plan”) undermines accountability (and there is some merit to that argument), it is our hope that with minor reforms and (most importantly) active civic participation in the process - including information and critiques from a variety of sources and perspectives - we can defend and improve upon our existing institutions.

“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

Second, the CTBC article specifically counters the view (expressed by Thornton and other defenders of incumbent justices and the status quo) that citizens and independent groups have no right to express an opinion or critique concerning judicial performance.  Such a view runs counter to the very idea of the Citizen as sovereign that is the basis of our form of government (and our nation’s philosophical core).  Criticizing an alternative perspective as “morally and intellectually flawed” and devolving into ad hominem attacks on the messenger betray the hollowness and lack of substance of the attacker’s message.  There’s just no “there” there.

Finally, even the critics - paid attackers and otherwise - have not been able to answer my challenge to provide an example of how the “Blue Book” reports - the Judicial Performance Review Commission narratives - are in any way helpful or informative to voters in deciding how to “judge the judges.”  Citizens are advised to either uncritically accept the black-box recommendations by the closed-door, non-transparent, unaccountable, political insider-dominated process that generates the JPRC and “Blue Book” reports, or (essentially) devote their lives sitting in courtrooms and/or poring over every last one of the myriad rulings of the justices in question.  (It’s no fun, I can assure you).

The fact remains: our institutions may be worthy of preservation, but the system of judicial performance reviews has consistently failed to provide the substantive evaluations needed to inform the public.  Consideration of alternative, independent views - including critiques - is vital to ensuring accountability.  Why are CTBC’s critics so threatened by the light of this independent review?  Because they know that the citizens of Colorado, when presented with good information, will exercise their right to vote “NO” on the unjust justices of the Mullarkey Court this November.

Clear The Bench, Colorado!

Clear The Bench Colorado very much appreciates the interest and engagement demonstrated by so many of the comments submitted to the Denver Post website, and encourages further discussion - after all, it’s YOUR rights that are at stake.  Join the discussion - right here and/or on the Denver Post site.

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.”  Continue to support Clear The Bench Colorado with your comments (Sound Off!) and your contributions - and vote “NO” on giving these unjust justices another 10-year term!

After a few weeks (and a Face The State article - ”Supreme Court’s temporary digs draw a dart from court critics“ - noting the Denver Post’s lack of critical coverage of the Colorado Supreme Court, and the issue of judicial retention elections, since the Colorado Supreme Court began paying the Denver Newspaper Agency $1.6 million in annual rent for office space in the Denver Post building) the Denver Post published our response this Friday (July 2nd) to a June 11th article defending incumbent judges and attacking critiques of the court (“Criticism of retiring Judge (sic) Mullarkey unfair”).

The guest commentary (published under the “My Turn” header as “Demand accountability from judges, too”) generated a fair amount of response and reader comments, considering its appearance at the start of the 4th of July holiday weekend.  We’ve excerpted some of the most interesting comments below (since Post readership is declining, you may have missed it) and invite additional comment here or on the Post’s website.  Also, the full version of the original article (the Post’s version was heavily edited for space) can be viewed here for purposes of comparison (Accountability, Transparency apply to the Colorado Supreme Court, too).

Comments on the Post website opened up with the obligatory salvo from the paid “trolls” who surf the comments section attempting to “spin” the message to their side:

Article Discussion: Demand accountability from judges, too

by Corndogsaredelicious on July 2nd, 2010, 9:17 am

“CTBC’s message is: Get informed, using a variety of sources. Then do your duty as citizens.”

This is inaccurate. And it exposes CTBC’s political agenda. “Clear the Bench” would otherwise be named “Get Informed Before You Vote”. All appellate court decisions are published and available for review by the public. CTBC focuses on one or two of hundreds, and hopes that you will side with its disgruntled founder’s self-interested attacks on judges that he doesn’t agree with. CTBC’s arguments are intellectually and morally flawed, and should be ignored.

The commenter (Paul W., or “corndog”) works for one of the organizations supporting the current incumbents.  Although he (correctly) points out that “all appellate court decisions are published and available for review by the public” (Clear The Bench Colorado also links to those decisions and other references in the interest of an informed electorate) he fails to mention that it is VERY difficult to find any useful information on the Colorado Supreme Court site unless you already know what you’re seeking. Clear The Bench Colorado does focus on a subset of the “hundreds” of Colorado Supreme Court cases -  we have highlighted several (not “one or two”) decisions that have the most impact on Colorado citizens and the state as a whole, and that have most blatantly and egregiously violated the clear language of the Colorado Constitution.  The fact that the “Supremes” might get it right on several cases of interest only to the parties involved does NOT excuse the fact that on the most consequential cases, dealing with core issues of constitutional law and affecting the entire population of the state, the current majority has repeatedly come down on the wrong side of the law and violated your rights.

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

Other comments reflected citizen interest in and understanding of the importance of the judiciary in our system of government and the need for citizens to take seriously their responsibility to hold these officials accountable:

Article Discussion: Demand accountability from judges, too
by infossh on July 2nd, 2010, 11:02 am

In general, judges have become complacent and often see themselves as lifetime justices. They also assume that their role is to change the semantics of laws to accommodate what they perceive in changes of social order and understanding.

That is certainly the case in Colorado’s Supreme Court. It’s time for a renewal of commitment to the wisdom of the rule of law rather than the vagaries of whim that have come to determine judicial ruling.

Re: Article Discussion: Demand accountability from judges, too
by jpa11074 on July 2nd, 2010, 11:24 am

CTBC does a great service to those of us that believe we should be an informed electorate. Finding information on judges has historically been very difficult, and for the life of me I don’t understand why some would want to silence anyone trying to get detailed information out to the public so they can make informed decisions. That is, of course, unless they don’t want that information made available to the voters. “Yup, just tell me how to vote and don’t get me mired any of the detail.” Right.

The many, not just “one or two” decisions, CTBC has highlighted clearly show why these 4 justices should not be retained. The light of day disinfects much, and in this case, hopefully our supreme court. I just wish we had similar information easily available (judges decision records) for all of our judges….

Many comments focused on the need for transparency and accountability, with information from a variety of sources:

I Can “Judge” Just Fine, Thanks
by throatwarbler on July 2nd, 2010, 11:45 am

The remedy for speech that you don’t like is your own speech! Anyone who doesn’t like CTBC’s message is free to create their own web-site. Retainthesegoodjudges.com is probably available. By all means, go for it. I’ll be the first to go read it. I’m sure it will be interesting.

Regardless of where I get my information, I consider the source. If I get info from a lawyers group, I think about the fact that they have to work with these judges (at their mercy). I can also evaluate the “disgrunt” factor of other sources. For once, I GET TO BE THE JUDGE!

Article Discussion: Demand accountability from judges, too
by polygirl on July 2nd, 2010, 12:53 pm

It seems to me that we “the people” have the right to retain or not retain judges who make decisions that affect all of our lives. Our political system is one of accountability through the electoral process. We should know as much about these judges as we do about any other candidate for office and make an informed choice in the voting booth. Clear the Bench is doing something that should have been done a long time ago — giving more scrutiny to politically appointed lifetime judges that we have the people have a right to retain or oust.

Re: Article Discussion: Demand accountability from judges, too

by jpa11074 on July 2nd, 2010, 12:58 pm

Somehow it just doesn’t ring true that hearing from a citizen’s group highlighting judicial decisions and sharing opinions as to whether the judges are good for us, will harm us and then jump to the conclusion we’ll have only judges “hired by the most money.” Considering how typically difficult and time consuming it is to sort through court decisions, I’m delighted to have someone do some of the work for me, then follow through with my own analysis of their opinions and recommendations.

Instead of generalizations from Corndogsaredelicious, maybe he would simply tell us what his substantive argument(s) is(are) with Mr. Arnold’s and CTBC’s opinions on these justices. That would be helpful. Is it only CTBC that Corndogsaredelicious does not want to air their synthesis in public, or is it any or all citizen groups? Or just some groups? Or should we just allow the State Commission on Judicial Performance decide who to retain, and not have the voters “bother” having opinions or retention votes?

Some readers also fired back at the attacks on the notion of outside citizen’s groups having a say in evaluating the judiciary:

Re: Article Discussion: Demand accountability from judges, too

by H J Ledbetter, J.D. on July 2nd, 2010, 12:51 pm

I have done far more than research Matthew Arnold, as Paul W suggests. Paul W has clearly never met Mr. Arnold, nor informed himself of what has been going on in the Colorado Supreme Court for the last few years. I know Matt Arnold. He is a gutsy man who doesn’t mind some sniping from positions of ignorance. He has done his research, and so have I. I read the cases that these folks decided. I didn’t read them as an uninformed observer either. I read them with the foundation of more than 35 years of the practice of law behind me, including a fair number of appellate cases. What’s more, even the justices themselves are identifying some of the worst aspects of what these justices are doing. Please refer to Justice Eid’s dissent in Mesa County v Ritter. She tells it like it is. She shows just how far the majority opinion went to make sure that no vestige of TABOR remains in Colorado. The will of the people of Colorado is being tossed aside like a dirty tissue.

Beyond that, I have had a personal conversation with Justice Bender, who told me (while looking me right in the eye), that the purpose of the Colorado Supreme Court was to "make Colorado law". So, if you are a left-leaning person who believes that the justice system should be as active at law-making as the legislature, he is your guy. But if you think that laws should be made in the legislature, and applied by the courts, then maybe it is time that these four (now three) justices should find new jobs where they can be less "active" in making Colorado law that neither you nor I want.

It is about time that someone started pulling back the curtain on the mysteries that surround us in government. Thanks Matt for doing so!

Finally, some commenters provided their own analysis of several court cases (particularly the “Mill Levy Tax Freeze” case which unconstitutionally increased property taxes without a vote of the people and ripped open a loophole through which the legislature rammed through the “Dirty Dozen” tax increase bills this year) and provided additional insight into the Judicial Performance Review Commission that was the subject of the dueling Denver Post articles:

Re: Article Discussion: Demand accountability from judges, too

by PETERCOULTER on July 3rd, 2010, 9:40 am

In order to fairly assess the results of the Judicial Performance Commission (JPC) one must be familiar with it’s rules (http://www.coloradojudicialperformance.gov/) and whether they comply with their respective State Statute. (CRS 13.5.501 ) Of importance here are the rules complete absence of real public input concerning the selection of appellate and supreme court justices. In fact, in an article (http://law2.fordham.edu/publications/ar … ub8522.pdf) about the JPC, ex-Supreme Court Judge, Jean Dubofsky wrote. “The primary structural problem with the JPC is that the appointing authorities have complete control over the political make-up of the commissions, as there is no requirement for partisan balance. Thus, the commission membership depends upon the political affiliation of the appointing authorities.” followed by “Experienced commissioners tend to think that the public hearings are a waste of time.” The result being that the public now feels that activist judges are being evaluated by activist (read political) commissions. This point is highlighted by Democrat’s reaction to Mr. Arnold and the CTBC organization. Democratic party attorney Mark Grueskin has teamed up with Democrat Jean Dubofsky in an effort to offset the increasing influence of CTBC. (http://www.lawweekonline.com/tag/jean-dubofsky/) They are prohibited from doing it directly so instead they have implemented a strategy to convince the public that they can trust the recommendations of the JPC. In order to do so one has to overlook that the commissioners were appointed by a majority Democrat Legislature, Democrat Governor, and Democrat Supreme Court Justice Mullarkey*.
The results of these actions are an activist Judiciary that holds no accountability to the citizens of Colorado, a self serving “country club” mentality. It should be of no surprise then that when it gets out of control, someone like Matt Arnold and CTBC pushes back. Another example of this are ballot questions 60, 61 and 101 which in reality restore the provisions of the TABOR amendment. If not for the activist Supreme Court gutting the intent of TABOR and the citizens of Colorado; these questions would not be before the voters again. In questioning by US Senator Whitehouse, Supreme Court nominee Elena Kagan defined the relationship of politics to the Court, ”the people need to trust the Court as a non-political body.” The outcome of retention voting for justices Bender, Martinez and Rice (and also Gilmore and Blair who acted as shameless prosecutors of Tim Masters) will not only indicate the voter’s confidence in the respective judges; but also their confidence in the objectivity and recommendations of the status quo Judicial Performance Commission or those of Clear the Bench Colorado. /Peter Coulter/

Clear The Bench Colorado very much appreciates the interest and engagement demonstrated by so many of the comments submitted to the Denver Post website, and encourages further discussion - after all, it’s YOUR rights that are at stake.  Join the discussion - right here and/or on the Denver Post site.

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.”  Continue to support Clear The Bench Colorado with your comments (Sound Off!) and your contributions - and vote “NO” on giving these unjust justices another 10-year term!

Clear The Bench Colorado is always willing to give credit where credit is due - even if the credit was earned grudgingly and under pressure.

Accordingly, we commend the Denver Post for publishing (albeit weeks after submission and in greatly abbreviated form) our article in today’s (Friday) newspaper in response to a guest commentary published June 11 (“Criticism of retiring Judge (sic) Mullarkey unfair”) which attacked efforts (unnamed, but clearly implied, meaning Clear The Bench Colorado) to provide Colorado voters with substantive information and objective reviews of judicial performance in order to hold the incumbent officeholders on the Colorado Supreme Court accountable to the law and to the citizens of our state.

The Denver Post version of the article (heavily edited for space) - appeared in today’s (Friday) paper under the title “Demand accountability from judges, too” after a couple of weeks delay (and possibly precipitated into print- say that three times, fast) by Wednesday’s Face The State article (”Supreme Court’s temporary digs draw a dart from court critics“) highlighting the Post’s lack of coverage of any criticism of the Colorado Supreme Court since they took up offices in the Denver Newspaper Agency building (worth $1.6 million annually to the Post publisher’s bottom line).  The original version (taking up precisely 500 words - coincidentally the exact same as the limit for the judicial performance review  ”narratives” published in the “Blue Book”) appears below.  Compare and contrast the coverage!

Accountability, Transparency apply to Courts, too

“Move along, people. Nothing to see here.” (Officer Barbrady, South Park)

The defenders of the status quo are nothing if not predictable.

Last Friday’s guest commentary by career politician Susan Thornton attempted to characterize any critique of incumbent state Supreme Court justices as “attacks” and “over-the-top charges.”

Her selective use of incendiary and emotional language to characterize any critique of the performance of the state Supreme Court justices subject to a vote in the upcoming elections as “attacks” seeks to deny the right of individual citizens or independent groups to express their views under the First Amendment to hold government officials - our judicial branch - accountable to the people in an open, transparent manner.

Her alternative?  The closed-door, non-transparent, unaccountable, political insider-dominated process that is the Judicial Performance Review Commission “evaluation” of judicial branch officeholders:

“[V]oters in Colorado learn about individual judges’ records from nonpartisan citizen panels that evaluate the judges and make recommendations about whether they should be retained.”

Chief Justice Mullarkey herself - who began making public appearances shortly after the judicial accountability organization Clear The Bench Colorado was formed - made the same argument:

“The judicial performance review commission reports tell you everything you need to know.”

But do they?

The reports issued on each judicial officeholder by the commissions (and appearing in the “Blue Book”) take the form of a “narrative” which by rule “shall consist of 5 short paragraphs totaling not more than 500 words” - only one of which (paragraph 4) may even address “description of the performance of the justice or judge” at all!  The remaining paragraphs (the bulk of the “evaluation”) list the commission recommendation, including vote (1); describe “biographical data” (2); list “previous employment” (3); and conclude with a catch-all mostly devoted to survey statistics (5).

The narratives are heavily biased towards retention of incumbents; rules restrict the recommendations based on results of questionnaires distributed to a select group (predominantly other judges, attorneys, and a very limited number of people actually appearing before the highest court).  Also, the incumbents under “evaluation” have the opportunity to respond to the draft narrative and request changes prior to publication (wouldn’t you like the chance to re-write your own job review?)

What does eventually appear in the “Blue Book” is so watered down and lacking in substance that it’s almost impossible to make any distinction between ‘excellent’ and ‘poor’ judicial performance.  In fact, if anyone thinks that these reviews are helpful in evaluating appellate court judges and justices, please let me know - and explain how they helped you “judge the judges.”

Thornton’s message to the voters was: “trust me - trust us, the elite political insiders - not your lying eyes.  We know better - pay no attention to the man behind (actually, lifting) the curtain.”

The CTBC message: get informed, from a variety of sources; then assume your responsibility as citizens.

“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

The politically motivated attack (er, “complaint”) by leftist lawsuit machine “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) against Clear The Bench Colorado hit a snag this week when the administrative law judge refused to hear CEW’s motion for summary judgement in isolation (which was an underhanded move by CEW attempting to put only their side of the story before the judge).

Instead, both CEW’s motion and the Clear The Bench Colorado cross motion for summary judgement (used, as in this case, “where no genuine issues of material fact exist and the the moving party is entitled to judgement as a matter of law”) will be considered together, one argument set against the other.  (For those interested in the legalese, the competing motions - along with a brief synopsis - were published by Law Week Colorado Wednesday, “Clear The Bench Asks Judge To Dismiss Complaint“).

Caught flatfooted, CEW has asked for an additional 10 days to prepare their response, and has also requested to “depose” (basically, question or interview) Clear The Bench Colorado Director Matt Arnold as well.  Since the facts of the case are not in dispute, CEW’s request for deposition is obviously just a “fishing expedition” for more information and another attempt to waste my time - no problem, I’ll be sure to charge them my full billable rate for however much time they consume.

Yesterday’s Face The State profiled the case and provides an excellent overview and context of the complaint, our response, the perspective of the Secretary of State’s office, and the record of “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) of filing (and frequently losing) attacks disguised as “ethics” complaints.  The article (”Judicial-reform group lashes back at ‘frivolous, groundless’ complaint“) notes that Clear The Bench Colorado has scrupulously followed all campaign finance rules, regulations, and guidance issued by the Secretary of State’s office, citing in our defense

memos dated over a year ago from the Secretary of State’s Office that advised the group to file as an issues committee. CEW alleges judges standing for retention are similar to candidates seeking elected office; but the Secretary of State and CTBC agreed since the voters are asked a yes or no question on keeping a judge, retention is a political issue, not a contested election involving candidates. The motion for dismissal says Ethics Watch pursued the complaint entirely for political gain and to gin up bad press, with a disregard for the law and the facts.

“[Ethics Watch] absolutely didn’t do any homework, and that’s why we’re asking for sanctions,” said attorney Mario Nicolais, who represents Clear The Bench. “There are very basic things you have to do as a lawyer before you file a complaint.”

As previously noted, the Secretary of State’s office slammed CEW’s complaint and CEW Director Luis Toro as “disingenuous” (basically, a polite way of saying “lying through your teeth”) since they were well aware of the fact that Clear The Bench Colorado had been ruled an Issue Committee (not, as CEW would prefer, a “political” committee subject to much more stringent fundraising limitations), confirming

Ethics Watch had a seat at the table throughout the summer, including at meetings where judicial retention committees were discussed. “Either Toro just plain forgot about this advisory panel meeting or he’s being disingenuous in his comments because Ethics Watch was represented at [the June 18, 2009] meeting and participated in this discussion.”

So why - when CEW clearly knows better that the law is not on their side - file the complaint at all?

“They’re using a lawsuit as an offensive weapon against Clear The Bench Colorado to drain their resources, to tie them up in court, to divert them,” [CTBC attorney] Nicolais said.

Hmmm… sounds pretty much ‘frivolous, groundless, and vexatious’ to me.  Will the judge agree?

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. Nicolais believes those criteria are met here.

If the administrative judge does order Ethics Watch to pay up, it wouldn’t be the first time: In 2007, CEW, then operating as Colorado Citizens for Ethics in Government, was ordered to pay attorneys fees to the Committee for the American Dream as a result of filing what the court called “groundless” litigation. In that case, as is alleged in the current complaint against Clear The Bench, the judge concluded CCEG “engaged in no other pre-filing investigation” than a cursory review of online records. The judge rebuked CCEG attorney Chantell Taylor for filing the bare-bones complaint in hopes she would uncover additional evidence in depositions and discovery. The fees were awarded “in the absence of any evidence to support CCEG’s key allegations.”

Will history repeat itself?  We think it might - stay tuned for breaking developments!

Meanwhile - Colorado voters can prepare to make their own history this November.  Inform yourself 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!

Clear The Bench Colorado has noted for several months now an apparent bias in the Denver Post’s coverage (more accurately, lack of coverage) of the very newsworthy fact that for the first time in over forty (40!) years (since the system of judicial retention - i.e. yes/no - elections in Colorado replaced contested - i.e. competitive - elections for judges) the citizens of Colorado are being provided with substantive information on the performance in office of our Colorado Supreme Court justices - and reasons why voters should strongly consider their removal from office (”vote NO“) this November.

Although the Denver Post did note (accurately) back in February that the Colorado Supreme Court justices (Michael Bender, Alex Martinez, Nancy Rice, and - at the time - Chief Justice Mary Mullarkey) subject to being held accountable in November faced a “tough vote” in retention elections, since that time - despite the growing momentum of the judicial accountability movement spearheaded by Clear The Bench Colorado - there’s been scarcely a word in print on the subject.  For that matter, there’s been scarce mention of the role of the Colorado Supreme Court in aiding and abetting several highly unpopular (and unconstitutional) legislative and executive actions undermining the constitutional rights of Colorado citizens.

A recent article (”Supreme Court’s temporary digs draw a dart from court critics“) notes that the Post’s coverage of the Colorado Supreme Court (or, more to the point, lack of coverage of any criticism of the court) might be influenced by the fact that the Post is being paid $1.6 million per year as the court’s current landlord:

Might the Colorado Supreme Court wind up with some pretty good press now now that it has set up shop in the Denver Newspaper Agency building, home of the Denver Post, at Colfax and Broadway?

At the end of April, both the Supreme Court and the Colorado Court of Appeals moved from their former digs at the state justice center, which is slated to be demolished this year to make way for a new judicial complex. They now occupy two full floors of the DNA building, and hold court on the first floor, right next to Heidi’s Deli.

Of course, the Post’s editors vociferously deny any conflict of interest - editor Greg Moore said it was “ridiculous” to think that the Post would allow $1.6 million a year to influence their coverage, and courts spokesman Rob McCallum asserted that “the court hasn’t gotten any kind of break from the Post.”

Perhaps.  On the other hand, the Post’s (lack of) coverage of the Colorado Supreme Court (and absent coverage of the growing momentum of this year’s judicial accountability movement) differs remarkably from that of other media (print or broadcast) around the state.

For instance, many media outlets around the state noted the role of the Colorado Supreme Court in enabling the “Dirty Dozen” tax increases - from the Fort Collins Coloradoan up north (”Citizens should get to vote on taxes“) to the Pueblo Chieftain in the south (“Clear the Bench” editorial published March 1st), in the mountains (Summit Daily News - ”Smaller government = more power to the people“) and the southwestern corner of the state (Durango Herald, “State lawmakers battle it out over tax breaks“) - but you couldn’t “read it in the Post.”

Interested in how the Colorado Supreme Court will influence how you are represented in Congress and the General Assembly by shaping legislative districts?  How about the legislature’s move to abdicate their constitutional responsibility and give even more power to the courts with the “Mary-mandering” bill at the close of the session?  You could get informed by reading other newspapers around the state (“Chief justice wields clout over reapportionment”), listening to radio (here, for example), and perusing coverage by a host of other media outlets - but again, hardly a peep from the Post.

Even the Post’s coverage of the recent announcement by Chief Justice Mullarkey that she would retire rather than be held accountable by Colorado voters - in which a majority of media noted that her decision to retire was likely influenced, if not precipitated outright, by the existence of the judicial accountability movement spearheaded by Clear The Bench Colorado - only contained an oblique reference to the existence of “a vigorous campaign by critics to persuade voters not to retain her on the court in November.”  No further information or name of the organization provided, of course (what am I, Voldemort?)

Most recently, the Post published a defense of Chief Justice Mullarkey (and incumbent judges in general) against any criticism or independent review of their performance outside of the lawyer-and-political-insider-dominated Judicial Performance Review Commission (“Criticism of retiring Judge (sic) Mullarkey unfair”).  Attacking the very idea that the judiciary - particularly Colorado Supreme Court justices - may be held accountable by the citizens on who’s behalf they supposedly hold office, the guest commentary published by the Post runs contrary to the spirit of transparency and accountability at the core of our system of democratic, representative government.  Despite a strong response from a number of comments and letters to the editor in opposition to the thrust of the piece, the Post had rebuffed our request for a rebuttal article (indeed, not responding at all to several communications).

Until today - when, following publication of the article raising the issue of the appearance of a conflict of interest, the Post informed me that they would be publishing my (short and limited in space) response (originally submitted over two weeks ago) this coming Friday.

Coincidence?

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 - recently minus Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.”  Continue to support Clear The Bench Colorado with your comments (Sound Off!) and your contributions - and vote “NO” on giving these unjust justices another 10-year term!

Media coverage of Colorado Supreme Court Chief Justice Mary Mullarkey’s announcement of her intent to retire rather than be held accountable by voters in the November elections over the last week began to go beyond the initial ‘news’ articles mostly just recounting the announcement itself (along with the obligatory paeans to her lengthy career) to conduct some assessment of her legacy in office, what her departure might mean for future of Colorado’s highest court, and the role of the judicial accountability movement spearheaded by Clear The Bench Colorado in influencing her departure from the bench.

Perhaps the most comprehensive published assessment of Chief Justice Mullarkey’s legacy to appear in newsprint this last week was Denver Post editor/columnist Vincent Carroll’s Saturday, June 5th piece (entitled, appropriately enough, “Mary Mullarkey’s Troubling Legacy - Mullarkey Court altered Constitution’s true meaning“).

Starting with a nod to Mullarkey’s “moderating influence” in her early days on the court - Carroll states (correctly, in my view) that Mullarkey’s “written opinion for the four-justice majority upholding Davis’ 1987 death sentence was a model of rigor and deference to the plain meaning of the law” but then continues:

If only more of her decisions of the past decade had revealed similar restraint.

Carroll then lists a large number of cases in which Chief Justice Mullarkey’s rulings departed from the “plain meaning” of the Constitution, statute, and other documents:

• The 2003 Salazar v. Davidson redistricting case, in which Mullarkey re-defined the term “General Assembly” to include the courts in order to justify a judicial usurpation of redistricting authority (redistricting is of course properly - and constitutionally -  a legislative function)
• A number of rulings against ballot initiatives that Mullarkey “attempted to suppress”

I defy anyone to locate a consistent principle or line of reasoning behind the court’s opinions on the single-subject requirement for ballot initiatives. When opponents of illegal immigration tried to put a simple, straightforward (and wrongheaded, in my view) measure on the ballot in 2006, Mullarkey joined a court majority throwing it off for what can only be assumed were raw political objections. As Justice Nathan Coats wrote in dissent, the majority “understands the term ’subject’ to be so elastic as to give this court unfettered discretion to either approve or disapprove any popularly initiated ballot measure at will.”

• Ruling to uphold an unconstitutional tax increase (as it turns out, several unconstitutional tax increases) in the notorious “Mill Levy Tax Freeze” case:

More notoriously - or commendably, if you think the state constitution is in need of some creative judicial revision - the court last year approved a legislative measure that will result in escalating property taxes despite clear TABOR language requiring a vote for any “tax policy change directly causing a net tax revenue gain to any district.” In the same decision, the court announced that lawmakers might eliminate tax exemptions without voter approval so long as the revenue didn’t exceed TABOR’s spending limits - and never mind that TABOR doesn’t even hint at such legislative leeway.

• And finally - the full implications of this decision have yet to be felt, but it’s a coming fiscal trainwreck - Mullarkey’s ruling in the Lobato v. State of Colorado case that will

result in judges, rather than elected representatives, deciding how much Colorado spends on schools. It’s hard to imagine a case that could do more to undermine representative democracy and the separation of powers in this state.

That’s quite a legacy.

On the airwaves that same Saturday, the Face The State Weekend Edition (listen to the podcast) assessed Chief Justice Mullarkey’s announced retirement in light of the growing momentum of the judicial accountability campaign lead by Clear The Bench Colorado:

Colorado Supreme Court chief justice Mary Mullarkey announced this week she would retire effective Nov. 30; what impact did a campaign to ouster a majority of the court’s members have on her decision? Face The State catches up with Matt Arnold, director of the “Clear the Bench Colorado” issue committee.  Play segment

Sunday’s Backbone Radio (AM710 KNUS) show also picked up on the topic of Chief Justice Mullarkey’s retirement, the continued issue of retention elections for the remaining 3 Colorado Supreme Court justices subject to a vote in November (Michael Bender, Alex Martinez, and Nancy Rice) and the importance of civic participation and defense of constitutional limits on government power (Listen to the podcast - 2 segments: 1st begins halfway into the 6:00PM segment, continues in the 6:30 segment)

During the week, other media across the state picked up on the story.  On-air Tuesday (June 8th), the Cari and Rob Show (”Independent Talk Radio for Independent Americans”) in northwestern Colorado broadcast an interview on the Colorado Supreme Court retention elections generally and Chief Justice Mullarkey’s retirement specifically (and the role of Clear The Bench Colorado in both issues).

Guest: Matt Arnold - Director of Clear The Bench Colorado. The impact of Colorado Supreme Court rulings has lead to massive expansion of government power and CTBC advocates not returning the three Colorado Supreme Courts up for election this year.  (Listen to the podcast - starts in the 11AM hour)

In print and online Wednesday June 9th, the Mountain Valley News also noted that “Judge’s decision to step down bears closer look“:

Last week we received notice from the Colorado Supreme Court that Chief Justice Mary Mullakey was stepping down to “pursue other interests.” We think there is more to the story.

Justice Mullarkey has been on the bench since being appointed by Governor Roy Romer in 1987. She was designated Chief of the Court in 1998. For the last eight years she has been involved in one controversial decision after the other, many of which we think are more politically motivated than she would like to admit. …

About 40 years ago Colorado decided to at least make an attempt to take the politics out of the judge selection process. While it was a step in the right direction, not having judges elected did not completely get rid of political influence. The judges are appointed by the governor, then are retained or rejected by the voters. The typical ballot question is: Should Judge Doe be retained in her position as Supreme Court Judge? That is the only chance voters have to remove a person from the bench of any court in Colorado.

This year, along with a strong movement to oust a number of incumbent politicians, there is also a significant movement to reject the retention of several judges, including Mullarkey and three other Colorado Supreme Court justices. Clear the Bench Colorado is a vocal group that has been advocating for the complete overhaul of the court.

Let there be no doubt that Mullarkey’s decision to step down had something to do with the fact that she may have to suffer the humiliation of rejection by the voters, something that does not happen very often. And let there be no doubt that the timing of her resignation is very politically motivated.

Well, THAT’s no malarkey.

On Friday, the defenders of the judicial status quo weighed in with a guest commentary in the Denver Post in defense of judicial incumbents generally (and Chief Justice Mullarkey specifically).  The piece (written by a career politician) called “Criticism of retiring Judge (sic) Mullarkey unfair” and attempted to characterize any critique or assessment of judicial performance outside of the lawyer-and-political-insider-dominated Judicial Performance Review Commission as “attacks” and “over-the-top charges.”  (So much for the 1st Amendment and accountability to the citizens, eh?)

Informed voters discount the Judicial Performance Review Commission reports not only for their pro-incumbent bias (recommending for retention about 99% of the time) but also for the lack of substantive information provided on which to base an informed decision - as noted in an earlier Denver Post Guest Commentary article (published February 13th) entitled “Evaluating the Performance of Justices.”

(Stay tuned for more on this topic)

Rounding out the week, Clear The Bench Colorado was also featured on-air (the Richard Randall show, AM 740 KVOR) on Friday (briefly) and Saturday as well, discussing Chief Justice Mullarkey’s retirement, retention elections, and the Colorado Supreme Court in general.

All in all, another busy week.

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