For the first time in the history of Colorado’s “merit selection and retention” process for placing and removing the occupants of judicial office, Colorado Citizens are being presented with substantive information not only on the three incumbent Colorado Supreme Court justices who will appear on the November ballot, but also on the three nominees (the governor will pick one of the three) to replace outgoing Chief Justice Mary Mullarkey, who announced in June that she would resign rather than be held accountable by Colorado voters this November).

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

The governor’s office has even requested public input on the nominees - providing Colorado Citizens the opportunity to weigh in on who will become Colorado’s next supreme court justice; but act fast, the governor is expected to make a decision next week (”Speak Now, or Forever Hold Your Peace… Governor’s Office seeks public comment on Colorado Supreme Court nominees“).

The Denver Post - which, after noting in February that “Four Colorado Supreme Court justices face a tough vote in elections” was largely silent on this important issue until very recently (possibly in response to criticism that their [lack of] coverage may have been influenced by the fact that the Post is being paid $1.6 million per year as the Colorado Supreme Court’s current landlord) when an article acknowledged that “four state Supreme Court justices [may not] survive an attempt to remove them from the bench this election.”

Bygones.

Denver Post courts reporter Felisa Cardona has written up a series of profiles of the three finalists to become the next Colorado Supreme Court justice - the third and last of which (”Supreme Court Finalists: Candidate’s writings show clarity of thought“) appears in today’s (Monday) paper.

Clear The Bench Colorado commends the Denver Post for (finally?) shedding some light on the individuals who may next be elevated to our highest court.  We have called upon the Denver Post editors to join us in requesting greater transparency in the process by which the nominees are selected, as well - and most importantly, to join us in holding the incumbent justices accountable to the Colorado Constitution, the rule of law, and (ultimately) to the citizens of Colorado.

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 the first time in the history of Colorado’s “merit selection and retention” process for placing and removing the occupants of judicial office, Colorado Citizens are being presented with substantive information not only on the three incumbent Colorado Supreme Court justices who will appear on the November ballot, but also on the three nominees (the governor will pick one of the three) to replace outgoing Chief Justice Mary Mullarkey, who announced in June that she would retire rather than be held accountable by Colorado voters this November).

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

The governor’s office has even requested public input on the nominees - providing Colorado Citizens the opportunity to weigh in on who will become Colorado’s next supreme court justice; but act fast, the governor is expected to make a decision next week (”Speak Now, or Forever Hold Your Peace… Governor’s Office seeks public comment on Colorado Supreme Court nominees“).

The Denver Post - which, after noting in February that “Four Colorado Supreme Court justices face a tough vote in elections” was largely silent on this important issue until very recently (possibly in response to criticism that their [lack of] coverage may have been influenced by the fact that the Post is being paid $1.6 million per year as the Colorado Supreme Court’s current landlord) when an article acknowledged that “four state Supreme Court justices [may not] survive an attempt to remove them from the bench this election.”

Bygones.

Denver Post courts reporter Felisa Cardona has written up a series of profiles of the three finalists to become the next Colorado Supreme Court justice - the second of which (”Supreme Court Finalists: Breadth of experience seen as balancing youth“) appears in today’s (Sunday) paper.

Clear The Bench Colorado commends the Denver Post for (finally?) shedding some light on the individuals who may next be elevated to our highest court.  We have called upon the Denver Post editors to join us in requesting greater transparency in the process by which the nominees are selected, as well - and most importantly, to join us in holding the incumbent justices accountable to the Colorado Constitution, the rule of law, and (ultimately) to the citizens of Colorado.

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 the first time in the history of Colorado’s “merit selection and retention” process for placing and removing the occupants of judicial office, Colorado Citizens are being presented with substantive information not only on the three incumbent Colorado Supreme Court justices who will appear on the November ballot, but also on the three nominees (the governor will pick one of the three) to replace outgoing Chief Justice Mary Mullarkey, who announced in June that she would retire rather than be held accountable by Colorado voters this November).

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

The governor’s office has even requested public input on the nominees - providing Colorado Citizens the opportunity to weigh in on who will become Colorado’s next supreme court justice; but act fast, the governor is expected to make a decision next week (”Speak Now, or Forever Hold Your Peace… Governor’s Office seeks public comment on Colorado Supreme Court nominees“).

The Denver Post - which, after noting in February that “Four Colorado Supreme Court justices face a tough vote in elections” was largely silent on this important issue until very recently (possibly in response to criticism that their [lack of] coverage may have been influenced by the fact that the Post is being paid $1.6 million per year as the Colorado Supreme Court’s current landlord) when an article acknowledged that “four state Supreme Court justices [may not] survive an attempt to remove them from the bench this election.”

Bygones.

Denver Post courts reporter Felisa Cardona has written up a series of profiles of the three finalists to become the next Colorado Supreme Court justice - the first of which (”Colorado Supreme Court finalist Prince applies diligence to his cases - and his barbecue“) appears in today’s (Saturday) paper.

Clear The Bench Colorado commends the Denver Post for (finally?) shedding some light on the individuals who may next be elevated to our highest court.  We have called upon the Denver Post editors to join us in requesting greater transparency in the process by which the nominees are selected, as well - and most importantly, to join us in holding the incumbent justices accountable to the Colorado Constitution, the rule of law, and (ultimately) to the citizens of Colorado.

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

Speak Now, or Forever Hold Your Peace…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

By the Numbers: How the Judicial Selection Process works

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Media coverage of the issues of judicial retention (both the performance review process and the upcoming November elections) and the process for reviewing and nominating applicants for judicial appointments (particularly for the Colorado Supreme Court opening created by Chief Justice Mary Mullarkey’s announcement of her intent to retire rather than be held accountable by voters in the November elections) has picked up considerably following the Denver Post’s recent publication of our response (“Demand accountability from judges, too”) to an earlier article bemoaning critiques of the courts (“Criticism of retiring Judge (sic) Mullarkey unfair”).

The Denver Post kicked off the week by acknowledging in print for the first time since February (”Four Colorado Supreme Court justices face a tough vote in elections“) that “four state Supreme Court justices [may not] survive an attempt to remove them from the bench this election” - and obliquely credited Clear The Bench Colorado with raising awareness of the issue:

This election, the group Clear the Bench Colorado is advocating voters reject all four Supreme Court justices up for retention because of rulings it believes are unconstitutional.

(Technically, only three Colorado Supreme Court justices are likely to be subject to a retention vote following Chief Justice Mullarkey’s announced intent to retire, but we’re not going to quibble).  The Denver Post story was also picked up by a number of media outlets across the state, both print and online.

Throughout the week, Law Week Colorado reported on a seeming epidemic of judges at various levels who have announced their intent to leave office rather than stand for retention this year - beginning with Colorado Court of Appeals Judge Sean Connelly (after only 2 years on the bench), followed by Larimer County Court judge Cynthia M. Hartman (also after only 2 years in office) joining the earlier announced retirement of Douglas County Court judge Michelle Ann Marker, bringing the number of announced retirements to four total (including Colorado Supreme Court Chief Justice Mary Mullarkey).  Although four announced retirements in one cycle may not seem to indicate an avalanche of impending judicial vacancies, the pace and timing of the announcements has struck several seasoned observers of the Colorado judiciary as unusual.

Curiously enough, embattled former prosecutors (and current Larimer County District Court judges) Jolene Blair and Terrence Gilmore have NOT elected to leave office, filing paperwork last week declaring intent to run for retention, and will face the voters in November.  Likewise, Colorado Supreme Court Justice Nancy Rice also announced (today) her intent to seek retention in office for another 10-year term.

Another national observer of legal news and affairs (Chicago-based Legal Newsline, a self-described “Internet-based newswire dedicated to 24/7 coverage of state supreme courts and state attorneys general”) joined in with coverage of the upcoming Colorado Supreme Court retention elections from afar (”Group wants lineup of Colorado Supreme Court radically changed“) - demonstrating the national scope of interest in the issue.  (Not to mention that Clear The Bench Colorado has been on the radar of the left-wing Huffington Post and the George Soros funded and “progressively” oriented ‘Justice At Stake’ group for several months already).

Finally, an analyst critiquing a column in yesterday’s Boulder Daily Camera (“Gunning for Guns” by Mike Ellis), which at least presented a defense of constitutional rights by someone admittedly “nervous around guns,” correctly points out (as we have indicated numerous times) that the campus gun bans at Colorado State University and the University of Colorado are matters of state law involving concealed carry (NOT, strictly speaking, 2nd Amendment issues, even following the McDonald v. Chicago “incorporation” decision) and therefore subject to ultimate decision by the Colorado Supreme Court (and not the Supreme Court of the United States).  Lose these cases here in Colorado, and you’ve lost for good.  The commenter notes:

People on both sides of the gun rights/gun control debate (and even people who aren’t particularly interested in the gun rights/gun control debate) need to be clear on what the Supreme Court’s incorporation of the Second Amendment does and doesn’t mean.  In many ways, what it does mean is something that must now be sorted out by the lower courts.  But what it doesn’t mean is very clear-it doesn’t mean that all restrictions on the possession of firearms are now null and void.

The Colorado Supreme Court may very well rule against CU’s gun ban, but it won’t be on the basis of the Second Amendment to the U.S. Constitution; it’ll be on the basis of Colorado state law.

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

Be a citizen, not a subject - exercise your right to vote “NO” this November on the four ‘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.”  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 the pending opening  on the Colorado Supreme Court (due to Justice Mary Mullarkey’s announcement of her intent to retire rather than be held accountable by voters in the November elections) along with more coverage of Chief Justice Mullarkey as she begins a “farewell tour” (and the role of the judicial accountability movement spearheaded by Clear The Bench Colorado in precipitating that tour) continued over the last week.

Handicapping the list of potential replacements for the opening that will be created by Chief Justice Mullarkey’s announced retirement (which is set to go into effect November 30th), Law Week Colorado has set up a “justice tracker” listing potential applicants to become the next Colorado Supreme Court justice.  As of press time, the latest updates to the list include some current judges on the Colorado Court of Appeals, some lower court judges, a pair of district attorneys, a law professor, attorneys in private practice, and even a former state representative.

Chief Justice Mullarkey’s “farewell tour” kicked off with an appearance on Colorado Public Radio on Wednesday.  Law Week also published a synopsis (Chief Justice Gives Radio Interview On Retirement, Controversial Cases), which is revealing for showcasing the disdain displayed by the Chief Justice towards an otherwise friendly interviewer who dared question her ruling in the “Mill Levy Tax Freeze” case:

The conversation turned to the controversial 5-2 “mill-levy freeze” decision that Mullarkey authored last year, creating a few moments of tension.

Warner: Would you tell me just a little bit about that decision, for which the court came under some criticism?

Mullarkey: What we were doing there was construing a statute that had been passed by the General Assembly and signed by the governor. So we were construing a law and the question was whether that was consistent with the state constitution.

Warner: And specifically TABOR, the Taxpayer’s Bill of Rights.

Mullarkey: And what it amounted to was a change in the state law in the way that property taxes had been administered, particularly with respect to the schools. The choice and the change in law was made by the legislature, and the question was whether they could make that change. And we said that they could, that they had the discretion to decide to make that change in the law.

Warner: Without a vote of the people.

Mullarkey: That’s what representative government is: you vote for those legislators and they made that change.

Warner: Well let me say this: without a vote under TABOR.

Mullarkey: Well, I guess.

Warner: And you felt that that was within their discretion?

Mullarkey: Of course.

Warner: You didn’t see that, for example, as a new tax?

Mullarkey: It wasn’t a tax. I really don’t want to… I mean if this is the way you want to do the interview, let’s just end it now. I don’t want to get into an argument about this.

Warner: Oh, not at all - I’m just interested in the philosophy behind it.

Mullarkey: Well, it’s pretty simple. The question was whether the statute that was passed was valid, whether the legislature had the ability to pass the statute that they did, and we thought they did. That’s about it.

The tone of her reply to being questioned can only be fully appreciated by listening to the audio.

Chief Justice Mullarkey also neatly sidestepped the host’s question about the impact of Clear The Bench Colorado on her decision to retire rather than be held accountable by voters in the upcoming elections:

She was also asked about the Clear the Bench Colorado campaign, which urges voters to vote against Mullarkey and Justices Michael Bender, Alex Martinez and Nancy Rice.

Warner: There’s a movement afoot called Clear the Bench, and they have a campaign not to retain you on the court and other members of the state Supreme Court. Did that affect your decision to step down?

Mullarkey: I just decided to retire. And that’s just a simple decision. I’m 66 years old and I wanted to do all the things a retired person does.

A substantial majority of press coverage in the week following the Chief Justice’s announcement that she intended to retire would indicate that the decision was at least influenced, if not precipitated outright, by the “tough vote” facing her (and the remaining 3 justices subject to a non-retention vote) in November to retain her office.

Another article of interest appeared in the Pueblo Chieftain (”House, Senate Lines up for grabs again“), discussing the impact of Chief Justice Mullarkey’s impending retirement on the critical issue of the reapportionment of Colorado’s legislative districts.  The article does a superb job of explaining the process and timelines for creating the 11-member Reapportionment Commission, and notes that the next Chief Justice will have the decisive “final four” appointments who will determine how Colorado’s districts are drawn up (and how you will be represented in the General Assembly) for the next decade.

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

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!