Never before in Colorado history has so much attention been paid to the extremely important issue of judicial retention elections - and, as citizens across Colorado are discovering, the attention is long overdue.

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.

Awareness is also growing that the system of “judicial performance evaluations” by a select few (10) politically connected individuals on the State Commission on Judicial Performance, with members appointed by the Governor (3), Senate President (2), House Speaker (2), and Chief Justice (3) (talk about the fox watching the henhouse!) has consistently served more to protect incumbents (recommending “retention” for 98.5% of judicial reviews!) than to provide substantive, useful information to the public to enable them to exercise their rights as informed citizens to hold our judiciary accountable.

Defenders of this status quo - advocates of keeping the public in the dark about the actual performance of the Colorado judiciary, particularly our highest court, have already fired off the first salvos (“Criticism of retiring Judge (sic) Mullarkey unfair”).  Our response to this attempt to pull the wool over the eyes of Colorado voters (Accountability, Transparency apply to the Colorado Supreme Court, too) - published (in abbreviated form) in the Denver Post as “Demand accountability from judges, too” has triggered a lively discussion, on the pages of the Post (”readers respond” with comments, and “more reader response” later in the week) and elsewhere.

The latest edition of the Colorado Statesman examines the issue of judicial retention in greater detail (”Judges up for retention face widespread scrutiny this year“).  Beginning with an overview of the retention election process and timelines (including the terms of office for various levels of the judiciary - for the Colorado Supreme Court, the term is 10 years), the article continues with a description of the “evaluation” and review process and the “players” in that process:

Judicial evaluations are governed by the State Commission on Judicial Performance. …

The state commission is made up of ten members; four attorneys and six non-attorneys. Members, who serve four-year terms, are appointed by the Chief Justice, governor, Senate President and Speaker of the House.

The article summarizes the evaluation process, and notes some of the statistics demonstrating it’s lack of rigor and effectiveness:

At the end of the process, each evaluation produces a narrative for the ballot and the Legislative Council Blue Book, which recommends that the judge be retained, not be retained or that the commission has no opinion on retention. The evaluations will also be available on August 3 on the website of the Office of Judicial Performance Evaluation (www.coloradojudicialperformance.gov/index.cfm).

Since judicial retention evaluations began in 1988, there have been 953 judges on the ballot. Fifteen got recommendations against retention and 10 got “no opinion.” Another seven were voted out. In the last retention election in 2008, 102 out of 103 judges were retained by voter approval.

The article goes on to note that “Commission members must read the opinions written by judges when they do the evaluations.  Unfortunately, the article also put out some apparent misinformation, quoting the commission’s current chair (Paul Farley) that “rules requiring the reading of every opinion put too much of a burden on the members.”  Farley appears to be angling for a job, or at least fishing for sympathy, because there is no such requirement in the rules - in fact, the commission must read only 5 opinions submitted by the justice being reviewed, plus another five selected by the commission.  The commission’s Rule 11 (e) states:

“(e) Each appellate judge or justice shall submit to the state commission five opinions he or she authored, including both civil and criminal cases, at least one separate concurrence or dissent, and in the case of a judge of the court of appeals, at least one unpublished opinion. The state commission shall review the decisions, as well as five additional opinions authored by the appellate judge or justice, for compliance with the statutory criteria for legal knowledge and for adherence to the record, clarity of expression, logical reasoning, and application of the law to the facts presented.

Farley also presents the false analogy of playing the numbers game, suggesting that “majority rules” in evaluating decisions “by the numbers”:

One case where a judge may “miss the mark” in ten years “doesn’t tell us much,” Farley said. In a situation where one opinion may be viewed negatively “we wouldn’t say it was a terrible judge who should be thrown out. You’d want to see a trend - a judge who misses the mark over a period of time,” Farley said.

Clear The Bench Colorado agrees completely that only a consistent pattern of violating the Constitution and the rule of law should provide grounds for removal - but rejects the false notion that we should give justices a “pass” on significant violations.  Our analysis has 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 less broadly consequential cases does NOT excuse the fact that on the most impactful 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 under the Colorado Constitution.

The Colorado Statesman article concludes with a critique of the lack of public participation and transparency in the review process (which operates almost entirely behind closed doors, shielding the evaluations from public scrutiny, blocking public participation, and necessarily undermining confidence in the system’s impartiality and accountability).  Clear the Bench Colorado Director Matt Arnold was interviewed for the article:

Arnold said he is less concerned about the performance evaluation process at the lower court levels. “You have more public input at [those levels],” he said. For those judges, there’s more public input, a larger sample size and more opportunities for a broad range of public participation.

But in general, Arnold said there isn’t enough public participation and transparency in the process. All documentation and deliberations are secret, he said, which creates a “fatal flaw. For a system that supports transparency it fails miserably.”

Part of the problem is the rules of the commission, which Arnold says limits what members can consider and can put out for the public. Arnold said the same people who evaluate the judges or justices often have business before them, and in the case of the Colorado Supreme Court, at least one member is appointed by the Chief Justice who then can take part in the evaluation of that justice’s performance.

Arnold said that under the commission rules, the judges and justices can “cherry-pick” five of the cases for review, and the last five are sometimes recommended by the judges and justices, too. In addition, those under review have the opportunity to review the critiques from surveys and commissioner input and then weigh in on those reviews. “It’s like giving your job review and rewriting it before it becomes official,” Arnold said. “That cries out for reform.”

Arnold notes that the state commission is required by rule to look at issues for appellate judges and justices that have little to do with the judge’s adherence to the constitution and the rule of law, Arnold explained. That includes whether the judge runs a neat and orderly courtroom, whether the judge is on time for hearings and has an “appropriate demeanor. It’s like a kindergarten report card, not a professional review.”

Finally, the Blue Book itself gives short shrift to the performance evaluation, according to Arnold. Each judge is described by five paragraphs, only one of which is on judge’s performance. The last four paragraphs list biographical information, the commission’s recommendation and other matters that are not germane to performance, such as volunteer work. In a recent column on his website (www.clearthebenchcolorado.org/) Arnold said the Blue Book analysis is “so watered-down and lacking in substance that it’s almost impossible to make any distinction between ‘excellent’ and ‘poor’ judicial performance.”

Arnold said he would like to see the review process include more opportunity for public input. “There’s very little opportunity for independent review in a process that is very insular,” he said. Arnold is also troubled by how commissioners are chosen - as political appointees and “largely beholden to the people who put them there in the first place. It undermines credibility and transparency and that’s not public accountability.”

“I like the idea of a performance review,” Arnold said. The problem is “the process is too closed…it’s like the fox guarding the hen house.”

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 your contributions - and 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!

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

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!

Recently, defenders of the judicial status quo weighed in with a guest commentary in the Denver Post promoting the retention of judicial incumbents generally (and defending 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.”

The Denver Post has yet to publish our response (Clear The Bench Colorado Director Matt Arnold submitted a rebuttal article for the “My Turn” section, since our organization was indirectly attacked in the piece) - possibly they remain committed to defending the interests of their largest renters (yes, the Colorado Supreme Court rents office space from the Denver Post - currently holding court in the Denver Post building).  Conflict of interest?  No, no conflict of interest there…

However, there has been a robust discussion and debate in the online comments section for the article, as well as an informative letter to the editor (published, unfortunately, only in the online edition).  Apparently, citizens of Colorado are both better informed and more willing to engage on this topic than the Post editors give credit.

Some of the comments:

Why is it wrong to criticize judges like Mullarkey who helped Ritter to raise our property taxes and helped subvert the Tabor Bill? Since the voters of Colorado didn’t trust the politicians and their spending and we didn’t want them raising our taxes without voter approval. Just think of all the new fees that the Dems pushed through in the last year from the new vehicle fees and all of the other 30 fees that they approved in the dead of night this past year. The voters were right no to trust the big spending politicians and judges like Mullarkey made things worse. So it is to bad that she retired before we could fire her and the other judges who legislated against the will of the voters… [by: all American]

Democrats have had Tabor in their sights for many years. When given the opportunity to decide whether the will of the people should trump the will of politicians, liberal Supreme Court judges voted to uphold the obvious wordplay and stretch of legal definition that Ritter designed to undermine the basic tenants of Tabor. And our property taxes were increased, which was the intent to fashion an end-run around our Constitutional mandate to put all tax increases to a vote.

I think that is an eminently fair criticism of the political-tinged partisan decision made by Mullarky and Co. Their judicial neutrality was abandoned for a reactionary treatment of a constitutional amendment that they as tax and spend liberals did not like. [by: COindy]

In my experience, the Judicial Performance Commissions are an expensive fraud on the public.

Members are indoctrinated by the administrator that ANY citizen making a complaint against a judge is a “loser who is trying to retry his case” I had a civil case that took eight years to get to trial because the judge wouldn’t make timely decisions, defined in state law as no more than 90 days after the motion. One decision took 27 months and another two years. Court records were quite plain on the issue, and I provided them to the commission to prove what was happening.

The commissioners were so prejudiced against the public that one commissioner later wrote me an email stating that I was a loser and he hoped I could put the issue behind me. He hadn’t examined the documents closely enough to discover that my lawsuit hadn’t come to trial yet and that I was just trying to force that to happen. I eventually won my lawsuit, so I wasn’t even a loser but the judges delay cost me tens of thousands of dollars in legal fees that I didn’t recover.

The judicial performance law itself helps judges coerce favorable outcomes from commissions by making it unlawful for a commissioner who votes against a judge and later finds himself in that judges court to request a change of judge. Let me say that again: Commissioners who try to protect the public interest with an honest appraisal put themselves in future peril by law that creates the commissions.

It is also against state law for commissioners to individually or as a group report judicial misconduct they may discover in the course of their duties.

Citizens can best protest this kind of fraud by voting against the retention of EVERY judge, and certainly against EVERY Supreme Court justice. Blue book recommendations are NOT worth the paper they are printed on.  [by: A Watcher]

… and several others in the same vein.  The Citizen response to a career politician’s attempt to defend a process (Judicial Performance “Review” Commissions) meant to minimize transparency, accountability, and citizen oversight and involvement is highly encouraging - not just for the particulars of the judicial retention elections, but for the status of representative, democratic government in general.

Finally, the Denver Post did publish (albeit only online) the following letter to the editor on June 18th (”Judging Colorado’s Supreme Court justices“) :

Re: “Criticism of retiring Judge Mullarkey unfair,” June 11 Susan Thornton column.

Susan Thornton’s column criticizing those who would criticize Colorado Supreme Court justices misses the mark. Taking issue with Supreme Court decisions that are contrary to the language of the Colorado Constitution is not ideological.

While telling us how local judicial district performance commissions operate, Thornton misses the point of the increasing criticism of certain supreme court justices. For one thing, the job performance evaluation for Supreme Court justices is different from analyzing the performance of trial judges. When it comes to giving a Supreme Court justice another 10-year term, scrutiny of the important decisions that the justice makes is a responsibility of the voters. Because Supreme Court decisions more and more impact all Colorado citizens, both young and old, careful consideration of a Supreme Court justice’s decisions far outweighs whether the particular justice is a member in good standing of the Possum Lodge or whether the justice raises money for UNICEF.

In a U.S. Supreme Court case - Bridges vs. California, 314 U.S. 252, 290 n. 5 (1941) - Justice Felix Frankfurter wrote that “judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt.”

So in deciding this November whether to retain Supreme Court justices for another 10 years, voters will need reliable information and constructive criticism of the justices’ decisions on school funding, eminent domain, unapproved tax increases, redistricting, and other issues of statewide concern. If the voters do not receive critical and “vigorous” information about Supreme Court decisions, they will be unable to carry out their responsibility to assess the job performance of the Colorado Supreme Court justices who want their votes.

Bill Banta, Greenwood Village

This letter was published online only. For information on how to send a letter to the editor, click here.

That letter even received a comment:

The Absolute RIGHT of “We The People” to CRITICIZE…ANY….member of Our Government….or ANY Policy, Law, or Viewpoint they may render…..is what makes the United States the United States…..and NOT North Korea, Iran, or any other country.

At least….”We The People” in the US….have moved AWAY from the ancient idea that our “leaders” are ‘gods’ the way the pharoahs and the ceasars were once considered……and the way “The Great Leader” of North Korea is still considered.

A Supreme Court Justice is just a ‘person’ like any one of us are ‘pesons’….people who are human, prone to make a mistake here and there, and it is that FACT that they CAN be CRITICIZED that helps to keep them….honest, ethical, and moral.

There is NOTHING that leads to Absolute Corruption FASTER….than NOT being able to CRITICIZE those who deserve to be criticized.  [by: Robtf777]

Clear The Bench Colorado obviously agrees - Citizens do have the right (and, we would argue, the duty and the responsibility) to criticize our elected (and appointed) officials, to hold them accountable.   The attitude expressed in Thornton’s column - attempting to de-legitimize criticism of public officials - is the attitude of a ruler toward a subject, not a citizen.

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, 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!

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!