One more example of how the Colorado Supreme Court has aided and abetted another unconstitutional assault on your wallet was recently highlighted in an informative article by Face The State’s Peter Blake, “One used-tire fee drives another” (the article also appeared in the Denver Daily News).  The article traces the mutation of the “used-tire fee” from it’s original purpose of collecting funds to offset the cost of recycling used tires to become just another slush fund for special interests:

The used-tire fee has been something of a fiasco for years. It started as a $1 fee (not payable if you took your tires home) in 1993 but even at the beginning, the proceeds were used more for other recycling projects than for tire disposal. Inevitably, other interest groups with no connection to tires also horned in on the booty, even higher education.

Such transformation of a “use fee” (tied to consumption of, or access to, a particular good or service) to other purposes makes it a tax - and, since it continues to be collected (now for different purposes than the original basis for the “fee” - qualifying as a tax policy change under the Colorado Constitution’s Article X, Section 20) an unconstitutional taking and an assault on your wallet.

First, the state recycling fee is no longer tied to your surrendering your old tires. Thanks to a bill passed in 2009, the $1.50 is now charged on each new tire you buy. You have to pay even if you take your old tires home and hang them in the backyard to swing on or throw footballs through. That would seem to make it not a fee at all but an increase in the sales tax-an unconstitutional one, since it wasn’t approved by the voters. But it’s never been challenged because everybody knows the Colorado Supreme Court, which hates TABOR and doesn’t care how the legislature raises money, would reject the argument.

The Colorado legislature - aided and abetted by the Colorado Supreme Court - has been operating outside the law.  The Colorado Constitution enshrines the right of the citizenry to have a say in how much of their hard-earned money can be taken from them; we have the right to vote on tax increases, by whatever name (and yes, that includes taxes masquerading as “fees”).  However creatively defined - if it looks like a tax, and quacks like a tax - it’s a tax, and you have the right to have your say at the ballot box before any new tax or tax increase goes into effect.

The fight to reform Colorado’s corrupt legal/judicial complex continues.  Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for violations of Colorado campaign finance law.  Longer term, Clear The Bench Colorado will work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public.  For both of those endeavors, we would appreciate your continued support - via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

The Constitution of the United States begins with the words “We the people.” But neither the Constitution nor “we the people” will mean anything if politicians and judges can continue to do end runs around both.

So begins a superb article by esteemed economist and commentator Thomas Sowell, published Tuesday (”Political End Runs“).

Sowell states the case as eloquently as I have seen about the need for citizens to hold not only their elected officials, but also unelected bureaucrats and judges accountable - to constitutional limits specifically and the rule of law in general.

Sowell’s piece begins with an expose of how bureaucrats in the Medicare office are quietly implementing rules for the healthcare “reform” legislation that were explicitly rejected by Congress (during debate - such as it was - on the same legislation).  As many critics pointed out at the time, the healthcare law ceded extraordinary power and authority to unelected bureaucrats to make up implementing rules as they went along.

The article quickly proceeds to a much more wide-reaching (and dangerous) trend in “political end runs” - judicial usurpation:

It is not only members of Congress or the administration who treat “we the people” and the Constitution as nuisances to do an end run around. Judges, including justices of the Supreme Court, have been doing this increasingly over the past hundred years.

Naturally, Sowell’s focus is at the Federal level - but the problem he articulates is very much a threat at the state level:

Professor Roscoe Pound likewise referred to the need for “a living constitution by judicial interpretation,” in order to “respond to the vital needs of present-day life.” He rejected the idea of law as “a body of rules.”

But if law is not a body of rules, what is it? A set of arbitrary fiats by judges, imposing their own vision of “the needs of the times”?

Actually, that describes quite adequately the condition of law in the state of Colorado - at least at the highest levels.  The Mullarkey Court has repeatedly injected its own vision of “the needs of the times” over the clear letter of the law and the constraints of the Constitution.  The Bender Court appears pre-disposed to follow this trend into the next decade - cementing Colorado’s status as a “judicial hellhole.”

The institutions that should be addressing the problem - Colorado’s legal establishment, sworn to “support the Constitution” and uphold the rule of law (which is actually part of the oath taken by lawyers in order to practice law in this state) - are instead fighting to expand the power of their “guild” and promote the special interests of the legal caste, even if it means playing fast and loose with the law.  (A consortium of legal-establishment special-interest groups, including the Institute for the Advancement of the American Legal System, IAALS; the Colorado Bar Association, COBAR; the Colorado Judicial Institute, CJI; and the League of Women Voters, LWV banded together to run a campaign in support of incumbent judges on the ballot this year, but failed to comply with Colorado Campaign Finance Law in the process).  Apparently, members of the legal establishment feel that the rules applying to ordinary citizens should not constrain their own activities.

This is, unfortunately, indicative of the mindset which dominates our would-be “ruling class”:

In other words, judges were encouraged to do an end run around rules, such as those set forth in the Constitution, and around the elected representatives of “we the people.” As Roscoe Pound put it, law should be “in the hands of a progressive and enlightened caste whose conceptions are in advance of the public.”

Sowell’s solution?

Unsurprisingly, the same solution advocated by Clear The Bench Colorado: accountability.

The Constitution cannot protect us unless we protect the Constitution, by voting out those who promote end runs around it.

A superb article that should have been written (and widely disseminated) three or more months ago.

Although Colorado voters lost an opportunity (and a battle) this last November, the fight for judicial accountability continues.  For those of us who would like to see Colorado’s judiciary reformed and returned to a proper role of upholding the Constitution and individual rights, we would appreciate your continued support - your comments (Sound Off!) and contributions are still needed. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

Last month’s Colorado Supreme Court ruling that created a “right” for plaintiffs (more accurately, their lawyers) to collect “recovered damages” over and above costs actually paid was apparently the straw that broke the camel’s back for a group that rates the performance of courts nationwide (as if the Mullarkey-Bender Court’s rulings to sanction unconstitutional tax increases by way of eliminating tax exemptions and credits or by re-defining taxes as “fees”, erosion of property rights, and usurpation of legislative authority wasn’t enough), adding Colorado to the list of jurisdictions nationally qualifying as a “judicial hellhole.”

The American Tort Reform Association’s annual “Judicial Hellholes” report for 2010 lists Colorado as one of only three state supreme courts nationwide to qualify for the “honor” (Colorado joins Michigan and perennial favorite West Virginia in being so recognized).

“Traditionally, Judicial Hellholes have been considered places where civil judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants in civil lawsuits,” explains ATRA general counsel Victor Schwartz.  “The jurisdictions we name as Judicial Hellholes each year are not the only unfair courts in the nation, but they are among the most unfair, based on our survey of litigants and considerable independent research.”

Congratulations, Colorado - the legal-establishment special-interest groups that spent so much time and money this Fall (violating campaign finance laws in the process) telling you that our state’s judicial system is “nationally recognized” were right (in that statement) after all.

For those of us who would like to see Colorado’s judiciary reformed and recognized for upholding the Constitution and individual rights, we would appreciate your continued support - comments (Sound Off!) and contributions are still needed. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

Clear The Bench Colorado continues to make news (except in the pages of the Denver Post, which apparently continues its editorial policy of suppressing information that might upset its highest-paying - $1.6M/year - tenants) around the state in the aftermath of this year’s judicial retention elections (which gained attention not just in Colorado - again, largely excepting the Post - but in national news reports).

The big news for CTBC - and of course from our perspective the most welcome news - was last week’s confirmation by Administrative Law Judge (ALJ) Robert Spencer that “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) was ordered to pay Clear The Bench Colorado over $13,000 in legal fees stemming from their “substantially groundless and frivolous” campaign finance complaint against CTBC (originally filed in May 2010).

The story was first reported online in Law Week Colorado (a generally reliable observer and source of information regarding the Colorado legal-judicial scene) on 15 December (”Ethics Watch Must Pay Attorney Fees In Clear The Bench Case“).  The Law Week article summarizes the judgement, provides some background on the complaint, and provides the full text of the ALJ ruling ordering CEW to pay Clear The Bench Colorado.

Also covering the story on 15 December was leading Colorado political online news outlet Face The State (publishing within an hour or so of the Law Week article).  The Face The State article (”Self-styled ethics watchdog slapped with the tab for its legal attack“) adds context and background information on CEW, CEW’s complaints, and CEW’s history of filing harassment claims (along with a copy of the judge’s order for Colorado Ethics Watch to pay Clear The Bench Colorado’s legal fees in pdf format).

Picking up the story on Friday, Denver’s alternative weekly Westword (often a source of excellent investigative journalism) covered the issue in a bit more depth (landing some quotes from the loser, CEW’s Luis Toro): “Colorado Ethics Watch told to pay Clear the Bench Colorado $13,000 in legal fees.”  CEW signaled their intent to “keep on doing what we’re doing” despite the legal rebuke.  (Surprise!)

Other news coverage of Clear The Bench Colorado concerns the ongoing campaign finance complaint against the legal-establishment special-interest consortium behind the “Know Your Judge” Campaign in support of Colorado’s judicial incumbents in this year’s retention elections.  Again, Face The State was on top of the story noting that former Colorado Speaker of the House Terrance Carroll (D-Denver) is on the legal team “defending a consortium of legal groups accused of violating state campaign laws.”  The article (”Your witness, Mr. Speaker“) notes that the “Know Your Judge” Campaign (consisting of nonprofit groups The League of Women Voters, the Colorado Bar Association, the Colorado Judicial Institute, and the Institute for the Advancement of the American Legal System) may have “illegally campaigned for the justices’ retention by not filing with the state as a political committee.”

Face The State’s article was also picked up by Law Week (published as “Outgoing Speaker Will Handle Election-Law Case“).  Both articles noted:

At the heart of the complaint was a website funded by the groups called Know Your Judge, which led visitors to information explicitly recommending retention. They also paid for radio and television advertisements.

As detailed earlier by Face the State, if the complaint is upheld, a judge can levy fines of $50 per day for late reporting, plus a fine of between $170,000 and $425,000.

If successful (the case has now been set for hearing on 23 February 2010, thanks to delays generated by a barrage of legal maneuvering by the former Speaker’s “politically connected” law firm team from Greenberg Traurig) the combined fines and penalties would represent the largest adjudicated Campaign Finance Law violations in the history of Colorado.

In Other News…

The big news about the Colorado Supreme Court was the accession of the newest justice, Monica Marquez, to replace outgoing Chief Justice Mary Mullarkey (who wasn’t voted out, but chose to resign before facing the voters in this year’s retention elections).  While the accession of a new justice to the Colorado Supreme Court is certainly newsworthy,  the number of news stories referencing the ethnicity and sexual orientation of the Colorado Supreme Court’s newest justice - a matter which should be of supreme indifference in assessing judicial qualifications, character, temperament, and performance - continues to be astounding.

From the Denver Post’s article (”Colorado Supreme Court milestone a family affair“) - which at least has the good taste to lead first with the human-interest family connection before bringing up her ethnicity and sexual orientation - to a veritable plethora of blogs, journals, and other media - the phrase “Marquez is the first Latina and the first openly gay jurist on the state’s high court” comes up again and again.  A representative sample:

• “Colorado has new Supreme Court Justice“, KWGN TV2
• “Lesbian justice seated at state Supreme Court“, Pueblo Chieftain
• “Newest Colorado Supreme Court justice’s milestone a family affair“, Boulder Lesbian blog (copied the Denver Post story in its entirety; interesting to see if that triggers the Post’s copy-protection policy - if not, good ammunition for a selective enforcement defense against future Post lawsuits)
• “First Latina, Openly Gay Colorado Supreme Court Justice“, Fox News Latino
• “All in the Family: First Latina and Openly Lesbian Judge of Supreme Court, Colorado“, Lez Get Real blog
• “Colo.’s new state Supreme Court justice sworn in“, Aurora Sentinel
• “Marquez Sworn In as First Latina/Gay Judge“, South Florida Gay News

…and a host of other niche publications (I got tired of counting after the first half-dozen or so).

One of these days it would be nice to focus on a jurist’s qualifications and performance rather than the distractions of ethnicity and sexual orientation.

As far as CTBC is concerned the jury is still out on Justice Marquez’s performance, although we remain skeptical that she was the most-qualified of the potential picks, and continue to harbor concerns about her background in advocating for several unconstitutional rulings in the past few years.  She deserves - and should get - a fair review with careful scrutiny given her track record (as an attorney; she’s never before been a judge) and circumstances of her selection to the state’s highest court.

Fortunately, voters will have the opportunity to render judgement on Justice Marquez’ performance in two short years, as she comes up for a retention vote in November 2012.

Although this year’s campaign (and election) is over, the fight to reform Colorado’s out-of-control legal/judicial complex continues.  In the near term, Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for their violations of Colorado campaign finance law.  Longer term, Clear The Bench Colorado will work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public.  For both of those endeavors, we would appreciate your continued support - via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

Welcome to the 2010 Christmas edition of the Clear The Bench Colorado Friday Funnies!

In all of the tumult, toil, and trouble of the weeks leading up to the 2010 judicial retention elections (and in the weeks following), Clear The Bench Colorado has been far too serious, falling short in our mission to amuse, in addition to our successful mission to educate & inform (as 9News reporter Adam Schrager recently commented at a forum evaluating this year’s election coverage, “the information was there if voters chose to get it” (referring in particular to Clear The Bench Colorado Director Matt Arnold’s appearance on the Your Show television program) and CTBC’s Evaluations of Judicial Performance.  Sadly, it’s been almost three months since the last edition of the CTBC Friday Funnies!

Although remaining mindful of what’s at stake - holding our judiciary accountable for serial violations of our constitutional rights (to vote on taxes, even when taxes are called “fees”; keep our own property; bear arms in self-defense; and almost too many others to list); highlighting the judiciary’s dominant role in drawing up state legislative and congressional districts; and upholding the integrity of the judicial retention election process against the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench in violation of Colorado campaign finance law - is serious business, all work and no play makes Matty a dull boy.

While receiving the news earlier this week that “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) was again ordered to pay Clear The Bench Colorado thousands of $ in legal fees (owed since the judge’s original ruling in July found their complaint “frivolous, groundless, and vexatious”) brought a smile, the following video clip (although targeting the national level) elicited a hearty laugh:

…and a Leftist Judiciary!

While still afflicted with the (black-robed) ghosts of Christmas past in our Christmas present, we can still act to save our Christmas future. Continue to support Clear The Bench Colorado with comments (Sound Off!) and contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

Better Late Than Never…

The latest chapter in the ongoing saga of the legal harassment of the grassroots judicial accountability organization Clear The Bench Colorado by ‘Colorado Ethics Watch’ (CEW, pronounced “sue” - it’s what they do) was wrapped up with this week’s ‘Order Awarding Attorney Fees and Costs‘ to CTBC resulting from CEW’s “frivolous, groundless, and vexatious” complaint filed against CTBC on 5 May 2010.

The court denied CEW’s latest attempt to weasel out of paying their debt to Clear The Bench Colorado pursuant to the judge’s 21 July 2010 ruling on CEW’s 5 May 2010 complaint.  (CEW had earlier engaged in legal maneuvering to delay payment, which should have been forthcoming in October at the latest, in order to push resolution of the case past the elections).

The ’Order Awarding Attorney Fees and Costs‘ confirmed the complete lack of legal merit in CEW’s original complaint against Clear The Bench Colorado:

Because CEW’s claim was not supported by the undisputed evidence or by the plain language of the law, the ALJ found CEW’s complaint substantially groundless and frivolous.  The ALJ therefore granted CTBC’s request for attorney fees and costs…

Unfortunately - despite relevant case law that entitles CTBC to “all fees and costs incurred prior to the dismissal of the original complaint” - the ALJ reduced the amount of the award based on a subsequent complaint that CEW filed, because some of the defense against the original “frivolous, groundless, and vexatious” complaint supported defense of the later complaint as well.

As a result, the ALJ (Administrative Law Judge) ended up ’splitting the baby,’ awarding CTBC “$12,987.20 in legal fees and $60 in costs” instead of the full amount necessary to defend against the original complaint (a total of $23,712.50 in fees and costs).

Confirmation of the award of legal fees and costs  - and more importantly, confirmation of the “frivolous, groundless, and vexatious” nature of CEW’s original complaint - comes as both victory and vindication for Clear The Bench Colorado.  As noted previously by CTBC and knowledgeable observers of the legal and political scenes, the award of legal fees to the defendant is an extreme rarity.

In fact, the monumental nature of Clear The Bench Colorado’s victory in this case - particularly the award of attorney’s fees - is difficult to overstate.  It is rare (indeed, almost unheard of - though not totally unprecedented) for attorney’s fees to be awarded in this type of case, as noted in a previously-published article (”Judicial-reform group lashes back at ‘frivolous, groundless’ complaint“):

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

The award of legal fees and costs to CTBC indicates that the judge not only thought that CEW’s case (or “complaint”) was bad - he thought it was SO bad that he took the unusual step of censuring CEW and ordering CEW to pay for their professionally unethical conduct.

However, the precedent set in granting only a partial award of incurred costs is troubling.  By giving CEW an ‘out’ for part of the costs forced on CTBC because CEW came back for a second round, the intended deterrent effect of the award (intended to dissuade unethical ‘junk’ lawsuits and complaints) is minimized.  Indeed, in a perverse way, by splitting out that portion of the costs incurred which might support defense against additional claims, the ALJ’s ruling in effect encourages additional harassing attacks by losers in such cases, as long as they have the resources to continue pressing a claim (continuously doubling down in the hopes - as occurred in this case - of eventually getting lucky).

Groups like CEW - with the massive amounts of funding they receive from their parent organization (Washington, DC based CREW) and from local leftist funders Tim Gill, Pat Stryker, Jared Polis, and Rutt Bridges right here in Colorado, can continue to draw upon deep reservoirs of cash in support of attacks and legal harassment of their ideological foes - abusing the legal system as a political weapon.

Unless and until meaningful sanctions against such abuse of the legal system as a political weapon are implemented and consistently enforced, citizens engaging in civic activity (along with political campaigns at all levels) can expect to continue to be subject to these kinds of harassing attacks.

Clear The Bench Colorado’s victory against the unethical ‘Colorado Ethics Watch’ - holding them accountable for their abuse of the legal system - is one small step in the direction of restoring some measure of sanity (and accountability) to the courts.

Score another one for the underdog!

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

Fortunately, they can be stopped - by citizens with the courage to fight back.  Show your support today - stand up to unethical attorneys and sleazy solicitors, and contribute to help provide the resources for Clear The Bench Colorado to prevail against what are ultimately attacks on YOUR freedom.  Support Clear The Bench Colorado with your comments (Sound Off!) and your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

Last week’s Colorado Supreme Court ruling in the Volunteers of America v. Gardenswartz case created a windfall win for personal injury trial lawyers (the “ambulance-chaser” set) and incidentally, some of the clients they represent, in collecting damage reimbursements above and beyond amounts actually paid.

The Colorado Supreme Court’s “Mullarkey Majority” (yes, Chief Justice Mary Mullarkey wrote the opinion, in what may be her last parting shot at the Colorado Constitution and the rule of law) in a 4-3 decision (joined by usual suspects Michael Bender, Greg Hobbs and Alex Martinez forming the hard core of the “make it up as we go along” crowd) overturned both a lower court and clear statutory language (13-21-111.6. Civil actions - reduction of damages for payment from collateral source) limiting double-dipping damage recovery.

In plain language, the court ruled that plaintiffs (and their lawyers, who typically collect about a third or more of the total “recovered damages”) are entitled to the amount of medical costs originally billed, even if subsequent bargaining or other arrangements reduces the amount actually paid.

As commented in former State Treasurer Mark Hillman’s blog article (”Phantom damages defy law, common sense“), which was also published in today’s Denver Post (as “Damages ruling illogical“):

As Justice Nancy Rice noted in her dissent, the majority fortified its opinion by selectively misquoting a key co-sponsor of the bill, Sen. Al Mieklejohn, who argued, “I don’t think a person ought to collect more than once . . . for hospital costs and things like that.”

Mieklejohn argued that the victim’s insurer should “be allowed to collect” from the at-fault party “to get their money back.”  That is, the insurer should be allowed to recover the costs it actually paid.  Nowhere did the legislature suggest that the victim had a legitimate claim to a greater amount simply by virtue of buying insurance.

The dissenters, also including justices Allison Eid and Nathan Coats, noted that the majority’s opinion is contrary to “the legislature’s clear intent, the statute’s plain language and sound public policy.”

Why should you care?

Those of us with respect for the rule of law as a matter of principle are outraged at yet another blatant example of judicial “legislating from the bench” in overturning clear statutory language to achieve a desired outcome.

Those of us who believe in a truly independent judiciary free from conflict of interest and potential quid pro quo corruption are concerned that this ruling, by handing over a windfall to the trial lawyers who supported the incumbent judicial majority in retaining office (violating Colorado campaign finance law in the process), further undermines confidence in the courts and the rule of law in our state by raising a perception of potential legal-judicial collusion and quid pro quo corruption).

ALL of us who might receive medical care at some point in our lives (particularly those of us who actually bother to pay for medical insurance) should be concerned about the ruling’s impact on insurance costs (they’ll be going up) and enhanced potential for abusive lawsuits (they’ll increase).

Colorado’s out-of-control state supreme court continues to cost our populace millions (from upholding unconstitutional tax increases, re-defining other tax increases as “fees”, abuse of property rights, and now one more example of civil tort abuse run amok).

Unfortunately, Colorado voters failed to take advantage of their once-in-a-decade opportunity to hold these particular ‘unjust justices’ accountable for the actions - but the fight to reform Colorado’s corrupt legal/judicial complex continues.  Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for violations of Colorado campaign finance law.  Longer term, Clear The Bench Colorado will work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public.  For both of those endeavors, we would appreciate your continued support - via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

In a development which should come as no shock to astute observers of Colorado’s “judicial merit selection and retention” system, the state’s 10th Judicial District performance review commission has been charged with bias in conducting “reviews” of judges in the district, as reported in a Pueblo Chieftain newspaper article (”Officials stand behind performance commission“) earlier this week.

Also unsurprisingly, as reported in the same story,

The powerful entities atop state government that appointed members of the 10th Judicial District judicial performance commission are standing behind their appointees…

Who are the “powerful entities” in question?

House Speaker Terrance Carroll, D-Denver, appointed Karn. Outgoing Colorado Supreme Court Chief Justice Mary Mullarkey appointed Naranjo and Esquibel. Senate President Brandon Shaffer, D-Longmont, appointed Vigil.

The 10th Judicial Commission members in question - all Democrats, appointed by Democrats  (including Mullarkey) voted to recommend against retention for Judge Jill Mattoon (a Republican, although appointed by Democrat Governor Bill Ritter - who has actually appointed several good judges).

Although it is possible that “There is no reason to believe that this recommendation was the result of anything but the conscientious work and sound judgment of the commission as a whole,” there is conversely no reason not to believe otherwise.  Without evidence either way, it’s a matter of dueling opinions.

Since the deliberations of the commission, and basis for their recommendation, are not transparent to the public, suspicions of partisan or institutional bias (in addition to being Democrats, the commissioners in question “have or have had ties to the public defender’s office and another is a criminal defense lawyer”) have been raised by numerous individuals - including Judge Mattoon herself (who, incidentally, was retained in office).

Overall, the “judicial performance review commissions” (at both the district and state level) demonstrate a consistent ‘pro-incumbent’ (pro-”retain”) bias; over the entire history of the existence of the “review” commissions, only 16 judges have EVER been recommended for a “do not retain” vote (that’s an endorsement of over 99% for judicial incumbents), ALL at the district level or below.  At the state level, the commission has recommended to “retain” the incumbent every single time they’ve issued a review (a 100% “retain” recommendation that would make even Fidel Castro or Saddam Hussein envious).

Allegations of bias have been raised in nearly every instance in which the commissions have issued a “do not retain” recommendation.

The main problem with the judicial performance review commissions is a lack of transparency and accountability along with a lack of substantive, documented evaluation. Voters are simply urged to accept at face value whatever recommendations the commissions put forth, without any insight into the process or possible bias of any commissioners (indeed, most often lacking any substantive information whatsoever on which to base an informed decision).

Clear The Bench Colorado has long been critical of the lack of substantive information provided by the “Judicial Performance Review” commissions (c.f.  Accountability, Transparency apply to the Colorado Supreme Court, too) as have other independent analysts (for example, this article published by the Denver Post, “Evaluating the performance of justices“, back in February).

Colorado Citizens deserve better.  Most importantly, Clear The Bench Colorado agrees with critics of the commission “reviews” (see “Judging Colorado’s Supreme Court justices” letter to the editor)  that voters need “relevant, substantive and vigorous information” - based on “the written decisions of the court” - in order to make an informed decision on whether to retain, or NOT to retain, judges (at all levels) on the ballot.

Perhaps it’s time for the legislature - or citizen initiative - to address much-needed system reform in our judiciary.

The fight to reform Colorado’s corrupt legal/judicial complex continues.  Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for violations of Colorado campaign finance law.  Longer term, Clear The Bench Colorado will work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public.  For both of those endeavors, we would appreciate your continued support - via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

“Amateurs study tactics, professionals study logistics.” (Military aphorism, variously attributed)

Translating from the military vernacular to the political, “amateurs” focus on short-term electoral gains (transitory shifts in legislative majorities or changes in who holds political office) while “professionals” focus on building long-term institutional and philosophical shifts - holding the “high ground” and winning the “hearts and minds” of the electorate by determining the terms of political discourse.

In Colorado this year, the elections with the greatest and most long-lasting implications for the future of the state were not the votes for legislative or executive office, but the once-in-a-decade opportunity to hold an increasingly powerful and expansive judicial branch accountable to the public and to their sworn duty to uphold the Colorado Constitution and the rule of law.

Unfortunately, the effort to educate Colorado voters to what was at stake fell short (despite achieving the greatest percentage of “NO” votes for incumbent state supreme court justices in Colorado history) due to insufficient resources to reach all of the states’ voters.

Among the most important near-term implications on the political front: the continued dominance of the judicial branch in determining the boundaries of Colorado’s state legislative and Congressional districts - with major implications for the future of the tenuous toehold of Republicans in the state legislature (merely gaining a meager one-member majority in a single chamber in what was otherwise a landslide year for the GOP nationwide).

Republicans in Colorado shot themselves in the foot by failing to realize and effectively mobilize resources to deal with this fact at the state level.

Interestingly, a recent Denver Post article continues their tradition of providing information of interest and relevance to the elections after the vote is held (and too late to actually influence the outcome).

The article (”Who holds the key on redistricting?“) published in The Spot political blog, educates the political “amateurs” with a summary of who truly holds the power in drawing the state legislative and congressional maps:

Conventional wisdom holds that Republicans gained a toehold in the looming 2011 redistricting battle by winning back the state House* last Tuesday.

While a House majority helps the GOP’s cause, the balance of redistricting power - particularly of state legislative districts - rests squarely with Democrats, should they choose to exercise it. That point was likely reaffirmed Wednesday, when Justice Michael Bender, a registered Democrat, was appointed Chief Justice.

The political “professionals” running the show for the “progressive” majority which continues to dominate Colorado politics (despite a public majority view that runs counter to that ideology in this state) once again outmaneuvered the amateurs on the “right” - putting resources where they could influence the longer-term big picture:

In 2001, when Dems held only a majority in the Senate, they knew the courts were their best alternative. The balance of the current high court - where five of seven members were appointed by Democratic governors - still appears to rest with Democrats…

In reapportioning state legislative districts (which was taken out of the hands of the legislature several years ago and handed to an appointed commission), the Democrat advantage (thanks to the recent elevation of partisan Democrat Michael Bender to the office of Chief Justice) is even more pronounced. The 11-member commission is appointed by the legislative branch (4 picks total, 2 from each side), the executive (governor picks 3) and the final (and decisive) 4 judicial branch appointments (chief justice).

(Injecting the chief justice into this inevitably political process is yet one more corrupting influence contributing to the increasing polarization and politicization of our judiciary in Colorado).

As the Post’s political editor Curtis Hubbard sums up:

Put simply: Democrats have the edge in the capitol and the courts on congressional redistricting, and have an overwhelming 9-2 advantage in appointing members to the committee that will oversee legislative redistricting.

Although Colorado voters failed to exercise their right to remove 3 politicized judicial incumbents from office via the ballot box this November, Citizens should insist upon (and legislators should implement) measures to remove the judicial branch from the corrupting position of influencing policy and politics in order to concentrate on their primary duty to defend the Constitution and uphold the rule of law.

The fight to reform Colorado’s corrupt legal/judicial complex continues.  Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for violations of Colorado campaign finance law.  Longer term, Clear The Bench Colorado will work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public.  For both of those endeavors, we would appreciate your continued support - via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.

Clear The Bench Colorado and this year’s Colorado judicial retention elections - along with the subsequent selection of Justice Michael Bender (who was retained in office with the lowest percentage approval in state history) as the next Chief Justice of the Colorado Supreme Court - continue to garner significant media coverage in the weeks following this year’s historic elections.

Numerous articles across the country continue to weigh in on the subject of judicial retention elections in general, with mention of the successful effort to oust incumbent state supreme court justices in Iowa and coverage of other statewide efforts which fell short (including our neighbor to the east, Kansas, and of course in Colorado).

Many of the articles note that this year’s judicial retention elections may be the harbinger of a real paradigm shift in how the public views judges on the ballot, with a growing movement to hold judges - particularly the more politicized and politically-active state supreme court justices - accountable.

Clear The Bench Colorado noted several of the relevant articles in our Post-Election Media Review post just after the elections, and in our last week’s post (”A New Era for Judicial Retention Elections?“) and most recently “A Tale of Three States” (comparing the judicial retention elections and outcomes in Iowa, Kansas, and Colorado) last Friday.

Judicial retention elections this year may well have been the most significant underreported political story of the year, with opposition and accountability efforts mounted in more states than ever before - which has some defenders of the status quo legal establishment worried.

A recent article published in The Palm Beach Post News (”Florida judges may be on political hot seat“) profiled the campaign to unseat two Florida Supreme Court justices against the backdrop of similar efforts nationwide:

Using e-mails, websites and YouTube videos, conservative groups waged a stealth campaign against Florida Supreme Court Justices Jorge Labarga and James Perry.

And some legal watchers are worried.

Among the “worried” legal watchers quoted in the article: former Colorado Supreme Court justice Rebecca Love Kourlis (executive director of the Institute for the Advancement of the American Legal System, IAALS, which is the subject of a campaign finance complaint for their electioneering activities in support of Colorado’s incumbent justices this year).

“I think we’re going to see it more and more,” she said. “Retention elections around the country are becoming the new battleground.”

Colorado Supreme Court Goes on a ‘Bender’

The other significant news in the aftermath of this year’s judicial retention elections was the selection of Justice Michael Bender as the next Chief Justice of the Colorado Supreme Court.

As previously noted, Justice Bender - a close political ally and ideological inheritor of the mantle of outgoing Chief Justice Mary Mullarkey, who resigned rather than face the voters this year - retained his office by the narrowest margin in Colorado history for an incumbent state supreme court justice (along with his colleague, and ideological ally, Alex Martinez) less than a week earlier.  His retention in office was supported by an organization (the Institute for the Advancement of the American Legal System, IAALS) in which he sits on the board (potentially violating the judicial code of conduct); the group is also the defendant in a pending campaign finance law violation case, which the group’s attorneys recently obtained a delay in bringing to a hearing (originally set for 12 November 2010).

Numerous media outlets around the state noted the selection of Bender for the Chief Justice slot with varying degrees of detail, including:

• Denver Post (”Michael L. Bender to lead Colorado’s top court“)
• Durango Herald (”Colorado Supreme Court names Michael Bender new chief justice“)
• Grand Junction Sentinel (”Bender to lead Colo. Supreme Court“)
• Pueblo Chieftain (”Bender to lead Supreme Court“)

An interesting addition to the list of mainstream media outlets commenting on the appointment was the left-wing political gossip site Colorado Pols.  Normally I wouldn’t credit this collection of closed-minded chatty-kathies (literally; outside comments on the gossipy back-and-forth snark that passes as political discussion on the site are not allowed) with a link, but the insight provided by their reaction to the news (and partisan spin on it) along with their take on the significance of Bender’s appointment for the upcoming legislative reapportionment and Congressional redistricting battles (the Pols consensus view, with which I agree, is that it bodes VERY well for their side) is illuminating.

Stay tuned for more on that subject…

Although this year’s campaign (and election) is over, the fight to reform Colorado’s out-of-control legal/judicial complex continues.  In the near term, Clear The Bench Colorado is working to hold the consortium of legal-establishment special-interest groups who attempted (and may have succeeded in) buying the election for their buddies on the bench accountable for their violations of Colorado campaign finance law.  Longer term, Clear The Bench Colorado will work with legislators and others interested in reforming the systemic shortcomings of Colorado’s “merit selection & retention” system to increase transparency and accountability to the public.  For both of those endeavors, we would appreciate your continued support - via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though - it’s worth the effort.