Pueblo Chieftain

Morse, Giron file legal challenge in Denver District Court as Secretary of State rejects Giron complaint, certifies petitions

Embattled Colorado Senate President John Morse and fellow state senator Angie Giron, targeted for recall from office by Colorado citizens following their high-profile push to enact “gun-control” legislation of dubious constitutionality (challenged by 55 of Colorado’s 62 elected sheriffs in federal court) have filed a legal challenge to the recall petitions against them in Denver District Court.  The court challenge closely follows a rejection of the legal challenge in an administrative action by the office of Colorado Secretary of State for both Morse (last Wednesday, 3 July) and Giron (earlier today, 9 July) as a prelude to certifying the petitions for the ballot, triggering a short (30-60 day) window for the governor to set a date for the recall vote.

Like the Morse challenge, Giron’s legal challenge was clearly and comprehensively rejected by the office of Secretary of State - so completely, in fact, that even a renewed challenge in the normally Left-leaning Denver District Court faces an uphill battle (read Clear The Bench Colorado‘s analysis of the ruling).

Any appeal from THAT court would bypass the Colorado Court of Appeals and go directly to the Colorado Supreme Court on an expedited schedule due to constitutionally-mandated tight timelines.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need 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.

“Adequate Funding” unrelated to available state funds? Colorado judge rules out relevant evidence

The Lobato v. Colorado school funding lawsuit concluded its fifth and final week in trial court in Denver last Friday – with plaintiffs seeking

billions of dollars of additional funding for schools, though it’s unclear where that extra money would come from. (Denver Post, “Colorado school funding trial enters likely final week“)

This educational-funding lawsuit (seeking to force even higher state educational spending by court order) represents yet another abuse of the courts for the pursuit of political ends – unfortunately aided and abetted by an all-too-complicit (and highly political) majority on the Colorado Supreme Court, which previously (October 2009) overturned two lower courts which had (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (meaning, a policy issue not to be decided by the courts).

Plaintiffs scored a major victory when Denver District Judge Sheila Rappaport ruled to exclude evidence on the state’s budget and fiscal situation, as well as evidence on relevant constitutional provisions including the Taxpayer’s Bill of Rights (TABOR) and the Gallagher Amendment (restricting property tax collections).

According to an article in last weekend’s Pueblo Chieftain (“State’s pocketbook won’t figure in schools suit“),

Kathy Gebhardt, a lawyer for plaintiffs in Lobato v. the state of Colorado, told the education collective Colorado School Finance Project on Friday that exclusion of evidence related to the state’s budget condition was a key victory for her side in five-week trial that concluded last week.

Gebhardt said her legal team filed the motion “thinking that we probably had a 5 or 10 percent chance of winning on that, and we won, which pretty much I think gutted a big part of the state’s defense.”

In lawsuits challenging the adequacy of school funding in other states, plaintiffs rarely have sought similar rulings.

Although Judge Rappaport “does not expect to rule on the case for at least another month” the preliminary rulings do not bode well for the state, which “cannot afford to lose.”

A court ruling in favor of the plaintiffs could not only precipitate a constitutional crisis, but lead to a fiscal and budgetary train wreck of epic proportions.  Indeed, as Governor Hickenlooper correctly points out, the consequences for Colorado would be “devastating.

If the courts are able to decide “the future of public education” by judicial fiat, Colorado citizens will have lost all control and accountability over our schools.

The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit is a fiscal, legal, and political disaster in the making.

Read more about the Lobato school funding case in these recent articles:

These cases highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering – let alone deciding – issues of policy more appropriate for the elected, representative branches of government.  Our courts have an important – even vital – role to play in our society and system of government.  This is not it.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need 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.

Weekend Wrap-up: Colorado courts ruling o’er state schools

Citizens of Colorado hold elections every year to send representatives to different venues to consider and decide on policy (and allocate resources) for their children’s education: in odd-numbered years, for local school boards; in even-numbered years, for the state legislature, which has the constitutional authority to “provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state.

Yet ultimately, the decisions about how education is funded, and how schools are run, are being made in neither of these arenas, but in the courts.

News coverage this week has highlighted this fact with two prominent cases:

  • Douglas County school choice voucher program
  • Lobato v. Colorado education-funding lawsuit

In the Douglas County school voucher program, the issue before the court revolves around whether an elected school district board has “the broad authority to contract with private schools for the provision of a public education to public school students.” [per Education Policy Center]  One might think that making decisions about the provision of public education is precisely why county residents elect a school board, but apparently (at least in the view of the plaintiffs, and the courts in Colorado) those decisions are better made by appointed judges.

The Douglas County case also touches upon important constitutional issues such a separation of powers, establishment of religion, and collection & allocation of tax dollars, but ultimately comes down to a very basic and fundamental issue: who decides how to educate Colorado’s children?

For additional information on this case, read:

Lobato v. Colorado education-funding lawsuit

The case with far broader implications for public education in Colorado (and the state’s budget) is the Lobato v. Colorado education-funding lawsuit, which just wrapped up the 2nd week (in a trial expected to last 5 weeks total) of testimony and argument, also in Denver District Court.

In this lawsuit, plaintiffs allege (on the basis of a single phrase in the state Constitution, without regard for the actual assignment of decision-making authority and responsibility to the state legislature in that same phrase) that Colorado’s school-funding system is “unconstitutional.”  Plaintiffs seek an additional $3-4 BILLION per year in state spending (plus a near-term increase in school construction of some $18 Billion) to “fix” the alleged constitutional deficit.

One not need look very far (indeed, just across the border to Kansas) to see the potential for a fiscal and budgetary train wreck of epic proportions.  Indeed, as Governor Hickenlooper correctly points out, the consequences for Colorado would be “devastating.

This educational-funding lawsuit (seeking to force even higher state educational spending by court order) represents yet another abuse of the courts for the pursuit of political ends – unfortunately aided and abetted by an all-too-complicit (and highly political) majority on the Colorado Supreme Court, which previously (October 2009) overturned two lower courts which had (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (meaning, a policy issue not to be decided by the courts).

Bottom Line: the lawsuit seeks money the state simply does not have, based on extremely tenuous grounds (a few words in the state Constitution calling for “thorough and uniform” education), and is improperly seeking to achieve these goals via the courts, not through the legislative branch or local school boards where such issues are properly decided.

The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit is a fiscal, legal, and political disaster in the making.

Read more about the Lobato school funding case in these recent articles:

These cases highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering – let alone deciding – issues of policy more appropriate for the elected, representative branches of government.  Our courts have an important – even vital – role to play in our society and system of government.  This is not it.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need 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.

Monday Media Survey – Lobato education-funding lawsuit budget-buster aided and abetted by Colorado Supreme Court

The potentially budget-busting Lobato v. Colorado education-funding lawsuit – restored to life in October 2009 by the Colorado Supreme Court after having been rejected as non-justiciable by two lower courts – enters its second week of trial court hearings today.

Numerous analysts and commentators have noted that if the Lobato lawsuit succeeds, it will negatively impact Colorado’s schools and end up hurting – not helping – Colorado’s school-age children.  Shortly before the lawsuit went to trial last Monday, Colorado’s Democrat Governor John Hickenlooper and Republican Attorney General John Suthers took the unusual step of issuing a joint statement opposing the lawsuit, “arguing that it could cost the state billions of dollars if it loses in court.

Over the weekend, Colorado’s leading newspapers weighed in further on the issue.

Sunday’s Denver Post (“Future uncertain if plaintiffs win education-funding Lobato case“) highlighted the uncertainty around just how deeply the lawsuit could affect Colorado’s budget if successful, calling it “uncharted territory.”  The Post article did note, however:

In other states where such school-funding “adequacy” suits have prevailed, court decisions have forced greater spending on schools. (Emphasis added)

The Pueblo Chieftain’s Sunday editorial, “Billions More,” was less timorous in its conclusions:

HERE WE are trying to dig ourselves out of the Great Recession, with Colorado’s state budget barely balanced with scads of gimmicks, and now a group is seeking a court order for the state to spend umpteen billions more on public schools.

The article further noted the dubious constitutional grounds for the lawsuit:

Attorney General John Suthers argues – correctly, we believe – that discretion in school funding constitutionally rests with voters and lawmakers, not the courts. He said a ruling in favor of the plaintiffs could cost the state up to $4 billion annually.

Worse, the article notes, the plaintiffs have also asked for massive – and immediate – increases in school construction:

Moreover, because the lawsuit asks for massive new school construction, the suit could cost the state an additional $18 billion. (Emphasis added)

Bottom Line: the lawsuit seeks money the state simply does not have, based on extremely tenuous grounds (an expository phrase in the state Constitution calling for “thorough and uniform” education), and is improperly seeking to achieve these goals via the courts, not through the legislative branch where such issues are properly decided.

The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit is a fiscal, legal, and political disaster in the making.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need 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.

Merry Monday Media Review: Clear The Bench Colorado, Colorado Supreme Court in the news

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 Postbut 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:

…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.

Judicial Performance Review Commission charged with bias

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.

Mid-month Media Review: Colorado Supreme Court, judicial retention elections, and Clear The Bench Colorado in the news

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:

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.

The Case Against 3 Colorado Supreme Court Justices

Why judicial incumbents Bender, Martinez, and Rice deserve a “NO” vote at the polls

The following commentary was published over the last weekend (in slightly modified form, according to the editorial whims of the various publications) in most of the major newspapers in Colorado:

The Pueblo Chieftain also endorsed the recommendations of Clear The Bench Colorado as the paper’s editorial position in this year’s judicial retention voting: (“The Judges“):

Justices Michael Bender, Alex Martinez and Nancy Rice, the only Supreme Court members up this year, ought to be removed from the bench. The voter needs only to choose “no” on the ballot. These justices consistently have upheld tax increases without requiring voter approval, in direct defiance of the TABOR amendment to the Colorado Constitution.

We recommend a “no” vote on the retention of Supreme Court Justices Bender, Martinez and Rice.

Here’s the article in its baseline form:

The Case Against 3 Colorado Supreme Court Justices

Why judicial incumbents Bender, Martinez, and Rice deserve a “NO” vote at the polls

Since Colorado changed from contested elections for judicial office to a “merit selection & retention” system (appointing judges followed by periodic votes to keep or remove them), no Colorado Supreme Court justice has been voted out of office.  Although some have left the bench voluntarily (Chief Justice Mary Mullarkey resigned so she will not have to face the voters this year), the people of Colorado have yet to exercise their right or responsibility to “vote ‘em out.”

To a great extent, this is because of a lack of public awareness – both about the right to vote itself (a recent survey showed that only 65% of the population knew that judges could be voted out of office) and about the incumbents’ record of performance in office (the same survey showed that only 35% of voters knew anything about the three incumbent Colorado Supreme Court justices – Michael Bender, Alex Martinez, and Nancy Rice – seeking another 10-year term this November).

Inexplicably, the State Commission on Judicial Performance (a 10-member group of political appointees charged with evaluating and reporting on the job performance of statewide judicial incumbents) has routinely failed to conduct a rigorous evaluation and provide substantive information to the public on which to base an informed decision.  The commission’s “reviews” (published and distributed at great taxpayer expense in the “Blue Book”) pretty much limit themselves to summarizing the incumbent’s resume and tabulating the results of surveys sent out to a select group of lawyers – and other judges.  The “reviews” contain next to no information about actual job performance.

Over the decades the system has been in place, the commission’s “reviews” have always recommended a yes (“retain”) vote on incumbent supreme court justices – that’s 100% of the time!

Even Fidel Castro and the late Saddam Hussein didn’t receive that level of “retain” votes!

(Although Colorado has plenty of good judges, at many levels – they’re not all that good).

Most importantly, the “reviews” provide NO information on how the justices actually voted in important constitutional cases – rulings which have had an increasingly negative impact on Colorado law and upon Colorado citizens.

Reading the commission “evaluations” alone, voters would have no knowledge of the fact that the three incumbent justices appearing on the ballot voted to allow:

(Complete references, including the votes of each justice, case analysis, commentary, and the full text of the rulings, are available at the Clear The Bench Colorado website in an easy-to-read “scorecard” matrix: http://www.clearthebenchcolorado.org/evaluations/)

These three appointed (and, due to a managed lack of public awareness, practically unaccountable) supreme court justices have assumed political power, to which the court is NOT constitutionally entitled.  These incumbents have consistently exerted this power without restraint or consideration for your constitutional rights – ruling consistently against individual rights and protections in favor of expanded government power, in violation of what the Colorado Constitution allows.

As a Citizen, you DO have the right to vote “NO” on these incumbent Colorado Supreme Court justices as they seek an additional 10-year term this November.  The ultimate responsibility – and authority – still rests with the voters.

Clear The Bench Colorado urges Colorado voters to exercise their rights on the ballot this November.

“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

Stand up for your rights – vote “NO” on these unjust justices, and Clear The Bench, Colorado!


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

Monday Media Week in Review – Colorado Supreme Court, Chief Justice Mullarkey, and Clear The Bench Colorado in the news

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!

Clear The Bench Colorado discusses Colorado Supreme Court role in Colorado legislative redistricting and reapportionment on Amy Oliver Show (1310 KFKA)

Need another reason why voting “NO” on the four Colorado Supreme Court justices up for re-election this year is the MOST important vote you can cast in this very important year for Colorado Politics?

Clear The Bench Colorado Director Matt Arnold discusses the dominant role of the Colorado Supreme Court in determining the boundaries of our legislative districts (at both the State and Federal level) – deciding how YOU will be represented in Congress and in the Colorado Legislature – on the Amy Oliver Show (1310 KFKA) today at 9:30 AM.

Podcast of the show will be available shortly.

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 – 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 and business from seizure by rapacious governments, 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 retaining these unjust justices on the bench for another 10-year term!

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