Restoring accountability to Colorado’s judiciary, upholding the Rule of Law, and defending YOUR rights as citizens and taxpayers against the worst abuses of the Mullarkey Court is serious business.  Extremely serious - but that doesn’t mean that we can’t point out some seriously funny aspects, too.

In 2008, Colorado’s very crowded ballot not only featured a dizzying array of candidates for elective office, but also a veritable plethora of judges (in my area, 17 up for retention, including two Supreme Court justices - one of whom got my “YES” vote) and an alphabet soup of ballot initiatives.

Most of those, including amendments to gut TABOR and increase taxes, were rejected by Colorado voters, but some passed - including Amendment 54, the “Clean Government Initiative.”

Now, a Denver district judge has stopped the implementation of that constitutional amendment - which passed by a vote of the citizens of Colorado - by granting a “temporary injunction” against enforcement of limits on campaign contributions by “no-bid” government contractors:

The amendment prevents anyone tied to an entity that receives a no-bid government contract greater than $100,000 from giving to political parties or candidates at any level.

Once again, a judge has acted on the behalf of special interest groups intent on “gaining favor and contracts from public officials” through political contributions - “probably triggering a flood of campaign contributions” from those seeking to curry favor while the ‘temporary injunction’ remains in effect.

So how does this relate to puppies?  As we are reminded by an article in the June 24th Westword, “Colorado’s puppies and kitties at risk after Amendment 54 ruling,”

“Last November, DMYR reps upset by what they saw as illogical ads opposing 54 and two other amendments, 47 and 49, decided to come up with equally absurd salvos representing the other side of the issue.”

Then-DMYR President and current PeoplesPressCollective correspondent T.L. James created the ads poking fun at the opposition’s hyperbole at the time, and now notes that

“from TABOR to transparency, it doesn’t matter what you vote for…” special interests,  politicians, and “corrupt collaborators in business… will just find ways to get around it or nullify it in the legislature and the courts.”

Despite the apparently high-minded rhetoric, many Colorado judges (including the Mullarkey majority on the Colorado Supreme Court) have been extremely selective (some might say, capricious or biased) in applying First Amendment protections to political speech, campaign contributions, and ballot initiatives: favoring some, crushing others, depending on their personal preferences.

It’s too bad that we can’t send the judiciary a message by voting to non-retain four Colorado Supreme Court justices (e.g. Justices Bender, Martinez, Rice, and Chief Justice Mullarkey) in the 2010 elections.

Oh wait! YES WE CAN!

Help save Colorado’s puppies and kittens by fighting back against our state’s unjust justices…  Support Clear The Bench Colorado with your voice (Sound Off!), your contributions, and your “NO” vote on retaining unjust justices in 2010!

Come back every week for another edition of the Friday Funnies at Clear The Bench Colorado!

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Remember, Freedom isn’t Free - support the only grassroots campaign to restore accountability to our judiciary and uphold the Constitution and rule of law in Colorado.  Vote “NO” on unjust justices in 2010!

Appearing as the guest speaker at the next Colorado Republican Business Coalition (CRBC) luncheon Friday June 19th at Brooklyn’s (9th & Auraria) from 1130-1:00, Clear The Bench Colorado Director Matt Arnold will discuss the grassroots movement to vote “NO” on retaining the four Colorado Supreme Court justices (Mullarkey, Bender, Martinez, and Rice) facing voters in 2010…

Matt will explain how the four justices subject to retention by voters in the 2010 election (Chief Justice Mary Mullarkey, and justices Michael Bender, Alex Martinez, and Nancy Rice) have betrayed the trust of the people of Colorado, neglecting the proper judicial function of upholding the law in favor of imposing their partisan political will.
Three prominent examples: 1) Upholding the Mill Levy Tax Freeze, which ignored and violated TABOR and cost $117 Million (and counting!) in additional taxes on homeowners who never voted on the question of tax increases; 2) Colorado’s own Kelo case, the “Telluride Land Grab“, which upheld the exercise of eminent domain by ANY home rule entity ANYWHERE in the state (not bounded by geography); and  3) The congressional redistricting case where the Court determined that “judicial redistricting is part of the definition of General Assembly, therefore we are justified in declaring ourselves part of the General Assembly for the purpose of conducting judicial redistricting.” 

The Court’s seizure of power is simply breathtaking.  In these and other cases, the Court violated the state Constitution, re-wrote or ignored legislation, and undermined the rule of law and government accountability to the people.

Colorado voters have an opportunity to restore some measure of accountability to our judiciary by voting “NO” on retaining these “unjust justices” - Mullarkey, Bender, Martinez, and Rice - in 2010.

Today’s Denver Post headline trumpets the “loosening” of “Colorado’s fiscal knot” with the governor signing into law the repeal of the 1991 Arveschoug-Bird statute that had limited out-of-control legislative spending by capping the growth of the general fund at a reasonable rate of 6%/year.

However, political reporter Lynn Bartels (formerly of the late and lamented journalistic counterweight Rocky Mountain News) inadvertently gave the game away with her lead-in to the article:

Gov. Bill Ritter signed a landmark budget reform bill Wednesday, with supporters promising it is the start (to fixing a constitutional mess) that has Colorado headed toward a California kind of economic pickle.

OK, I added the parentheses around the dangling participle - to illustrate the point that Governor Ritter and the bill’s supporters have indeed promised that this bill does have Colorado “headed toward a California kind of economic pickle.”  Can’t say they didn’t warn you…

Spending limits such as TABOR - the Taxpayer’s Bill of Rights - and the Arveschoug-Bird measure are the only things that kept Colorado from sliding into the deep fiscal hole and “economic pickle” that is the state of California’s budgetary woes.  As Bartels points out towards the end of the article, “California is struggling to close a $24.3 billion deficit.”  Note that deficits don’t magically appear due to declining revenues - they are a direct result of the kind of unrestricted spending that TABOR and the Arveschoug-Bird measure were designed to prevent (or at least limit).

It is the natural inclination of politicians to promise the moon - anything to please constituent interest groups, in order to get elected - particularly when it comes to spending other peoples’ money.  Establishing spending limits (as any parent knows) is the only way to introduce some measure of control to protect the taxpayer’s wallet.

These measures are not only good policy - they are locked in to our state constitution, the highest law of the land (subject only to the U.S. Constitution).  At least, that was the case, until our out-of-control Colorado Supreme Court decided otherwise, substituting their word over written law.

The majority ruling in the Mill Levy Tax Freeze case only this Spring (16 March 2009) signaled loud and clear to Governor Ritter and the Democrat-contolled Colorado Legislature that it was open season on any provisions of the Colorado Constitution (such as TABOR) or statutory law incorporated into TABOR’s constitutional limits (such as the Arveschoug-Bird measure) that had previously shielded Colorado taxpayers from increased taxation and government spending.  It was only AFTER the current majority on the Colorado Supreme Court had cleared the way with this ruling (in March) that an emboldened Governor Ritter and his accomplices in the legislature moved to repeal Arveschoug-Bird through SB-228 (in April). (See my post at the time: Ritter, Legislators Assault Constitutional Spending Limits… Again)

So while it’s appropriate to be critical of Governor Ritter and the Colorado Legislature for acting to increase spending, it’s kind of the nature of the political beast; spending is what they do.  However, they could not do so without restraint until aided and abetted by the current majority on the Colorado Supreme Court.  As noted in the Post article,

House Majority Leader Mike May, R-Parker, opposed the change: “In essence, it’s like removing the spending limits on a credit card.”

May and other opponents also argue that the 6 percent limit was included in the voter-approved 1992 Taxpayer’s Bill of Rights, or TABOR, so it can’t be repealed without a vote of the people.

The Colorado Supreme Court once again aided and abetted in taking away YOUR right to a vote on this policy - in violation of the Colorado Constitution, and further undermining the rule of law.

The supposed adults in the room - the Colorado Supreme Court - have just handed over YOUR credit card to the shopaholic teenagers that are Colorado’s statewide executives and legislators.

Are you cool with that?  ‘Cause I’m not…

Don’t allow the current majority on the Colorado Supreme Court to continue taking away your rights (and your money). Vote “NO“ on retaining these “unjust justices” in office in 2010.

The recent nomination of Sonia Sotomayor to succeed retiring justice David Souter on the United States Supreme Court has generated increased scrutiny on the power of the judiciary to endorse and validate government seizures of private property.  Joining the notorious 2005 Kelo vs. New London case at the Federal level, and the outrageous Telluride Land Grab case decided a year ago yesterday (2 June 2008) here in Colorado, is a lesser-known ruling by Judge Sotomayor in 2006 (Didden v. Village of Port Chester).

A recent article by distinguished law professor Richard Epstein of the University of Chicago characterized Sotomayor’s ruling in this case as an even worse attack on property rights (and individual protections) than Kelo:

The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The “or else” was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow.

So Sotomayor and the Second Circuit essentially endorsed a thuggish extortion racket “pay-to-play” move by a small-time tinpot dictator controlling a local redevelopment district.  Having spent some time overseas, this sounds more like the kind of 3rd World corruption you’d find in some of the worst-governed corners of the globe, not the United States of America.  Or is that the new standard on the East Coast?  “Back to the Future” of Boss Tweed and machine-style politics?

As Epstein notes, “American business should shudder in its boots” - to say nothing of individuals owning homes (Kelo) or other property (Telluride) over which government casts a covetous eye.  When outright theft is justified in the name of law - who can respect the law?  We MUST restore accountability to our judiciary - and restore the rule of law - before it’s too late.

In Colorado, we have that opportunity - vote “NO” on retaining the unjust justices who perpetrated the Telluride Land Grab when they must face the voters in 2010.

Clear The Bench Colorado Director Matt Arnold interviewed by Jimmy Sengenberger of SengCenter radio on the importance of impartial justices, judicial philosophy, and upholding the rule of law against the backdrop of President Obama’s nomination of Sonia Sotomayor to the U.S. Supreme Court and the failure of the “Mullarkey Majority” on the Colorado Supreme Court to live up to the standards of jurisprudence demanded of justices at the highest level.

Matt discusses some of the reasons that Colorado voters should “clear the bench” in 2010 by voting “NO” on four “unjust justices” of the Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) and how the Sotomayor nomination provides a teaching moment on the attributes, qualities, and standards expected of judges.

Listen to the interview (which starts at about halfway through the show, @29 minutes)

What makes a good judge?  According to President Barack Obama, the replacement he’s seeking for retiring Justice David Souter “must be an individual endowed with ‘empathy’.”

A recent article by Mike Rosen in the Denver Post explores the topic in greater depth.  Rosen notes that President Obama proclaimed of his potential Supreme Court nominee that ”‘I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book.  It is also about how our laws affect the daily reality of people’s lives.’  (Oprah, perhaps?)  Compassionate and seductive as this pronouncement may sound to some, it represents a radical and dangerous departure from traditional American jurisprudence.”

“When empathetic judges rule on their feelings, they are exceeding their authority …  The point is that the role of the judicial branch of our government is to rule on the Constitution as written and the law as passed by Congress and signed by the president.  The courts are a co-equal branch of government, not a superior branch.  Their job is not to rule on what they think the law ought to be.”

As noted in a previous post, there is a fundamental difference in principle between those (such as President Obama) who advocate for judges to render decisions based on “empathy”, twisting the law as necessary to reach a preferred outcome (as in recent rulings by our own Colorado Supreme Court), and those who hold judges accountable to exercise their proper function (and sworn duty) to uphold the rule of law. 

ALL citizens of Colorado (and the United States) are entitled to equal treatment before the law.  Judges who rule by “empathy” are playing favorites, “helping” a select few while harming everyone else.  Unless judges are restricted to their proper role as referees, not players, we all lose.

The recently-announced impending retirement of U.S. Supreme Court Justice David Souter - thus giving President Obama his first opportunity to nominate a Supreme Court judge - has focused attention and discussion on the desired characteristics and qualifications to assume that important position.

Recent decisions and actions by our own Colorado state Supreme Court - and the potential for “retiring” four of the current Colorado Supreme Court justices in judicial retention elections in 2010 - raise(s) similar questions about the desired characteristics and qualifications of judges for that court as well.

What makes a good judge?

“An independent, fair and impartial judiciary is indispensable to our system of justice … the judiciary plays a central role in preserving the principles of justice and the rule of law.“

Two Opposing Judicial Philosophies: Rule of Law vs. “Preferred Outcome”

In our system of justice, judges are analogous to referees at a sporting event: at least, that’s the view of the “Rule of Law” school of jurisprudence.  Like referees, judges are supposed to be impartial - taking no sides, applying the rules equally to both teams and all players.  Judges can’t ”play favorites”, and are NOT supposed to be players themselves.

An alternative view holds that judges should NOT hold themselves above or outside the debate, but instead should be “part of the process” - influencing the results to reach a desired outcome.  This view is not necessarily restricted to a particular political party or ideology; there are both “conservative” and “progressive” judges who rule based on what  they personally FEEL to be “right” or “fair” - rather than the stated intent and letter of the law.

However, a judge’s feelings - or personal preferences - are an unreliable (at best) and dangerous basis for a legal system.  Imagine playing a sport in which the rules are constantly subject to change, at the whim of the referee.  Even worse, the referee is friends with some of the players on the other team.  Sound like fun?  Not so much…

Now suppose that you’re forced to play that sport - and your earnings, your property, your freedom, even your life, might depend on the score.  Welcome to the world of “Rule by Whimsy” or judicial activism:

 …when judges substitute their own political opinions for the applicable law, or when judges act like a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of the legislative branch, rather than limiting itself to the powers traditionally given to the judiciary.

 Sound familiar?

HOW (NOT) TO CHOOSE A JUDGE

A recent online article (Obama’s empathetic judicial poison) clearly illustrates the dangers and pitfalls of the “preferred outcome” approach to selecting judges:

Barack Obama’s statement that “empathy” would be a key qualification he’d look for in a nominee to replace David Souter on the Supreme Court is not simply soft liberal thinking, it’s a direct attack on the rule of law, an abrogation of Obama’s oath of office – and entirely consistent with Obama’s prior statements.

Obama’s statement about the process of selecting his nominee included this:

I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.

What Obama is saying here is that the rule of law should be secondary in judicial reasoning to a judge’s own personal feelings. It is nothing short of a recipe for a breakdown of our legal system, and the death of an expectation by participants in court proceedings that they will be treated fairly, particularly if they are not highly sympathetic.

ALL citizens MUST be equally able to expect fair treatment from the courts - and reasonably presume that the law means what it says, so that they can make decisions accordingly.

SO WHAT IS THE STANDARD?  HOW DO WE “JUDGE THE JUDGES?”

The American Bar Association (ABA) - an organization that may be politically suspect, but can at least be presumed to know something about judges and legal standards - has developed a “Model Code of Judicial Conduct” as a standard for “judging the judges.”  Among the key “rules”:

RULE 1.1  Compliance with the Law

A judge shall comply with the law,* including the Code of Judicial Conduct.

RULE 2.2 Impartiality and Fairness

A judge shall uphold and apply the law,* and shall perform all duties of judicial office fairly and impartially.*

COMMENT

[1] To ensure impartiality and fairness to all parties, a judge must be objective and open-minded.

[2] Although each judge comes to the bench with a unique background and personal philosophy, a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.

GENERAL CONSIDERATIONS

[1] Even when subject to public election, a judge plays a role different from that of a legislator or executive branch official. Rather than making decisions based upon the expressed views or preferences of the electorate, a judge makes decisions based upon the law and the facts of every case.

It is clear that the current majority on the Colorado Supreme Court fails this standard.

In 2010, render your verdict - vote “NO” to retain Justices Mullarkey, Bender, Martinez, and Rice.