Speak Now, or Forever Hold Your Peace…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

By the Numbers: How the Judicial Selection Process works

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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!