Westword

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.

Late-breaking news coverage of “Know Your Judge” consortium violations of Colorado campaign finance law

Arriving somewhat late to the party, but nonetheless providing decent coverage of the issue, the Denver Post joined in the coverage of the campaign finance complaint against the “Know Your Judge” consortium with an (online-only) article late Tuesday afternoon (“Clear the Bench files campaign finance violation claim“).  Following Monday’s Westword article (“Clear the Bench Colorado’s Matt Arnold on campaign complaint about KnowYourJudge.com“) and last Friday’s initial coverage of the blockbuster campaign finance complaint (at up to $500,000 in penalties and fines, potentially the largest in Colorado history) against the Know Your Judge consortium by Law Week Colorado and Face The State, the Denver Post article was the first to obtain a comment from any of the groups directly involved.

“We are having our attorneys look at it …. we will respond accordingly,” said Charles Turner, COBAR executive director. “I can say that the Bar Association has a relatively long history of pointing the public to public information about the retention process.”

The article joins other coverage in noting, however, that the “Know Your Judge” campaign (described as such by several of the involved organizations) does not limit itself to describing the retention process, but in fact does advocate for a vote:

The Know Your Judge website encourages voters to vote, rather than skip over judges on the ballot. “When judges are on the ballot, what do you do? Don’t skip them. Be informed. Get the simple, impartial, nonpartisan facts here,” the website says.

However, the “simple, impartial, nonpartisan facts” that are presented uniformly support a “retain” vote for the 3 incumbent Colorado Supreme Court justices on the general election ballot – a completely one-sided advocacy that identifies this “campaign” as a political committee, under Colorado campaign finance law:

Colorado Constitution Article XXVIII, § 2(12)(a) defines a “political committee” as “any person, other than a natural person, or any group of two or more persons, including natural persons, that have accepted or made contributions or expenditures in excess of $200 to support or oppose the nomination or election of one or more candidates.”

Since the “Know Your Judge” consortium consists of a group of 4 “persons” (including organizations) that have made expenditures in excess of $200 (at least $85,000 to run over 4,000 advertisements in August and September alone) in support of one or more candidates – they are, by law, a “political committee” (just like Clear The Bench Colorado).

The same rules apply to both sides – but the “Know Your Judge” consortium arrogantly acted as if the rules don’t apply to them.

They’re lawyers; they should (and do) know better.

It’s more than a little bit ironic that a consortium of legal-establishment special-interest groups should spend so much money, without any transparency or accountability, to support the retention of Colorado Supreme Court justices against citizens wishing to hold them accountable for their performance.

The outcome of this case will be a strong indicator of whether or not the rule of law applies at all in Colorado; either the same rules apply to both sides, or we are living without law.

Unfortunately, the outcome of this case (in fact, coverage of the news of this case) will arrive too late to influence this election cycle; however, it remains part of the ongoing struggle to hold our officials and institutions accountable to the same laws imposed upon ordinary citizens.

Although the elections are over – the votes are in, and we’re awaiting the results – the fight for an accountable judiciary goes on.  Please continue to support Clear The Bench Colorado with comments (Sound Off!) and contributions – stand up for your rights as citizens.

More news coverage of “Know Your Judge” consortium violations of Colorado campaign finance law

Following last Friday’s initial coverage of the blockbuster campaign finance complaint (at up to $500,000 in penalties and fines, potentially the largest in Colorado history, by several orders of magnitude) against the Know Your Judge consortium by Law Week Colorado and Face The State, the consistently thorough and professional investigative journalist Michael Roberts of Westword weighed in today with an article (“Clear the Bench Colorado’s Matt Arnold on campaign complaint about KnowYourJudge.com“) gaining the first comment from supporters of the judicial incumbents.  Although Democrat Party attorney Mark Grueskin and his ‘Colorado Judiciary Project’ group are not part of the “Know Your Judge” consortium (and not named in this complaint), they are allied parts of the legal establishment united in opposing the upstart judicial reform and accountability movement led by Clear The Bench Colorado.

Grueskin echoes the position taken by the “Know Your Judge” consortium in dismissing the complaint by parroting the party line that ‘Know Your Judge’ is “simply educating voters about resources they can use in making their decisions” – but later gives the game away, admitting that the group has “urged voters to… be knowledgeable and vote.”

‘Urging a vote’ counts as “electioneering” – particularly when that ‘urging’ includes spending close to $100,000 to run over 4,000 ads on radio and TV – which these groups have done.

The groups, which include the Colorado Bar Association, the Colorado Judicial Institute and the League of Women Voters of Colorado, “violated Colorado campaign finance laws,” Arnold asserts. “And they’re lawyers, so they ought to know better.

“They think they’re being clever to express advocacy to vote,” he continues. “But if you go to their website and click through” — to the page for the Colorado Office of Judicial Performance Evaluation, “you get their recommendations — which are to retain all three Supreme Court judges on the ballot this year.”

Arnold concedes that the organizations “have the right to express their opinion, but they have to follow the same rules that I do. And instead, they’ve chosen to intentionally violate the rules and spend this money without the proper accountability.”

Another key difference in the “educational” activities of the ‘Know Your Judge’ consortium vs. the substantive Evaluations of Judicial Performance provided by Clear The Bench Colorado: CTBC presents information from both sides, whereas the only “educational information” provided by Know Your Judge points to a “retain” vote.

The activities of the consortium – and of each of the individual organizations funding those activities – are not conducted out of ignorance, but are willful violations of campaign finance law; the participants know the law, and know better.  As a result, the consortium (and the participating organizations individually)

could face huge penalties as a result of their failure to file as a political committee. “They’ve been closely following what happened with me, and they’ve been snickering about it,” he alleges. “But they’re subject to the same $525 per-person-per-cycle limits as I am. And if, as I understand, the Colorado Bar Association contributed $50,000 to this campaign, it’s about $49,475 over the limit. So you could see fines tacking up pretty high, pretty fast.”

As for Arnold’s feelings about tomorrow’s elections, he says he’s “cautiously optimistic” his message has gotten out, despite all the legal hurdles that have been placed before him over the past several months. He adds that “this is a case of the underdog taking on the giants — but they’re in the wrong. They’re violating the rules, and they’re not above the law.”

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 resigning 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!

Week(end) News in Review: Clear The Bench Colorado, judicial “merit” selection & retention nationwide and “CEW round two”

Media coverage of Clear The Bench Colorado, the Colorado Supreme Court, and the issue of “merit” selection & retention of judges nationwide came in a veritable torrent over the weekend, instead of trickling in over the course of a week…

Leading off the weekend’s coverage of Clear The Bench Colorado was, somewhat surprisingly, the New York Times lead editorial (by none other than NYT publisher A. G. Sulzberger himself!) online on Friday 24 September and again on page A1 of the Saturday 25 September print edition.  The editorial (“Voters Moving to Oust Judges Over Decisions“) noted:

Around the country, judicial elections that were designed to be as apolitical as possible are suddenly as contentious as any another race.

Among the three “judicial elections” profiled in the piece discussing the “merit selection system” (which Sulzberger appears to uncritically support, despite concerns about the lack of transparency and accountability in the process as it has been implemented in several states, especially Colorado):

…a conservative group called Clear the Bench Colorado is citing a host of decisions in seeking to oust the full slate of justices on the ballot there, urging voters, “Be a citizen, not a subject.”

Sulzberger bemoans the “the amount of money spent on retention elections this year” upsetting “previously quiet judicial elections” around the country.  Rather than applaud the increase in transparency and accountability now being applied to an increasingly active and powerful one-third of our government, and the exercise by citizens in many states of their constitutional right to hold incumbent government officials accountable, Sulzberger quotes an academic who maintains that the retention vote was only “meant as an extreme measure.”

However, a leader of the movement to oust Iowa justices on the ballot this year (coincidentally, also three) ably summed up the mood and motivation of the nationwide judicial accountability movement:

“It sends a powerful message,” he said, “That if justices go outside the bounds of their oaths, if the justices go outside the bounds of the U.S. and state constitutions they’re going to be held accountable.”

Meanwhile, back at the ranch…

The weekend news on the judicial (non)retention front was dominated by the stunning Friday afternoon announcement by the administrative law judge (technically, an appointed executive branch employee) hearing the series of “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) attacks on Clear The Bench Colorado that the rules under which we have operated for over a year now have to be changed.

The judge’s ruling – contrary to over a year of established practice, “reams of documentary evidence” and the testimony of the office of Secretary of State Elections Division director that Clear The Bench Colorado properly filed as an “Issue Committee” – decreed that, although we properly acted on guidance issued by the Secretary of State’s office, CTBC must RE-file as a “political committee.”  Kinda late in the game for a complete rules change, wouldn’t ya think?

The ruling can be read as an attachment to the article by Law Week Colorado (“Clear The Bench Colorado Subject To Contribution Limits, Judge Decides“), one of the first to go to press on the issue.

Around the state, the story was also covered by:

Nationally, the story was picked up by:

… and that’s just on Friday!

On Saturday, some news outlets expanded their coverage, including this piece by the Colorado Independent (“Gessler shocked by Clear the Bench campaign finance smackdown“) which, despite the overwrought and hyperbolic title, actually provides some insight into the case and background on the overall issues at stake.

A more sleepy (or sports-obsessed) Sunday saw one additional article:

On Monday, the coverage ramped up again, with new and expanded articles:

Curiously, despite ALL of the coverage – in print, online, on the air – statewide and nationally, Colorado’s “newspaper of record” (the Denver Post) spilled not one drop of ink covering the story.  (Perhaps they were distracted by noise from the loud and raucous celebrations upstairs by their $1.6 Million/year renters when the Colorado Supreme Court ‘unjust justices’ heard the news from real journalists).

Fortunately – despite setting a terrible precedent, and ensuring that the “big money” in judicial retention elections will continue to be non-transparent and unaccountable (such as the tens, if not hundreds, of thousands spent already by legal establishment special-interest groups promoting a “retain” campaign for judicial incumbents) – the ruling has little effect on the ongoing activities of the state’s only grassroots judicial accountability organization, Clear The Bench Colorado.

Clear The Bench Colorado has been consistently open, honest, and above-board in educating the public, and has scrupulously followed the rules under Colorado campaign finance law for over a year.  In a campaign that has been conspicuous for its LACK of big-money interests and “large contributions” (Toro is whining about two - TWO! – contributions exceeding $500), CTBC has acted with complete transparency and absolute accountability to educate voters as to their right to hold judicial incumbents accountable for their performance in office, and to shed light on the records of judicial incumbents at the highest levels – providing substantive information on which voters can base an informed decision.

The legal establishment and the political ruling class don’t want you to get informed; they prefer to keep you in the dark, or failing that, convince you NOT to 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 soon-to-be-minus Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.”  Continue to support Clear The Bench Colorado with your comments (Sound Off!) and contributions – and vote “NO” on giving these unjust justices another 10-year term!

Friday Funnies: Sick Puppies at Pols, Barry takes my bet – reaction to Monica Marquez pick for Colorado Supreme Court

Reaction to Governor Ritter’s selection of Deputy Attorney General Monica Marquez to become Colorado’s next supreme court justice (replacing outgoing Chief Justice Mary Mullarkey, who announced in June that she would resign rather than be held accountable by voters this November) and concerns expressed by Clear The Bench Colorado regarding her positions on important constitutional questions ( 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 (which led to the 2009 Colorado Car Tax – er, vehicle registration “fee” – increases), has sought to restrict the 1st Amendment rights of citizens seeking to speak out on ballot issues in recent and ongoing cases, and is also the lead attorney in yet another attempt to impose an unconstitutional tax increase on Colorado Citizens) ranged from the superficial (short spots on most local television: CBS4, KDVR31) to the basic (“Ritter picks Monica Marquez for Colorado Supreme Court“, Denver Post) to the informative (“Monica Marquez Supreme Court selection disappoints Clear the Bench’s Matt Arnold“, Westword) to the predictably shrill and misleading (left-wing propaganda outlet Colorado “not-so” Independent accusing CTBC of a “diatribe” against Marquez and making up non-existent “attacks on her ethnicity or sexual orientation” – the last refuge of scoundrels: playing the race and sex card).

It took the juvenile minds (er, mouths) at Colorado Pols, though, to come completely unhinged in their response.  Going off the deep end and reaching a new low in rabid incoherence, the puerile Pols piece (“Clear the Bench” Blows the Dog Whistle – does that make sense to anyone sentient?) perceived a “code-word reference” in the Clear The Bench Colorado critique of Marquez’ positions on constitutional interpretation and exclusively advocacy-based career path.  (Code words? Can they even perceive how fringe and paranoid that sounds?)  Attempting to sling mud (er, doggie droppings) by insinuating “just beneath the surface, you can see it’s a bit ugly” makes them look like – well, a bunch of sick puppies.

On a more humorous (and uplifting) note – among the many calls I fielded for interviews yesterday was a lengthy and wide-ranging chat with Colorado Springs Gazette house liberal Barry Noreen (at the end of our conversation, I told him that he’s really a closet libertarian in many respects, which got a chuckle).  I’m curious to see what he ends up writing, since we wandered off-topic a bit; I think that he was trying to get a sense of what drives me personally (and motivates Clear The Bench Colorado).  No decoder ring necessary – it’s about upholding and defending constitutional principles and the rule of law.  He did end up taking my bet (offered in response to an earlier, and more adversarial, critique he had mailed, when he asserted “these justices will be retained with ease”).  Our bet: if any of the Colorado Supreme Court justices on the ballot is non-retained, or squeaks by with 60% or less of the total vote, I win; otherwise, he wins.  (The stakes: a six-pack of beer, winner’s choice).

Looking forward to enjoying some beer on Barry, after November 2nd – and it won’t be the cheap stuff.  ;-)

Colorado voters have the chance to make history, stand up in defense of our constitutional rights (and don’t forget, get Barry to buy me beer) this year.  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, and Nancy Rice; soon minus ringleader 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!

Citizen participation vital in restoring Accountability and Transparency to the Colorado Supreme Court

For perhaps the first time in our state’s history, an increasing number of Colorado Citizens are taking an interest in the Colorado Supreme Court  judicial retention elections – our only opportunity, as Citizens, to hold the officeholders in our 3rd branch of government (the judiciary) accountable (to the rule of law generally, to the Constitution specifically, and ultimately to We The People, in whom ultimate political authority is constitutionally vested).

Some voices – notably professional politicians such as Susan Thornton, as expressed in her Denver Post article (“Criticism of retiring Judge (sic) Mullarkey unfair“), or other legal professional advocacy groups (such as the Grueskin group formed to defend Colorado Supreme Court incumbents and oppose the growing influence of Clear The Bench Colorado) believe that Citizens have no place in the process.  Their message?   ”Trust us, the elite political insiders, not your lying eyes. We know better.

Others – spearheaded by Clear The Bench Colorado, but also including a large number of legal reform groups, transparency and good-government advocates – believe that Citizens not only have the right (as clearly expressed in the Colorado Constitution) but even the responsibility and duty to get informed and act (“vote “NO on unjust justices!“) accordingly. (Responding to Thornton’s attack on independent critiques of the judiciary –  Accountability, Transparency apply to the Colorado Supreme Court, too – we defend the constitutional right of Colorado Citizen participation in the process).

The following article, published in the August edition of The Constitutionalist Today, expands upon that point:

Restoring Accountability and Transparency to Colorado Courts -

Why Citizen participation in judicial selection and retention is vitally necessary

A number of years ago, Colorado embarked upon an experiment in government that was touted as a great reform. Attempting to “take the judges out of politics” our state did away with direct, contested elections of judges in favor of the “merit selection and retention process” pioneered by the State of Missouri (the “Missouri Plan”), under which judges and supreme court justices are nominated by commissions, appointed by the governor, and only subjected to checks and balances by the citizens of the state in periodic “retention” elections (posed as a simple yes/no question on the ballot).  For Colorado Supreme Court justices, the opportunity to hold them accountable comes around only once every TEN years, posed as a ballot question: “Should Justice [name] be retained in office?” (Yes/NO)

In theory, the system looked like a good idea; after all, selecting judges and supreme court justices on the basis of “merit” instead of “ability to win an election” – putting professional qualifications ahead of political ones – appeals to our common desire for fair play and “equal justice before the law” and removes some of the most direct and obvious temptations for corruption via “quid pro quo” campaign contributions.

In practice, however, the “Missouri Plan” systems in place in several states seem to have merely shifted the potential for undue influence to well-connected interest groups (particularly the “in-crowd” of bar associations, other attorney groups, lobbyists, and others directly involved with the courts) operating largely outside of public scrutiny.  Lack of transparency – in both the up-front selection and back-end review & retention processes – has actually led to an utter lack of accountability for Colorado Supreme Court justices in Colorado.

A recent Wall Street Journal article (“Voters vs. George Soros – Taking judicial selection away from the lawyers guild“) highlighted some of the concerns with the judicial selection and retention process under the “Missouri Plan” used by Colorado:

“Designed to take politics out of the courtroom, the plan has in practice handed disproportionate influence over the judiciary to lawyers and bar associations. The effect has been to give a single profession control over a third of state government, with little political accountability.”

As with many things brought to us by the “good idea fairy”, the devil is in the details. Colorado’s Judicial Performance Review Commission (JPRC) “performance” reviews are heavily biased in favor of judicial incumbents (over the last several decades, issuing only 15 recommendations for non-retention resulting in only 7 judges being voted out of office) and provide little substantive information for citizens trying to decide how to vote on judges, especially supreme court justices. These JPRC review “narratives” (published at taxpayer expense in the “Blue Book” voter guides) focus almost exclusively on qualifications (essentially, have they checked all the right boxes) instead of performance (have supreme court justices, for instance, properly carried out their duties – and lived up to their oaths and obligations, or not).  The most important judicial quality of all – upholding the law, as written (not fabricated or “interpreted” according to a personal or political agenda) – is given short shrift or even no consideration at all.  (Additional information on the shortcomings of Colorado’s Judicial Performance Review process is available in a pair of Denver Post articles: “Demand accountability from judges, too” July 2nd CTBC guest commentary; and “Evaluating the performance of justices“, Feb. 13th [non-CTBC] guest commentary).

The recently announced impending retirement of Colorado Supreme Court Chief Justice Mary Mullarkey – who decided to quit rather than be held accountable by voters this November – has also raised interest in how Colorado appoints and evaluates judges (and particularly supreme court justices), in the first place.  The process is not merely of “academic” interest.  From an Institute for Legal Reform publication reviewing “merit selection” systems and best practices across several states:

“The procedures that determine how state judges are selected and placed on the bench, particularly those in the highest courts, are central to the ultimate quality of justice in our courts. Every American has a stake in the way state judges are chosen.(emphasis added) Some states that select their judges through a commission-based appointive system have been criticized for the absence of public input into the process, lack of transparency, secretiveness in their procedures, and the political cronyism that can occur when commissions and the governor operate in what is essentially a closed system.”

The common theme in critiques of the “Missouri Plan” system of “merit selection & retention” 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.

Of course, the biggest political “players” 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.  The usual suspects include the “lawyers guilds” and similar groups.  The WSJ article also singles out another powerful and well-connected cabal:

“The system has powerful defenders, however, including groups connected to the George Soros-funded Justice at Stake.”

Soros’s group would be more aptly named “Justice put to the Stake”.

Here in Colorado, a new pressure group of apologists was recently formed by politically influential and well-connected attorneys (led by Democrat super-lawyer and frequent Colorado Supreme Court litigator, Mark Grueskin) specifically to counter the growing supreme court reform and accountability movement spearheaded by Clear The Bench Colorado.  (Story broken by Law Week Colorado, “Group aiming to defend Colorado judiciary comes to light“, followed up in Westword and on Clear The Bench Colorado (“More details emerge on group formed to oppose accountability for Colorado Supreme Court incumbents“).

Along with articles published in mass media outlets (for example, a recent Denver Post article calling “Criticism of retiring Judge Mullarkey unfair“), these groups are attempting to maintain the crony system of political insiders picking and preserving in power supreme court justices who rule against the rights of the people in favor of big government – putting you in your place as a subject, not protecting your rights as a citizen.  They can get away with it only as long as they succeed in keeping voters in the dark.

That is why public participation – not just by a select few politically connected individuals put on commissions, but by fully informed public discussion and debate – is so critically important to maintaining good government (and accountability) in our judiciary.  Become an informed citizen – review sources such as Clear The Bench Colorado and get to Know Your Courts to get “the rest of the story”.

“The original purpose of using a commission-based merit selection system was to reduce the politicization of the judiciary system. As such, it is imperative that merit selection systems not simply hide the politics behind the closed doors of a Commission but drive out destructive influence through a system that is transparent and accessible to the public.”

“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

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!

Surveying the Media on Mullarkey Retirement – was Colorado Supreme Court Chief Justice ousted by Clear The Bench Colorado?

Either the Colorado Supreme Court Chief Justice has been afflicted by the same highly contagious epidemic of political figures “wishing to spend more time with their family” as befell Governor Ritter, or there’s something else afoot…

Those journalists willing and able to look deeper than the retirement announcement intended for public consumption didn’t have too far to dig.  Reporter Joe Hanel of the Durango Herald (Denver bureau) was the first to contact Clear The Bench Colorado for comment; in his article on Mullarkey’s announced retirement (“Colorado’s Chief Justice set to retire“) he noted:

Under Mullarkey’s leadership, the court issued a series of rulings that limited the effect of the Taxpayer’s Bill of Rights.

She wrote the 2009 opinion in Mesa County Commissioners v. State of Colorado, which upheld Ritter’s plan to freeze school property taxes without a vote of the people.

The ruling… opened the door for 11 bills that repealed tax credits and exemptions in the 2010 legislative session.

Matt Arnold is running a campaign to get voters to turn out four Supreme Court justices this November, when they face their once-in-a-decade retention votes. Mullarkey was one of the four.

“One down, three to go,” Arnold said.

In addition to the TABOR cases, conservatives chafed at rulings that kept an illegal-immigration measure off the ballot and created a congressional district map favored by Democrats.

“She hasn’t followed the constitution in years in her judgments,” Arnold said.

The Denver Post’s otherwise reasonably balanced article on Chief Justice Mullarkey’s announced retirement (“Mullarkey, chief justice of Colorado Supreme Court, stepping down” by political reporter Jessica Fender) contained only an oblique reference to the fact that “[H]er decision to step down comes amid a vigorous campaign by critics to persuade voters not to retain her on the court in November.”  Apparently in deference to what seems to be official Denver Post policy (possibly related to the Post’s unwillingness to offend the sensibilities of their largest tenant and source of rent revenue), the name of the organization mounting the “vigorous campaign” is not mentioned.

Other print media also opted not to delve beyond the surface and were similarly circumspect in their commentary, including the Grand Junction Sentinel (“Mullarkey has earned much criticism during the past year“) and the Pueblo Chieftain (“Supreme Court and its decisions came under fire“); several other newspapers appeared to have simply reprinted the press release, leading one to question whether investigative journalism is completely dead.

Well, not quite – as these excerpts from an excellent article on the Mary Mullarkey Retirement by Westword’s Michael Roberts (published Friday) demonstrate:

During yesterday’s announcement about her intention to retire in November, Colorado Supreme Court Chief Justice Mary Mullarkey said a vigorous campaign against her and three other justices had nothing to do with her decision.

That’s Mullarkey malarkey, counters Matt Arnold of ClearTheBenchColorado.org, the organization spearheading the Supreme crusade.

“Any claim that this has nothing to do with my campaign is whistling in the wind,” Arnold says.

…there’s no denying that Arnold’s message is having an impact. But did it cause Mullarkey to surrender despite her insistence that factors like a new grandchild and her husband’s retirement motivated her decision?

Yes, Arnold believes. “It’s very clear she decided to step down because she knew she was facing a very tough retention election and would very likely be voted down — and she would go down in history as the first chief justice in the history of Colorado to be rejected by the voters. The writing was on the wall.”

In some ways, however, Arnold was disappointed by Mullarkey’s move.

“I think it’s important for voters to get involved,” he says. “If they step down, that’s obviously their decision. But it’s important for citizens to get engaged in this and realize how important it is. We not only have the right, but the duty and the responsibility to hold all officials accountable to their oath of office, whether they’re elected or appointed.

“Obviously, the preference is that the voters exercise their responsibilities and reject these people on the grounds that they’re not following the constitution. But it’s of great benefit for the citizens of the state for these anti-constitutionalist justices to leave the bench by whatever legal means, whether it’s retirement or being voted out.”

On area radio shows this weekend, numerous stations also noted the connection between Mullarkey’s announced retirement and the Clear The Bench Colorado campaign (podcasts forthcoming).

For the most part, television news lived up to it’s reputation for superficiality, merely noting the announced resignation with little comment or analysis, but panelists on the KBDI public affairs program Colorado Inside Out credited Clear The Bench Colorado with providing the impetus for the Chief Justice’s self-removal from the bench.  (Program aired Friday, with repeats set for Monday & Tuesday, podcasts to follow).

Chief Justice Mullarkey’s announced retirement does not change the fact that We The People need to finish Clearing the Bench - we must still exercise our right to vote “NO” this November on the four (er, three remaining) ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority”- (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your home or business against seizure via eminent domain abuse, your right to be fairly represented in the legislature and Congress, and your right to enjoy the benefits of the rule of law, instead of suffering under rule by activist, agenda-driven “justices.”  Continue to support Clear The Bench Colorado with your comments (Sound Off!) and your contributions – and vote “NO” on giving these unjust justices another 10-year term!

More details emerge on group formed to oppose accountability for Colorado Supreme Court incumbents

Initial reports in mid-May (story broken by Law Week Online) about a well-funded group formed specifically to counter the growing momentum and success of the grassroots judicial accountability organization Clear The Bench Colorado in raising public awareness about the issue of judicial accountability in Colorado were substantiated Tuesday (June 1st) with additional details on the key members and name of the organization.

Again, Law Week Online breaks the story (“Group Aiming To Defend Colo. Judiciary Comes To Light“):

Well-known figures in Colorado legal circles have quietly filed paperwork creating an organization to defend the state’s judiciary amid a campaign to force four state justices into retirement.

Former Colorado Public Defender David Kaplan and Berenbaum Weinshienk attorney James Kurtz-Phelan incorporated the Colorado Judiciary Project, briefly known as the Colorado Judicial Project, with the Colorado Secretary of State’s office in early April.

Trey Rogers, who only a month before the filing served as chief legal counsel to Gov. Bill Ritter, filed the group’s paperwork.

The effort comes as Clear the Bench Colorado, a local group, continues a campaign encouraging voters to vote against retaining Supreme Court Chief Justice Mary Mullarkey and justices Michael Bender, Alex Martinez and Nancy Rice.

Strangely enough, all of the “well-known figures” mentioned in the article  are prominent advocates for the Democrat Party – according to OpenSecrets.org, Kaplan has contributed a couple thousand to Democrat candidates, Kurtz-Phelan shelled out almost $15,000 to Democrat candidates in recent years, Trey Rogers was Gov. Ritter’s chief legal counsel, former Colorado Supreme Court justice (and current full-time activist) Jean Dubfsky contributed over $16,000 to Democrats, and of course Democrat Party attorney Mark Grueskin contributed over $12,000 cash and countless hours of “pro bono” and paid legal work to the Democrat Party, candidates, and causes.

Yet we are supposed to believe that this group’s efforts are oriented towards nonpartisan “public education” about the courts and the “judicial retention process”?

The Judiciary Project won’t directly advocate for voters to retain the four justices. Instead, it will educate voters about Colorado’s judicial-retention process, which includes lengthy judge performance evaluations, Kaplan said. Local performance commissions only rarely recommend a judge not be retained.

Puh-LEEZ! What a bunch of mullarkey!  Surely they don’t think that Colorado voters are THAT stupid?

As noted by the judicial watchdog and accountability group KnowYourCourts:

If we are to take them at their word, the mission seems rather redundant. It is one also claimed by the Colorado Judicial Institute and the “Our Courts” indoctrination program.

The judicial retention “process” is quite simple: those incumbent justices wishing to remain declare their intention to do so; the question of whether or not they keep their jobs appears on the ballot in the form of a question: “Should Justice [name] be retained in office?”  ( Yes/NO ) Colorado voters, based on available information and their best judgement as citizens, decide and vote accordingly, exercising their rights as citizens to do so.  What part of the “process” is unclear?

What HAS been lacking, in all previous retention elections, is a source of substantive information (including commentary, evaluations, and even analysis and the full text of significant cases) on which to base an informed decision – a deficit now filled to a large extent by Clear The Bench Colorado.

Grueskin’s claim that his group was not formed in response to the growing momentum and awareness generated by the judicial accountability organization Clear The Bench Colorado (Grueskin characterized the assertion as “self-aggrandizing” and “ego-driven” – sure, attack the messenger, not the message) was also exposed as a rather less than honest statement (“baldfaced lie” is perhaps a bit harsh) by a message he sent out (leaked to our sources) back in February when “brainstorming” on what to do:

You may have read about the so-called “Clear the Bench” effort, a campaign for the non-retention of Justices Mary Mullarkey, Michael Bender, Alex Martinez, and Nancy Rice at the 2010 election. The Denver Post wrote about it recently. See www.tinyurl.com/ClearTheBench.

(Grueskin’s attempt to spin the facts after being caught red-handed, along with the entire text of the message – and our response, calling him on it – is ably chronicled in a mid-May Westword article, “Mark Grueskin, Matt Arnold tangle over judge retention: Should they stay or should they go?“)

Unfortunately – and in marked contrast to the highly transparent and publicly accountable grassroots organization Clear The Bench Colorado, which operates under the disclosure requirements of Colorado campaign finance law, providing transparency of funding and expenditures – the 501(c)4 organization formed by this cabal of activist Democrat lawyers does NOT have to disclose sources of funding to the public. They are completely unaccountable to Colorado citizens:

The Colorado Judiciary Project is organized as a 501c4, which covers civic leagues, social welfare organizations and local employee associations.

“Civic leagues” and “social welfare organizations?”  Well, perhaps “local employee associations” is appropriate, since this group will be looking out for their buddies on the bench (before whom many, including Grueskin, frequently argue cases).   Perhaps – perhaps – there is no formal quid pro quo, but there would certainly appear to be, at the very least, a perception of possible corruption.  A strong case could be made that each of the attorneys involved in the group should be excused from arguing any case before the Colorado Supreme Court justices they are seeking to defend, in order to dispel any such perception of undue influence.

What IS abundantly clear is that this new group will collect and spend exorbitant amounts of money in an attempt to “educate” the public that “all is well” with the Colorado Judiciary, when the evidence to the contrary is abundantly clear:

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

Clear The Bench Colorado movement to restore accountability to Colorado Supreme Court gains momentum, resounding response

“We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.” – Abraham Lincoln

Clear The Bench Colorado has succeeded – through sheer drive and determination (and the support of growing numbers of concerned Colorado citizens) – in raising awareness of the critically important issue of the right of Colorado voters to render their verdict on the performance of our Colorado Supreme Court justices in regularly scheduled judicial retention elections this November.  Coloradoans have a unique and historic opportunity to reject the continued occupation of the Colorado Supreme Court by jurists who do NOT follow the law – the Colorado Constitution, as written.  Failure to act upon this opportunity would result in another 10-year term of office for a majority of state Supreme Court justices who have repeatedly demonstrated their contempt for the very Constitution they are sworn to uphold – and dangerously undermine the rule of law in Colorado.

Clear The Bench Colorado Director Matt Arnold has traveled the state, speaking to numerous grassroots groups and interested organizations to raise awareness of the issues at stake – beginning with the massive (7000+) crowd at the first Tax Day Tea Party rally at the Denver Capitol and continuing through several events throughout the Spring (examples here, and here), Summer (examples here, here, and here) Fall (examples here, here, here, here, and here) and Winter (examples here, and here) of 2009, and continuing into 2010, most prominently at the Tax Day Tea Party rallies on April 15th.

Clear The Bench Colorado Director Matt Arnold also testified in opposition to several unconstitutional tax increase bills (the “Dirty Dozen” tax increases) which exploited an apparent loophole created by the Colorado Supreme Court’s anti-constitutional “Mill Levy Tax Freeze” ruling last year, and most recently testified in opposition to a legislative attempt to remove from state law several factors designed to ensure fair and impartial review by courts of legislative district boundaries (the “Mary-mandering” bill advancing the use of the courts to advance a particular political agenda and deliberately modify legislative boundaries for electoral purposes).

The growing momentum of Clear The Bench Colorado has recently inspired attacks from the left-wing lawsuit/complaint machine “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) widely discredited as a “cheap political stunt” by news coverage and described as “disingenuous” by the professional nonpartisan staff of the Colorado Secretary of State’s office.

In fact, the defenders of the status-quo anti-constitutional incumbents on the Colorado Supreme Court are SO concerned about the potential loss of their “friends on the court” –

If they get their base motivated they could do some damage to our folks in the judiciary.

that they are forming a well-funded (by a group of highly partisan Democrat trial lawyers, led by Mark Grueskin) organization specifically to counter the growing momentum of Clear The Bench Colorado.

Despite all of these major, newsworthy developments – and despite extensive coverage by such diverse news organizations as Westword, Law Week Colorado, and the Colorado Statesman, Colorado’s largest newspaper (the Denver Post) continues to pretend that the issue of retention votes on Colorado Supreme Court justices does not exist.  In fact,  since the Post’s courts and legal affairs beat reporter Felisa Cardona’s article (“Four Colorado Supreme Court justices face a tough vote in elections“) appeared on the Post’s front page over 3 months ago (February 15th), the Post has not published one bit of news or comment on this extremely important issue.  The news blackout seems to coincide with the lease taken out by the Colorado Supreme Court for space in the Denver Post building - apparently the Denver Post doesn’t want to do anything to upset its most recent tenant (and major billpayer) – that same Colorado Supreme Court. ( “Move along, move along – no conflict of interest to see here.”)

The Colorado Supreme Court – and particularly, the Chief Justice – exercises enormous power (”clout”) over the lives of Colorado citizens.  The current majority has repeatedly demonstrated that it does not exercise this power with restraint or consideration for your constitutional rights – ruling consistently against individual protections and in favor of expanded government power.  Upholding tax increases (such as the “Mill Levy Tax Freeze” property tax increase, or the “Dirty Dozen” new tax laws) imposed without the required vote of the people, enabling taxes to be collected under the guise of “fees” (such as the Colorado Car Tax), expanding eminent domain abuse to seize people’s property, and grabbing the (legislative) power to draw up voting districts (aided by the recent “Mary-mandering” bill) – this court is acting like rulers, with you as the subjects; re-writing the laws, instead of upholding them.

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

Westword weighs in on Colorado Supreme Court non-retention movement spearheaded by Clear The Bench Colorado

The widely circulated alternative weekly Westword weighed in Friday with an article about the grassroots movement to hold the Colorado judiciary (particularly, the Colorado Supreme Court) accountable - and bring back balance to the bench – spearheaded by Clear The Bench Colorado.

Aside from not actually having used the word “bums” to describe the current majority on the court, the Westword article upheld the weekly’s high standard for investigative journalism and produced a very balanced and insightful look at the very important issue of the upcoming statewide retention elections for four of the current occupants of Colorado’s highest court (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey are all scheduled to be on the ballot this November).

Clear The Bench Colorado has been accused of being just another partisan shill or “judiciary haters” - by implication in the original Denver Post article on Tuesday (corrected in Friday’s edition), and outright in subsequent online attack pieces – but, as the Westword article points out,

“But Clear the Bench isn’t about Republican versus Democrat or even right versus left. It’s about holding our highest court accountable to their oath to uphold the Colorado constitution.”

Aside from a few minor semantic nitnoids (“military veteran” instead of “ex-military”, “recession” instead of “depression”), the Westword article presents an accurate picture of the purposes and motivations of Clear The Bench Colorado:

“I think our rules and our institutions are good ones, and I’m not advocating for direct election of judges,” Arnold stresses. “I think the intent behind our current system is to try to take some of the politics out of the judiciary branch, and that’s good. But it’s clearly failed to work, because we weren’t able to take the politics out. What we have is a bevy of justices on Colorado’s highest court who are substituting their personal agendas for the rule of law, and that damages all of us, irrespective to our political persuasion — and that has to stop.”

Regarding Suthers, Arnold was at the meeting where the attorney general made negative remarks about Mullarkey, Bender and Martinez, and he praises him for taking a stand.

“It’s a bold statement for the highest ranking law enforcement officer in the state to make,” he says. “And the fact that we’re talking about it shows it’s brought attention to the issue. People need to look at this seriously and do some research. This is an education campaign, because so few people are provided with any useful information on the judiciary.

“The judiciary has an inordinate amount of control over people’s lives — this court particularly,” he continues. “They’re grabbing as much power as they can. But this really is a nonpartisan issue. It’s about holding the judges accountable for their proper role as referees, not players.”

Take back control of your own life – exercise YOUR right to vote “NO” on the four ‘unjust justices’ of the Mullarkey Majority (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 homes and business from seizure by rapacious governments, and your right to enjoy the benefits of the rule of law, instead of rule by an oligarchy of activist, agenda-driven “justices.”  Help to Support Clear The Bench Colorado with your comments (Sound Off!), your contributions, and your “NO” vote on retaining these unjust justices this November!

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