After Sunday’s Denver Post editorial (”Unintended consequences in judicial push“) missed the point of Clear The Bench Colorado (hint: it’s not about selecting replacements for the incumbent justices; it’s about holding the current justices accountable to the Colorado Constitution, the rule of law, and the citizens whose rights they are sworn to uphold) and ended up by spinning an implausible scenario of justices “retiring” after being voted out this November (the ol’ “you can’t fire me; I quit! routine), the remainder of the week brought out more serious news coverage related to Clear The Bench Colorado and the Colorado Supreme Court.  (Unfortunately, none of the actual news appears to have been covered by the Denver Post - although they did publish the important stories such as the “supporting roles” of Romanoff’s family on his campaign, Bennet’s time spent with his daughters, and the theft of “more than 100 gnomes” in Arvada.  Yep, hard-hitting investigative reporting and “serious” journalism…)

Meanwhile, other more topically substantive publications have been following the unraveling of the “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) “frivolous, groundless, and vexatious” campaign finance “complaint” against Clear The Bench Colorado.

This week’s coverage of the story opened up with Monday’s radio news segment on 1310AM KFKA with Face The State managing editor Brad Jones discussing how “liberal litigation shop Colorado Ethics Watch is ordered to pay up for a misfired lawsuit.”  (The “Colorado Ethics Watch” - CEW, pronounced “sue”, it’s what they do - segment begins at 10:45 on this audio clip).  A few highlights:

“Colorado Ethics Watch in particular exists solely to tie up conservative causes in court… and that is an established campaign tool.  Mark Grueskin, a major Democratic attorney who takes up a lot of these kinds of cases… basically admits as such.  Litigation is now an expense, both in prosecution and defense, for campaigns…

The part that’s really important to note here is that… in Colorado, an attorney being forced to pay the opposing counsel’s attorneys fees is a very rare event indeed, because under Colorado’s judicial rules, when a lawyer signs that complaint, they are certifying that it is a legitimate question of law… and in this case, the judge said that ‘you have no business filing this complaint because you knew that the facts were not with you and that you had no chance of prevailing, but you pursued it anyway…

On Tuesday, Law Week Colorado picked up the story of last week’s ruling by Administrative Law Judge Robert Spencer which not only dismissed CEW’s frivolous, groundless, and vexatious “complaint” against Clear The Bench Colorado but also took the rare step of directing CEW to pay thousands in legal fees because the “complaint” was so completely without merit.  Law Week’s article (”Denver Administrative Judge Upbraids Colorado Ethics Watch“) noted that the judge soundly rebuked ”Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) in his written order (published Monday), which the article also included in full.  Some excerpts:

An administrative law judge has chastised a Denver-based ethics-watchdog group, calling a recent complaint filed by the group “substantially groundless and frivolous.”  …

In the written order, Spencer said Ethics Watch “was in possession of facts putting it on notice that its claim was groundless but at no time did it seek to voluntarily dismiss its claim.”

Today, Law Week also covered Clear The Bench Colorado’s request (filed Tuesday) for the Secretary of State’s office to provide legal clarity (and foreclose CEW’s plans for an endless cycle of additional “complaints” in their ongoing efforts to harass our grassroots movement) by issuing a definitive ruling which codifies the guidance issued by that office to Clear The Bench Colorado over a year ago:

Clear The Bench wants the Secretary of State to adopt a rule that says “a committee whose purpose is the support or opposition of the retention of a judicial seat shall register as an issue committee…” The group, which all state Supreme Court justices now up for retention, registered as an issue committee on the advice of the Secretary of State’s office.

Clear The Bench Colorado also received coverage in the context of the controversy currently surrounding the Colorado governor’s race.  In addition to the Denver Post editor’s misguided assumptions about what constitutes a “good outcome” for CTBC’s efforts to hold our incumbent Colorado Supreme Court justices accountable to the law (hint: it’s not dependent on who’s governor), Clear The Bench Colorado received national exposure in the latest Human Events article by Colorado correspondent Ross Kaminsky (”GOP in Disarray in Colorado Governors Race“) which highlights the importance of the Colorado Supreme Court vote in upholding the principles of constitutional limits on government power, in Colorado and beyond:

In addition to the redistricting following the results of this year’s census, there is also a grassroots movement called Clear the Bench Colorado which aims to get Coloradoans to vote out three ultra-liberal state Supreme Court justices.

CTBC has put enough pressure on the judges that the chief justice of the Colorado Supreme Court, a woman who has demonstrated no respect for the rule of law or the will of the people, announced her retirement a few weeks ago rather than face the voters.  If CTBC is successful in causing the removal of one or more justices, the next governor will appoint the replacement(s).  As important as Kagan or Sotomayor is on a national level, these vacancies will be at least as important within our state. [emphasis added]

Also today, the Face The State radio minute (broadcast on a variety of stations across Colorado) focused on the unethical practices of “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) conducting legal harassment of opposing groups.  The broadcast segment (entitled “Names can be deceiving”) called CEW to task for its habit of filing harassing “complaints” without legal merit:

Would a group called Colorado Ethics Watch ever do something out-of-bounds? Names can be deceiving…

Political attack ads are often funded by some group with a name like, “Coloradans for fluffy bunnies” or “The campaign for rainbows and sunshine.” Names can be deceiving. Take for example Colorado Ethics Watch, which purports to use the courts to pursue unethical political behavior. Well, so long as the target is a conservative, that is. Despite their intentions, the group has every right to access the legal system. But last week, CEW was slapped with attorneys fees for filing a complaint it knew had no merit. In Colorado, fees are assessed sparingly, and only in clearcut cases like this. It’s the second time in four years CEW has been rebuked like this. Legal harassment doesn’t sound very “ethical” to me.

Finally, in news breaking later in the day, Law Week also published the number of applicants (31 people applied) for the impending vacancy on the Colorado Supreme Court that will be created once the announced retirement of Chief Justice Mary Mullarkey (who announced her intent to retire rather than be held accountable by voters in the November elections) becomes effective (currently scheduled for November 30th).  In keeping with current practice and tradition (but not as a statutory requirement), the Judicial Nominating Commission has NOT released the names of the would-be Colorado Supreme Court justices to the public.  (Clear The Bench Colorado is pursuing that information in the interest of public accountability and government transparency - stay tuned for upcoming announcements).

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!

Tags: Alex Martinez, CEW (pronounced "sue" it's what they do), Chief Justice Mullarkey, Colorado Constitution, Colorado Courts, Colorado Ethics Watch, Colorado Judges, Colorado Politics, Colorado Secretary of State, Colorado Supreme Court, Dan Haley, Denver Post, Face The State, judicial accountability, Judicial Activism, judicial evaluation, judicial performance, judicial redistricting, judicial retention, judicial usurpation, Law Week Colorado, Luis Toro, Mary Mullarkey, Michael Bender, Mullarkey Court, Mullarkey Majority, Nancy Rice, TABOR, Taxpayer's Bill of Rights, unjust justices

A few days ago - following the announcement of Clear The Bench Colorado’s resounding win against the frivolous, groundless, and vexatious “complaint” filed by the legal attack group “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do), with the judge even going the extra mile and awarding Clear The Bench Colorado ‘tens of thousands’ in legal fees payable by CEW attorneys - Editor Dan Haley of the Denver Post left me a cryptic message stating that he “had a question” for me (unrelated to ‘this’).  On returning to my computer that evening, I replied with my cellphone number and asked for the question - but didn’t hear back.

Today’s (Sunday) Denver Post provided some clues as to what Dan Haley’s question(s) might have been: his editorial in the “Perspective” section purports to address “Unintended consequences in judicial push” (meaning, of course, Clear The Bench Colorado).

Unfortunately, Haley probably would have benefited from first getting the answer(s) to his question(s) of Clear The Bench Colorado, as his editorial contains a few errors of both fact and interpretation.

Although Haley starts out with a reasonably accurate summation of the “judicial push” (to vote “NO” on the unjust justices of the Colorado Supreme Court subject to voter approval this November) he misses the mark on “unintended consequences”:

A conservative group called Clear the Bench Colorado wants Coloradans to clear the Supreme Court bench this November and oust three Supreme Court justices who are up for retention.

(They originally had four justices in their sights, but earlier this summer Chief Justice Mary Mullarkey announced her retirement as of Nov. 30.) [Ed. quitting rather than facing voters]

In Colorado, judges and justices are appointed by the governor, but they must be retained every few years by voters.

The justices’ crimes, according to the group’s website, include “aiding and abetting . . . unconstitutional property tax increases; the unconstitutional elimination of tax credits and exemptions; and unconstitutionally re-defining taxes as fees,” among other things.

Those three rulings, of course, came after controversial decisions by Gov. Bill Ritter - decisions many on the right derided as unconstitutional but the court upheld nonetheless.

Actually, those were only two rulings (the “Mill Levy Tax Freeze” property tax increase ruling also created the loophole the legislature exploited with the “Dirty Dozen” new tax laws; another ruling enabling taxes to be collected under the guise of “fees” led to the Colorado Car Tax and other “fees”) among many.  Other key rulings expanded eminent domain abuse to seize people’s property, grabbed the (legislative) power to apportion legislative district boundaries (aided by the recent “Mary-mandering” bill) and set the state up for fiscal disaster by grabbing the power to set school funding levels (Lobato v. Colorado) for unelected judges away from elected legislators and school boards.

The Denver Post editorials have been appropriately critical of these rulings (neatly summarized in Vincent Carroll’s excellent piece, “Mary Mullarkey’s Troubling Legacy - Mullarkey Court altered Constitution’s true meaning“) so it is unfortunate that, until recently, the Post has given scant coverage to the very important issue of judicial retention elections for the authors of those rulings.

Where Haley most seriously misses the mark (and misstates the facts) in his editorial (which could have been avoided with that follow-up message or phone call) comes in his review of the process in the aftermath of a “NO” vote for the incumbent Colorado Supreme Court justices in the upcoming elections.  Although he starts out on solid ground,

If voters choose not to retain a justice, and the judge finishes out his term, the next governor would appoint the successor.

Haley then veers off into some tenuous territory:

Here’s the rub: Should a justice decide to resign after not being retained, it would trigger a 30-day clock for the Supreme Court nominating commission to propose replacements.

Three names would then be sent to Ritter for each vacancy, and he would have 15 days to appoint someone. If he failed to appoint someone, the Supreme Court chief justice would appoint someone within 15 days.

That strict timeline is laid out in the Colorado Constitution. So if an ousted justice resigns within nine days of the retention vote, Ritter would appoint the successor.

This is an implausible and, frankly, silly scenario.  Once voted out, the justices have no office to resign - like any other lame-duck politician, they would serve out their terms (which, for the incumbent justices up for a vote this NOvember, expire the 2nd Tuesday in January) but lack authority to dispose of their office in such fashion.  Otherwise, every officeholder losing a vote would “retire” instead…

Any attempt to repudiate the will of the voters in such blatant fashion would not only “look nakedly political” - it would likely trigger a constitutional crisis, if not “torches & pitchforks.”

Haley’s mention of such a ridiculously implausible scenario is most likely an attempt to “poison the well” for those few Republican backers of Clear The Bench Colorado who might allow a narrowly partisan view to cloud their judgement.  It won’t work - Colorado voters are smarter than that.  The prospect of ten more years of “the devil you know” - three Colorado Supreme Court justices with a consistent record of violating the constitutional rights of Colorado citizens, who would lock in a Democrat majority via their lock on the state-level legislative reapportionment and congressional redistricting process IF (but only if) the current majority remains in power to elect the next Chief Justice after that office comes vacant following retirement of the current chief - balanced against the chance to give a new governor the chance to appoint three replacements who will be subject to another vote in only TWO years (instead of TEN) will serve to remind Colorado voters that the MOST important votes on this year’s ballot are “NO” votes on the remaining three ‘unjust justices” who seek their approval for another decade’s leave to violate their rights.  No matter who becomes governor, Clearing The Bench of these three incumbents is a net win for Colorado.

“Unintended consequences?”  No.  ”Intentional disinformation?”  Perhaps.

It’s nice to know, at least, that the Denver Post and editor Dan Haley “have no problem with groups like Clear the Bench trying to educate voters about judges and justices” - we’re looking forward to our opportunity to discuss these vital votes with the Denver Post editorial board and express the hope that they will (finally!) step up their coverage of this critically important issue on the news pages as well.

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!

Tags: Alex Martinez, Chief Justice Mullarkey, Colorado Constitution, Colorado Courts, Colorado Judges, Colorado Politics, Colorado Secretary of State, Colorado Supreme Court, Dan Haley, Denver Post, judicial accountability, Judicial Activism, judicial evaluation, judicial performance, judicial redistricting, judicial retention, judicial usurpation, Mary Mullarkey, Michael Bender, Mullarkey Court, Mullarkey Majority, Nancy Rice, TABOR, Taxpayer's Bill of Rights, unjust justices

Clear The Bench Colorado wins!

Yes, it’s still more than three months until the judicial retention elections in November, when Colorado citizens will be able to exercise their right to vote “NO” on the three remaining ‘unjust justices’ of the Colorado Supreme Court’s incumbent ‘Mullarkey Majority’ who have declared their intent to allow themselves to be held accountable (minus, of course, Chief Justice Mullarkey herself, who last month announced her intent to retire rather than be held accountable by voters in the November elections).

Earlier today, however, Clear The Bench Colorado won a stunning victory when Administrative Law Judge Robert Spencer not only dismissed the frivolous, groundless, and vexatious “complaint” by self-proclaimed watchdog (actually, attack dog) “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) - which we have been predicting for weeks - but also ordered CEW to pay ‘tens of thousands’ in attorney’s fees to Clear The Bench Colorado because the complaint was so completely without merit.  Face The State broke the story earlier today (”Self-styled ethics watchdog ordered to pay ‘tens of thousands’ to judicial-reform campaign“):

For the second time in its four-year history, the group Colorado Ethics Watch has watched one of its trademark ethics complaints backfire after it was ordered to pay attorneys’ fees to one of its targets. An administrative law judge today threw out the group’s claims against Clear The Bench Colorado, an issue committee that seeks to oust three state Supreme Court justices on this November’s ballot.

The monumental nature of Clear The Bench Colorado’s victory in this case - particularly the award of attorney’s fees - is difficult to overstate.  It is rare (indeed, almost unheard of - though not unprecedented) for attorney’s fees to be awarded to the defendant in this type of case, as Face The State had pointed out in an earlier article (”Judicial-reform group lashes back at ‘frivolous, groundless’ complaint“):

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

The award indicates that the judge not only thought that CEW’s case (or “complaint”) was bad - he thought it was SO bad that he took the unusual step of slapping CEW with the entire bill (which, as noted, runs into the ‘tens of thousands’).

CEW’s attacks against Clear The Bench Colorado fit an ongoing pattern of unsuccessful, politically motivated “ethics” complaints designed to distract, disorient, and sling mud in the (vain) hope that something might stick.  Ultimately, they don’t care if they win or lose the case (their lopsided loss-win ratio bears this out), since their priorities are (1) smear, (2) frame the media debate and gain attention, (3) divert resources & attention, (4) intimidate, and (5) maybe (if they get lucky) occasionally win a case.  As many publications noted at the time, CEW’s attack was just another cheap political stunt.  Even the Secretary of State’s office called CEW Director Toro’s statements “disingenuous” (which is a polite way of saying, ‘lying through your teeth’).

Sadly, “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) doesn’t seem to know when to quit.  Even after being definitively slapped down, CEW Director Luis Toro announced his intent to file an amended or “supplemental” complaint and continue CEW’s harassment of the judicial accountability group Clear The Bench Colorado.  And why not?  It’s not as if they’re spending their own money - not only are they well-funded by Colorado’s own “4 horsemen” - multi-billionaire activists Tim Gill, Jared Polis, Rutt Bridges, and Pat Stryker (as documented in the excellent book  The Blueprint by former Rep. Rob Witwer & 9News Reporter Adam Schrager) but also by their parent organization in Washington D.C. (with a reported 2008 revenue of $1.35M - that’s million).  That’s if they’re even spending money at all - apparently Toro’s co-attorney (Aaron Goldhamer of Sherman & Howard, LLC) is working the case pro bono (donating his time, and the firm’s resources, for free).  Perhaps Sherman & Howard clients might wish to ask about how their money is being spent?

Even with all that money, power, and legal talent (when mentioning “talent”, I’m talking about Goldhamer, and other attorneys working behind the scenes - not Toro, who’s pretty much a legal hack, not even capable of doing the most basic legal research before attacking) lined up against Clear The Bench Colorado -  we still win!

Comes from doing the right thing (as previously noted, CTBC registered in a timely manner, fulfilling all reporting requirements, in accordance with the Secretary of State’s guidance and established campaign finance regulations and procedures) - but still, score one for the underdog!

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

Fortunately, they can be stopped - by citizens with the courage to fight back.  Show your support today - stand up to unethical attorneys and sleazy solicitors, and contribute to help provide the resources for Clear The Bench Colorado to prevail against what are ultimately attacks on YOUR freedom.  Also, since sweet success is the best revenge - spread the word about why the four (er, three remaining) incumbent justices of the Mullarkey Majority (Michael Bender, Alex Martinez, Nancy Rice, and soon to be minus Chief Justice Mary Mullarkey) deserve a “NO” vote in November (and why CEW has been sicced on Clear The Bench Colorado to cover for special interests who benefit from keeping them on the bench).  Remember, they 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 from against eminent domain abuse, your right to fair representation in government, 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 exercise your right to vote ”NO“ on retaining these unjust justices on the bench for another 10-year term!

Tags: Alex Martinez, CEW (pronounced "sue" it's what they do), Chief Justice Mullarkey, Colorado Constitution, Colorado Courts, Colorado Ethics Watch, Colorado Judges, Colorado Politics, Colorado Secretary of State, Colorado Supreme Court, Face The State, judicial accountability, Judicial Activism, judicial evaluation, judicial performance, judicial redistricting, judicial retention, judicial usurpation, Law Week Colorado, Luis Toro, Mary Mullarkey, Michael Bender, Mullarkey Court, Mullarkey Majority, Nancy Rice, TABOR, Taxpayer's Bill of Rights, unjust justices

All Colorado Supreme Court justices with terms ending in January who are not named Mary Mullarkey are officially running in November’s retention election.

Today’s Law Week Colorado broke the news that the roster of ‘unjust justices’ of the Colorado Supreme Court’s “Mullarkey Majority” (minus, of course, Chief Justice Mullarkey herself, who last month announced her intent to retire rather than be held accountable by voters in the November elections) seeking retention in office for another 10-year term on the bench is now complete. Incumbent Colorado Supreme Court Justice Alex Martinez joined his colleagues (incumbent Justice Nancy Rice, who filed the week before last, and incumbent Justice Michael Bender, who filed at the end of May) in seeking voter approval for another ten years with which to further erode the constitutional rights of Colorado citizens.

The Colorado Supreme Court exercises enormous power over our lives - and in the case of these three incumbents, has consistently wielded this power at our expense.  The current majority has repeatedly demonstrated that it does not exercise its power with restraint or respect for your constitutional rights - repeatedly ruling against individual protections, growing the government’s ability to take away from citizens.  Upholding tax increases (such as the “Mill Levy Tax Freeze” property tax increase, or the “Dirty Dozen” new tax laws) imposed without the constitutionally 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) - these Colorado Supreme Court incumbents are acting like rulers, with you as the subjects; re-writing the laws, instead of upholding them.

Fortunately, in Colorado, we retain the right of refusing to retain these ‘unjust justices’ in office; we can prevent them from taking away our rights with the stroke of a pen, by exercising our own rights with the push of a button.

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 your contributions - and exercise your right to vote “NO” on giving these unjust justices another 10-year term!

Tags: Alex Martinez, Chief Justice Mullarkey, Colorado Constitution, Colorado Courts, Colorado Judges, Colorado Mill Levy, Colorado Politics, Colorado Supreme Court, eminent domain abuse, judical activism, judicial accountability, judicial evaluation, judicial performance, judicial retention, judicial usurpation, Law Week Colorado, legislative redistricting, Mary Mullarkey, Mary-mandering, Michael Bender, Mill Levy Tax Colorado, Mill Levy Tax Freeze, Mullarkey Court, Mullarkey Majority, Nancy Rice, TABOR, Taxpayer's Bill of Rights, Telluride Land Grab, unjust justices

Never before in Colorado history has so much attention been paid to the extremely important issue of judicial retention elections - and, as citizens across Colorado are discovering, the attention is long overdue.

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.

Awareness is also growing that the system of “judicial performance evaluations” by a select few (10) politically connected individuals on the State Commission on Judicial Performance, with members appointed by the Governor (3), Senate President (2), House Speaker (2), and Chief Justice (3) (talk about the fox watching the henhouse!) has consistently served more to protect incumbents (recommending “retention” for 98.5% of judicial reviews!) than to provide substantive, useful information to the public to enable them to exercise their rights as informed citizens to hold our judiciary accountable.

Defenders of this status quo - advocates of keeping the public in the dark about the actual performance of the Colorado judiciary, particularly our highest court, have already fired off the first salvos (“Criticism of retiring Judge (sic) Mullarkey unfair”).  Our response to this attempt to pull the wool over the eyes of Colorado voters (Accountability, Transparency apply to the Colorado Supreme Court, too) - published (in abbreviated form) in the Denver Post as “Demand accountability from judges, too” has triggered a lively discussion, on the pages of the Post (”readers respond” with comments, and “more reader response” later in the week) and elsewhere.

The latest edition of the Colorado Statesman examines the issue of judicial retention in greater detail (”Judges up for retention face widespread scrutiny this year“).  Beginning with an overview of the retention election process and timelines (including the terms of office for various levels of the judiciary - for the Colorado Supreme Court, the term is 10 years), the article continues with a description of the “evaluation” and review process and the “players” in that process:

Judicial evaluations are governed by the State Commission on Judicial Performance. …

The state commission is made up of ten members; four attorneys and six non-attorneys. Members, who serve four-year terms, are appointed by the Chief Justice, governor, Senate President and Speaker of the House.

The article summarizes the evaluation process, and notes some of the statistics demonstrating it’s lack of rigor and effectiveness:

At the end of the process, each evaluation produces a narrative for the ballot and the Legislative Council Blue Book, which recommends that the judge be retained, not be retained or that the commission has no opinion on retention. The evaluations will also be available on August 3 on the website of the Office of Judicial Performance Evaluation (www.coloradojudicialperformance.gov/index.cfm).

Since judicial retention evaluations began in 1988, there have been 953 judges on the ballot. Fifteen got recommendations against retention and 10 got “no opinion.” Another seven were voted out. In the last retention election in 2008, 102 out of 103 judges were retained by voter approval.

The article goes on to note that “Commission members must read the opinions written by judges when they do the evaluations.  Unfortunately, the article also put out some apparent misinformation, quoting the commission’s current chair (Paul Farley) that “rules requiring the reading of every opinion put too much of a burden on the members.”  Farley appears to be angling for a job, or at least fishing for sympathy, because there is no such requirement in the rules - in fact, the commission must read only 5 opinions submitted by the justice being reviewed, plus another five selected by the commission.  The commission’s Rule 11 (e) states:

“(e) Each appellate judge or justice shall submit to the state commission five opinions he or she authored, including both civil and criminal cases, at least one separate concurrence or dissent, and in the case of a judge of the court of appeals, at least one unpublished opinion. The state commission shall review the decisions, as well as five additional opinions authored by the appellate judge or justice, for compliance with the statutory criteria for legal knowledge and for adherence to the record, clarity of expression, logical reasoning, and application of the law to the facts presented.

Farley also presents the false analogy of playing the numbers game, suggesting that “majority rules” in evaluating decisions “by the numbers”:

One case where a judge may “miss the mark” in ten years “doesn’t tell us much,” Farley said. In a situation where one opinion may be viewed negatively “we wouldn’t say it was a terrible judge who should be thrown out. You’d want to see a trend - a judge who misses the mark over a period of time,” Farley said.

Clear The Bench Colorado agrees completely that only a consistent pattern of violating the Constitution and the rule of law should provide grounds for removal - but rejects the false notion that we should give justices a “pass” on significant violations.  Our analysis has highlighted several (not “one or two”) decisions that have the most impact on Colorado citizens and the state as a whole, and that have most blatantly and egregiously violated the clear language of the Colorado Constitution.  The fact that the “Supremes” might get it right on several less broadly consequential cases does NOT excuse the fact that on the most impactful cases, dealing with core issues of constitutional law and affecting the entire population of the state, the current majority has repeatedly come down on the wrong side of the law and violated your rights under the Colorado Constitution.

The Colorado Statesman article concludes with a critique of the lack of public participation and transparency in the review process (which operates almost entirely behind closed doors, shielding the evaluations from public scrutiny, blocking public participation, and necessarily undermining confidence in the system’s impartiality and accountability).  Clear the Bench Colorado Director Matt Arnold was interviewed for the article:

Arnold said he is less concerned about the performance evaluation process at the lower court levels. “You have more public input at [those levels],” he said. For those judges, there’s more public input, a larger sample size and more opportunities for a broad range of public participation.

But in general, Arnold said there isn’t enough public participation and transparency in the process. All documentation and deliberations are secret, he said, which creates a “fatal flaw. For a system that supports transparency it fails miserably.”

Part of the problem is the rules of the commission, which Arnold says limits what members can consider and can put out for the public. Arnold said the same people who evaluate the judges or justices often have business before them, and in the case of the Colorado Supreme Court, at least one member is appointed by the Chief Justice who then can take part in the evaluation of that justice’s performance.

Arnold said that under the commission rules, the judges and justices can “cherry-pick” five of the cases for review, and the last five are sometimes recommended by the judges and justices, too. In addition, those under review have the opportunity to review the critiques from surveys and commissioner input and then weigh in on those reviews. “It’s like giving your job review and rewriting it before it becomes official,” Arnold said. “That cries out for reform.”

Arnold notes that the state commission is required by rule to look at issues for appellate judges and justices that have little to do with the judge’s adherence to the constitution and the rule of law, Arnold explained. That includes whether the judge runs a neat and orderly courtroom, whether the judge is on time for hearings and has an “appropriate demeanor. It’s like a kindergarten report card, not a professional review.”

Finally, the Blue Book itself gives short shrift to the performance evaluation, according to Arnold. Each judge is described by five paragraphs, only one of which is on judge’s performance. The last four paragraphs list biographical information, the commission’s recommendation and other matters that are not germane to performance, such as volunteer work. In a recent column on his website (www.clearthebenchcolorado.org/) Arnold said the Blue Book analysis is “so watered-down and lacking in substance that it’s almost impossible to make any distinction between ‘excellent’ and ‘poor’ judicial performance.”

Arnold said he would like to see the review process include more opportunity for public input. “There’s very little opportunity for independent review in a process that is very insular,” he said. Arnold is also troubled by how commissioners are chosen - as political appointees and “largely beholden to the people who put them there in the first place. It undermines credibility and transparency and that’s not public accountability.”

“I like the idea of a performance review,” Arnold said. The problem is “the process is too closed…it’s like the fox guarding the hen house.”

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 your contributions - and vote “NO” on giving these unjust justices another 10-year term!

Tags: Alex Martinez, Chief Justice Mullarkey, Colorado Constitution, Colorado Courts, Colorado Judges, Colorado Mill Levy, Colorado Politics, Colorado Statesman, Colorado Supreme Court, Denver Post, eminent domain abuse, judical activism, judicial accountability, judicial evaluation, judicial performance, Judicial Performance Review Commission, judicial retention, judicial usurpation, legislative redistricting, Mary Mullarkey, Mary-mandering, Michael Bender, Mill Levy Tax Colorado, Mill Levy Tax Freeze, Mullarkey Court, Mullarkey Majority, Nancy Rice, State Commission on Judicial Performance, TABOR, Taxpayer's Bill of Rights, Telluride Land Grab, unjust justices

The politically motivated attack (er, “complaint”) by complaint factory “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) against Clear The Bench Colorado reached a new low this week when CEW (pronounced “sue” - it’s what they do) Director Luis Toro attempted to file a subpoena (appearance to testify) for a date on which he knew in advance of filing that the subject (Clear The Bench Colorado Director Matt Arnold) would be unavailable due to performance of military service out of state.  Such behavior is utterly despicable and beneath contempt - and may constitute harassment and breach of legal ethical standards.

How did CEW (pronounced “sue” - it’s what they do) Director Luis Toro know this in advance of filing?  Simple - because we told him, at the conclusion of nearly three hours of being harangued in a deposition this Monday (mentioning that I would be out of town the following week for my annual military training obligation).  Toro’s co-counsel Aaron Goldhamer (of Sherman & Howard, LLC) graciously expressed his thanks for my service, while Toro was conspicuously silent (apparently, my hearing was insufficiently acute to pick up on the gears grinding behind his beady little eyes as he devised his next opportunity for harassment).

For those of our readers who have never experienced the dubious pleasure of being the subject of a legal ‘deposition’ (hopefully most of you), allow me to briefly describe the process (somewhat akin to an EPW interrogation, but without forced sleep deprivation (other than any prep time) or stress positions, (other than wearing a coat & tie).

Like an interrogator, the opposing attorney gets to ask all the questions.  Often the attorney will ask the same question, repeatedly (perhaps changing the phrasing, or putting it in a different context) in an attempt to catch (or create) an inconsistency in the response.  The respondent is not allowed to challenge the line of questioning, or ask “why do you want to know?” (although the respondent’s attorney may raise objections as to relevance and scope of particular questions or line of argument).  Also like an interrogation, the respondent can be compelled to answer (albeit by legal, rather than physical, force).

Going through CEW’s interrogation (er, deposition) was an interesting experience. CEW (pronounced “sue” - it’s what they do) Director Luis Toro did indeed spend a lot of time asking questions to which he already knew (or had previously received) the answer; over the course of the deposition, his frustration with my consistent responses (including documented references) became increasingly apparent.  Toro then resorted to the ol’ “restate the answer the way I want it” game (”So what you said was X” when the actual statement was Y or Z).  I called him on this trick on several occasions and stated my objections to his attempts to put (false) words in my mouth (wonder how Toro’s tactics will sit with the judge reviewing the transcript?). Toro also attempted on several occasions to “go fish” for information outside the scope of what was allowable in the deposition. When he did, my attorney (I have possibly the best campaign law attorney team in the state - Scott Gessler and Mario Nicolais - in my corner) challenged Toro, who backed down each time he was invited to “call the judge” to resolve the dispute. (In poker, that’s referred to as “calling his bluff”).

The bigger picture here, however, is the abuse of campaign finance rules and regulations via suits and “complaints” by a secretly funded attack group (CEW, pronounced “sue” - it’s what they do), unaccountable to the public, with a pattern of filing frivolous, groundless, and vexatious lawsuits and “complaints” against grassroots groups and citizen initiatives in an attempt to deny popular participation in civic activity.  Attacks such as these - abusing the courts and the legal “complaint” process to drive up the cost of civic participation - further tilts the balance in favor of entrenched big-money interests and violates the constitutional rights of citizens to exercise free speech (particularly in the political arena, where those protections are most precious).

CEW’s attacks against Clear The Bench Colorado fit an ongoing pattern of unsuccessful, politically motivated “ethics” complaints designed to distract, disorient, and sling mud in the (vain) hope that something might stick.  Ultimately, they don’t care if they win or lose the case (their lopsided loss-win ratio bears this out), since their priorities are (1) smear, (2) frame the media debate and gain attention, (3) divert resources & attention, (4) intimidate, and (5) maybe (if they get lucky) occasionally win a case.  As many publications noted at the time, CEW’s attack was just another cheap political stunt.  Even the Secretary of State’s office called CEW Director Toro’s statements “disingenuous” (which is a polite way of saying, ‘lying through your teeth’).

So why is “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) still in business, despite their abysmal success rate in winning judgments? Shouldn’t they have run out of (other peoples) money by now?

Not when the “other people” funding CEW (pronounced “sue” - it’s what they do) include multi-billionaire activists Tim Gill, Pat Stryker, Jared Polis, and Rutt Bridges - facilitated by political operatives Al Yates and Mark Grueskin - and a host of other well-heeled  attorneys and politically-connected powerhouses who’s identities are kept secret because CEW won’t open their financial records to public scrutiny (in contrast to the open financial records of citizen-led accountability efforts such as Clear The Bench Colorado). Operating at the edges of public awareness (skirting transparency, public accountability, and the ragged edges of campaign finance and other laws), groups like CEW (pronounced “sue” - it’s what they do) coordinate their actions towards advancing the “progressive” agenda statewide (with significant success so far; read The Colorado Model (by Fred Barnes) and, more recently, The Blueprint (by former Rep. Rob Witwer & 9News Reporter Adam Schrager) for an analysis of the success of these groups in Colorado - and beyond).

Unfortunately, even when they lose, they win - by tying up time & talent, diverting resources, and discouraging honest people from participation in the civic arena.  Groups such as the grossly misnamed “Colorado Ethics Watch” (CEW, pronounced “sue” - it’s what they do) are a blight on the body politic, an insult to everyone who believes that citizens should be able to speak freely.

Fortunately, they can be stopped - by citizens with the courage to fight back.  Show your support today - stand up to unethical attorneys and sleazy solicitors, and contribute to help provide the resources for Clear The Bench Colorado to prevail against what are ultimately attacks on YOUR freedom.  Also, since sweet success is the best revenge - spread the word about why the four (er, three remaining) incumbent justices of the Mullarkey Majority (Michael Bender, Alex Martinez, Nancy Rice, and soon to be minus Chief Justice Mary Mullarkey) deserve a “NO” vote in November (and why CEW has been sicced on Clear The Bench Colorado to cover for special interests who benefit from keeping them on the bench).  Remember, they 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 from against eminent domain abuse, your right to fair representation in government, 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 exercise your right to vote “NO” on retaining these unjust justices on the bench for another 10-year term!

Tags: Alex Martinez, CEW (pronounced "sue" it's what they do), Chief Justice Mullarkey, Colorado Constitution, Colorado Courts, Colorado Ethics Watch, Colorado Judges, Colorado Politics, Colorado Secretary of State, Colorado Supreme Court, judicial accountability, Judicial Activism, judicial evaluation, judicial performance, judicial redistricting, judicial retention, judicial usurpation, Law Week Colorado, Luis Toro, Mary Mullarkey, Michael Bender, Mullarkey Court, Mullarkey Majority, Nancy Rice, TABOR, Taxpayer's Bill of Rights, unjust justices

Media coverage of the issues of judicial retention (both the performance review process and the upcoming November elections) and the process for reviewing and nominating applicants for judicial appointments (particularly for the Colorado Supreme Court opening created by Chief Justice Mary Mullarkey’s announcement of her intent to retire rather than be held accountable by voters in the November elections) has picked up considerably following the Denver Post’s recent publication of our response (“Demand accountability from judges, too”) to an earlier article bemoaning critiques of the courts (“Criticism of retiring Judge (sic) Mullarkey unfair”).

The Denver Post kicked off the week by acknowledging in print for the first time since February (”Four Colorado Supreme Court justices face a tough vote in elections“) that “four state Supreme Court justices [may not] survive an attempt to remove them from the bench this election” - and obliquely credited Clear The Bench Colorado with raising awareness of the issue:

This election, the group Clear the Bench Colorado is advocating voters reject all four Supreme Court justices up for retention because of rulings it believes are unconstitutional.

(Technically, only three Colorado Supreme Court justices are likely to be subject to a retention vote following Chief Justice Mullarkey’s announced intent to retire, but we’re not going to quibble).  The Denver Post story was also picked up by a number of media outlets across the state, both print and online.

Throughout the week, Law Week Colorado reported on a seeming epidemic of judges at various levels who have announced their intent to leave office rather than stand for retention this year - beginning with Colorado Court of Appeals Judge Sean Connelly (after only 2 years on the bench), followed by Larimer County Court judge Cynthia M. Hartman (also after only 2 years in office) joining the earlier announced retirement of Douglas County Court judge Michelle Ann Marker, bringing the number of announced retirements to four total (including Colorado Supreme Court Chief Justice Mary Mullarkey).  Although four announced retirements in one cycle may not seem to indicate an avalanche of impending judicial vacancies, the pace and timing of the announcements has struck several seasoned observers of the Colorado judiciary as unusual.

Curiously enough, embattled former prosecutors (and current Larimer County District Court judges) Jolene Blair and Terrence Gilmore have NOT elected to leave office, filing paperwork last week declaring intent to run for retention, and will face the voters in November.  Likewise, Colorado Supreme Court Justice Nancy Rice also announced (today) her intent to seek retention in office for another 10-year term.

Another national observer of legal news and affairs (Chicago-based Legal Newsline, a self-described “Internet-based newswire dedicated to 24/7 coverage of state supreme courts and state attorneys general”) joined in with coverage of the upcoming Colorado Supreme Court retention elections from afar (”Group wants lineup of Colorado Supreme Court radically changed“) - demonstrating the national scope of interest in the issue.  (Not to mention that Clear The Bench Colorado has been on the radar of the left-wing Huffington Post and the George Soros funded and “progressively” oriented ‘Justice At Stake’ group for several months already).

Finally, an analyst critiquing a column in yesterday’s Boulder Daily Camera (“Gunning for Guns” by Mike Ellis), which at least presented a defense of constitutional rights by someone admittedly “nervous around guns,” correctly points out (as we have indicated numerous times) that the campus gun bans at Colorado State University and the University of Colorado are matters of state law involving concealed carry (NOT, strictly speaking, 2nd Amendment issues, even following the McDonald v. Chicago “incorporation” decision) and therefore subject to ultimate decision by the Colorado Supreme Court (and not the Supreme Court of the United States).  Lose these cases here in Colorado, and you’ve lost for good.  The commenter notes:

People on both sides of the gun rights/gun control debate (and even people who aren’t particularly interested in the gun rights/gun control debate) need to be clear on what the Supreme Court’s incorporation of the Second Amendment does and doesn’t mean.  In many ways, what it does mean is something that must now be sorted out by the lower courts.  But what it doesn’t mean is very clear-it doesn’t mean that all restrictions on the possession of firearms are now null and void.

The Colorado Supreme Court may very well rule against CU’s gun ban, but it won’t be on the basis of the Second Amendment to the U.S. Constitution; it’ll be on the basis of Colorado state law.

Indeed, a large number of issues are “sorted out” by state-level courts (far more than ever ultimately make it to the Supreme Court of the United States). 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!

Tags: Alex Martinez, Chief Justice Mullarkey, Colorado Constitution, Colorado Courts, Colorado Judges, Colorado Mill Levy, Colorado Politics, Colorado Supreme Court, CU gun ban, Dirty Dozen, eminent domain abuse, judical activism, judicial accountability, judicial evaluation, Judicial Nominating Commission, judicial performance, Judicial Performance Review Commission, judicial retention, judicial usurpation, Law Week Colorado, Legal Newsline, legislative redistricting, Mary Mullarkey, Mary-mandering, Michael Bender, Mill Levy Tax Colorado, Mill Levy Tax Freeze, Mullarkey Court, Mullarkey Majority, Nancy Rice, Supreme Court Nominating Commission, TABOR, tax exemptions, Taxpayer's Bill of Rights, Telluride Land Grab, unjust justices

The discussion continues…

More readers (including a vehement critic of citizens exercising their 1st Amendment rights to evaluate judicial officeholders) have weighed in on our article (published on Friday, July 2nd under the “My Turn” header as “Demand accountability from judges, too”) in response to a June 11th article defending incumbent judges and attacking critiques of the court (“Criticism of retiring Judge (sic) Mullarkey unfair”).

Clear The Bench Colorado previously excerpted some of the most interesting comments (since Post readership is declining, you may have missed it) and invite additional comment here or on the Post’s website.  Also, the full version of the original article (the Post’s version was heavily edited for space) is available for comparison (Accountability, Transparency apply to the Colorado Supreme Court, too).

Below is our response to the several comments submitted thus far on the Denver Post website:

Judging from the overwhelming tenor of responses posted as comments to this article, a majority of Colorado citizens who are paying attention to the issue of judicial performance reviews and retention elections in this state “get it” - our courts (particularly the incumbent justices on the Colorado Supreme Court) are out of control, and need to be held accountable - to their oath to support the Constitution, uphold the rule of law, and defend (not eviscerate) the constitutional rights of Colorado citizens.

The tone of the responses and comments posted - by my count, commenters (some with multiple postings) include a dozen favorable, one opposed, one neutral-ish, and one paid hatchetman (c’mon, “Paul W.” - come clean on who hires you to troll the site and post comments - at least have the courage to post your actual name and stand behind the attacks) reflect what I’ve encountered over the last several months speaking to various civic-minded groups around the state: there’s a HUGE unrequited thirst for substantive information about the performance of our unelected (and heretofore largely unaccountable) judiciary, the critically important 3^rd branch of our system of government.

Some of the comments (particularly the attacks on Clear The Bench Colorado and its supporters, but also a few of the supportive comments) have gotten off-track, so I’ll attempt to recap the issues and address some major points.

First, to clarify: Clear The Bench Colorado is not advocating for any radical changes to our current system of judicial selection and periodic retention elections at this time.  Despite serious concerns expressed from a number of perspectives that the current system (the “Missouri Plan”) undermines accountability (and there is some merit to that argument), it is our hope that with minor reforms and (most importantly) active civic participation in the process - including information and critiques from a variety of sources and perspectives - we can defend and improve upon our existing institutions.

“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

Second, the CTBC article specifically counters the view (expressed by Thornton and other defenders of incumbent justices and the status quo) that citizens and independent groups have no right to express an opinion or critique concerning judicial performance.  Such a view runs counter to the very idea of the Citizen as sovereign that is the basis of our form of government (and our nation’s philosophical core).  Criticizing an alternative perspective as “morally and intellectually flawed” and devolving into ad hominem attacks on the messenger betray the hollowness and lack of substance of the attacker’s message.  There’s just no “there” there.

Finally, even the critics - paid attackers and otherwise - have not been able to answer my challenge to provide an example of how the “Blue Book” reports - the Judicial Performance Review Commission narratives - are in any way helpful or informative to voters in deciding how to “judge the judges.”  Citizens are advised to either uncritically accept the black-box recommendations by the closed-door, non-transparent, unaccountable, political insider-dominated process that generates the JPRC and “Blue Book” reports, or (essentially) devote their lives sitting in courtrooms and/or poring over every last one of the myriad rulings of the justices in question.  (It’s no fun, I can assure you).

The fact remains: our institutions may be worthy of preservation, but the system of judicial performance reviews has consistently failed to provide the substantive evaluations needed to inform the public.  Consideration of alternative, independent views - including critiques - is vital to ensuring accountability.  Why are CTBC’s critics so threatened by the light of this independent review?  Because they know that the citizens of Colorado, when presented with good information, will exercise their right to vote “NO” on the unjust justices of the Mullarkey Court this November.

Clear The Bench, Colorado!

Clear The Bench Colorado very much appreciates the interest and engagement demonstrated by so many of the comments submitted to the Denver Post website, and encourages further discussion - after all, it’s YOUR rights that are at stake.  Join the discussion - right here and/or on the Denver Post site.

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.”  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!

Tags: Alex Martinez, Chief Justice Mullarkey, Colorado Congressional Redistricting, Colorado Constitution, Colorado Courts, Colorado Judges, Colorado Mill Levy, Colorado Politics, Colorado redistricting, Colorado Supreme Court, Denver Newspaper Agency, Denver Post, eminent domain abuse, Face The State, judical activism, judicial accountability, judicial evaluation, judicial performance, Judicial Performance Review Commission, judicial retention, judicial usurpation, legislative redistricting, Mary Mullarkey, Mary-mandering, Michael Bender, Mill Levy Tax Colorado, Mill Levy Tax Freeze, Mullarkey Court, Mullarkey Majority, Nancy Rice, TABOR, Taxpayer's Bill of Rights, Telluride Land Grab, unjust justices

The resurgence of “We The People” in the form of local citizens banding together in grassroots civic action organizations to defend our constitutional rights is THE continuing political story of the year 2010 in America and is profoundly affecting Colorado Politics in this year and beyond…

Clear The Bench Colorado Director Matt Arnold is both proud and humbled to have been invited as a guest speaker to several such groups over the last several months - 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 - we’re back for more in 2010, most prominently at the Tax Day Tea Party rallies on April 15th.

Clear The Bench Colorado Director Matt Arnold discusses the impact of Colorado Supreme Court rulings leading to a massive expansion of government power (at the expense of YOUR constitutional rights) and vastly increased taxation (such as the “Mill Levy Tax Freeze” property tax increase, the “Dirty Dozen” tax increases and of course the Colorado Car Tax (er, “vehicle registration fee”) increase, along with the dominant role of the Colorado Supreme Court in determining the boundaries of our legislative districts (at both the State and Federal level) - deciding how YOU will be represented in Congress and in the Colorado Legislature - at the Estes Park candidate roundup today (1-3PM).

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!

Tags: Alex Martinez, Chief Justice Mullarkey, Colorado Congressional Redistricting, Colorado Constitution, Colorado Courts, Colorado Judges, Colorado Mill Levy, Colorado Politics, Colorado redistricting, Colorado Supreme Court, Dirty Dozen, Doggy Bag Tax, eminent domain abuse, judical activism, judicial accountability, judicial evaluation, judicial performance, judicial retention, judicial usurpation, legislative redistricting, Mary Mullarkey, Mary-mandering, Michael Bender, Mill Levy Tax Colorado, Mill Levy Tax Freeze, Mullarkey Court, Mullarkey Majority, Nancy Rice, TABOR, tax exemptions, Taxpayer's Bill of Rights, Tea Party Brewing, Telluride Land Grab, unjust justices

After a few weeks (and a Face The State article - ”Supreme Court’s temporary digs draw a dart from court critics“ - noting the Denver Post’s lack of critical coverage of the Colorado Supreme Court, and the issue of judicial retention elections, since the Colorado Supreme Court began paying the Denver Newspaper Agency $1.6 million in annual rent for office space in the Denver Post building) the Denver Post published our response this Friday (July 2nd) to a June 11th article defending incumbent judges and attacking critiques of the court (“Criticism of retiring Judge (sic) Mullarkey unfair”).

The guest commentary (published under the “My Turn” header as “Demand accountability from judges, too”) generated a fair amount of response and reader comments, considering its appearance at the start of the 4th of July holiday weekend.  We’ve excerpted some of the most interesting comments below (since Post readership is declining, you may have missed it) and invite additional comment here or on the Post’s website.  Also, the full version of the original article (the Post’s version was heavily edited for space) can be viewed here for purposes of comparison (Accountability, Transparency apply to the Colorado Supreme Court, too).

Comments on the Post website opened up with the obligatory salvo from the paid “trolls” who surf the comments section attempting to “spin” the message to their side:

Article Discussion: Demand accountability from judges, too

by Corndogsaredelicious on July 2nd, 2010, 9:17 am

“CTBC’s message is: Get informed, using a variety of sources. Then do your duty as citizens.”

This is inaccurate. And it exposes CTBC’s political agenda. “Clear the Bench” would otherwise be named “Get Informed Before You Vote”. All appellate court decisions are published and available for review by the public. CTBC focuses on one or two of hundreds, and hopes that you will side with its disgruntled founder’s self-interested attacks on judges that he doesn’t agree with. CTBC’s arguments are intellectually and morally flawed, and should be ignored.

The commenter (Paul W., or “corndog”) works for one of the organizations supporting the current incumbents.  Although he (correctly) points out that “all appellate court decisions are published and available for review by the public” (Clear The Bench Colorado also links to those decisions and other references in the interest of an informed electorate) he fails to mention that it is VERY difficult to find any useful information on the Colorado Supreme Court site unless you already know what you’re seeking. Clear The Bench Colorado does focus on a subset of the “hundreds” of Colorado Supreme Court cases -  we have highlighted several (not “one or two”) decisions that have the most impact on Colorado citizens and the state as a whole, and that have most blatantly and egregiously violated the clear language of the Colorado Constitution.  The fact that the “Supremes” might get it right on several cases of interest only to the parties involved does NOT excuse the fact that on the most consequential cases, dealing with core issues of constitutional law and affecting the entire population of the state, the current majority has repeatedly come down on the wrong side of the law and violated your rights.

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.

Other comments reflected citizen interest in and understanding of the importance of the judiciary in our system of government and the need for citizens to take seriously their responsibility to hold these officials accountable:

Article Discussion: Demand accountability from judges, too
by infossh on July 2nd, 2010, 11:02 am

In general, judges have become complacent and often see themselves as lifetime justices. They also assume that their role is to change the semantics of laws to accommodate what they perceive in changes of social order and understanding.

That is certainly the case in Colorado’s Supreme Court. It’s time for a renewal of commitment to the wisdom of the rule of law rather than the vagaries of whim that have come to determine judicial ruling.

Re: Article Discussion: Demand accountability from judges, too
by jpa11074 on July 2nd, 2010, 11:24 am

CTBC does a great service to those of us that believe we should be an informed electorate. Finding information on judges has historically been very difficult, and for the life of me I don’t understand why some would want to silence anyone trying to get detailed information out to the public so they can make informed decisions. That is, of course, unless they don’t want that information made available to the voters. “Yup, just tell me how to vote and don’t get me mired any of the detail.” Right.

The many, not just “one or two” decisions, CTBC has highlighted clearly show why these 4 justices should not be retained. The light of day disinfects much, and in this case, hopefully our supreme court. I just wish we had similar information easily available (judges decision records) for all of our judges….

Many comments focused on the need for transparency and accountability, with information from a variety of sources:

I Can “Judge” Just Fine, Thanks
by throatwarbler on July 2nd, 2010, 11:45 am

The remedy for speech that you don’t like is your own speech! Anyone who doesn’t like CTBC’s message is free to create their own web-site. Retainthesegoodjudges.com is probably available. By all means, go for it. I’ll be the first to go read it. I’m sure it will be interesting.

Regardless of where I get my information, I consider the source. If I get info from a lawyers group, I think about the fact that they have to work with these judges (at their mercy). I can also evaluate the “disgrunt” factor of other sources. For once, I GET TO BE THE JUDGE!

Article Discussion: Demand accountability from judges, too
by polygirl on July 2nd, 2010, 12:53 pm

It seems to me that we “the people” have the right to retain or not retain judges who make decisions that affect all of our lives. Our political system is one of accountability through the electoral process. We should know as much about these judges as we do about any other candidate for office and make an informed choice in the voting booth. Clear the Bench is doing something that should have been done a long time ago — giving more scrutiny to politically appointed lifetime judges that we have the people have a right to retain or oust.

Re: Article Discussion: Demand accountability from judges, too

by jpa11074 on July 2nd, 2010, 12:58 pm

Somehow it just doesn’t ring true that hearing from a citizen’s group highlighting judicial decisions and sharing opinions as to whether the judges are good for us, will harm us and then jump to the conclusion we’ll have only judges “hired by the most money.” Considering how typically difficult and time consuming it is to sort through court decisions, I’m delighted to have someone do some of the work for me, then follow through with my own analysis of their opinions and recommendations.

Instead of generalizations from Corndogsaredelicious, maybe he would simply tell us what his substantive argument(s) is(are) with Mr. Arnold’s and CTBC’s opinions on these justices. That would be helpful. Is it only CTBC that Corndogsaredelicious does not want to air their synthesis in public, or is it any or all citizen groups? Or just some groups? Or should we just allow the State Commission on Judicial Performance decide who to retain, and not have the voters “bother” having opinions or retention votes?

Some readers also fired back at the attacks on the notion of outside citizen’s groups having a say in evaluating the judiciary:

Re: Article Discussion: Demand accountability from judges, too

by H J Ledbetter, J.D. on July 2nd, 2010, 12:51 pm

I have done far more than research Matthew Arnold, as Paul W suggests. Paul W has clearly never met Mr. Arnold, nor informed himself of what has been going on in the Colorado Supreme Court for the last few years. I know Matt Arnold. He is a gutsy man who doesn’t mind some sniping from positions of ignorance. He has done his research, and so have I. I read the cases that these folks decided. I didn’t read them as an uninformed observer either. I read them with the foundation of more than 35 years of the practice of law behind me, including a fair number of appellate cases. What’s more, even the justices themselves are identifying some of the worst aspects of what these justices are doing. Please refer to Justice Eid’s dissent in Mesa County v Ritter. She tells it like it is. She shows just how far the majority opinion went to make sure that no vestige of TABOR remains in Colorado. The will of the people of Colorado is being tossed aside like a dirty tissue.

Beyond that, I have had a personal conversation with Justice Bender, who told me (while looking me right in the eye), that the purpose of the Colorado Supreme Court was to "make Colorado law". So, if you are a left-leaning person who believes that the justice system should be as active at law-making as the legislature, he is your guy. But if you think that laws should be made in the legislature, and applied by the courts, then maybe it is time that these four (now three) justices should find new jobs where they can be less "active" in making Colorado law that neither you nor I want.

It is about time that someone started pulling back the curtain on the mysteries that surround us in government. Thanks Matt for doing so!

Finally, some commenters provided their own analysis of several court cases (particularly the “Mill Levy Tax Freeze” case which unconstitutionally increased property taxes without a vote of the people and ripped open a loophole through which the legislature rammed through the “Dirty Dozen” tax increase bills this year) and provided additional insight into the Judicial Performance Review Commission that was the subject of the dueling Denver Post articles:

Re: Article Discussion: Demand accountability from judges, too

by PETERCOULTER on July 3rd, 2010, 9:40 am

In order to fairly assess the results of the Judicial Performance Commission (JPC) one must be familiar with it’s rules (http://www.coloradojudicialperformance.gov/) and whether they comply with their respective State Statute. (CRS 13.5.501 ) Of importance here are the rules complete absence of real public input concerning the selection of appellate and supreme court justices. In fact, in an article (http://law2.fordham.edu/publications/ar … ub8522.pdf) about the JPC, ex-Supreme Court Judge, Jean Dubofsky wrote. “The primary structural problem with the JPC is that the appointing authorities have complete control over the political make-up of the commissions, as there is no requirement for partisan balance. Thus, the commission membership depends upon the political affiliation of the appointing authorities.” followed by “Experienced commissioners tend to think that the public hearings are a waste of time.” The result being that the public now feels that activist judges are being evaluated by activist (read political) commissions. This point is highlighted by Democrat’s reaction to Mr. Arnold and the CTBC organization. Democratic party attorney Mark Grueskin has teamed up with Democrat Jean Dubofsky in an effort to offset the increasing influence of CTBC. (http://www.lawweekonline.com/tag/jean-dubofsky/) They are prohibited from doing it directly so instead they have implemented a strategy to convince the public that they can trust the recommendations of the JPC. In order to do so one has to overlook that the commissioners were appointed by a majority Democrat Legislature, Democrat Governor, and Democrat Supreme Court Justice Mullarkey*.
The results of these actions are an activist Judiciary that holds no accountability to the citizens of Colorado, a self serving “country club” mentality. It should be of no surprise then that when it gets out of control, someone like Matt Arnold and CTBC pushes back. Another example of this are ballot questions 60, 61 and 101 which in reality restore the provisions of the TABOR amendment. If not for the activist Supreme Court gutting the intent of TABOR and the citizens of Colorado; these questions would not be before the voters again. In questioning by US Senator Whitehouse, Supreme Court nominee Elena Kagan defined the relationship of politics to the Court, ”the people need to trust the Court as a non-political body.” The outcome of retention voting for justices Bender, Martinez and Rice (and also Gilmore and Blair who acted as shameless prosecutors of Tim Masters) will not only indicate the voter’s confidence in the respective judges; but also their confidence in the objectivity and recommendations of the status quo Judicial Performance Commission or those of Clear the Bench Colorado. /Peter Coulter/

Clear The Bench Colorado very much appreciates the interest and engagement demonstrated by so many of the comments submitted to the Denver Post website, and encourages further discussion - after all, it’s YOUR rights that are at stake.  Join the discussion - right here and/or on the Denver Post site.

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.”  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!

Tags: Alex Martinez, Chief Justice Mullarkey, Colorado Congressional Redistricting, Colorado Constitution, Colorado Courts, Colorado Judges, Colorado Mill Levy, Colorado Politics, Colorado redistricting, Colorado Supreme Court, Denver Newspaper Agency, Denver Post, eminent domain abuse, Face The State, judical activism, judicial accountability, judicial evaluation, judicial performance, Judicial Performance Review Commission, judicial retention, judicial usurpation, legislative redistricting, Mary Mullarkey, Mary-mandering, Michael Bender, Mill Levy Tax Colorado, Mill Levy Tax Freeze, Mullarkey Court, Mullarkey Majority, Nancy Rice, TABOR, Taxpayer's Bill of Rights, Telluride Land Grab, unjust justices