Category Archives: Clear the Bench

Michael Bender Named Chief Justice of Colo. Supreme Court

Colorado Supreme Court Justice Michael Bender was just voted in by his colleagues as Chief Justice, replacing the retiring Mary Mullarkey.  Bender, along with Mullarkey and Justices Nancy Rice and Alex Martinez, were the targets of a no retention effort by Clear the Bench Colorado.  The effort may  well have precipitated Mullarkey’s retirement.  And though the other three justices held on to their posts, the opposition garnered an unprecedented approximate 40 percent of the vote.

To his credit, Bender doesn’t have the usual cookie-cutter government prosecutor background (see Colorado public disgrace, DA Mark Hurlbert, here and here).    Unlike most recent appointees to the courts in Colorado and the rest of the country, Bender worked in private practice from 1979 until he was appointed to the Colorado Supreme Court in 1997.  He also did stints in the Jefferson County, Denver, and state public defender’s offices and the federal Equal Employment Opportunity Commission.  He will officially replace Mullarkey on November 30.

Ritter Would Pick Replacements Of Any Judges Voted Out In November Election

As confirmed to me by the judicial branch almost three months ago, current Colorado Democratic governor Bill Ritter would name any replacements of judges not retained in Tuesday’s election.  (See, Article VI, Section 20 of the state constitution).  Now that Lawweek ran a story on it today, I finally felt comfortable blogging on it, as so many Republicans told me otherwise despite my having done a thorough email cross-examination of Judicial Branch Public Information Officer, Rob McCallum.

Here’s his reply to my intense questioning back on August 5:

All judges standing for retention are in the midst of a term that expires on Jan. 11, 2011.  If a judge is not retained and sits through the end of the term (which is historically the case) the nominating commission will convene following the November election and go through the process to send nominees to the Governor who will then appoint the new judge to the bench beginning on, or after, Jan 11, 2011.

If a judge is not retained by the voters and decides to immediately resign (to my knowledge this has never happened) then the nominating commission would begin its process and would have names to the Governor within 30 days of the judges departure.  The Governor would then make the appointment.

In both scenarios it would be Governor Ritter’s appointment.  [Ed:  Ritter's term similarly expires on January 11, 2011]

So much for the debate on the importance of the next governor for the current judiciary, right?.   Or is it?  Sure Ritter is going to appoint some legal losers.  He was a terrible DA and loves other terrible DAs for trial court judgeships (but so did Republican Bill Owens), and of course he will try to appoint Dems or legal establishment insiders who might as well be Dems to the Colorado Supreme Court.  But voting the bums out now  means the replacements only get a provisional two-year term, and are up for retention again then.

As  Clear the Bench Colorado Director Matt Arnold frequently pointed out when it looked like Hickenlooper was a sure bet, the judicial branch ain’t easy to change, and it’s best to take it one step at a time.  After all, it’s better to get these legal losers out now (Justices Martinez, Bender and Rice ) and have a go at the replacement in two instead of the devils-we-know in 10 years.

And while we’re at it, look carefully at your own judges.  If you look at the performance reviews read between the lines, don’t just look at the recommendation or the summary – over 99 percent receive “RETAIN” recommendations.   Under the guise of operating a merit system, the Commission on Judicial Performance operates more like the teachers unions – they get a 99 percent “retain” too.  So if your local judges sound sketchy in the least, there’s a good chance they’re legal losers too.

We need a reform that grades on a curve.  If it’s really about merit, then let’s reform the law to require the Commission give no-retain recommendations to say the bottom 10 percent.  This will force the judges out of the world of communist-like equality into a world of at least modest competition .  Besides, if the locals love their legal losers so much they are free to vote to retain those bottom-ranked judges.

We also need to make the entire evaluation process more open and transparent. We need a lot of reform, and I’ll go into more about the specifics after the election, but contrary to the straw man arguments brought up by the legal establishment, this reform can easily come within Colorado’s so-called Missouri System of appointment and retention.  No one involved in the forefront of the reform movement is advocating straight elections.

Meanwhile, vote down the three Supreme Court justices on the ballot, and urge everyone you know in Larimer County to vote out corrupt, evidence manufacturing district court judges Jolene Blair and Terry Gilmore.  Since January, I’ve been all over this pair of legal refuse that caused an innocent man, Tim Masters,  to sit in prison for murder for 10 years  because of exonerating evidence they withheld,  for which they were disciplined, and for which the county and city paid out a total of $10 million to Masters.  I’m thrilled  that it looks like the voters will spit on the “RETAIN” recommendations cynically handed out by the Commission on Judicial Performance.

Ritter To Appoint Lesbian Activist Deputy Atty. General Monica Marquez To Colo. Supreme Court

As anticipated, lame duck Colorado Governor Bill Ritter will appoint lesbian activist, Deputy Attorney General Monica Marquez to replace Mary Mullarkey on Colorado’s embattled Supreme Court, according to a report by the Denver Post’s top political correspondent, Lynn Bartels.

Monica Marquez ( DENVER POST-RJ SANGOSTI)

Marquez has the needed pedigree.  A law degree from Yale,  Lesbian activism, and a dad who was the first Hispanic to serve on the Colorado Court of Appeals.  We don’t know much more about Marquez or the other two finalists  as they all jointly refused to speak to the public, despite their contact information being provided for exactly that purpose.

She would be the second Hispanic to serve on the Colorado Supremes, and perhaps the only one  should Justice Alex Martinez lose his bid for retention in November.  Marquez, who obtained her law degree in 1997,  has scant experience – and almost all of it defending state government and its employees.  A much nicer photo of Marquez sporting a more stylish haircut is here, together with photos of her co-finalists. [deleted because Law week web site infected with malware]


Anyone who thinks Marquez’ votes on any of the disputed tax and other issues of legitimate concern to the public would be any different from Mary Mullarkey’s votes is delusional.

Clear the Bench Colorado may well have prompted Chief Justice Mullarkey’s resignation, and they and tireless Director Matt Arnold should be applauded for that effort.  It’s an important first step.

But until we achieve systemic change in the judicial branch, we are doing nothing more than rearranging deck chairs on the Titanic.  Worse, we fool people into believing that cosmetic cures mean something when they don’t.  Such deception will only slow reform, not aid it.  What Bill Ritter has given us appears to be a younger, more virile model of Mullarkey.

Controversial Colo. Supreme Court Chief Justice Mary Mullarkey to Step Down: Retirement May Be Prompted by Clear the Bench Movement

After 23 years sitting on the bench of the  Colorado Supreme Court , Chief Justice Mary Mullarkey, 66, decided “now was the right time to step down and pursue other interests,” according to a press release from the Colorado Judicial Branch.   Chief Juctice Mularkey is one of four justices targeted by Clear the Bench Colorado, for a no-retention vote this November.

The movement stems from votes upholding unconstitutional property tax increases and the so-called dirty dozen tax increases – a result of calling these otherwise TABOR-violating tax increases  “fees” or the elimination of “exemptions.”  Mularkey is targeted along with three other Colorado Supreme Court justices up for retention vote this November.  The other three are Justices Michael Bender, Alex Martinez, and Nancy Rice.

The Supreme Court Nominating Commission later this summer will interview applicants for the upcoming vacancy and nominate three candidates to the governor, who then will appoint a new associate justice.   Members of the court will select a new chief justice.

Unfortunately, the governor doing the appointing will still be career prosecutor, and lame-duck gubernatorial disaster, Democrat Bill Ritter.  ExPat ExLawyer will be reporting in detail on how to best get an appropriate replacement appointed for Justice Mularkey.

The root of the problem in the Colorado judiciary extends well beyond these four justices.  The retention criteria themselves are artificially limited to exclude issues that should be considered before a rubber stamp is given to the voters by the Commission on Judicial Performance. Larimer County District Court judges Jolene Blair and Terry Gilmore committed egregious prosecutorial misconduct in a murder case when they were DAs by withholding and manufacturing evidence.  That misconduct resulted in an undisputably innocent man, Tim Masters,  going to prison for 10 years, the guilty suspect likely going free, and Larimer County paying a $4.1 million dollar judgment to Masters.

Incredibly, because the misconduct was not proved until Gilmore and Blair were already appointed to the bench, the Commission on Judicial Performance deems it irrelevant to their “retention” recommendations.   The misconduct resulted in rare disciplinary action by the Colorado Supreme Court for ethical violations by a prosecutor.  Ironically, these two are free to consider a defendant’s entire life history when pronouncing their judgments.  I will be devoting a major portion of blogging effort to researching and writing about what needs to be done to make Colorado’s judiciary more accountable to the public.

Updated: Chief Justice Mullarkey’s decision now, more than six months before her actual retirement date has the following logic:  All judges up for retention in November must announce in August whether they will stand for retention.  Here’s a question.  If the Chief can wait until November 30, why not hang on a little over a month more and allow the new Governor to make the appointment?

Supreme Court Strikes Down Ban of Animal Cruelty Images: 8-1 Decision Upholds First Amendment – UPDATED for Colorado

The Supreme Court today in an 8-1 decision, struck down a law in which a man was criminally prosecuted for producing videos showing pit bulls fighting, allegedly in violations of a ban on depictions of animal cruelty.  The decision is a major First Amendment victory, as it may hold implications for overly broad content-based speech harassment laws, hate speech laws, and anti-bullying laws.  Leading First Amendment scholar, Eugene Volokh, has called content-based speech harassment laws the greatest free speech threat facing the U.S.

Chief Justice Roberts wrote for the majority in U.S. v. Stevens, with Justice Alito the sole dissenter.  The dissent in my view, mistakenly focused on the underlying animal cruelty depicted in some videos.  Such underlying behavior is illegal.  “Crush” type videos might also still be illegal, but the video at issue was not in that category, and efforts to stop illegal conduct must be narrowly applied so as not to tread on protected speech.

Eugene Volokh, aptly focuses on Chief Justice Robert’s demolition of the prosecutorial discretion arguments and the Holder Justice Department:

Not to worry, the Government says: The Executive Branch construes §48 to reach only “extreme” cruelty, and it “neither has brought nor will bring a prosecution for anything less,” The Government hits this theme hard, invoking its prosecutorial discretion several times. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.

This prosecution is itself evidence of the danger in putting faith in government representations of prosecutorial restraint. When this legislation was enacted, the Executive Branch announced that it would interpret §48 as covering only depictions “of wanton cruelty to animals designed to appeal to a prurient interest in sex.” No one suggests that the videos in this case [which involve dogfights and dogs attacking other animals] fit that description. The Government’s assurance that it will apply §48 far more restrictively than its language provides is pertinent only as an implicit acknowledgment of the potential constitutional problems with a more natural reading.

(All quotes by Chief Justice Roberts, emphasis added by Ex-Pat Ex-Lawyer).

It is critical that the public stays informed about the Constitution and the First Amendment and realizes, as the Chief Justice points out so well, it’s not about whether you like or agree with the underlying speech, and we can’t trust prosecutors or police to decide which cases they want to prosecute and which they don’t.  We wouldn’t need a First Amendment to protect speech everyone likes or agrees with.  If we wanted that, we could just become like  Canada, where conservative columnist Mark Steyn has spent $1.5 million fighting hate speech charges for criticizing Islam.

Updated  For Colorado: This law was so overbroad, it could have been used to send those

Co-Blogger Steffi Q., head of the Colorado Freedom to Bark Foundation, comments: "I support the right of humans to photograph me with a dead pheasant in my mouth."

who photograph or video hunting scenes to prison. When President Clinton signed the law in 1999, he recognized it was constitutionally overbroad but signed it anyways. The founding fathers recognized that all branches of government, not just the judicial branch, have a responsibility to  pass and enforce only laws that are constitutional.

That doesn’t mean they will attain perfection in attempting to do so,  and SCOTUS is the ultimate arbiter – but they need to try very hard.  Clinton issued a “presidential signing statement” on how he wanted the order to be enforced.  But it wasn’t binding on his own US Attorneys or future US Attorneys.  He simply should have vetoed the law, but of course liberal “animal rights” Dem constituents wouldn’t have liked that.

This same problem exists in spades in Colorado, where a lot of unconstitutional laws sit on the books and are applied, or not, depending on law enforcement, depending on the DA, depending on local judges, depending on whether the defendant is popular or has money.  The law in the Stevens case was applied against people for 10 years, and undoubtedly exerted a chilling effect on free speech rights during that period.

And of course, who can forget the “Dirty Dozen” tax increases that clearly violated the Colorado Constitution’s TABOR provision,  and where all three branches of government ignored the law.

Speech harassment laws that are unconstitutional unless very narrowly applied sit on the books now in Colorado, as observed in this Glenwood Springs incident I reported on in March.  Hopefully we’ll have a big legislative and gubernatorial shakeup in Colorado in November, and I pledge to ask every candidate whether they will make ridding the books of unconstitutional statutes (as well as merely stupid and/or outdated laws) a priority, and whether they unequivocally support Clear the Bench and will vote no-retain on the four justices targeted this November.

Colo. County Assemblies Put Republican Legislative Talent on Display: Frazier, Leonard, Ramirez, Sharf and Others in Photo Essay – UPDATED 4-12

SD 16 Candidate Tim Leonard with Precocious Two-Year Old Daughter, Isabella

Colorado Republicans held their final county assemblies yesterday, in a day dubbed Super Saturday, because of the large population counties involved, including Jefferson, Denver, Arapahoe, Adams and Boulder.  The state assembly is slated for May 21-22, in Loveland.

Robert Ramirez, a promising young candidate from Westminster set to wrest

Robert Ramirez Supporter Lends Campaign Vehicle: 1958 Chevy

HD 29 from liberal Democrat incumbent Debbie Bennefield, officially received the Republican nomination for the seat, unopposed.  Ramirez  blogged about the exciting day at the Jefferson County Assembly and posted photos, including this clever campaign vehicle.  We’ll be publishing the first part of an interview with Ramirez tomorrow.

Also having a productive day in Jefferson was state Senate District 16 candidate Tim Leonard,  the conservative Republican businessman from Evergreen, who’s already been endorsed by eight of Colorado’s 14 Republican senators.  Lynn Bartels reported, “Two-year-old Isabella Leonard waved a sign that read “Go, Daddy, Go” for her father.”  Goes to show what home schooling can achieve, as Isabella’s sign was spelled perfectly. Buddies in Boulder reported Leonard also had a big presence there,  but his opponent was MIA.

Rising Republican star Ryan Frazier, was out in force (and maybe with

Ryan Frazier with Attorney General John Suthers

special forces too) in  Adams County, and  is charged with the GOP mission of dispatching liberal Democrat Congressman Ed Perlmutter back to civilian life, with extreme prejudice. What a sweet victory that would be for Colorado.  Frazier reported having a great time in Adams County.  He and his beautiful family were all there.  Update: Ben Degrow was there and has an in-depth report, including great new poll numbers for Ryan Frazier.  Don Johnson just reported this morning about some great fundraising news for Frazier.

Lynn Bartels also reported that the brilliant House candidate, Joshua Sharf,

House Candidate and blogger Joshua Sharf

invited unaffiliated types and “thoughtful Democrats” to attend the GOP Assembly in Denver. I’ve always admired  Sharf’s  out of the box thinking. And they behaved themselves and everything. Given the definitional restriction, I wonder what the “thoughtful Democrat” turnout was.

At Businessword.com, Don Johnson ventured into the trenches as usual, this time in Arapahoe County.  Plenty of action there including a rousing speech by Attorney General John Suthers and Clear the Bench Colorado leader, Matt Arnold.
How many days is it until the November election? With the depth and strength of the current GOP Colorado crop, I can’t wait.

Colo. Governor Bill Ritter Shows DA Roots: Treats Amazon Like Criminal Defendant for Affiliate Move

Former career DA Bill Ritter, who rose above his pay grade to become a disastrous one-term governor, just set off a furor over his comments criticizing Amazon and other online retailers for taking the predictable actions of severing affiliate relations after the Dems  imposed possibly unconstitutional taxes on internet purchases by Coloradans.   Before becoming governor, Ritter had no experience in anything other than working 25 years as a prosecutor, including lending out his skills to fledgling DA Mark Hurlbert in the mishandled Kobe Bryant rape prosecution.

Apparently having never studied Econ 101 at CSU, Ritter and the Dems assumed tax increases would be all gain with no pain for Colorado.  Amazon gave them a remedial lesson, though, and he is quacking like a lame duck stranded in a cesspool.

Ritter is the first Colorado Democrat governor in 50 years to be allowed to run wild without an ankle bracelet and cavort with  Democrat majorities in both houses of the Assembly. And now he has the Colo. Supreme Court playing partisan politics too,  launching the no-retention campaign by Clear the Bench Colorado against four Dem justices this November.

Did Ritter and the Dems simply assume they could raise taxes, but demand would remain unchanged?

Ritter chimed in with this perplexing statement:

Amazon has taken a disappointing – and completely unjustified – step of ending its relationship with associates. While Amazon is blaming a new state law for its action, the fact is that Amazon is simply trying to avoid compliance with Colorado law and is unfairly punishing Colorado businesses in the process.

Let’s unpack this lawyer double-speak.  Amazon, an enterprise clearly much more accomplished than either Ritter or the Dem-controlled legislature, is “blaming” the new law for terminating its associate relationships in Colorado.  Yes, that is exactly what they’re doing.  According to the U.S. Supreme Court,  the internet tax could only be constitutionally applied within a state to companies located in the state.  Amazon is not located in the state, certain associates are, thus Amazon is severing those relationships to maintain pricing for Coloradans the same as for residents of other states.

The prosecutorially-minded Ritter seems to be acting as if Amazon is resisting arrest and obstructing justice.  No, Amazon is complying with the law by avoiding being subjected to it. Perhaps instead of the incomprehensible law of supply and demand, Ritter and the Dems might understand the point better if it’s placed in the context of a law Ritter is  probably more familiar with-misdemeanor DUI prosecutions.  Ok, Bill.  A guy out on the town drinks too much and for his own safety and that of the public, he wisely hails a cab.  Thus he is not subjected to the DUI law because he is not breaking it.  He is not “avoiding complying” with it.

Amazon hailed its own cab–a cab that  drove them safely out-of-state, and protected their Colorado retail customers. They are complying with the laws of economics and voting with their feet.  This is a predictable  practice, where businesses pick states they do business in based on how hospitable, or not, the state is to their business.

Now check out this overwrought video put on YouTube by Ritter’s co-conspirator in prosecutorial overreach-Dem State Senate Majority leader John Morse.  He should be able to understand this analogy too, as a former police officer turned legislator, he probably made lots of DUI arrests.  He has the prosecutorial finger-pointing in closing argument down so pat, he must have watched lots of Law and Order episodes.

After lambasting defendant Amazon’s crime of earning OVER $900,000,000 a YEAR, Morse makes Amazon quiver in its out-of-state walking boots, by dramatically presenting his Kindle with a Mark Twain book loaded on the page and threatening (after he’s saved enough money) to trade it in for an I-Pad.

In the background, Morse prominently displays a plaque entitled “Mental Health Legislator of the Year.”  From the looks of Morse in this video, he undoubtedly supplies this constituent group with lots of business, but appears in need of bigger doses of antidepressants and anti-anxiety meds.

H/T for the video to BenDegrow and WhoSaidYouSaid.