Category Archives: Colorado Supreme Court

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.


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.