The Colorado Index

Colorado Republican Business Coalition Lunch Highlights

The Colorado Republican Business Coalition had two interesting speakers for its monthly lunch meeting today.

First, Director Matt Arnold of Clear the Bench Colorado spoke about his organization.  He spoke of three cases where he believed to be the Colorado Supreme Court’s most egregious:  Bill Ritter’s illegal property tax freeze, the Telluride Land Grab, and the redistricting decision of earlier this decade where the court redrew the lines.  His organization supports voting to not retain four Colorado Supreme Court justices in 2010.  As Colorado’s judicial retention process is a joke, I support his efforts.  However, while the Telluride case was certainly an egregious overreach of eminent domain, it was not unconstitutional (as I wrote here).

Second, Dick Wadhams, State Republican Party Chair, spoke.  His demeanor was positive.  Obviously, he believes that Democrat overreach will be their downfall over a period of time, especially in regards to the increased taxation and fees imposed on the state in flagrant violation of TABOR.  He pointed out that the Republicans gained two seats in the Colorado House, and that it was the Republican Party’s first gain of seats in that chamber since 1994.  One interesting tidbit was his belief that Governor Bill Ritter and Denver Mayor John Hickenlooper have a strained relationship.  Apparently, the Mayor wanted the US Senate seat to which Governor Bill Ritter appointed Michael Bennet.

Dick Wadhams also stated that primaries are good things and make the party stronger, as long as they are not nasty.  Therefore, I assume that he supports Tom McDowell’s State Senate bid, at least in principle.

by Civil Sense

A Pot of Untouched Money

Before the Legislature raids Pinnacol, it should look hard at the funds that the Supreme Court collects from lawyers for licenses.

I never quite figured out why those funds weren't public money.

Oh, I forgot.  The entire state government is run by lawyers for lawyers.  Those funds won't be touched.  Better to steal from businesses through Pinnacol and let them replenish the fund so that it can be raided again.

So, John Andrews Wants to Clear the Bench

Okay.

I'm a little burned out on the subject.

This weekend, I had a very dissatisfying series of email exchanges with Daniel Cole, the Gazette's new apologist for the courts.

This whole blog has been about judicial conduct and misconduct.  There must be at least 100 essays on the subject.  I write one about what he wrote in The Gazette and he appends a comment:

Arguments that I "think the system actually works a certain way" just aren't going to cut it, not when you can't produce a single sentence that actually justifies that interpretation, and not when your only attempt at a meaningful critique falls so demonstrably far of the mark. 

He is completely clueless about what I have written and attacks me because in that one critical essay about his sloppy work, I didn't include a distillation of my previous writings. Further, when I pointed that out, he didn't bother to go see what I have written.  I know because I monitored my page views all weekend.

And, yes, I was critical of what he wrote because he implied that the courts follow the law.

Along comes John Andrews, who disagrees with him.

John Andrews is paddling upstream against a strong current until the Gazette starts covering the courts honestly.

The Gazette’s Blind Spot...And How It Hurts Republicans

Democrats have been using the courts to steal elections for a decade.  All that they need to do in get the election close and go into recount mode.  The courts then help them to ignore Republican ballots while including Democrat ballots.  They always set the rules so that the counting stops when Democrats are ahead and too late for additional recounts.

This was planned in Florida in 2000.  It happened in Washington State in 2004, and in Minnesota in 2008.  In 2002, the NJ Supreme Court allowed the Democrats to switch candidates after the deadline when it became obvious that Torricelli would lose.

Could this happen in Colorado, and if it did, would the Gazette object?

The Gazette knows it has an obligation to report on government misconduct.  On January 2, Wayne Laugesen, editorial page editor, wrote that one of the press’ primary functions in our society was to report on government.

But…Does The Gazette honor that obligation when it comes to the courts?  Overwhelming evidence says it does not.  It was silent on each of the following stories:

In 2009,  Rep. Cory Gardner wrote a letter asking the Chief Justice to justify her court’s excessive partisanship in her annual speech to the legislature.  The Gazette was silent about the letter and silent about the response.

In 2007, the legislature passed a property tax “freeze.” In mid 2008, it was found unconstitutional in district court and suspended.  While TABOR requires the Supreme Court to assign TABOR issues a high priority, the Supreme Court has not ruled on the constitutionality of the freeze, but it has lifted the suspension.  It seems unlikely that it will ever rule until the media begins to criticize it. 

In 2008, a local district court judge got the highest judicial performance score in the state.  The Gazette correctly made a big deal out of the score, but was completely silent about another 4th District judge at the other end of the scale, even when that information was provided to them in the form of a guest editorial.

While the lawyers said that the judge didn’t know the law and didn’t apply it, the local judicial performance commission only told the public that the judge was soft spoken and assured the public that he had installed a new speaker system.

If you wonder why judicial performance commissions never recommend district court judges for non-retention, you should know what The Gazette knew and didn’t report when the law was being renewed in 2008:  No commissioner who votes against a judge may have future litigation moved from that judge’s courtroom.  While commissioner votes are kept secret from the public, judges can find out how each commissioner voted and retaliate in complete secrecy.  Commissioners are prohibited by law from reporting judicial misconduct.

The Supreme Court supposedly disciplines wayward lawyers.  In 2008, two prosecutors who withheld exculpatory evidence in a murder trial were “disciplined” with a “public reprimand.”  The defendant, who has since been released on DNA evidence, served ten years of a life term.  While the Rocky criticized the Court for excessively lenient treatment of the lawyers, the Gazette reported nothing.

From 2003-2007 a local lawyer stole $50,000 from eight clients and allowed a default judgment of $750,000 to be entered against another client.  This happened at a time when a local judge was actively protecting the lawyer thief from investigation and discipline by Attorney Regulation, meaning that the losses were completely preventable if the judge had done what court rules and ethics rules required.  While the attorney has been disbarred (theft being more serious than sending an innocent guy to prison for life), and The Gazette has the particulars, it has never embarrassed the judge by reporting any part of the story.

While state law requires a district judge to rule on a motion within 90 days, several local judges are reported to have taken more than a year, and one local judge took 27 months.  When a complaint was lodged to the local judicial performance commission by one victim, a judicial performance commissioner opined that the victim should “get over it.”  No thought was ever given to reporting any of this to the public.  And, The Gazette didn’t think any of this was important enough to report.

The Supreme Court is so comfortable that newspapers will not question their actions that when a former judge was accused of stealing a laptop, the state court administrator tried to divert the case to the Commission on Judicial Discipline where the former judge could get at most a reprimand.  The Gazette said nothing.

In 2007, Bill Ritter appointed a former judge to that commission, meaning that five of ten votes are controlled by judges or former judges.  The Gazette said nothing.

As for the original question, the Supreme Court has tried to manipulate elections several times this decade with redistricting, inconsistent and late one subject rulings, and a three day Carol Chambers show trial right before the 2006 election.  While the Denver papers skewered Republicans, for three consecutive days in the last two weeks before the election, the Gazette never mentioned the trial, its curious timing, curious promotion, its cost, or its outcome.

In late 2008, I requested a meeting with Wayne Laugesen to try to determine why The Gazette wouldn’t cover the courts in a way that protected the public interest.  He didn’t respond.  Last week I sent an earlier version of this and asked him if anything in it was inaccurate.  He didn’t respond.

We Republicans can only discourage the courts from stealing elections if newspapers do their jobs.  The Gazette knows what its job is but appears to have a deal with the devil.

I estimate that anyone with a house worth $200,000 will pay as much in unconstitutional real estate taxes as it costs to subscribe to the Gazette for a year.  It is legitimate to suggest that readers who are subscribers might break even simply by dropping their subscription to The Gazette.  A paper that won’t fulfill its primary function to inform the public about government misdeeds isn’t worth much to its readers.

A better solution might be to stop your subscription on the first day of every month until this situation changes  It sends a message without destroying the newspaper.

What Was Mike May Thinking?

We have a Colorado legal system that is so unaccountable that Rep Cory Gardner felt compelled to write the Chief Justice to ask her to address her excessive partisanship.  So, in this environment, who does Mike May appoint to the House Judiciary committee?

Three lawyers and a fourth member who has a career so closely tied to the legal profession that he won’t rock any boats.  The Chief Justice couldn’t have asked for more:

Ellen Roberts
Bob Gardner
Steve King
Mark Waller

Nice job, Mike.

The Bad Judgement of Kit Roupe of Colorado Springs

When I discovered that Kit Roupe was running for a legislative seat in southern El Paso County, I thought her tempermentally unqualified to be a legislator.  Even so, I resolved not to write about her until the election was over.  I didn’t want to take any of the blame if she lost narrowly.

She lost narrowly, but she did it on her own.

My dealings with Kit Roupe are limited to her service as chairman of the 4th  Judicial District Judicial Performance Commission (JPC), an outfit that individually and collectively has gone out of its way two cycles in a row to conceal information from the public about questionable judges.

A week ago, I wrote about my lawsuit in some depth.  Folks who scoured through it will find that Judge Larry Schwartz acted completely out of character for eight years.  He may claim that his actions weren’t intended to harm me, but any reasonable person will draw a different conclusion. 

In an effort to stop what can only be called gross misconduct, I made a thorough report to the local Judicial Performance Commission at the five and a half year point.  I made that report in writing after specifically asking Kit Roupe if that would be appropriate.  She told me it would be.  I spent about $500 on the report.  She has since claimed that she wanted me to appear personally, which is untrue.

It turns out that one commissioner, former councilman Herpin, didn’t read any of my report.  He assumed, as he had been brainwashed to believe, that anyone who complained about a judge was a loser who wanted to relitigate his lawsuit.  He couldn’t trouble himself to discover that my lawsuit was ongoing, and couldn’t know that I would eventually win in spite of Judge Schwartz’ best efforts.  He told me that I should get on with my life and not let this thing eat at me.  What he had failed to realize was that I had sought his help to get on with my life.  He and the commission had failed me.

A day or so before Herpin embarrassed himself, I got a love note from Kit Roupe.  It said in part:

Your continued actions are irrational and unreasonable since you expect others to agree with your position and anyone who disagrees with you is your idea of a threat to the public's interest.  Your continued witch hunt for those who don't see it your way have eliminated any possible empathy I may have had for you with regards to your position on any judge.
 
I consider any further statements, comments or phone calls from you as a direct and personal threat.

I had been working on what turned out to be Senate Bill 08-054 and was writing on this site about what I was doing at the time.  Kit Roupe wasn’t on my radar and wasn’t mentioned in the blog in that period in any meaningful way (she was in a list).  Three months before, I had called her to invite her for coffee, an invitation she turned down with the claim that she wouldn’t have time for months.  I had wanted to find out what kind of instructions commissioners were being given and I specifically told her that was the purpose of the meeting.

It is hard for me to see how anything I did or wrote could be interpreted as a “direct and personal threat.” Perhaps she thought that I was going to poison her coffee. 

I don’t think that any politician who wants to be a legislator should feel threatened when a citizen makes an honest attempt to fix broken legislation.  It will happen over and over.  A review of what was being written in this blog in the December-May time frame easily demonstrates that I was fixing legislation and nothing else.

She is correct about one thing, though.  I do think her actions were completely against the public interest. The judge was actively protecting an unethical attorney from my ethics complaints  while that same attorney was stealing from other clients and causing damage to the tune of $800,000.  The local judicial performance commission under her leadership made a knowing decision to protect the judge during the period that the judge was protecting that attorney.

Her commission hasn't learned.  This year it was presented with evidence that attorneys believe that a judge doesn't know or apply the law but only told the public that he is soft spoken.  They reassured the public that he had solved the problem by installing a new sound system!  A commission which takes its duties so unseriously is a threat to the public interest.  I doubt that many non-attorneys will disagree.

Kit Roupe volunteered to do a job to build her resume.  She muffed it.  Then she blamed the victim of her actions in the harshest way possible, throwing in a bogus claim that she was being threatened. 

If Kit Roupe wishes to respond to this blog essay, she should append a comment.  If she wants to reinvent history, though, I am very likely to do an email dump, so she needs to be certain she is correct in her claims.

Everyone Has A Story. Here's Mine

Most who are dissatisfied with legal systm are "sore losers."  I guess, since I "won" my lawsuit, I am a "sore winner."  It doesn't have quite the bite, does it?

My eight year old lawsuit finally came to a conclusion this in June.  I couldn’t begin to write about it in detail until August 26th.  In early September I started shopping the information to various public figures and the media with the condition that they couldn’t write about it until after the election

As I go into retirement, I am many hundreds of thousands of dollars poorer than I should be, and would be if the legal ethics system worked.  I am poorer than I would be if there was any fear of prosecution for perjury or obstruction of justice.  I am poorer than I would be if there was any fear of consequences on the part of a judge when he takes 27 months to make a ruling.

That is a mighty incentive for my doing what I am doing.  It is also why I will keep doing what I am doing.

Read the Introduction first.  It clears some legal hurdles and absolves my attorney.

You can decide if a Colorado Springs home builder tried to set up a scam that exploited the obvious weaknesses in the legal system.  If I were to call him a criminal, he could sue me.  I can, with impunity describe what he did.  I listed 19 different events that made it appear to be a scam, and I had more.

You can decide for yourself the level of competence of the Colorado Springs Police Department.  If you decide that the builder had a self-created motive for burglarizing my house over a period of years, then you might want to ask why the whole Colorado Springs Police Department, from the mayor down was running interference for the cop who was running interference for him. 

 You can decide if Judge Larry Schwartz tried to punish me for writing a 1996 letter and if the punishment fit the “crime,” if you think what I did was a crime.  If the treatment I got was intended as punishment, can you imagine what would happen if I got a traffic ticket?

In many ways, I am doing a public service.  Everything that happened to me could happen to any of you who read this.  Something similar will likely happen to a few of you as you inevitably go into divorce court.

Not long ago, I met with a legislator who got a copy of this as background for the real subject of the meeting.  I was asked if anything would happen to the builder.  Nothing will happen to the builder.  While continued criminal activity (if that is what it was) supposedly renews the clock on the statute of limitations, it would be pointless for me to make a complaint.

Not only will nothing happen to the builder, he will make a claim against his disbarred lawyer’s insurance and likely get everything he spent back.  I’m out about $50,000 in hard money and much more in lost opportunity costs.

Nothing will happen to the cop.

Nothing will happen to the Judge.  Lawyers protect judges, judges protect lawyers, and the general public gets the shaft.

Letter to the Legislative Council: Costing an Initiative

This is a letter to two folks who work for the legislative council regarding the costs of one version of three variations of an initiative.  Some might think this is a scare tactic.  I'm quite serious.

Dear Ms. Liddle and Mr. Porter

I approached you yesterday to find out if an initiative I might be considering could be informally costed out by your office before I submitted it.  The purpose of that letter is to formalize that question.

Attached is a summary of my life over the past eight years. I wrote it in prolix fact based style to avoid a lawsuit. I don’t really expect you to read it.

I have no interest in personal retribution or in “being made whole.”  The document was prepared solely to show how totally screwed up the legal ethics system has become and as leverage to fix it.

If you were to ask a bar association officer if anything in this makes me a “victim,” he would likely tell you that this is merely an example of “judicial independence. By definition, he would tell you, no one can be a “victim” of judicial independence no matter how much of a financial burden he must bear or how much it impacts his life.

I’m willing to accept the “judicial independence” argument as long as the legislature carries the full financial burden, and doesn’t try to foist it off on individual citizens. In 2000, a law was passed giving District judges 90 days to rule on motions and final disposition. It is a law the Supreme Court doesn’t and doesn’t want to enforce and so we get judges who feel comfortable going years without making a ruling. I know of seven examples where the delay has been more than a year. One judge retired after a lawsuit was heard without issuing a ruling meaning that the litigants paid for a meaningless trial. When a judge hits the 91^st day, why shouldn’t the legislature administratively begin to award each litigant $1,000 a day and allow the judge as much independence to take as much time as he likes?

Likewise, when a litigant tries to stop lawyer or judicial misconduct, both Attorney Regulation and Judicial discipline are quite happy to tell the litigant that they lack jurisdiction to act. A judge is free to refuse to act based on the format used even though no format or procedure for making a complaint is anywhere specified. The Judicial Performance Commission law is written in a perverse way that is intended discourage judges from disciplining unethical conduct, no matter how outrageous. The latest iteration forbids by law commission members, individually or as a group, from reporting judicial misconduct and places them in a position where secret retribution can occur if they try to recommend non retention of a judge.

Perjury and the filing of false claims and false documents is openly tolerated. The biggest liar is, often as not, the biggest winner with no chance of ever being a loser. Indeed, the appeals court has made it impossible for litigants damaged by these tactics to force a DA to prosecute.

The legal system has historically been used as a forum for political retribution. My lawsuit may be an example, but there are other obvious examples. Disciplinary authorities encourage misconduct with asymmetrically inappropriate penalties. Instead of requiring attorneys who handle large sums of client’s funds to be bonded or carry adequate insurance, the Supreme Court has been collecting $20/year from each attorney to fund a grossly underfunded client reimbursement fund. One woman was reportedly bilked out of a half million dollars and got back $100,000 without interest. The fund isn’t intended to cover litigants in my position.

All of these are examples of judicial independence run amok.  Most result in quantifiable damages that random litigants are currently absorbing. If the legislature wishes to endorse any or all of them, let there be an administrative system for damaged litigants to make claims against the state and allow the state to absorb the costs of this level of judicial independence. If the state wishes to contest claims, let it absorb the costs of litigation regardless of outcome and be willing to pay triple damages if it loses.

I think that there is nothing that will focus the collective attention of the legislature on the costs of “judicial independence” like the prospect of absorbing those costs.

Others who will read this and who have talked to me know that I have two other solutions in mind and that I hope to have a public meeting to discuss them. The concepts discussed herein are fallback positions. If I can’t stir interest in my primary solution, I will be moving in this direction.

A Letter to the Rocky Mountain News

Two weeks ago, I wrote the below letter to the Rocky Mountain News intending that it be forwarded to other news organizations:

Editor, Rocky Mountain News

Sir:

I have been impressed with your coverage of the Colorado courts for some time. I think it takes courage to do much of what you have done. You demonstrate courage while the other papers are more than willing to watch the courts mistreat the public in silence. The Denver Post, more often than not, acts as a cheerleader for, and promoter of, judicial and lawyer misconduct.

I am one of the members of the public that the courts mistreated, as you will discover by skimming the attached.  I chose the style of writing and level of detail to make it as difficult as possible for anyone to sue me for libel, but it makes it less readable.

In one way, I am unique. About three years ago, I determined that I wouldn’t ever get a fair trial. I began pushing the system so that I would eventually be able to thoroughly document that it is intentionally designed to protect lawyers and judges, but not the public. My goal was to use the data I gathered to put an easily justifiable corrective amendment on the state Constitution.

I’ve given much thought to the form that an amendment might take. Ideally, I would like to do a thoughtful amendment that transfers the constitutional authority for judicial and lawyer disciplinary rules making and enforcement to a body of non-lawyers on the theory that non-lawyers wouldn’t be predisposed to protect a profession to which they don’t belong. If “O” passes, thoughtful amendments become too expensive and too risky to attempt.

My second thought is to leave the system intact but to tax the legal profession AND the media sufficiently heavily that people like me can be made whole while the level of judicial independence (or irresponsibility) that most of the media seems to prefer remains intact. It would be almost impossible for the courts to set such a system aside. If cleverly enough designed, the courts couldn’t minimize the damages, and it couldn’t be demagoged. The writers and supporters of Ref O seem to prefer very simple language. I think it would be ironic if they are the first to pay a heavy price for that simplicity.

My third thought would be to put a simple one sentence amendment on the ballot stripping judges and justices of immunity from civil suit if they fail to protect the public from misconduct. That is too easily demagoged, and the Denver Post would do so in a heartbeat. Besides, there are a lot of people who are damaged by the system who lack the money to sue a judge or justice.

Since I have provided the other two major papers with a copy of this, though with different cover letters, I thought I might send it along for your information. The information in the attachments is embargoed until after the election, although I intend to put this cover letter up on my blog. Please provide a copy to any media professional organizations that might be interested as the tax burden will be thoroughly spread. I expect it to be quite large until everyone, lawyers and the media decides it is in their interest to protect the public.

I really regret that it must include a news organization like yours given your history of being quite responsible in your reporting on and editorializing about the courts. Ref O will push people in really stupid, simplistic directions, and this is one of them.

You are free, and indeed encouraged to scatter this letter far and wide as long as every recipient understands that the information in the enclosures is not to be published in any form until after the election.

The attachment was the long version of this earlier post.  The full version will be published after the election.  The attachment also included a letter to two staffers at legislative council.

Why The Media Should Help Pay

Those who have been following this blog of late have likely discovered that I have a lot of evidence that the legal ethics system in Colorado is completely broken, and that I intend that it be fixed. 

There are two professions in Colorado which must carry the blame for that breakdown, the lawyers and the media.  This essay is about the media.

The lawyers, like any other profession, find it inconvenient to follow any rules and want to avoid punishment when they break what few rules they pretend to have.  Since they control the rule making and rule enforcement machinery, that is very easy to do.  A group of five year old children would want the system of self regulation that they have imposed on themselves.

More insidious are members of the media who go to journalism school in the hope that they can change the world.  The easiest way to change the world is through the courts.  Journalists of all political persuasions too often succumb to the temptation to publicly promote some court action that is plainly beyond the limited power of the court system.  They are promoting lawlessness in the courts.

If you want some quick examples, I have them: 

Not many months ago the Colorado Springs Gazette publicly wished that the courts could allow just anyone to file a lawsuit regarding the terrorist surveillance system.  They wanted to let the courts fish around in the issue without any proof that any plaintiff had been damaged.  The US Constitution is quite plain in its prohibition of this kind of lawsuit, something the editors of the Gazette had overlooked.

The Pueblo Chieftain routinely tries to use the courts to stop the Southern Delivery System.  When it should be encouraging the Chief Judge of that judicial district to make apolitical appointments that impact SDS, it does the opposite.  The publisher obviously thinks that little bit of lawlessness he is promoting will be limited to SDS and won't spread.

The Denver Post routinely promotes and celebrates court lawlessness.  Yesterday, Bob Ewegen was  wrapping himself in the flag.  He needs to do that.  If I could pick the one Colorado journalist who has promoted court lawlessness more often than any other, it would be Bob Ewegen.  The examples are too numerous to list.

Journalists never seem to consider that the lawlessness that they are promoting won't be limited to their pet issue of the moment.  Or...maybe they do.  Most journalists are so anxious to promote their pet project that they are quite willing to overlook the damage the legal profession is doing to ordinary citizens. 

Yes, the Rocky Mountain News publicly objected to the "kid glove" treatment that the two judges got from Attorney Regulation when they railroaded Tim  Masters into a life prison sentence by withholding evidence.  No other paper has done so.

The Supreme Court is running a little insurance scam that allows lawyers to pay $20/year in lieu of requiring them to pay for real liability insurance.  No newspaper ever objected when a little old lady has a half million dollars stolen from her by a lawyer and gets $100,000 back from the Supreme Court.  No newspaper ever objects when that same fund fully reimburses victims from Pueblo when a Pueblo attorney defrauds them but doesn't fully reimburse victims of a Colorado Springs attorney.  If one reads their justification, their decision was based on social engineering...and politics.

We have the ludicrous situation where liberals nationwide are touting their strategy of keeping items off the ballot through litigation.  Here in Colorado we have Mark Grueskin doing the dirty work.  Face the State provided this:

[ Mark ] Grueskin dismisses suggestions that his complaints are frivolous. “I have an ethical obligation to file complaints that are well grounded, and I try to live up to that obligation in everything I do,” he said.

And yet, he hasn't won a single lawsuit or very many points within the lawsuits.  No newspaper has decried the tactic or even reported on it, even when Mark Grueskin admits in a left handed way that what he is doing violates the ethics rules. 

I've been critical of a legislature which can pass a totally anti-public judicial performance commission law without a dissenting vote, but who can blame the legislators?  Legislators, as much as any other group of citizens, rely on the media to inform their decisions.  When the media goes out of its way to be uninformative (always) and deceptive (often) about the ineffectiveness of the legal ethics machinery and the self serving attitude of those who administer it, it is hard to blame the legislature when its members are uninformed and unconcerned.

The media has done more than its share to create this lawlessness problem.  Why should its organizations avoid having to pay to fix it?