The 18th Judicial District encompasses more than 900,000 people in Arapahoe, Douglas, Elbert and Lincoln counties. The race to replace term-limited D.A. Carol Chambers has attracted much attention because the winner will be in charge of prosecuting James Eagan Holmes, who is accused of killing 12 people and wounding 58 more at an Aurora movie theater. But the two candidates, Democrat Ethan Feldman and Republican George Brauchler, carefully avoided discussion about whether they might seek a death penalty in that high-profile case, knowing that such comments might be seized upon by defense attorneys arguing that political pressures had compromised Holmes’ rights.

Speaking in general terms, both candidates voiced support for the death penalty when circumstances warrant and noted that they have had personal experience trying cases in which executions were sought, though not actually carried out.

“I will seek the death penalty in any case I think it is appropriate,” Feldman said. He noted he had handled a death penalty case as an attorney in private practice after leaving the Arapahoe County District Attorney’s staff and before being appointed as a County Judge by Gov. Roy Romer, a position to which he was re-elected five times.

Brauchler agreed, noting: “As a military prosecutor, I advocated for the pursuit of the death penalty in a homicide case to which I was assigned. I do not believe we are a safer community if we adopt a policy that regardless of the level of evil a criminal can perpetrate on the innocent among us, he or she can never forfeit their lives as punishment for their criminal conduct.”

In a discussion marked by mutual courtesy, genial humor and substantive advocacy – qualities sadly lacking in so many current political discussions – both candidates told approximately 40 business leaders that they would step up efforts to fight white collar crime.

Brauchler said the D.A.’s office needed to encourage the business community to report and prosecute crimes, especially white-collar crimes. As an assistant district attorney for 11 years in Jefferson County, Brauchler said he had learned: “Sometimes the business community is reluctant to engage law enforcement in crimes committed against them because they fear that crimes such as embezzlement or other abuses of trust would call into question the relationship of confidence they have with their customers. We’ve also seen that a lot of crime today isn’t done by a gun, but by technology. The District Attorney’s office needs to train employees to seek out more of these white collar crimes and prosecute them.”

Feldman, for his part, noted that both of his grandfathers and both of his wife’s grandfathers had been small businessmen and he had learn from them that solid law enforcement is very important to the business community.

“Business needs a safe atmosphere for its employees and its customers. Business will do better in a safe community. Businesses also want to be assured that if they are victimized, the D.A.’s office will take their problems seriously. There is currently an economic crimes unit in the D.A.’s office. It needs to be beefed up, with more attorneys and more expertise. There are many new challenges in the field of white collar crime today. Criminals in the Ukraine could steal from a business in Littleton,” Feldman said.

Both candidates stressed their experience. Brauchler, a lieutenant colonel in the U.S. Army reserve, noted that his eleven years as a deputy district attorney in Jefferson County he worked on such cases as the Columbine tragedy and the Kobe Bryant case. Additionally, he has worked as a Special Assistant U.S. Attorney, an Army prosecutor, and most recently, as the Chief of Military Justice for Fort Carson, and later, the 4th Infantry Division in Iraq.

“I was an early courtroom innovator, the first to use Power Point in a criminal trial in Jefferson County. I worked hard to excel at prosecution. I became a national trainer of prosecutors, regularly lecturing across the country for the National College of District Attorneys, the National District Attorneys Association, and state prosecution organizations from Colorado to South Carolina.” Brauchler said.

“My desire to improve courtroom advocacy and law enforcement led me to earn positions as an adjunct professor at both the CU School of Law and DU College of Law. I continue to teach the class I helped create, Litigation Technology. I am proud to continue to teach at the Jefferson County Sheriff’s Academy and Red Rocks Police Academy.”

Feldman said he was hired in 1974 as a deputy by the long-time Republican District Attorney Bob Gallagher. “‘He called me into his office and said: ‘These are the guidelines: Do the right thing. Now get to work.’ This simple principle has guided me throughout my career.”

While Feldman was assigned to the Juvenile Court, Gallagher designed a pioneering Juvenile Diversion program that would divert low-risk, minor offenders from court and instead counsel them and have them do appropriate community service.

“As the Juvenile Deputy District Attorney, I was an active participant in the design of the diversion program and the hiring of the first director and staff members. I believe that the Diversion program has been effective for decades now and I will continue it,” Feldman said.”

“Bob Gallagher always emphasized the need to respect and listen to victims, even before there was a Victim Rights constitutional amendment. While I was working on felony cases, Mr. Gallagher became one of the first District Attorneys to hire a victim/witness advocacy staff. Consequently, I had the privilege of working with victim advocates as we learned new ways to assist victims, experience that carried over to my treatment of victims while I was a judge.”

Feldman left the District Attorney’s Office for private practice in 1980. He was appointed an Arapahoe County Court Judge in 1991 by Gov. Roy Romer and served in that position for held for almost 20 years until leaving the bench on December 31, 2011 in order to run for District Attorney.

Brauchler agreed with Feldman on the importance of juvenile diversion programs to keep youthful offenders from getting a graduate education in crime by sending them to prison.

“I think we have a very good diversion program. We need to get more career expertise in the juvenile system instead of viewing it as a way station on the route to other careers,” Brauchler said.

While Democrats now have a slight registration edge in Arapahoe County, heavy Republican pluralities in Douglas, Lincoln and Elbert counties still give the district as a whole a GOP tinge. But Democrats believe Feldman, who has been endorsed by Bob Gallagher across party lines, is running a strong race. In part, Democratic hopes stem from the raucous primary that Brauchler survived against Leslie Hansen, who was the chief assistant prosecutor to Carol Chambers for years. During that primary, Brauchler was sharply critical of high staff turnover on Chambers’ watch and her office’s poor success rate in felony trials. In one mailing, he criticized “a culture of corruption” in Chambers’ office.

“No other [District Attorney’s] office in Colorado has hemorrhaged prosecutors like this one. I worked under a Democratic D.A. [Dave Thomas] in Jeffco, but we never let politics interfere with our job of doing justice. You can get more out of people by empowering them and telling them: ‘Your job is to do justice,’ ” Brauchler told the South Chamber audience.

Feldman also alluded to the high turnover of staff and attorneys under Chambers, saying, “Productivity can grow from disagreement as long as it is civil disagreement. I think that has been a problem in the current D.A.’s office. I want people committed to the idea that the purpose of the D.A.’s office is to do justice.”

You can read more about the candidates’ backgrounds and positions on issues by visiting their web sites: feldmanforda.com and georgeforda.com.

The high quality of the discussion at this forum met the expectations set by South Metro Chamber president John Brackney, who opened the debate by noting that as business people they were interested in solutions, not oratory. Board Chair Lisa D’Ambrosia, who moderated the event, also kept the discussion at a high level.

The lesson from this high-level debate amid this bombastic campaign season seems simple: When voters insist on high standards, candidates can and will meet them.

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Bob Ewegen, retired Deputy Editorial Page Editor of The Denver Post, is a veteran of 49 years in journalism. A certified paralegal, he is now Director of Research and Communications at Ellis Wright and Ewegen in Denver. A version of this article also appears in the Colorado Statesman.

The Clean Water Act prohibits discharges of any pollutant into navigable waters without a permit.  Defining navigable waters, however, has always been a critical part of Clean Water Act litigation.  The three cases mentioned above have all attempted to provide guidance regarding the definition, but have really only muddied the waters.  As Justice Scalia notes in Sackett, the Chief Justice was concerned that the Rapanos would leave interested parties without a clear understanding of navigable waters and would force them to feel their way on a case-by-case basis.  That is precisely what Justice Scalia fears is happening in Sackett.

The Sacketts are a couple of private landowners who were cited by the EPA for putting fill material in wetlands on their property that the EPA defined as being adjacent to navigable waters and, therefor, subject to the Clean Water Act.  The Sacketts maintain that their property is not subject to the Act.  When the Agency denied them a hearing, they sought relief in federal district court.  Both the district court and the court of appeals concluded that the Clean Water Act precludes judicial review of compliance orders.

The Supreme Court disagreed.  In his opinion, Justice Scalia reasons that the compliance order is a final agency action and that the Sacketts do not have an adequate remedy unless they are allowed to seek judicial review of the compliance order because they are incurring significant financial penalties while waiting to see whether they will be granted a permit from the Army Corps of Engineers.

While this opinion has significant implications for CWA cases, it is also an important case regarding judicial review of agency actions in general, affirming the principle that the Administrative Procedures Act creates a rebuttable presumption in favor of judicial review.

While Justice Scalia has provided an interesting and entertaining opinion, perhaps the best part of the decision is Justice Alito’s concurrence, in which he reveals the depths of his hatred of the Clean Water Act and calls upon Congress to do its job and amend the Act to provide reasonable definitions for the scope of the Act’s jurisdiction.  The picture painted by Alito is one in which rogue EPA employees harass innocent landowners by unreasonably applying the Clean Water Act to them and slapping them with “draconian” fines if they do not comply with arbitrary orders.  Although anyone working in this field would probably support more clarify regarding the scope of the Act, Justice Alito seems uniquely distrustful of the individuals hired to enforce the Clean Water Act.

Former Justice Rebecca Love Kourlis left the Colorado Supreme Court in 2006 to focus on judicial excellence and accountability as head of the Institute for the Advancement of the American Legal System at the University of Denver.

For ninety years after it achieved statehood in 1876, Colorado elected its judges in partisan elections. As a result, mining and other business interests had so much clout in the courtroom on high profile cases that historian Page Smith lumped the judiciary in with the corrupt executive and legislative branches in labeling Colorado’s state government “a wholly owned subsidiary of the Rockefellers and Guggenheims.”

Voters finally had enough and adopted a sweeping merit selection and retention election plan in 1966. That reform has been so successful that Colorado can now be considered “the Gold Standard” of judicial selection systems, according to Rebecca Love Kourlis, executive director of the Institute for the Advancement of the American Legal System at the University of Denver.

Kourlis, who served eleven years as a Justice of the Colorado Supreme Court before heading IAALS, told a Law Week audience at the Colorado Bar Association May 2 that Colorado is one of just 13 states plus the District of Columbia that uses an all-merit system to choose its judiciary. The other states are Alaska, Connecticut, Delaware, Hawaii, Iowa, Massachusetts, Nebraska, New Hampshire, Rhode Island, Utah, Vermont and Wyoming.
Twenty-two states still choose all their states judges in contested elections. Eleven states use a mix of appointment and election, often electing trial judges and appointing appellate judges. Maine and New Jersey fill all judgeships by gubernatorial appointment while South Carolina and Virginia stock their benches by legislative appointments.

The 1966 constitutional amendment establishing a merit selection and retention election system was a ballot initiative led by the Colorado League of Women Voters and the Colorado Bar Association, among others. Under that plan, when a vacancy occurs in any of the state’s 22 judicial districts, two or three possible replacements are nominated by a seven-member nominating commission. At least four of the seven members must be non-lawyers and no more than four may be members of the same political party. A similar bipartisan commission of 16 members fills vacancies on the Court of Appeals and the Supreme Court, which must nominate three qualified replacements.

Once the candidates have been screened and nominated, the governor has fifteen days to choose one of the nominees for the vacancy. If the governor does not act in time, the Chief Justice makes the appointment from the list of eligible nominees. After at least two years in office, a judge goes before voters who can retain or remove the judge. If the judge is not retained, the selection process starts all over again.

This system of pre-screening assures that potential judges are chosen for merit, not loyalty to political bosses or campaign contributors – as happened all too often in Colorado’s early days. But it’s not the system of merit selection alone that accounts for Colorado’s high standard of judicial excellence and integrity, Kourlis said. Equally important are efforts to assure accountability and excellence that were adopted in 1988 by the legislature.

After the 1966 reforms were adopted, reformers realized that if citizens no longer had a partisan opponent on the ballot eager to spotlight the problems of a poorly performing judge, some other system of accountability had to be adopted. Thus, the 1988 legislature set up a system of Judicial Performance Commissions, using the bipartisan format with a majority of non-lawyer members that had proven so successful in the nominating commissions.
The performance commissions evaluate all judges at the middle of their terms and before they stand for retention. Judges are evaluated on six criteria: integrity, legal knowledge, communication skills, judicial temperament, administrative performance, and service to the legal profession and the public. Surveys are sent to attorneys, jurors, non-attorney court users, court staff and other judges. The commissions also consider judges’ self-evaluations, case management data, and reviews of a judge’s decisions and opinions.

At the following retention election, the Judicial performance commission makes a recommendation to “Retain,” “Do Not Retain,” or “No Opinion.” If they are retained, Supreme Court justices then serve ten-year terms, Court of Appeals judges serve eight-year terms, District Court judges serve six-year terms and County Court judges serve four year terms.

After Kourlis’ presentation, Malia Reddick, director of the Quality Judges at the Institute for the Advancement of the American Legal System, spoke of some of the many problems in states that still use high-spending contested election. One case, Caperton v. Massey, involved a Chief Justice casting the deciding vote for a coal company that had spent $3 million to elect him to the West Virginia Supreme Court.

 Chief Judge Janice Davidson of the Colorado Court of Appeals and practicing attorneys Gene Ciancio and Theresa Spahn gave detailed accounts of how Colorado’s system works in practice. Ciancio and Spahn urged citizens to serve on the nominating and performance commissions that are the heart and soul of our “Gold Standard.” They also urged attorneys to return the evaluations they are sent of judges, to help ensure the accountability system works.

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Bob Ewegen retired from The Denver Post in 2008 after more than 36 years with the newspaper. He is now director of research and communications at the Law Office of Ellis Wright and Ewegen, LLP. His columns as well as the thoughts of attorneys Katy Ellis, Ben Wright and Misty Ewegen can also be found on the Blackacre Journal blog published by that law office at ewellp.com.  This column also appeared in The Colorado Statesman, Colorado’s leading journal of law and politics.

Denver Manager of Safety Alex Martinez

It’s a fine and righteous thing to honor past heroes of conscience such as former Gov. Ralph L. Carr, whose name will adorn Colorado’s new state judicial complex. But Denver Manager of Safety Alex Martinez believes it’s even more important to look into the future and ask what our grandchildren will think about the stands we are now taking on today’s burning issues of conscience – at a time when their moral dimensions may not be quite as clear.

Martinez spoke to an appreciative audience of attorneys and lay citizens at the Colorado Bar Association’s Law Week program at the Association’s 1900 Grant Street headquarters in Denver May 2. In an emotional and often passionate address, he tracked his own personal journey from his boyhood in Denver’s Elyria-Swansea neighborhood through a career as a public defender, county judge, district judge, and a 15-year stint on the Colorado Supreme Court before taking his current job as Denver’s manager of safety.

The force that drove Martinez all those years – a strong and personal passion for justice – was still on display during his talk. The longtime jurist said his family’s struggles in his youth inspired him to seek a career in the law.

“My dad was schizophrenic. He had psychotic breaks with police intervention. I watched my mom struggle with the Veterans Administration and Social Security to get the family assistance. My dad had been a meat-packer at Cudahy and I remember all the things she went through to try and get a $40-a-month pension for him.

“I asked ‘Why does it have to be this way? How can it be made to work better?’ ”

Martinez noted that his school years saw the transition of Denver from a racially segregated school system to one integrated by cross-town busing.

“Then, Colorado passed the Poundstone Amendment [restricting Denver annexations] which led to the current situation where Denver is surrounded by large suburban municipalities. It was a kind of social engineering to support white flight, which could not happen if we were all in one school district,” he said.

At that point, the longtime jurist paused and smiled, adding: “If you think I enjoy being able to say things like that that I would not have said from the bench – you’re right!”

As a young lawyer, Martinez gloried in working with the Public Defender’s office.

“I remember this case I tried while I was still a law student. I had this big bruiser of a client. His living as a bouncer was at stake in the assault case where I defended him. He was acquitted he gave me a big bear hug, literally lifting me in the air so I was dangling – and he cried.”

Turning to Carr, Martinez praised the late Republican governor opposing the mass round-up of Japanese-Americans on the West Coast during World War II, some of whom were relocated to a camp at Amache near Granada, Colorado. Carr defied the anti-Japanese sentiment whipped up by The Denver Post and other xenophobic media by urging Coloradans to welcome the evacuees. His courageous support for the basic rights of the Japanese-Americans are generally thought to have cost him his political career.

“When you think about Carr, you would like to think you’d have the same courage. Yet even Earl Warren, later Chief Justice of the U.S. Supreme Court, went along with the roundup of Japanese Americans as California Attorney General at the time.” Martinez noted.

“I think what we have to do is not to just ask about this injustice in the past, where you can pick a side. Look thirty, forty, fifty years into the future, when your great grandchildren will look back and question things in this era – and ask what you were doing about them.

“There are two easy targets right before our eyes today that we haven’t stepped up to challenge, that we haven’t had the courage to take on. That is, they are easy in terms of identifying them. They are incredibly hard in terms of figuring out how to address them,” Martinez said.

“One is the problem of immigration. Our immigration policy is destroying families. We are separating families and causing children to be raised without the support and the love they need.

“The other area is the over-incarceration of African-American males. Similarly, you are hurting families and their children.

“Now, those problems are hard. What you do about them, how you address them, are difficult. But these outcomes are tragic – and those are the situations that call for courage,” Martinez said.

Proceeds from Martinez’s speech went to support the Legal Aid Foundation Society of Colorado.

Bob Ewegen retired from The Denver Post in 2008 after more than 36 years with the newspaper. He is now a certified paralegal and director of research and communications at the Law Office of Ellis Wright and Ewegen, LLP. This column was originally written for the Colorado Statesman.

The Colorado Supreme Court: From left: Justice Gregory J. Hobbs Jr., Justice Monica M. Márquez, Justice Nathan B. Coats, Chief Justice Michael L. Bender, Justice Allison H. Eid, Justice Brian D. Boatright, Justice Nancy E. Rice

– Comedian Mel Brooks is famous for his line: “It’s good to be the king.” But when an irresistible optimism meets an immovable state fiscal crisis, it’s also good to be the Chief Justice of the Colorado Supreme Court.

This truth was found to be self-evident when Chief Justice Michael Bender addressed more than 220 citizens at the Colorado Judicial Institute’s 6th Annual Membership Breakfast at the Denver Athletic Club April 19. His scheduled topic was “The Crisis in the Legal Profession and for a while, he did his best to outline the problems now besetting the organized bar, the judiciary, law schools, and other elements of the state justice system.

But Bender is just not the type to emit gloom, even if the sky is overcast. Every time he listed a problem, he segued into efforts that attorneys, staff or lay citizens are doing to solve it. Finally, he recognized the cross-currents in his dialogue and simply laughed: “Being Chief Justice entitles one to choose his own agenda,” the state’s top jurist laughed, “and I choose to focus on the good things that are happening.”

“As a group, we [the legal profession] are not adequately serving the community,” the Chief Justice said. “In 56 percent of our civil cases, at least one party is not represented by a lawyer. In domestic relations cases, 70 percent of the cases have at least one pro se party.”

Pro se is a legal term for citizens handling their own cases without an attorney.

The system also faces crushing workloads, Bender noted, with about 750,000 cases filed each year. “That’s equal to all the cases filed in all the cases filed in the federal system nationwide each year,” he said.

The continued growth in cases has collided with cuts in personnel and other resources forced by Colorado’s fiscal crisis, the Chief Justice said. The result is that very few cases actually come to trial.

“In civil cases, about 99 percent are settled out of court. Even in criminal cases, only two or three percent actually come to trial,” he said.

The Colorado Judicial Institute is a private, nonpartisan citizen organization dedicated to preserving fair and impartial courts in Colorado while fostering excellence in the state’s judiciary and furthering public understanding of the legal system. The Law Office of Ellis Wright and Ewegen is a strong supporter of the judicial merit selection system and our Director of Research, Bob Ewegen, is a member of CJI’s board of directors and is also CJI’s Journalist in Residence.

Bender quoted the late U.S. Supreme Court Justice Thurgood Marshall saying: “We must never forget that the only real source of power that we as judges can tap is the respect of the people.

”Yet, the legal profession – whether in law schools, the professional bar or the judiciary itself – falls short of that lofty standard, the Chief Justice said. Some polls indicate that as much as 75 percent of the public lacks trust in the judicial decision-making process. Yet, when people are asked a similar question from a different perspective, 60 percent of the public has at least some confidence that the judiciary is doing its job.

The Chief Justice noted that the key to understanding those mixed reviews is that, “All polls show government in disfavor. The last poll I saw of Congress showed a 9 percent approval rating. There is a danger of a spillover of negative anti-government feeling to the judiciary and the legal system in general.”
Despite bearing such bad tidings, Bender was cheerful and upbeat in his presentation to the Colorado Judicial Institute members and guests.

And indeed, there are a lot of positive signs. For the first time in years, the Judiciary received its full budget request from the legislature, adding two new judges, support staff and training and hardware for the court’s expanding on-line activity that will culminate soon in its own on-line filing system for civil cases. Even with this year’s modest increase, the Judiciary will take only 3.4 percent of the state budget, Bender noted.

The Chief Justice expressed special pride in the expanded efforts to serve needy veterans by the Colorado bar. “Thirty percent of the folks you see on the street are veterans. They have a host of legal problems,” he said.

“We now have pro se centers in Adams, Denver and El Paso counties to help citizens who can’t afford an attorney. We have 66 problem-solving courts and are adding nine more. We’re increasing mentoring programs for young lawyers,” he added.

A physical manifestation of such progress in the face of difficulties is that the new state Judicial Complex is expected to open Dec. 15, with U.S. Supreme Court Associate Justice Sonia Sotomayor helping dedicate the facility.

The Chief Justice also pointed to the award-winning Our Courts program which helps explain the Colorado legal system to citizen groups. Our Courts is a joint project of the Colorado Bar Association and the Colorado Judicial Institute.

Bob Ewegen retired from The Denver Post in 2008 after more than 36 years with the newspaper and is now Director of Communications and Research at the Law Office of Ellis, Wright and Ewegen, LLP.

Once derided as "Nine Old Men," the high court now has three women: Justice Sonia Sotomayor, standing left, Justice Elana Kagan, standing right, and Justice Ruth Bader Ginsberg, seated right.

The rough reception that Deputy Solicitor General Edwin Kneedler received before the U.S. Supreme Court when he argued in behalf of the individual mandate to purchase insurance that is the core of the Patient Protection and Affordable Care Act surprised many observers.

But the sharp divide on the high tribunal came as no shock to CNN’s Jeffrey Toobin, author of the widely read: The Nine: Inside the Secret World of the Supreme Court.  He is also the author of Too Close to Call: The 36-Day Battle to Decide the 2000 Election, the definitive story of the Bush-Gore Presidential recount.

I discussed Toobin’s book with him late last year when he visited Denver.  He now believes that the U.S. Supreme Court, once viewed as being above the “political thicket,” is so deeply enmeshed in partisan issues that the most reliable predictor of its decisions is its 5-4 Republican majority.

Younger citizens whose views on the high court were forged by its 5-4 elevation of George W. Bush to the White House over Al Gore in 2000 may take that partisan bent for granted. Yet in the modern era, that partisan divide is of relatively recent origin.

To be sure, Toobin notes, the high court hasn’t always been the lofty ivory tower of popular imagination.  The court always harbored strong-minded individuals such as James C. McReynolds, an arch conservative who voted to strike down much of Franklin D. Roosevelt’s New Deal agenda.  McReynolds was a notorious anti-Semite who would leave the court’s conference room if one of the Jewish justices like Louis Brandeis or Felix Frankfurter spoke.

But for all their personal or philosophical differences,  party labels meant relatively little to the Court during the modern era ushered in by the late Chief Justice Earl Warren – himself a Republican appointed by Republican President Dwight D. Eisenhower, who also appointed liberal Democrat William Brennan.   John F. Kennedy appointed two Democrats, Arthur Goldberg and Colorado’s Byron White.  But White often cast conservative votes on the Court.

The relatively non-partisan trend continued under President Richard Nixon.  Nixon’s successful nominees were Chief Justice Warren Burger, Harry Blackmun, Lewis F. Powell Jr., and William Rehnquist.  Only Rehnquist was a consistent conservative.  The Burger court actually moved somewhat to the left of Warren in such rulings as New York Times v. Sullivan, a landmark press freedom case; Griswold v. Connecticutt,  which established a right to privacy; Miranda v. Arizona, which Toobin joked “forever changed network television” and Loving v. Virginia, striking down laws against interracial marriages. The Burger Court also authored the abortion case Roe v. Wade.

Toobin traces the trend to a more partisan court to Ronald Reagan’s election in 1980.  While Reagan’s first appointment was O’Connor, the first female justice, he allowed Attorney General Edwin Meese to vet subsequent appointments for conservative bona fides.  That produced the 1986 appointment of Antonin Scalia and the rancorous 1987 nomination of Robert Bork, which was ultimately rejected by the Senate.  Bork was replaced by Anthony Kennedy, a Republican who is now the most common swing vote between conservative Republicans Scalia, Clarence Thomas, Joseph Alito and Chief Justice John Roberts and Democrats Stephen Breyer, Ruth Bader Ginsberg, Sonia Sotomayor and Elena Kagan.  Kennedy wrote the 6-3 ruling in the 2003 Lawrence v. Texas that struck down the anti-sodomy law in Texas and 13 other states, basically legalizing same-sex sexual acts among consenting adults.

Other than their ideological differences and the record number of three women on the court, the body is remarkably homogenous, Toobin noted.  All nine justices attended Harvard or Yale.  There are six Catholics and three Jews on the court but no Protestants.  And four of the nine grew up in New York City: Scalia in Queens, Ginsberg in Brooklyn, Sotomayor in the Bronx and Kagan in Manhattan.

“Tragically, Staten Island [the fifth borough in New York City] is still without representation on the nation’s highest court,” Toobin joked.

Despite its Republican tilt, the court still sometimes displays an independence that disappoints right-wing activists.  In his Denver visit, Toobin predicted the tribunal would uphold the constitutionality of President Obama’s health care law by a 6-3 vote, with Chief Justices Roberts and Kennedy joining the Democratic justices in the majority.   After observing the hearings on the issue, he changed his mind, telling CNN viewerss he now believes the court may overturn the individual mandate that is at the heart of the health care law.

Predicting a judge’s vote based on his or her questions can be tricky, as jurists will sometimes play Devil’s Advocate.  But in the Roberts Court, Toobin believes the attitudes displayed in oral arguments often telegraph the final decision.

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After retiring from The Denver Post in 2008 after a 45-year career in Journalism,  Bob Ewegen is now director of communications and research at the Law Office of Ellis, Wright and Ewegen.

The Colorado Supreme Court just revised Chief Justice Directive 04-08, which is the Directive Concerning Court Appoints of Child and Family Investigators.  The amended directive primarily refocuses the CFI investigation on being a cost-effective tool to obtain more information about a family law case.  Among other changes, the Directive has now imposed a presumptive cap of $2,000 for the investigation and report.  The Directive distinguishes between a CFI investigation and a Parental Responsibilities Evaluation (PRE), clarifying that a PRE is expected to be more thorough and costly than a CFI investigation.

It is clear from the comments in the Directive, that the goal is to make the process more cost-effective.  A cap of $2,000, however, is likely to cause major changes in the process and will possibly threaten the quality of the reports.  Considering that CFIs are generally either attorneys or mental health professionals, their hourly rates are almost all more than $100.  A cap of $2,000 will pose significant restraints on the amount of time these professionals can devote to a report.  A typical CFI investigation often involves initial intakes with both parents, interviews with the children (if appropriate), home visits with the children at each parent’s home, telephone calls with third-party references provided by the parties, and review of pleadings and documents provided by the parties.  In addition, the CFI needs some time to create and write recommendations based on that information. 

In addition to cost changes, the new Directive also eliminates CFIs’ authority to conduct psychological testing, which is probably more appropriate as part of a Parental Responsibilities Evaluation anyway.

As a cost-sensitive attorney who is sometimes appalled at the cost of litigation, I am nevertheless deeply concerned that this cap will result in poorly written reports that will provide very little useful information for the court and the parties.  Many of the CFIs I most admire charge more than $2,000 for their initial retainer.  The changes to the Directive may well price some of the better CFIs out of the market. 

Alternatively, it may create an incentive to spend less time on the investigation and report.  Spending less time also means the process may move along faster, but it also runs the risk of decreasing the overall quality of CFI reports.  Most CFIs take their responsibility very seriously and want to prepare a quality report that reflects the reality of the family’s situation as accurately as possible.  I have serious misgivings about their ability to do so in light of the new Directive.

In the days since the Court announced the new Directive, we have seen many CFIs withdraw their names from the appointment lists.  This is largely because, in addition to capping the amount CFIs can charge, the new order appointing CFIs also eliminates their immunity from suit for their work as CFIs.  Proponents of the proposal believe it gives parents some redress in the event that a CFI files a report that results in negative consequences for the parents.  Unfortunately, it may also encourage CFIs to consider the possibility that an unhappy (and sometimes unstable) parent may sue if the CFI does not make recommendations in favor of that parent.  For some CFIs, it also means they cannot afford to remain in this practice because they would have to purchase additional insurance to protect them from suits regarding their work as CFIs.

The combination of these two major changes is already having a significant effect on CFI appointments.  I just hope the fallout does not cripple our ability to appoint CFIs in our cases.

Originally posted at http://milehighfamilylaw.com/.

While other states have been rocked by scandals involving their judicial branch, Coloradans celebrate Law Day in 2011 knowing that our time-tested merit selection, performance evaluation and retention election system of selecting judges is lauded by national experts as ensuring excellence and impartiality in our courts.

“Colorado sets a ‘gold standard’ for excellence and fairness in state courts,” says former Colorado Supreme Court Justice Rebecca Love Kourlis, who now heads the University of Denver’s Institute for the Advancement of the American Legal System.               How did such a highly respected judicial system evolve in a state where government institutions, including the judiciary, were once so corrupt that historian Page Smith described them as “wholly owned subsidiaries of the Rockefellers and Guggenheims,” who controlled Colorado’s mining and industrial interests early in the 20^th Century?  The credit goes to a visionary band of legal reformers who in 1939 launched a fight for merit selection of the Colorado judiciary.  As current Colorado Supreme Court Justice Greg Hobbs noted in a 2006 article in The Colorado Lawyer, their those efforts bore fruit in 1966, when voters adopted a Constitutional amendment that ended the old system of partisan elections for judges.

“As a result, unlike in some other states, a lawyer aspiring to become a Colorado judge need not obtain the nomination of a political party, raise funds, campaign for office, or be elected in a partisan race over a rival candidate,” Hobbs noted.  “As a result, no judge may hold office in any political party organization, or contribute to or campaign for any political party or candidate for political office.  And no litigant in a Colorado court needs to fear that the opposing party was a contributor to the judge’s campaign and enjoys special status,” Hobbes concluded.

Colorado’s squeaky-clean system is light years away from those in the 39 states that still elect at least some of their state judges in contested elections.   The worst recent example is in West Virginia, one of six states that still elects all its judges in partisan elections.

In 1998, Harman Mining Company president Hugh Caperton filed a lawsuit against the Massey Coal Company alleging that Massey fraudulently canceled a coal supply contract with Harman Mining, resulting in its going out of business. A Boone County, West Virginia, jury found in favor of Caperton and awarded $50 million in damages.   But Massey Energy CEO Don Blankenship then spent $3 million to help elect Brent Benjamin to the West Virginia Supreme Court of Appeals – while the appeal of that $50 million verdict against his company was on its way to that very court. Benjamin refused repeated calls to abstain from helping decide the case and cast the decisive vote in a pair of 3-to-2 decisions throwing out the $50 million jury verdict against Massey Energy.  Best-selling author John Grisham has said the West Virginia case inspired his 2008 legal thriller, The Appeal.

As business investments go, spending $3 million on a judge to throw out a $50 verdict is a handsome rate of return. But that particular judicial hedge fund proved a bit much for the U. S. Supreme Court, which in a 2009 5-4 ruling reviewing the Caperton case said the U.S. Constitution’s due process clause can require a state judge to recuse when a party in a case before that judge has had a “significant or disproportionate” influence on placing the judge on the court through large campaign contributions.

West Virginia’s system is far from alone.  The national Justice at Stake organization reports more than $200 million has been spend on elections for state supreme courts in the last ten years.    Voters subjected to torrents of negative ads vilifying judicial candidates can hardly avoid the cynical feeling that their court systems only represent politics by other means.

In contrast, when a vacancy on the bench occurs in Colorado, non-partisan commissions review potential replacements and nominate two or three candidates to the governor.  Once appointed, a judge serves at least two years, then goes before voters in a non-partisan retention election.  If voters decided not to give the judge a full term, the judge, the merit selection process starts over again. If retained, the judge serves a term of ten years on the Supreme Court, eight years on the Court of Appeals, six years for District Court Judges and four years for county court judges.  At the end of the term, the judge can stand for retention to another term, but may not serve in office past his or her 72nd birthday.

The merit selection system is backed by high standards for judicial conduct and performance. An independent commission on judicial discipline reviews complaints against judges and may institute disciplinary or removal proceedings for violation of the Code of Judicial Conduct. This commission also may retire a judge for disability of a permanent character interfering with performance of duties.

Colorado’ system of selecting and policing judges may not be perfect, but voters obviously believe it is far better than the political sewers where courts must convene in states such as Texas.  In 2006, voters rejected a radical term-limits proposal crafted by former Senate President John Andrews to remove all five Justices from the Colorado Supreme Court who had been appointed by Democrats while sparing the two Republican appointees.  And in 2010, voters also scorned a judicial purge effort mounted by a right-wing group calling itself “Clear the Bench.”

Reviewing the attacks on judges in other states, Bert Brandenburg, executive director of Justice at Stake, observes, “Unfortunately, the political levee that separates the courts from low and medium grade floods of political pressure is not a high one.”

But buttressed by high standards of performance and accountability, and maintained by voters who prefer fair and impartial courts to political hacks in robes, the levees protecting Colorado courts from political shenanigans are holding strong.

Bob Ewegen ended a 45-year career in journalism when he retired after 36 years at The Denver Post in 2008.   A certified paralegal, he is now Director of Research and Communications at the Mile High Law Office.

No, it’s not every day – it’s Law Day. The crowd of some 60 people who gathered at the Colorado Bar Assn. office to celebrate that event on April 18 – officially it’s observed on May 1 – were treated to a dramatic look into the roots of gender equality as the two jurists traded their robes for colonial garb and gave a dramatic reading drawn from the more than 1100 letters exchanged between what may have been the first thoroughly modern American couple, John and Abigail Adams.

The letters were written between 1762 and 1801 and begin by chronicling the courtship between the rising New England attorney and Abigail Smith. Addressing Abigail by his pet name of “Diana,” John observes, “Love sweetens life and life sometimes destroys love.”

As John is increasingly swept up in the events that will ultimately lead to open rebellion against England unfold, Abigail repeatedly brings her statesman/swain back to earth. At one point, John thunders: “The fires of patriotism should soon begin to burn!”

Abigail flirtatiously answers, “What about the other fires, John?”

Like politicians and husbands throughout the ages, John sometimes displays a public pompousness that carries over into his private life. At one point, Hobbs, in his John Adams role, reminds Rice, playing Abigail, “I promised you some time ago a catalogue of your faults.”

“Oh Dear, I was so hoping that he’d had forgotten about that,” Rice/Abigail sighs.

While praising Abigail’s “Habit of Reading, Writing and Thinking,” John goes on to list a peculiar list of faults including Abigail’s lack of mastery of cards, her refusal to learn to sing, and even her habit of crossing her legs, which he finds unseemly.

Rice/Abigail parries the critique by first shuffling cards deftly, then tossing out a few ill-formed notes before observing, “If I did sing, you would think very differently.” Then, crossing her legs defiantly, she ends the exchange by firmly ruling: “A gentleman has no business concerning himself about the legs of a lady!”

Advantage, Abigail. Thus, it comes as no surprise when Abigail escalates her own equal standing in their marriage into a call for the fair treatment of women generally. In a famous exchange that begins with Abigail’s letter to John dated March 31, 1776, she writes:

“I long to hear that you have declared an independency. And, by the way, in the new code of laws which I suppose it will be necessary for you to make, I desire you would remember the ladies and be more generous and favorable to them than your ancestors.

“Do not put such unlimited power into the hands of the husbands.

“Remember, all men would be tyrants if they could. If particular care and attention is not paid to the ladies, we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice or representation.

“That your sex are naturally tyrannical is a truth so thoroughly established as to admit of no dispute; but such of you as wish to be happy willingly give up – the harsh title of master for the more tender and endearing one of friend.”

On April 14, John replies in his patronizing best:

“As to your extraordinary code of laws, I cannot but laugh.

“We have been told that our struggle has loosened the bonds of government everywhere; that children and apprentices were disobedient; that schools and colleges were grown turbulent; that Indians slighted their guardians, and negroes grew insolent to their masters.

“But your letter was the first intimation that another tribe, more numerous and powerful than all the rest, were grown discontented.

“This is rather too coarse a compliment, but you are so saucy, I won’t blot it out.

“Depend upon it, we know better than to repeal our masculine systems. Although they are in full force, you know they are little more than theory. We dare not exert our power in its full latitude. We are obliged to go fair and softly, and, in practice, you know we are the subjects.

“We have only the name of masters, and rather than give up this, which would completely subject us to the despotism of the petticoat, I hope General Washington and all our brave heroes would fight.”

Upon receiving this insufferable answer, Rice “blows her top” — ripping off her bonnet and hurling it to the floor. While history doesn’t record Abigail’s actual reaction, the Rice portrayal seems fully in accord with this remarkable woman’s temperament. Indeed, Abigail’s frustration is still evident on May 7, 1776, when she replies to John:

“I cannot say that I think you are very generous to the ladies; for, whilst you are proclaiming peace and good-will to men, emancipating all nations, you insist upon retaining an absolute power over wives.

“But you must remember that arbitrary power is like most other things which are very hard, very liable to be broken; and, notwithstanding all your wise laws and maxims, we have it in our power, not only to free ourselves, but to subdue our masters, and without violence, throw both your natural and legal authority at our feet.”

Alas, it would be 144 years before Abigail’s prophecy was borne out with passage of the 19th Amendment giving women the right to vote. It took another 59 years before the first woman, Jean E. Dubofsky, became a justice of the Colorado Supreme Court. Since that time, five other women have been named to the court: Mary Mullarkey, Rebecca Kourlis, Rice, Allison Eid and Monica Marquez.

But while the ending of American women’s long journey to equality may not yet be in sight, there can be little doubt about its beginning – When Abigail Adams and her Colonial sisters answered the Declaration of Independence’s ringing call that “All men are created equal” by pointedly adding:“Remember the ladies!”

This article was originally written by Bob Ewegen, Director of Research and Communications, for the Colorado Statesman, where it will appear in the upcoming Special Law Day edition on May 6.