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As Sean is doing some great work in his spare time, the question becomes why did it take this so long to surface?

We see this and more at www.USAjudges.com.

Ultimately it's going to be the attorneys who will step up and do the right thing.

Do you honestly expect attorneys to step up and clean up this mess? Attorneys are the ultimate disproof of evolution -- how a sentient being can exist without benefit of a spine.

Prominent Republican lawyer and maven of morality Dan Caplis hosts a local radio show on one of our extremely right-wing Clear Channel outlets, and as was to be expected, he went ballistic on Eliot Spitzer Monday. But when a caller confronted him regarding Judge "Naughty," his spine collapsed in record time:

"First and foremost, I'm a trial lawyer, and my obligation is to my clients. And that's why there are going to be times when a judge -- a local judge -- deserves criticism and I won't offer it on-air, because I don't want to compromise my clients' interests."

His radio partner, former district attorney and Democrat Craig Silverman, agreed:

"[B]ut we're also attorneys, and we don't know when a case bars, or one of our partners is going to be in front of Judge Nottingham, so if you perceive a little hesitancy on my part, that it accurate. ... For me personally, it is sort of dicey for me to be talking about Judge Nottingham -- it's a delicate situation for Denver lawyers."

What their remarks say about our local courts -- and our bar in particular -- is positively damning. Local attorneys refuse to criticize local judges publicly because they know that local judges only follow the law when it takes them exactly where they want to go. And thus by implication, the Constitution and Bill of Rights are completely null and void in Colorado because our judges, like Captain Barbossa in Pirates of the Caribbean, see "the [United States] Code" as more like "guidelines."

Spitzer West: The Colorado Cover-up
http://www.dailykos.com/story/2008/3/12/8255/89438

Dear Robin Hood:

Enjoyed your post, but, as an attorney, I must dispute your suggestion we are all spineless. On this point, my record, and those of many others, speak for themselves.

The real difficulty with our judicial system lies in the vastly increased degree to which the corruption of our political system by legalized bribery, a/k/a campaign finance, corrupts the nomination and selection process. The nomination process is broken.

Only those who can afford to "pay to play", i.e., large donors to the Democrat and Republican parties, have any meaningful influence. Hence, their errand boys in Congress and the private bar (e.g., Norm Brownstein, Steve Farber, and Mike Norton) control the selection of judges in Colorado.

The inevitable result is that, more often than not, only lawyers sympathetic to Big Business or Big Government, and hostile to the rights or interests of average citizens, are nominated. The likelihood an attorney who has consistently demonstrated an unwillingness to "go along to get along" will be nominated is minimal.

Both parties seek to nominate judges who will distort the Constitution or statutes to suit the interests of their biggest contributors.

Leftists prefer judges who interpret the Constitution to expand the power of government in certain areas while limiting it in others, all in the guise of treating the Constitution as a "living document".

Likewise, "conservatives" prefer "strict construction" only when it results in an expedient result. When the language of the Constitution or a Congressional enactment is inconvenient, they are all too happy to see it ignored, or effectively repealed by judicial fiat.

In states in which plaintiff's lawyers exercise much greater political power through their contributions, the situation tends to be much different. Lawyers hostile to business are more often than not nominated or elected.

The irony in this situation is that, though he is hardly a friend of the little guy, and is often quite undeniably a mean-spirited son-of-a-bitch, Judge Nottingham is an enormously capable judge who, in terms of his judicial predilections and handling of trials, is less deserving of opprobrium than some of his colleagues on the federal bench.

I often disagree with his rulings, but they are normally rooted in an arguably fair, though circumscribed, reading of the law. I am always deeply impressed by his intellectual firepower. He is an excellent trial judge, though it appears he is not unwilling to abuse his power before or after to shape result he prefers. He did a marvelous job of handling the complexities of the Nacchio trial, and ensured that Nacchio got a very fair trial in which the prosecutors were kept on a very short leash. I suspect it is precisely because Nacchio has very powerful friends and sympathizers that Nottingham is taking so much heat.

Were the greatest offense to our system of laws by a Colorado judge a weakness for the pleasures of the flesh, we would live in a judicial paradise. Far greater offenses to the law and the truth have been committed by judges here and elsewhere, but are seldom the subject of public exposure or outrage.

Fortunately, my theory of economic determinism in the selection of judges doesn't always work out. Some judges become great surprises once they ascend to the bench, and disappoint those who expected them to do their bidding.

We in Colorado should, overall, consider ourselves lucky that, for at least one bright, shining moment (after Finesilver and before some more recent atrocities), gifted, incorruptible, and fair-minded men like John Kane and Richard Matsch were willing to give up very successful practices to serve with great distinction as judges.

I think such men and women still are still ready willing and able to serve, but are much less likely to be nominated because they can't be counted on to "play ball".

Regards,
Mark Brennan

Robin Hood tends to paint with a black & white brush, on occasion. There are many lawyers I admire for their courage and unwavering commitment to ideals that many others abandoned long ago.

I do, however, disagree with Brennan's adulation of Nottingham on any basis: While I fully agree that judges should be accountable on the bench for the disregard of the Rule of Law and/or their Oath of Office (rather than peccadilloes off the bench), Nottingham is guilty of both:

As if to validate his prognostication that, "If it is perceived that there is one law for the rich and another for everyone else, the law will ultimately fall into disrespect," Nottingham has run a courtroom where the Joe Nacchios and U.S. attorneys of the world have full access to a well-run justice system, whereas no-name fellows get shown the door, without regard for the merit of their cases. He has time, according to his ex-wife, to surf porn sites from chambers, but none to read no-name litigants' briefs.

I greatly appreciate Brennan's thoughtful consideration of the complexities of this problem, which are difficult to articulate. I'll do my best here:

What bothers me most about our legal system, it's that someone like Suzanne Shell, for example, can't go about her daily life, which --in her case-- includes operating a Web site or engaging in the “dangerous” activity of expressing [purportedly First-Amendment-protected] unpopular opinions, without fear of being sued, because of her unique knowledge that all the statutes and case law that apply to such activities might have no application or meaning to her if she's pro se or penniless when and if she gets sued.

It is disquieting that I spend so much time learning the law in order to guide my own actions (and, one day, as a lawyer, to guide the actions of my clients), only to know that this information may have been learned in vain, because I may or may not be permitted to rely on it (or, rather, it may or may not withheld from applying to me or my client[s]) at some future time. The reason this is so is not because of judges who make the law ("judicial activism") but, rather, who believe that they are a surrogate for the law and thusly decide a case according to his or her whims, guided by motives that are unknown to us.

“Lawless judicial conduct -- the administration, in disregard of the law, of a personal brand of justice in which the judge becomes a law unto himself -- is as threatening to the concept of government under law as is the loss of judicial independence.” In re Ross, 428 A.2d 858, 861 (Me. 1981).

To illustrate the point, my erstwhile attorney, Karen Renne, Ph.D., explained that she was getting out of the business because she had become so disgusted with judges in domestic relations cases, who —very early in the proceedings— made up their mind about who would prevail and who would not. It mattered not what facts or evidence was thereafter presented or what the law prescribed for those facts. All that mattered was what the judge, in his or her caprice, wanted the outcome to be.

Denver lawyer Andy Oh-Willeke laments similarly that, “Any time you walk into a court room the outcome is always in doubt, no matter how strong your case.” (See http://washparkprophet.blogspot.com/2007/06/twelve-years-in-law.html).

As noted above, it's very difficult to illustrate or expose this misconduct either at a granular (case-by-case) or generalized/anecdotal scale: I find it analogous to a Black Hole. We can't see, measure, touch or weigh the Black Hole; yet, we know it is there because of the effect that it has on its surroundings.

I can only conjecture that this culture exists because no one, including the appeals courts, admonishes or disciplines judges for deliberately misstating the facts or from deviating from the rule of law. This, in turn, is attributable —only in part— to the difficulty of perceiving and/or establishing that such mischief was at work (as opposed to a sincere (albeit erroneous) interpretation of the law or the norm for a common-law or equitable outcome). After all, as the Colorado Supreme Court reminded us, "'Prejudice' is not easily defined. Since it is a mental condition or status ---a certain 'bent of mind'--- it cannot be demonstrated, ordinarily, by direct proof." 629 P.2d 1055, 1057 (Colo. 1981).

In a legal context, the Black Hole analogy translates into a judge preventing one from speaking or presenting evidence; preventing one from having prior notice of the grounds upon which the case will be decided; deliberately misstating the facts of the case to achieve a particular outcome; fabricating certain facts of the case (not alleged in the pleadings or elsewhere in the record) to achieve a particular outcome; advocating for one party (often times, the state, by a federal judge or magistrate, who was once a state judge) by contriving arguments that were that party's responsibility to contrive; misapplying the law (usually precedents) to the facts of the case to achieve a particular outcome; consistently bending the rules to favor one party to achieve a particular outcome, while holding the other party to a hyper-technical standard; charging one party with attorney fees for the filing of *any* claim or defense; mocking, defaming and denigrating litigants, who are helpless to respond to defamatory published opinions or court orders, and who will experience those remarks used against them for the rest of their lives, etc.

Incident to the illusory and unpredictable outcome of litigation is the farce that is our regulatory ethics system, such as the Colorado Supreme Court Office of Attorney Regulation Counsel, the Colorado Commission on Judicial Discipline, the State Board of Psychologists Examiners, and the self-governing federal judicial misconduct policy and procedure. These systems exist to provide the illusion of protecting the public from ethics violations when, in reality, they seem to exist to protect the profession they are chartered to regulate.

The results, both predictable and intended, are twofold: the right of meaningful access to court is deprived of most individuals and, with it, the opportunity for legal redress of injury and for entrée to a prime mechanism by which to effect alteration in the law itself. Second, the experience exacts a toll, financially and in personal reputation, and therefore emotionally, so that the litigant’s life is permanently and profoundly altered.

With all respect, Mark, while there are a few rebels in every Bar who do take their oaths seriously, their voices are overborne by the solons of servility who haunt it. It is the Bar as a collective entity which deserves the rebuke I deliver: Those who know the good they should do, and do it not, have sinned. James 4:17.

I strenuously doubt that we will live to see another John Kane nominated to the Colorado bench in our lifetime, for reasons you have accurately explained. But the main problem with Judge Nottingham is his unwillingness to bring his "A" game to every case. By way of example, consider this excerpt from another judicial misconduct complaint (available at http://www.knowyourcourts.com/FedJD/docs/2008-03-19_fifthEthicsComplaint.pdf):

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"While no judge should ever be subjected to professional discipline for an honest mistake, the actions of Judges Anderson, Barrett, and Briscoe in Smith v. Mullarkey, 67 Fed.Appx. 535 (10th Cir. Jun. 11, 2003) cannot possibly be so characterized. In that opinion, Judge Anderson made the following admission:

[Smith] filed a complaint in federal district court setting forth twenty claims for relief for alleged violations of federal law and of plaintiff’s constitutional rights. Plaintiff sought declarations that the Colorado bar admission process and certain admissions rules were unconstitutional…

Smith v. Mullarkey, slip op. at 4 (emphasis added).

From there, proper judicial analysis is reduced to a simple syllogism: If condition X (a state bar applicant challenges the facial constitutionality of a state bar admission rule) is true, then Y (a federal district court must hear his claim, District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-83 (1983); Roe v. Ogden, 253 F.3d 1225 (10th Cir. 2001)). Condition X is true (a fact the Tenth Circuit panel admitted in the highlighted text). Therefore, Y (a federal district court must hear that claim). In defiance of this simple and irrefutable logic, the Tenth Circuit panel wrote “designer law,” applicable to one litigant and one litigant only, summarily denying Smith his constitutional right to challenge the constitutionality of a statute directly and uniquely affecting him as a bar applicant."
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The complaint goes on to indicate that this was an appeal affirming a decision by your "enormously capable" Judge Nottingham. If he is as capable as you say, how did he blow the proper application of Rooker-Feldman? How did this case even get to appeal?

Personally, I could care less if Nottingham slept with his golden retriever. But he did lecture Joe Nacchio:

"The law in a republic such as this is in danger and cannot stand if a large portion or a significant portion of the citizens of that republic come to believe that it is not evenly enforced. That is what is meant by equal justice under the law. It is not that you get the same sentence as everyone else, of course. It is that you are treated equally.

If it is perceived that there is one law for the rich and one law for everybody else, the law will ultimately fall into disrespect."

How can you look at Smith's complaint and say with a straight face that there is just one law in Judge Nottingham's courtroom?

It shocks the conscience to see that Judge Nottingham's sexual peccadilloes are the focus of the press' ample attention, while his abuse of power on the bench is scarcely worth a casual mention.

The silence of the Bar in the face of this legal holocaust is unforgivable.

If you are going to discuss KNOWYOURCOURTS, a web site, you should realize that there is to the best of my knowledge, no registered organization of that name and that Sean Harrington is a law student in Massachusetts with a data recovery business marketing primarily to lawyers. His interest in legal reform apparently is based on his being forced to pay child support to a child he is not allowed to visit.

In rereading the 9 News article discussing their interview

http://www.9news.com/news/article.aspx?storyid=87702

with a limo driver who delivered prostitutes to Judge Nottingham reportedly for sex on 10+ occasions I noticed it says that the prostitutes were delivered to two locations. Only one location was identified--the judge's son's condo. Where was the second location? Could the 2nd location Judge Nottingham used the prostitutes have been his office in the federal court after hours? That would have been free for the Judge and would have been private enough for sex.