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Mark Grueskin, Matt Arnold tangle over judge retention: Should they stay or should they go?

mark grueskin photo.jpg
Mark Grueskin wants judges to be evaluated in a thoughtful way.
Matt Arnold doesn't shy away from a fight.

The Arnold-fronted ClearTheBenchColorado.org, an organization lobbying against the retention of four current Supreme Court justices, was recently targeted by a campaign-finance complaint from Colorado Ethics Watch. But rather than backing down, he dismissed the move as a "pathetic political ploy" to Westword and went on the offensive in a subsequent post featuring what he says is a note from the Secretary of State's office describing part of CEW's complaint as disingenuous.

The next battle? Arnold argues that a new organization being assembled by a team that includes attorney Mark Grueskin is a direct response to the success of Clear The Bench's call to throw the bums out -- a claim that Grueskin sees as ego-driven.

According to Grueskin, who wrote Amendment 20, the medical marijuana amendment, and advised the now-warring parties in Coloradans for Medical Marijuana Regulation, the new organization is called the Colorado Judicial Project, a 501(c)(4) intended to "promote education, so people will know more about the selection process and the merit-based evaluations that are conducted by the Commissions on Judicial Performance that are intended to provide a basis for that decision-making by voters."

matt arnold testifying at the colorado legislature.JPG
Matt Arnold testifying at the state capitol.
Grueskin emphasizes that "this will not, underscore not, be an organization that takes a position about the retention of any justice. First of all, the presumption on anyone's part that there will be four retention elections is premature, because the decisions of justices to stand for retention aren't made until August. I have no reason to think that won't happen, but the point is, nobody knows yet. This is all about making sure that people know more about the retention process and are able to make thoughtful decisions, whatever they may be."

Regarding Arnold's assertion that Colorado Judicial Project exists mainly to counter Clear the Bench, Grueskin calls that "self-aggrandizing."

In Arnold's view, this term represents "lawyer-speak for 'you're getting too close to the truth.' These guys crack me up, because they're obviously concerned that Clear The Bench Colorado is having an effect and raising awareness of this issue."

As evidence, he presents an e-mail sent out under Grueskin's signature in late February. It reads:

Sour grapes -- industrial strength

None of us likes to lose a case. But when that happens, do you know anyone who tries to get even by getting the judge thrown off the bench? Of course not. This year, though, there are some sore losers who are trying just that.

You may have read about the so-called "Clear the Bench" effort, a campaign for the non-retention of Justices Mary Mullarkey, Michael Bender, Alex Martinez, and Nancy Rice at the 2010 election. The Denver Post wrote about it recently. See www.tinyurl.com/ClearTheBench. This group's fires are stoked by high profile litigants, like John Andrews and Jon Caldara, whose constitutional arguments have been rejected by the Court. And Attorney General John Suthers, who's been at odds with the justices in significant cases, recently endorsed the non-retention of three of the four (Mullarkey, Bender, and Martinez). See www.tinyurl.com/suthers.

Retention elections are funny things. The justices can't "campaign" for a "yes" vote. That won't stop the Clear the Bench folks from making a public case for non-retention. In fact, they are already ramping up a campaign that is long on feverish rhetoric and short on legal accuracy -- just so they can get jurists, who haven't seen eye-to-eye with them, kicked off the bench.

Look. Those of us at Isaacson don't agree with these justices all the time; they've had the audacity to rule against our clients on more than one occasion. But the fact that we disagree doesn't mean the justices are wrong. And it certainly doesn't mean that they are unfit for the Court.

We don't want a nickel from you. We would like your an hour or so of your time to help brainstorm ways to even this playing field. What comes of that session depends on you and others who will attend. Here are the specifics:

DATE: Monday, March 1, 2010

TIME: 5:00 p.m.

PLACE: Isaacson Rosenbaum P.C. (our new offices) at 1001 17th Street, Suite 1800

RSVP: Reply email no later than February 25

We're buying the beer. What do you have to lose? We hope you'll make it.

Mark Grueskin
Ed Ramey
Kara Veitch

PS: Feel free to forward this message on to your friends and colleagues.

Grueskin confirms the authenticity of the note, but he also reveals a final "PPS" that struck a nonpartisan tone was deleted from the message. That paragraph reads:

PPS: So you know, we'd be as concerned about this kind of an effort if it was being undertaken by folks seeking to gain advantage in the judicial process by removing Justice Eid and Justice Coats, thoughtful persons of good conscience who act with integrity from the bench.

Did Arnold purposefully exclude this last segment because it diluted his point? Arnold says the note was sent to him by someone else, and he can't remember if he clipped the "PPS" or if it came that way. In any event, he says, "I think he used the wrong three letters. He should have used 'CYA [Cover Your Ass],' because it's quite clear the effort is not based on whatever he stated. That guy is as partisan as they come."

Speaking of which, Grueskin also points to a 2009 Clear the Bench Colorado flier urging the Republican Party to adopt its goals.

Since Clear the Bench is supposed to be a nonpartisan organization, is this an example of Arnold showing his true colors? Not in Arnold's view. He says he put the resolution on his website and encouraged people of all political persuasions to push it at party caucuses. He also made calls to higher-ups in the Republican and Libertarian parties, who were receptive to his ideas. However, he admits that he doesn't have high-powered Democratic connections: "My personal circle would predominate on the Republican side," he concedes> So he simply spoke about the resolution to Democrats he knew.

"I understand a couple of folks tried to introduce it to the Democrat Party and they were shouted down," he maintains, adding, "It's an untruth to say it wasn't offered to all political parties. It was. It's just that the Democrat Party decided not to stand up for Colorado citizens."

In the meantime, Grueskin is still in the process of getting the Colorado Judicial Project on its feet; when asked if the CJP would have a web presence, he laughingly admits, "I don't know. We've chatted about a number of ways to help educate the public -- but you've got a roomful of lawyers, for crying out loud. So we have dissenting and concurring opinions, but no decision."

The more important choices will be left to the voters -- about Supreme Court justices, as well as who to listen to about judging them.


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