I am new to this campaign game, and almost every event is a new experience for me.  Today, I had two new experiences, or at least for the purpose of blogging I had two.

I had never stood on a street corner with a political sign, though it is a common sight here around election time.  This morning, I got my first taste of it. 

We were near downtown Denver, a heavily Democratic area, so I didn't expect a big welcome mat.  I am not sure I know what I expected, but I was surprised enough by what I saw to blog about it.

After this morning, I decided that you can visually identify a Democratic voter:
1.  He or she is likely to be humorless, lacking the self confidence and/or courtesy to smile and return a greeting.
2.  If in a car, he or she is likely to try to be rude, often demonstrating the manners and good citizenship of the Democrats with the middle finger.
3.  Their demonstrators, (Dem Dems) and there were a few-I counted 22-were also humorless.  The guy with the Democratic Bull Horn would occasionally raise it and encourage one of his helpers across the street with a "Good job Bill."  I could never tell what Bill or Sally or whomever had done as when I looked they were standing there holding signs.

Republican voters are the opposite.
No one was rude to a Dem Dem that I saw.  The 125 Republicans were all laughter and smiles, and maybe a little raucous.  Republicans think Bull Horns are for leading cheers and having fun, and the guy with the horn was clearly the right guy for the job.  He cast insults at the Dem Dems, but they were good natured, and pure political fun.

I like good competition, and I would have had even more fun if the Dem Dems had responded in kind.  They didn't.  I doubt that I saw a smile all day from a Democrat.

While it may appear that I am critical of the retention commission's decision, and I suppose I am, I am far more critical of the system.  It was designed in a way that it can be gamed.  I have no idea if my judge ever gave a moments thought about how to game the system, and I certainly wouldn't want to accuse him of doing so, because it isn't provable.  Unfortunately, more than one of his actions make it appear that he might have gamed the system.

The public may not understand, but while a judge comes up for retention consideration once every six years, a retention commission only looks at information from cases closed in the year immediately before the election, give or take a couple of months.  Five years of information is never provided to the commission.  Knowing this, a judge could fairly easily manage his caseload so that lawyers and litigants who were likely to be critical of a judge's performance would be excluded from the pool of potential attorney or litigant evaluators.

Did my judge do that?  I don't know.  I do know that 14 months before the election my attorney asked for a default judgment and the judge did handstands to avoid granting it.  I also know that the same judge was quick to grant the Defendant's motion to reverse it.  See "Just one example" below.

Another way a judge might manipulate the data is by avoiding at all cost making a referral of an attorney to Attorney Regulation in that same period.  After all, once it became known that a judge had referred an attorney for discipline, other attorneys might think the judge not a "team player."  In that situation, an attorney who had decided to put the evaluation form in his desk rather than submit a negative evaluation might do something else.  Once a judge begins referring attorneys, attorneys will want to try to get rid of the judge.  It is only human nature.

Did my judge make any such decision?  Again, I have no idea, but in May, 2004, he received a 30 page description of 12 different apparent ethics violations by the defense attorney and took no action.  (It was at that time that I lost any fear of what this judge might do to me.)

On March 1, 2006, this judge issued an order which stated in part:  "If nothing else, this is one of the worst cases of neglecting the requirements of the Rules that the Court has ever experienced."  Even after making that statement, this judge could not bring himself to refer this attorney to Attorney Regulation.

The judge got good scores, though not outstanding ones from the evaluation pool.

I am going to state this flatly.  The system is so flawed, so vulnerable to being gamed, that the members of the retention commission have no idea if they were dealing with a judge who was "an asset to the community," or a judge who knew how to game the system and did so successfully.

Since I filed my lawsuit almost seven years ago, I have spent more than $30,000 and have but little to show for it 

I am still trying to examine and understand how it is that a judicial retention commission could decide that my judge was such an asset to the community that there was no need to inform the electorate about my lawsuit.

Time for another thought experiment:

Let's join the board of directors of the local architecture firm of Dewey, Chetam, & Howe, or DCH as they like to refer to themselves.  They are discussing a personnel matter.

It happens that one of their more minor customers, a customer they didn't even know they had, has just come forward with evidence that one of their employees, Bill, was either accidently or intentionally derelict in his duties.  Whether it was accidental or intentional, Bill had already cost the customer $30,000 and if his performance continued unchecked, was likely to cost him even more.

Complicating the issue was the fact that every Sunday since he had been employed, Bill came to the office and cleaned the executive washroom with a toothbrush.  The board considered him an asset to the organization.

Or the board might say nothing and simply pray that nothing else happens.  He is, after all, an asset to the organization!

Or, the board might offer Bill additional training and supervision and encourage him to make the client whole.

One alternative would be to cut Bill loose with a gold watch and a ringing endorsement.

We live in a litigatous society, and the board has a problem.  If Bill stays employed and continues to damage this client or damages others, the litigation liability might put DCH out of business.  It actually could happen quickly.

It is extremely unlikely, with Trial Lawyers always on the lookout for opportunities to enrich themselves, that DCH would ever consider saying nothing.

This thought experiment can only go so far.  The rules for the government are completely different than they are for private enterprise.  The government gives itself and its employees such broad immunity that a litigant who is damaged by the actions or inaction of a judge, even over a period of years, has no ability to make himself whole.

Given that, a retention commission that is presented with evidence that a judge has damaged a litigant by action or inaction would have a moral obligation, and an ethical obligation to take some action to protect the public, if only because members of the public, acting individually are powerless to protect themselves.

A thought experiment is an experiment conducted without physical equipment other than the mind.  It is not totally abstract, as it relies on life's experiences to extrapolate and understand new knowledge.

Perhaps the greatest practitioner of thought experimentation was Albert Einstein.  When he first published his theories, he lacked the technology and the financial backing to conduct any kind of experiment but thought experiments, and yet today he is recognized as the greatest physicist who ever lived.  The reality is that even after he became famous, in the first decade of the last century, he continued to do thought experiments.

Stephen Hawking is a practitioner.

Thought experimentation is a legitimate way to examine a problem. 

For me, it is extremely handy as I can use thought experimentation to illustrate and make  understandable complex aspects of judicial and legal ethics issues without the danger of anyone trying to claim (successfully) that I had libeled them.

At one time, Professor Lawrence Tribe appears to have considered himself a serious candidate for a slot on the US Supreme Court.  At least, he acted the part, making almost weekly appearances on various television shows.  If either Reagan or Bush had lost, this post might very well be about "Justice" Tribe. 

Every potential Federal Judge has prime appointment years.  If a President wants to impact the judiciary over a period of decades, he must appoint Judges and Justices who are young enough to have a long life expectancy.  If an otherwise outstanding candidate happens to come into his prime appointment years when his party is out of power, he is likely never to be appointed.

In Tribe's case, we can thank the Lord for small favors.

His view of the law is that a jurist should first determine the outcome, and then look for legal arguments which support that outcome.  He finds it very hard to be critical of a judge who couldn't find those arguments but did manage to get to the "correct shore."

"But as legal academics many of us -- and I don't exclude myself from this observation -- sometimes miss the forest for the trees and act as though making an argument water-tight is more important than steering the legal boat in the right direction, much less reaching the correct shore."

I well remember the Senate Judiciary Committee hearings of last fall and spring where liberal Senator after liberal Senator worshiped at the altar of stare decisis.  Supposedly, no man is qualified to be a Supreme Court Justice unless he first acknowledges the ultimate and final power of precedent.  That, it seems, is the standard for conservatives.

Tribe is quite honest in admitting that the standard for liberal jurists is very different.   He spent needless time and effort writing his piece when he could have as easily said "the law is what we liberals say it is, when we say it, precedent be damned, and don't criticize us."

The reason a Harvarrrd Law Professor can spout this kind of bogus and dangerous garbage without fear of criticism or discipline is that ABA lawyers control the legal ethics system, and the ABA is dominated by the left.

 is way too many.  We will let the subject simmer for a bit.

If you haven't read my bio, you might.  What do JL Chamberlain and G Washington have in common that both would be my personal heros?

When someone uses an argument on me that I haven't considered, I like to sleep on it.  My subconscious is very likely to provide the answer.

"Don't throw the baby out with the bath water" isn't really an argument.  Rather it is just a saying that argues against change.  If the person using the saying had a real argument, he would use it.

Henceforth, my response will be: The baby (legal ethics) is dead; the flesh is rotted, and the water is putrid.  The smell demands that the baby and the bath water be given a decent burial.

I am more than a little leery of the "asset to the community" standard that the commission applied.

When I prepared my input to the commission, I not only provided a series of detailed allegations, I provided almost 200 pages of court documents to support those allegations.  I highlighted the passages in those documents that made my points and provided a cover sheet for each court filing or order explaining what it demonstrated.  The commissioners could not possibly have been ignorant of the events in my lawsuit  I do not believe that anyone on the commission would attempt to defend this judge's execution of his duties in my lawsuit.

I think it is reasonable to assert that most would agree that the judge "messed up" in administering my lawsuit.

I like thought experiments.  Let's conduct a thought experiment and change the facts a bit.

Suppose that instead of choosing to be an attorney, this judge had made medicine his life's work.  I happen to like DO's, having grown up in Kirksville, MO, (the home of Osteopathy) so we will give our friendly judge an honorary DO degree and put him to work.  Most DO's are family doctors.  Let's also make him a multi-hour community volunteer.  Just for good measure, let's make him the only doctor in a 75 mile radius  There can be little doubt that our DO is considered an "asset to the community" by everyone in the community.

Eventually, he is going to "mess up," make a mistake, perhaps a big mistake, a mistake that costs tens of thousands of dollars to correct.  His patient will talk to a Trial Lawyer who will happily go after the doctor's insurance company.  Once they have a potential lawsuit, no one in the legal community recognizes or even considers the concept of "asset to the community."  They won't consider that by winning the lawsuit they drive up the cost of the doctor's insurance, and they won't consider the possibility that he might have to move to a city where he could make enough to both pay his insurance and support his family.

If our thought experiment is extended to all professions, one quickly learns that the only two professions that the legal community applies this "asset to the community" standard to are lawyers and judges.

Care to bet that the four attorneys on our local retention commission argued long and hard to apply the "asset to the community" standard to this judge?  

Judges protect attorneys.  Attorneys protect judges.  No one protects the public.

 

I am a strong believer in the volunteer system.  It is a great substitute for the expenditure of taxes, and often, though not always, provides a better product than any set of government employees ever could.  For something like 14 years, I was a Junior Achievement volunteer.

No one says to himself, "I think I will go down to the local homeless kitchen and see if I can ruin a pot of stew today."  Even so, it happens.  If it happens often enough, or the mistake is severe enough, even the most well meaning volunteer should not expect to escape criticism.  Perhaps he or she will be asked not to come back.  Usually such a situation is handled very quietly because the mistake impacts very few people in very small ways.

What happens if a group of volunteers who are charged with evaluating judicial performance receives a set of serious allegations about a judge's conduct in a particular lawsuit, supported by extensive documentation.  If that group of volunteers determines that the judge is an "asset to the community," does that gives them the right to conceal the negative information they received from the public?  If the negative information involves apparent violations of court rules, judicial ethics rules, and a failure over a multi-year period to protect a litigant from apparently intentional attorney misconduct, are those allegations serious enough that they MUST find a way to alert the public?

Our local retention commission did not think so.  Their review of the judge was so glowing, so uncritical that I wrote the chairman an email: 

"After reading your commission's recommendation on Judge ***, I must admit that I was quite impressed with the level of quality, dignity, and concietiousness Judge *** brings to this community.  I can't see how anyone could possibly consider voting against Judge *** retention, based on your commission's findings.

It would be useful if that Judge *** had made his appearance even once in my lawsuit."

(The evaluation is on the net but I am intentionally not linking it because to do so would make it appear that this is a campaign against a judge when I intend it to be a campaign against the system.)

I don't doubt that this commission put a lot of time and thought into their decision.  Like all dedicated volunteers, they took time away from their families and perhaps their jobs to meet their commission obligations.  Under no circumstance would I claim that they ever intended to "mess up."   I don't question their dedication.  I question their judgment.

The reader will discover that one of the more interesting things about the legal system in Colorado, and probably most states, is that while a citizen cannot sue a judge for misconduct, a judge can sue a citizen for reporting, writing, or talking about misconduct.

The same is true for an attorney.  I can't sue an attorney for an ethics violation, but he can sue me for reporting, writing, or talking about it.

The lawsuit doesn't even to have merit.  Its purpose is to use the parasitic aspect of the legal system to bleed or threaten to bleed to death a person who speaks out.  It happens so often that lawyers have given it a name: "Strategic Lawsuit Against Public Participation," or SLAPP.  To my knowledge, no attorney has ever been disbarred for filing a SLAPP lawsuit, though filing a meritless lawsuit is clearly a legal ethics violation. 
I am trying to avoid a SLAPP lawsuit, so some definitions are in order.  This post will be edited from time to time as I think to do it.

Ethics.  There are two kinds of ethics:  Moral ethics and legal ethics.  They are not the same.

The definition of legal ethics is controlled by the state supreme court.  It might appear to be intended to protect the public, but it is not.  It is entirely possible, even probable that an issue that I discuss will be ethically immoral in the common sense of the word, but legally ethical.

Unless I specify that I am writing about "legal ethics," I intend to use the word "ethics" in its commonly accepted definition.

For example, I consider the state supreme court in Colorado to have a number of unethical members who feel free to make unethical decisions outside the constraints of the law and constitution, their recent single subject ruling being a prime example.  If I did not specify that I wasn't writing about legal ethics, but moral ethics, they might be able to sustain a SLAPP lawsuit against me, if only because they have the power to define for themselves what is legally ethical conduct.

Fair warning to a lawyer who contemplates a SLAPP lawsuit against me is that I will fight back publicly and privately.

When you walk precincts.

 When I knock on people's doors, I don't know their occupation.  However, about one in 200 adults in the country is or has been a lawyer, so if I knock on enough doors, I am going to hit at least one lawyer.  Today it was three.

One was new in the state and was buying a home that she was moving into in two days.  She was unregistered.   A very nice lady who wanted to mother her children (good priorities), was concerned about school quality (more good priorities) liked what she saw. and didn't plan to practice law in Colorado.

The second was a registered Independent who was clearly a Democrat.  He would, he told me, vote for my candidate when hell froze over.  He didn't think Ritter particularly qualified, and would have preferred to have been able to vote for Hickenlooper.  When I mentioned the state supreme court, he said "I know most of those people."  He was clearly a lost cause, so I moved on. 

I would call this Democrat a perfect gentleman.  While he and I disagreed, he was polite and engaging.  So often, people go out of their way to be impolite to political volunteers, which damages public discourse.

The third encounter came at the end of the day, near dusk.  I had a driver/navigator who was waiting while I talked to another voter, and this lawyer very correctly wanted to know what my driver was doing loitering in the neighborhood.  I wish I had neighbors as observant and as willing to challenge strangers. 

It turned out that this lawyer was an undecided voter, and raw meat to me.  Most undecided voters do not identify a reason they are undecided, or if they do, they make some general claim that one candidate or the other is too "something."  Usually, that something is so nebulous that it can't be discussed.  I don't remember what this voter said, but I turned on my moral outrage spiel (I never use that term and I try to have a very calm discussion). 

It took me all of 30 seconds to discern that he was a lawyer.  It happened when he asked why I thought the court system was "messed up."  We talked for a few minutes about the defense attorney's tactics and my attempts to stop them.  I mentioned my interactions with two supreme court subagencies who discipline lawyers and judges and how each had told me it was the other's responsibility to solve my problem.

I am sure this voter thought he could end the conversation when he asked me what I would do to fix the system.  I have had years to think on that very question, and I gave him my solution.  He said "well don't throw the baby out with the bath water." 

Then he suggested that every judge had to answer to a retention committee, and I should go to them.

Since I am using this conversation as a segway to my interaction with the local retention commission, I will stop the story at this point, except to state that as he walked away, my driver/navigator heard him say "I would never vote for a Democrat, anyway."

I have obviously done something wrong with the post where I got black on blue.  Can anyone suggest what it is so that I can correct it?

One of the most powerful weapons a judge has available to him to curtail criticism is the hope that a litigant holds out for fair treatment in his court, or perhaps the fear a litigant may feel of unfair treatment. 

Once a judge issues a series of rulings or fails to take actions that his ethics code and court rules plainly require him to take, and does so over a period of years, the disadvantaged litigant eventually loses his hope or fear. 

About a year ago, I reached that point.  Humorously the event I am about to describe occurred after I decided I could not get a fair ruling from this judge.  I use it because it illustrates both the ethics of the opposing attorney and the willingness of the judge to look the other way.

One of the reasons my lawsuit is nearing its seventh anniversary of its existence is that the defense appears to have adopted a very effective stalling strategy of withholding discovery and failing to respond to letters and motions my attorney has sent and made.  More than once, when the court date came near and it was time for the pre-trial conference, the opposing attorney would claim not to have been served the motions.  Once my attorney double served him and he still made that claim.

In August of last year, my attorney filed for a default judgment based on this conduct.  When there was again no response, he filed for money damages.  The judge made it obvious that he didn't want to issue a default judgement.  Despite a two year history of the defense attorney not having responded, the judge gave him two more extensions and two more chances to respond.  The second one stated that he would issue a default judgment if he had no response by November 10th.

Most judges would feel they had no choice but to follow through on their threat after the 10th had come and gone.  Not this judge.  Finally on December 9th, he issued a default judgment which he back dated to the 6th.  Of course, he didn't award damages.

Inevitably, the Defendant asked that the default judgement be reversed.  In that motion, a new counsel referred to a motion that the defense attorney had filed on December 1st, attempting to head off a default judgment. 

My attorney hadn't seen this motion and apologized for having missed it.  By this time, I was a complete cynic and told my attorney that I was willing to bet that the defense attorney never intended for him to see it.

Sure enough, when he retrieved the motion from the courthouse, which he had to do because it had been manually, rather than electronically filed, it had a rather curious certificate of service.  The defense attorney claimed to have "hand carried" the motion to an office my attorney had vacated 18 months before.

In January and February, this defense attorney had occasion to file two affidavits in support of his client's attempt to get the judgement reversed.  In the first, he claimed to be an "electronic filer."  In the second, he demonstrated that in August 2004, he had learned that my attorney had vacated his office when he tried to have a packet of materials delivered.  In support of his affidavit, he conveniently provided a copy of the cover letter for that packet.

My attorney visited his old office and obtained an affidavit from the current occupant that they had never received the December 1 affidavit.

So, why would an "electronic filer" choose to avoid that system and claim to "hand carry" a motion to an office he knew was long vacated?  Perhaps we can learn by examining the content of the motion:  In it, the attorney told the judge that his business had increased "fourfold" and he didn't have time to respond (an apparent ethics violation); that he admitted the delay was his fault; that he would pay my reasonable attorneys fees for this period; and that he would contact my attorney on the issue.

Nine months later, he has yet to pay my attorney's fees, nor has he bothered to contact my attorney about the issue.  We sought and got a $12,000 judgment against the attorney and his client, which is yet to be paid.

I believe that a reasonable person examining this set of events would conclude that the defense attorney was attempting to pretend to the judge that he was contrite and would make me whole when he had no such attention.  By filing a "secret" motion he appears to have hoped we would never know.

True to the form of the last three years, the judge takes no notice.  I believe that someone examining the pre-trial record might well conclude that the attorney uses these tactics because the judge has signaled him more than once that he will tolerate them.

Such is the state of legal and judicial ethics in Colorado.  It gets worse.  Stay tuned.

Everyone has to start sometime.  I started a couple of days ago.

I don't accept comments because I don't have the time to monitor them.

I am still learning about such things as links and appearance.  Black on blue????

I am semi-anon, though a careful reader can figure out how to contact me, at least for a while. 

The reason I will be staying semi-anon is that I have an active lawsuit and I intend to use what I have learned about the legal ethics system and the judicial ethics system in Colorado to educate the public.  That is unlikely to make the judge happy and I am hoping my anon status will ward off an order to stop.  I suspect he will not be happy with my comments.

This particular judge is up for retention this year.  While I will not vote to retain him, I do not intend to identify him or campaign in any way against him.  As I told someone recently, a single judge is a small fish in a small pond.  I want to effect a whole sea change of reform.

Alex McClure made an interesting comment in Wizbang Politics that Colorado was drifting to the left. 

My gut feeling is that is not true.  Colorado is, and will remain for some time a Republican state, at least as far as a majority of the voters are concerned.  It should reliably deliver two Republican Senators, five Republican Representatives, Republican majorities in both houses of the legislature, and a Republican Governor, as well as Republicans in the lesser offices.

That isn't happening for several reasons:
1.  There are four Democratic Billionaires who are making a mockery of campaign finance with their 527 funding, usually at the last minute.

2.  The the Republicans allowed a "Campaign Finance Reform" initiative to pass that they didn't understand, and which was designed not to take money out of politics, but to take Republican money out of politics.  (One of the reasons I am, and will be making a pitch for out of state folks sending funds to Beauprez is that in state Republicans have no chance to keep up with the Dems)

3.  I'd like to report that the Republican party is well disciplined in Colorado.  Party discipline broke down when Coors ran and certain segments of the party undervoted Republican.  If my summer's phone calls are any indication, many remain proud of withholding their vote.  I think they believe they will see a more acceptable Republican candidate in 2010 and will beat Salazar then.  My guess is that they will be calling Salazar "Senator" for decades, and that he will be actively opposing conservative judges when the Senate is more evenly balanced.  Call me a cynic.

4. Colorado has an unusual reapportionment system that allows the Chief Justice of the State Supreme Court to shift the balance of power.  She is a partisan Democrat, and always tries to shift the balance toward the Dems.  In 2002, she succeeded.  For example, Colorado Springs is so Republican that it should not have any Democratic Representatives.  I live in an 80% majority district.  Believe it or not, the Dems found a way to selectively carve precincts in the central part of the Springs to create a marginally Democratic district.  (One of the major reasons I began this blog is to draw attention to unethical conduct by judges and justices.  It may not unethical legally, but it is morally unethical for a Chief Justice to do what ours has done.  It takes time and consecutive wins by Republican governor candidates to replace enough Justices to turn out a Chief Justice, who is elected by her peers.) 

5.  The business community:  Rather than vigorously supporting Beauprez, it is buying off the Dems.  The Democratic Legislative leaders went out of their way to appear "moderate" because their hold on power is quite tenuous.  If the Dems can consolidate their power, win the governorship to appoint replacement justices, and keep the legislature, the party will quickly drop the moderate mask.  I can see a California like business atmosphere in Colorado in ten or fifteen years if Beauprez loses.  I can see Colorado sending two Dem Senators and 5 Dem house members to Congress through 2022 and perhaps 2032.

I cannot overly stress the importance of a Beauprez win, and the importance of him receiving funds from concerned Republicans outside Colorado. 

If you can send a check for up to $1,000, make it out to Beauprez for Governor, and if over $199, include your employer's name and address and your occupation.  Send it to Beauprez for Governor, 5555 DTC Parkway, Suite B3000, Dept MO, Englewood, CO 80111.

Once again:  This is my blog.  These are my opinions.  No one in the Beauprez campaign knows that this post exists, and I am not sure anyone knows the blog exists, let alone having had an opportunity to approve it.