Colorado Judge Mullarkey's Retirement: Her Choice, or Was She Nudged?
Sandra Fish
Correspondent
Posted:
06/11/10
The announcement of Chief Justice Mary Mullarkey that she'll retire from the Colorado Supreme Court at the end of November is setting off a storm of speculation about whether she jumped or was pushed.
Mullarkey's exit comes amid a campaign to oust her and three other Supreme Court justices this November by Clear the Bench Colorado, a group that calls the four jurists liberal activists.
The seven judges on the Colorado Supreme Court face retention votes every 10 years, a method considered by experts such as former U.S. Supreme Court Justice Sandra Day O'Connor to be superior to outright judicial elections.
By retiring before the vote, Mullarkey enables Democratic Gov. Bill Ritter, who announced earlier this year he wouldn't run for re-election, to appoint a successor.
Under Colorado's complex system, a nominating commission will recommend three finalists to Ritter for the seat. When the governor appoints a successor, the seven state Supreme Court justices will elect a new chief justice from among them.
Clear the Bench Director Matt Arnold declared Mullarkey's retirement a victory for his organization, even suggesting that her decision was motivated by his group's campaign. Clear the Bench hopes to unseat the justices and elect a Republican governor who would appoint replacements. Currently, five of the justices were appointed by Democrats and two by a Republican.
"One down, three to go," Arnold said, calling Mullarkey "the poster child for being an activist judge who legislates from the bench."
Former Republican state Senate President John Andrews, who tried unsuccessfully in 2006 to pass term limits for Colorado judges, implied a conspiracy in Mullarkey's retirement, something she and others have denied.
"I wouldn't be surprised if Mullarkey's resignation was urged by people close to her who feel that removing her from the court now may blunt the thrust of the do-not-retain movement," Andrews said.
Mark Grueskin, a public policy lawyer who has represented the state Democratic Party in the past, disagreed with such conclusions.
"Mary Mullarkey is one of the strongest human beings I've ever known," Grueskin said. "I don't see any set of political mutterings as enough to deter Mary Mullarkey from doing what she really wants to do."
At a news conference Thursday, Mullarkey denied that the effort to vote her off the court factored into her decision. The chief justice is 66, has served on the court for 23 years and her husband also retired recently.
Mullarkey will leave as the longest-serving chief justice in the state's history, having served 12 years from her appointment in 1998. She was the first woman to be named chief justice in Colorado.
She continued to serve despite receiving a diagnosis of multiple sclerosis in 1994, though she didn't announce her condition until 2002. She told of falling down in front of 300 people at a speaking engagement, then standing up and delivering her speech, in the book, "Mental Sharpening Stones: Manage the Cognitive Challenges of Multiple Sclerosis," by Jeffrey N. Gingold.
In recent years, the chief justice often appeared frail at public appearances, but that didn't stop her from advocating for the justice system she oversaw. In her annual address to lawmakers, she pointed out heavy caseloads in lower courts and requested more judges and staff to handle the work. She also supported the building of a new state judicial complex that's under construction in Denver.
"As a judge, I think her legacy is that she was very even-handed and fair, and didn't overstate things," said Jean Dubofsky, a Boulder lawyer and former Supreme Court judge whom Mullarkey succeeded on the court.
But Mullarkey also had plenty of detractors in recent years. Clear the Bench proponents dislike a Colorado decision that upheld a Democratic-backed property tax change that increased school financing, as well as other taxation.
And under Mullarkey's leadership, the Colorado high court ruled favorably for Democrats in a congressional redistricting case, a case that came to the court in 2003 after then-Senate President Andrews pushed through a second congressional plan more favorable to the GOP. It was one of two legislative efforts backed by Karl Rove and then-House Majority Leader Tom DeLay to try to draw congressional districts a second time. The other, in Texas, was partly upheld by the U.S. Supreme Court.
Mullarkey's retirement could figure into redrawing state legislative districts, as well. The next chief justice will make four of the 11 appointments to a commission that draws the new seats (the governor and legislative leaders control the rest). In 2001, Mullarkey's four appointments were seen as key in creating districts that helped Democrats win control of both houses of the state Legislature in 2004.
"What I kept thinking is that yes, there is the reapportionment impact," said GOP political consultant Katy Atkinson.
The effort to vote down Supreme Court justices this fall is popular among Colorado conservatives, Atkinson said.
"Clear the Bench is feeding in very much with the Tea Party folks," she said. "It's just completely consistent with their kind of message."
Republican Attorney General John Suthers, up for re-election in November, said at a GOP breakfast in January that he would vote to retain only one of the Supreme Court justices up for retention, implying that he'd vote against retaining Mullarkey and two other justices. At a debate against his Democratic opponent last week, Suthers said he regretted the comment, saying it "sends the wrong message to the people in my office."
A blog account of the breakfast said "Mullarkey is widely despised by Colorado's Republicans because she and the four other justices are so blatantly partisan in deciding politically controversial cases."
Dubofsky and Grueskin say such claims are preposterous.
"The Colorado Supreme Court has not been a radical supreme court," Dubofsky said. "They've been pretty predictible and pretty moderate."
Grueskin said: "A lot of these are very close cases. I've disagreed with the court when they've disagreed with me, but that doesn't mean they're wrong."
Andrews, an informal adviser to Clear the Bench, said he's confident the effort to vote other justices off the high court will succeed.
"I think the do-not-retain movement is going to gain momentum and is going to succeed," he said.
But Atkinson questioned how much attention the group can get without raising money to reach a broader segment of voters.
"It's the same as any other electoral effort -- if it doesn't have enough funding to get a message out to the voters," she said.
"If they have a sugar daddy out there who's willing to put some money out there, it could make a difference."
Mullarkey's exit comes amid a campaign to oust her and three other Supreme Court justices this November by Clear the Bench Colorado, a group that calls the four jurists liberal activists.
The seven judges on the Colorado Supreme Court face retention votes every 10 years, a method considered by experts such as former U.S. Supreme Court Justice Sandra Day O'Connor to be superior to outright judicial elections.
By retiring before the vote, Mullarkey enables Democratic Gov. Bill Ritter, who announced earlier this year he wouldn't run for re-election, to appoint a successor.
Under Colorado's complex system, a nominating commission will recommend three finalists to Ritter for the seat. When the governor appoints a successor, the seven state Supreme Court justices will elect a new chief justice from among them.
Clear the Bench Director Matt Arnold declared Mullarkey's retirement a victory for his organization, even suggesting that her decision was motivated by his group's campaign. Clear the Bench hopes to unseat the justices and elect a Republican governor who would appoint replacements. Currently, five of the justices were appointed by Democrats and two by a Republican."One down, three to go," Arnold said, calling Mullarkey "the poster child for being an activist judge who legislates from the bench."
Former Republican state Senate President John Andrews, who tried unsuccessfully in 2006 to pass term limits for Colorado judges, implied a conspiracy in Mullarkey's retirement, something she and others have denied.
"I wouldn't be surprised if Mullarkey's resignation was urged by people close to her who feel that removing her from the court now may blunt the thrust of the do-not-retain movement," Andrews said.
Mark Grueskin, a public policy lawyer who has represented the state Democratic Party in the past, disagreed with such conclusions.
"Mary Mullarkey is one of the strongest human beings I've ever known," Grueskin said. "I don't see any set of political mutterings as enough to deter Mary Mullarkey from doing what she really wants to do."
At a news conference Thursday, Mullarkey denied that the effort to vote her off the court factored into her decision. The chief justice is 66, has served on the court for 23 years and her husband also retired recently.
Mullarkey will leave as the longest-serving chief justice in the state's history, having served 12 years from her appointment in 1998. She was the first woman to be named chief justice in Colorado.
She continued to serve despite receiving a diagnosis of multiple sclerosis in 1994, though she didn't announce her condition until 2002. She told of falling down in front of 300 people at a speaking engagement, then standing up and delivering her speech, in the book, "Mental Sharpening Stones: Manage the Cognitive Challenges of Multiple Sclerosis," by Jeffrey N. Gingold.
In recent years, the chief justice often appeared frail at public appearances, but that didn't stop her from advocating for the justice system she oversaw. In her annual address to lawmakers, she pointed out heavy caseloads in lower courts and requested more judges and staff to handle the work. She also supported the building of a new state judicial complex that's under construction in Denver.
"As a judge, I think her legacy is that she was very even-handed and fair, and didn't overstate things," said Jean Dubofsky, a Boulder lawyer and former Supreme Court judge whom Mullarkey succeeded on the court.
But Mullarkey also had plenty of detractors in recent years. Clear the Bench proponents dislike a Colorado decision that upheld a Democratic-backed property tax change that increased school financing, as well as other taxation.
And under Mullarkey's leadership, the Colorado high court ruled favorably for Democrats in a congressional redistricting case, a case that came to the court in 2003 after then-Senate President Andrews pushed through a second congressional plan more favorable to the GOP. It was one of two legislative efforts backed by Karl Rove and then-House Majority Leader Tom DeLay to try to draw congressional districts a second time. The other, in Texas, was partly upheld by the U.S. Supreme Court.
Mullarkey's retirement could figure into redrawing state legislative districts, as well. The next chief justice will make four of the 11 appointments to a commission that draws the new seats (the governor and legislative leaders control the rest). In 2001, Mullarkey's four appointments were seen as key in creating districts that helped Democrats win control of both houses of the state Legislature in 2004.
"What I kept thinking is that yes, there is the reapportionment impact," said GOP political consultant Katy Atkinson.
The effort to vote down Supreme Court justices this fall is popular among Colorado conservatives, Atkinson said.
"Clear the Bench is feeding in very much with the Tea Party folks," she said. "It's just completely consistent with their kind of message."
Republican Attorney General John Suthers, up for re-election in November, said at a GOP breakfast in January that he would vote to retain only one of the Supreme Court justices up for retention, implying that he'd vote against retaining Mullarkey and two other justices. At a debate against his Democratic opponent last week, Suthers said he regretted the comment, saying it "sends the wrong message to the people in my office."
A blog account of the breakfast said "Mullarkey is widely despised by Colorado's Republicans because she and the four other justices are so blatantly partisan in deciding politically controversial cases."
Dubofsky and Grueskin say such claims are preposterous.
"The Colorado Supreme Court has not been a radical supreme court," Dubofsky said. "They've been pretty predictible and pretty moderate."
Grueskin said: "A lot of these are very close cases. I've disagreed with the court when they've disagreed with me, but that doesn't mean they're wrong."
Andrews, an informal adviser to Clear the Bench, said he's confident the effort to vote other justices off the high court will succeed.
"I think the do-not-retain movement is going to gain momentum and is going to succeed," he said.
But Atkinson questioned how much attention the group can get without raising money to reach a broader segment of voters.
"It's the same as any other electoral effort -- if it doesn't have enough funding to get a message out to the voters," she said.
"If they have a sugar daddy out there who's willing to put some money out there, it could make a difference."