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James Madison — Federalist Paper No. 62
One step closer to a judicial oligarchy?
Colorado Court Rules run to 700+ pages of densely spaced and worded text. Federal court rules are even more extensive and incomprehensible. Somehow the courts have completely forgotten the maxim that rules should be short, simple, and uniform.
If the rules were halved they would still be dysfunctional because of their complexity. Also, so that everyone understood what a trial management order looked like, an example would serve wonders. There are some standard forms for such things as a motion to bring in a third-party defendant but further standardization would be a real plus. Colorado has been moving to standardized forms , e.g. for small claims, and needs to move further in that direction.
However, even the best rules and standardized procedures are of no value if the courts do not enforce them uniformly without regard to race, creed, color, or sex. When we ask citizens if the courts are doing that, derision is the inevitable response.
In a paper published February 27, 1788, James Madison made the following point that has since been completely ignored:
“...It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow...”
The following apply to nearly any enterprise but some of them are specific and disastrous failures of our present court system:
• Too many rules. Don't stop with a few clear and simple ones. Instead of clarifying existing rules, add new ones.
• Believe the victim: The fact that believing the victim means you presume the accused is guilty is only a trifling detail. Be sure the court has a large supply of “victim's advocates” so that any story a woman might tell has plenty of support.
• Ignore due process: Most judges would just as soon do away with due process altogether. In fact, many of them have.
• Don't enforce the rules. No one can remember all these pesky details and obtuse procedures. So a judge can rule any way they want to.
• Don't require an education. Judges typically don't have the education one would expect of a college sophomore in science or engineering. So we really shouldn't expect much in the way of mental ability, logic, or a grasp of facts.
• When you do enforce rules, don't do it consistently, particularly with regard to sex. We certainly wouldn't want to give anyone the opinion the courts were not on the side of motherhood and apple pie. Therefore, women should be given every consideration and excuse for the courts to show sensitivity to their special needs.
• Permit minimal disclosure during discovery. If she has something to hide, let her simply not show or provide it. Especially if motherhood is in question. No court would ever be so mean as to force a woman to provide full, honest disclosure.
• Ignore discovery complaints. In the worst case the court can grant post-hearing discovery. Don't bother to ask what the point is of having a hearing or trial if discovery hasn't been completed. Of course, if he hasn't taken the shirt off his back yet why the court will be glad to help you, ma'am.
• Be arbitrary and capricious about evidence and testimony. Make decisions about what testimony will be admitted based on sex, color, or race. Allow only documents the court wishes to see to be introduced into evidence. Conduct a trial by ambush and allow witnesses and documents to be admitted that haven't been discovered to the opposing party.
In his 2001 novel, Jackdaws, author Ken Follett commented accurately (p. 143) on how the justice system currently works:
“When they need a conviction they arrest someone who is in that line of business. If it's a burglary, the arrest a burglar. It doesn't seem to matter whether he was responsible for that particular crime, because they can always manufacture a case: suborn witnesses, counterfeit confessions, manufacture forensic evidence. Of course, they sometimes make mistakes and jail innocent people, and they often use the system to pay off personal grudges, and so on...”
• Don't enforce court orders. Visitation. That evil man actually wants to visit his own children and has a court order saying he can? Well, ma'am you just go ahead and do as you please. And if you are not home when he comes for the kids, why that doesn't matter a bit.
But if he gets behind on his child support the least little bit why you come back to court right away now, you hear? The court will be happy to throw him in jail until he does pay. The trifling detail that he can't earn any money while he is jail will be conveniently ignored.
That man wants to know how much money you have squirreled away and got a court order compelling you to tell? Why honey, you just don't trifle your pretty little head about such details. The kindly old judge won't do anything to you if you just sort of forget about it. Or maybe you could produce just a few papers to make it look like you were trying real hard to do what's right?
• Make no effort to ensure transcripts of hearings and trials are accurate. Time after time people have come to the Equal Justice Foundation with complaints that a transcript has been altered or a tape of a hearing or trial has been edited. Victims of such practices are encouraged to contact Zed McLarnon at Justice For Families.
• Encourage cronyism . Let the judges appoint their golfing buddies from the country club when a Guardian Ad Litem (GAL) or Special Advocate is needed to protect “the best interests of the child” in custody disputes. Have district judges hire the attorneys who will defend parents in their courts when child protective services takes the children from them. Make future work and rulings for a defense attorney dependent on staying on the judge's “well behaved” list.
• When sanctions are requested. Let her object and file delaying motions. If sanctions have to be granted, let her make a big show out of doing as little as possible and claiming she complied in full. Worst comes to worst, let her cry a little bit in court, and bat those tear-filled eyes at the court before letting her off.
• Impose minimal sanctions. If they do corner her, she shouldn't worry. The kindly judge likely won't impose very stiff sanctions. And just to show you how fair the court is, the judge will likely weaken its initial order compelling disclosure or whatever other trifling inconvenience the court wanted her to do for no good reason.
• Let litigant pretend to comply with sanctions order. Who is going to know if you really complied with the court's orders or not. Docket management is more important to the court than listening to some whining male scoundrel complain how she didn't do a damn thing she was supposed to or that the court ordered her to.
• Refuse to grant any continuance. A continuance is totally unwarranted if she is trying to hide something that he might find if given some time. So let her have the trial or hearing before opposing party can complete discovery. Ignore that pesky 30 or 40 day rule about completing discovery before trial. Accept her statements that everyone else is at fault for not producing the necessary documentation. Computers and copy machines are good things for her to blame when she can't find a man to blame.
• Let them appeal . The appeals court doesn't like to interfere with how lower courts handle issues. Appeal likely will denied and any troublesome precedents don't have to be published anyway.
• Don't publish your opinions when they contradict precedent, the court rules, or the law. When some obstreperous person actually has the gall to challenge a court's opinion, don't publish your findings unless, of course, you can step all over the litigant and cause further havoc. And since your opinions aren't published, there is no requirement that they conform to the law.
• Supreme Court will almost certainly deny certiorari. So what's he going to do then? Those people don't want to hear his whining and complaining about seeing his kids, being driven into the poor house, and the case of clap she gave her husband that she accidentally got from her boyfriend.
• Result. You force opposing party to spend immense amounts on attorneys, which attorneys like, she gets to keep all the assets not disclosed, and everything he had. The court is proud of itself because it preserved motherhood, apple pie, and the American way.
Only the male is a bit perturbed by all this. But who cares about him or the rest of us? Males are just the serfs of whoever happens to be on the bench in any case.
We have also personally endured all the above affronts to justice and due process in Colorado courts and will furnish case numbers upon request.
The presumption that the courts are fair and unbiased is a cherished thought for most citizens. There is no greater shock than to find that even with both law and facts in your favor, your constitutional rights are worthless because you can't get the courts to enforce them. Today, the trial of a man accused of domestic violence in Colorado by a judge simply a long, slow way for him to plead guilty.
It is our experience that almost all judges, whether male or female, are poorly educated by any classical standards. It should also be noted that extensive reading in a single subject does not qualify as an education. That is particularly true where the material read is written largely without regard to logic or reason, and ignores fundamental principles and standards such as state and federal constitutions.
Judges have entirely forgotten, if they ever learned, that the Constitution is superior to, not subordinate to laws passed by the legislature. And far be it from any court to acknowledge that the defendant standing at the bar has any constitutional rights.
That arrogant, opinionated, uneducated, black-robed judicial activist on the bench presumes their uninformed belief is superior to the legislature, the Constitution, and anyone who comes before them. Off the bench we would regard such individuals as psychotic.
The present situation is so bad that most attorneys don't even bother to make motions based on civil liberties or constitutional rights, assuming, almost always correctly, that such motions will simply be denied out of hand.
We are a country of laws that should equally protect the innocent and hold the guilty responsible, yet men by the tens of thousands are stripped of their homes, their jobs and earnings, and driven mercilessly from children they love by the family courts. In family courts there is no penalty for perjury, in fact women are typically rewarded for lying.
If a man protests, and their mate finds them an inconvenience, she is guaranteed the ability to take out ex parte restraining orders against him with the help of taxpayer-funded “victim's assistance” or the local shelter for “battered women.” In such proceedings a man is presumed guilty unless and until he can prove his innocence. And if he wiggles out of one set of charges she can always file them somewhere else in a court that may be a little more sensitive to her special needs, in front of a judge who combines arrogance with trivia and regards it as intelligence.
Every judge adjudicating between a man and a woman knows that if the decision goes against the woman there may be screams in the press, on the streets, and from the harridans in the courtroom claiming to be “victim's advocates.”
If the decision goes against the man, all will be serene. The same pressure, in different forms, is on police, social workers, and authorities at every level. We have personally witnessed feminists lining the back of a Colorado courtroom while a man was successfully defending himself against a totally unjustified restraining order. One feels the hatred from these women at such times and judges are not immune to such feelings or the pressure such feminists bring to the courtroom.
Even more frightening, judges are usurping legislative authority and routinely violating the principle of “separation of powers.” James Madison, father of the Constitution, declared that “tyranny” is when the government merges executive, legislative, and judicial powers into one entity. We are rapidly trading our constitutional republic for a judicial oligarchy, but few Americans seem to notice and fewer still seem to care.
The presidential election of the year 2000 showed clearly the ugly face of judicial activism where rules are ignored, deadlines are changed, and laws are interpreted on the basis of emotions and feelings, or invented on the fly to fit the situation. The judiciary is now a world best described by the Red Queen in Alice in Wonderland: “My will be done.”
Our legacy of self-government through our democratically-elected representatives is being torn asunder by the very branch of government that has the greatest responsibility for protecting individual rights.
The costs to society are enormous. Men are driven from their jobs and careers. Money that would have gone to building homes and educating children sinks into a morass of legal fees. Couples are prevented from talking to one another even after everyone has cooled down. They are forced by law to deal with each through attorneys who like conflict as it's money in their pocket. Fathers are driven from their children. Without fathers the children fail to develop with the result that most of the pathologies of society can be traced to fatherless children.
The court dockets are ever more crowded with cases that can't be dropped regardless of how ridiculous the charges or how much the man and woman want to drop the charges. Unlike other criminal charges, prosecutors are prohibited by law C.R.S. § 18-6-801 (3) from dismissing or dropping a charge of domestic violence, or plea bargaining it to anything that does not include DV. Because of this draconian law prosecutors wait to dismiss a DV charge until the day before or the date of trial. And a great majority of defendants who insist on a jury trial have their cases so dismissed. That practice greatly benefits the legal profession as attorneys must take the time and defendants incur the expense and emotional turmoil of preparing for trial even thought the case will likely be dismissed. Frequently, even if the case is called for trial the woman doesn't appear and under Crawford vs. Washington, the court must then dismiss the case.
According to the Colorado Legislative Impact Staff, for fiscal year 1997-1998 there were 12,166 domestic violence cases filed in state courts. Of these cases, 4,331 were convicted, pled guilty, or no contest. Virtually every conviction, more than 95% was the result of a plea bargain, often as the result of coercion and sometimes outright torture of the accused. Juries are very reluctant to convict in a “he said/she said” case and prosecutors are reluctant to bring such cases before a jury for this reason and the cost of a jury trial.
The fact that only one third of the domestic violence cases results in a conviction is very good evidence that the other two thirds of the charges are false or unjustified.
The negative impact of domestic violence cases on the jury system is large because men are forced to take their cases to a jury trial in order to clear their names. The figures shown here suggest upwards of 8,000 jury trials every year in Colorado are based on false or unjustified accusations of domestic violence.
To the best of our knowledge, only rarely do juries convict in domestic violence cases, and often the woman who made the original charge doesn't want a conviction. Nor is she likely to appear in court on the trial date. Juries in such cases are thus left with the impression that their time was being wasted by the trial.
Every year it becomes more difficult to assemble juries in Colorado as citizens become ever more disgusted with the courts. The clear result of this process is chaos. Simple rules and clear deadlines are set aside and no one can know the rules and no deadline counts under the current Mad Hatter court system we find ourselves under.
It isn't only our voice railing against the courts. Consider the following editorial from the Colorado Springs Gazette:
© 2005, Our View, The Gazette
January 14, 2005 — Why have a governor? Why have a Legislature? Why have elections, or any of the other accouterments of representative government, when we can just leave all the decisions to judges? The arrogance and sense of impunity being bred in the courtrooms of this land among untouchable and unaccountable judges making policy from behind the bench, is much noted. But it's difficult to imagine a more glaring example than this week's appointment of a state district judge by the chief justice of the Colorado Supreme Court, Mary Mullarkey. When Gov. Bill Owens declined to fill a court vacancy with either of the candidates put forward by the 3rd Judicial District's Nominating Commission, insisting there must be more than two qualified candidates for the slot, Mullarkey took it upon herself to put Walsenburg city attorney Ellen Haskins Trujillo on the bench in Huerfano County.
Mullarkey defends Trujillo as a competent and experienced lawyer. And that may be. But by cutting the governor out of the process, the chief justice appears to be exceeding her authority and trampling long precedent. Whether some dusty legal technicality grants Mullarkey the power to unilaterally appoint judges is less important than the larger principle at stake — that judges are in some way accountable to the elected representatives of the people (in this case, the governor), which must play the central role in the selection of judges.
Remove that element, that check against unbridled judicial power, and one has a government of the judges, by the judges, for the judges.
The action invites a strong response. But the options for punishing Mullarkey are limited. It's that insularity from accountability that breeds the arrogance we see in so many judges today. Yes, it's important that judges enjoy some degree of independence from political and other pressures. But too much independence seems to have created a monster. And if Americans don't find the will or means to rein in the runaway judiciary, the one branch of government we most count on to check power grabs by the legislative and executive branches will itself become a grave threat to our liberties and representative system of government.
The case also shines light on another aspect of the process that needs more public scrutiny — the role played by nominating commissions in pre-selecting candidates for the bench. “It would surprise me if there were not another qualified candidate among the applicants interviewed by the nominating commissions,” Owens wrote in a Dec. 29 letter complaining about the limited choices he faced. Owens then asked that such commissions put forth at least three candidates for consideration through the remainder of his term.
That strikes us as a reasonable request. But it seems to have rankled Mullarkey, leading to an overreaction — judges aren't accustomed to being challenged, questioned or given ultimatums, after all. We're not sure where this unprecedented confrontation will lead. But Coloradans have much to fear if unelected and unaccountable judges are permitted to act with impunity in such an arrogant manner.
Why then have they barricaded themselves in and require you to submit to search and seizure before you can approach them?
Worse, they don't know the law.
Granted, the laws have become unknowable. While that fault is the work of legislatures, councils, commissions, and bureaucrats uncountable, the court's cannot claim to be enforcing the “law” if they don't know it.
What is completely unacceptable is that judges do not seem to know either the state or federal Constitutions and the individual freedoms guaranteed therein. Or if they do know them, they most certainly ignore them. Jurists have often convinced themselves that because they hold their opinions strongly that they therefore hold strong opinions.
It has long been noted that the closest approach to an aristocracy in this country are our judges. While we would like to have jurists isolated from politics that definitely has not been the case under present selection criteria. A judge in Colorado is now is appointed for two years and then stands for retention every six years thereafter. Even if the judicial review commission (a political joke) takes the highly unusual step of not recommending a judge for retention, an uninformed electorate commonly votes to keep them on the bench anyway.
Just as tenure in universities has become corrupted to the point that no professor who looks as though they may stand up for themselves ever gets tenure, no attorney who is outspoken or challenges the courts will ever be selected to sit on the bench.
Bland is not better when it involves defending our fundamental freedoms.
A very successful organization in America, with wide public acceptance, and the same underlying essential need of society for the institution, is the military. They have evolved a very successful method of insuring that the system doesn't become stale, even short of combat. Military officers are either promoted within fixed time windows or they are asked to leave the service.
Why not institute the same practice in our courts. We certainly have a surfeit of attorneys to draw upon. Thus, it is suggested that:
• With rare exceptions, a suitably qualified person wishing to become a jurist would be appointed/elected a magistrate in a municipal, county, or district court for a period of eight years.
• No jurist could stand for appointment/election to the same bench twice and must have experience on the next lower bench before being eligible for promotion to the next level. In Colorado the progression would be from magistrate/municipal to county to district to appeals to supreme with a minimum of two years experience at each level. That would approximate the military practice of up or out that serves our country so well.
• A magistrate would be required to serve for a minimum of two years after which they would be eligible for appointment/election as a judge in a county court for a period of eight years.
• If by the end of eight years a magistrate had not been elected to a higher office they would be removed from the bench and be ineligible for any other position within the Colorado court system.
• A judge at the county court level would be required to serve a minimum of two years in that position. Again they would have to be promoted within eight years to the district court as a judge or lose their position with Colorado courts.
• From the bench as a district judge they would be eligible after two years for promotion to the Colorado Court of Appeals. Failing that, after eight years they would step down and out with a maximum of 24 years on the bench.
• It is suggested that retirement benefits be limited to district or higher-level judges with a minimum of 20 years on the bench.
• From the Court of Appeals the same process would apply for appointment/election to the Colorado Supreme Court where they could serve for a maximum of eight years. That would make a maximum of forty years any jurist could serve in the Colorado courts.
• Successful jurists would also be in demand for appointment as Federal judges. That would create openings for people to move up and provide alternatives for those in the system.
The advantages to such a system seem obvious:
• A jurist could not linger on the same bench for their entire career with all the stale biases and prejudices inherent in that.
• Judges would be forced to compete for advancement.
• New jurists would be brought into the system on a regular basis.
• Deadwood would be gradually weeded out.
• Their terms would be guaranteed for eight years so they would be relatively free of politics but not of the populace.
A lateral transition at any time should also be possible if the person finds they are not suited, or dislike being a judge. Individuals with experience on the bench are in demand as arbitrators, mediators, in law firms, or possibly in other public positions
Whether judges should be appointed or stand for election for their eight year terms is a matter to be debated. There are advantages and disadvantages to both an election process and political appointments. The critical factor would be that the bad ones would be around for only a finite amount of time.
Our suggestion would be that magistrates be appointed by the governor, but, to move up, all judges would have to be elected to their next position. Given that all jurists would have to move up or out within eight years from their present position, there would likely be competition for available seats. Judges would then rarely run unopposed as they do now. And competition almost always improves the product.
Once paternity is determined, the interest of the State should be in ensuring the full development of the child. From all available evidence, that is best done by ensuring a stable family environment that cannot be broken by either of the parents, by a family judge, or by a social agency except in cases of death, physical disability, or mental incapacity. Thus, for the first 18 years of their youngest child's life, a fundamental interest of the State is to encourage the parents to live together with their children.
Instead our courts encourage and foster divorce by making it profitable for women. As a result by 2009 only about 12 of every 100 children are born to a couple who are married and remain married until the child reaches their majority.
In her February 10, 1999, article the popular columnist Kathleen Parker has called for dismantling the divorce industry. Without mincing words she states that: “The system of adversarial attorneys, advocacy agencies and judges constitutes an industry that deserves to be outlawed for crimes against humanity.” Continuing, she states that: “One thing's clear: Anything couples can do to avoid the courtroom battlefield, where people who once loved each other become winners or losers, has to alleviate if not forestall most post-war trauma.”
A courtroom should be the last place couples having difficulties with their relationship should end up. Instead, under current laws, a courtroom is frequently the first place couples find themselves, with no way out.
The courts presently are a major factor in the success of emotional terrorists and directly support divorce-related malicious mother syndrome. These afflictions on mankind would cease to exist if our courts enforced their own orders for child visitation, made joint custody the standard, and treated men and women as equals.
According to the August 23, 2000, Denver Post (p. B1) the Governor's Task Force on Civil Justice Reform, headed by a former Colorado solicitor general and a former head of the Colorado Bar Association, the civil justice system is said to be in a “near crisis state,” and that has not improved in the years since. Assisting the co-chairs are five separate committees consisting of several Supreme Court justices, district court judges, deputy attorney generals, veteran lawyers, state legislators, and business people. In our opinion they have put the foxes to designing the hen house. And it would pay to bear in mind that a camel is a horse designed by a committee.
The predictable result of their deliberations is a recommendation that we spend more money and hire more judges. However, there were recommendations that the use of alternate methods of settling disputes be expanded, and that more pro se services be developed for those who cannot afford the outrageous fees attorneys charge today. These sensible recommendations are welcome but are the tip of the iceberg and the ship of state is near being hulled which, by 2009, seems to have occurred.
Mediation and counseling are critical in a divorce. Mediation or counseling won't always work but it will frequently enough to relieve a major financial burden on the individuals and the courts. It will also act to protect the civil rights of the parties involved. The only people hurt by such an approach are lawyers and the domestic violence industry.
Where mediation and counseling fail, and a couple desire to separate, arbitration should be tried, rather than having the man arrested, and then dueling through attorneys.
Our recommendation is that the courts only become a party in marital affairs when children are involved, and then only to the extent that the terms of a paternal contract are in place and must be enforced.
Presumptive custody of any children should go to the Respondent, the parent who does not file for the divorce. Exceptions are, of course, necessary for such cases where the Respondent was disabled or mentally incompetent on the date the dissolution was filed, missing or in prison for more than six months prior to filing, or Respondent voluntarily surrendered primary custody, or the Respondent had been convicted by a jury on charges of domestic violence or sexual abuse prior to the date the dissolution was filed.
Possession of the family home should be left in the hands of the Respondent (the one who does not file for divorce) unless the Petitioner clearly owned the home prior to the Respondent taking up residence there. It should also be the objective to keep the children living in the marital home whenever possible.
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