The Due Process Clause of the Constitution safeguards
the right to impartial judges
and requires recusal of judges who are or who appear to be biased.
-- Hon. Michael L. Bender, Colorado Supreme
If the judge in your case would lose his home if
he ruled in your favor, you probably wouldn't expect to get a fair hearing
in his court. Well, that is precisely what happened to me in Smith
v. Mullarkey, No. 05-SA238 (Colo. Oct. 17, 2005) (per curiam) -- arguably,
the most brazen act of arrogance ever seen in an American court. In
that case, justices of the Colorado Supreme Court purported to decide a
lawsuit in which they were defendants in their individual capacity.
"No man can be judge in
his own cause."2 This
foundational principle of law was acknowledged in the Federalist Papers,3
and in the English common law two centuries before that.4
As the Colorado Supreme Court explains:
[t]he first ideal in the administration of justice is that the
judge must be free from bias and partiality. Men are so agreed on
this principle that any departure therefrom shocks their sense of justice.
… We are equally certain that when … a judge is prejudiced or otherwise incompetent
to hear or try a cause, but nevertheless, proceeds in that regard, the issues
are not likely to be determined and the rights of the parties properly protected
and enforced in a court over which he presides.5
As Colorado law expressly provides that judges of
the Court of Appeals can sit on the Supreme Court in their stead,6
there is no conceivable reason why a Colorado judge should ever hear a case
in which he is a defendant. But this tale is about the arrogance
of power -- and the pervasive belief among American judges that they are
somehow better than you, and that laws are made for lesser men.
In theory, judges can be removed from
office and even criminally prosecuted for criminal acts committed on the
bench. But in the real world, prosecutions are exceptionally rare --
mostly, because prosecutors and disciplinary agencies are loath to do the
jobs they are sworn to do. As evidence, I offer the following:
Letters to Attorney General John Suthers
(reformatted in html)
(hand-delivered to an aide)
Complaint to Denver District Attorney
letter to DA Mitchell Morrissey
complaint listing judicially noticeable facts
with ADA Pat Wegner
letter to DA Morrissey
Colorado Commission on Judicial Performance
letter to Commission chair Mike Norton
(he actually blocked my address with a spam filter)
to Chairman Norton
Other correspondence to and from
the Commission's Executive Director
Harrington to Rick Wehmhoefer, Mar. 31, 2006
(asking RW why his agency
didn't have authority to do
what it specifically said it had done in its annual report, as published
in the Colorado Lawyer)
Wehmhoefer's response to Sean Harrington, Apr. 12, 2006
Harrington to Rick Wehmhoefer, July 3, 2006
(reiterating his point with
regard to delayed judicial rulings)
Wehmhoefer's response to Sean Harrington, Jul. 12, 2006
(again, not doing
Harrington to Rick Wehmhoefer, Jan. 4, 2007
(asking RW why he still
hadn't done anything)
(other documents may be added as space is made available)
1. People v. Julien, 47 P.3d 1194, 1202 (Colo. 2002) (Bender,
J., dissenting; citations omitted).
Hobbes, Leviathan, Ch. 23, reprinted at, e.g., http://etext.library.adelaide.edu.au/h/hobbes/thomas/h68l/chapter23.html.
80 (Alexander Hamilton), reprinted at, e.g., http://teachingamericanhistory.org/library/index.asp?document=763.
4. Earl of Derby's Case (1614), 12 Co.Rep.
114, 77 E.R. 1390.
5. People ex rel. Burke v. District Court,
60 Colo. 1, 4, 152 P. 149 (1915).
6. Judges of the court of appeals "may
serve in any state court with full authority as provided by law, when called
upon to do so by the chief justice of the supreme court." C.R.S. §