Colorado Supreme Court Justice Mullarkey to step down from the bench

By Marianne Goodland

Colorado Supreme Court Chief Justice Mary J. Mullarkey has announced she will retire from the bench, effective Nov. 30, 2010.

Mullarkey, the court’s first woman chief justice, was appointed to the Supreme Court in 1987 by Gov. Roy Romer. Her fellow justices selected her to be chief justice in 1998.

A native of New London, Wis., Mullarkey graduated from St. Norbert College and the Harvard Law School.

Mullarkey’s legal career began in 1968 when she took a job with the U.S. Department of the Interior, working on federal water and power issues, according to a 2006 profile in InsideMS. She switched to working on employment discrimination during the Nixon administration, and in 1973 joined the Equal Employment Opportunity Commission and moved to Denver.

In 1975, Mullarkey became chief of the appellate section of the Colorado Attorney General’s office. She also served as the state’s Solicitor General and as a legal advisor to Gov. Richard Lamm.

In announcing her retirement, Mullarkey, 66, said “the highest calling for any attorney is public service. I feel lucky I have had the opportunity to serve, and have greatly enjoyed not only the work of a Supreme Court justice, but also the relationships I’ve formed with my colleagues and others in the Judicial Branch.”

Colorado Supreme Court Chief Justice Mary J. Mullarkey swears in the Colorado Senate at the start of the 2009 legislative session.

Mullarkey is the recipient of the 2002 Mary Lathrop award from the Colorado Women’s Bar Association and the 2003 Judicial Excellence award from the Denver Bar Association.

Mullarkey was diagnosed with multiple sclerosis in 1994 but went public about it in 2002. In 2005 she was named the National MS Society Achiever of the Year. She told Inside MS that “living with MS has taught me you have to get over not wanting to ask for help. I calculate the dangers of doing nothing to be far more risky than not trying to achieve your dreams.”

In a statement issued after Mullarkey’s announcement, Gov. Bill Ritter said she had “faithfully interpreted Colorado’s Constitution, statutes and values. Her strong leadership, wisdom and respect for the rule of law have guided the Court through many difficult and challenging issues…[she] has helped shape our legal landscape for the better, and we will benefit from her rulings, her public service and her legacy for years to come.” Ritter also praised Mullarkey for working with his administration and the Legislature in a bipartisan manner and that she was a “driving force” behind the Ralph L. Carr Colorado Judicial Complex, which is scheduled for completion in 2013.

It will be up to the remaining Supreme Court justices to select a new chief justice, but a nominating commission will begin review applications for the seat to be vacated by Mullarkey on August 16. The commission includes former state Rep. Bill Kaufman of Loveland; retiring Colorado College President Richard Celeste, and Denver Chief Deputy District Attorney Lamar Sims. The 15-member commission has eight non-lawyers, appointed by the governor; the seven lawyer members are appointed jointly by the chief justice, attorney general and governor. The current commission, which has one at-large vacancy, is made up of six Democrats, five Republicans and three members who are unaffiliated.

Once the nominating commission has reviewed applications, it will submit three nominees to the governor for his review and appointment. That list must be submitted no later than 30 days after Mullarkey retires, leaving the appointment as one of the last official acts for Gov. Bill Ritter.

If Mullarkey waited until the end of the year to retire, her successor would be appointed by the next governor.

Had Mullarkey stayed on the bench, she would have been up for retention in November, one of four Supreme Court members who could be up for that vote. Justice Michael Bender has announced he intends to stand for retention, but two other justices, Alex Martinez and Nancy Rice, have not yet announced their intentions. They have until Aug. 2 to do so; if they decide not to stand for retention, the nominating commission must get to work to find their replacements.

Mullarkey’s term as chief justice has seen a number of controversial court decisions that have made her a target for conservatives who were looking forward to the November retention vote.

In 2003, the Colorado Supreme Court struck down the Republican-controlled legislature’s attempts to redistrict in what became known as the “midnight gerrymander,” in which Republicans pushed through legislation redrawing congressional boundaries in the last three days of the 2003 session. The majority opinion, delivered by Mullarkey, declared the boundaries could only be redrawn once every 10 years, and that had been done by a Denver judge the previous year, after the General Assembly failed to do so earlier in the year. The case was appealed to the U.S. Supreme Court, which denied the appeal.

The Mullarkey court also drew criticism over a 2009 decision affecting the state’s School Finance Act. The case, Mesa County Board of County Commissioners v. State of Colorado, center on a 2007 law that allowed school districts where “de-Brucing” had taken place to “freeze,” rather than decrease, mill levies, used to determine the rate of local property taxes that support the school district. In her majority opinion, Mullarkey wrote that the law did not violate the Taxpayers’ Bill of Rights, as had been argued by the plaintiffs.

In the 2008 Barber v. Ritter decision, the Mullarkey court, in an opinion written by Justice Bender, said that the transfer of monies from special cash funds to the state general fund was not a “tax policy directly causing a net tax revenue gain” and was not a new tax or tax increase that would be subject to TABOR.

Also in 2008, in Town of Telluride v. San Miguel Valley Corp., the Mullarkey court upheld a lower court decision that said that Telluride, a home-rule municipality, was within its rights to condemn 572 acres of land for open space and park purposes.

Mullarkey and the other three Supreme Court justices up for retention this year are in the crosshairs of Clear the Bench Colorado, an organization founded last year by Matt Arnold in the wake of the Mesa County decision.

Arnold told The Colorado Statesman that the Colorado Supreme Court under Mullarkey met the definition of an “activist court. They went out of their way to open a new loophole in the constitution” that led to the General Assembly’s legislation repealing tax exemptions and credits in the 2010 session, and increasing car registration fees to fund motor vehicle office operations in 2009.

In the Telluride case, Arnold said the court decision “grossly expanded the use of eminent domain” and put property rights at extreme risk from local governments.

He also criticized the 2003 redistricting decision, calling it “Mary-mandering,” and warned that a nightmare similar to 2003 would likely happen next year when census results come in and the Legislature must redistrict congressional boundaries.

Arnold said he viewed Mullarkey’s decision to retire as a “partial victory. She saw the writing on the wall,” he told The Statesman. “She would have faced a very tough battle to retain her seat, but saw the prospect of a loss” and possibly becoming the first chief justice to be voted out of office. “It would have been a greater victory had she decided to fight it out,” he said. “She decided to quit instead of face accountability.”

Arnold said that voting for judicial retention is an important civics lesson, one that he said lets justices know they are accountable to the citizens. “Justices have violated their oaths to act as impartial referees and instead have become very partisan players in the process,” he said.

Mullarkey turned down an opportunity to be interviewed for this article.