Denver Bar Association
December 2011
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In First Year, Chief Justice Michael Bender’s Projects Take Aim at Access to Justice and Court Efficiencies

by Ericka F. Houck Englert

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aybe it’s the Hawaiian shirt. Or the shelves bearing family photos and artifacts reflecting the life of a beloved father of five. Perhaps it’s the hearty laugh that comes easily in conversation. There is much about Chief Justice Michael L. Bender that makes him seem like a regular guy, not the highest-ranking legal official in Colorado.

However, as the Colorado Supreme Court’s Chief Justice for the past year, he has shown he’s an idea man who believes in the courts as an effective place for dispute resolution and who is bent on challenging the conventions of Colorado’s legal system to make real changes to how lawyers do business in the state. Don’t let the Tevas fool you.

Since joining the bench in 1997, Bender has overseen and partaken in a number of initiatives. Among other things, he’s helped increase the number of judges statewide, seen a modernization of how case loads are weighted in the trial courts, and overhauled the attorney discipline process—a system that is now a model for states nationwide.

As Chief Justice, Bender oversees the 3,500 employees who make up the state’s 22 judicial districts, Court of Appeals, and Supreme Court. His goals moving forward fall under the broad umbrellas of access to justice and efficiency in the courts. The Court’s current projects include:

• Developing a post-conviction motion court that would take the first cut on the resource-intensive habeas, Colo.R.Crim.P. 35(a) and (c) petitions filed by thousands of prisoners. Pilot courts are slated for Arapahoe, Weld, Chaffee, Park, and Fremont counties.

• Further integrating evidence-based sentencing by assessing an offender’s risk and needs to better protect the public, as well as reducing the offender’s risk of recidivism. Select offenders may be monitored on probation instead of going to prison, saving substantial resources.

Chief Justice Michael Bender in a family photo.
Chief Justice Michael Bender in a family photo.
 

• Increasing pro bono work done by Colorado lawyers, especially to indigent veterans.

• Establishing e-filing in all cases filed in Colorado.

• Increasing self-help resources such as self-help centers in courthouses and self-help YouTube videos (an example is Adams County’s video on service of process at http://bit.ly/Adamsservice).

• Revising the pattern criminal jury instructions with an emphasis on plain language.

• Improving efficiency in civil litigation with rule revisions that will require more upfront disclosure and increase the role of the trial judge. A pilot program in the Denver metro area will run for two years starting in 2012 (See article on page 16 for more information).

• Improving communication among the many courts and looking for common solutions to recurring problems.

Fewer than 15 years ago, Bender was slugging it out as a trial lawyer. He was known as a competent, skilled attorney willing to take on a range of matters, including discrimination, murder, divorce, personal injury, and grievance cases. “I was comfortable in the courtroom . . . I could cross-examine,” Bender said. In support of the Chief’s application to the Colorado Supreme Court in 1996, Judge Richard Matsch of the District Court for the District of Colorado referred to Bender as the consummate advocate. It was a well-earned reputation.

Born in the Bronx, Bender grew up in Westchester County, N.Y. His father was a former U.S. Attorney in the Southern District of New York who eventually became a specialist in criminal tax fraud. Bender’s brother, also an attorney, is a career prosecutor in Westchester County. Bender knew he’d eventually go to law school but, “the question was where.”

On summer break from Dartmouth College, he came west for the first time, to Wyoming and Colorado. He spent that first summer on a road construction crew near Worland, Wyo., and fell for the Rocky Mountains. After college and a string of summer jobs, including working as a waiter at a country club and as a bellhop, Bender enrolled in the University of Colorado School of Law, graduating in 1967. While in law school, Bender clerked for John Kane at the state’s first Public Defender’s Office in Adams County. Today, Kane is a federal judge for the District of Colorado.

After graduation, Bender began a fellowship in sociology and criminal law at the Institute of Criminal Law and Procedure Masters Program at Georgetown but left in 1968 to join the Colorado Office of the Public Defender.

Soon after leaving the public defender’s office in 1971, Bender took on one of the most influential cases of his career. As just a third-year attorney, Bender represented two African American women and one Hispanic woman in a larger discrimination suit against the Denver Police Civil Service Commission. The case, Hogue v. Bach, desegregated the Denver Police Department and was one of a handful of cases across the country that changed testing requirements nationwide for police officers.

During the next 25 years, Bender’s career took him through public and private practice, including a stint as the Associate Regional Attorney for the Equal Employment Opportunity Commission in Denver; a period as the head public defender in Jefferson County, where he defended two death penalty cases; a one-year stint at Gibson Dunn & Crutcher in Los Angeles; private practice as a partner with Larry Treece; and practicing law on his own.

In 1987, Bender famously represented David Lane, one of four defendants accused in the killing of radio personality Alan Berg. As The New York Times reported at the time, prosecutors alleged that “Mr. Berg was singled out for assassination because he was a Jew and because his personality incurred the anger of white supremacists.” Bender, who also is Jewish, put aside his personal beliefs to defend Lane, who was ultimately convicted of civil rights violations.

It is clear Bender enjoyed his days as a trial attorney. When pressed, he’ll concede that maybe he “objected too much,” but Bender was skilled in his craft. “The courts weren’t as busy and trials were more frequent,” he recalled. “We had more opportunities to be lawyers.”

At the urging of then-Chief Justice Joseph Quinn, Bender applied for an opening on the Colorado Supreme Court and was appointed in 1997. He has thrived during his time there. The most rewarding aspect of his job: “The law clerks. There’s a real give and take intellectually. I learn as much from them as they do from me.”
Bender also was surprised to find he liked the administrative aspects of the job. In addition to the many initiatives he has taken on, Bender has taken on the project of overseeing the construction of the Ralph L. Carr Colorado Judicial Center, which will house all major state legal agencies. The building was the idea of former Chief Justice Mary Mullarkey and is due for completion in the spring of 2013.

When Bender discusses the building, it’s clear he’s passionate about the law and its role in society: “[The building] will symbolize the rule of law and the judiciary. ... It will reflect a co-equal branch of government and what the justice system means in serving the people of a democratic government.” It also will reflect the career of Ralph Carr, a Colorado attorney and governor who, like Bender, dedicated his career to serving people. D

Cover photo and photo at left by Jamie Cotten. Above photo provided by Michael Bender.


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