By Louis Jacobson, STATELINE

Joyce Nalthcayan, Getty Images Independents this year are looking to follow in the footsteps of former governor Jesse Ventura in a season when both parties are less popular. This would seem an ideal time for candidates from outside the two-party system to run for governor. And a few of them are attracting some legitimate attention.In this volatile election year, third-party and independent candidates are making serious bids for governor in a diverse array of states. Most of them won’t get many votes, but a fair number stand to influence the results and it’s possible that at least one may make it into office. In Rhode Island alone, a handful of independents are running. The most prominent one is former U.S. Senator Lincoln Chafee, who served in Congress as a moderate Republican until his defeat in 2006. Polling has showed Chafee either leading the race for governor or modestly trailing Democratic nominee Frank Caprio. In Massachusetts, state Treasurer Tim Cahill broke with his Democratic roots to run as an independent against incumbent Democratic Governor Deval Patrick. Recent polls show that he could get as much as 10 percent of the vote, which is greater than Patrick’s current margin over Republican nominee Charles Baker. In Minnesota, Tom Horner is running under the banner of the Independence Party, the successor to the party once led by Jesse Ventura. Horner, a moderate with a Republican pedigree, is hoping to draw Democrats who see their party’s nominee, former U.S. Senator Mark Dayton, as too liberal, and Republicans who see GOP candidate Tom Emmer as too conservative. Horner has been polling at about 14 percent, which is much more than Dayton’s four-point lead over Emmer. And in Colorado, former Republican U.S. Representative Tom Tancredo, who has been an outspoken opponent of illegal immigration, may end up outpolling the official Republican nominee, Dan Maes, a Tea Party activist who inherited the nomination after the leading GOP candidate stumbled in a plagiarism scandal. Current polls show Tancredo taking 18 percent of the vote, about the same percentage by which Democrat John Hickenlooper, the mayor of Denver, is leading over Maes. Given the number of these credible outsider challenges, it seems appropriate to look back at recent third-party governors to see how they fared once they won office, given that they lacked a major-party infrastructure and fellow partisans in the legislature. Conviction and convenience Since 1970, five governors have been elected as independents or as nominees of a third party. Two were from Maine — James B. Longley in 1974 and Angus King in 1994 and 1998. The others were Walter J. Hickel of the Alaskan Independence Party in 1990, Lowell P. Weicker Jr. of A Connecticut Party in 1990, and Ventura of Minnesota’s Reform Party in 1998. Experts tend to divide them into the categories of independent by conviction (Longley and Ventura) and independent for reasons of electoral strategy or convenience (Weicker, King and Hickel.) The independents of convenience have tended to work more effectively in office. Hickel and Weicker, who both had had long careers in their home states as Republicans, became independents mainly as a matter of strategy. Hickel had served most of one term as a Republican governor of Alaska before joining the Nixon administration as U.S. Secretary of the Interior. He was ousted from the cabinet after taking a number of unexpectedly pro-environmentalist stances, and then won back the governorship in 1990 under the banner of the Alaskan Independence Party, which had been born as a secessionist party but became his vehicle. Toward the end of his second term, Hickel returned to the GOP fold. Weicker, who had represented Connecticut for 18 years in the U.S. Senate as a moderate Republican, ran as a third-party candidate in 1990 to sidestep what would have been a tough Republican primary against more conservative opposition. His high name recognition enabled him to build a third party and win the governorship with 40 percent of the vote. King’s background had been in the Democratic Party in Maine. But in the words of his strategist, Christian Potholm, he took his chances as an independent because “he was afraid the odds were stacked prohibitively against him” in a Democratic primary against former two-term governor and two-term congressman Joseph Brennan. Starting the campaign as a relatively obscure energy entrepreneur and public TV host, King ended up defeating Brennan and Republican Susan Collins with a bare 35 percent of the vote. He was successful enough as governor to be reelected to a second term by a large margin in 1998. Weicker’s signal triumph as governor of Connecticut was the establishment of an income tax in 1991. King, for his part, was successful in enacting a temporary income tax surcharge and secured passage of a program toprovide laptop computers for every middle school student in Maine. On the fringe The other two third-party governors were more truly outsiders. Longley, the Maine politician who blazed a path for King 20 years earlier, was an independent by conviction. He positioned himself as an outsider, railing against what he called “professional politicians.”  He said he was someone with “no axes to grind, no political debts to pay.” Before running, he had chaired a state commission charged with recommending sharp budget cuts, an experience that placed him in opposition to key interest groups. And in 1974, a year of political upheaval after the Watergate scandal, the voters bought his arguments. As governor, Longley continued to take an aggressively adversarial stance. After his election, Longley regularly sparred with legislators and the media, and he cast more than 100 vetoes in just one term. Ventura — the bulky, blunt-spoken wrestler who won Minnesota’s governorship in 1998 — took Longley’s approach to the next level. Dismissed by the political class at first as an outlandish celebrity, Ventura harnessed voter frustration with both government in general and staunch partisanship in particular, offering a socially moderate, fiscally conservative platform and a promise of adding fresh air to a stale political culture. Ventura initially lived up to his ambitions. He appointed what is still considered by many to be one of the most talented cabinets in the state’s history, and established a new process for vetting state supreme court justices. He accelerated progress on mass transit and a Twin Cities light-rail system. After winning office with just 37 percent of the vote, he soon had approval ratings of around 70 percent. Eventually, though, Ventura appeared to get bored with the job, at one point signing up as a football commentator while still holding the governorship. That move helped sour voters on his tenure. “He had no fellow partisans in the Legislature, so both major legislative parties attempted to manipulate him,” says Carleton College political scientist Steven Schier. “He responded by trying to ignore the Legislature and to approach it, only when necessary, with overt hostility. Initially he traded on his celebrity, but as that and his popularity faded, he was left with very few political resources.” Among the candidates running this year, Chafee of Rhode Island most closely follows the Weicker model — a moderate-to-liberal Republican with high name recognition who became an independent after falling out of step with his original party. Cahill of Massachusetts approximates Angus King, a Democrat running as an independent in order to challenge a major figure within his own party. Horner of Minnesota shares some of the policy positions of his predecessor Ventura but has a mild-mannered approach that is 180 degrees from the former wrestler’s flamboyant style. It’s reasonable to suppose that if any of these three candidates were to win, they would at least have a shot at governing successfully. In Rhode Island’s case, if Chafee were to win, it would continue his state’s voters’ apparent preference for someone other than a Democrat to face off against the heavily Democratic Legislature. “If Chafee wins, he could continue the counterbalance that voters have preferred the last four elections,” says Lisa Pelosi, a leading Republican in the state. The one thing that all of the independent governors share to one degree or another is an inability to institutionalize electoral success. King came closest with his easy second-term victory. While the third parties in Maine and Minnesota still exist, however, neither King nor Ventura worked especially hard on their behalf. Weicker’s A Connecticut Party all but died within a few years of its founder’s departure from the governor’s mansion, and Hickel went so far as to leave his adoptive party before his term ran out. — Contact Louis Jacobson at editor@stateline.org

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By John Gramlich, Stateline Staff Writer

Charlie Neibergall, the Associated Press Bob Vander Plaats speaks during a news conference in front of the Iowa Judicial building. Vander Plaats, a social conservative, is trying to persuade Iowans to vote “no” on the retention of three judges as a way to punish them for their role in a 7-0 Supreme Court ruling last year that legalized same-sex marriage in Iowa. Marsha Ternus, the chief justice of the Iowa Supreme Court, is unopposed in her bid for reelection this November. It will probably be the toughest campaign of her life.Ternus, along with two of her colleagues on the court, find themselves in a situation rarely encountered by appointed judges in the United States. They are the targets of an organized effort to turn a judicial retention election — a simple “yes” or “no” vote on whether an initially appointed judge should remain on the bench — into a political battle. The election is drawing national money and attention, and already has more in common with a contested race for governor or attorney general than it does with the ordinarily mundane process of voting on a sitting judge’s record, with no other names on the ballot. The unusual effort is the brainchild of Bob Vander Plaats, a well-known figure in Iowa politics who waged a strong campaign in the state’s Republican gubernatorial primary in June. Vander Plaats, a social conservative, now is trying to persuade a majority of Iowans to vote “no” on the retention of Ternus and justices David Baker and Michael Streit as a way to punish them for their role in a 7-0 Supreme Court ruling last year that legalized same-sex marriage in Iowa. Ternus, Baker and Streit are the only members of the court who face a retention vote this year, and ousting them would trigger a process in which the governor — currently Democrat Chet Culver — would name three replacements. It would have no impact on the gay-marriage ruling itself. Even though it was unanimous, the high court’s ruling has been controversial since it was handed down last April. It made Iowa the first state in the Midwest to allow gays and lesbians to wed, and conservatives are upset that Democrats who control the General Assembly have refused to give residents a direct say on a constitutional amendment to ban gay marriage, which could overturn the court’s ruling. While gay marriage is the stated focus of Vander Plaats’ campaign, supporters and critics alike agree that the election is about far more than same-sex weddings, and that it reaches beyond Iowa. What is really at stake, they say, is the future of the state judiciary in America, and whether appointed judges in states that do not have contested judicial elections — and who may not be comfortable with campaigning — will start to become beholden to popular opinion in ways they never have before. “I think it’s fair to say that it gets judges’ attention around the country,” says Seth Andersen, executive director of the American Judicature Society, a court-reform group at Drake University in Des Moines. Vander Plaats acknowledges that he is trying to send a message. He believes appointed judges in Iowa and other states have little accountability to the people, giving them broad latitude to make statewide decisions without concern over what residents prefer. Not only can judges redefine marriage, he says, “they can redefine who should pay taxes and how much, who can own and carry a gun and whose private property rights get protected — or do not.” But to critics of Vander Plaats, judicial independence is precisely the point, and they say an orchestrated effort to punish a trio of judges for a single decision that was unpopular among many citizens will have a chilling effect on other potentially unpopular judicial decisions in the future. Meanwhile, the three judges at the center of the campaign have said virtually nothing at all. They have not granted media interviews regarding the retention election, and though they legally could form committees to raise money and fend off the challenge that is coming at them from Vander Plaats, they have not done that. Courts administrator David Boyd — who knows them well — says they have no intention of becoming politicians. “They could, they haven’t, and they won’t,” Boyd told Stateline, noting that outside organizations will likely have to speak and raise money on the judges’ behalf. Judicial politics ‘foreign’ to Iowa Voters in 21 states elect their high court judges directly, but Iowa and a number of other states use some form of “merit selection.” Under most statewide merit selection systems, a nominating panel submits the names of potential judges to the governor, who chooses among the options given to him or her. Voters then can weigh in on those judges by choosing to keep them or remove them in regular retention elections, with no other names on the ballot. In practice, very few are ever rejected. The system, pioneered by Missouri in 1940, is not perfect. Questions have been raised in many states, for example, about whether the panel that initially submits the names of potential judges to the governor is tinged by politics, even though it is called nonpartisan. In Iowa, seven of the 15 members of the panel that nominates potential Supreme Court justices are Democrats and another seven are members of the Iowa State Bar Association, a lawyers’ group that is frequently characterized as Democratic-leaning. The final member of the panel is a sitting Iowa Supreme Court justice. By and large, however, merit selection has become a favorite of court-reform groups because retention elections can serve as a way to keep judges accountable to the public while sharply reducing the influence of special interests in head-to-head judicial races. The Brennan Center for Justice issued a report last month documenting a surge in costs for judicial elections over the past decade, and critics of such contests say huge campaign contributions from trial lawyers and pro-business groups, nearly always on opposing sides, raise questions about whether elected judges can remain neutral. “If a judge has been campaigning and asking special interests for money,” says Norbert Kaut, a spokesman with Iowans for Fair and Impartial Courts, “that undermines and corrodes the faith that the citizens have in their court system.” Kaut and others say this year’s campaign by Vander Plaats is historically significant because it injects national politics and money into a retention election that ordinarily would be free of both elements. The influence of well-funded outside groups on judicial elections, Kaut says, is “really quite foreign to us in Iowa.” National implications Retention elections have been used before as a way to punish judges for politically unpopular decisions. In previous decades, state high court justices in California, Nebraska and Tennessee have been targeted for defeat in retention elections, sometimes because of a single unpopular decision over a social issue such as the death penalty. This year, efforts also are under way in Illinois and Kansas to oust sitting state high court judges in retention elections. What sets this year’s campaign in Iowa apart from earlier initiatives is that Vander Plaats is trying to remove nearly half of a state’s highest court and that he is mounting an unusually high-profile challenge. Meanwhile, a sitting state Supreme Court justice from Alabama, Tom Parker, last month took the extremely unusual step of weighing in on Iowa’s election, publishing an op-ed in The Des Moines Register that urged Iowans to punish Ternus, Streit and Baker for their decision on gay marriage and attacking the state’s method of choosing judges. Alabama holds head-to-head judicial elections, and Parker faces reelection this year in his home state. In an interview, Parker called the huge sums raised by many judicial candidates in Alabama “obscene.” But he said that providing a direct choice to the people provides a level of accountability that the merit selection systems cannot provide. And he said that, in the end, the quality of the candidate is more important than the money raised. “I’ve been outspent by huge multipliers in my elections,” Parker said, “but it has not made a difference.” But the pro-retention side has some big-name opposition available to counter the arguments of Parker and Vander Plaats. Former U.S. Supreme Court Justice Sandra Day O’Connor visited Des Moines on September 8 to argue in favor of merit selection. “The health of the nation is affected by the system we use to pick judges,” O’Connor said. “As Iowa goes, so goes the nation.” See related stories: Nasty judicial races renew complaints (12/6/200″ —Contact John Gramlich at jgramlich@stateline.org

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By Debi Brazzale, COLORADO NEWS AGENCY

A measure dubbed the “Make My Day Better”  law was shot down by the House Judiciary Committee Monday  at the Capitol for the second year in a row. Only one Democrat broke ranks in support of the proposal in an otherwise party-line vote.

The measure, House Bill 1094, would have allowed the use of deadly force without fear of prosecution on the part of a business owner, manager, or employee under certain conditions.   Current law already gives immunity to homeowners who are defending themselves against intruders under the state’s Make My Day statute.

House Judiciary Chair Claire Levy, D-Boulder, said that the measure is too simplistic and may offer businesses too much wiggle room, essentially becoming a license to kill someone unjustifiably.

‘The language of this bill is very simple. If you’re concerned that there might be the use of force, no matter how slight, you get to shoot to kill,” said Levy. “It would be a shield against prosecution.”

Yuma Republican Rep. Cory Gardner, sponsor of the measure, said his bill would act as a deterrent to would-be criminals by letting them know that business owners, like homeowners, have the right to protect themselves.

“People have the right to protect themselves and … we ought to give law-abiding citizens the tools they need to do so,” said Gardner, noting crime rates have declined since 1985, when the original Make My Day law went into effect for homeowners.

“The last thing that ought to be going through a person’s mind as they are trying to defend their life is, ‘Gee, am I going to get prosecuted for protecting my life?’  This bill says don’t worry about that as long as you are within the law,” Gardner said.

Dan Brennan, representing the Colorado Association of Chiefs of Police, told the committee there are too many variables, such as what would constitute unlawful entry into a business.

“Homes are not open to the public.  Businesses want people to walk through their front doors,” said Brennan.  “Unlawful entry may mean different things to different people.”

A representative of the Colorado District Attorneys Council also testified against the measure.

“Our concern is losing the discretion of the DA in not being able to make the determination of whether or not it is appropriate to prosecute,” the organization’s Mark Randall told committee members.

Larimer County Sheriff Jim Alderden, who came to speak for the County Sheriffs of Colorado, disagreed with both the police chiefs and district attorneys. For Alderden, the measure is simply a victims’ rights bill that empowers the victim.

“I’m probably one of the few people here who has looked down the wrong end of a handgun,” said Alderden. “I will tell you that in that circumstance time stops– it slows down and in those moments I shouldn’t have to stop and think about whether or not I’m going to be prosecuted.”

Rep. Sal Pace, D-Pueblo, the lone committee Democrat who voted in favor of the bill along with committee Republicans, said the proposal made sense to him.

“There are sufficient protections around the bill,” said Pace. “Everyone should have a right to defend themselves.”

In other coverage:

The Denver Business Journal: Business owners, holster those guns: Colorado’s “Make My Day” law still does not apply to the state’s workplaces. For the fifth consecutive year, a legislative committee defeated an attempt Monday to broaden the homeowner self-defense protections to places of business. This time, it was the House Judiciary Committee that shot down House Bill 1094, sponsored by Rep. Cory Gardner, R-Yuma, by a vote of 6-5.

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By Matt Masich, LAW WEEK COLORADO
DENVER — Who shoved whom — or whether there was a shove at all — is now moot.
In an interview with Law Week Colorado, John Gleason, head of the state Office of Attorney Regulation Counsel, or OARC, on Tuesday said his office will not ask that criminal assault charges be filed against Centennial attorney Mark Brennan.
Gleason’s office previously told Law Week that it was considering filing a complaint with the Denver District Attorney’s office over a physical altercation between Brennan and OARC prosecutor Kim Ikeler. The incident, caught on video, occurred July 16, the final day of Brennan’s three-day disciplinary hearing.
Exactly what happened in the video has been debated, but this much is clear: Ikeler walked up to Brennan from behind while Brennan was speaking at the podium; Ikeler’s chest made contact with the back of Brennan’s outstretched arm; that contact ended a moment later when Ikeler took a quick step backward; Brennan then turned around and glared at Ikeler for several seconds.
The video also showed that Ikeler remained standing and did not return to his seat as instructed to by Presiding Disciplinary Judge William Lucero.
“This is not trial by combat,” Lucero said to Brennan and Ikeler.
After the incident, an OARC employee in the audience summoned court security personnel to monitor the remaining half-hour of the trial. The next day, OARC asked to review Law Week’s unedited video, but the newspaper’s managing editor denied the request. The relevant portions of the edited tape were ultimately posted online for all to see.
Gleason said the ultimate decision whether to pursue an assault complaint rested with Ikeler, who chose not to.
Brennan, who has described the case against him as a “show trial,” told his side of the story in an e-mail: “I did not shove Ikeler, but put out my hand as I faced the bench and he approached from behind, against which he pushed unsuccessfully. He assaulted me, in violation of repeated court orders that he stay away from me.”
Brennan was representing himself against allegations that his behavior in a 2006 civil trial in Colorado’s federal court violated the Colorado Rules of Professional Conduct. Gleason’s office asked a three-judge disciplinary panel that Brennan be suspended as a result. The panel will release its decision in the next few months.

WATCH THE VIDEO HERE:

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By Matt Masich,, LAW WEEK COLORADO
DENVER — The Office of Attorney Regulation Counsel accuses attorney Mark E. Brennan of breaking two Colorado Rules of Professional Conduct while representing the plaintiff in the 2006 Cadorna v. City and County of Denver trial: Rule 3.5(d), which forbids “conduct intended to disrupt a tribunal,” and Rule 8.4(d), which forbids “conduct that is prejudicial to the administration of justice.”
* Brennan’s most effective defense was video deposition of Cadorna jury forewoman Diane Dillingham. In a three-hour deposition, which was viewed in its entirety by the hearing panel, Dillingham testified that Brennan was a passionate advocate in court and was sometimes smart-alecky, but was not intentionally disruptive or abusive.
* Brennan presented notes from OARC’s interviews with seven of the eight Cadorna jurors. The notes are exculpatory. The jurors said Brennan wasn’t abusive or disruptive, and several said they would hire Brennan if they needed a lawyer. OARC had tried to keep the notes out of the record on the grounds they are hearsay. Prosecutors downplayed the juror interviews and Dillingham’s deposition, arguing that the jurors’ opinions as lay-people were not important as the prosecution witnesses, who were all lawyers or court employees.
* Brennan argued that Judge Robert Blackburn conspired with Denver officials to throw out the Cadorna verdict, using trumped up charges of Brennan’s misconduct as a pretext. Brennan also said OARC is prosecuting him as a warning to those lawyers (especially those without friends in high places) who would take on the city in a lawsuit. However, Brennan produced no evidence of these claims.
* Brennan said that some things OARC alleged that he did during the Cadorna trial are irrelevant because they happened outside the presence of the jury. For instance, Brennan admits to calling opposing counsel Jack Wesoky a “little f—ing weasel,” but that it happened in the hallway outside the courtroom. OARC contends it doesn’t matter where the alleged misconduct occurred.
* Brennan claimed the rules he is accused of violating don’t apply to his situation. The “conduct intended to disrupt a tribunal” allegation doesn’t hold up, he said, because prosecutors could not know Brennan’s state of mind at the trial and can’t prove he intended to cause disruption. Brennan also said that the “conduct that is prejudicial to the administration of justice” allegation is “void for vagueness,” and a “catchall” charge that OARC brings when no real offense occurred. Gleason and OARC contend Brennan’s behavior was so reckless as to be intentional.
The three-member hearing panel is expected to make its ruling in the Brennan disciplinary manner within two to four months. The panel is made up of Presiding Disciplinary Judge William Lucero and private-practice attorneys Edwin Kahn and Paul Willumstad.

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Mark Brennan and Kim Ikeler interact during Brennan’s disciplinary hearing last week in Denver.

Video: Law Week Colorado

By Matt Masich, LAW WEEK COLORADO
DENVER — The disciplinary hearing for Centennial attorney Mark E. Brennan became physical during closing arguments on the third and final day, when Brennan shoved and then glowered at Office of Attorney Regulation Counsel prosecutor Kim Ikeler.
Ikeler’s boss, John Gleason, said Monday that his office is considering filing with the Denver District Attorney’s office a criminal complaint against Brennan over the incident, which was caught on camera by Law Week Colorado.
Gleason’s office on Friday asked to review Law Week’s unedited videotape, but Managing Editor Cara DeGette denied the request. DeGette said relevant portions of the edited tape would ultimately be posted online for all to see.
That video accompanies this story.
The altercation occurred 6:20 p.m. Thursday when Brennan was speaking.
Here’s what followed:
* Ikeler got up from his chair and approached the podium to make an objection. On the first day of the trial, Presiding Disciplinary Judge William Lucero instructed Ikeler not to do this.
* Brennan, who had several times expressed his contempt for Ikeler, was pointing with his arm outstretched to his side when Ikeler approached him from behind. Brennan’s arm effectively barred Ikeler from walking any further. Brennan’s arm and Ikeler’s chest then came into contact, after which it appeared that Brennan pushed Ikeler back.
* Brennan next turned to face Ikeler, glaring intently at him for several seconds, then pointing his finger and shaking his head.
* Lucero called for order. “This is not trial by combat,” he said.
* Brennan then told the hearing panel that Ikeler had deliberately provoked him by violating Lucero’s order not to approach the podium when making objections. Brennan also referred to Ikeler as a “piece of sh-t.”
After the altercation, OARC staff in the audience summoned security personnel, who monitored the remainder of the trial.
In an e-mail to Law Week, Brennan gave his side of the story: “I did not shove Ikeler, but put out my hand as I faced the bench and he approached from behind, against which he pushed unsuccessfully. He assaulted me, in violation of repeated court orders that he stay away from me. He did so to provoke me. I then turned after he backed off, and told him to get away from me.”
The altercation and subsequent release of video calls to mind last year’s kicking incident by then-Rep. Douglas Bruce of a then-Rocky Mountain News photographer. In both cases, the videotape produced conflicting interpretations of what occurred.
Brennan is representing himself against allegations that his behavior in a 2006 civil trial in Colorado’s federal court violated the Colorado Rules of Professional Conduct. Gleason’s office asked a three-judge disciplinary panel that Brennan be suspended as a result.
While Gleason said OARC is considering filing the DA’s complaint against Brennan for allegedly shoving Ikeler, he said his office isn’t planning to bring any more attorney misconduct complaints because of it. Brennan’s e-mail to Law Week did not indicate whether he will pursue assault charges against Ikeler.

Distributed by Colorado Capitol Reporters

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In this video, Mark Brennan’s characterization of a witness’ “mousy presence” and his assertion that the hearing was “a witch trial” draws successive contempt citations from Presiding Disciplinary Judge William Lucero. Video: Law Week Colorado.

“I have never been in a courtroom where an attorney laughs out loud at a witness’ testimony.”
— Presiding Disciplinary Judge William Lucero

By Matt Masich, LAW WEEK COLORADO
DENVER — Colorado attorney Mark E. Brennan did himself no favors Tuesday during a disciplinary hearing to decide his professional fate, when he alternately referred to opposing council as a “worm,” and implied the father of one witness was a Klansman.
Midway through Day 1 of the three-day hearing, Brennan had already racked up two contempt citations — at $250 a piece — in a courtroom drama that could help establish the line between acceptable courtroom bluster and misconduct.
Brennan, in solo practice in Centennial, is accused of violating the Colorado Rules of Professional Conduct by engaging in confrontational behavior throughout a 2006 federal jury trial, Cadorna v. City and County of Denver – as detailed in the current issue of Law Week Colorado.
During opening arguments at the disciplinary hearing, prosecutor Kim Ikeler of the Office of Attorney Regulation Counsel said that Brennan intentionally flaunted Cadorna trial Judge Robert Blackburn’s instructions as a plan to prejudice the jury in his favor. This, along with Brennan’s allegedly abusive behavior to court staff and opposing counsel, violated two of the state rules governing lawyers, he said. One forbids “conduct intended to disrupt a tribunal,” and another forbids “conduct that is prejudicial to the administration of justice.”
On Tuesday, Brennan, representing himself, engaged in the same behavior attorney regulation cited as misconduct in its complaint: He repeatedly interrupted Presiding Disciplinary Judge William Lucero by speaking over him, and expressing displeasure with the proceeding.
Here are a few indecorous highlights from the opening arguments and examination of the first witness:
* While Brennan was speaking at the podium, opposing counsel Ikeler approached the podium to raise an objection. Brennan protested loudly, waving his arm at Ikeler to shoo him away and telling Judge Lucero, “I’m not going to have this worm standing next to me.”
* Ikeler later called as his first witness Ginny Kramer, the courtroom deputy during the Cadorna trial. During questioning, she testified the Cadorna trial lasted seven days instead of four because of Brennan’s bad behavior. At this, Brennan gave a loud, “Ha!” Lucero disapproved, saying, “I have never been in a courtroom where an attorney laughs out loud at a witness’ testimony.”
* Kramer also testified that Brennan openly defied the judge in the Cadorna trial. In his cross-examination of the southern-accented Kramer, Brennan claimed that she personally didn’t like him. He then asked her, “Was your daddy a member of the Klan in Alabama?” Lucero sustained an objection.
* Later, when Brennan asked if Kramer had ever been represented by a lawyer and she replied she had, during a divorce, Brennan asked if she and her husband were fighting over who got the “hound dog and shotgun.”
Far from winning over Judge Lucero and the rest of the three-person panel that will decide the outcome of the hearing, Brennan’s behavior seemed to alienate everyone in the courtroom. By mid-afternoon, he was slapped with two contempt citations.
In the end, the panel must decide whether Brennan’s confrontational style in the Cadorna case was “conduct intended to disrupt a tribunal,” or if it was an unintended consequence of his lawyering style.
The disciplinary proceedings continue today and tomorrow.

Distributed by Colorado Capitol Reporters

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By Matt Masich, LAW WEEK COLORADO
DENVER — Colorado lawyers are on notice to mind their manners in the courtroom.
Rude behavior such as rolling the eyes, making sarcastic remarks and interrupting the judge clearly violates the rules of etiquette — but the state’s attorney regulators say it also violates the Colorado Rules of Professional Conduct and is possible grounds for sanctions.
Attorney Mark E. Brennan knows this all too well. Last year, the state Office of Attorney Regulation Counsel filed a complaint against Brennan over his behavior while representing the plaintiff in a 2006 civil trial in the U.S. District Court for Colorado.
The complaint alleges that Brennan’s unconcealed dislike for opposing counsel and witnesses, expressed through snide comments and negative facial expressions — and his verbal sparring with the judge, Robert Blackburn, broke two rules: One forbidding “conduct intended to disrupt a tribunal” and one forbidding “conduct that is prejudicial to the administration of justice.”
The Office of Attorney Regulation Counsel, or OARC, wrote in its complaint that Brennan’s conduct was “designed to aggravate Judge Blackburn.” Brennan does concede there was tension between himself and Blackburn.
“The reason he and I butted heads was that it became more and more apparent as the trial went on that he was doing everything he could to constrain me from making my case. I deeply resented the fact he was going out of his way to help the city,” Brennan said.
This week, Brennan will appear before a three-person panel, including Presiding Disciplinary Judge William Lucero. The trio will decide whether his lapses in congeniality warrant disciplinary action, which can range from public censure to disbarment.
The disciplinary hearing will be the final act in a tumultuous last few years for Brennan. In June 2006, the Centennial-based solo practitioner won an age discrimination lawsuit and a $1.2 million judgment for his client in a suit against the City and County of Denver. In September 2007, Blackburn vacated the judgment and ordered a new trial because he found Brennan committed misconduct. (Denver eventually settled with Brennan’s client for $850,000 in December 2008). OARC initiated its investigation shortly after Blackburn issued his order for a new trial, in which the judge was scathing in his criticism of Brennan.

Clash of personalities
The complaint against Brennan can be seen as the result of the clash of personalities that occurred when the swaggering attorney and the hyper-decorous judge met in court.
Brennan stands 6’3”, with a commanding bass voice to match an imposing physical presence. He has strong opinions and doesn’t hesitate to share them.
That quality, combined with a seemingly innate distrust of authority and an irreverent, occasionally mocking, sense of humor, can make him seem aggressive or confrontational. Outside the courtroom, he makes liberal use of profanities, particularly when discussing the corruption he sees among “the leaders of the bar.”
An Indiana native, Brennan received his law degree from Stanford Law School in 1983 (he points out he was also accepted at other prestigious schools) and has practiced as a labor and employment lawyer for most of his career.
In solo practice for over a decade, he takes special pride in representing the little guy in suits against large organizations. This led him to take on the case of William Cadorna, a former Denver firefighter who brought an age discrimination suit against the City and County of Denver.
In 2006, the case went to trial in federal court before Judge Blackburn, a 1974 graduate of the University of Colorado School of Law. Blackburn was born in Lakewood, but lived much of his life in Las Animas, Colo. He has served as a U.S. district judge since 2002 and before that spent 14 years as a state district judge in Colorado’s 16th Judicial District.
Among lawyers who practice in Colorado’s federal trial court, Blackburn is known for his immense vocabulary. In his writing and speech, he not-infrequently uses words so unusual as to baffle all but the most learned lexicographer. In the courtroom, he maintains tight control over proceedings.
On the ratings Website robingroom.com — which calls itself the place “where judges are judged” — Blackburn scored a better numerical rating than most other judges in the district. The written comments on the site are a mixed-bag, perhaps indicating two sides to Blackburn’s judicial persona. Some of the anonymous posters praised his courtroom demeanor.
“He is fair, respectful, and kind to each and every person who steps foot into his courtroom,” wrote one person.
Others took him to task for his perceived imperiousness. One poster called him a “pedantic martinet with deep-seated issues and barely-concealed hostility toward plaintiffs.”

Wrestling control of the court
From day one of the eight-day Cadorna v. The City and County of Denver trial, Brennan and Blackburn seemed to get on each others’ nerves. Blackburn regularly reprimanded Brennan for continuing to question witnesses after opposing counsel made an objection and before the judge could rule on it.
Blackburn also took exception to the sarcastic editorial comments Brennan would interject while examining witnesses. Blackburn terminated Brennan’s cross-examination when the attorney remarked, “There is a straight answer” after drawing a response from an evasive witness.
Blackburn also claimed that Brennan was trying to bully him by interrupting and trying to get in the last word. After several warnings, he found Brennan in contempt of court after another interruption.
Despite the friction with the judge, Brennan won the case, and the jury agreed that his client was unjustly fired from the Denver Fire Department on false pretexts and denied reinstatement because he was over 50 years old. The $1.2 million in damages was one of the largest verdicts won in a suit against Denver — until Blackburn threw it out 15 months later.
In his order for a new trial for the Cadorna suit, Blackburn wrote that Brennan’s behavior was so egregious as to prejudice the jury and prevent a fair trial.
“Such disrespectful cockalorum, grandstanding, bombast, bullying, and hyperbole as Mr. Brennan exhibited throughout the trial are quite beyond my experience as a jurist, and, I fervently hope, will remain an aberration during the remainder of my time on the bench,” Blackburn said.
The judge theorized that Brennan intentionally flouted his authority in an effort to “to cast the court before the jury as bad tempered and nitpicking and himself as the victim of my supposed personal displeasure with him.”
Blackburn said that Brennan “successfully converted the courtroom into his bully pulpit,” wresting control away from the judge. The judge further claimed that the jury’s “verdict was the result of impermissible passion and prejudice inflamed by Mr. Brennan’s unacceptable trial tactics.”

‘Just trying to prove his point’
The issues raised in Blackburn’s order form the basis for OARC’s complaint against Brennan. In his response to the complaint, Brennan lambasted Blackburn’s new trial order.
“Judge Blackburn appears far more concerned with enforcing rules of etiquette than federal law,” Brennan wrote.
Beside the items mentioned in Blackburn’s order, the OARC complaint also mentioned other misconduct Brennan committed during the trial, such as calling an opposing lawyer a “little f—ing weasel” outside the courtroom.
In an interview with Law Week, and in his response to the complaint, Brennan readily admitted to doing this, but said it was irrelevant as it occurred outside the jury’s presence.
During its investigation, Office of Attorney Regulation Counsel representatives interviewed seven of the eight Cadorna jurors. According to notes taken by the investigator, none of them found Brennan to be abusive or disruptive during the trial. One juror reported that Brennan was “[n]ot trying to disrupt — just trying to prove his point.” When another juror was asked if Brennan was abusive or obstreperous, he answered, “Not at all!”
Curiously, the juror interviews are not being included in the regulation counsel’s formal complaint – and none of them have been asked to testify at the disciplinary hearing. Brennan, meanwhile, is forbidden by the federal court from subpoenaing them. The jury foreman did agree to give an official deposition for the OARC case in which she said Brennan was passionate and occasionally smart-alecky, but never intentionally disruptive.
Brennan is convinced that both Blackburn and regulation counsel went after him as a favor to the Denver city attorney’s office, initiating the disciplinary proceeding against him to serve as a warning to other lawyers who would take on the City and County of Denver.
“I think there are a whole lot of deep psychological levels at which [Blackburn] felt the need to bring me down,” Brennan said. “I think he enjoyed doing it, even though the real motivation was something much more concrete and involved some kind of back-scratching between a big Republican contributor and the city of Denver.”
For his part, Attorney Regulation Counsel John Gleason said such speculation isn’t worthy of response.
Brennan’s case is remarkable for a few reasons. It’s rare for a disciplinary case to go all the way to hearing. Since 2000, the regulation counsel has received an average of a little more than 4,400 complaints a year, which result in about 56 formal complaints. Of these, around 18 a year go to trial before the presiding disciplinary judge. Most end with a conditional admission from the attorney — essentially a plea bargain.
Brennan, who is representing himself in the two-day proceedings this week, is also notable for the colorful language he uses in assessing OARC’s case against him: In interviews he refers to the “pusillanimous Judge Blackburn;” calls the case against him an “unethical witch hunt;” makes references to Soviet show trials; and alludes to “the craven apparatchiks who control the legal establishment in Colorado.”
The disciplinary hearing is being held in Denver District Court. The severity of the sanctions against Brennan – or the possible dismissal of charges – will help show where Colorado draws the line between bad etiquette and misconduct.

Distributed by Colorado Capitol Reporters

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