Bender Is Legal Profession's 'Biggest Cheerleader'

Chief Justice Michael Bender's tenure leading the court was relatively short, but he will leave a long legacy.

By JAMES CARLSON

Fall 2013

Decades before he had the ear of Colorado’s legal community, Michael Bender had his wife. Over family dinners, Helen Hand listened to Bender, then a private defense attorney, lay out his belief in the law with a passion that would lead him to the state’s highest court.

Hand remembers him telling her back then that if everyone involved in the process— from judges, prosecutors and defense attorneys to juries, bailiffs and court reporters — carried out their role with conviction and purpose, the right thing usually happened.

“He’s always been the biggest cheerleader for the law that you can find,” Hand said.

Since joining the bench in 1997, Colorado Supreme Court Chief Justice Bender has harnessed that love of law to help expand access to justice, increase court efficiency and bolster the public’s image of the profession. His list of accomplishments is long. During his tenure, he’s helped foster the use of evidence-based sentencing, increase the number of judges statewide, implement a pilot program to resolve civil disputes cheaper and quicker, overhaul the state’s attorney discipline system and oversee construction of the new Ralph L. Carr Judicial Center.

Come January, however, Bender will turn 72, the state’s mandatory retirement age, and the legal profession will lose the its biggest cheerleader.

A new way

When Gov. Roy Romer appointed Bender to the Supreme Court 16 years ago, the state’s attorney disciplinary system was perceived as ineffective at changing lawyer conduct and inefficient at dealing with complaints in a timely manner.

Then-Chief Justice Mary Mullarkey recalled that Bender, along with Justice Rebecca Love Kourlis, Attorney Regulation Counsel John Gleason and then-member of the grievance committee David Stark helped craft a new system.

“(Bender) had a lot of ideas about how the system could improve,” Mullarkey said. “The system that we have today is largely his brainchild.”

A phone intake system streamlined the complaint process. A new diversion program allowed minor offenses to be addressed quickly and freed up time for regulation counsel to take on more serious matters. And the hiring of a full-time presiding disciplinary judge brought continuity to the process.

Not everyone in the profession was immediately won over by the changes.

“I think there was a mixed response,” Stark said. “Some were opposed. Others thought it was a great idea. It turned out to be a wonderful advancement for the system.”

More than a decade later, the system is a model copied by states around the country.

Equal representation

If Bender had his choice, he would have been a professional basketball player.

“I had the height,” he said. “Not the talent.”

The hard court’s loss was the court system’s gain. After graduating from Dartmouth in 1964, he enrolled in the University of Colorado Law School. He graduated in 1967 and began working in the Colorado Public Defender’s Office. He also worked for the Equal Employment Opportunity Commission where he first met Mullarkey.

“He was a hard charging, intense trial lawyer, a very creative guy with a lot of good ideas,” she said.

Over the next three decades, Bender worked in public and private practice, mostly as a defense attorney. Stark, who was a deputy district attorney during some of this time, recalled Bender as “hard but fair in his representation of clients. He was a guy who kept his word.”

The outcomes were important to Bender, his wife recalls, but so was the client’s experience.

“He wanted people’s points of view to be heard and represented,” Hand said. “That’s what the legal system is about for him, is for people’s views to be heard and considered with equal weight.”

Renewed professionalism

That purpose carried over when in 2010 his fellow justices voted him to be the court’s 44^th chief justice. He traveled to the state’s districts and impressed upon all judicial personnel the importance of procedural fairness. Empirical studies have shown that compliance with the law is highly impacted by court participants feeling that they’ve been heard.

“He’s always been interested in procedural fairness,” said Chief Justice-Designate Nancy Rice. “If people feel they’re being heard, they’re better able to accept decisions of the court, and that’s better for everybody.”

Toward that end, in February 2011, Bender formed the Chief Justice’s Commission on the Legal Profession with a broad mission: To help law students better appreciate the vital role of attorneys; to facilitate communication and cooperation between judges, attorneys and the state’s two law schools; and to improve public attitudes toward the profession through a renewed focus on professionalism.

“I would say that’s one of his biggest legacies is the increase in the professionalism of the bench and bar,” Stark said.

‘In every way but age’

When Hand first met Bender, she said she found him “precious but obnoxious.”

“He has a way of speaking his mind,” Hand said with a laugh. “He’s also got a heart of gold and a great spirit.”

She said while Bender takes his role seriously and always represents the court with class, he is “not a stuffy guy. He doesn’t stand on ceremony.” Stark agreed, saying “one of his great qualities is that he is a regular guy.”

That spirit comes out in unexpected ways. At a Colorado Judicial Institute event last year, Bender was called to the stage to introduce the keynote speaker. Instead of taking the stairs to the raised platform, the 71-year-old chief justice took two running steps from the crowd and leapt onto the stage.

“He’s a young man in every way but age,” Chief Justice-Designate Rice said.

Making things better

When Bender leaves the high court in January, his biggest physical legacy will be the building he works in.

Under his watch and guidance, the Ralph L. Carr Judicial Center was built in downtown Denver. It houses many of the state’s 3,500 judicial employees, the Colorado Court of Appeals and the Colorado Supreme Court. And it’s home to a lesser-known entity but one dear to Bender — the interactive learning center that teaches visitors about the rule of law.

“He is a dedicated public servant who has tried throughout his career to make things better for the people of Colorado,” said former Chief Justice Mullarkey. “And I would say he’s largely succeeded.”

Bender has said he may go back into private practice after retiring from the bench. But that’s a decision for another day.

“I just love being a justice,” he said. “I love being a chief.”

James Carlson is the Information Resources Coordinator for the Office of Attorney Regulation Counsel. If you have an idea for the OARC Update, contact him at j.carlson@csc.state.co.us.