Joint Judicial Task Force Aims to Protect Merit Selection
by Sara Crocker
ttacks on the judiciary have become more and more prevalent in Colorado and across the nation in recent years. In an effort to continue to support a fair and impartial judiciary, the Denver and Colorado Bar Associations have formed the Joint Judicial Task Force. Recent local campaigns have included 2006’s Amendment 40, which would have imposed term limits on judges, and more recent efforts that have asked voters to not retain Colorado Supreme Court justices. The task force will work to better educate citizens about Colorado’s merit selection system and respond to such future attacks on the judiciary.
The Colorado System
Colorado’s merit selection system is unique and has been in place since 1966. There are seven other states that have some form of merit selection system, where judges are appointed by the governor from a list of nominees identified by a judicial nominating commission, judges must stand for retention, and there judicial performance evaluations to help voters learn about judges. These evaluations, which have been used in Colorado since 1988, are based on surveys of court users about a judge’s qualities, ranging from temperament to his or her knowledge of the law, as well as management of a docket and a self-evaluation.
A Look at Our Neighbors
However, 35 states have contested elections for at least some of their judges. For example, in nearby Nevada, judges are selected through nonpartisan elections. For one former Colorado lawyer, the differences between merit selection and elective systems were noticeable. When Tami Cowden received a mailer from a judge requesting a campaign contribution, her first thought was that it was inappropriate. She also realized that it created another layer of consideration for trial lawyers in Nevada: "Is the outcome my client desires politically popular? If not, is the judge assigned to this case brave enough to make an unpopular decision if justice so requires?" she wrote in the October 2006 issue of COMMUNIQUÉ, the Clark County (Nev.) Bar Association journal. Since then, the Nevada legislature has twice, in consecutive sessions, approved a proposed constitutional amendment that would create a merit selection system with retention and performance evaluation. However, in 2010, the amendment was sent to voters and rejected, by a margin of 58 percent to 42 percent.
Meanwhile, in another merit selection state, the system has come under attack. In the past legislative session in Arizona, there was a wave of people advocating for elections of judges. Ultimately, supporters have managed to protect the system, but Arizona voters will decide whether to institute changes to its merit system in 2012. The measure will allow for longer terms for judges but will also limit the role of the bar association as well as the independence of the judicial nominating commission by requiring eight nominees instead of three and no longer balancing party affiliation.
While proponents of electing judges note the electoral system brings in new faces and holds judges accountable to the public, the election process and the money needed for it can place judges, who are meant to be fair and impartial, in an awkward position. For example, in August, an Indiana judge running for reelection handed out fliers announcing a fundraiser and suggested contributions: $150, Sustained; $250, Affirmed; $500, So Ordered; and $1,000, Favorable Ruling. Though some laughed it off as clever advertising, others took it to mean justice has its price. "It appears that there may be justice for sale," former Marion County Judge Gary Miller told Indianapolis’ 6News. Though the fundraiser ultimately was cancelled, it put those who represent the Indiana judiciary on the spot.
This influx of cash into judicial elections is becoming more and more common. From 2000 to 2009, state Supreme Court candidates raised nearly $207 million, which was more than double the $83.3 raised from 1990 to 1999, according to "The New Politics of Judicial Elections, 2000–2009: Decade of Change." The report notes the strategy of one AFL-CIO official from Ohio: "We figured out a long time ago that it’s easier to elect seven judges than to elect 132 legislators." This is an issue the task force hopes to ensure Colorado avoids.
How Members Can Help
For now, the Joint Judicial Task Force, chaired by Dan McCune, is focusing on education, initiatives, and communications. Former DBA President John Baker and Dan Sweetser will head the committee aimed at educating the public about the judiciary and the legal system. DBA Past President Stacy Carpenter will chair the committee that will monitor and respond to any measures that may arise in the 2012 election cycle that seek to change the way judges are selected, retained, or regulated. Theresa Spahn will helm the communications committee, which will work to keep members and the public informed about the work the task force is doing.
The task force welcomes members to join these committees and play a part in the protection of a fair and impartial judiciary. D
Sara Crocker is Editor of The Docket. She received great assistance for this article from Theresa Spahn and Malia Reddick.