Colorado Ballot Initiatives to “Clean Up The Courts?”

Colorado courts have been touted by the usual cheerleaders – the Colorado Bar Association (CBA), the Denver-based Institute for the Advancement of the American Legal System (IAALS), and of course in the Colorado Supreme Court Chief Justice’s “State of the Judiciary” speeches before the state legislature – as a shining example of juridical excellence and an “ideal” Colorado judiciary.

The truth – the actual “state of the Colorado judiciary” – falls a bit short of these lofty pronouncements.

In fact, some national organizations have gone so far as to label Colorado a “judicial hellhole.”

Although the Colorado judiciary has certainly seen some improvement since “achieving” the “judicial hellhole” status in 2010/2011 (most notably, the departure of former Chief Justice Mary Mullarkey, who quit the bench in 2010 rather than face the voters, Justice Alex Martinez, who left after receiving the lowest retention vote approval for any incumbent supreme court justice in state history, and most recently Chief Justice Michael Bender, who left upon reaching mandatory retirement age), our court system has retained several systemic deficiencies (starting with a lack of transparency in the so-called “merit selection” process for nominating and appointing judges, through the completely rubber-stamp nature of the “official” judicial performance “review” process, and the notoriously toothless “judicial discipline commission” responsible for sanctioning judicial misconduct).

A pair of ballot initiatives are seeking to address the last two of these systemic deficiencies on the November 2014 ballot.

The most recently filed and approved initiative (based on clearing the title board), listed as Proposed Initiative #94 and called by the initiative proponent the “Honest Judge Amendment“, seeks to transfer oversight and responsibility for investigating and sanctioning judicial misconduct from the current “Judicial Discipline Commission” – which operates under guidelines set by the Colorado Supreme Court, a classic “foxes watching the henhouse” situation – to an Independent Ethics Commission (which would at least have the benefit of not being “of the lawyers & judges, for the lawyers & judges”).

The initiative proponent, an issue committee named “Clean Up The Courts“, lists the following arguments in favor of the initiative:

Why this amendment is needed:

• The constitution currently states judges may be disciplined for any violation of the Code of Judicial Conduct.
• But the Supreme Court currently issues judicial discipline rules.
• There is a conflict of interest in judges issuing rules about judicial discipline.
• The Supreme Court acted on that conflict and issued an unconstitutional rule that means judges cannot be disciplined for anything that can be appealed.
• The rule eliminated the “any violation” standard in the constitution.
• Over the last 10 years, 89.5% of complaints against judges have been dismissed due to the rule.
• There has not been a published case of judicial discipline since 1986.
• You are not protected by the Code of Judicial Conduct when judges issue rulings.
• The Supreme Court is completely above the law.
• The only way out of this unlawful and unethical situation is to amend the constitution so there is no longer a conflict of interest in judicial discipline.

How this amendment solves the problem:

• The constitutional “any violation” standard is revived.
• Discipline is transferred to the Independent Ethics Commission, so there is no longer a conflict of interest in judicial discipline.
• The constitution is amended to specifically state that if a judge violates the Code of Judicial Conduct in an appealable order, the judge can be disciplined.
• If there is a finding of probable cause, discipline proceedings are public.
• Judges do a better job because they know they will be held accountable.
• You are protected from judicial misconduct.
• You can have more confidence in judges.

In numeric order, the first of these initiatives, Proposed Initiative #79, seeks to increase the threshold of votes required for a judge to stay in office in Colorado’s uncontested judicial retention elections from the current simple majority (50% +1 of total votes cast, including undervotes) to a two-thirds majority:

Shall there be an amendment to the Colorado constitution increasing the number of “Yes” votes required for a justice or judge to be retained in office from a simple majority to a two-thirds majority in the November 4, 2014, general election, and in every election thereafter?

The initiative proponent, an issue committee named “Clean Up The Courts“, lists the following arguments in favor of the initiative:

Why this amendment is needed:

• The unethical situation related above has gone unnoticed for almost 30 years because people don’t pay enough attention to judicial retention elections.
• Judges run in uncontested retention elections.
• Judges currently only have to get a majority vote even though there is no opposition.
• Judges easily get retained due to a lack of information.
• Judges easily get retained due to voter apathy.
• A majority vote is what is used when we want a politician to be partial or biased.
• A majority vote is what is used if we want a certain policy adopted.
• We want judges to be the exact opposite of partial or biased.
• We want judges to be fair and impartial.
• So a different measurement should be used.

How this amendment solves the problem:

• Requiring a two-thirds majority vote brings greater scrutiny to judges.
• A flawed process is corrected without turning to contested political elections.
• Judges approved by two-thirds of voters are more likely to be fair and impartial.
• You will have more confidence in judges approved by a two-thirds majority.
• You have the right to expect quality judges who receive a two-thirds majority vote.
• Judges will be more accountable and more likely to follow the rule of law.
• Judges will respect you and the law.
• You deserve to have this much confidence in the judiciary.

It’s noteworthy that the opposition to these initiatives through the title-setting process has come from the Colorado Bar Association, previously engaged in unethical actions opposing judicial reform and accountability efforts through illegal funding of campaigns supporting incumbent judges in the 2010 election cycle.  The CBA hired attorney Marc Grueskin, also active behind the scenes in opposing judicial accountability efforts, to challenge the initiatives before the title board (unsuccessfully, as it turns out).

As noted in a press release from the Clean Up The Courts organization, hiring Grueskin’s firm to oppose the initiatives is itself of dubious ethicality – since the law firm “is managed by a current member of the State Commission on Judicial Performance” – Heather Hanneman.

“The conflict of interest in Heather Hanneman’s actions is glaring,” said Chris Forsyth, an attorney who has practiced for 20 years and who is a proponent of the initiatives.

Hanneman is on the state performance commission which is charged with evaluating the performance of statewide judges and recommending to the public whether the judges should be retained. The judges at issue include Court of Appeals judges and Supreme Court justices.

“All appearances are that Hanneman’s firm is assisting those judges with covering up judicial misconduct and keeping the truth from the public. The public has the right to expect her to disclose judicial misconduct; not cover it up,” Forsyth said.

The Colorado Bar Association’s opposition to the initiatives highlights the far-too-cozy relationship of the bar association with the judiciary, and indicates a potentially corrupt relationship among the legal establishment that is not apparent to the average voter – and, perhaps, underscores the need for precisely the types of reform sought by these initiatives and other efforts.

The initiatives, irrespective of merit, face an uphill climb before even being placed before the voters; under the Laws governing the initiative process in Colorado, 86105 valid signatures are needed to qualify for the ballot, which is a significant (although not insurmountable) number for a grassroots initiative lacking major special-interest funding.  (At this time, the  “Clean Up The Courts” organization is relying on volunteer petition circulators – solicited on the organization’s “Pitch In!” page)

The “Clean Up The Courts” organization is not affiliated with Clear The Bench Colorado; however,

 Our View: Citizen participation is vital in restoring Accountability and Transparency to Colorado Courts

“We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.” – Abraham Lincoln

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance. However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.

Freedom isn’t free –nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.