The Colorado Judicial Branch, “[o]n behalf of Gov. John Hickenlooper, Attorney General John Suthers and Chief Justice Michael L. Bender,” recently announced “the opening of the application period for 45 vacancies on judicial nominating commissions across the state of Colorado.”  (Colorado Judicial Branch press release, 15 September 2011)

Some positions are open now; the majority of vacancies will occur when current commissioners’ six-year terms end Dec. 31. All commissioners serve as volunteers. Applications are due on or before October 14, 2011.

Under Colorado’s “merit selection and retention” system of filling judicial offices, the judicial nominating commissions – at either the district level, or statewide – represent one of the few opportunities for Colorado citizens to have a say in the composition of our courts.  In essence, the commissions are the means by which Citizens can become involved in choosing our judges.

At the district level (Colorado is divided into 22 judicial districts),

Each judicial district nominating commission consists of seven citizens residing in that judicial district. No more than four members can be from the same political party, and there must be at least one voting member from each county in the district. [Source: Colorado State Courts,  Judicial Nominating Commissions]

At the statewide level (including both the Colorado Supreme Court and Court of Appeals),

The Supreme Court Nominating Commission recommends candidates to serve as judges for the Supreme Court and the Court of Appeals. The chief justice of the Supreme Court chairs the commission and is a non-voting member. This commission includes one citizen admitted to practice law in Colorado and one citizen not admitted to practice law residing in each of the state’s seven congressional districts, and one additional citizen not admitted to practice law in Colorado.  [Total of 15 commissioners] (Source: Judicial Nominating Commissions)

According to the state courts website (Judicial Nominating Commissions), there is one current vacancy on the Supreme Court Nominating Commission (a non-attorney who must reside in the 4th Congressional District); another position until recently vacant was filled with Jeffco Chief Deputy DA Charles Tingle (a Republican) for the 7th Congressional District attorney slot.  An additional 3 seats on the commission (one attorney, from the 5th Congressional District, and a non-attorney each from the 2nd and 7th Congressional Districts) are opening when the currently serving commissioners (all Republicans) term expires.  All commissioners serve as volunteers. Applications are due on or before October 14, 2011.

UPDATE: Law Week Colorado profiles the current members of the Supreme Court Nominating Commission (“Meet Those Who Will Help Select Colorado’s Next Justice“)

(For a full list of district commission openings, view the Judicial Nominating Commissions and scroll to the bottom)

From the press release:

Application forms for vacancies on the various commissions may be found on the Colorado Judicial Department web site at http://www.courts.state.co.us/Courts/Supreme_Court/Nominating.cfm. Completed application forms may be mailed to Romaine Pacheco, Governor’s Office of Boards and Commissions, 136 State Capitol Bldg., Denver, CO 80203.  They also may be faxed to 303-866-6368 or sent by e-mail to boards@state.co.us.

Article VI, Section 24 of the Colorado Constitution requires that for any nominating commission, “no more than one-half of the commission members plus one, exclusive of the Supreme Court justice serving as ex officio chair, shall be members of the same political party.” The Constitution also requires that at least one commissioner reside in each of the counties of the district. Applicants must reside in the judicial district – or, for the Supreme Court Nominating Commission, the Congressional District – to which they are applying for appointment.

Citizen participation in the judicial nominating commissions (either at the district level or statewide) is essential to ensuring that good judges – who understand that their role is to fairly and impartially uphold and apply the law – are elevated to hold judicial office, instead of more politicians in black robes.

This is particularly important in selecting the next Colorado Supreme Court justices – who all too frequently have exercised unrestrained power in violation of constitutional limits on their authority.

Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens – that our supreme court justices are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.

Our view: an informed citizenry and active citizen participation is vital in restoring accountability and transparency to the 3rd branch of state government, the judicial branch – most particularly for the Colorado Supreme Court.

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 an 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.

Wednesday’s surprise announcement by Colorado Supreme Court Justice Alex Martinez that he intends to resign from the bench (in order to become Denver Manager of Safety) brings renewed focus to the judicial selection and retention system in Colorado.  Unlike other states, many of which either elect judges or appoint them without any form of popular accountability, Colorado’s mixed system of appointment and accountability via retention elections is not well understood by the general public.

Misconceptions, misunderstanding, and misinformation about the process for selecting the judicial branch officeholders in Colorado is (unfortunately) all too common. Part of Clear The Bench Colorado’s mission is to contribute to informing the electorate about their constitutional rights to hold the judiciary accountable via the retention election process, and the process for selecting replacements for outgoing judges.  Since We The People do not vote for their replacements, who gets to decide?

Unfortunately, most Colorado citizens know more about the process of picking the Pope than about how our state selects nominees for judicial office.

This is unfortunate – because, despite some flaws (most importantly, a lack of transparency and public accountability – secrecy encouraged by the legal establishment, who are more interested in protecting their members and covering for their ‘buddies on the bench’ than allowing them to be called to account), the process does provide some level of front-end vetting of judicial applicants, filtering out the obviously unqualified and excessively partisan (weeding out the ‘worst of the worst’).

Clear The Bench Colorado published an overview of the judicial selection process (”Selecting the next Colorado Supreme Court justice(s) post-Mullarkey retirement and retention elections – who decides?“) last year; this article is an updated version, incorporating insights gained from discussions with former Nominating Commission members.

How Colorado selects individuals for judicial office:

Under the Colorado Constitution, Article VI (Judiciary), Section 20:

First, although the governor has the final say in the process (making the final pick), he does not have an entirely free hand.  Unlike the process for selecting Federal judges, there is NO role under Colorado’s “merit selection” process for the legislative branch to provide a check or balance to executive power via “advice and consent.”  The legislature does not weigh in on the process in any formal or legal way (although individual legislators may make their thoughts known to the governor, who has the final say).

Instead, the “front-end” check is provided by an appointed Judicial Nominating Commission, as described in this entry in the Judgepedia website:

The Supreme Court Nominating Commission recommends candidates to serve as judges for the Supreme Court and the Court of Appeals. The chief justice of the Supreme Court chairs the commission and is a non-voting member. This commission includes one citizen admitted to practice law in Colorado and one citizen not admitted to practice law residing in each of the state’s seven congressional districts, and one additional citizen not admitted to practice law in Colorado.^[1]

Commission members serve six-year terms. Non-lawyers, who are the majority of every nominating commission, are appointed by the governor. Lawyer members are appointed by joint action of the governor, attorney general, and chief justice.

Not noted in the Judgepedia article, but specified under the constitutional language (Article VI, Section 24 Judicial nominating commissions) is a requirement for some partisan balance on the commission:

(2) The supreme court nominating commission shall consist of the chief justice or acting chief justice of the supreme court, ex officio, who shall act as chairman and shall have no vote, one citizen admitted to practice law before the courts of this state and one other citizen not admitted to practice law in the courts of this state residing in each congressional district in the state, and one additional citizen not admitted to practice law in the courts of this state. No more than one half of the commission members plus one, exclusive of the chief justice, shall be members of the same political party.

The commission has 30 days from when the vacancy is announced to meet, review applications, conduct interviews, and select three finalists to submit to the governor, who then has 15 days to make a selection (if the governor fails to make a pick, then the Chief Justice selects instead).

Newly appointed justices “shall hold office for a provisional term of two years and then until the second Tuesday in January following the next general election” after which they enjoy 10-year terms:

Section 7. Term of office. The full term of office of justices of the supreme court shall be ten years.

By the Numbers: How the Judicial Selection Process actually works

1. On announcement of the vacancy and solicitation for application, prospective nominees submit an extensive application packet (including a long questionnaire, writing sample, background information, summary of relevant professional experience, and references).
2. Commission members review the applications, and select from the total list (last year, 31 people applied for the impending vacancy) for interviews (a particular candidate will be interviewed if any commissioner expresses a strong desire to have them appear).  Commissioners consider the current makeup of the court, and may advocate for a specific constituency – a particular area of legal expertise – such as water or business law, or possibly a regional or ethnic representation in pursuit of court ‘diversity’).  Interviews are based on a common set of ‘core’ questions (for consistency of comparison & evaluation); each commissioner develops and uses his/her own evaluation criteria.
3. Following interviews, the commission deliberates/discusses the candidate, voicing comments or concerns to the group at large.
4. Following all of the interviews, the commission casts a ballot – three unranked votes per opening (for the Colorado Supreme Court or Court of Appeals – lower courts may only require 2-3 nominees).  The top vote-getters become the finalists – with the caveat that any finalist MUST receive a majority of total Commission votes (i.e. 8 of 15), irrespective of how many are actually present.  Multiple ballots may be (generally are) necessary.  (Note that the current makeup of the Nominating Commission – 7 Democrats, 5 Republicans, 3 Unaffiliated –  ensures that any finalists MUST receive at least one vote from multiple party affiliations).
5. The names of the three finalists are submitted for consideration by the governor, who has 15 days to make a selection from the list.

ALL of our sources (from differing party backgrounds) have stressed that the Nomination Commission deliberations are non-partisan (which is not to say, as our sources admit, that the deliberations and considerations do not reflect ideology or judicial philosophy – which is, in our view, entirely appropriate).

A common critique of Colorado’s system of “merit selection & retention” for judges is the lack of transparency in commission deliberations (both during front-end judicial selection, and in back-end judicial performance review and retention) and lack of meaningful opportunity for public participation and comment.  This lack of transparency leads to a lack of public confidence in our judiciary and ultimately to a lack of accountability for the increasingly active and powerful Third Branch of our government.

Our judicial system depends more than any other branch of government on public trust and confidence that the law is being applied fairly and impartially for all citizens – that our supreme court justices are fulfilling their proper roles as referees upholding the rules rather than players attempting to score for their “team’s” agenda.

Our view: an informed citizenry and active citizen participation is vital in restoring accountability and transparency to the 3rd branch of state government, the judicial branch – most particularly for the Colorado Supreme Court.

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 an 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.