Issue of judicial training on business litigation gets political

The Colorado Statesman

An effort to train judges on business litigation has produced yet another battle at the state Capitol between Democratic lawmakers and Republican Secretary of State Scott Gessler.

House Bill 11-1302 would allow the Secretary of State’s office to spend business fees for judicial training on business litigation, including complex commercial litigation. Under the bill as introduced, the Secretary of State’s office would be responsible for administering the program, including hiring trainers and evaluators, as well as paying for the training and the travel and lodging expenses incurred by participating judges. The Chief Justice of the Colorado Supreme Court would have authority to approve the course and its curriculum, the trainers, and the course’s timing and location. The Chief Justice also would have to approve which judges participate in the course.

The bill carries a 2011-12 cost of $360,000 that would be paid for by available cash funds within the Secretary of State’s office. That would cover training and expenses for 45 district court judges in 2011-12, according to the fiscal note.

The House Judiciary Committee approved HB 1302 on April 26 after a hearing in which Democrats claimed Secretary of State Scott Gessler was overstepping his authority. The issue, according to Democrats, is the role of the Secretary of State in managing the program rather than it originating within the judicial department, and concerns over separation of powers.

After an intense debate, the full House Thursday gave initial approval to HB 1302 and only after its sponsor agreed to change the bill to minimize the role of the Secretary of State and to remove judicial evaluation criteria determined by the SOS. HB 1302 passed the House Friday on a 48-15 vote and next week will face the Democrat-controlled Senate.

The Office of the State Court Administrator manages judicial education, according to spokesman Jon Sarche. The department usually offers a three- or four-day annual judicial conference as continuing legal education for judges, Sarche explained, as well as video training for those in rural areas. The annual judicial conference touches on a dozen topics and areas of law, and the department also provides new judge orientation as needed. However, the 2011-12 year will be the first time in several years that the department has had the funding for the judicial conference, Sarche said.

Rep. Mark Waller, R-Colorado Springs, told the judiciary committee that the program should be under the SOS because that office manages the funds. “It’s right and just and proper that if they’re using [SOS] funds for judicial training” that the SOS administer the fund, Waller said.

Noting that the training is supported by the judicial department, Waller said that if the training was such a good idea, he didn’t understand why Democrats were having “heartburn” over who paid for it. “That way, we can ensure the money goes to the intended purpose, otherwise the judicial department can use [those funds] anyway they want.” That drew protests from Democrats, both in committee and on the floor Thursday, who said such statements indicated the Chief Justice couldn’t be trusted.

Rep. Daniel Kagan, D-Cherry Hills Village, pointed out during the hearing that if the SOS gave out those funds, he could just as well take them away, and that could mean that the SOS would have the ability to determine “whether the judicial branch passes muster.”

Gessler testified that many judges come from criminal litigation backgrounds or have limited experience with commercial litigation. “It’s on-the-job training,” he said. As to the most appropriate place for the program, Gessler said his office was best because the SOS office is “a gateway to business,” and that attorneys on his business advisory committee were frustrated with an inefficient judicial system for commercial litigation. “When we look at creating a business-friendly environment…we rarely look at the judiciary to make things more efficient. This is a relatively small amount of dollars that can have a massive impact,” Gessler told the committee.

Gessler assured the committee that his office had worked with the judicial department on the matter, and that his office would not develop the content for the training. “It would allow us to say our judges are the best trained” on case management and understanding substantive law unique to business.

And although Gessler said he would not develop the training, he has already taken the lead on finding a trainer: the National Judicial College in Reno, Nevada, which is run by a former Fort Collins judge, William Dressel. Gessler told the committee that he had spoken to Dressel about the kind of business training judges could get that would make them among the best in the country. “My goal is not to determine the content but to make sure it is responsive to business needs” and that the money is spent “wisely and with accountability,” he said.

The bill also requires the SOS to hire an independent evaluator, who would have to be approved by the Chief Justice and who would evaluate the program on the basis of “judicial performance” and factors such as the number of motions filed, cost, duration of a case, participant satisfaction and other factors determined by the Chief Justice. “If we spend business fees we should know we are getting a good bang for the buck,” Gessler told the committee. Gessler also said he has had conversations with former Supreme Court Justice Rebecca Love Kourlis about the evaluation process.

While noting that the Chief Justice and judicial branch agree to the program, Rep. Claire Levy, D-Boulder, questioned why it is so important for the program to be under the SOS office. Gessler responded that the judiciary doesn’t provide that kind of training and that his office is the one working with the stakeholders. “Repeating the same organizational structure provides no guarantee of success,” Gessler said. “It has failed in the past.” That’s due to a lack of funds, not because the judiciary lacks the will or interest in it, Levy replied.

According to Gessler, in order to make Colorado judges the best in business litigation, Dressel recommended a two-week course, but that produced “shrieks” from the judicial branch about taking judges off the bench for that long. It might instead take place through three-day weekends or more use of e-training, or some other format that would accommodate judicial schedules, Gessler said.

Dems uncomfortable with Secretary of State Gessler in charge

But Gessler’s description of the program and the role of the Chief Justice only drew more concerns from Democrats about why Gessler needs to be in charge, concerns raised both in committee and on the House floor Thursday.

“Wouldn’t we do better to trust the Chief Justice to administer this program?” asked Kagan. Gessler denied implying that the Chief Justice could not be trusted, but said it was a matter of “focus and accountability” and indicated the Chief Justice has more important things to do. The Chief Justice “is one person and has a lot of very important duties before him” and other responsibilities, Gessler replied. During second reading, Kagan said that Gessler had no business calling the focus or accountability of the Chief Justice into question. “It’s scandalous,” he told The Colorado Statesman.

“This is the province of the Chief Justice and judicial branch,” Kagan told Gessler during the hearing. “I’m troubled that [the SOS office] is holding forth on what is best for judiciary, just as I would be troubled by Judiciary deciding best way to run your office. I understand Judiciary has a say in this program, maybe a substantial one, but I’m troubled by the very notion that [your] office is the arbiter of what the judicial branch needs to be a more effective judiciary,” Kagan said.

Gessler described the role of his office as a project manager. “Our role is not to be the arbiter,” he said. As project manager, a role in which his office has experience, the SOS would manage the training to a “successful conclusion” but not manage the standards, which he said would be the purview of the subject matter experts, such as the judiciary and the trainers. “We work in a very cooperative and collaborative way with Judiciary,” Gessler said, promising not to “second-guess” the trainers or evaluators.

The training issue has been made more critical in part due to the growth in the judicial department in the past five years. Jeff Clayton, deputy legislative liaison for the judicial department, explained that 2007 legislation authorized the addition of 54 judges, and as of July 1 they will have added 48. It takes about four to five years for a new judge to get the feel for the courtroom, Clayton said. In addition, there has been “turnover” of 56 judges, and that means 104 new judges in the last five years, nearly a third of the judiciary. Most judges practice criminal law before being appointed to the bench and that means a steep learning curve when they get into business or commercial litigation, he said. Training is a top priority for Chief Justice Michael Bender, so “we can live with this arrangement” with the SOS office, in part because it gives Bender authority to veto any proposed training with which he doesn’t agree. “We don’t want special interest groups training judges…I know there are parts of this you don’t like” but the opportunity to train 104 judges “is a huge opportunity for us,” Clayton said.

Levy attempted several amendments in committee to put full control of the program under the Chief Justice and to remove the evaluation criteria. Democrats, such as Rep. Su Ryden, D-Aurora, also said they struggle with the potential for a separation of powers problem.

Despite his concerns, Kagan voted to pass the bill out of the Judiciary Committee, as did Ryden. HB 1302 got an 8-5 vote (including a “yes” from Rep. Jim Riesberg, D-Greeley) from House Appropriations on April 29.

“We believe in the separation of powers,” House Minority Leader Sal Pace, D-Pueblo, said during Thursday’s debate. While acknowledging the training needs for judges, Democrats argued that the judicial department should manage its own training, not the Secretary of State. “The judicial department has control over all the training,” argued Waller, who said that under HB 1302 the role of the SOS is to supply the money for the training, but Ryden pointed out that the SOS also has the ability to pick the trainer and evaluator.

Levy again attempted to amend HB 1302 to put the program solely under the judicial department, stating only the judicial department should be responsible for training judges. And that prompted Waller to put into the open the issue of Gessler’s political affiliation. “It’s incomprehensible to me that just because the Secretary of State comes from one persuasion, we don’t support a bill” that would give money to the judicial department, he said. The Secretary of State has a compact with the businesses that the department collects fees from, and the judicial training will affect those businesses, he said. “This isn’t about political party affiliation,” Levy replied. “It’s about separation of powers.

“I thank the Secretary of State for his generosity” in offering the money, but the secretary’s responsibility is not to take charge of the judicial branch, said Rep. Nancy Todd, D-Aurora. “Input is one thing, but oversight and evaluation is not part of that role, regardless of who that person is,” she said, citing the state Constitution’s description of the SOS duties.

The floor debate was temporarily halted so that Waller and the Democrats could work out changes to save the bill from an almost-certain defeat in the Senate. Waller agreed to an amendment to take out the evaluation criteria and to allow the Chief Justice to be an up-front signatory to the contract, rather than having back-end veto authority.

With the Democratic amendment on HB 1302, the bill stands a much better chance of passing the Senate, which hasn’t been as friendly a chamber to Gessler this session.

Gessler has wrangled twice with Senate Democrats this session over bills that would require proof of citizenship to vote, one of the major issues upon which he campaigned last fall. Both bills (Senate Bill 11-18 and HB 1252) died in the Senate State, Veterans and Military Affairs Committee. He has had better luck with less controversial bills, such as moving Colorado’s primary date from August to June (SB 189) and improving the security of the online SOS business database (HB 1095), another major campaign issue. Both bills passed the General Assembly this week; the Senate concurred on House amendments and sent the bill to the governor Thursday. As of press time, HB 1095 is awaiting House concurrence on Senate amendments.

Marianne@coloradostatesman.com