Colorado’s ‘gold standard’ for impartial courts

Special to The Colorado Statesman

While other states have been rocked by scandals involving their judicial branch, Coloradans celebrate Law Day in 2011 knowing that our time-tested merit selection, performance evaluation and retention election system of selecting judges is lauded by national experts as ensuring excellence and impartiality in our courts.

“Colorado sets a ‘gold standard’ for excellence and fairness in state courts,” says former Colorado Supreme Court Justice Rebecca Love Kourlis, who now heads the University of Denver’s Institute for the Advancement of the American Legal System.

How did such a highly respected judicial system evolve in a state where government institutions, including the judiciary, were once so corrupt that historian Page Smith described them as “wholly owned subsidiaries of the Rockefellers and Guggenheims,” who controlled Colorado’s mining and industrial interests early in the 20th Century? The credit goes to a visionary band of legal reformers who in 1939 launched a fight for merit selection of the Colorado judiciary. As current Colorado Supreme Court Justice Greg Hobbs noted in a 2006 article in The Colorado Lawyer, those efforts bore fruit in 1966, when voters adopted a Constitutional amendment that ended the old system of partisan elections for judges.

“As a result, unlike in some other states, a lawyer aspiring to become a Colorado judge need not obtain the nomination of a political party, raise funds, campaign for office, or be elected in a partisan race over a rival candidate,” Hobbs noted. “As a result, no judge may hold office in any political party organization, or contribute to or campaign for any political party or candidate for political office. And no litigant in a Colorado court needs to fear that the opposing party was a contributor to the judge’s campaign and enjoys special status,” Hobbs concluded.

Colorado’s squeaky-clean system is light years away from those in the 39 states that still elect at least some of their state judges in contested elections. The worst recent example is in West Virginia, one of six states that still elects all its judges in partisan elections.

In 1998, Harman Mining Company president Hugh Caperton filed a lawsuit against the Massey Coal Company alleging that Massey fraudulently canceled a coal supply contract with Harman Mining, resulting in its going out of business. A Boone County, West Virginia, jury found in favor of Caperton and awarded $50 million in damages. But Massey Energy CEO Don Blankenship then spent $3 million to help elect Brent Benjamin to the West Virginia Supreme Court of Appeals — while the appeal of that $50 million verdict against his company was on its way to that very court. Benjamin refused repeated calls to abstain from helping decide the case and cast the decisive vote in a pair of 3-to-2 decisions throwing out the $50 million jury verdict against Massey Energy. Best-selling author John Grisham has said the West Virginia case inspired his 2008 legal thriller, The Appeal.

As business investments go, spending $3 million on a judge to throw out a $50 million verdict is a handsome rate of return. But that particular judicial hedge fund proved a bit much for the U. S. Supreme Court, which in a 2009 5-4 ruling reviewing the Caperton case said the U.S. Constitution’s due process clause can require a state judge to recuse when a party in a case before that judge has had a “significant or disproportionate” influence on placing the judge on the court through large campaign contributions.

West Virginia’s system is far from alone. The national Justice at Stake organization reports more than $200 million has been spend on elections for state supreme courts in the last ten years. Voters subjected to torrents of negative ads vilifying judicial candidates can hardly avoid the cynical feeling that their court systems only represent politics by other means.

In contrast, when a vacancy on the bench occurs in Colorado, non-partisan commissions review potential replacements and nominate two or three candidates to the governor. Once appointed, a judge serves at least two years, then goes before voters in a non-partisan retention election. If voters decided not to give the judge a full term, the judge, the merit selection process starts over again. If retained, the judge serves a term of ten years on the Supreme Court, eight years on the Court of Appeals, six years for District Court Judges and four years for county court judges. At the end of the term, the judge can stand for retention to another term, but may not serve in office past his or her 72nd birthday.

The merit selection system is backed by high standards for judicial conduct and performance. An independent commission on judicial discipline reviews complaints against judges and may institute disciplinary or removal proceedings for violation of the Code of Judicial Conduct. This commission also may retire a judge for disability of a permanent character interfering with performance of duties.

Colorado’s system of selecting and policing judges may not be perfect, but voters obviously believe it is far better than the political sewers where courts must convene in states such as Texas. In 2006, voters rejected a radical term-limits proposal crafted by former Senate President John Andrews to remove all five Justices from the Colorado Supreme Court who had been appointed by Democrats while sparing the two Republican appointees. And in 2010, voters also scorned a judicial purge effort mounted by a right-wing group calling itself “Clear the Bench.”

Reviewing the attacks on judges in other states, Bert Brandenburg, executive director of Justice at Stake, observes, “Unfortunately, the political levee that separates the courts from low and medium grade floods of political pressure is not a high one.”

But buttressed by high standards of performance and accountability, and maintained by voters who prefer fair and impartial courts to political hacks in robes, the levees protecting Colorado courts from political shenanigans are holding strong.

Bob Ewegen ended a 45-year career in journalism when he retired after 36 years at the Denver Post in 2008. Now a certified paralegal, he is director of research and communications at the Mile High Law Office.