Let more citizens judge the judges?

The Colorado Statesman

A local lawyer frustrated with the system in Colorado to retain judges and hold them accountable has proposed two ballot initiatives that aim to restructure the system and offer citizens their own form of justice.

Chris Forsyth, who has practiced law for 20 years, said he has seen the damage judges can bring to the judicial system because of a lack of oversight and commitment to retaining quality justices.

“I’ve seen judges mistake facts or law and it was pretty glaring that it was intentional. They knew they weren’t going to get disciplined…” opined Forsyth. “We’ve got to remove this conflict of interest because we’re headed in the wrong direction.

“There are good judges in Colorado. I’m not saying that all judges are bad,” he added. “But the problem is that judges know that they don’t have to be good and that’s a problem. People should be able to count on the law to protect them… Law is supposed to take the chaos out of society, not bring it in.”

The Clean Up the Courts initiative has proposed two ballot measures:

The first proposal would ask voters to transfer disciplinary cases to the Independent Ethics Commission, which already evaluates complaints against elected officials. It is being dubbed the “Honest Judge Amendment.”

The current system is internalized. The discipline commission serves through the Colorado Supreme Court and many of those cases are kept confidential.

The second proposed ballot question would increase the amount of “yes” votes a judge needs in an uncontested retention election to a two-thirds majority. Currently, judges need only a simple majority.

For citizens, retention of judges usually falls under the radar. There has been more pressure on citizens in recent years to take a hard look at justices through Clear the Bench Colorado, a conservative group that has mostly targeted left-leaning judges. But still most citizens usually either don’t vote on judges or simply check the “yes” box without giving it much consideration.

Some progress was made in 2010 when Clear the Bench Colorado’s campaign reduced retention support from about 75 percent to 60 percent, according to the campaign itself. Under that scenario, several justices would have been ousted if Colorado law were guided by the ballot proposals offered by Forsyth.

“We already treat judges differently,” he said. “They’re not subject to term limits or contested elections. We should not be using the same measurement in judicial retention elections that we use for other elections where we are actually voting for bias… If two-thirds of the people who vote for a judge agree that the judge will be fair and impartial, then the likelihood of a fair and impartial judge is greatly increased.”

Forsyth is hopeful that voters are finally coming around to placing more emphasis on retaining quality judges, calling the current system “irrelevant.”

“We must change it,” he said. “Colorado’s current system has led us down the path so ridiculously far that dishonest judges are required to remain on the bench and no one noticed this for almost 30 years.”

Coupled with the initiative is the Honest Judge Amendment, which working together would “bring accountability back to the judiciary without interfering with judicial independence,” according to Forsyth.

He feels that the current disciplinary system is contradictory to the constitution by allowing the Supreme Court to develop its own rules governing conduct. The Colorado Commission on Judicial Discipline was established by an amendment backed by voters in 1965.

The law authorizes the commission to discipline judges for misconduct, failure to perform duties and ethics violations. The commission also can retire a judge for a medical disability. In those cases, the commission would recommend that the Supreme Court remove a judge from office.

But Forsyth points out that over the last 10 years, the commission has dismissed nearly 90 percent of complaints against judges, and that those cases were never made public.

If the discipline duties were transferred to the Independent Ethics Commission, those cases would be made public and the commission would make decisions based on a set of rules and guidelines separate of the Supreme Court, according to Forsyth.

“Now you file with the judicial discipline commission, which reports directly to the Supreme Court where the Supreme Court makes the rules, and if your violation of the Code of Judicial Conduct… if that was related to an appealable order, the executive director would dismiss it as required… by the Supreme Court,” commented Forsyth.

“One of the things that the initiative would do… if the ethics commission makes a finding of probable cause then the proceedings become public,” he continued. “Judges are public servants, we shouldn’t be treating them so differently from other public servants.”

The questions would appear before voters in November if proponents can collect the 86,105 valid signatures necessary respectively to make the ballot. The Honest Judge Amendment cleared a Colorado Supreme Court challenge on Friday, securing its title. Forsyth had sought to disqualify the Supreme Court on grounds of a conflict, but the court denied the motion.

“The court should have acknowledged the obvious and glaring conflicts of interest and invoked the rule of necessity,” opined Forsyth.

Proponents are already collecting signatures; utilizing a unique grassroots method they’re calling “change your fate with up to eight.”

They are asking voters to send in one to eight signatures at a time by printing out petitions and collecting signatures on their own.

Concerns grow

But even before proponents have collected the necessary signatures, opponents are lining up to raise concerns with the ballot proposals. Leading the charge is the Colorado Bar Association, which worries that the proposals could literally destroy the judicial system in Colorado.

Especially troubling to the Bar Association is the proposal that would create a two-thirds majority to retain judges. Stacy Carpenter, who sits on the Bar Association’s board of governors and on its legislative policy committee, said such a mandate could result in many judicial vacancies because not enough voters would take interest.

“Those judges come at the end of the ballot. There’s ballot fatigue; all sorts of reasons that it is very difficult to get people to pay attention,” explained Carpenter. “We’re in favor of retention elections, and we’re in favor of the public getting more information in voting on the judges. But when you move to this two-thirds majority, especially if you look at 2010, the impact would be astronomical in retention where we’d have whole judicial districts where no judges were retained.

“There’s not a system in place to replace all those judges and there wouldn’t be the people waiting in line to take all those positions,” she continued. “So, the impact on the justice system would be awful and people’s cases would come to a grinding halt.”

Carpenter understands that the intent of the initiative is to bring greater accountability, but she isn’t sure that the goal would be reached.

“It’s really just a way to say, ‘We want to kick out more judges.’ But no relation to really how they’re doing or whether they’re fair and impartial,” she said.

As for the Honest Judge Amendment, Carpenter doesn’t believe that it is necessary, suggesting that the current system is already comprehensive with a complicated set of rules.

She said that it is important to keep certain discipline cases confidential, including those concerning disabilities, which fall into a medical category. But by turning investigations over to the Independent Ethics Commission sensitivity is lost, opined Carpenter. She is also worried that the Ethics Commission would be able to go back and open old cases.

“If you dive into everything that the Ethics Commission would do, there’s a lot of very concerning things, not the least of which is what it really does is it gives this Ethics Commission the power to reopen every single judicial discipline case that has ever happened,” explained Carpenter.

“The other thing about the ethics commission is it pulls in both the concept of discipline and the concept of disability,” she added. “It makes the process substantially more public. And if you think about that when you’re talking about disability, there’s no basis by which you should make that an even more public process.”

Carpenter also pointed out that the reason so many discipline cases are dismissed is because 90 percent of the time the complaints have more to do with someone not liking the ruling than with the conduct of the judge.

“It’s not that they’re incompetent, it’s not that they’re doing things wrong,” she explained. “It’s just that this judge made a ruling and I disagree with it.”

Colorado Ethics Watch, a government watchdog group, also has concerns with the proposals. Luis Toro, director of the organization, echoed Carpenter’s worries that the proposals could lead to obliterating the judicial system.

“The proponents have actually said that had this been in place in 2010, Clear the Bench would have succeeded and the justices would have all been thrown out, and not only would those justices have been thrown out, but all of the Court of Appeals justices would be thrown out. If there’s a campaign against any judge, all the judges percentages go down,” said Toro.

“Really, it’s basically a veto for a third of the population to get rid of any judge,” he added.
Toro is also concerned that the proposals could discourage attorneys from becoming judges, and that might reduce the quality of justices serving, he said.

“It’s a delicate balance in our system,” he said. “We like having successful lawyers turn into judges, and I think people like that are a lot less likely to come forward if they think they’re only going to be in office for two years…

“I don’t see that there’s an appetite for it,” Toro continued. “There’s a certain percentage of the population who doesn’t trust the courts at all… But it’s easier to say the judge is biased than to own up to whatever it was that got you in legal trouble.”