Our system for the selection and retention of state court judges in Colorado was created in 1966 by an initiated constitutional amendment known as the “Missouri Plan.” Colorado has gone through significant changes in the last 67 years. Our population has grown dramatically and gotten younger. The expectation of Coloradans for our judicial system has changed as well. Calls for increased transparency and responsiveness by the judicial system are being heard all over the state. I believe that it is time to review our current system of selection and retention of state judges and ask some hard questions.
The current system
By way of background, the Colorado state courts as established by Article VI of the Colorado Constitution and statute, consist of the following:
• Colorado Supreme Court
• Colorado Court of Appeals
• Colorado District Courts
• Colorado County Courts
• Colorado Water Courts
• Municipal Courts
All of these courts, with the exception of the municipal courts and Denver’s County Court, are part of the state court system. Federal courts are not part of this system.
Generally speaking, courts are either courts of general jurisdiction or limited jurisdiction. For example, the Colorado Supreme Court and the district courts are courts of general jurisdiction, including civil cases, criminal cases, domestic relations, family law, juvenile delinquency, paternity actions, probate and mental health. Courts that have limited jurisdiction include county courts which handle misdemeanor cases, setting bail, preliminary hearings in felony cases, evictions, civil cases up to $25,000 in dispute, and other narrowly defined cases like issuance of temporary restraining orders and the like.
Water courts, which are divisions of district courts, are pretty self-explanatory as these courts are charged with adjudication of water rights.
Most Coloradans have had limited experience with the judiciary. Traffic tickets, jury duty, family law and perhaps debt collection matters. If you are a farmer or rancher, you have more than passing experience with water courts.
Regardless of your experience, courts are extremely important in our system of democracy. They are one of three branches of government, along with the executive and legislative branches. As serious viewers of “The Paper Chase” and “Legally Blonde” know well, state courts play a broad and serious role in ruling on state laws, making and interpreting common law. Mens rea, anyone?
The rubber hits the road when the discussion turns to the selection of judges. Federal judges are nominated by the president, confirmed by the U.S. Senate and serve for life. Their professional experience and history and current judicial philosophy are the subject of extensive media stories. But, what about state judges?
If you live in rural Colorado, you may interact with district court judges as a normal part of everyday life in business, church or social activities. Chances are that if you are a non-lawyer urban dweller, you have had no interaction with a member of the judiciary.
Given the public’s general lack of contact with the judiciary, the increasing demands for transparency for all levels of government, coupled with decreasing trust and confidence in our public institutions, it is critical that we examine carefully the current system of judicial selection.
How we pick judges
The Missouri Plan was widely lauded as a reform system of merit selection of judges free of the politics observed in other states utilizing the partisan election of judges. A number of other states followed suit. Thought leaders in Colorado sold the idea to voters as a reform system to achieve the merit selection and retention of qualified judges. The Missouri Plan has two steps: (1) judicial selection known as assisted appointments and (2) retention of individual judges by a vote of the people. The Missouri Plan replaced partisan elected judges.
“Assisted appointments” for the selection of judges is a system whereby a commission appointed by the governor sifts through candidates from a pool of applicants for final appointment by the governor. The commission then recommends three qualified candidates to the governor who must appoint one of the three. There are two types of nominating commissions in Colorado: (1) the Supreme Court Nominating Commission, which selects judges for the Supreme Court and the court of appeals; (2) the District Court Nominating Commissions for each judicial district, which nominate district and county court judges. Both commissions include the chief justice of the Colorado Supreme Court as a nonvoting member who chairs each commission. Commission members must include one citizen who is a non-lawyer from each congressional district and a lawyer appointed jointly by the governor, attorney general and the chief justice. The Supreme Court Nominating Commission includes 17 members. No more than one half of the commission members plus one may be members of the same political party. The current commission includes five unaffiliated members. Non-lawyers make up the majority of both commissions.
The second part of the Missouri Plan is a requirement that each appointed judge be subject to a retention vote within two years after the initial appointment and in specified intervals thereafter. The retention vote is nonpartisan and no other candidates are included, the only question is the retention of the specific individual judge. Typically, there are only two to six appellate court judges on the ballot in any election year.
In an attempt to provide voters with more information on judges for the retention vote, the state has created the Office of Judicial Performance Evaluation, which reviews all judges in the year of the retention election. Reviewers include lawyers and non-lawyers. Surveys look at integrity, legal knowledge, communication skills, temperament, and service to the public. Reviewers also look at neutrality, fairness and plain language, for examples. Decisions are also reviewed. The end product is a determination that a judge “meets” or “does not meet” performance standards. Hardly telling or substantive recommendations.
There have been discussions over the years of revisiting the process by which judges are selected under the Missouri Plan. Specifically, there have been calls to subject the three nominees for the Colorado Supreme Court to what is known as “confirmation” by the state Senate, including a committee hearing in which a judicial candidate is subject to questions to which the candidate must respond. Under the current system, there is very little public information about judicial candidates prior to selection and no formal mechanism by which candidates are questioned by elected officials, the public or the media for which they must respond.
Review of a judicial candidate in the form of confirmation by the Colorado Senate is similar to the current approach for confirmation of heads of Colorado executive branch agencies and commissions. Confirmation would assure some robust investigation into the qualifications and judicial philosophy of a nominee. Such a system would also mirror the federal court process, which citizens routinely follow. Requiring a Senate confirmation hearing prior to each renewal term for all appellate judges will further assure timely review of decisions prior to any retention vote.
While rare, there are examples of the Colorado Senate rejecting gubernatorial nominees for agency heads. Injecting Senate confirmation into the judicial selection process would ensure at least some public debate concerning a judicial nominee.
Commentators on judicial reform have also looked at reforming the “assisted appointment” system by changing who appoints commission members. It has been suggested that the governor be allowed to appoint one third of the commission members, with the remaining two thirds evenly divided by the president of the Senate and the speaker of the House. This change alone would work to assure broader representation of judicial candidates even without state senate confirmation.
Beyond reforming the method of appointing judicial commission members, and subjecting candidates to Senate confirmation, reformers have also looked at modifying the retention vote system with several different suggestions.
The first suggestion is to require a super-majority approval vote at the initial retention election. Whether the vote requirement is set at two thirds or three fourths, the result would no doubt result in fewer judges being retained, thereby increasing the numbers of new appointments available. More new appointments might certainly please the increasing number of young Colorado voters and might generate more voter interest.
The second suggestion is to make the performance evaluations broader to include more relevant issues to voters such as no cash bail, criminal sentencing, abortion and civil rights. However, without robust media coverage of these performance reviews, even broader evaluations are unlikely to result in increased voter interest or broader media coverage.
The New Mexico model
Here’s a final, bold suggestion.
We need to look no further than our neighboring state of New Mexico to examine a real-life alternative. New Mexico uses the “assisted appointment” system to recommend judicial candidates to the governor for selection, but in the first retention election other candidates may enter the race to oppose a sitting judge. Given the Colorado preference for nonpartisan voting, Colorado could adopt the New Mexico system and simply make the retention election nonpartisan but open to one or more other candidates. In keeping with a nonpartisan approach a candidate would simply appear on the ballot through the use of a petition, similar to congressional candidates. The retention vote itself could use the increasingly popular system of ranked-choice voting.
There is nothing like a robust campaign between two or more candidates to flesh out issues and candidate qualification concerns. I know that there are those who recoil at the election process and claim “dirty politics” at every juncture. But Colorado has a robust system of campaign finance regulation to rein in “dirty politics” claims.
Regardless of which reform idea is selected, any change will end a selection process that lawyers control (and us lawyers like) — giving more of a voice to the people and less to lawyers.
Shayne Madsen serves as general counsel and director of the Political Law Center for the Independence Institute in Denver.
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