Debate on judicial term limits for 2008 ballot heats up

Directly addressing the Colorado bar, John Andrews pulled no punches:

All professions are conspiracies against the laity. Many a nonlawyer, tangled in litigation or swamped in fees, would agree-as you certainly must know.¹

Andrews was responding to retired Colorado administrative law judge, Marshall Snider, in another debate over judicial term limits, appearing in the February issue of The Colorado Lawyer. Snider’s article is here; Andrews’ is here.

Snider argues that: (1) judges are not political officials; (2) the, “argument . . . that . . . judges are not answerable to the people . . .[is] simply not true in Colorado;” (3) term limits is premised on the meaningless sound-bite of “judicial activism;” (4) judicial competence is ensured by our Commission on Judicial Discipline, judicial performance commissions, and retention elections; and (5) judicial term limits is nothing more than a thinly veiled attempt to to facilitate the politicization of the judiciary by the incumbent legislative and executive branches.

I address each contention in turn.

Judges are political officials: Snider maintains that “Although the Colorado Constitution vests political power in the people (art. II, § 1), it vests judicial power in the courts (art. VI, § 1).” [emphasis in the original].  Snider’s basic misunderstanding of constitutional principles, woefully shared by a number of other judges, is soundly repudiated by a salient remark within President Ronald Reagan’s farewell address, where he reflected that, “Almost all the world’s constitutions are documents in which governments tell the people what their privileges are. Our Constitution is a document in which ‘We the people’ tell the government what it is allowed to do.”  Similarly, the Colorado judiciary does not exist, but for the vestment of power that the Colorado people have given it under Article VI of the Colorado Constitution.  John Andrews pointed out in his response to Snider’s essay that Colorado’s Bill of Rights is premised on the limited grant of vast amounts of power by the people in their public servants.²  Judges are nominated by the appointees (judicial selection committees) of our elected governor, and then are interviewed and chosen by the governor. After appointment, judges are unseated or retained by the votes of the people.  They are, indeed, political officials.

Judges aren’t meaningfully accountable: First, Snider contends that our lack-of-accountability assertions are “simply . . . untrue” but, then he contradicts his position by stating that “judges are not supposed to be directly answerable to the electorate.”  Notwithstanding the true meaning of his double-speak, we have comprehensively illustrated throughout the KnowYourCOurts.com News & Comment section, that our Imperial Judiciary is not accountable and resists every meanger attempt to cause accountability.  The Commission on Judicial Discipline is ineffective and illusory (see here); the judicial performance commissions are equally as specious (see here). In nine elections since the judicial performance review system began in 1988, over a thousand judges have faced the voters for retention or dismissal, yet fewer than one percent (seven judges) were dismissed and only thirteen were even recommended as “do not retain” by the performance commissions. Andrews observes that, “The contention that numerous other [judge]s have been quietly maneuvered into quitting the Bench smacks of a ‘trust us’ condescension, offensive to our state’s sunshine ethic.” (Click here).

“Judicial Activism” is not the gravamen of the proposal: In contrast with John Andrews, the concerns that I believe are implicated by judicial term limits is not judicial activism (making law through judicial fiat, constitutional interpretation or statutory construction).³ Rather, I find disquieting the myriad of unchecked judicial transgressions already proscribed by the Judicial Code of Conduct, including judicial inactivism, intemperance, sloth, debauchery, deception, excess of constitutional authority, ethics violations, deliberate indifference, selective violation of procedural rules, malice and the lack of accountability (attributable to ineffective appellate remedies, practically unavailable (discretionary) Supreme Court writs, the doctrine of absolute immunity and the refusal to enforce administrative discipline).  As an example, when it was learned that both judges Frank Martinez and Norman Arends had falsified affidavits (see here), were either disciplined?  When one judge refused to rule on a motion for the purpose of suspending the proceedings of a case for two-and-one-half years (click here), was that judge disciplined?

Moreover, Andrews notes that more than 100,000 Coloradans signed the term-limit petition in 2006 and more than 579,000 voted for Amendment 40.  Only after the bench and bar spent more than a million dollars in opposition advertising against did support for Amendment 40 go down to 43% (final tally) from earlier polls of 57%.  Andrews argues that these nearly 600,000 voters “were voicing a concern that power in the judicial branch of state government too often is exercised without regard to its origin in the sovereign people-exercised in disregard of their will and in detriment to the good of the whole.”

There exists no effective check or balance on judicial Incompetence: Spending a few hours browsing KnowYourCOurts.com provides ample evidentiary support of unchecked judicial incompetence and a specious self-governance infrastructure that exists only to provide an illusion for the public.  Examining the performance of the Commission on Judicial Discipline is a good place to begin one’s research, followed up by examination of individual cases found thence.

Judicial Term Limits provides no unfair advantage to any political party: Snider’s final contention is without merit.  He argues that permitting judges to be rotated along with legislative terms and executive administrations simply politicizes the judiciary.  However, as Snider concedes, if true, it would cut both ways against whichever party is not in power. As Snider also concedes, “judges should be independent of that process,” which simply endorses the gravamen of our argument (that judges will depart from the generally accepted norms of judicial conduct, thus requiring an effective accountability mechanism).

Endnotes