PROPOSAL NUMBER: 007-06

PROPOSAL NUMBER: 007-06

1. Date proposed 10/08/06. Sponsor: Legislative Committee

2. TITLE:
Proposal to Oppose Amendment 40: Term Limits for Supreme Court and Court of Appeals Judges

3. FULL PROPOSAL:
Oppose Amendment 40

4. BACKGROUND:
The Colorado Supreme Court consists of seven justices who serve ten-year terms. The Colorado Court of Appeals consists of nineteen judges who serve eight-year terms. When a vacancy occurs on either of these courts, an appointed commission selects three nominees for consideration by the governor. The governor then appoints one of the three nominees to fill the vacancy.

After appointment, appellate judges serve an initial two-year term and then stand for retention at the next general election. At a retention election, voters vote to either keep a judge in office or to remove a judge from office. If voters choose to keep the judge in office, he or she serves an additional term before standing for retention again. There is currently no limit on the number of terms a judge can serve, but judges are required to retire at age 72.

Appellate judges who are standing for retention are evaluated by a state commission on judicial performance. The commission reviews opinions authored by the justice or judge, conducts an interview with the justice or judge, and reviews surveys completed by trial court judges and attorneys. The commission’s evaluation includes a recommendation stated as “retain,” “do not retain,” or “no opinion.” This evaluation is printed in the ballot information booklet that is mailed to every Colorado voter household before a general election.

How does Amendment 40 change the current system? Amendment 40 limits Supreme Court and Court of Appeals judges to three terms - one initial two-year term plus two four-year terms. Appellate judges who, as of the November 2008 election, have already served ten years will not be eligible to serve another term in their current position. Judges who are eligible to continue serving will appear on the November 2008 ballot for retention.

5. Justification/Goals:
Ballot issue in November.

6. PROS:
1) Amendment 40 limits the number of years that a judge can influence the decisions of the state’s two highest courts. By creating more turnover in office, it provides new perspectives and more opportunity for other judges to serve on the state’s two highest courts. Voters have already limited the number of terms that elected officials in the legislative and executive branches may serve; Amendment 40 applies term limits to the highest officials in the judicial branch as well.

2) The current options available to remove a judge from office are inadequate. No Supreme Court justice or Court of Appeals judge in Colorado has ever been removed by voters in a retention election. Further, impeachment of judges is almost never used, and there is no process to recall a judge. As a result, judges can essentially serve as long as they want up until the mandatory retirement age. Amendment 40 ensures that after an appellate judge’s initial two-year term, he or she does not serve more than eight additional years in that position.

3) Judges on Colorado’s two highest courts should be held accountable more frequently than every eight to ten years. Requiring appellate judges to stand for retention every four years allows the public to evaluate the performance and decisions of these judges more often. All other judges in Colorado stand for retention every four to six years; Amendment 40 will make the terms of appellate judges more similar to the other courts.

Cons:
1) Amendment 40 will force five current Supreme Court justices and seven Court of Appeals judges from office in January 2009. Some of these judges will be forced to leave office before serving the full term that voters previously approved. In 2009, the governor will appoint new judges to the Supreme Court and Court of Appeals, including a majority of the justices of the Supreme Court. This means that in 2009, one political party will have disproportionate influence over the membership of the state’s two highest courts. Further, every ten years thereafter, the governor may have the ability to appoint a large number of judges to the Court of Appeals and a super-majority to the Supreme Court.

2) Limiting the terms of Supreme Court and Court of Appeals judges is unnecessary. Judges are already held accountable through performance evaluations, retention elections, oversight by a state judicial discipline commission, possible impeachment, and mandatory retirement at age 72. Further, Amendment 40 may discourage the best candidates from pursuing judgeships on the Supreme Court and Court of Appeals. Qualified lawyers will have to choose between continuing an established career or accepting a short-term position on the bench.

3) Amendment 40 removes judges regardless of their skills, accomplishments, or experience. It is essential for judges to understand particular areas of legal theory and how laws develop over time. This knowledge comes from years of serving on the court. With the limit on terms, judges will be required to step down when their experience is most beneficial to the court.

Sponsor’s comments: This issue doesn’t seem to have any direction from our 10KV but Future Focus would ask us to evaluate which system is best: what we now have or mandatory term limits for judges. The proposed plan would essentially politicize judgeships. The current system of retention terms insulates the Colorado Judiciary from the political whims of the party in power in other branches of government.

7. Alternatives to the proposal:
Not taking a position on this issue.

8. Supporting statements:
Legislative Committee Report:

Amendment 40: Term Limits for Supreme Court and Court of Appeals Judges

Internet Links:
http://www.leg.state.co.us/lcs/0506initrefr.nsf/89fb842d0401c52087256cbc00650696/a24cac86d487b485872571a4005a3cbd?OpenDocument
Editorial: http://www.denverpost.com/carman/ci_4433303

Referendum Summary: Amendment 40 limits Supreme Court and Court of Appeals judges to three terms - one initial two-year term plus two four-year terms. Background: The Colorado Supreme Court consists of seven justices who serve ten-year terms. The Colorado Court of Appeals consists of nineteen judges who serve eight-year terms. When a vacancy occurs on either of these courts, an appointed commission selects three nominees for consideration by the governor. The governor then appoints one of the three nominees to fill the vacancy.

After appointment, appellate judges serve an initial two-year term and then stand for retention at the next general election. At a retention election, voters vote to either keep a judge in office or to remove a judge from office. If voters choose to keep the judge in office, he or she serves an additional term before standing for retention again. There is currently no limit on the number of terms a judge can serve, but judges are required to retire at age 72.

Appellate judges who are standing for retention are evaluated by a state commission on judicial performance. The commission reviews opinions authored by the justice or judge, conducts an interview with the justice or judge, and reviews surveys completed by trial court judges and attorneys. The commission’s evaluation includes a recommendation stated as “retain,” “do not retain,” or “no opinion.” This evaluation is printed in the ballot information booklet that is mailed to every Colorado voter household before a general election.

How does Amendment 40 change the current system? Amendment 40 limits Supreme Court and Court of Appeals judges to three terms - one initial two-year term plus two four-year terms. Appellate judges who, as of the November 2008 election, have already served ten years will not be eligible to serve another term in their current position. Judges who are eligible to continue serving will appear on the November 2008 ballot for retention.

PROS:
1) Amendment 40 limits the number of years that a judge can influence the decisions of the state’s two highest courts. By creating more turnover in office, it provides new perspectives and more opportunity for other judges to serve on the state’s two highest courts. Voters have already limited the number of terms that elected officials in the legislative and executive branches may serve; Amendment 40 applies term limits to the highest officials in the judicial branch as well.

2) The current options available to remove a judge from office are inadequate. No Supreme Court justice or Court of Appeals judge in Colorado has ever been removed by voters in a retention election. Further, impeachment of judges is almost never used, and there is no process to recall a judge. As a result, judges can essentially serve as long as they want up until the mandatory retirement age. Amendment 40 ensures that after an appellate judge’s initial two-year term, he or she does not serve more than eight additional years in that position.

3) Judges on Colorado’s two highest courts should be held accountable more frequently than every eight to ten years. Requiring appellate judges to stand for retention every four years allows the public to evaluate the performance and decisions of these judges more often. All other judges in Colorado stand for retention every four to six years; Amendment 40 will make the terms of appellate judges more similar to the other courts.

CONS:
1) Amendment 40 will force five current Supreme Court justices and seven Court of Appeals judges from office in January 2009. Some of these judges will be forced to leave office before serving the full term that voters previously approved. In 2009, the governor will appoint new judges to the Supreme Court and Court of Appeals, including a majority of the justices of the Supreme Court. This means that in 2009, one political party will have disproportionate influence over the membership of the state’s two highest courts. Further, every ten years thereafter, the governor may have the ability to appoint a large number of judges to the Court of Appeals and a super-majority to the Supreme Court.

2) Limiting the terms of Supreme Court and Court of Appeals judges is unnecessary. Judges are already held accountable through performance evaluations, retention elections, oversight by a state judicial discipline commission, possible impeachment, and mandatory retirement at age 72. Further, Amendment 40 may discourage the best candidates from pursuing judgeships on the Supreme Court and Court of Appeals. Qualified lawyers will have to choose between continuing an established career or accepting a short-term position on the bench.

3) Amendment 40 removes judges regardless of their skills, accomplishments, or experience. It is essential for judges to understand particular areas of legal theory and how laws develop over time. This knowledge comes from years of serving on the court. With the limit on terms, judges will be required to step down when their experience is most beneficial to the court.

Sponsor’s comments: This issue doesn’t seem to have any direction from our 10KV but Future Focus would ask us to evaluate which system is best: what we now have or mandatory term limits for judges. The proposed plan would essentially politicize judgeships. The current system of retention terms insulates the Colorado Judiciary from the political whims of the party in power in other branches of government.

Sponsor Position: Oppose amendment 40. Wholesale replacement of experienced judges will both bog down the courts as new judges learn their jobs and could cause the judicial process to change based on the Governor’s choices of judges.

Vote results;
Tanya Ishikawa (co-chair): Support
Charlie Green (cochair): Support