President's Message: Amendment 40 Review
Amendment 40--Should I vote “Yes” or “No” ?
As an integral part of the legal community, we in-house attorneys are expected to have “inside” knowledge and understanding regarding initiatives that could materially impact our state judicial system. Proposed Amendment 40 (also known as “Initiative 40”) is one such ballot issue. If your experience is like mine, over recent weeks you have been called upon by business colleagues, community leaders, friends, family members and total strangers for comment on the need for and wisdom of Amendment 40. Some will have gone so far as to ask you whether they should vote “Yes” or “No” on this initiative.
In the hope of saving you the many hours I have spent reading, asking questions and otherwise equipping myself to be the informed lawyer others expect me to be, I’m focusing this Newsletter’s President’s Message on Amendment 40 and offering up a collection of the short answers I’ve been giving to the common questions I’ve received from concerned but justifiably confused voters.
The following answers will no doubt not be appreciated by those of you who do not subscribe to strong majority of private practice and in-house lawyer’s view that Amendment 40 is not only an unnecessary, unprecedented, misguided non-solution, but a very bad idea that is dangerous in its certain adverse impact on judicial efficiency, competence and independence.
Please forgive the unusual length of this President’s Message. In the interests of making sometimes lengthy answers as brief as possible, I have adopted a question and answer format:
Q: Does the Colorado judicial system need an Amendment 40 type revamping?
A: I don’t see any evidence of that. To the contrary, Colorado’s judicial system ranks 8th among the judicial systems of the fifty states and has served as a model for the judicial systems in several other states. I like the old adage “If it ain’t broke, don’t fix it” and I don’t think our judicial system is broke in any way that would be repaired by term limits on judges.
Q: What about the “judicial activism” (legislating from the bench) that proponents of Initiative 40 say supports adoption of Amendment 40? And the judicial review and retention system they say is ineffective in weeding out bad judges? Wouldn’t Amendment 40 fix those?
A: Judicial activism is not good and if Amendment 40 proposed some method of effectively eliminating that practice, I might be among its proponents ─ but surprisingly, Amendment 40 does not do that. Nor does it propose any revisions or improvements to the judicial review and retention process its proponents criticize. Instead, it would set term limits that would only drive out our most experienced judges, whether or not they have engaged in judicial activism. No other state has term limits for judges, so we’re talking about replacing an existing, hugely successful system with an untested experiment that could seriously undermine the judicial independence, competence and efficiency that so well serve Colorado’s citizens and businesses.
Q: I understand the judicial review process has never recommended that a judge standing for retention on the ballot NOT be retained. Surely there have been judges over the past several decades that were not deserving of retention. Isn’t this statistic, in and of itself, proof that our system for removing bad judges does not work?
A: You have no way of knowing this, but bad judges typically elect to resign rather than face the electorate on a retention ballot after a ballot information booklet has been distributed that says the state commission on judicial performance encourages voters NOT to retain them. Judges learn of impending “DO NOT RETAIN” decisions of the commission during their interviews or at other stages of the review process explained at Page 14 of this year’s ballot information booklet. At that point the judge in question must decide whether to resign with honor and dignity and move on or face the possibility or probability they will not be retained as judges by voters who will be influenced by the commission’s DO NOT RETAIN recommendation. With this “insider” knowledge, can anyone be surprised by the fact that no retention ballot has ever gone to the electorate with a DO NOT RETAIN recommendation? That statistic proves only that the review system fulfills its purpose of eliminating bad judges before the question ever goes to the voters.
Q: The proponents of Amendment 40 say its adoption is an important last step in meeting the goal of term-limits equality among the three branches of government. Surely you, as a lawyer, recognize the importance of equality among the three branches of government.
A: This is perhaps the most misunderstood aspect of the Amendment 40 question. Our system of government, with its checks and balances, depends upon independence, equal power and the autonomy in function that contrasts the three branches, not “equality” of term limits or other factors. Such equality has never been the goal and its achievement by the requirements of Amendment 40 would come at the direct expense of the judicial independence so necessary to effective checks and balances. Specifically, Amendment 40 would empower future state governors, whether Republican or Democrat, to pack our state appellate courts with judges who share their political and philosophical views. In other words, Amendment 40 would make our state appellate court judges too subservient and beholden to the chief executive responsible for their appointments. Can you imagine such a system at the federal level; where the newly elected President is empowered to appoint a new majority of judges on the U.S. Supreme Court?
Q: Wouldn’t Amendment 40 improve our judicial system by removing tired judges and bringing in fresh, energetic replacements? What’s the harm in revitalizing our courts with new judges?
A: We must remember that our existing system offers many opportunities for new judges following judicial resignations, openings resulting from judges reaching the mandatory age 72 retirement age and untimely deaths and illnesses that truncate judicial careers. But more importantly, Amendment 40’s retroactive approach would remove five of the seven current Supreme Court justices and seven of nineteen Appellate Court judges ─ the most experienced justices and judges in our system ─ including most of the women, Hispanics and other minorities that bring the benefits of diversity to our judicial system. In this latter regard, Amendment 40 would eliminate much of the diversity representation among justices and judges on the appellate courts ─a diversity achievement that took over twenty years in the making. Would we ever want to take such a large step backwards? Surely not when the offered alternative is term limits on judges never before tried in any other state. Here I like to share the ode to change: “Be not the first to set the old aside, nor the last to take the new in stride.” Why be the first to trade what is known and works well for an unknown that may not work at all ─ especially when in the process we would compromise the diversity gains from decades of effort?
These are the questions I’ve fielded to date with my answers. I will appreciate learning of additional Amendment 40 questions you have answered and what answers you have given. If you are offended by my answer to any the above questions or believe I’m out of line in some way, I’d like to hear from you also. I’d especially like to hear from you if you believe this President’s Message exceeds my proper role as 2006 President of ACC Colorado and amounts to “executive activism.” If I am guilty of executive activism, it’s only because I’m taking liberties as I approach the December 31, 2006 end of my term in office ─ the same way I suspect term-limit appellate judges under Amendment 40 would act as they approached the end of their limited terms with no penalties for engaging in judicial activism to rectify weaknesses and wrongs they perceive in our legislative fabric.
The views expressed above are my own in that the content of this President’s Message was neither approved nor endorsed by the ACC Colorado Board of Directors. You have my permission to duplicate and use as you deem appropriate any of my answers, with their associated questions, as set out above.
November 7th is just ahead. Be sure to exercise your right to vote and don’t pass up any opportunity to help as many others as possible to make the right decision on Amendment 40.
Sincerely,
John R. Linton
2006 President
ACC Colorado Chapter
