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In an election with headline-grabbing proposals on the legality of marijuana and gay marriages, the idea of term limits for judges can easily fade into obscurity.
But consider this: Judges have the power to overrule whatever decision voters make.
The same is true of laws the Colorado Legislature passes.
The state Supreme Court has used its authority in the past to thwart controversial legislation and voter-approved amendments. Among them were a hotly contested redrawing of congressional districts that reportedly favored Republicans and a polarizing anti-gay amendment that would have precluded governmental protections based on sexual orientation.
Consequently, the proposed Amendment 40, which would place term limits on appellate court judges, walks mundanely but carries a big gavel.
Elizabeth Starrs, president of the Colorado Bar Association, visited Aspen on Friday to address the Pitkin County Bar Association.
Starrs vehemently opposes the amendment, which, she said, would politicize the one branch of government that the United States' founding fathers designed to be free from politics.
"There's a branch of government that's supposed to be insulated from government," she said.
<b>Bringing politics to the bench</b >
The problem, Starrs said, is that judges worried about where they will work after term limits sweep them out of office are more easily subjected to political influence.
When it comes to issues such as water rights or appeals of lower court rulings, judges have to "make the unpopular decisions," she said. "When the question is 'who gets what,' the answer is, somebody doesn't get what they want, and people get upset."
Imagine a judge who is nearing the end of his or her 10 years, she said. If that judge is considering a job with Halliburton or U.S. Steel, she suggested, that could influence the way the judge rules in a case that might affect those companies.
"Judges don't do that now. They don't want to believe they'll ever do it," she said. "But human nature is human nature. The temptation would be there. Now, the temptation is not there."
Politics will also come into play because the governor would appoint judges every 10 years. According to Colorado's Blue Book, a state-issued summary of amendments that outlines pros and cons, those appointments would constitute a "super-majority" on the Supreme Court and "a large number of judges to the Court of Appeals."
If Amendment 40 passes in November, five of seven Supreme Court justices and seven of 19 Court of Appeals judges would be ushered out of office in 2009. That means whomever Colorado elects as governor this year would appoint their replacements.
"It has an immediate, radical, drastic effect," Starrs said. "It will inject partisan politics."
<b>Narrowing the field</b>
The governor's choices would be limited to nominees from a nonpartisan commission that reviews judicial applications. But Starrs said Amendment 40 would narrow that pool and leave areas outside of Denver without representation on the bench.
Because judges would be limited to a maximum of 10 years, Starrs suspects fewer potential candidates from outside Denver would be willing to uproot their families to relocate without the possibility of finishing their careers in the Denver area.
That means fewer qualified applicants for those positions overall, she said, as well as far fewer applicants from areas as far afield as the Western Slope.
"We think that it will discourage people from the non-Denver area from applying," she said. "We don't think any other minority or ethnic group will be able to sustain a position on the bench."
<b>What does it mean to Aspen?</b>
Although the current proposal applies only to appellate court judges, Starrs said she has heard proponents say the measure is a first step toward imposing term limits on all judges. That means judges making decisions on issues such as water rights and real estate, of paramount importance on the Western Slope, will be subjected to term limits.
"That's something that affects every citizen once you've been affected by one of these issues," she said. "I think what this will do is to create greater barriers to Aspen ... in allowing them to get a greater voice in the state."
Aspen's City Council approved a resolution at its most recent meeting opposing the amendment. Councilman J.E. DeVilbiss, a former district judge, vehemently denounced the measure.
<b>On the proponents</b>
Former Senate President John Andrews is the driving force behind the amendment. (See www.limitthejudges.com for a more detailed look at the proponents' views.) But Starrs says she's not certain what the impetus is behind the proposal.
"It is a solution in search of a problem," she said. "It's really difficult to understand where they're coming from."
Starrs did hypothesize that proponents might be trying to "punish our sitting Supreme Court or sitting Court of Appeals [judges] for certain decisions."
She's not alone. A recent Denver Post editorial asked, "Is it a coincidence this same court tossed out Andrews' illegal redrawing of congressional districts in 2003?"
The amendment has also spurred a level of bipartisanship rarely seen in the current political climate. Members of both parties oppose the changes, with two Republican and two Democratic governors speaking out against it (Gov. Bill Owens, and former governors John Vanderhoof, Roy Romer and Dick Lamm).
"I think it's very shortsighted," Starrs said. "But if you take the long view, you can't have three branches of government subjected to the political whim of the day."
But consider this: Judges have the power to overrule whatever decision voters make.
The same is true of laws the Colorado Legislature passes.
The state Supreme Court has used its authority in the past to thwart controversial legislation and voter-approved amendments. Among them were a hotly contested redrawing of congressional districts that reportedly favored Republicans and a polarizing anti-gay amendment that would have precluded governmental protections based on sexual orientation.
Consequently, the proposed Amendment 40, which would place term limits on appellate court judges, walks mundanely but carries a big gavel.
Elizabeth Starrs, president of the Colorado Bar Association, visited Aspen on Friday to address the Pitkin County Bar Association.
Starrs vehemently opposes the amendment, which, she said, would politicize the one branch of government that the United States' founding fathers designed to be free from politics.
"There's a branch of government that's supposed to be insulated from government," she said.
<b>Bringing politics to the bench</b >
The problem, Starrs said, is that judges worried about where they will work after term limits sweep them out of office are more easily subjected to political influence.
When it comes to issues such as water rights or appeals of lower court rulings, judges have to "make the unpopular decisions," she said. "When the question is 'who gets what,' the answer is, somebody doesn't get what they want, and people get upset."
Imagine a judge who is nearing the end of his or her 10 years, she said. If that judge is considering a job with Halliburton or U.S. Steel, she suggested, that could influence the way the judge rules in a case that might affect those companies.
"Judges don't do that now. They don't want to believe they'll ever do it," she said. "But human nature is human nature. The temptation would be there. Now, the temptation is not there."
Politics will also come into play because the governor would appoint judges every 10 years. According to Colorado's Blue Book, a state-issued summary of amendments that outlines pros and cons, those appointments would constitute a "super-majority" on the Supreme Court and "a large number of judges to the Court of Appeals."
If Amendment 40 passes in November, five of seven Supreme Court justices and seven of 19 Court of Appeals judges would be ushered out of office in 2009. That means whomever Colorado elects as governor this year would appoint their replacements.
"It has an immediate, radical, drastic effect," Starrs said. "It will inject partisan politics."
<b>Narrowing the field</b>
The governor's choices would be limited to nominees from a nonpartisan commission that reviews judicial applications. But Starrs said Amendment 40 would narrow that pool and leave areas outside of Denver without representation on the bench.
Because judges would be limited to a maximum of 10 years, Starrs suspects fewer potential candidates from outside Denver would be willing to uproot their families to relocate without the possibility of finishing their careers in the Denver area.
That means fewer qualified applicants for those positions overall, she said, as well as far fewer applicants from areas as far afield as the Western Slope.
"We think that it will discourage people from the non-Denver area from applying," she said. "We don't think any other minority or ethnic group will be able to sustain a position on the bench."
<b>What does it mean to Aspen?</b>
Although the current proposal applies only to appellate court judges, Starrs said she has heard proponents say the measure is a first step toward imposing term limits on all judges. That means judges making decisions on issues such as water rights and real estate, of paramount importance on the Western Slope, will be subjected to term limits.
"That's something that affects every citizen once you've been affected by one of these issues," she said. "I think what this will do is to create greater barriers to Aspen ... in allowing them to get a greater voice in the state."
Aspen's City Council approved a resolution at its most recent meeting opposing the amendment. Councilman J.E. DeVilbiss, a former district judge, vehemently denounced the measure.
<b>On the proponents</b>
Former Senate President John Andrews is the driving force behind the amendment. (See www.limitthejudges.com for a more detailed look at the proponents' views.) But Starrs says she's not certain what the impetus is behind the proposal.
"It is a solution in search of a problem," she said. "It's really difficult to understand where they're coming from."
Starrs did hypothesize that proponents might be trying to "punish our sitting Supreme Court or sitting Court of Appeals [judges] for certain decisions."
She's not alone. A recent Denver Post editorial asked, "Is it a coincidence this same court tossed out Andrews' illegal redrawing of congressional districts in 2003?"
The amendment has also spurred a level of bipartisanship rarely seen in the current political climate. Members of both parties oppose the changes, with two Republican and two Democratic governors speaking out against it (Gov. Bill Owens, and former governors John Vanderhoof, Roy Romer and Dick Lamm).
"I think it's very shortsighted," Starrs said. "But if you take the long view, you can't have three branches of government subjected to the political whim of the day."
Amendment to impose term limitson state appellate court judges
<b>The current system:</b>Currently, the governor appoints judges to the Supreme Court, the Court of Appeals (collectively called "appellate court judges"), district and county courts, choosing from a pool of applicants nominated by a nonpartisan commission that reviews the merits of each applicant. The proposed amendment would apply only to the supreme court and the courts of appeal.
Newly appointed judges serve a "provisional term" of two years before voters are given the chance to retain or remove them. If retained, Supreme Court justices face another retention vote every ten years, Court of Appeal judges, every 8 years.
There is no limit to how many terms a judge may serve, but the state imposes mandatory retirement at age 72.
<b>The proposed Amendment 40:</b>
If the measure passes, appellate court judges would be appointed as they are now.
But appellate court judges would be limited to three terms - two four-year terms plus the two-year provisional term. Justices and judges effectively would be limited to 10 years on the bench.
<b>Immediate effects:</b>
The approval of Amendment 40 would mean five of seven Supreme Court justices and seven of 19 Court of Appeals judges currently on the bench would have to leave office in 2009.
<i>Sources: Colorado Secretary of State Elections Center website: www.elections.colorado.gov
Colorado Legislative Council website (2006 state ballot information/fiscal impact statements): www.state.co.us
<b>More information:</b> www.limitthejudges.com, www.voteno40.org
</i>
