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Courts under attack      
Written by Guerin Green

Cherry Creek News  


Monday, 16 October 2006


Voters Face Controversial Ballot Measures on Courts in 2006

Five states will vote on whether to put new limits on judges

WASHINGTON, D.C. - In the 2006 elections, voters in at least four states across the country will be casting ballots on constitutional amendments with the potential for profound impact on the impartiality, composition and functioning of the courts in their states. A fifth state measure goes considerably further, aiming to strip judges and other public officials of personal immunity for their professional actions.


“Although court-bashing has cooled off in Washington, D.C. since the Terri Schiavo debacle, partisans and radicals are working busily around the country to make courts accountable to special interests instead of the law and the Constitution,” said Bert Brandenburg, executive director of Justice at Stake, a nonpartisan national campaign working to keep American courts fair and impartial.


In Colorado, voters will consider whether to amend the Colorado Constitution to retroactively limit terms of office to four years for Supreme Court and appellate court justices. This initiative would limit judges to, at most, three terms in office, and oust almost half of the state’s appellate judges from the bench immediately. According to “Limit the Judges” Chairman John Andrews, shorter terms and more frequent elections will make the Colorado judiciary “more respectful of the plain language of the constitution and more responsive to the sovereign will of the people.” Opponents argue that this is an interest group led amendment to politicize the courts that could reduce access to justice because it would radically upend the composition of the state’s highest courts. Colorado’s governor and attorney general, as well as three former governors, oppose the amendment.

In Hawaii, voters will be deciding whether or not the current mandatory judicial retirement age of seventy should be repealed. Supporters of the initiative argue that the mandatory retirement forces some of the best legal minds in the state into early retirement. Opponents question the timing of the amendment, noting that if re-elected, Republican Governor Linda Lingle may be denied the opportunity to make a number of new appointments to the state’s courts. The Hawaii Bar Association recently voted to oppose the amendment. This measure appears on the ballot as Question #3.


In Montana, Constitutional Initiative #98 would amend the Montana Constitution to “provide for recall by petition of state court justices or judges for any reason.” At present, judges may already be recalled for “physical or mental lack of fitness, incompetence, violation of the oath of office, official misconduct, or conviction of a felony offense.” Supporters of the measure argue that it will lead to greater accountability within the Montana judiciary. Opponents argue that it if adopted, judges could be recalled over a single unpopular decision, which would threaten the fairness of the Montana courts. A state trial court recently removed this measure from the ballot due to a “general pattern and practice of deceit, fraud and procedural non-compliance” by out-of-state signature gatherers. An appeal is pending before the Montana Supreme Court.


In Oregon, Ballot Measure 40 would amend the Oregon Constitution to require that appellate judges be elected by district. It would require each judge of the Supreme Court and Court of Appeals to have been a resident of his or her district for at least one year before the judge’s appointment or election. Supporters argue that the measure would provide balanced geographical representation on the state’s top courts. Opponents argue that judges should be elected based on their merits, not where they live, and that this measure could strengthen the influence of special interests.

The most radical measure appears in South Dakota, known as Amendment E. A group called “JAIL 4 Judges” is sponsoring the constitutional amendment to wipe out judicial immunity, subject judges to firing for various “offenses,” and, according to its proponents, mandate jury trials for infractions like parking tickets and dog license violations. Supporters argue that the measure is necessary to halt judicial abuse, though they have been unable to document any significant examples of such abuse within South Dakota. Opponents—including both political parties and national business groups—argue this measure would create an unaccountable fourth branch of government that could close South Dakota’s courts and threaten the state’s economic underpinnings.


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