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Report: Judicial ballot measures misguided
DENVER — A report released Monday said the nation’s judges are facing a “crisis of confidence” and need to be held accountable, but criticized ballot initiatives intended to crack down on judges as misguided.
Rebecca Love-Kourlis, a former Colorado Supreme Court justice, said a study by The Institute for the Advancement of the American Legal System at the University of Denver shows the judicial performance evaluation system used in 21 states is working.
She said there is no need for voters to take drastic measures.
In Colorado, voters next month will decide whether to limit the terms of the state’s top two courts, while a South Dakota ballot proposal would strip judges of their traditional immunity from lawsuits. A Montana proposal to make it easier to recall judges was tossed out by a judge who said he was concerned about how petition signatures were gathered.
Kourlis said judges need to show they are willing to be held accountable or they risk losing public support.
“There is a crisis of confidence. That crisis of confidence is being politicized,” she said.
“The public does not know what they can expect. They know they are upset. A significant part of that is that the court is perceived as inefficient and sort of a black hole for resolving controversies like divorce or contract disputes,” Kourlis said.
Colorado is one of six states that have a strict system to hold judges accountable, Kourlis said, requiring an independent commission to review performance and make recommendations to voters on which judges should be retained. Other states with similar programs include Alaska, Arizona, New Mexico, Tennessee and Utah.
Albert Yoon, a professor at the Northwestern School of Law, said judicial review doesn’t work in many states because the legal profession is trying to police itself. He said lawyers don’t want to criticize judges they may have to face in court.
“Judges are reluctant to sanction one another,” said Yoon, who has studied federal judges who are not subject to review.
Yoon said it’s hard to evaluate judges because it’s difficult to measure issues like bias and other behavior.
Since 1998, Colorado’s commission has given bad reviews to only seven of 485 judges, Kourlis said, and since 1990, Colorado voters have thrown six judges out of office. She said a number of judges have decided not to run for retention after getting bad reviews, but the state has no way of knowing how many because the reviews are kept secret if the judge voluntarily steps down.
Kourlis said that serves the public interest because “the ultimate goal is to get good judges.”
Former state Senate President John Andrews, who is sponsoring the initiative on the November ballot, said he believes the judiciary is out of control and that “activist judges” need to be reined in. He criticized the current system in which a bipartisan panel picks three judicial nominees, the governor appoints one, and the judge then must periodically run for retention.
Amendment 40 would force the retirements of five of the seven state Supreme Court justices and seven of the 19 state appeals court judges in 2009. It would set terms for both courts of four years, beginning Jan. 1.
Andrews said this year, out of 108 judges up for retention, the commission recommended all of them be retained.
“That doesn’t sound like a tough process to me. It seems like a weak, self-serving, response by a closed, cozy little club of lawyers and judges,” Andrews said.
Judicial reviews at a glance
THE ISSUE: Ballot measures have been proposed in Colorado, South Dakota and Montana to crack down on what critics call “activist judges,” either through term limits or recalls or stripping them of legal immunity.
WHAT STATES HAVE DONE: Over the past 30 years, a system for judicial performance evaluations has been introduced in 21 states. Independent commissions periodically review performance, including complaints from lawyers and other court observers, and recommend whether judges should be retained by voters.
RECOMMENDATIONS: A report issued Monday suggests judges should be evaluated on a regular schedule, evaluations should emphasize nonpolitical measures of performance, an evaluation committee should include lawyers and non-lawyers in its work, and the results should be made public.