Colorado Court of Appeals Finalists Announced

Colorado's Judicial Appointment System In Action

In Colorado, judges are appointed, in the vast majority of cases by the Governor (municipal or in Denver's case, partially municipal judges, are appointed locally), from a list of three finalists proposed by a Blue Ribbon Commission who, with very minor exceptions, must be lawyers in the state with a certain number of minimum years of experience, within 15 days of receiving the list. If he fails to choose, the judiciary will chose for him.

There is a vacancy on the Colorado Court of Appeals at the moment, as a result of the retirement of Judge Jose Marquez, and the three finalists are:

• Arkin, a state district judge since September 2002, has handled Douglas County domestic relations, probate and mental-health cases, and Elbert county cases in those same areas, as well as criminal, civil and juvenile matters. She worked previously as an Arapahoe County District Court magistrate and as a litigator and assistant district attorney in Georgia. She earned a law degree in 1983 from Georgia's Emory University and moved to Colorado in 1993 to practice family law.

• Lichtenstein works as an appellate attorney for the state public defender. She grew up in Denver and earned a law degree at the University of Denver after graduating from Northwestern University. She has practiced law for 20 years as a trial and appellate lawyer. In 2002, she served on a state legislative subcommittee on sentencing. She also was vice president of the Colorado Criminal Defense Bar and has written on Colorado criminal practices and procedures. She has taught as an adjunct professor at the University of Colorado law school.

• Richman served since 2003 as a career law clerk for U.S. District Judge Phillip Figa until Figa died Jan. 5. A 1975 graduate of Harvard law school, Richman worked as a law clerk for a Denver federal appeals court judge before becoming staff attorney for the Denver regional office of the Federal Trade Commission. Richman also has worked in private practice, primarily in commercial business litigation.

I sincerely hope that Governor Ritter will make a wise choice after careful consideration of the candidates. As a veteran Colorado attorney himself, who has supervised many other attorneys and has observed the performance of many sitting judges, he is certainty well qualified to make this decision.

Colorado Has An Excellent Judicial Appointment System

A wide cross-section of members of the Colorado bar and observers of the court system agree that the system used in Colorado is far superior to the election of judges, and most also agree that it is superior to the system of purely political nomination subject to purely political legislative body approval used at the federal level and in some states, and to the system of unilateral politication nomination by Governors used in other states. I don't believe that any better system of appointing judges that draws a balance between merit and political concerns has been devised.

The relatively unimposing confirmation process for would be judges, similar to any other job interview process in the public sector, in which only the names of three finalists are made public, allows good applicants to apply without fear of undue personal attacks, avoids the need for a candidate to compromise him or herself by seeking campaign contributions, and eliminates the need of candidates to invest the large amount of personal time involved in running a political campaign to secure the office.

It also keeps the process less partisan, which leaves appointees less subject to accusations of political bias based upon overt political participation (compared to the many states where candidates are nominated by politicians or political parties in the first instance), and avoids the phenomena seen from time to time in states with judicial elections where a candidate wins largely based upon name recognition (sometimes mistaken when a candidate has a name similar to a famous person), name ethnicity, or name gender, rather than merit. This is particularly a problem in judicial elections where voters are often ill informed. This lack of information is often as a result of now unconstitutional judicial ethics rules which limit campaign speech on judicial philosophy merits, but are still often followed

The Colorado system fills vacancies swiftly and reliably.

The Colorado system allows the chief executive of the state to exert meaningful political influence on the ideological bent of the bar, while the merit system that limits the choices to three finalists excludes people who are politically well groomed but ill qualified to serve as judges.

The fact that the appointment is made by the Governor, rather than locally (except for municipal court judges and Denver County Court judges) is also good one, particularly in the appointment of trial judges, because it prevents local interested parties who have local political power from having undue influence over judges who will preside over cases in which they will appear.

Problems With Colorado's Judicial Retention System and Possible Solutions

The same praise cannot be applied to the retention election part of the system in Colorado, which functions passably well mostly because the quality of the appointment system keeps the number of judges who should not stay in office tolerably low.

There are six ways that judges can leave office in Colorado: (1) they can retire at the mandatory retirement age of 72 years of age (common), (2) they can retire voluntarily (common), (3) they can die (much less common than in the federal courts due to the mandatory retirement age), (4) they can be removed by a commission on judicial discipline that handles complaints about judicial ethics and disability (rare but still more common than the methods that follow), (5) they can be non-retained in a retention election (very rare), or (6) they can be impeached (exceedingly rare).

Also, while many voluntary retirements simply happen to coincide with judicial ethics and disability proceedings, it is also true, particularly in cases of alleged disability, that a judicial ethics and disability investigation is a factor that encourages an ailing judge, or a judge who is finding the job to be more of a burden with advanced age, to voluntarily retire before disability or impropriety is adjudicated.

In theory, judges serve a two year probationary term once appointed, and then successive terms (the duration varies with the office held), punctuated by retention elections. But, a majority of voters almost always vote to "retain," and a significant minority of voters always vote to "not retain" judges. A smaller yet minority of perhaps 10% of voters decide to vote to retain or not retain judges on an individualized basis. As a result, in the 41 years that the retention election system has been in place, no appellate judge has ever been removed in a retention election, and the percentage of trial judges removed in retention elections is on the order of 1%, almost always as a result of a specific scandal or controversy, rather than general concerns about poor performance. Yet, almost by definition, some of those judges in the past 41 years must have had significantly below average competence and performance.

Every election cycle, some judges are retained despite serious concerns raised by the judicial performance commission report that stand out, usually resulting in a non-unanimous recommendation to retain or a "no recommendation" on retention vote. There is a strong overlap between judges in this class and judges with far lower than average support in opinion surveys of the lawyers, staff people and litigants who have appeared before the judge. Very few of those judges actually have a majority of any category urging non-retention, but those judges who barely break 50% support are worrisome in the context of the fact that most judges receive overwhelming support for retention from all types of people (and all subgroups of attorneys) surveyed.

A poorly performing, yet not incompetent judge, can impose great costs on the judicial system, on individual litigants, and upon public perceptions of the quality of the judiciary.

The retention election part of the system also involves a massive amount of work evaluating judges, having separate blue ribbon commissions consider the matter, distributing that information to the general public, and requiring the entire electorate, most of which typically has no other information upon which to make a judgment, to study the choices and then cast votes on a ballot that is made much longer as a result.

Despite all this work, voters still lack important information. In particular, it is troubling that voters in retention elections are not systematically provided with any information on how appellate courts have treated cases appealed from a judge. This isn't to say that it is important for none of a judge's ruling to be reversed on appeal. But if a judge is singled out for serious criticism in an appellate opinion, or has been frequently reversed for abuse of discretion, this is a serious concern that the current system does not capture, particularly at the trial court level where a single trial judge's word is often the final word in a case.

It is not beyond the abilities of people of good will to devise a system of evaluating judges on a regular basis that culls not only the 1% that have done something seriously troubling to some segment of the community, but also the 10% or so who can be identified as simply being the weakest performers on the bench in terms of docket management, maintaining a judicial demeanor, maintaining a widespread perception of fairness, and having reasonably low reversal rates on appeal. The issue should not be "has a judge failed to do his or her job," but, "is there are strong likelihood that a new appointee would be better?"

There are also more economical ways to secure public involvement in the removal of judges in cases of scandal or controversy, that could achieve almost the same result. And, there is no need for a serious parade of horribles as a result of a change, because, even without retention elections, impeachment is always available as a backstop, if the ordinary system fails or urgency is required.

For example, one reform proposal might be to hold retention elections only in cases where (i) there is less than two-thirds support for a retention recommendation from the relevant judicial performance commission, (ii) a citizen's petition requesting a retention election with a number of signatures identical to the number required to nominate a candidate for attorney general (for appellate judges), district attorney (for district court judges), or county level office (for county court judges), or (iii) a judge has been disciplined by the commission on judicial discipline since the last retention election in a manner that does not result in removal from office.

Another way to achieve this end and remove underperforming judges who haven't actually involved themselves in scandal or controversy might be to require a supermajority, such as a two-thirds majority vote, in a retention election to retain a judge, on the theory that judges need to have broad bipartisan support, rather than mere majority support like a typical legislative or executive branch politician.

A more rigorous and selective retention process would also address the concerns, raised in a recent failed ballot initiative that inaptly proposed "term limits" for judges as a solution, that the current retention system amounts to a rubber stamp and that judges in Colorado serve de facto life terms, without drumming out judges who deserve to remain in office (a hard commodity to find in rural Colorado in particular). Pre-emptive improvement in the retention system that addresses the real problems would mute knee jerk reforms like the one recently placed on the ballot.

(UPDATED on March 25, 2007 to correct issues in spelling, grammar and writing style without altering the substantive opinions expressed.)