04 November 2010

Colorado Judicial Retention Redux

In this year's judicial retention elections two judges failed to get "retain" recommendations from the Colorado Judicial Evaluation office:

Denver County Judge Mary Celeste received a "no opinion" rating based upon her "overall demeanor" and was retained with 62% of the vote. To my knowledge, there was no significant campaign to fight in the public forum to retain her, although she pledged to try harder to do a good job.

District Judge Jill Mattoon in Pueblo received a "do not retain" recommendation for her "lack of basic legal knowledge" and her failure to recuse herself when appropriate. But, 57% of voters voted to retain her. She actively fought the "do not retain" recommendation, claiming that it was simply a matter of anti-prosecutor bias. (This would not have sufficed to retain her in Illinois, where 60% support is required for retention.)

Voters listened to the recommendation of the Judicial Evaluation Office and many voted to retain other judges, but not those who were singled out, but ultimately decided to keep these judges.

But, voters did not retain Larimer County District Judges Jolene Blair and Terry Gilmore who had received "retain" recommendations. An active campaign of which I was not a part worked to oust them. I joined the chorus arguing for their non-retention at this blog. Both were found by the judicial system to have engaged in unethical conduct in connection with the Tim Masters wrongful murder conviction when they were prosecutors, something not known when they were put on the bench. In this instance, the system worked as intended.

Probate Judge Stewart, in Denver, who was not targeted by any organized non-retention campaign, was retained with a high percentage of the vote, despite a newspaper article in the Denver Post during the election season which was harshly critical of the way she was managing her specialized court's employees. But, a "retain" recommendation based upon her specialized knowledge of her legal subject matter sufficed to keep her in office.

The judges on the Colorado Supreme Court targeted by "Clear The Bench," a conservative activist effort, were retained. This was appropriate. These judges did their jobs and did them well.

Three Iowa Supreme Court judges were not retained over the controversy related to their holding the gay marriage was a constitutional right. I certainly would have been among those voting to retain them. But, to be perfectly frank, I can't say that this is contrary to the intent of the retention election system either. Judging at the state supreme court level is not a matter of being an umpire. Judges at that level make policy choices and can legitimately rule more than one way on most cases that they choose to take. The public of Iowa strongly disagreed with the way that the Iowa Supreme Court exercised that discretion and removed the judges on that basis. The fact that this is the second time in the half century history of the judicial retention system of this kind in any state (a prior similar episode unfolded in one state in the wake of death penalty decisions), suggests that the public exercises its power to remove judges sparingly. Better to have a safety valve for democratic discontent, than to throw out a system that works better than any other judicial selection and removal system in the United States today.

A system that allows the public to vent strong disagreement with the actions of particular judges by removing them from office, and then replaces those judges with new judges chosen on a merit basis with limited political involvement, is far better than the traditional judicial election system which entangles sitting judges with special interests from the campaigns and often forces the public to put an unqualified judge on the bench in order to remove one whom they think should leave office.

All of the judicial retention elections had a large "undervote" (i.e. ballots cast with no vote for either side of an issue or race). Combined, the "do not retain" vote and the undervote was roughly equal to the affirmative "do retain" vote in many cases. Voters aren't in a great position to evaluate judges, particularly in large urban and many refrain from doing so for that reason.

The Judicial Evaluation Office does a good job as far as it goes, but also fails to give sufficient weight to specific instances of conduct or controversy that deserve airing. Judges are almost never "not retained" due to general mediocrity. They are removed from office by voters due to specific controversies which the public believes were not handled well.

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