If former State Senate President John Andrews has his way, a proposal to limit the length and number of terms of our State appellate judges will be on the November ballot. The initiative would reduce the terms of Colorado Supreme Court justices and Court of Appeals judges to four years. It would also impose a three term limit on appellate judges and limit service on appellate courts to a total of ten years. It is highly likely that supporters will be able to gather the signatures necessary to get this initiative on the ballot. Unless we organize and speak together against this initiative, it has a good chance of passing.
The initiative represents the most virulent attack yet mounted against our judiciary. However, the judiciary may not speak about it publicly. It is therefore absolutely critical that lawyers of all political persuasions come to the defense of the judiciary for its good, as well as that of our Bar and the public we serve. Simply put, we cannot let the radical views espoused by this initiative prevail. The cost is too great.
The concept of term limits for judges will destroy all that we have built. Proponents of term limits initiative claim that they are needed to increase accountability of our jurists. However, the merit selection process that has been in place in Colorado for forty years works well. It has to a large degree insulated the judiciary from the political machinations engaged in by the other two branches of our government. Passage of the term limits initiative will end that independence. Judges who serve or expect to serve a short term will be less, not more, accountable. Appointment to the appellate bench will be a step or stop along the way, not the culmination of a career.
What successful lawyer will give up a practice for eight to ten years to sit as an appellate judge and face the prospect of trying to re-enter a practice to which he or she has become a stranger? Our appellate bench will be made up of the inexperienced or unqualified who will have nothing to lose from a short judicial career. Or, perhaps we will end up with senior lawyers looking to work less on the way to retirement. Worse, our appellate bench will be made up of people who have no institutional memory or loyalty, whose goals are personal only. Are these the type of people that we want reviewing the decisions of our trial courts?
Let’s not be fooled. If this initiative passes, you can bet that similar term limits will be proposed for trial judges at the next election. Experience counts. Judging and lawyering are not the same thing. It takes time and experience for a trial judge to become comfortable and skilled in the role of judge. I think pretty highly of some of our younger judges. However, like them, I think they will get better with experience. If we had had term limits for trial judges it is likely that our community and our bench would have been denied the experience and wisdom of our senior judges, like Senior Judge Richard Hall. I cannot believe that justice would be served by removing judges just when they hit their stride.
What Can We Do?
What can we do individually and as a Bar Association to see that the independence of the judiciary is protected?
We need to speak out, write and educate the public about our judicial system, its independence, and the threat posed to it by the term limits initiative. And we need to do it now! If we wait until October it will be too late.
Education of the public about the term limits initiative is especially important in our community, which with some justification is perceived as exceptionally intolerant of the judiciary and its role in our system. Changing our community’s view of the judicial function is critical to defeating the term limits initiative.
Talk to your friends, family, clients, and contacts about what is at stake. Suggest to them that just because a judicial decision is unpopular does not mean that it is wrong. Judges rule on the matters before them. Those who accuse our appellate judges of being judicial activists are not really seeking judicial independence, but activism of a different sort.
As a sitting District Court Judge, incoming Bar President Kirk Samelson is prohibited from speaking out on issues such as this initiative. I am not. Neither are those Past-Presidents of our Bar or Trustees of the Bar, who are not sitting judges. I will speak to any group in our community I can about this topic, as will the Trustees and the many Past-Presidents of our Bar that I have spoken with about the proposed initiative.
Please let us join you at your clubs, churches, synagogues and anywhere else where we as attorneys can explain to the public how the judiciary works, and why the term limits initiative is bad for the judiciary, bad for our system of justice, and bad for the State of Colorado.
Now is not the time to sit back and watch this disaster unfold. Get involved and speak out to protect the independent judiciary that we have and need in this State.
Disclaimer: The foregoing discussion is not intended to constitute legal advice but is provided solely for informational purposes. You should consult with a competent attorney regarding any of the issues discussed herein.
The foregoing article is published in the August 2006 issue of the Pikes Peak Lawyer in Mr. Weiner's capacity as President of the El Paso County, Colorado Bar Association.
©2006 Murray I. Weiner. Murray I. Weiner is an attorney with the law firm of Mulliken Weiner Karsh Berg & Jolivet, P.C., in Colorado Springs, Colorado. Mr. Weiner is the 2005-2006 President of the El Paso County, Colorado Bar Association. Mr. Weiner practices in the areas of civil and commercial litigation. He can be contacted at (719) 635-8750.
