DENVER — If you aren’t going to use your judgeship, why not let someone else have it?

A bill introduced in the Colorado Senate last week would add a district judgeship in the western slope’s 7th Judicial District while taking away a vacant district judgeship in the 1st Judicial District, which comprises Jefferson and Gilpin counties. The bill gets its first hearing on Wednesday at the Senate Judiciary Committee.

The 1st Judicial District got funding for three new district judgeships in 2007, but two of those remained unfilled due to space constraints. If SB11-028 were to pass, one of these unfilled judgeships would to the 7th Judicial District, which comprises Delta, Gunnison, Hinsdale, Montrose, Ouray and San Miguel counties.

The change would be budget-neutral.

The bill is sponsored by Democratic Sen. Gail Schwartz and Republican Rep. Don Coram, who represent legislative districts that lie within the 7th Judicial District.

The judge-shift was requested by the Colorado Judicial Department, said spokesman Rob McCallum.

“Simply put, there was a greater and growing need for another judge in the seventh judicial district,” McCallum said by e-mail.

District court case filings have increased 25 percent over the last four years, according to Judicial Department data. Civil cases, excluding foreclosures and tax liens, have grown nearly 63 percent at the same time.

As a result, the district court is staffed at just 60 percent of the level recommended by the state court administrator’s office.

The 1st Judicial District court management gave its blessing to giving away the judgeship, according to a Judicial Department fact sheet.

DENVER — Colorado Attorney General John Suthers has appointed Bernie Buescher as the deputy attorney general overseeing the AG’s office’s State Services Section.

“I am pleased to welcome Bernie to my senior staff,” Suthers said in a statement. “Bernie is a proven leader and manager. His breadth of experience as an attorney, an elected official and a statewide executive will make him an excellent addition to the Office of the Attorney General’s management team. I look forward to working with him in this new capacity.”

Buescher was Secretary of State for two years but lost November’s election to Scott Gessler. Buescher’s last day as Secretary of State was Jan. 11. Buescher was appointed secretary of state in 2008 by Gov. Bill Ritter shortly after Buescher lost his reelection bid as a state representative from Grand Junction.

He had a number of public and private sector jobs before that, including president of West Star Aviation, Inc., and executive director of the Colorado Department of Health Care Policy and Finance under Gov. Roy Romer. A 1974 graduate of the University of Colorado Law School, Beuscher has also practiced law in Grand Junction.

Buescher replaces Monica Marquez as head of the State Services Section. Marquez joined the Colorado Supreme Court in December.

The State Services Section provides legal advice and representation for numerous Colorado state agencies, including the governor, lieutenant governor, secretary of state, treasurer, attorney general and the judicial branch of Colorado government. The section handles complex constitutional litigation as well as the defense of voter-approved constitutional and statutory provisions. The State Services Section also represents the State Board of Education and the state’s public college and universities.

LAW WEEK COLORADO

DENVER — Before a joint session of the Colorado General Assembly on Friday, Chief Justice Michael Bender gave his first State of the Judiciary speech, in which he touted the accomplishments of the judicial branch, acknowledging its challenges and shared its goals [prepared remarks are below].

Bender, who took over six weeks ago as head of the judicial branch following the retirement of former Chief Justice Mary Mullarkey, has had a busy week swearing in elected officials. This address was his first major turn in the spotlight as chief justice.

“Despite diminishing resources and increasing demands we have strengthened the operation of the courts by increasing efficiency,” Bender said.

He emphasized money the judicial branch saved in 2010. The probation department saved the sate $11 million last year in incarceration costs, while the permanent cut of 173 positions saved $7 million.

The third branch of government has 316 judges and more than 3,000 employees, all of whom help carry out vital work, he said. Bender singled out for praise El Paso County District Judge Ron Crowder and Pueblo County Chief District Judge Dennis Maes.

Crowder, a general in the Colorado National Guard, heads the El Paso County Veterans’ Court, which celebrates its first anniversary next month. The treatment court addresses the issues unique to soldiers who have returned from deployment.

Maes helped establish a truancy court in Pueblo. Bender cited the example of a 13-year-old girl who came to his court as a substance-abusing gang member who rarely went to class, but thanks to Maes’ guidance straightened out her life and is now pre-med at CSU.

Access to justice is a major concern, he said.

“Individuals and businesses alike are finding it increasingly difficult to use our civil justice system,” Bender said.

Discovery costs are often prohibitive, and too few cases make it to trial. A proposed Civil Access Pilot Project is in the works to try to address some of those problems.

One of Bender’s goals is to keep up employee morale at the judicial branch, he said. He plans to visit all 22 judicial districts in the state to get feedback and solicit advice.

Bender thanked the General Assembly for its help making the Ralph L. Carr Justice Center a reality. Slated to open in early 2013, the center consolidates state legal agencies and establishes the judicial branch as the equal of the executive and legislative branches of government. Bender was particularly enthusiastic about the learning center for children that will be on the first floor of the courts building.

State of the Judiciary, January 14, 2011
Michael L. Bender, Chief Justice
Colorado Supreme Court

President Shaffer, Speaker McNulty, members of the General Assembly, honored guests and friends.

It is my great privilege and pleasure to speak to you about the judiciary and to continue the tradition of the Chief Justice addressing the Joint session of the General Assembly.

Before I begin, I would like to introduce my colleagues on the Colorado Supreme Court:
Justices:
Gregory Hobbs
Alex Martinez
Nancy Rice
Ben Coats
Allison Eid, and
Monica Márquez
I would also like to recognize State Court Administrator, Judge Gerald Marroney.

I would also like to acknowledge members of my family who are here:

My wife, Dr. Helen H. Hand,
My sister, Ellyn Bender, who has travelled here from Florida, and
My children, Jeremy Bender, his wife, Melissa, and their daughter and my granddaughter, Margot,
Aviva Siegel, her daughter and my granddaughter, Allison, and finally,
Maryjean, Tess, and Ben Hand-Bender.

On behalf of myself and my fellow justices, I thank you for this opportunity to report on the state of the judiciary in Colorado.

As John Adams, one of our founding fathers, said we are a government of laws, not men.

As an aside, as a rookie lawyer, Adams lost his first case on a technicality when he forgot to follow a local rule of law. He was advised by his elders to study the classics less and the local law more. But later in 1787, again inspired by the classics, he urged ratification of the proposed federal constitution with these enduring words:
“. . . that a form of government which unites all virtue . . . in a reverence and obedience to the laws, is the only one in which liberty can be secure, and all orders and ranks compelled to prefer the public good before their own; that is the government for which we plead.”
Adams’ point rings true today — to have a government that secures liberty and freedom, all branches of the government must be obedient to the law. Our government is not founded upon the good wishes and desires of individuals because, as Adams noted, individuals cannot be counted on to “prefer the public good before their own.”
By deciding cases and resolving controversies according to the rule of law, the judiciary furthers the paramount principle that we are a government of laws and not men. It is important to emphasize that we only decide cases when there is a dispute and the disputing parties bring that controversy to the court. To accomplish our constitutional mission, we interpret and apply the law in an even-handed and fair manner. Our courts protect individual rights and are open to all, whether rich or poor. No one is above the law. By establishing justice, courts serve the people.
As the highest court in the state, our Supreme Court upholds the rule of law by deciding cases of statewide importance. Our opinions represent a collegial product involving research, reflection, and deliberation. No one judge has the answer to these complex controversies. The chief is but one of seven. A majority of four justices must agree to render a decision. The rich mix of backgrounds, cultures, and experiences that exist among the seven of us, contributes to our deliberative process. Personally, I can attest to the fact that the job is not only hard but also humbling. We debate, we agree to disagree, and sometimes we are convinced to change our views. At all times, each of us respects the other and each of us recognizes that we are dedicated, as urged by John Adams, to the goal that as the rule of law prospers the public good thrives.

As Chief Justice, I stand before you as representative of the seven justices, as well as the judiciary as a whole. I was elected to serve as chief by my peers and began a little less than six weeks ago, so the job is a little new to me.
Let me give you a quick overview of the system. The third branch includes 316 judges with over 3,000 employees who work in all 64 counties. Each day, the courts accept over 2,100 new filings. On the civil side, these cases run the gamut from small claims to multi-party multi-million dollar claims—including business, real estate, water, domestic, probate and juvenile matters. On the criminal side, our cases range from speeding to first degree murder involving the death penalty.
I would like to thank the General Assembly for the resources that have been allocated to the courts and probation. I acknowledge the predicament you assembly members are in, as you try to meet the needs of the entire state with limited funds. Although adequate resources for court and probation functions are critical, I have not come here today to present budgetary needs. Instead, I will share some accomplishments, describe meeting the challenges posed by a struggling economy, and explain my goals for strengthening the judiciary.
Our greatest strength is our people—judges, magistrates, administrators, probation officers and clerks. Colorado’s non-partisan merit selection system assures that judges are selected from the ranks of lawyers in the community who are hard working and honest, and have had distinguished legal careers. The performance of each judge is reviewed by a bi-partisan community-based performance commission composed of a majority of non-lawyers.
I want to single out two judges for their outstanding contributions: Judge Ron Crowder in Colorado Springs and Chief District Court Judge Dennis Maes in Pueblo.
Judge Crowder, a retired Army general, presides over a veteran’s trauma court. This court provides alternatives to incarceration for veterans with trauma disorders who are charged with felonies. With federal funding, Judge Crowder organized not only the district attorney and public defender to work cooperatively on these cases, but also garnered support from numerous community groups. Today, there are approximately 50 veterans receiving treatment and counseling, who make regular appearances before the Judge. This new court provides an opportunity for those who have served our country to make a positive change and resume their lives as law-abiding citizens. This veteran’s court can serve as a model for expansion into other counties across the state.
Chief Judge Dennis Maes initiated and developed a truancy court in Pueblo over which he presides today. This court represents a collaboration of many community groups—the schools, city, county, police, courts, probation, social services, students and their parents. An example of the positive results comes from a teenager, who at the age of 13 and in 7th grade, was a gang member, had substance abuse issues, and had 28 unexcused absences from school. Reluctantly, this young girl agreed to participate in truancy court rather than be suspended. Judge Maes personally monitored her progress. Within a year, her truancy case was dismissed, she was getting straight A’s and she graduated from Central High School one semester ahead of her class. She is now a pre-med student at CSU in Pueblo, pursuing her dream of becoming a doctor.
I would be remiss in not emphasizing that the resources provided by the General Assembly over the years have fully supported our mission. No matter how capable our judges, they cannot be effective unless adequate resources are provided. But there is no question that the economic downturn of the last few years has impacted all branches of government. Despite diminished resources and increasing demands, we have strengthened the operation of the courts by increasing efficiency.
For example, we have helped balance the state budget. Our probation department, which the General Assembly has supported, has saved Colorado taxpayers approximately 11 million dollars per year in the cost of incarceration. We implemented hiring freezes in 2009 and in 2010, delayed newly authorized judgeships and saved the state more than 10 million dollars. This year, we had a one-time give back of 800,000 dollars and permanently cut 173 positions for an on-going savings of almost 7 million dollars per year.
As you know, we are in the process of building a statewide e-filing system for all cases, which will increase our efficiency and yield additional revenue. With your support, Colorado continues to lead the nation in court technology applications, as evidenced by the development and implementation of our public access system last year.
We adopted new procedures for water matters, which should make access to water courts less expensive and produce more timely results. As part of this project, we provided a guide for non-attorneys who wish to participate in water court cases.
We continue to ensure quality and integrity within our court system. For example, we have been pioneers in the establishment of jury reform and the establishment of over 60 community problem solving courts across the state—these include veterans trauma, adult and juvenile drug, family dependence and neglect, DUI, adult and juvenile mental health, and truancy courts.
Our attorney discipline system, operated under the supervision of the Supreme Court, serves as a national model. Our judicial disciplinary commission has been re-organized, and is in the process of revising its rules to increase transparency. We adopted a modern judicial code of ethics to assist judges facing ethical issues.
The “Courts in the Community” program, which began in 1986, continues to meet its goal of connecting the appellate courts with the community. The Supreme Court and the Court of Appeals travel to high schools throughout the state giving students the opportunity to hear oral arguments and mix and mingle with justices and appellate judges.
Finally, we conducted a survey of persons using the courts in all 22 districts to obtain feedback on how the courts are functioning. We use the results to improve our services.
For the rule of law to prevail, individuals must have access to the judicial system. Individuals and businesses alike are finding it increasingly difficult to use our civil justice system. The high cost of legal services and the growing complexity of the civil discovery process have made the cost of civil litigation prohibitive. As a result, the number of civil trials has dramatically diminished and many civil disputes are not resolved by a jury of peers. Just, speedy and inexpensive determination of civil cases is increasingly rare. To address this problem, the five chief judges in the Denver Metro area have requested that the Supreme Court approve a two-year pilot project to increase mandatory disclosure of information by the parties to their opponents and to streamline discovery procedures in both business cases and medical malpractice claims. The rules for this pilot project have been developed and agreed to, by both plaintiff and defense counsel and members of the judiciary in coordination with the Institute for the Advancement of the American Legal System at DU. Our Supreme Court will hold a public hearing on these new pilot project rules next week.
Access to the courts is also affected by the rapidly rising numbers of parties in marital dissolutions who cannot afford legal representation. These unrepresented parties, especially those with children, need legal advice and counseling. We are working through the Supreme Court’s judicial advisory council and the state and local bar associations to set up procedures whereby local volunteer attorneys will represent on a pro bono basis some of these clients who meet indigency guidelines.
As Chief Justice, I am committed to further strengthen the efficiency of our judicial system, its quality and integrity, and to improve access to the courts. In that vein, I have a number of additional goals.
Employee morale is critical. I don’t need to tell you how devastating job cuts and hiring freezes can be. The cuts we’ve made branch wide have fostered feelings that the work done in the local courts is not fully appreciated. One of my tasks is to visit each of the 22 districts, listen to judges and staff and solicit their ideas for improvement. I believe that our system should include increased consultation with those in the field and that their suggestions should be factored into policy decisions.
We must take an active role in the integration and coordination of the legal profession, including the law schools, the practicing bar, and the judiciary. To this end, I have established a Chief Justice’s committee on the legal profession which includes state and federal judges, bar leaders and the deans of both law schools in the state. This committee will meet regularly to develop initiatives and policies concerning: how students are taught to be practitioners in light of the historical role of lawyers in society; what are the appropriate qualifications for practice; how lawyers should treat both clients and fellow lawyers; and how judges and lawyers should treat each other.
We, as judges, need to expand our efforts to educate the public about what we do and what the rule of law means to the Judiciary. The educational outreach program “Our Courts,” initiated by Court of Appeals Judge Russell Carparelli and Federal District Court Judge Marcia Krieger and supported by the Colorado Bar association and the Colorado Judicial Institute, needs our full support. As a practical matter, we must spend time with students and civic groups in addition to our regular judicial duties. I see my task as encouraging others to do this and to take my own advice to heart and do as I urge others to do.
We have a great need for judicial training. About half of the trial judges in the state were appointed in the last six years and it takes up to six years for a judge to be fully trained. Training sadly competes with the need to keep up with the burgeoning case loads. We continue to explore ways to provide education to new judges, to judges in need of specialized training to preside over certain types of cases, and to judges in need of education on new and different issues that come before the court. Judges face jurors who use Twitter and Facebook, litigants who come from various countries and speak hundreds of languages, and cases with complex legal issues involving construction, finance, medical malpractice, product liability and engineering. Our judges are expected to become experts within a short time of taking the bench on all types of cases including probate, mental health, juvenile, civil, criminal and domestic. Our efforts to provide this type of education at a low cost have included distance learning, regional meetings, scholarships to attend out-of-state offerings and pairing with other agencies to provide training. We continue to explore ways to provide the type of education necessary to keep our judges informed and able.
Before I close I want to talk a little about our new building. Thank you again General Assembly for your bipartisan support in championing this project. The Ralph L. Carr Colorado Judicial Center, which is being built without any general fund impact, will be finished in the spring of 2013. This center will house our appellate courts, the State Court Administrator’s Office, the Attorney General’s Office and other state legally related entities. There will be substantial savings in maintenance costs and shared services over the years. A fundamental part of the new courthouse will be the learning center which will occupy premier space on the first floor. This is something I am particularly excited about. The learning center will be unique—it will house interactive devices designed to teach from the K-7 level to the college level about the three branches of government, how they interact with each other, and focus on the special role courts play in our society to uphold the rule of law. The learning center will be keyed to the state’s required civics curriculum.
The Judicial Center will provide a stately and visible reminder at the seat of our state government of the critical importance of the Colorado judiciary. It will symbolically represent the judiciary as it seeks to uphold the rule of law in our state.
Thank you for the opportunity to talk about the legal system which I love and of which I am so proud. I leave you with Harper Lee’s words, taken from her novel, To Kill a Mockingbird, and spoken by Atticus Finch, a wise father and a passionate lawyer:
But there is one way in this country in which all men are created equal—there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president. The institution, gentleman, is a court. It can be the Supreme Court of the United States or the humblest JP court in the land. Our courts have their faults, as does any human institution, but in this country our courts are the great levelers, and in our courts all men are created equal.
Thank you. I look forward to working with you during this session.

A coalition of law enforcement groups seemingly hit a home run by busting an assistant baseball coach at Regis University, a retired Denver firefighter and 33 other people who were allegedly part of a gang-fueled cocaine trafficking organization.

U.S. Attorney John Walsh announced yesterday that law enforcement officers on Friday arrested 28 of the suspects without incident. The charges allege that the suspects — which also include people with ties to a Mexican drug cartel and local street gang members — were part of an organization that brought nearly 45 pounds of cocaine to the Denver area every week for local distribution

“I would characterize it as one of the most successful operations in recent years,” said Colorado U.S. Attorney John Walsh of the bust.

The cocaine trafficking bust originated with an investigation into the Denver Tre Deuce Gangster Crips. That investigation led to local wholesale cocaine dealers and suppliers with contacts to one of the more prominent Juarez drug cartels. According to the indictments, the cocaine was transported in secret panel in cars that came up I-25 from Mexico via El Paso.

During the investigation, agents and officers seized 53 kilograms of cocaine, 35 pounds of marijuana, more than $650,000 in cash, nine firearms and 15 vehicles. Agents and officers seized $500,000 of the cash from one defendant’s home and $122,000 from a car stop in Downtown Denver.

The Metro Gang Task Force — a wide coalition of more than 10 local law enforcement groups — was responsible for the bust. The group was praised yesterday as one of the most prolific and effective task forces in operation.

“This is not a good place to do business, they need to do their business elsewhere, because these guys will track them down and put them away.” said FBI Special Agent in Charge Jim Davis of drug dealers.

While many of the defendants have ties to gangs or drug cartels, others like Ronald Rocha — an assistant baseball coach at Regis University who helps players with drills — or David Cordova — a retired firefighter — show the wide-ranging scope of the alleged trafficking group.

Jeremy Phillips, sports information director for Regis University, confirmed that Rocha is an assistant coach with Regis who helps with on-field instruction. Regis University runs background checks on all coaches, he said. Regis is a private Catholic university with a mission to “provide value-centered undergraduate and graduate education.”

“We don’t know anything about this,” Phillips said.

All of the suspects are facing a maximum penalty of life in prison and a $4 million fine. Six suspects are currently at large.

Larimer County Natural Resources Director Gary Buffington thought he had found an efficient way of notifying residents living near the north shore of Horsetooth Reservoir of an upcoming construction project that would bring heavy truck traffic to the area: Get a county staffer to stuff the notices into residents’ mailboxes, 50 of which are lined up in a neat and easy-to-access row along County Road 25G. It seemed like the perfect time- and cost-saving solution, except for one detail—it was illegal.

“It’s a violation of federal law, depositing items on or into mailboxes for which there is no postage,” said Al DeSarro, spokesman for the Western Region of the U.S. Postal Service. “People cannot use postal access (to distribute) information or fliers without using the regular mail system. … Violators, upon prosecution and conviction, can receive for each offense—each mail piece deposited—a fine of up to $300 per piece. It would be pretty expensive.”

Although he’s not likely to be prosecuted, Buffington is still paying for the illegal mailing through public mea culpas. The notices were stuffed in mailboxes Friday afternoon. By Monday morning, Buffington was busy writing apologies to irate residents who’d called or e-mailed the county to complain.

“I certainly agree that the notification process to inform the neighbors of this operation was truly flawed,” Buffington wrote in one e-mail. “Please except (sic) my apology for using your postal mailbox for this purpose. We have contacted the postal service and assured them that this will never happen again.”

Compounding the problem—and residents’ ire—was that the notices erroneously listed the start date of the construction project as Monday. Considering that many residents didn’t get the notices until after business hours Friday, they had no time to call and voice concern about plans to move some 330 truck-loads of soil along their main road as part of a beach improvement project at the reservoir. The operation isn’t actually slated to start until next week.

The feds are likely satisfied that Buffington is now familiar with Title 18 of the United States Code, Section 1725, “Postage Unpaid on Deposited Mail Matter,” and probably won’t re-offend.

“What we usually do when we hear of a case like this is our postal inspectors, our law enforcement unit, usually contact that entity, or representative of that organization, and let them know, ‘Hey, you can’t do this,’” DeSarro said. “Usually that’s enough.

“We usually don’t have any problem with the person stopping it after they’re warned.”

Buffington didn’t return a phone call from FTS seeking comment.

Proponents of a ballot initiative aimed at banning abortion in Colorado lost a court challenge yesterday to change contested language in the so-called Blue Book state voter guide.

Denver District Judge Robert Hyatt threw out the challenge ruling that the plaintiffs did not have jurisdiction to intervene in advance of a general election. He ruled that the language of the Blue Book is a legislative function, not a decision to be made by the courts.

An 18-member bipartisan council decides the language of the Blue Book.

Personhood Colorado says the language in the analysis is not “fair or impartial, but in fact glaringly biased against Amendment 62.” Proponents sharply disagreed with Hyatt’s ruling yesterday, arguing that the ruling places no pressure or accountability over the Legislative Council. Proponents said they plan on appealing the decision.

“It is apparent that the court believes there is no authority over the Colorado Legislative Council, and that is scary,” said Gualberto GarciaJones, co-sponsor of Amendment 62. “The Colorado Legislative Council can print anything they want to based on their own prejudices, and my tax dollars have to pay for it.”

Amendment 62 would define a “person” as being “from the beginning of the biological development of that human being.”

Critics of the initiative are concerned that the Personhood drive could turn doctors into criminals by making it illegal to perform in vitro fertilization procedures, prescribing birth control pills, or even conducting emergency procedures on pregnant women, such as if a fertilized egg becomes lodged in a woman’s fallopian tubes.

Opponents also raise fears over the possibility of the ballot initiative essentially banning abortion and paving the way for a challenge of Roe v. Wade, setting a precedent for cases across the country.

The opposition campaign states that Amendment 62 “still goes too far,” and concerns have been raised that re-defining the term “person” in Colorado could have far-reaching legal repercussions, both intended and unintended.

A similar effort failed in 2008 when it received only 27 percent of the vote.

Proponents were facing an uphill battle with their lawsuit. The Blue Book has already started to show up in voters’ mailboxes, though proponents were seeking to not only have the language changed, but for new copies to be sent to voters.

Since 1996, there have been five challenges in Denver District Court to the content of the Blue Book, according to the Office of Legislative Legal Services. Each of those cases was dismissed, according to the office.

The most recent case, a challenge in 2006 by proponents of a marijuana-legalization initiative, set a precedent when it was dismissed because the court found that the plaintiffs did not have jurisdiction to intervene in advance of a general election, according to the Office of Legislative Legal Services.

The group of pro-lifers say none of more than 70 pages of notes that they submitted to Legislative Council was used in the Blue Book. They say that the final language was not sent to them, and they didn’t find out about the language until recently when they looked online. Proponents say had they been notified of the final language sooner, they could have filed objections without having to file a lawsuit in Denver District Court.

The Blue Book states in the “Arguments Against” section for the initiative that the “beginning of the biological development” is a term which is “not defined within the measure, has no established legal meaning, and is not an accepted medical or scientific term.” Proponents call the statement “erroneous and misleading,” and provided evidence of peer-reviewed medical and bioethics journals, as well as medical textbooks, which use the term “beginning of the biological development.”

Other complaints from proponents include statements in the Blue Book from opponents that women would be denied health care for certain emergency procedures, such as for miscarriages, if Amendment 62 is backed by voters this fall. Proponents are also concerned that the Blue Book includes language from opponents suggesting that the measure could subject doctors and nurses to legal action.

“The Blue Book’s false claims are so egregious that we were forced to take action,” said GarciaJones. “Outright lies were printed about Amendment 62 É That is why we plan to appeal this dismissal and right the grievous wrong that has been committed against our campaign.”

Charlie Neibergall, the Associated Press Bob Vander Plaats speaks during a news conference in front of the Iowa Judicial building. Vander Plaats, a social conservative, is trying to persuade Iowans to vote “no” on the retention of three judges as a way to punish them for their role in a 7-0 Supreme Court ruling last year that legalized same-sex marriage in Iowa.

Marsha Ternus, the chief justice of the Iowa Supreme Court, is unopposed in her bid for reelection this November. It will probably be the toughest campaign of her life.Ternus, along with two of her colleagues on the court, find themselves in a situation rarely encountered by appointed judges in the United States. They are the targets of an organized effort to turn a judicial retention election — a simple “yes” or “no” vote on whether an initially appointed judge should remain on the bench — into a political battle. The election is drawing national money and attention, and already has more in common with a contested race for governor or attorney general than it does with the ordinarily mundane process of voting on a sitting judge’s record, with no other names on the ballot.

The unusual effort is the brainchild of Bob Vander Plaats, a well-known figure in Iowa politics who waged a strong campaign in the state’s Republican gubernatorial primary in June. Vander Plaats, a social conservative, now is trying to persuade a majority of Iowans to vote “no” on the retention of Ternus and justices David Baker and Michael Streit as a way to punish them for their role in a 7-0 Supreme Court ruling last year that legalized same-sex marriage in Iowa.

Ternus, Baker and Streit are the only members of the court who face a retention vote this year, and ousting them would trigger a process in which the governor — currently Democrat Chet Culver — would name three replacements. It would have no impact on the gay-marriage ruling itself.

Even though it was unanimous, the high court’s ruling has been controversial since it was handed down last April. It made Iowa the first state in the Midwest to allow gays and lesbians to wed, and conservatives are upset that Democrats who control the General Assembly have refused to give residents a direct say on a constitutional amendment to ban gay marriage, which could overturn the court’s ruling.

While gay marriage is the stated focus of Vander Plaats’ campaign, supporters and critics alike agree that the election is about far more than same-sex weddings, and that it reaches beyond Iowa. What is really at stake, they say, is the future of the state judiciary in America, and whether appointed judges in states that do not have contested judicial elections — and who may not be comfortable with campaigning — will start to become beholden to popular opinion in ways they never have before.

“I think it’s fair to say that it gets judges’ attention around the country,” says Seth Andersen, executive director of the American Judicature Society, a court-reform group at Drake University in Des Moines.

Vander Plaats acknowledges that he is trying to send a message. He believes appointed judges in Iowa and other states have little accountability to the people, giving them broad latitude to make statewide decisions without concern over what residents prefer. Not only can judges redefine marriage, he says, “they can redefine who should pay taxes and how much, who can own and carry a gun and whose private property rights get protected — or do not.”

But to critics of Vander Plaats, judicial independence is precisely the point, and they say an orchestrated effort to punish a trio of judges for a single decision that was unpopular among many citizens will have a chilling effect on other potentially unpopular judicial decisions in the future.

Meanwhile, the three judges at the center of the campaign have said virtually nothing at all. They have not granted media interviews regarding the retention election, and though they legally could form committees to raise money and fend off the challenge that is coming at them from Vander Plaats, they have not done that. Courts administrator David Boyd — who knows them well — says they have no intention of becoming politicians.

“They could, they haven’t, and they won’t,” Boyd told Stateline, noting that outside organizations will likely have to speak and raise money on the judges’ behalf.

Judicial politics ‘foreign’ to Iowa

Voters in 21 states elect their high court judges directly, but Iowa and a number of other states use some form of “merit selection.” Under most statewide merit selection systems, a nominating panel submits the names of potential judges to the governor, who chooses among the options given to him or her. Voters then can weigh in on those judges by choosing to keep them or remove them in regular retention elections, with no other names on the ballot. In practice, very few are ever rejected.

The system, pioneered by Missouri in 1940, is not perfect. Questions have been raised in many states, for example, about whether the panel that initially submits the names of potential judges to the governor is tinged by politics, even though it is called nonpartisan. In Iowa, seven of the 15 members of the panel that nominates potential Supreme Court justices are Democrats and another seven are members of the Iowa State Bar Association, a lawyers’ group that is frequently characterized as Democratic-leaning. The final member of the panel is a sitting Iowa Supreme Court justice.

By and large, however, merit selection has become a favorite of court-reform groups because retention elections can serve as a way to keep judges accountable to the public while sharply reducing the influence of special interests in head-to-head judicial races. The Brennan Center for Justice issued a report last month documenting a surge in costs for judicial elections over the past decade, and critics of such contests say huge campaign contributions from trial lawyers and pro-business groups, nearly always on opposing sides, raise questions about whether elected judges can remain neutral.

“If a judge has been campaigning and asking special interests for money,” says Norbert Kaut, a spokesman with Iowans for Fair and Impartial Courts, “that undermines and corrodes the faith that the citizens have in their court system.”

Kaut and others say this year’s campaign by Vander Plaats is historically significant because it injects national politics and money into a retention election that ordinarily would be free of both elements. The influence of well-funded outside groups on judicial elections, Kaut says, is “really quite foreign to us in Iowa.”

National implications

Retention elections have been used before as a way to punish judges for politically unpopular decisions. In previous decades, state high court justices in California, Nebraska and Tennessee have been targeted for defeat in retention elections, sometimes because of a single unpopular decision over a social issue such as the death penalty. This year, efforts also are under way in Illinois and Kansas to oust sitting state high court judges in retention elections.

What sets this year’s campaign in Iowa apart from earlier initiatives is that Vander Plaats is trying to remove nearly half of a state’s highest court and that he is mounting an unusually high-profile challenge.

Meanwhile, a sitting state Supreme Court justice from Alabama, Tom Parker, last month took the extremely unusual step of weighing in on Iowa’s election, publishing an op-ed in The Des Moines Register that urged Iowans to punish Ternus, Streit and Baker for their decision on gay marriage and attacking the state’s method of choosing judges. Alabama holds head-to-head judicial elections, and Parker faces reelection this year in his home state.

In an interview, Parker called the huge sums raised by many judicial candidates in Alabama “obscene.” But he said that providing a direct choice to the people provides a level of accountability that the merit selection systems cannot provide. And he said that, in the end, the quality of the candidate is more important than the money raised.

“I’ve been outspent by huge multipliers in my elections,” Parker said, “but it has not made a difference.”

But the pro-retention side has some big-name opposition available to counter the arguments of Parker and Vander Plaats. Former U.S. Supreme Court Justice Sandra Day O’Connor visited Des Moines on September 8 to argue in favor of merit selection. “The health of the nation is affected by the system we use to pick judges,” O’Connor said. “As Iowa goes, so goes the nation.”

See related stories:

Nasty judicial races renew complaints (12/6/200″

—Contact John Gramlich at jgramlich@stateline.org ]]> http://statebillnews.com/2010/09/will-gay-marriage-decision-cost-iowa-justices-their-jobs/feed/ 0 http://statebillnews.com/2010/07/ritter-challenges-timing-of-immigration-lawsuit/ http://statebillnews.com/2010/07/ritter-challenges-timing-of-immigration-lawsuit/#comments Mon, 12 Jul 2010 15:06:08 +0000 admin http://statebillnews.spottedkoi.com/?p=9574 Colorado Gov. Bill Ritter was among several Democrats who voiced a certain degree of uneasiness with the Obama administration’s lawsuit challenging Arizona’s new immigration law.]]> The New York Times Sunday reported Colorado Gov. Bill Ritter was among several Democrats who voiced a certain degree of uneasiness with the Obama administration’s lawsuit challenging Arizona’s new immigration law.

At the summer meeting of the National Governors Association in Boston, the Times reported Democrats already worried about their re-election prospects in November given the weak economy now find themselves grappling with immigration reform – a highly divisive issue.

STATE BILL COLORADO

The Colorado House tonight bucked a bipartisan attempt to delay a proposed state takeover of two Judicial Department computer systems operated currently under contract by information giant LexisNexis.

The effort failed by the narrowest of margins: 33 voting no, 32 voting yes.

The House, as part of the annual budget approval process, rejected an amendment proposed by Rep. Joe Rice, D-Littleton, that would have allowed the Lexis and state systems to operate simultaneously during a transition period.

Rice said that the operating plan for the two systems hadn’t been fully vetted by the state’s technology office. The transition period, he said, would allow legislators to be sure that the systems are fully operational at the time the Lexis systems are shut down.

Under the plan, the first system to be taken over provides electronic access to dockets and other records. It’s primarily used by background-screening companies to determine whether applicants have clean records.

The second system allows attorneys to file lawsuits and pleadings electronically.

The State Court Administrator’s Office has argued that Lexis won’t modify the systems to make enhancements in some areas that are regarded as less profitable or not profitable. Court officials insist they have the expertise to provide both systems, and they asked for 19 additional employees to operate them.

Democratic State Reps. Beth McCann and Claire Levy, both lawyers, joined Reps. Max Tyler and Dickey Lee Hullinghorst in arguing for the state takeover, which is expected to generate millions in additional income to the budget-strapped courts through search and filing fees now received by LexisNexis and subvendors, including BIS and Axciom Risk Management. The Joint Budget Committee initially requested the takeover, noting, in part, the severity of the cash crunch.

Joining Rice in arguing for the transition period were Rep. Bob Gardner, also a lawyer, and Rep. Jim Kerr. Both are Republicans. Kerr complained that the state has a poor track record when it comes to launching and running computer systems, and he urged the state to build in a fail-safe period through the transition.

In the end, the amendment failed by a non-recorded vote of legislators standing and sitting. An attempt to revive the amendment produced the recorded 32-33 vote. The full House later gave preliminary passage to the state’s budget, HB10-1376. A final vote is expected tomorrow. The bill moves to the Senate next week. If the two bodies disagree about how to handle the court computer systems, a conference committee will iron out the two versions for another round of approvals before the full budget package goes to Gov. Bill Ritter.

The takeover of the court systems has been heavily lobbied for the past two years. Joining the state in arguing for the takeover were lobbyists for Pasadena, Calif.-based Courthouse News Service, which advocates for reducing or dropping fees the state charges for access to court records on the day that they are filed. CNS makes money by selling new filings to law firms nationwide.

Either fighting for the takeover or advocating a transitional period were LexisNexis and BIS. Both also retained lobbyists.