Voting on the Law: States have referenda on judicial recall, lawsuits, term limits

ABA Journal ^ | Molly McDonough

[Brilliant]

Advocates for more judicial accountability are supporting ballot initiatives in a handful of states that are designed to rein in judges.

Initiatives would subject judges to lawsuits or recall because of their decisions, impose term limits on judges, and require appellate judges to be elected from districts in which they would be required to live.

Longtime term-limits advocate John Andrews is behind the Colorado effort to restrict appellate and Supreme Court judges to 10-year terms. Andrews, former president of the Colorado Senate, began his push for term limits about 20 years ago, obtaining limits for lawmakers and the governor. But his efforts to bring the same limits to the judicial branch have failed so far.

If Amendment 40 passes, Colorado would become the first state to impose term limits on appellate judges, who are selected by a bipartisan panel and appointed by the governor.

Andrews unabashedly acknowledges the term limits effort is fueled by a number of unpopular decisions from the Colorado supreme and appellate courts, especially those involving immigration reform, property rights, gun rights and religious and educational freedoms.

"There is this pattern of liberal or radical rewriting of the law from the bench," he says. Andrews believes term limits will result in a "more restrained approach to judging."

"The principle underlying any term limit is that when rotation in office is mandated, there’s more protection against potential abuse of power by public officials," Andrews says, noting Colorado was one of the first states to impose term limits on its legislative branches. "Right now, there is one branch of government not covered against potential abuse of power. It makes sense to close that loophole."

While Andrews and proponents are optimistic that Amendment 40 will pass, the opposition, which is outspending the pro-term-limits campaign 2-to-1, is gaining ground. That’s in large part because of an effort by bar groups, lawyers and judges to educate the public about what they see as the pitfalls of term limits for judges.

"We’re able to get out the message that it’s such a bad idea to throw away 185 years of experience on the appellate court in one day," says Elizabeth A. Starrs, president of the Colorado Bar Association. If passed, the governor would be in a position to replace five of the seven current judges on the Colorado Supreme Court and seven of the 19 judges on the appellate court.

"Even though we have a merit selection system, if this passes, the governor will be able to appoint the supermajority of the Supreme Court and the majority of the appellate court every 10 years," Starrs says. "It inches us back to getting partisan politics into the system."

It no doubt helps the opposition’s cause that Republican Gov. Bill Owens, three of his predecessors and Republican Attorney General John Suthers oppose term limits for judges.

Outside of Colorado, the judicial ballot initiative getting the most attention is in South Dakota, where voters will decide on Amendment E, aka "JAIL 4 Judges." The initiative would abolish judicial immunity and allow litigants to sue judges for a number of reasons, including intentionally violating due process rights and "deliberate disregard of material facts."

Amendment E would create special grand juries made up of civilians who would decide whether a case against a judge may go forward.

The initiative has sparked a heated battle between proponents, who view the measure as a way to make judges more accountable, and opponents, who say it will intimidate judges and threaten their independence. It is one that imposes, according to the No on E Web site, "a Frankensteinish new piece of government called the ‘Special Grand Jury’ that would effectively end due process and threaten your constitutional rights by giving jurors the power to ignore or reject the law."

Montana’s Constitutional Initiative No. 98, or CI-98, would allow residents to petition for the recall of judges "for any reason."

It’s not clear whether voters will have a chance to have their say on the issue because the balloting procedures are being litigated. Proponents of CI-98 argue that recall lets residents "prevent activist judges from subverting the laws they’re supposed to uphold." Opponents counter that recall is already available for judges who are found to be mentally unfit or incompetent or who violate their oath of office. They argue that CI-98 goes too far in that it seeks to "threaten or punish judges for doing their jobs."

In Oregon, Ballot Measure 40 would amend the state constitution to require that appellate judges, including supreme court judges, be elected by district. The measure also requires judges to reside in their respective districts. Supporters of the measure contend that electing by district ensures that the courts are representative of the state, reducing the likelihood that "activist" judges, who they say are mainly from the urban areas, will be "usurping the will of the people and legislating from the bench." Opponents, including the Oregon State Bar, argue that judges should be elected based on legal expertise, not geography.

Hawaii also has a judicial initiative on the ballot: Amendment 3 asks whether to eliminate the mandatory retirement age for judges. Hawaiian judges are required to retire at age 70.

[Brilliant]

Sue 'em. And require the sitting judge to disqualify himself for conflict of interest.

[Uncle Miltie]

We'll repudiate Kelo here in North Dakota today.

Take that, Supremes.

[RoadTest]

Michigan's voting on a resolution to thwart Eminent Domain from taking people's property.