Rebecca Love Kourlis doesn’t engage in speculation about the motives behind Amendment 40, the judicial term-limits initiative that would force five of seven members of the state Supreme Court to resign at once.
Instead she is focused on its impact.
“It’s very, very dangerous,” she said.
In case anybody’s keeping score, the daughter of former Gov. John Love is a Republican. She’s also a former trial-court judge and former Colorado Supreme Court justice who has spent her entire career inside the judicial system.
She believes in it and wants the public to, also. But she’s hardly naive about it’s shortcomings. She understands the simmering frustration with the courts.
That’s why she resigned her seat on the Supreme Court last January and helped found the Institute for the Advancement of the American Legal System at the University of Denver.
On Monday, five weeks before Amendment 40 will appear on the statewide ballot, the institute released its first report.
“Shared Expectations: Judicial Accountability in Context” dares to suggest that there’s a better way to improve the judicial system than by throwing out good judges in an effort to root out bad ones.
The answer, the institute’s report said, is more energetic judicial performance evaluations, based on “politically neutral expectations” and “widely disseminated to the public.”
Of course, Amendment 40, the brainchild of former Republican state Senate President John Andrews, would only affect judges on the appeals court and the Supreme Court. They are appointed and are permitted to serve until they reach the mandatory retirement age of 72.
They are appointed and must face the voters for retention after two years and at regular intervals until they reach the mandatory retirement age of 72. As with lower-court judges, the recommendations of the commissions that conduct performance evaluations are key factors in whether appellate judges are retained by the voters.
But Kourlis said greater accountability for all judges would address the real problem with the courts, the one that has given those who attack appellate-court judges for political reasons so much traction with the public.
There’s a feeling, she said, that if you become enmeshed in the legal system, “who knows what will happen or how long it will take, but what you do know is that it will cost you a lot of money.”
The erosion of confidence begins with something as small as a delay in traffic court and grows with every new, exasperating encounter with the legal system.
It’s this wellspring of frustration that is being tapped into by politicians who offer “extreme solutions that don’t address the underlying problem,” Kourlis said.
In fact, she said, Amendment 40 would make the system worse. It would cause “an enormous brain drain” and give one governor the power to appoint a majority of the court immediately. Then, every 10 years, subsequent governors would remake the court again and again.
Rather than creating a more independent court system, it would politicize the judiciary, Kourlis said, and decimate the collective expertise of those charged with managing the sprawling state court system.
In contrast, the report states that judicial performance evaluations are “a powerful tool for changing the debate about what the public must expect from its judges.”
It’s not a radical idea.
In Colorado, judges have been subjected to formal performance evaluations since 1988, though not all evaluations are made public, Karen Salaz, spokeswoman for the State Court Administrator’s Office, said.
Judges who receive poor marks often choose not to run for re-election rather than have the reports released. The evaluations clearly are one factor in why about 18 percent of judges leave the bench rather than run for re-election at the end of their terms.
Both in the lower courts and the appellate courts, there is not a problem with judges overstaying their welcome, Kour lis said. “They already turn over regularly.”
The difference is now they do it for personal or professional reasons.
Not because of changes in the fickle political winds.
Diane Carman’s column appears Sunday, Tuesday and Thursday. She can be reached at 303-954-1489 or dcarman@denverpost.com.
This column has been corrected in this online archive. Originally, due to a reporting error, it misstated the process for retention of judges. In fact, judges on both the appeals court and the Supreme Court must face the voters for retention after two years and at regular intervals until they reach the mandatory retirement age of 72.
