Denver Bar Association
January 2006
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There Goes the Judge

by Marshall Snider

We don’t have much fun practicing law here in Colorado. Just the same old stuff: you file your case, the court assigns a neutral judge through an impartial selection process, and off you go to trial. Ho hum. We brought this tedium upon ourselves decades ago when we took the judicial selection process out of partisan politics.

Now, in Texas they know how to pick a judge. Just look at the Tom DeLay case. The first judge assigned to the trial was disqualified by another judge because judge number one was a Democrat who had contributed money to Democratic candidates and causes (which, heaven forbid, may have opposed Mr. DeLay). Then, the presiding judge who was supposed to assign a replacement judge also was challenged because he was a Republican who similarly had the
misfortune to be involved in electoral politics and fundraising. The presiding judge voluntarily recused himself and sent the matter to a Texas Supreme Court Justice.

At this stage, the score was tied: Democrats one, Republicans one. You know what happened next; the Supreme Court Justice was challenged because he was involved in politics, as well, and had ties to DeLay.

In a temporary lapse into sanity, the Supreme Court Justice denied the request to recuse him, noting that someone had to assign a judge. He then selected Judge Pat Priest to hear the case. Judge Priest remains on the case as of this writing — perhaps due to the
clerical status associated with his name, but most likely because he only donated $450 to partisan political campaigns. Judge Priest noted his primary qualification to hear this case when he commented, "I’m cheap."

The Texas courts in the DeLay case established a remarkable new criterion for judicial impartiality: political purity. As one of the lawyers in the case noted, the first judge assigned was "completely fair and impartial, with a sterling reputation of honesty and integrity. However … such is unfortunately no longer the standard in our state for the judiciary."

Texas has thus shown us how to broaden the tired old concept of what constitutes an "impartial" judge. Why should we be stuck with outdated concepts such as whether a judge’s "impartiality reasonably could be questioned"? As Texas has demonstrated, there are more objective measures that can dictate a lack of partiality (membership in a political party, for example). Colorado — always a leader in legal reform — needs to get out front on this issue and establish additional objective criteria for judicial disqualification. A modest proposal would require a Colorado judge to be removed from a case under the following circumstances:

• The judge has lost more than 50 cents in a vending machine that refused to deliver coffee or refund the money paid. This judge will not be impartial in cases of corporate fraud.

• The judge has attended a Colorado Rockies baseball game; such a judge has an obvious partiality to
losers and underdogs.

• The judge knows someone who has a friend whose second cousin’s brother-in-law had his pocket picked on an RTD bus. This judge is biased against criminals.

• The judge in a commercial case has donated funds to a charity; in doing so, the judge has indicated a bias against
parties who work for what they have received.

• The judge in an environmental case has climbed more than one "fourteener," has been backpacking on three or more occasions, or has driven Trail Ridge Road to look at mountains and bighorn sheep. The judge is clearly a tree-hugging environmentalist biased against polluters.

This list just scratches the surface. The Colorado Supreme Court should immediately convene a blue ribbon committee to establish a complete
catalog of objectively described, conclusively established causes for disqualification of a judge on the grounds of bias. Texas shouldn’t be the only state that can challenge an otherwise impartial judge simply because the judge has engaged in activities common to the rest of the state’s citizens.

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