Denver Bar Association
October 2006
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Vote No 40
What Amendment 40 means to Coloradans

by Paul Chan
DBA President


In May, Chris Little wrote about the likelihood that an initiative to limit the terms of Colorado’s judges would be on the ballot in November. That likelihood is now a reality, as citizens will vote on Amendment 40 this November.

We now know much more about this drastic measure than we did in May. We know that Amendment 40 reaches beyond the judges on Colorado’s highest courts and, if passed, will have real consequences for citizens, communities and businesses.

Here’s a little background to get you up to speed:

On Aug. 2, 2006, former State Senator John Andrews submitted the necessary signatures to Colorado’s Secretary of State to place Amendment 40 on the 2006 ballot.

Amendment 40 would cut short the time that Colorado Supreme Court justices and Court of Appeals judges can serve. It is a retroactive constitutional amendment that will apply to judges presently serving Colorado. Five of seven Supreme Court justices and seven of 19 Court of Appeals judges will be forced out after the next general election and all at the same time — regardless of quality of service or voter preference.

As a state senator, Andrews failed to pass similar measures in the legislature in 1999 and 2004. Despite being president of the Republican-controlled Senate, he failed to gain the support of his own colleagues to move the measures forward.

Through his current "Limit the Judges" campaign, Andrews states: "Colorado’s courts are out of control. Judges too often presume to create law, instead of upholding it. Now Colorado voters have an opportunity to rein in activist judges and take back our courts."

We don’t know much about where the money to support Limit the Judges is coming from. Yet, according to The Denver Post: "all of the donations (supporting Amendment 40) have come from a nonprofit group, Colorado At Its Best, based out of the Golden home of Dennis Polhill, a retired engineer and leader of the movement that brought legislative term limits to Colorado. Polhill says it isn’t his money. He says most of the $203,000 that ended up with Limit the Judges came from Chicago-based Americans for Limited Government, which supports free enterprise and choice in education. Neither Polhill nor the president of Americans for Limited Government would say precisely how much the group donated."

The Colorado Bar Association took the lead early to organize a coalition to fight what is now Amendment 40. Other local bar associations, including the Denver Bar Association (which approved $100,000 on Sept. 14 to donate to the campaign), have gotten on board, as well as community and business groups like the Denver Chamber of Commerce and the Colorado Association of Family and Children’s Agencies. It is clear that Amendment 40 will negatively impact Coloradans across the board, and it is heartening to see the broad-based, bipartisan coalition that is coming together to fight this.

For Colorado voters, the serious consequences of voting "yes" on this measure include:

  • Forcing five of the seven Colorado Supreme Court justices and seven of the 19 Court of Appeals judges off the Bench at the same time.
  • Creating a backlog in our judicial system. The measure fails to provide a plan to keep our courts running efficiently during the time it takes to fill the drastic void created by sweeping out nearly half of judges serving on Colorado’s highest courts.
  • Pushing out good judges for no reason.
  • Bringing partisan politics into the courtroom by giving future
    governors of Colorado the power to appoint nearly half of the
    appellate judiciary every 10 years.

There is now an official campaign against this amendment. Vote No 40 is up and running and doing everything it can to make sure Coloradans "Vote No 40" on Nov. 7.

The coalition needs our help. Not only do we need to vote NO, we need to tell our friends, family and neighbors about why this is such a bad idea and why it affects them. We need to let as many people as possible know that Amendment 40 has drastic consequences for the citizens of this state — not just the judges on our highest courts.

Voters need to realize that if Amendment 40 passes, Colorado’s future governors will have the power to appoint nearly the entire Supreme Court all at once, stacking the deck with judges who share their partisan political views be they conservative or liberal, Republican or Democrat. This partisan "court-packing" will reoccur every 10 years. Colorado has an excellent system of merit selection and retention and we need to keep our courts as independent as possible.

Part of the reason we are gaining support from organizations outside the legal community is that these groups realize that Amendment 40 fails to include a plan to keep our courts operating efficiently after nearly half the judges from Colorado’s highest courts are swept out. The backlog created by this bad idea will result in delays and inefficiencies well beyond the highest courts and will be felt by counties addressing issues like water rights, cities tackling issues such as eminent domain, and Coloradans facing issues of livelihood, safety, security and beyond.

Amendment 40 also is indiscriminate. It will wipe out good judges without any reason. Coloradans are well-served by our higher courts. Our judges are experienced and well-respected men and women who have spent years gaining the knowledge necessary to do their jobs well. This measure forces some of Colorado’s best, most knowledgeable and independent judges off the Bench.

Colorado has a system with checks and balances, accountability measures, mandatory retirement, discipline and retention votes by the people. Our courts have been rated in the top 10 for impartiality and competence by the U.S. Chamber of Commerce and Institute for Legal Reform. Colorado’s judges are already accountable to the people of this state. We do not need a drastic measure like Amendment 40 that will wipe out our highest courts.

Finally, approval by voters on Nov. 7 means Colorado will be the first state in the nation to enact judicial term limits. It is imperative that our judicial system remain fair and impartial, and that it be protected from partisan politics.

As lawyers, it is our duty to fight Amendment 40. As citizens, we can educate those we know — in our civic clubs, churches and synagogues, schools and social groups. Please talk to everyone you know and tell them to "Vote No 40."

For information on how to get involved with the Vote No 40 campaign, visit Colorado is counting on us.

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