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Judicial Reform Measure on Oversight Survives Challenge, Still Seeks Signatures

Even as one of two key Colorado judicial reform proposals clear an important legal hurdle to reach the ballot, the man behind the initiatives says the process demonstrates why the measures are needed.

Last Thursday the Colorado Supreme Court upheld the ballot title for Initiative 94, “Duties of the Independent Ethics Commission,” overruling objections raised by Denver trial attorney Stacy Carpenter. The measure would change the state constitution, declaring that judges could not oversee their own system of professional discipline but giving the Independent Ethics Commission oversight instead.

Conflicting Roles

While proponent Chris Forsyth can proceed with collecting signatures to put his “Honest Judge Amendment” on the fall 2014 statewide ballot, he argues that his opponents’ tactics represent conflicted interests that highlight the need for formal constitutional change.

Heather Hanneman, the managing partner of Recht Kornfeld — the Denver-based law firm retained to argue that Initiative 94 should be disqualified — serves as one of 10 members of Colorado’s State Commission on Judicial Performance. The Commission approves evaluation procedures for state judges and formally recommends whether citizens should vote to retain those judges.

“She’s supposed to be the watchdog for all these people,” Forsyth said. “Here she’s trying to earn money to keep the Honest Judge Amendment from making the ballot, which if successful would keep the cover-up of judicial misconduct ongoing.”

According to Forsyth, Recht Kornfeld’s legal representation is being underwritten by the Colorado Bar Association (CBA). Carpenter serves on the CBA’s Board of Governors and is former president of the Denver Bar Association. Forsyth said he requested to meet with CBA early in the process to enlist their support. Instead of sitting down with him, the group went ahead with an effort to derail Initiative 94.

Neither Carpenter nor the CBA’s spokesperson responded to requests for comment.

Avoiding “Necessity”

Forsyth, himself a Denver attorney, is pleased with the outcome of the Colorado Supreme Court’s May 29 ruling. Still, he says the way the high court proceeded further underscores the need for judicial reform. The Court denied the opponents’ motion to disqualify rather than invoke the rule of necessity and make a decision on the merits.

According to U.S. Legal, “Rule of necessity is a common-law rule, under which a judge, even though s/he has an interest in the case, has a duty to hear and decide the case if it cannot otherwise be heard.”

Forsyth explains that the distinction may not mean much to the layperson. “Technically, however, it is an ethical violation because they determined a matter without admitting the appearance of impropriety,” he said.

Similarly, the pro-reform Clean Up the Courts website notes that over the last decade nearly 90 percent of Colorado’s judicial discipline cases have been dismissed without a formal hearing. Forsyth believes Initiative 94 would substantially fix the problem. He believe the CBA has not delivered on promises to try to upgrade the judicial discipline process.

Continued Waiting

In 2006 Colorado voters rejected Amendment 40, a statewide initiative that sought to limit judicial terms to 10 years, by a 57-43 margin. The Colorado Bar Association spearheaded bipartisan opposition to the measure. On the eve of the 2006 election, then-CBA president Elizabeth A. Starrs told members that public concerns about judicial ethics could be addressed by expanding accountability within the current process rather than by imposing 10-year term limits.

Two years later, also in the CBA’s official Colorado Lawyer publication, Starrs’ successor William Walters reported that his organization would “be working on improvements to the judicial discipline process to raise the level of public confidence in that component of judicial evaluation.” A request for evidence to demonstrate whether any such steps have been taken in the last five-plus years went unanswered.

Expanding Effort

As outlined previously at Watchdog Wire – Colorado, Forsyth is running a shoestring effort to place two judicial reform measures on the ballot: Initiative 94 and its companion proposal that would require a two-thirds vote, rather than a majority vote, to retain a judge’s service on the bench.

As the Colorado Supreme Court clears the language used in the Honest Judge Amendment, Forsyth has announced an enhancement to his grassroots effort. He seeks to expand his base of volunteers by offering a short-form option for citizens who want to circulate petitions but have limited time. Visitors to his website can download an easier-to-complete eight-signature form to circulate, as well as the standard 100-signature form.

“Judges affect everyone, so everyone should have a chance to help get these on the ballot,” Forsyth said. “Now they have that option.”

Each Clean the Courts initiative requires 86,105 valid signatures submitted to the Secretary of State’s office by August 4 in order to be brought before voters this year.

Ben DeGrow

Ben DeGrow is co-editor of Watchdog Wire - Colorado. Contact him at Colorado@WatchdogWire.com to learn how to get involved with citizen journalism in the Boulder State. Follow him on Twitter: @bendegrow

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