Letter: Was there a conflict in County Court judge selection?
March 3, 2015
To the Editor:
This letter is in response partly to the article written more than a month ago about the newly appointed county judge. It is also a look back at the events and procedures that led us to this appointment.
As a voter, I was totally unaware of the legal process of electing and evaluating judges in Colorado. At one time, all judges in the United States were appointed by chief executives or the legislature. In the nineteenth century, the power was given back to the people in most states and judges were elected in the same way as other public leaders. A judge's role is far different than a legislator's role. Their job is to interpret the law without personal bias or political influence. The role of the legislator is to write solutions in the form of bills and amendments in direct response to evolving culture and growing needs of the people. Every state has struggled to find a system that could accommodate the need to provide the best judges possible that were free of political influence and still give the people the right to have a voice in the process.
In 1966, the people of Colorado passed a constitutional amendment which provides that state judges be appointed rather than elected on the political ticket. The merit selection system or the Missouri Plan, so named after the state that first formulated a plan to select judges based on their merit and not political agenda. A nominating committee is appointed by the governor and legislators. Their job is to investigate, interview, and evaluate applicants for judgeship. The committee then submits 2 or 3 nominees to the governor for appointment. This system has increased in favoritism and is currently being used in some form or another in 35 states. From its humble beginnings, the merit system has evolved over time from pure trial and error. In Kansas, the system was put in place to be taken out, to being elected back in. It would take months to research the colorful history of the merit system in every state but there are articles on the internet that explains judicial selection in the United States. One Article that proved to be very helpful to me was provided by the American Bar Association and titled "Road Maps, Judicial Selection: The Process of Choosing Judges." It enlightens us to history as well as the pros and cons of all the systems now in use to select judges. Under opposition to the merit selection the article states the following, "Merit selection opponents further argue that politics is not eliminated from this system, just transferred from popular politics to behind-the-scenes political control."
A component of the merit system is retention elections where the public is given the task of voting on retaining a judge on the bench. The general public had little contact with judges and it was believed voters needed more information. In 1988, the Colorado general assembly created judicial performance commissions throughout the state to provide voters with information. The general assembly at this time wrote the statutes that would govern and set guidelines for the Judicial Performance Commissions. The statute is titled COMMISSION ON JUDICIAL PERFORMANCE. Colorado is 1 of 17 states that currently have this system in place. It would be impossible to write governing statutes that cover any situation that may arise. I believe that in section 13- 5.5-106.4., 'Recusal; it gives the guidelines to cover conflicts of interest. It states, "A member of the state commission or district commission shall disclose to the commission any professional or personal relationship with a justice or judge that may affect an unbiased evaluation of the justice or judge…" We will never know if Judge Cantanzarite discussed his intentions with the commission to seek the judgeship if it became available. What we do know is he did not recuse himself from the vote or the proceedings, because the final vote was 6-4, meaning all 10 members voted.
There is time and a process between a judicial review and seating a new judge. The most important being a retention election. The voting public relies heavily on the blue book where the judicial performance committee makes its recommendations available. The local media is the other source that voters rely on to get information about all candidates on the ballet. It has been my experience that we get way more information than we want about most of the candidates but little or none on the judges with the exception of this year. A judge is prohibited from responding or addressing accusations until an organized campaign is waged against him. A well timed and low profile campaign against a judge either by personal or special interest groups can be very effective in swaying public opinion. The only available appeal and response that a judge is guaranteed is the 100 words at the end of their judicial performance review in the blue book and a second meeting with the performance review board.
This year, six judges in Colorado have not been recommended for retention or have resigned from bench after a state commission began evaluating them. It would appear that judges have very little avenue to appeal the recommendations of the performance committee.
Our democratic society is based on a system of checks and balances that give no one governing body too much power. I believe there should be an appeals process for judges as well as some kind of oversight on the judicial performance committees. At the very least independent interviews should be made available to all judges to evaluate the commission that has reviewed them.
The next step in judicial appointment is the nominating of an applicant to the governor. Judge Catanzarite states he had nothing to do with the nomination process, which is totally correct. He did have to fill out an application stating his desire to be considered for the judicial seat in district 14. The nominating commission does not pluck unsuspecting people from the general population to be considered for judgeships.
If you feel we are powerless to change the way the government is run or political process is beyond our grasp, please take note that in 1940 a small group of concerned citizens (not legislators) from Missouri decided that politics had no place in judicial selection and changed history of our government's judicial branch forever.
I feel the need to be completely upfront with all that have labored through this letter. I am not unbiased on this issue. Ben McClelland is my brother, and as a sibling, I have seen him at his best and at his worst. This past year qualifies as the latter, and he is still an honest and upstanding man.