Ballot measures propose limits on judicial authority

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DENVER -- Western conservatives are gunning for the judiciary this election year with a half-dozen ballot measures that would rope in the authority of what they describe as activist judges.

Case in point is Colorado, where former state Senate leader John Andrews tried for years to solve the problem of activist judges who he said routinely legislated from the bench, often at the expense of conservatives.

His efforts in the legislature fell short, but Mr. Andrews isn't finished. He is the prime mover behind Amendment 40, a proposed constitutional amendment that would limit state appellate judges to 10-year terms, making Colorado the first state to limit the office of top-tier judges.

"We see a pattern of ideological and political decisions from the bench, and it points to a consistent tendency of appellate judges in Colorado to rewrite the law," said Mr. Andrews, now a fellow with the Claremont Institute, after a press conference yesterday at the state Capitol.

Amendment 40 faces overwhelming opposition of the state's legal and political establishment. It is opposed by virtually every top lawmaker in the state, including Republican Gov. Bill Owens, Republican Attorney General John Suthers, and former Democratic Govs. Richard Lamm and Roy Romer. The state's leading newspapers have also editorialized against the proposal.

They argue that Amendment 40 would force out good judges, create judicial backlogs and empower governors to stack the courts with partisan picks. The measure would result in a one-time retroactive removal of five Supreme Court judges and seven appellate court judges in 2009, which critics say would deprive the courts of decades of experience.

"This is a misguided measure that would be devastating to Colorado courts," Mr. Suthers said. "Because it is retroactive, a majority of Colorado's justices and judges will be kicked off the bench. This will be bad for Colorado citizens and the judiciary."

Mr. Andrews insists the measure is not an extreme solution, noting that most justices leave the state Supreme Court after less than 10 years anyway.

"This is more of a safeguard against those judges who say they can stay around forever, rather than a radical restructuring of the judiciary," Mr. Andrews said. "At the same time, it's partly symbolic. It sends a message that people are fed up with lawmaking from the bench. Such a rebuke would be felt in Colorado but also other states."

A truly radical solution would be Amendment E, the South Dakota proposal that would eliminate judicial immunity and allow citizens to sue judges. Known as "Jail 4 Judges," the measure would clear the path for lawsuits for offenses that include "blocking of a lawful conclusion of a case."

In Montana, voters will decide whether to approve CI-98, a measure that would allow residents to recall justices or judges for "any reason" and says removal from office is "a political question answered solely by ... the recall election." Judges now may be recalled only for reasons such as mental incompetence and official misconduct.

An Oregon amendment would require appellate judges to be elected from newly created geographic districts in an effort to give the state's more conservative rural areas greater representation on the state's liberal-leaning courts.

In Colorado, a local television poll conducted last month found Amendment 40 leading 55 percent to 40 percent, despite the efforts of the better-financed opposition campaign. Mr. Andrews points to a series of court rulings, most recently the state Supreme Court's decision to disqualify a ballot measure that would have denied non-emergency state services to illegal aliens.

Even though he expects to be outspent by at least 3-to-1 in the campaign's final weeks, Mr. Andrews says he is convinced most voters will respond positively to the idea of reining in the judiciary.

"The story with term limits in Colorado has been that the establishment is always against them and the people always support them," he said.