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High Court Ruling Proves Need to Choose Judges by Merit - CJI Leader Lauds Colorado System

The January 21st U.S. Supreme Court ruling that opened the floodgates for corporate and labor union contributions to political campaigns only underscores the wisdom - and growing necessity - for the kind of judicial merit selection systems in place in Colorado said Bob Miller, chair of the Colorado Judicial Institute. 


Miller, former U. S. Attorney for Colorado, pointed to another high court ruling – last  June’s Caperton  decision – as evidence that runaway campaign spending in states that still elect their judges in contested elections can undermine public confidence in the courts.


That case originated in West Virginia, one of 39 states that elects at least some of its judges in partisan elections. Coal executive Don Blankenship, CEO of Massey Energy, spent $3 million to help elect Brent Benjamin to the West Virginia Supreme Court of Appeals – while the appeal of a $50 million punitive damages award his company lost was on its way to that very court. Benjamin was elected to the court and ultimately cast the decisive vote in a pair of 3-to-2 decisions throwing out the $50 million jury verdict against Massey Energy. Best-selling author John Grisham has said the West Virginia case inspired his 2008 legal thriller, The Appeal.


The Colorado Judicial Institute is a nonpartisan citizens group dedicated to preserving fair and impartial courts and fostering excellence in the judiciary. As such, Miller noted, CJI takes no position on the overall merits of Thursday’s Supreme Court ruling in the case of Citizens United v. Federal Election Commission that allows businesses and presumably other organizations such as labor unions to spend their funds to support or oppose candidates for public offices.


“Whatever the impact this ruling has on partisan elections in Colorado, it should have little if any effect on our court system,” Miller, a prominent Republican and former Weld County District Attorney, said. “That’s because since 1966, Coloradans have chosen our judges through a merit selection system. Our record has been so successful that Colorado’s time-tested Merit Selection, Performance Evaluation and Retention Election system has been hailed as the ‘gold standard’ of state judicial election and accountability by experts throughout the country.”


In Colorado, judges are appointed on a merit basis after a rigorous screening process. They serve at least two years on the bench before going before voters in non-partisan elections to see if they will be retained in their seats.


Justice at Stake, a national group that monitors spending on judicial elections, reports more than $200 million has been spend on elections for state supreme courts in the last ten years. The latest U.S. Supreme Court ruling will make it easier than ever for insurance companies, large law firms and other special interests to pour millions of dollars into elections in hopes of electing lawyers sympathetic to their views to the very courts that will decide cases affecting those same businesses. This raises anew the specter of what former U.S. Supreme Court Justice Sandra Day O’Connor has warned can degenerate into “justice for sale,” Miller said.


“We can be proud that our merit selection system in Colorado has produced, on the whole, a system of courts that has enjoyed a national reputation for fairness, impartiality and excellence for more than four decades. The latest U.S. Supreme Court ruling underscores the compelling need for other states to follow Colorado’s lead and protect their own courts from the potentially corrupting effect of big money in judicial elections,” Miller said.

Besides fighting for fair and impartial courts, The Colorado Judicial Institute also works to assure excellence and accountability in our judicial system. CJI gives annual “Judicial Excellence” awards to honor outstanding judges in Colorado. It has raised $195,000 to help provide advanced education and training for Colorado judges and judicial department personnel. CJI also has a working partnership with the National Judicial College, the nation’s premier judicial education program.


Read the ruling here.


For additional commentary on this ruling and potential impact on judicial selection in the states, visit Justice at StakeAmerican Judicature SocietyBrennan Center, or the League of Women Voters websites.


Caperton v. Massey Case:  Special Interest Campaign Spending Erodes Public Confidence in Courts.

Washington, D.C. - The US Supreme Court ruled on Monday June 8, 2009 that the ever growing spending in judicial elections by special interest and partisan groups can undermine public confidence and do give a perception of impropriety.

The Court recognized that the circumstances of this particular case are extra-ordinary both in the amount of money involved and the direct influence the contributions had upon the campaign.  In 2004, a West Virginia coal executive working for Massey Energy Company contributed $3 million to the election campaign of a state Supreme Court candidate while appealing, to the West Virginia Supreme Court,  a $50 million jury award against the company.  Following the candidate's election to the court, that justice rejected numerous requests to recuse himself from the case, and was the deciding vote to overturn the jury decision.

In the 5-4 vote, the Court ruled that the Justice should have recused himself, and his refusal to do so violated Caperton's constitutional right to a fair trial.  The opinion can be downloaded from the far right column on this page.  The majority opinion was written by Justice Kennedy who was joined by Justices Breyer, Ginsburg, Souter and Stevens.  Chief Justice Roberts, Alito, Scalia and Thomas dissented.

This ruling will not have significant impact in Colorado as it will in other states that rely upon judicial elections as their selection method.  However, the ruling supports what the proponents of judicial merit selection systems have long believed and studies have shown: campaign fund-raising impacts public confidence in the judicial system and places judges in difficult situations regarding the expectation of recusal and appearance of bias.

The CJI Public Policy Committee is active in a number of state and national public policy arenas in a continuing effort to accomplish the goals of our mission.  CJI monitors law making bodies as well as organizations that make proposals that will impact judicial excellence in Colorado.

  • CJI was instrumental in establishing the coalition that become the VOTE NO 40 campaign in 2006.  The campaign was successful in defeating a judicial term limits measure that would have had long-term negative consequences for the administration of justice in Colorado.
  • CJI successfully supported legislation that added 24 new District Court judges throughout the state and supported the measure to fund a new justice center.
  • The Chief Justice of the Colorado Supreme Court selected CJI to represent Colorado in a national effort to improve public trust and confidence in the judiciary.
  • CJI successfully supported the Colorado Legislature's appropriation of major funding for the Colorado Commission on Judicial Performance.  CJI participated in the 2007 committee that drafted new judicial performance evaluation measures that were late approved by the legislature and Governor Ritter.
  • As a community organization of volunteers, establishing partnerships and coalitions with members of the legislature, judicial department, bar associations and other community organizations is necessary to improve and protect the systems the Citizens of Colorado have had the wisdom to install in support of judicial excellence.

Some the issues that CJI is currently monitoring include changes to standard practices in alternative dispute resolution and mediation proceedings, the impact of funding shortages upon the judicial department, the work of the sentencing commission, and modified judicial term limits proposals.

If you have questions regarding CJI public policy efforts, please send us an email  or call 303-766-7501.

CJI becomes Justice at Stake partner

Washington, D.C. - The CJI board of directors voted to become a partner of the Justice at Stake Campaign in Washington, D.C.  The non-partisan Justice at Stake Campaign is working to keep our courts fair and impartial.  Justice at Stake Campaign partners educate the public and work for reforms to keep politics and special interests out of the courtroom—so judges can do their job protecting our Constitution, our rights and the rule of law.  The Campaign provides strategic coordination and brings unique organizational, communications and opinion research resources to the work of its partners and allies at the national, state and local levels.

CJI is very proud to be working with Justice at Stake and in conjunction with organizations such as the League of Women Voters Judicial Independence Project, The Constitution Project, the National Center for State Courts and numerous other active and dedicated organizations.

Visit the Justice at Stake website here.

ABA President's Message Illustrates Need for Non-Partisan Selection Methods

No other nation in the world elects judges in the manner that over 30 states still do.  Contested elections present serious concern in that they erode public confidence in an impartial judiciary.  In light of recent Supreme Court decisions, ABA President Carolyn Lamm discusses the importance of ensuring judicial independence in the United States.  Read the entire article here.

ABA President's Message Illustrates Need for Non-Partisan Selection Methods

No other nation in the world elects judges in the manner that over 30 states still do.  Contested elections present serious concern in that they erode public confidence in an impartial judiciary.  In light of recent Supreme Court decisions, ABA President Carolyn Lamm discusses the importance of ensuring judicial independence in the United States.  Read the entire article here.

Want to know how Colorado selects and evaluates judges?
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US Supreme Court Rules in "Justice for Sale" Case