Amendment 40 is sensible way to curb activist judges

Sen. Tom J. Wiens

Saturday, October 21, 2006

In the past few decades, judges have changed their traditional and intended role from interpreting the law based on the U.S. and Colorado Constitutions to making the law from the bench like legislators or kings. Given the judicial activism gone rampant around the country - and here in Colorado over the past few years and most egregiously this past summer - some folks finally said "enough is enough," and Amendment 40 was born.

Amendment 40 is a simple, common sense solution that provides term limits of 10 years for Colorado Supreme Court and appeals court judges. That is two years longer, by the way, than for the executive and legislative branches of our government. If it passes, and a sitting judge has been on the bench for eight years or more, he will remain there for another two years before leaving his position.

Some opponents of this measure say that Colorado should "retain judicial experience" and "protect Colorado courts." The U.S. Constitution and our system of limited government were designed to protect and serve the citizens, not to protect the courts or any other branch of government. The founders of our country saw the abuses of power the British government inflicted on American colonists before the Revolutionary War. That's why checks and balances were put into our Constitution, to (hopefully) prevent these abuses from being repeated.

In the private sector, if someone is doing a job poorly, incompetently or improperly, they almost always get fired. With lifetime appointments to the bench, judges aren't accountable for their job performance like you and me. Today, more than a few Colorado judges have overstepped the bounds of their job description. Instead of interpreting the law according to the U.S. and Colorado Constitutions, judges are stepping into the role of legislators and blatantly making law from the bench.

Our state constitution has a retention process in place for judges, where voters can periodically decide whether to retain a judge in office. This process simply doesn't work as intended, as the voters don't get enough information to make an informed decision. Almost every time a judge is up for retention, voters maintain the status quo by voting "Yes" or not voting at all. Because of this, judges aren't held to the same standard of accountability as our governor or state legislators.

This past summer, the Colorado Supreme Court was absurdly inconsistent in its application of the law. Based on a political whim, the justices didn't allow a referendum concerning illegal immigration onto the ballot, even though they had allowed it before with almost the identical wording in the ballot initiative. I don't expect judges, or any other human, to be perfect. However, I do expect them to interpret laws and statutes consistently and fairly - that is their job.

I will also concede there is a benefit of having judicial experience on the bench and if Amendment 40 passes we will continue to have judges with as much as 10 years experience serving in our system. However, if an employee has been doing a job poorly for a number of years, does it make any sense to keep him on the job simply because he's been around for years? Of course not. If a judge isn't doing his job properly, it doesn't make sense to keep him there - no matter how much experience he has.

Colorado voters have approved term limits for our governor and legislators - the executive and legislative branches. They believed this would bring more accountability to their government. The judicial branch isn't subject to the accountability that comes with term limits. It's time to bring equal accountability to all three branches of our government. All three branches were created to be separate but equal. By applying term limits to judges, we will treat them equally once again.

I will readily concede that Amendment 40 is not a perfect solution for the problem of judicial activism. Since we don't elect our judges, our options are limited, and Amendment 40 does reinforce the system of checks and balances in the U.S. and Colorado Constitutions. It will send the strong message that in Colorado judges should be accountable to the people they serve.

Sen. Tom Wiens, R-Castle Rock, is the Senate Republican caucus chairman. He represents Senate District 4, which includes Lake, Douglas, Teller, El Paso and Park counties. He serves on the Senate Business, Labor & Technology Committee and the Senate Transportation Committee.