NEWSWEEK: Until this year, you were a Colorado Supreme Court Justice, so perhaps you’re well placed to explain why there is so much anger at judges.
Rebecca Love Kourlis: My sense is it falls into two general categories. One of them is dissatisfaction with the court system itself, based on personal experience or the stories of neighbors and friends. People believe the system is inefficient, extraordinarily costly, unpredictable and slow. I think the other general cause is a pretty widespread lack of understanding about what courts are supposed to do. There was an American Bar Association poll taken last year in which most people agreed that courts routinely overruled the will of the majority. Courts are not supposed to be enforcing the will of the majority, except that they are charged with enforcing laws as written. They are also charged with safeguarding constitutional rights and those can be at odds with the views of the majority. But that’s the beauty of our system of government. The courts serve as a check and balance in our system, and many people don’t understand that.
There is actually a third reason. I think there is a foam along the top of the wave that I’d attribute to people who believe the courts are too activist. I do think that happens on occasion, but far less than the media would suggest to the average reader. When you look at the millions of cases around the country each year, the number that bubble up to the appellate system where the result could be political is really de minimis .
Let’s talk about the initiatives up for vote on Nov. 7. Amendment 40 would make Colorado the first state to impose term limits on appellate judges. What’s the proposal?
The proposal applies only to appellate judges, not trial judges, and it would apply shorter terms to appellate judges, and a cumulative term limit of 10 years on a particular court. It’s supported by a former state senator, John Andrews, who believes that Colorado’s appellate judges are activist and have made political decisions. It would get rid of five out of seven sitting supreme court justices and seven of 19 state court of appeals justices. My analysis is that if justices are making political decisions, this solution would aggravate that problem. And it would create a brain drain. An enormous amount of experience would be lost. It has the other consequence of requiring the next governor to appoint the majority of the members of the supreme court, and the same problem would recur every 10 years later. It kind of smacks of court-packing.
Andrews and the backers of other initiatives think their proposals make judges more responsive, don’t they?
We don’t want judges to be looking over their shoulders to gauge public opinion. I do not believe judges should be holding a finger to the wind to determine what the majority might want.
We want them to be impartial and committed to the rule of law, making the very best decisions they can. Our institute recently issued a report about judicial accountability and how to measure judicial performance in ways that make judges more responsive to the users of the courts without offending notions of judicial independence.
In South Dakota there’s a measure popularly called “JAIL 4 Judges,” also known as Amendment E. What’s that?
What it would do is eliminate judicial immunity. It would subject them to firing and to criminal and civil liability for decisions that people didn’t agree with. A judge could be taken before a 13-person grand jury, which would determine whether a decision were appropriate or not appropriate. And that grand jury could impose penalties on the judge. It would be pretty devastating. I suspect it would be very difficult to find people to serve on the South Dakota bench if this passed.
In Montana, Constitutional Initiative 98 would allow a broad recall of judges. Under what circumstances?
The way that the language reads, it would allow for recall by petition for “any reason.” Montana already has a provision that would allow for recall for “physical or mental lack of fitness, incompetence, violation of the oath of office, official misconduct or conviction of a felony.” I think opponents are concerned that if it were adopted, judges could be recalled over one unpopular decision. In fact, I think that is what it was intended to do.
Ironically, Montana judges have found that the signatures weren’t gathered according to the rules, so voters may not get a chance to approve this one.
My understanding is that it’s not on the ballot at the moment. The trial judge ruled on the procedural propriety of the signature collecting. It’s before the state Supreme Court now, so it’s possible it may be restored.
In Oregon, there’s a proposal to set up judicial districts for the judges in the appellate courts. What’s the purpose and what would the effects be?
The measure would provide geographical representation on the top courts. I think it’s about making judges more accountable to the people. Here the idea is regional accountability. It clearly takes the system away from a straight merit system and focuses it on people who live in a particular geographic part of the state and continue to reside there after they are appointed. I suspect they would maintain more rural roots and avoid an urban concentration.
We like geographic balance in the legislature. What’s wrong with adding that to the upper levels of the judiciary?
In theory I’m not terribly upset by the Oregon proposal. I think that what is troubling about it is that it appears to be politically motivated.
Are there other ballot measures that affect the judiciary?
In three other states there are ballot measures that would limit judicial authority. They aren’t targeted specifically at judges, but they fall under the general category of court-stripping. Proposition 90 in California would restrict government’s right to condemn private property and takes elements of those cases out of the hands of judges. Nevada has a similar measure. North Dakota would limit judicial discretion in custody disputes.
Why is this happening in Western states? Is the anger greater there, or it is just simpler to get measures on the ballots there?
I don’t think this is all about a sagebrush rebellion. I think it’s just a function of where the initiative process is easiest. I think the dissatisfaction with the courts is occurring across the country.
