Romer party plus one: managing public law in Colorado, 2000-2004.

• Author: Feldman, Adam D.

1. INTRODUCTION

   Roy Romer served a twelve-year stay as Colorado's Governor from 1987 to 1999 (1) during which he hand crafted the course of judicial affairs by personally selecting justices for the State's highest court. For better or worse, the former Governor capsulated his legacy in the appointments of six of the seven justices currently sitting on the Colorado Supreme Court--or, as it has appropriately been called, the "Romer Court." (2) While selection bias appeared minimal, skeptics questioned the Governor for appointing five fellow party members to the Supreme Court. (3) In the present, arguments remain as to whether this court is a solid, "ideologically moderate" panel, or judiciary controlled by liberal, activist judges. (4)

   In the last decade, the Colorado judiciary has received a great deal of public attention from beyond Colorado's borders--in part because of three highly publicized cases, two of which had political implications. In 1994, the Colorado Supreme Court decided Evans v. Romer, confronting some of America's most endeared constitutional freedoms, including the ability to participate in political processes. (5) In 2004, Kobe Bryant's legal bonanza took the State of Colorado and the nation by storm. With millions of onlookers, Colorado courts were under a microscope. In the end, the case was abruptly dismissed and the only remnants were an opinion by the Colorado Supreme Court (6) regarding media access to court documents and the ascendance of Judge Terry Ruckriegle to public figure status in a manner reminiscent of the O.J. Simpson trial. In 2003, the Colorado Supreme Court heard People ex rel. Salazar v. Davidson, which rekindled intrastate political tensions regarding legislative redistricting efforts. (7) Opponents attacked the court for what they viewed as a partisan outcome, (8) and the net result was continued strife and a Republican-led march to the United States Supreme Court on the public's tab. (9)

   Albeit for different reasons, each of these occurrences impacted Colorado natives and foreign onlookers by making the opaquely judicial relevant to citizens' everyday lives. (10) But it is essential to realize that judges confront these public issues daily, not merely when national media outlets adopt a case as breaking news. For this reason, it is speculative to classify judges' or the court's ideological balance based on political affiliations or a few isolated decisions.

   When a court stands divided, ideological differences among justices tend to surface more so than in unanimous writings. (11) Thus, the optimal method for assessing the state of judicial independence within the Colorado Supreme Court is to examine separate opinions (12) issued in split-decision cases over a given period of time. By integrating voting records and trends, a judge's views can be ascertained amidst ambiguities in the author's writings. (13) Separate opinions are most probative in criminal cases and civil cases addressing "public law" issues because they reveal justices' voting propensities in certain issues--i.e., such as favoring individuals who face state actors in civil liberties cases, or favoring the prosecution or defense in criminal cases. (14) A natural outgrowth then becomes the division of a court's justices into a "conservative" or "liberal" (15) category to isolate tendencies and trends central to the judicial process, but often overlooked.

   The Colorado Supreme Court is currently in an interesting evolutionary stage. While studies of this nature often analyze courts in transition phases, the composition of Colorado's high court has not changed since 2000, and thus a unique opportunity exists to examine the dynamics of a panel of judges with extensive experience as a cohesive unit. As this study will demonstrate, however, collective experience does not necessarily foster unanimity in decision making, as evidenced by the wealth of separate opinions and adjoining votes during the years at issue. (16) Additionally, given both its status as a death penalty state (17) and the visible diversity among its justices, (18) Colorado is an excellent candidate for analysis.

   The primary purpose of this study is to provide a comprehensive analysis of the Colorado Supreme Court's judicial performance from 2000 to 2004. (19) This includes, among other things, the role of liberal and conservative justices, internal voting alliances, and factors contributing to the frequent publication of divided decisions. (20) A secondary goal is to ascertain whether certain inherent factors expressly or implicitly influence judges' decision making processes. Once these considerations are combined with empirical voting trends, it should be clear whether, and to what extent, Colorado Supreme Court Justices express legal opinions independent of innate and external influences.

   In the sections to follow, each of the above stated goals will be thoroughly discussed. Section II provides a brief overview of Colorado's judiciary, including an introduction to the seven justices of the Colorado Supreme Court. Section III sets forth the methodology adopted for attainment of the stated goals, including an explanation of the particularized meanings of "ideology" and related terms referred to herein. In Section IV, the study reveals macro level voting trends in divided cases from 2000 to 2004. Sections V (criminal discussion) and VI (civil discussion) will narrow the analysis to an individual level, discussing each justice's voting trends in the context of the collective court. (21) Lastly, Section VII will conclude all findings and recommend the need for any further research in the future.

2. OVERVIEW OF THE COLORADO JUDICIARY

   1. The Colorado Judiciary

      Colorado is home to more than four and one-half million people. (22) Its judicial affairs are uniquely distributed among the State's courts of limited jurisdiction, (23) general jurisdiction, (24) intermediate appellate, (25) and the court of last resort. (26)

      Colorado has developed and implemented a unique system of judicial appointments and elections. Formerly a judiciary left to partisan elections, Colorado's current system relies on judicial nominating commissions to assess and then nominate two or three candidates for each judicial opening. (27) The commissions are comprised of some lawyers--but mainly non-lawyers--and one political party cannot make up more than one-half of the members. (28) When nominations are made, it is the Governor's responsibility to choose one of the candidates and consummate the appointment. (29) Each appointee must serve a provisional two- or three-year term, after which the judge is put on "a general 'yes/no' vote" for retention for a term ranging from four years (county court judges) to ten years (Supreme Court justices). (30) A unique feature of this system is Colorado's use of "a statewide system of judicial performance evaluation" designed "to assist voters in making decisions about whether to retain a particular judge." (31)

      Recent estimates suggest that for every 100,000 residents, Colorado trial courts receive 3,754 criminal and 8,118 civil filings. (32) The Supreme Court's filings have fluctuated only slightly in recent years, from 1,367 cases in FY 2000-01, to 1,368 cases in FY 2001-02, and 1,401 cases in FY 2002-03. (33) Of these, only 128 cases in FY 2000-01, 121 cases in FY 2001-02, and 85 cases in FY 2002-03 were disposed of by written opinion. (34) Amidst what appears to be a low volume of written decisions, it is remarkable that the Colorado Supreme Court published more than one hundred opinions from 2000 to 2004 containing a dissenting opinion, concurring opinion, or an opinion concurring in part and dissenting in part. (35)

   2. The Colorado Supreme Court

      Colorado's distinct judicial structure defines each court's role in administering law and order. (36) The Supreme Court is a seven-member panel which constitutes Colorado's court of last resort. (37) Colorado's governor appoints Supreme Court justices to two-year terms, which can be extended in ten-year increments through general elections. (38) The chief justice is considered the "executive head" of the Colorado judiciary and is "elected by peer vote for a nonspecific term." (39)

      The Colorado Supreme Court has broad jurisdiction. (40) The majority of the court's caseload involves reviewing the Colorado Court of Appeals' decisions. (41) The court has

      direct appellate jurisdiction over cases in which a statute has been held to be unconstitutional, cases involving decisions of the Public Utilities Commission, writs of habeas corpus, cases involving adjudication of water rights, summary proceedings initiated under the Election Code, and prosecutorial appeals concerning search and seizure questions in pending criminal proceedings. (42) In addition, the Supreme Court is charged with issuing advisory opinions when certified questions are presented by the state's Governor, Senate, or House of Representatives. (43) The court also serves as the sole promulgator of "rules governing practice and procedure in civil and criminal actions." (44) The Supreme Court is required to sit en banc for any case concerning the United States or Colorado Constitution. (45)

   3. Justices of the Colorado Supreme Court

      Colorado's high court is comprised of seven justices with diverse backgrounds and areas of expertise. The modern "Romer Court" includes a former assistant attorney general (Chief Justice Mullarkey (46)), three former district court judges (Justice Kourlis, (47) Justice Rice, (48) and Justice Martinez (49)), a renowned water attorney (Justice Hobbs (50)), an accomplished defense attorney (Justice Bender (51)), and a well-respected prosecutor (Justice Coats (52)). The distinct views of each justice and the court's collaborative undertakings in en banc decisions will be discussed at length in forthcoming sections.

3. METHODOLOGY

   This study focuses on divided, public law decisions published by the...