Ten days ago, Colorado State Representative Claire Levy voted against her constituent's interest to allow the Supreme Court to appoint members to its own retention (performance) commission.
The bill was HB 1227, "Judicial Performance Commissions." It was a simple, short bill with two major provisions. It would have required that performance commission results appear on the ballot, which seems reasonable given that the blue book is so long that few citizens read it from cover to cover. It also would have stopped the practice of permitting the Supreme Court to name 30% of the members of the statewide performance commission which makes retention recommendations on Supreme Court justices.
Nine witnesses appeared to testify, one against, and eight in favor. The eight included four private citizens who have been damaged by various aspects of the legal system.
One of those four was very concerned that the State Supreme Court had created a legal ethics system that was designed to protect lawyers and judges from citizen complaints. He claimed to have used the judicial performance system to try to get rid of a judge who wouldn't discipline an attorney. The public was never told that
He said he couldn't prove it, but the commission might have made a deal with with the judge that he would report the attorney in exchange for an unblemished recommendation. The reason he thought that might have occurred was that the attorney had recently been suspended from the practice of law by Attorney Regulation without explanation.
The witness said that the Supreme Court had created a legal ethics system where lawyers protect judges, judges protect lawyers, and no one protects the public. His plan was to use the state judicial performance commission as a mechanism to force the State Supreme Court to reform the legal ethics system.
All he asked of the committee was that he be able to present his case for non retention of Supreme Court justices before a commission that had no Supreme Court appointees on it.
Another witnesses was a para legal who had been detailed to assist a commission. She testified that she had watched the four attorneys on the commission dominate the proceedings to successfully get retention recommendations for bad judges. She wanted to see fewer lawyers on the commission.
Former State Senator John Andrews testified for the bill, as did two lawyers who had experience as members of commissions. One lawyer admitted something to the effect that "lawyers work for judges, judges are our employers." That prompted a discussion about the possibility that lawyers could be intimidated by judges.
A representative of the Colorado Bar Association, which was willing to spend $500,000 in 2006 to keep the Supreme Court from being accountable to the voters every four years, was opposed to even this small step away from an obvious conflict of interest. The Colorado Bar Association has a sweetheart deal with the Supreme Court. Its members don't have to buy errors and omissions insurance and over the past six years, the Supreme Court has only expended about $5/lawyer/year on a fund to reimburse citizens who are damaged by lawyer misconduct.
By testifying that the Bar Association and former Justice Rebecca Love Kourlis' Institute for the Advancement of the American Legal system would study the issue this summer, the Bar Association witness bought another two years of commission unaccountability. Because the judicial term limits amendment, Amendment 40, failed last year, the Bar Association bought itself another 12 years of unaccountability for those justices who are coming up for retention in 2008 and 2010. It is a good deal when you have a lawyer like Claire Levy ignoring the obvious public interest and voting her profession's interest.
When it came time to ask the witnesses at the hearing follow up questions, it became obvious that Representative Claire Levy was hostile to this simple good government bill. While all of the other Democrats on the committee were hostile but sat silently, she appeared to be trying to trip the witnesses for the bill up. In the end, she dismissed and downplayed the fact that nine people came to testify for the bill.
In an effort to give Levy a chance to respond to the issues her conduct and vote raised, the following questions were emailed to her at her official legislative address on February 22:
1. HB 1227 would have removed the potential conflict of interest that occurs when the Chief Justice names three commissioners to the commission that rates her, and her fellow justice's performance. You indicated that you have no objection to that. Do you believe such conflicts always lead to good government, and if not, why does it do so in this case?
2. There is a parallel situation going on in Washington with Congressional Democrats criticizing the last Congress for failing to provide oversight of the war. If you were in Congress, would you be as willing to give President Bush a blank oversight check as you are willing to give the Justices, and if not, why not?
3. The CBA Representative made extensive promises regarding reforms as a way of heading off this bill. Which of those promises do you expect the CBA to keep?
4. I note that you thought the bill contained an unconstitutional provision but never mentioned it to the sponsor until announcing your vote. Why not simply propose an amendment if that was an issue?
5. I googled you last night. You claim that you want to be a leader in the legislature. Is there any legal system reform you would support, and if so, what?
6. Finally, do you believe your constituients (other than the lawyers and judges) would believe your vote was a good government vote, and if so, why?
Representative Claire Levy did not answer any of these questions.
There is concern in the legal community about the possibility that potential jurors will be doing Internet searches on lawyers who are trying cases before them. It is expected to happen despite admonitions from judges to jurors not to do it. In the final analysis, it can't be prevented, and as long as a juror doesn't admit that he did it, either to the judge or to his fellow jurors, it can't be detected.
In effect, as the testimony made clear, Claire Levy's vote was a vote to allow the current fraudulent legal ethics system to remain in place by keeping the authors and administrators of that system (Supreme Court Justices) free of oversight by unbiased commissioners.
Future Claire Levy clients must wonder how a jury will react to her pleas of fair treatment for her client when she is so obviously unwilling to allow a fair hearing before an unbiased commission.
Representative Claire Levy is a Boulder attorney who apparently does business as Claire B. Levy, LLC.
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