Romanoff v. State Com'n Jud. Performance
| Decision Date | 09 January 2006 |
| Docket Number | No. 05SA330.,05SA330. |
| Citation | 126 P.3d 182 |
| Parties | Andrew ROMANOFF, in his official capacity as Speaker of the Colorado House of Representatives; and Joan Fitz-Gerald, in her official capacity as President of the Colorado Senate, Petitioners, v. STATE COMMISSION ON JUDICIAL PERFORMANCE, and Paul F. Miller; William Banta, Lance M. Sears, and Bradley A. Levin, in their official capacities as unseated appointees to the State Commission on Judicial Performance, Respondents. |
| Court | Colorado Supreme Court |
Isaacson Rosenbaum P.C., Mark G. Grueskin, Denver, for Petitioners.
Paul Farley, Denver, Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, for Respondent Judicial Performance Commission.
Paul F. Miller, Pro se, Grand Junction.
William Banta, Pro se, Englewood.
Lance M. Sears, Pro se, Colorado Springs.
Bradley A. Levin, Pro se, Denver.
The current Speaker of the Colorado House of Representatives, Andrew Romanoff, and the current President of the Colorado Senate, Joan Fitz-Gerald, petition us under C.A.R. 21, in the nature of the writ of quo warranto, to determine which of four appointees should properly be seated on the State Commission on Judicial Performance.1
There exists a controversy whereby four appointed commissioners seek to fill two of the ten seats of the statewide Commission. Two of the Respondents, Lance W. Sears and Bradley A. Levin, have been appointed by Romanoff and Fitz-Gerald; and two other respondents, Paul F. Miller and William Banta, have been appointed by Petitioners' predecessors in office, Lola Spradley, former Speaker of the House of Representatives, and John Andrews, former President of the Senate. Because the four appointed commissioners seek to fill two seats, the work of the Commission is at a standstill. The Commission has been unable to select a chairperson, or a co-chairperson, and it has not been able to begin its statutory work to evaluate and prepare narrative profiles and recommendations for five judges on the court of appeals eligible for retention in this election year. Upon petition of the Petitioners, we issued an order to show cause to the Commission, itself, and to each of the four potential office holders, as respondents, to determine who are the lawful office holders.
In this rare instance, we exercise our discretion to consider a writ in the nature of quo warranto under C.A.R. 21. We do so because of the public importance of the State Commission's statutory mission to evaluate judges for the benefit of the voters and the need to resolve the conflicting statutory claims made by the Petitioners and the Respondents, Miller and Banta. To resolve this controversy, we must construe C.R.S. 13-5.5-102(1)(a) and (1)(b), which set forth the mandatory statutory terms of office of the commissioners, as well as the powers of the Speaker of the House of Representatives, the President of the Senate, and, under specific circumstances, the Commission, itself, to appoint commissioners.
In discharging the rule, we hold that subsection (1)(a) of this statute creates a regimen of fixed, four-year terms for each commissioner. Each commissioner's term begins on December 1 of an election year and ends in the election year four years later on November 30. We hold that subsection (1)(b) of this statute directs that when a Commission vacancy occurs, if the appointing authority — here, either the Speaker of the House of Representatives or the President of the Senate — fails to appoint a new commissioner within forty-five days of this vacancy, then that appointing authority loses its power of appointment for the vacant seat and the appointment power devolves to the Commission, itself, to fill this vacancy.
Accordingly, we discharge the rule in the following particulars. We direct the Commission to recognize Respondent Miller's appointment as valid and binding to replace Respondent Sears as a commissioner on the State Judicial Performance Commission for a term expiring November 30, 2008. We direct the Commission to appoint a commissioner to serve out the remainder of the President of the Senate's appointment for the Commission seat sought by Respondents Levin and Banta. The Commission's appointee shall serve for a term which will expire on November 30, 2006.
The State Commission on Judicial Performance consists of ten members. The statute authorizes the Speaker of the House of Representatives and the President of the Senate to appoint two commissioners each, one attorney and one non-attorney, to the State Commission on Judicial Performance. § 13-5.5-102(1)(a), C.R.S. (2005). The controversy before us involves two separate lines of appointing authority: (1) the Speaker's appointments of Respondents Sears and Miller; and (2) the President of the Senate's appointment of Respondents Levin and Banta.
The Speaker line of appointments began in December 1997 when the then-sitting Speaker of the House appointed Sears to a four-year term on the State Commission. On November 29, 2001, Sears was reappointed to a second four-year term, which was scheduled to end November 30 of 2005 (that date assumes that Sears's four-year term commenced on the date of appointment, as Petitioners argue). On January 6, 2005, then-sitting Speaker, Lola Spradley, appointed Miller to replace Sears, nearly a year before Sears's second four-year term was set to expire (that is, according to the argument of Petitioners). Speaker Spradley's appointment, made just before she left office, was based upon an interpretation of subsection 13-5.5-102(1)(a) that commissioners' terms should begin and end in even-numbered years and that their terms of office were fixed for a four-year period.2 When Romanoff took over as Speaker of the House later in January 2005, he reinstated Sears and extended his term to November 30, 2006.3
The President of the Senate's line of appointments began with the then-sitting Senate President's appointment of Levin to the Commission in November 2001. Levin's four-year term was scheduled to expire November 30, 2005 (that is, again, according to the argument of Petitioners). Immediately before leaving office and based upon the same statutory interpretation underlying Spradley's appointment of Miller, then-President of the Senate, John Andrews, appointed William Banta to replace Levin on January 3, 2005.4 Upon assuming the presidency of the Senate on January 10, 2005, Respondent Fitz-Gerald reinstated Levin and extended his term to November 30, 2006.
Since the reinstatements of Sears and Levin, they, along with Miller and Banta, have been attempting to serve on the Commission. Because of this controversy, the Commission has been unable to perform the bulk of its statutory duties. Speaker Romanoff and President Fitz-Gerald now petition this court under C.A.R. 21 to consider a writ in the nature of quo warranto to establish the lawful officeholders.
The underlying inquiry in this case requires us to determine the legislative intent of the governing statutes. We begin by briefly examining the role of the Commission. We next discuss the writ of quo warranto and analyze our jurisdiction to issue such a writ in this matter. Finally, we apply the relevant statutory authority and case law to determine which of the four appointments are legally valid.
In 1966, the people of Colorado voted to amend the Colorado Constitution to require the appointment of state judges and justices according to a merit-based system. Colo. Const. art. VI, § 24. This scheme replaced what has been called a "disastrous" system in which judges and justices were elected on a political ticket. Hearing on HB 88-1079 Before the H. Comm. on Judiciary, 1988 Leg 56th Sess. (Colo.1988) (statement of Frank Plaut, President, Colo. Bar Ass'n).
This constitutional amendment mandates, among other directives, that judges and justices who wish to retain their offices must be approved by voters in a retention election. Colo. Const. art. VI, § 25. However, after the experience of various retention elections, the General Assembly became aware that the electorate did not always have access to sufficient information to allow them to assess judges and justices who were on the ballot for retention. Hearing on HB 88-1079 Before the H. Comm. on Judiciary, 1988 Leg., 56th Sess. (Colo.1988) (statement of Rep. Bath, Member, H. Comm. on Judiciary). In order to fill this informational void, the General Assembly enacted legislation in 1988 to evaluate judicial performance statewide by district, using uniform criteria, through the creation of Commissions on Judicial Performance for each district. § 13-5.5-101, C.R.S. (2005).
In addition to the district Commissions on Judicial Performance, this legislation established a State Commission on Judicial Performance, the entity involved in this action. The State Commission oversees the district Commissions, ensures that district retention evaluations are appropriate, and evaluates performance of all statewide appellate judges — namely, the judges of the Colorado Court of Appeals and the justices of the Colorado Supreme Court. See §§ 13-5.5-103, 106, C.R.S. (2005). The State Commission comprises ten members who are appointed by officials from all three branches of government. Id. § 102. In addition to the four appointments by the Speaker and President of the Senate, the Governor and Chief Justice of the supreme court each appoint three members, one attorney and two nonattorneys. Id. The legislative intent behind the tri-branch appointment structure was to create a nonpolitical Commission. Hearing on HB 88-1079 Before the Conference Comm., 1988 Leg., 56th Sess. (Colo.1988) ().
The Commission must start its work early in an election year in order to fulfill its...
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