DENVER — All you have to do is drive down Interstate 25 to see all the change Colorado is experiencing. Amendment D is all about growth in four areas in particular: Douglas, Arapahoe, Lincoln and Elbert counties.
“The population in the four counties of the 18th had grown almost 600%, over about a 50-year time period from 1970 to 2020,” said state Rep. Mike Weissman, D-Arapahoe.
All four counties fall within the 18th Judicial District, a district that was established in 1964 before the founding of Lincoln and Elbert counties.
These days, the four counties now have more than one million residents altogether. No other judicial district has more than 750,000 residents.
Normally, judicial districts are comprised of one big county, a bigger one and a smaller one or a collection of smaller counties. With all the growth, the 18th Judicial District now represents two major counties, along with two smaller ones.
Because of all the growth, in 2020, state lawmakers decided that it was time to split the 18th Judicial District into two.
Starting in 2025, Arapahoe County will be the only county in the 18th Judicial District. Meanwhile, the other three counties will move into the newly formed 23rd Judicial District. It will be the first time in nearly six decades that a new judicial district will be created.
“In the lifetime of many of us now here in Colorado, that hasn't happened,” Weissman said.
To make that happen, in 2024, voters will be asked to elect new district attorneys to represent the areas. They will then take the oath of office and begin representing the districts in 2025.
In the meantime, a lot of work will happen behind the scenes to make sure IT systems are ready for the switch, that case and docket management will transition to the new districts, and that employees will be split among the different districts.
Voters are also being asked to weigh in on the changes. Amendment D asks voters whether they want to allow the governor to reassign judges from the current 18th Judicial District to the new 23rd Judicial District on a one-time basis.
Right now, there are 24 judges serving in the 18th district. When the split happens, the old district will be reduced to 17 judges. The new judicial district, meanwhile, will need eight judges.
The Case for Amendment D
This year, a bipartisan group of state lawmakers passed a resolution to place a question on the November ballot to ask whether the governor should be allowed to simply move some of the judges from the current judicial district to the new one.
They say the change will help make for an easier transition.
“What Amendment D does is in furtherance of this promise of a smooth transition. It provides a one-time, very limited mechanism,” Weissman said. “Nothing else about the way that judicial districts or judges or judgeships work in Colorado is impacted. This is a one-time, small change.”
If the amendment is passed, whoever wins the governor race, regardless of their political affiliation, will be tasked with picking the judges to reassign. Those judges would then serve out the rest of their term in the new district and would be subject to a retention election when their term is up.
“It’s important to point out the governor only does so from within the judges who are already there. The governor doesn't just get to throw everybody out and start over. That would not be appropriate,” Weissman said.
Despite the fact that the change will only affect four counties, because it requires a constitutional change, everyone in the state is asked to weigh in.
Supporters say this change will avoid potential lawsuits, prevent rulings from being invalidated based on allegations of the improper seating of judges and offset the costs to address other logistical concerns with the transition.
“This is something that all of us are asking all of the state to do to come together for the good of the million plus residents here,” Weissman said.
Both Weissman and the nonpartisan voter guide, known as the blue book, warn that if Amendment D fails, there would be uncertainty about how a transition of judges to the new district would work.
“The risk if it fails is uncertainty in the transition, which is not what we want. I hope that we don't have to cross that bridge,” Weissman said.
The Case Against Amendment D
While officials from both political parties have voiced their support for Amendment D, Chris Forsyth, the executive director of the Judicial Integrity Project, insists that there is more to the ballot measure than lawmakers are letting on.
First, Forsyth doesn’t see the amendment as a one-time, limited issue, but rather a decision that could be precedent-setting in the future.
While the state has not needed to add a new judicial district in nearly 60 years, with all of the growth the state is experiencing, Forsyth says another district could be needed in the not-too-distant future, and the decisions voters make now could impact the way new districts are formed going forward.
“It's setting a precedent that if a new judicial district is added, this is what we're going to do,” Forsyth said.
He doesn’t think the amendment is necessary, and he disagrees with the blue book analysis that there would be uncertainty in how the judges would be picked for the new district.
Forsyth points to Section 20 of Article VI of the state constitution, which deals with vacancies in judicial offices. It says that a vacancy commission would be tasked with picking three nominees to potentially fill the empty seat. From there, the governor selects the final candidate for the position.
Forsyth argues that Amendment D circumvents that process and that doing so affects the rights of people living in the new district.
“What Amendment D ultimately does is benefit seven judges, seven individuals at the expense of the constitutional rights of those living in the 23rd Judicial District,” Forsyth said.
While the governor would have a hand in moving the judges no matter what happens to Amendment D, Forsyth contends that the ballot question actually takes power away from the governor by forcing appointments.
If Amendment D fails and a vacancy commission process moves forward, the judges who would be losing their positions in the 18th Judicial District would be able to apply to be seated in the new district. However, they would have to go through the vacancy commission process all over again.
Forsyth believes this is important because the judges currently representing the district might not be the best fit for the new one.
“Just because this judge has served in another judicial district and was seated on the bench does not mean that that judge is going to be the right judge for another judicial district,” he said.
Because this potential vacancy process would take time, Forsyth says Section 10 of the state constitution allows for judges in the current district to serve temporarily in the new one, so long as they live in the counties.
Finally, Forsyth takes issue with part of the ballot language that allows for buffer time for the judges who would be reassigned to the new district to move to the counties they would serve. The judges would have until January 5, 2025 to move into either Douglas, Elbert or Lincoln counties after they are appointed.
Normally, judges must already be living in the districts in order to qualify to serve them. Forsyth sees the change in residency requirements as an alarming change.
“There's a humility, service responsibility components that come out of the fact that the judge is supposed to be a citizen of the judicial district,” Forsyth said. “That's a completely different philosophy from allowing a judge to become a career judge and just say, ‘Well, I'm going to apply here and I'm going to move there.’”
He blames the creation of Amendment D on a lack of knowledge by the current court administrator, who is not a lawyer or constitutional scholar, but who did help encourage lawmakers to craft the ballot question.
You Decide
Regardless of whether Amendment D passes or fails, starting in 2025, a new judicial district will be tasked with representing Lincoln, Elbert and Douglas counties. The question is how judges, the men and women entrusted with the power and responsibility of upholding laws, should be assigned to the district.
Supporters of Amendment D insist that this will make for a smooth, clear transition that current law simply does not account for.
Opponents say a deeper dive into the state constitution already provides a path to fill the judgeship vacancies in the new district.
Neither side has spent much money educating voters about the topic or making their case for how people should cast their ballots.
On November 8, it will be up to voters to try to work through the details of a historic change in judicial districts and how they want judges to be assigned.
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