Dem caucus Arapahoe Democrats

Arapahoe County Democrats conduct precinct caucuses at Mission Viejo Elementary School on Saturday, March 7, 2020, in Aurora.

Although state judges have been allowed to participate in political caucuses since 2010 without running afoul of the rules of judicial conduct, the Colorado Supreme Court has now decided to prohibit them from doing so.

In a change effective Jan. 21, involvement in a "caucus-type election" now violates the prohibition against judges making political speeches on behalf of a political organization and the requirement that judges not publicly endorse a candidate for office.

"In a state that rejected partisan elections of judges fifty-five years ago, judicial participation in caucuses creates the risk that the public will conclude that, despite our system of merit selection, judges are political," wrote Judges Lino S. Lipinsky de Orlov and Sueanna P. Johnson in a Dec. 22 memo.

Lipinsky and Johnson, who are both members of the state's Court of Appeals, noted that the previous policy allowing caucus participation, enacted at a time when Colorado chose its presidential nominees solely through the caucus and assembly process, no longer reflects the options judges have for political participation. They saw no issue with judges casting ballots during a primary election or even affiliating with a party, but drew the line at caucus attendance.

"There is a material distinction between submitting a form indicating a party affiliation and participating in a caucus that is inherently a highly public and partisan act that necessarily involves discussions of candidates and controversial topics," the Lipinsky-Johnson memo explained.

At local precinct caucuses, registered voters of the two major parties name precinct leaders and elect delegates to assemblies at the county level or higher. They also vote on party platform resolutions. At assemblies — held in subsequent weeks at the county, district and state level — delegates choose Democratic or Republican candidates who will appear on the parties' primary election ballots.  Some candidates choose to bypass the caucus process and petition directly onto the ballot.

Straw polls, speeches in favor of candidates and public voting are all part of the caucus process.

For much of the past two decades, Coloradans voted for candidates during the presidential nominating process only through the caucus and assembly system. In 2016, voters approved a ballot initiative to restore the presidential primary election. A related change allowed voters unaffiliated with any party to cast their votes in a party's primary election.

The Supreme Court's revised directive to judges is the first since those electoral reforms, but it is not the first prohibition on caucus attendance. In 2008, a state judge asked the Supreme Court's ethics panel if he could attend caucuses and vote in primary elections. An advisory opinion declared that participation in a caucus would "necessarily involve a judge in partisan political activity," and was prohibited.

However, judges could vote in primary elections because of the secret balloting involved.

Then, the Supreme Court in 2010 adopted a new interpretation of the rules of judicial conduct that allowed for caucus participation.

Other jurisdictions have offered slightly different guidance to judges about how to approach party primaries. For the federal judiciary, caucus participation is frowned upon. However, judicial employees "may participate in caucuses in those states where caucuses substitute for primary elections, but only to the extent necessary to cast a vote."

In the neighboring states of Kansas, Utah and Nebraska, Lipinsky and Johnson found instructions prohibiting judges from attending caucuses. Voting in primary elections, on the other hand, is generally permissible. An ethics opinion from Utah explained that, in places where candidates of one party always win elections, a judge is "effectively disenfranchised" when they cannot vote in that party's primary. 

Lipinsky and Johnson indicated they were unable to find any ethics guidance allowing judges to participate in caucus meetings. They concluded that prohibiting attendance would be consistent with promoting the judiciary as a "fair and impartial institution that decides cases without political considerations."

The memo also recommended changing personnel rules to similarly prohibit "restricted" employees from caucus participation because of their close ties to judges. People in that category include clerks, judicial assistants, bailiffs, court reporters and high-level court administrators. The Supreme Court has not acted on that recommendation.

The Judicial Department did not immediately have an answer about what prompted the Lipinsky-Johnson memo to the court.

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