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Fair Courts E-Lert: Colorado and Washington Considering Bills to Prohibit ICE Courthouse Arrests

This Fair Court’s E-Lert highlights bills introduced in Colorado and Washington to stop ICE courthouse arrests, a proposed constitutional amendment in Utah that would replace the state’s judicial nominating commissions with nonpartisan statewide elections, and more.

Last Updated: February 7, 2020
Published: July 15, 2021

State Courts

Color­ado and Wash­ing­ton Consid­er­ing Bills to Prohibit ICE Court­house Arrests

Legis­lat­ors in Color­ado and Wash­ing­ton are consid­er­ing bills that would prevent U.S. Immig­ra­tions and Customs Enforce­ment (ICE) from making arrests in and around court­houses in those states.

Color­ado’s proposal, SB 83, follows the state’s enact­ment of a new law last year that bars local jails from keep­ing people in custody for ICE beyond their release dates. If passed, the bill “would be one of the — if not the — strongest statewide limit­a­tions yet on the agency’s abil­ity to carry out immig­ra­tion enforce­ment in Color­ado,” accord­ing to the Color­ado Sun. Wash­ing­ton’s proposal, SB 6522, follows a lawsuit filed last year by the state’s attor­ney general against the federal govern­ment to stop such arrests.

Over the past year, the Bren­nan Center has docu­mented efforts in states across the coun­try, includ­ing in Cali­for­nia, Oregon, New York, and New Jersey, to prohibit or limit ICE’s abil­ity to make court­house arrests.

Utah State Senator Intro­duces Consti­tu­tional Amend­ment to Elim­in­ate State’s Judi­cial Nomin­at­ing Commis­sions

On Janu­ary 30, Utah state Senator Dan McCay, (R-River­ton), intro­duced a proposed consti­tu­tional amend­ment that would have voters elect judges in nonpar­tisan statewide elec­tions. Currently, Utah is one of 14 states that use a merit/reten­tion system to select their judges, in which an inde­pend­ent nomin­at­ing commis­sion recom­mends judges for appoint­ment by the governor. Once appoin­ted, those judges stand for addi­tional terms in reten­tion elec­tions.

McCay’s proposal has received push­back from those in his own party. Lt. Gov. Spen­cer Cox, said “[i]t would be impossible for me to over­state what a terrible idea this is.” The Utah State Bar also voiced its discon­tent, saying “[t]he current system of judi­cial selec­tion has served Utah well in creat­ing a highly respec­ted judi­cial system.” The Utah State Courts have not taken a posi­tion on the bill, accord­ing to the Salt Lake Tribune.

Over the past 20 years, the Bren­nan Center has docu­mented the grow­ing threat judi­cial elec­tions pose to the inde­pend­ence of our courts. Instead, the Center recom­mends states adopt a trans­par­ent, publicly account­able appoint­ment process, together with a lengthy single term for state supreme court justices.

Federal Courts

U.S. Judi­cial Confer­ence Circu­lates Draft Ethics Advis­ory Opin­ion That Would Ban Member­ship with ACS and the Feder­al­ist Soci­ety

Last month, the Commit­tee on Codes of Conduct of the U.S. Judi­cial Confer­ence circu­lated a draft ethics advis­ory opin­ion that would prohibit federal judges from offi­cially affil­i­at­ing, whether as a member or in a lead­er­ship role, with the Amer­ican Consti­tu­tion Soci­ety (ACS) or the Feder­al­ist Soci­ety, but not the Amer­ican Bar Asso­ci­ation (ABA).

Accord­ing to the draft opin­ion, offi­cial affil­i­ation with ACS or the Feder­al­ist Soci­ety is incon­sist­ent with the Code of Conduct for United States Judges because member­ship in either group “could convey … that the affil­i­ated judge endorses the views and partic­u­lar ideo­lo­gical perspect­ives advoc­ated by the organ­iz­a­tion …  and gener­ally frus­trate the public’s trust in the integ­rity and inde­pend­ence of the judi­ciary.” Member­ship in the ABA’s Judi­cial Divi­sion “does not raise these same concerns and is not neces­sar­ily incon­sist­ent with the Code.”

Speak­ing at a Feder­al­ist Soci­ety event last week, Supreme Court Justice Clar­ence Thomas criti­cized the draft opin­ion, saying “I think they’re about to silence the Feder­al­ist Soci­ety.” The Wall Street Journal Edit­or­ial Board also published an edit­or­ial, call­ing the draft ethics opin­ion “polit­ical mischief masked in high-sound­ing rhet­oric.”