Judges up for retention face widespread scrutiny this year

By Marianne Goodland
THE COLORADO STATESMAN

While attention on judicial retention has focused in recent weeks on the Colorado Supreme Court, voters this fall will be asked to look at the performance of more than 100 judges throughout the state.

Elections for judicial retention take place in even-numbered years. According to a list provided by the Colorado Office of Judicial Performance Evaluation, 139 judges will be up for voter-approved retention in November. The judges include 69 county judges in 46 counties, 55 district judges throughout Colorado’s 22 judicial districts, two juvenile court judges, one probate judge, five judges on the Colorado Court of Appeals, and with the retirement of Chief Justice Mary Mullarkey, three members of the state Supreme Court. New judges who are on provisional status serve two years before retention; county judges serve four years, six for district judges, eight for appeals court and a decade for justices on the Supreme Court.

But while lawmakers and other elected officials are term-limited, no such requirement exists for judges. Among the 139 up for retention, a dozen can date their time on the bench to the 1980s.

Judicial evaluations are governed by the State Commission on Judicial Performance. According to the commission, judges are evaluated on integrity, legal knowledge, communication skills, judicial temperament, administrative performance and service to the public and legal profession.

District and county judges are evaluated by local district commissions in their home districts. Trial judges are evaluated through survey questionnaires completed by a “random sample of persons who have appeared in court before the judge,” which can include private attorneys, prosecutors and public defenders; jurors, law enforcement officers, court employees and interpreters, and victims of crime. The commissions also review a judge’s self-evaluation, judge statistics and decisions, and conducts a personal interview with the judge.

Supreme Court and appeals court judges are evaluated by the state commission, and that also includes the survey.

At the end of the process, each evaluation produces a narrative for the ballot and the Legislative Council Blue Book, which recommends that the judge be retained, not be retained or that the commission has no opinion on retention. The evaluations will also be available on August 3 on the website of the Office of Judicial Performance Evaluation (www.coloradojudicialperformance.gov/index.cfm).

Since judicial retention evaluations began in 1988, there have been 953 judges on the ballot. Fifteen got recommendations against retention and 10 got “no opinion.” Another seven were voted out. In the last retention election in 2008, 102 out of 103 judges were retained by voter approval. The performance commission recommended that one judge not be retained; that judge, Judy Archuleta of Jefferson County, was voted out.

The state commission is chaired by Paul Farley, a former deputy director of the Colorado Department of Personnel and Administration who is now an associate attorney with the U.S. Attorney’s Office in Denver. Farley has served on the commission for eight years and has been through four cycles of reviews. The state commission is made up of ten members; four attorneys and six non-attorneys. Members, who serve four-year terms, are appointed by the Chief Justice, governor, Senate President and Speaker of the House.

Farley told The Colorado Statesman that in his view the process has improved each time. “We’re trying to provide more content in the narratives” and more of an “apples to apples” comparison of judges. “If you see one judge’s narrative you can compare to another judge on how they stack up.”

But Farley said the process isn’t perfect, and quoted Winston Churchill: “Democracy is the worst form of government ever invented except for all the others.” Among the issues, some which he said are solvable and some which aren’t, Farley pointed to the low rate of return on surveys sent out by the commission. “People who chose to do the surveys self-select,” Farley explained. “If we could get 100 percent responses to the surveys, we’d have better information,” but he said that may not be a solvable problem.

Then there’s the issue of all that must be reviewed at the appellate and Colorado Supreme Court level. Commission members must read the opinions written by judges when they do the evaluations — for appellate judges that’s eight years worth of writing, and it’s 10 years of opinions for Supreme Court justices. This year, the state commission reviewed the opinions of five appellate court judges and four justices on the high court. “That’s an enormous number of opinions over a long period of time,” that is assigned to volunteer commissioner who all have day jobs, Farley said. “It’s a full-time job for a part-time [and unpaid] commission.” While the amount of reading is less for commissions that do the district and county court judicial reviews, it still adds up to a lot of work for a lot of people. The Colorado Office of Judicial Performance Evaluation said that more than 1,200 people have been served in the commission review process since 1988.

Farley suggested that if the rules requiring the reading of every opinion put too much of a burden on the members those rules may need to be relaxed.

Another possibility is that the state could go the way of other states, such as Alaska, which has a paid court-watchers program where students and retirees visit courtrooms to watch the judges in action. But in that type of system there might be more competition for appointments to the commission that could bring in an “unwelcome dynamic” Farley said. Then there’s the cost — a paid review process is at least for now unlikely in Colorado, given the current fiscal situation.

Commission members may not always agree on whether a judge has issued correct rulings in cases, or when they do agree commissioners may just read opinions differently. And that’s compounded by the number of cases handled in an eight- or ten-year period. One case where a judge may “miss the mark” in ten years “doesn’t tell us much,” Farley said. In a situation where one opinion may be viewed negatively “we wouldn’t say it was a terrible judge who should be thrown out. You’d want to see a trend — a judge who misses the mark over a period of time,” Farley said.

The commission endeavors to be fair, Farley said. “We’re dealing with people’s careers, but on the other hand we want to serve the public. We do the best assessment we can and let the public decide.”

But despite his concerns over the process, Farley said most judges would likely say they aren’t getting a free pass on the evaluations. “If you look where there are elected judges or competitive races for judges, [Colorado has] the best system, whatever its shortcomings.”

Matt Arnold of Clear the Bench Colorado has some of the same criticisms of the process, at least as it relates to the surveys and their use at the appellate level or higher. “The process is dominated by survey results,” Arnold told The Statesman. Using surveys with a small sampling size derives results from a “self-selecting group.”

Arnold said he is less concerned about the performance evaluation process at the lower court levels. “You have more public input at [those levels],” he said. For those judges, there’s more public input, a larger sample size and more opportunities for a broad range of public participation.

But in general, Arnold said there isn’t enough public participation and transparency in the process. All documentation and deliberations are secret, he said, which creates a “fatal flaw. For a system that supports transparency it fails miserably.”

Part of the problem is the rules of the commission, which Arnold says limits what members can consider and can put out for the public. Arnold said the same people who evaluate the judges or justices often have business before them, and in the case of the Colorado Supreme Court, at least one member is appointed by the Chief Justice who then can take part in the evaluation of that justice’s performance.

Arnold said that under the commission rules, the judges and justices can “cherry-pick” five of the cases for review, and the last five are sometimes recommended by the judges and justices, too. In addition, those under review have the opportunity to review the critiques from surveys and commissioner input and then weigh in on those reviews. “It’s like giving your job review and rewriting it before it becomes official,” Arnold said. “That cries out for reform.”

Arnold notes that the state commission is required by rule to look at issues for appellate judges and justices that have little to do with the judge’s adherence to the constitution and the rule of law, Arnold explained. That includes whether the judge runs a neat and orderly courtroom, whether the judge is on time for hearings and has an “appropriate demeanor. It’s like a kindergarten report card, not a professional review.”

Finally, the Blue Book itself gives short shrift to the performance evaluation, according to Arnold. Each judge is described by five paragraphs, only one of which is on judge’s performance. The last four paragraphs list biographical information, the commission’s recommendation and other matters that are not germane to performance, such as volunteer work. In a recent column on his website (www.clearthebenchcolorado.org/) Arnold said the Blue Book analysis is “so watered-down and lacking in substance that it’s almost impossible to make any distinction between ‘excellent’ and ‘poor’ judicial performance.”

Arnold said he would like to see the review process include more opportunity for public input. “There’s very little opportunity for independent review in a process that is very insular,” he said. Arnold is also troubled by how commissioners are chosen — as political appointees and “largely beholden to the people who put them there in the first place. It undermines credibility and transparency and that’s not public accountability.”

“I like the idea of a performance review,” Arnold said. The problem is “the process is too closed…it’s like the fox guarding the hen house.”

As to his group’s efforts to “clear the bench” this November, at least as it pertains to the Colorado Supreme Court, Arnold said that the recent retirement decision by Chief Justice Mary Mullarkey has not taken any of the steam out of the campaign. Just the opposite, Arnold said this week. The publicity over Mullarkey’s retirement has focused more attention on the issue of judicial retention, which is being driven in part by “people asking why” Mullarkey chose to retire instead of stand for retention, Arnold explained.

In addition, Arnold noted, the three other Supreme Court judges up for retention in November — Justices Michael Bender, Alex Martinez and Nancy Rice — were part of the “Mullarkey majority” and Arnold said they bear just as much responsibility for the decisions that his group takes issue with. That includes Mesa County Board of County Commissioners v. State of Colorado, which dealt with mill levies; Barber v. Ritter, which dealt with TABOR as it related to cash funds transfers; and Town of Telluride v. San Miguel Valley Corp., which ruled on an eminent domain case.

To date, Justices Bender and Rice have now filed for retention; Justice Martinez has until Aug. 2 to make that decision.

Marianne@coloradostatesman.com