There is general agreement that selection processes for judges typically work quite well and usually outstanding candidates are picked. There are, at times, biases built into the selection process that somewhat undermine it, e.g., a governor who only picks prosecutors for the bench who lack experience with civil law and real world experience, but even then most attorneys selected to mount the bench are quite good.
But the step from a practicing attorney, who is a partisan advocate only defending one side of a case in an adversarial system, to becoming an impartial jurist weighing both sides of an issue against often obscure- and poorly-worded laws, the cause of justice, both federal and state Constitutions, or other overarching documents, is huge. As in any profession, not all attorneys are able to climb to that rung successfully, i.e., the Peter Principle. Often the longer they sit on the bench judges develop what is known as Black Robe Disease . As they age judges also develop the same physical and mental problems common to all humanity. And, unfortunately, some become corrupt and criminal.
Worldwide the question of how to remove corrupt and incompetent judges from the bench frequently occurs. Unfortunately, I have no universal answer. Below, I do take a look at the problem in Colorado in the United States. But what might, and I emphasize might, work in Colorado state courts may be of little use to you.
If you ask any honest attorney (there are a few) they will tell you our courts are dysfunctional. Too many laws, too many cases, too much cronyism, too many bad judges, too much gender bias, etc. However, by statute there are periodic reviews of judges designed to weed out the bad ones.
Colorado has a statewide Office of Judicial Performance Evaluations for Supreme and Appeals Court Justices. District and county court judges are evaluated by judicial performance commissions established in each of the twenty-two Judicial Districts. These commissions make a determination of whether they feel judges in state courts should be retained or not retained at fixed intervals, in effect telling the public how commissioners think citizens should vote for each judge after an analysis of their performance.
For the purpose of judicial evaluations judges in the following state courts are required to stand for retention at specified intervals in an unopposed election where the question on the ballot for each judge is "Shall Judge ____ of Court _____ be retained in office Yes ___ No ___"
County courts are part of the state court system and are of limited jurisdiction. They handle civil cases under $15,000, misdemeanors, traffic infractions, some felony complaints, protection orders, and small claims. County court decisions may be appealed to the district court.
Except for the 2 nd , 10 th , 19 th , 20 th , and 21 st judicial districts, all encompass more than one county, and a county judge may serve in more than one county. Except in Denver County judges are appointed by the governor from three or four candidates put forward by a judicial nominating commission within the judicial district. Each new judge then stands unopposed for retention after two years and every four years thereafter so long as they remain a county judge.
District judges are the senior judges within a Colorado judicial district and a chief judge is selected from the district judges in a given judicial district by the Chief Justice of the Colorado Supreme Court.
As part of the state court system, district judges are appointed by the governor from three candidates put forward by a judicial nominating commission within the judicial district. They then stand unopposed for retention after two years and every six years thereafter.
District court is a court of general jurisdiction and hears civil cases in any amount, as well as domestic relations (divorces), criminal, juvenile, probate, and mental health cases. In addition, some judicial districts have specialized courts such as drug courts, mental health courts, water courts, and lately veteran courts. Except for water courts, specialized courts may be run by a magistrate, county, or district judge appointed by the chief judge.
District court decisions may be appealed to the Colorado Court of Appeals and in limited cases directly to the Colorado Supreme Court. Most important cases in Colorado are heard first by a district court judge.
A district court judge may hear cases in any court within the judicial district and may often serve as a visiting judge in a neighboring district if there is a conflict of interest as in the recent case of disgraced Seventh Judicial District Attorney Myrl Serra.
Judges on the Court of Appeals are appointed by the governor from three candidates put forward by a judicial nominating commission. The appeals court consists of 22 judges who serve eight-year terms. The court sits in three-member divisions to decide cases. The Chief Judge is appointed by the Chief Justice of the Supreme Court. The chief judge assigns judges to the divisions and rotates their assignments.
The Colorado Court of Appeals is usually the first court of appeals for decisions from the district courts, Denver probate court, and Denver juvenile court. The Court of Appeals also reviews decisions of several state administrative agencies. Its determination of an appeal is final unless the Colorado Supreme Court agrees to review the matter, i.e., grant certiorari.
The Supreme Court is composed of seven justices who serve ten-year terms. The Chief Justice is selected from the membership of the body and serves at the pleasure of a majority of the justices. The Chief Justice also serves as the executive head of the Colorado Judicial System and is the ex-officio chair of the Supreme Court Nominating Commission when the rare vacancy occurs. The Chief Justice appoints the Chief Judge of the Court of Appeals and the Chief Judge of each of the state's 22 judicial districts and is vested with the authority to assign judges (active or retired) to perform judicial duties in any judicial district.
The Colorado Supreme Court is the court of last resort in Colorado's state court system. Its decisions are binding on all other Colorado state courts. The court generally hears appeals from the Court of Appeals, although in some instances individuals can petition the Supreme Court directly regarding a lower court's decision.
As each judge nears the end of their current term a judicial performance evaluation commission undertakes a performance review based on fairly standard criteria. These commissions were created by the Colorado legislature in 1988. According to statute, C.R.S. § 13-5.5-101 et seq., these criteria include at least the following: integrity; legal knowledge; communication skills; judicial temperament; administrative performance; and service to the legal profession and the public, although other issues may be brought forward.
The Chief Justice, the Governor, the President of the Senate, and the Speaker of the House appoint state and local commission members for each of the twenty-two judicial districts to four-year terms. Each commission is a ten-member body comprised of four attorneys and six non-attorneys.
These commissions consider responses to anonymous surveys sent to attorneys and non-attorneys who had been in the judges courtroom, unannounced courtroom visitations by commission members, a self-evaluation, a personal interview with the judge, and other information in reaching their recommendation for each judge.
If a judge is retained after their initial evaluation approximately two years after taking the bench, preliminary surveys of a judge's performance are taken three years and one year before they stand for retention again, plus another survey the year in which they will go before voters and on which the commission will base its final recommendation. So long as they remain on the bench that process is repeated each time they stand for retention.
Judges whose term is expiring are placed on the ballot in even years. Typically there are about 80-100 judges statewide standing for retention. Supreme and Appeals court judge's names are placed on the ballot statewide. Names of judges in judicial districts are placed on the ballots of the counties within that district.
In practice these judicial commissions very rarely reach any recommendation about a judge except "Retain." Judicial performance evaluations are on the web from 1998 through 2012. In those fourteen years roughly 1,200 judges have been evaluated yet only five (5) have been rated "Do Not Retain," and one, Jill Mattoon in the 10 th Judicial District (Pueblo County), remains on the bench despite her negative rating.
Now in any business or enterprise one expects to find about 5-10% incompetence, drunkenness, criminal activity, moral turpitude, or mentally-disturbed individuals, and all these types of behavior by Colorado judges have been documented. Thus, as a very rough estimate, between 1998 and 2012 these commissions should have found about 60-120 judges unfit to remain on the bench and issued a "Do Not Retain" recommendation. That is a far cry from the five actually so rated.
Despite the fact that the information posted for the public is basically a whitewash these commissions do gather a great deal of information about individual judges. I was thus looking for a way to use what data are available for a more uniform, quantitative, and easily understood evaluation when a former judge reminded me of an October 13, 2002, Rocky Mountain News editorial (available here). In their conclusion of that editorial they made the following recommendation;
"...if less than 75 percent of attorneys surveyed thought a judge should be retained, or more than 15 percent thought he or she should not be, voters might consider rejecting the judge no matter what the commissions recommend. (At the very least they should treat the scores as a red flag and review the judges' entire record.)"
I found the Rocky Mountain News recommendation quite interesting and decided to try it out in comparison with the judicial performance evaluations of judges standing for retention in the November 2012 election. The results are presented in Table 1 below (a printable version of Table 1 is available here).
The basic assumption in Table 1 is that there are no better judges of a judge than the attorneys who regularly appear before them. So Table 1 provides a comparison of judges based on the percent of attorneys who voted to retain and not to retain. Where it was broken out in the Judicial Performance Evaluation the percentages tabulated are of those attorneys expressing an opinion to retain or not to retain, which is usually a smaller group than the total number of attorneys who submitted evaluations, as some were undecided or didn't have enough information to make a recommendation on a particular judge.
However, due to apparent "grade Inflation" I found it more informative to use slightly different metrics than the Rocky Mountain News suggested in 2002 for the evaluation of the ninety judges standing for retention in 2012. For an EJF evaluation and recommendation to "Retain" I suggest that in comparing ratings with all other judges, retention is only merited if >85% of the attorneys who submitted an evaluation expressed an opinion to retain. I consider the Rocky Mountain News suggestion of >15% of attorneys recommending "Do Not Retain" to remain a valid criteria and submit that if just 80 to 85% of the attorneys expressed an opinion to retain that the judge's performance is marginal at best. For judges who attorneys gave a less than an 80% "Retain" rating the EJF evaluation in Table 1 is "Do Not Retain" as their performance is clearly substandard compared to their peers and as evaluated by members of the bar.
To validate the proposed criteria I reviewed and summarized the evaluations of all sitting judges and many retired ones as well for the period 1998-2012. Since the majority of judges during this period received a recommendation to retain from 90% or more of the attorneys, and many judges received 100% of the attorneys votes to retain, a lower cutoff for retention of 80% fits the available data quite well. Certainly any judge who receives less than 80% of support from attorneys does not merit a recommendation to retain and the performance of any judge who 15% or more of attorneys recommend "Do Not Retain" is marginal at best.
By this standard I suggest in Table 1 that sixteen judges (18%) should not be retained as compared to the ridiculously low standard of the statewide commissions on judicial performance who only rated one county judge as "Do Not Retain." And that judge, with a 72% retain rating by attorneys in the 4 th Judicial District, isn't even notably low as compared with a number of other judges who attorneys only gave "Retain" ratings in the 50-60% range.
Thus, the EJF is clearly justified in stating that jurists with such low ratings by the attorneys, both prosecutors and defense, criminal and civil, who appear before them should not be retained on the bench in this state. And the current percentage of jurists who should be removed is so high because of accumulated deadwood on the bench due to the failure of the judicial performance review commissions to make honest recommendations during the course of its existence.
Conversely, attorneys found that we have some truly outstanding jurists on the bench in Colorado. Among these are Jefferson County Judge K. J. Moore in the 1 st Judicial District who attorneys gave a 98% approval rating, in the 2 nd Judicial District Denver County Judge Doris Burd received a 99% approval rating, and from personal observation I would concur with that rating. In the tiny (population 22, 218) 3 rd Judicial District attorneys were unanimous on retaining Huerfano County Judge Gary Stork, and 7 th Judicial District Hinsdale County Judge Alvin Lutz also received 100% of the attorney's votes to retain. In the 8 th Judicial District Larimer County Judge Christine Carney garnered a 98% vote of confidence, as contrasted with Judge Schultz who got the lowest score (56%) of any judge in 2012. Adams County Judge Leroy Kirby in the 17 th Judicial District got a 99% vote of confidence from members of the bar. In the largest judicial district, the 18 th , Arapahoe County Judge Addison Adams garnered a 98% approval rating.
Altogether, forty three (48%) of the ninety judges standing for retention were given a vote to retain of 90% or more by attorneys who took the time and effort to rate them. These outstanding ratings by members of the bar reinforces the fairness of the criteria originally suggested by the Rocky Mountain News editors.
Where a number of judges are standing for retention in the same judicial district it also useful to make comparisons between how attorneys rated the different judges in that district. That is particularly apparent in the 18 th Judicial District, the largest in the state, where the performance of District Judge Cross (94%) stands out while district judges Antrim (78%), Horton (64%), and Spear (67%) are pathetic in comparison. Among county judges in the 18 th the performances of judges Adams (98%) and Brencze (91%) are outstanding, especially when compared to Judge Chauche (79%).
In previous elections voters have apparently not paid much attention to the performance reviews. and, of those who vote on judges, about two thirds vote to retain regardless and one third vote to remove irrespective of how the performance commission rated the judge. But that does not excuse the dismal performance of the judicial review commissions.
It is the hope of the Equal Justice Foundation that at least some citizens will take the time so essential to the improvement of our courts to print out and review the more quantitative, and I think fair, evaluation presented in Table 1 as a guide for how they vote on judges in the November 2012 election.
For those citizens who would like to have an individual impact on a judge's performance, or who don't live in Colorado, we have found a citizen sitting in the courtroom and taking notes is probably the most effective thing an individual can do to improve our courts. Courtwatching has an immediate, and usually beneficial impact on judicial behavior, and helps reduce the outrages of child protective services (CPS) as well.
Feedback from many sources tell us that the EJF judicial performance and courtwatching forms have been widely useful in monitoring courts and CPS all across America.
In Colorado completed forms are linked anonymously to the individual judge in our chapter on Colorado Judges Citizen's Review. It is suggested groups in other states and countries may want to post their own tabulation of judges to link citizen evaluations to.