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. At the courthouse the halls are so crowded one can hardly walk down them and there are literally hundreds of citizens in line waiting to get through the security checkpoint. For what?
Worldwide the question of how to remove corrupt and incompetent judges from the bench frequently occurs. Unfortunately, I have no universal answer but, by statute, in Colorado there are periodic reviews of judges designed to weed out the bad ones. But that begs the question, does it work? In answer I have attempted to evaluate the issue of judicial retention here using a standard measure between judicial districts statewide .
Colorado has an Office of Judicial Performance Evaluation 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.
However, the commissions reports are independent, somewhat obtuse, and there is no standard way to compare their findings between districts and judges. What the Equal Justice Foundation has done for this, and the previous two election cycles in 2012 and 2014, is suggest that the simplest, and possibly the best way to rate judges uniformly across Colorado is to use the data on how attorneys voted in responding anonymously to the local judicial performance commission as to whether to Retain or Do Not Retain each jurist standing for retention. This idea first proposed in an October 13, 2002, Rocky Mountain News editorial. After all, the attorneys in a judicial district appear more commonly before the judges than any citizen and have the same education and background as the jurists. Findings based on this method are presented in a table below for the November 2016 election. A printable, PDF version of this table is available here.
More information on the background of all Colorado jurists, e.g., when appointed, results of previous evaluations, case documentations, etc., is available here.
Also, independent evaluations are made by another group, Clear The Bench Colorado, that contains additional information on judicial decisions. Their evaluation of jurists standing for retention in 2014 is available here. Their 2016 evaluations were not available at the time this was published.
But what might, and I emphasize might, work in Colorado state courts may be of little use to you if you live outside of Colorado. It is hoped, however, that our efforts may encourage you to take on the problems with judges in your jurisdiction.
There is general agreement that selection processes for judges typically works 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 primarily 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. There are also problems when jurists are promoted to a higher-level court. As in any profession, not all attorneys are able to climb to the next rung successfully, i.e., the Peter Principle.
Another problem that arises is that often the longer they sit on the bench judges are prone to developing 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 are corrupt and criminal.
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, 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. 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 so long as they remain on the bench.
District court is a court of general jurisdiction and hears civil cases in any amount, as well as domestic relations (divorces and child custody), criminal, juvenile, probate, water, and mental health cases. In addition, some judicial districts have specialized courts such as drug courts, mental health courts, water courts, and 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 case of disgraced Seventh Judicial District Attorney Myrl Serra or Third Judicial District Attorney Frank Ruybalid.
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 appellate, district, or county judge nears the end of their current term a judicial performance evaluation commission in each judicial district 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 November ballot in even years. Typically there are plus-or-minus 100 judges statewide standing for retention. If a judge choses not to stand for retention, or is voted off the bench, their term ends the following January.
Supreme and Appeals court judges standing for retention are placed on the ballot statewide. Names of judges in judicial districts are placed on the ballots of the counties where they serve 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 2014. In those sixteen years roughly 1,300 judges have been evaluated yet only eight (8) have been rated “Do Not Retain.” Of those eight Jill Mattoon in the Tenth Judicial District (Pueblo County), remains on the bench despite her negative rating in the 2010 evaluation and in the Fourth Judicial District Karla Hansen remains on the bench in spite of her negative rating in the 2012 performance evaluation.
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 2014 these commissions should have found about 60-130 judges unfit to remain on the bench and issued a “Do Not Retain” recommendation. That is a far cry from the eight actually so rated and generally ignored by voters.
The evidence is clear that unless a judge has committed rape, murder, or is obviously demented (that is debatable with many judges) the judicial performance commissions are going to find they should be retained on the bench.
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 first decided to try it out in comparison with the judicial performance evaluations of judges standing for retention in the November 2012 election.
The basic assumption is that there are no better judges of a judge than the attorneys who regularly appear before them. The Judicial Performance Evaluation in each district provides the percentages of those attorneys, male and female, prosecutors and defense, criminal and civil, expressing an opinion to retain or not to retain. That is usually a smaller group than the total number of attorneys requested to submit an evaluation, as some were undecided or didn't have enough information to make a recommendation on a particular judge. Thus, percentages voting Retain or Do Not Retain may or may not total 100%.
Prior to the 2012 November election I developed a table that provides a comparison of judges based on the percent of attorneys who voted to retain and not to retain (2012 EJF evaluation available here).
That approach proved quite useful and provides a standard measure of judicial performance between all Colorado judicial districts as attorneys across the state have roughly the same education and pass the same bar examination. So I have repeated the process in 2014 and 2016. The 2016 results are also presented below.
I have found it more informative to use slightly different metrics than the Rocky Mountain News (RMN) suggested in 2002. For an EJF evaluation and recommendation to “Retain,” as did the RMN, 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 75% to 85% of the attorneys expressed an opinion to retain that the judge's performance is marginal at best. However, if less than 75% of attorneys voted to retain a judge then I submit, and have rated them “Do Not Retain” in my evaluation. Those metrics work well and have been used again in 2016.
To validate the proposed criteria I have reviewed and summarized the evaluations of all sitting judges in Colorado, and many retired ones as well, for the period 1998-2016. 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 attorney's votes to retain, a lower cutoff for retention of 75% fits the available data quite well. Certainly any judge who receives less than 75% of support from attorneys in their district does not merit a recommendation to retain. Their performance is clearly substandard compared to their peers and as evaluated by members of the bar.
For judges who attorneys gave a less than a 75% “Retain” rating, and by the standards originally proposed by the RMN, I recommend that 34 judges Not Be Retained (32%) in the 2016 election. Only two judges were so rated by the various Judicial Performance Commissions.
However, attorneys indicate that we have some truly outstanding jurists on the bench in Colorado. Some 33 jurists (31%) were rated Retain by 90% or better of the attorneys who voted and attorneys gave 9 of these a 100% retain rating. For example, in the 7 th Judicial District Hinsdale County Judge Alvin K. Lutz has been given a 100% Retain rating now for three consecutive retention evaluations, 1998, 2012, and 2016.
Altogether, 42 (39%) of the 108 judges standing for retention in 2016 were given a vote to Retain by greater than 85% of the 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 ratings ranged from 92% to a low of 56% voting to retain. Other large judicial districts exhibit similar spreads in attorney votes.
In the 17 th Judicial District two judges were given 100% retain ratings while district judge Jill-Ellyn Straus, one of only two judges the performance commissions rated Do Not Retain in 2016, was given only a 41% retain rating by attorneys while 50% voted Do Not Retain. The other district judge, Michael Schiferl, 16 th Judicial District, voted Do Not Retain by the commissions was only given a 55% retain vote by attorneys and 40% voted do not retain. These findings serve to help verify our simplified rating method.
Further, district judges must stand for retention every 6 years and thus any such jurist standing for retention in 2010 must now be standing for retention in 2016. Of the 46 district judges who stood for retention in 2010, 19 (41%) are not standing for retention in 2016. That is of concern inasmuch as a stable senior judiciary is a must for justice to prevail. One doesn't step into the position of district judge without a great deal of experience and education, which takes time and a great deal of effort to acquire.
There are many reasons a judge might not stand again for retention, including promotion to district or appellate judge, retirement, health, death, misbehavior, voted off the bench, etc. But such large percentages opting or being forced out suggests deep-seated problems in many of the state's judicial districts. One obvious reason for such a low retention rate is the fact that there is a great deal of deadwood on court benches in Colorado that past performance commissions and the voters have not successfully cleared out. Details about which judges are no longer on the bench and why are provided by judicial district in our chapter on Colorado Judges Citizen's Review.
Unfortunately, when there are problems within a system it is usually the best people who jump ship first. So we have unquestionably lost some good judges as a result. Also, some attorneys who have been appointed to the bench and are standing for retention for the first time after two years clearly haven't been able to make the transition to an impartial jurist and should not be retained, i.e., the Peter Principle.
It is hoped that the 2016 EJF performance evaluation below, and here, will serve as a voter guide in that respect as the official Blue Book is quite inadequate.
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 commissions rated the judge. But that does not excuse the dismal performance of the judicial review commissions to define poor judges.
It is the hope of the Equal Justice Foundation that 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 available here, or below, as a guide for how they vote on judges in the November 2016 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 that citizens sitting in the courtroom and taking notes is probably the most effective thing an individual or group can do to improve our courts. Court watching has an immediate, and usually beneficial impact on judicial behavior, and helps reduce the outrages of child protective services (CPS) as well.
In Colorado completed forms that provide a fair and honest evaluation of a jurist are linked anonymously to the individual in our chapter on Colorado Judges Citizen's Review. It is suggested that groups in other states and countries may want to post their own tabulation of judges to link citizen evaluations to.
1. A list of and details about Colorado state judges standing for retention in 2016 is available at http://www.coloradojudicialperformance.gov/retentionlist.cfm?year=2016 .
2. In 2016 108 Colorado state judges stood for retention. Of those the various state commissions on judicial performance recommended Retain for 106 of the 108 judges standing for retention in the November 8, 2016, election. District judges Michael Schiferl in the 16 th Judicial District and Jill-Ellyn Straus in the 17 th were the only two listed as Do Not Retain .
3. Repetitive complaints about Colorado judges suggest that many more judges than these two should be voted off the bench. Also, a simpler, easier to understand criteria and presentation than the state provides is desirable, which we have attempted to do with the above tables.
4. Our basic assumption is that the best judges of a judge are the attorneys who appear before them. They have similar levels of education, pass the same bar examination, and have far more contact with a judge than most citizens. Also, the judicial performance commissions in the various districts solicit and receive evaluations from both prosecution and defense attorneys, as well as civil and family law attorneys.
For our evaluation we use the number of votes cast by attorneys for each judge to Retain or Do Not Retain and the criteria: Retain >85% of attorneys voted to Retain, Marginal between 75-85% of attorneys voted for the judge, Do Not Retain <75% of attorneys vote to retain.
6. Using our simplified criteria in these tables the EJF recommends that of the 108 judges standing for retention that only 42 be Retained ; that 32 should definitely not be retained ; and under this criteria votes by attorneys found the performance of the remaining 34 marginal .
7. Another group, Clear The Bench Colorado, also does an independent evaluation of Colorado judges. Their work is available at http://www.clearthebenchcolorado.org/ .
8. Histories of all Colorado judges, including previous evaluations, are available at http://dvmen.org/dv-67.htm .