Judging Judges by Charles E. Corry, Ph.D.
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Judicial performance evaluations
Appraisal of judges in Colorado state courts
A retention rate of zero might be more fitting
Comparison over time of judicial evaluations
Colorado judges are appointed by the governor, 1 sometimes on the basis of political favoritism and cronyism. Should the governor fail, or decline to appoint a judge from the three candidates presented to him by a judicial nominating commission, after a time the chief justice of the Colorado Supreme Court may appoint a judge under the Colorado Constitution, a provision that is seldom used. Former district attorney George Brauchler has presented a more complete review of the judicial selection process, if interested.
However, 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 only picks prosecutors for the bench who lack experience with civil law and real world experience. Another problem with the selection process is that the nominating commissions sometimes do not reflect the politics of the citizens in their judicial district, 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 giving fair weight to 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. There is also the problem that often the longer they sit on the bench judges tend to 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 retirement is mandatory at age 72. Unfortunately, some become or are corrupt and criminal.
Worldwide the question of how to remove corrupt and incompetent judges from the bench frequently occurs. A February 2021 editorial in the Denver Post states that Colorado voters should prepare to force change upon a branch of government that operates in an unaccountable silo; so this is not a minor problem. Nor is it probable that courts in other states are more honest and effective.
Unfortunately, I have no universal answer and complaints against judges jumped in 2023. Below, I take a look at the problem in the State of Colorado in the United States. But what might, and I emphasize might, work in Colorado state courts may be of little use to you.
1. Except for county judges in Denver.
While Colorado has a Commission on Judicial Discipline it has not proven to be effective and in January 2024 the executive director was “put on leave,” in effect he was fired for undisclosed reasons. And in 2022 the integrity of our judicial system was publicly called into question.
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 and ideological 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. Information on the performance of individual judges in Colorado is then assembled by the Office of Judicial Performance Evaluation from each judicial district when a judge comes up for retention. That site allows a search by the name of the judge. One can also dig through semi-annual reviews dating back to 1998.
These judicial performance commissions make a determination of whether they feel, although quantitative standards do not exist, judges standing for retention in state courts should be retained or not retained. In the 2018 judicial reviews the review was changed to comment whether the Commission felt a judge met expected performance standards or not. But the effect of this change was trivial as only 2 out of 128 judges standing for retention in that year were found not to have met performance standards. In effect they tell the public how commissioners think citizens should vote for each judge after a subjective analysis of their performance.
All state judges, at every level, stand for retention at the end of a two-year provisional period after they first mount the bench, or are promoted to a higher level bench. If a judge is retained after the provisional period then the following cycles are followed.
Colorado Supreme Court justices serve ten year terms and then can stand for retention in a statewide election or step down. Judges on the Court of Appeals serve eight year terms and then face a retention vote in a statewide election.
In each of Colorado's twenty-two judicial districts, district and county judges stand for retention after their first two years on the bench and every four (county judges) or six years (district judges) thereafter in a November general election in even years within their judicial district or the county where they serve. If a judge chooses not to stand for retention then their term ends in January of the following year and they step down from the bench. Of course they may retire, step down, or be removed for cause before the end of their current term.
The year before the end of their term judges stand unopposed where the question on the ballot for each judge is “Shall Judge ____ of Court _____ be retained in office Yes ___ No ___”
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 measures: 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, e.g., having coitus with the prosecutor in the judge's chambers.
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, which occurs 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 during 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. 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 1990 through 2022. In those thirty-two years roughly 2,000 judges have been evaluated yet only nine (9) have been rated “Do Not Retain” that I am aware of.
Now in any business or enterprise one expects to find about 5-10% incompetence, drunkenness, criminal activity, moral turpitude, or mentally-disturbed individuals. All these types of behavior by Colorado judges are documented in this chapter. Thus, as a very rough estimate, between 1990 and 2022 these commissions should have found about 80-140 judges unfit to remain on the bench and issued a “Do Not Retain” recommendation.
The evidence is clear that unless a judge has committed rape, murder, or is obviously demented, the judicial performance commission is 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. Prior to the November 2012 election I was 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 first try it out in comparison with the judicial performance evaluations of judges standing for retention in the November 2012 election. I then compiled a table of all 90 Colorado judges then standing for retention in which I compared the judicial performance evaluations with how attorneys had voted to retain or not retain, and posted an EJF recommendation based on the Rocky Mountain News editorial suggestion. The results are presented here. That process has been repeated every two years since.
The basic assumption is that there are no better judges of a judge than the attorneys who regularly appear before them. So what I've provided is a comparison of judges based on the percent of attorneys who voted to retain and not to retain. The percentages tabulated are of those attorneys expressing an opinion to the judicial review commission 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 suggested 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 whom attorneys gave a less than an 80% “Retain” rating the EJF evaluation is “Do Not Retain” as their performance is clearly substandard compared to their peers and as evaluated by members of the bar.
In 2014, and subsequently the bar for retention was lowered to <75% of attorneys voting to retain. However, in 2018 the performance commissions used a standard of whether or not they felt the judge “Meets Performance Standard” or “Does Not Meet Performance Standard.”
Prior to 2018 the following criteria were used:
• Retain: More than 85% of attorneys voted to retain;
• Marginal: In 2012 only 80-85% of attorneys voted to retain. In the 2014 and subsequent reviews this was changed to 75-85% of attorneys voted to retain;
• Do Not Retain: Less than 80% of attorneys voted to retain in the 2012 review. In the 2014 and subsequent reviews this was changed to <75% of attorneys voted to retain.
Despite the change in evaluation terminology the EJF used the same standards as in 2014 in evaluating judicial performance, i.e.,
• Meets Performance Standards: More than 85% of attorneys voted in favor of the judge;
• Marginal: 75-85% of attorneys voted in favor of the judge;
• Do Not Retain: Less than 75% of attorneys voted in favor of the judge.
In elections voters apparently do not pay much, if any attention to the judicial performance reviews. Of the roughly 75% of voters who take the time to 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.
As reviewed above the judicial review process has proven to be largely a rubber stamp and whitewash.
• In 2008 of 105 judges up for retention only one was rated Do Not Retain. Although in this case Judy Archuleta, First Judicial District, was voted out in the November 2008 election. Note that only 44% of attorneys had voted to retain her.
• In 2010 only one judge, Jill Mattoon in the Tenth Judicial District was rated Do Not Retain but voters kept her anyway. However, two district judges, Jolene Blair and Terence Gilmore, who the commission voted to Retain in the Eighth Judicial District were voted out by voters angry over the fact that the corruption of the law by these two had cost Larimer County at least $10 million.
• In 2012 only one judge, Karla Hansen, in the Fourth Judicial District was rated Do Not Retain but voters kept her anyway. In fact, voters retained all ninety judges under review for that year.
Thus, these “elections” have become a mockery. Failure to take action to deal with problem judges, particularly in “family” courts, has resulted in growing anger and disgust among the citizenry.
With regard to these semiannual “retention” votes consider the following letter to the editor of the Denver Post by Herbert Cooper published October 29, 2008 (p. 14B):
“[Former Colorado Supreme Court justice] Rebecca Love Kourlis urges voters to acquaint themselves with the judges who are seeking retention. Toward what end, she doesn't say, but she's obviously not skeptical about a retention rate of nearly 100 percent. That much I can glean from the fact that she refers us to the state's 'robust judicial performance evaluation program,' which is robustly skewed in favor of the establishment.”
Meanwhile, our justice system cries out for reform. The criminal courts are plea-bargaining bazaars. Tort litigation takes more out of our pockets than sales taxes. Bankruptcy courts are there to rubber stamp bankruptcy fraud. Probate courts are there to loot Granny's assets. Restraining orders are there to complicate the lives of the innocent. Lawyers are there to impoverish us. And to make a long story short, careerism and expediency are there to trump the law and the facts.
I speak as a voter who has acquainted himself with our justice system through sources that expose its deficiencies, rather than obfuscating them. And I would urge fellow voters to consider whether a retention rate of zero might not be more fitting, for judges as a class have been willfully deficient in their role as gatekeepers of that system.”
The following table summarizes the retention recommendations of the Colorado Judicial Performance Evaluations (CO JPE) versus those of the Equal Justice Foundation (EJF) based on the above criteria for the seven retention cycles, 2012 to 2024, we've done to date.
It must be difficult for a judge to fairly and consistently satisfy the demands of both prosecutor and defense in criminal trials, as well as all of the interests in family and civil actions. But many of them do, and apparently quite well as 95%-100% of attorneys polled in their judicial district frequently vote to retain an individual judge.
But how is the judicial review process working over time? One method is to simply compare what the overall reviews have produced. We have done that in Table 13 for every year we have been doing this. One thing that stands out is that over the years fewer and fewer of judges eligible for retention are choosing not to stand. What we cannot determine is whether the process is causing good judges to step down from the bench, or having the desired effect of encouraging the poor ones to leave.
Probably the best review of the opacity of how judges are picked and serve to date was done by former district attorney George Brauchler for the 2022 election. He points out that: “How Colorado selects a judge is closer to the process for selecting the Pope than it is to how we elect a state legislator.” He also notes that partisan politics plays a significant role in who serves on the judicial nominating commissions, noting that even in strongly Republican judicial districts like El Paso County (4th Judicial District), there are zero GOP members on the nominating commission. And Brauchler has little good to say about the commission on judicial performance who review the state's judges, and almost always return a finding of “meets standards,” as is evident in our findings. And to be retained on the bench a judge, who appears on the ballot with no opposition, need only obtain a bare majority of votes and, as we have documented, they rarely lose.
Clearly, this system is badly in need of reform. Columnist David Migoya goes even further and flatly states the judicial discipline system should be scrapped and rebuilt. Independence Institutes Jon Caldera also strongly advocates for reform. As a result, in 2023 the Colorado legislature placed a concurrent resolution to amend section 23 of article VI of the Colorado constitution as it relates to judicial discipline on the November 2024 ballot.
• How judicial members of the discipline commission are chosen;
• How discipline cases are heard;
• Whether Supreme Court justices must step aside from a case;
• When discipline cases are made public; and
• How the procedural rules for discipline are crafted.
Given the current strong bias by Democrats and their majority in the current legislature and judicial nominating commissions, citizens must be wary of this process and the wording of the proposed amendment.
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 to the individual judge in this chapter. Where there is risk of retaliation against the citizen such links are made anonymously if at all possible. It is suggested groups in other states and countries may want to post their own tabulation of judges to link citizen evaluations to.
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| DV Home | Abstract | Contents | Tables | Index | Bibliography |
| Chapter 7 — Colorado Judges — Citizen's Review |
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| Back — Introduction To Citizen's Review Of Colorado Judges |
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