Colorado voters consistently show less confidence in appellate court judges and Supreme Court justices than district court judges. 2016 was no different, as shown by the number of "retain" votes in such elections. But had the state commission revealed the truth in its radio ads during the election season, would the support have been even less?
The state commission, which is responsible for recommending to voters whether to retain appellate court judges and Supreme Court justices, failed to send surveys to all categories of people to which the surveys are required to be sent. Statute requires the surveys to be sent to people affected by judges and justices and specifically names 11 categories of people. But the state commission only sent surveys to 1 of those 11 categories: Lawyers. The commission also sent surveys to lower court judges, who are not one of the statutory categories.
The state commission could have chosen to hold public hearings to obtain public input on the appellate court judges and Supreme Court justices, but chose not to do so. Yet the state commission recommended that all appellate court judges and the Supreme Court justice up for retention in 2016 be retained. The judges were all retained by an average "retain" vote of 68.1%, which is almost 7 percent below the national average in judicial retention elections.
When the chair of the state commission, Heather Hanneman, was questioned about the lack of surveys to non-attorneys, she alleged that the only people affected by appellate and Supreme Court justices are the attorneys who attend oral argument. Yet these justices and judges make statewide public policy that affects everyone in Colorado.
The executive director of the state commission, Kent Wagner, compares judicial performance evaluations to employment evaluations. But as all employees know, things stay in employment files for as long as a worker is with a company. Wagner admits, however, that he destroys all documentation except the final reports of the commission and the survey results posted online. So documents containing negative statements about judges that the commissions receive are destroyed so future commissions cannot see them.
The commission's actions, again, appear to be against the law. A statute states as follows: "The state commission shall adopt rules regarding retention of evaluation information, which shall be made available to district commissions for subsequent evaluations of the justices or judges."
Many district commissioners have expressed concerns that they cannot obtain additional information they desire to evaluate a judge. From DMV reports to criminal histories to financial information, the current commissions have no investigative power whatsoever to obtain anything. The state commission's response to the district commissions' requests for more information? The executive director tells the district commissions they cannot obtain the information and cannot use the information.
And as for the surveys regarding district court judges, once again it appears from the survey results that surveys were not sent to all required categories of individuals. Which leads to a pressing question: Are any of Colorado's judges who went through the 2016 election legitimately on the bench given the fact that the performance commissions did not follow the law?
The Performance Commissions Reboot
To correct the performance commission problem, some contend Colorado should simply return to contested elections for judges. We believe the performance commission problems can be corrected, and when corrected the system will be better than contested elections. At present, voters receive insufficient information about judges. The Reboot would require much more information to flow to voters. The key components of The Reboot are:
1)Background checks on judges including the verification of the financial disclosures filed by judges;
2)Required annual public hearings where the public can comment on judges, preferably at the same time every year such as law week (first week in May);
3)Public reports on judges every 2 years;
4)A representational state commission;
5) Allowingthe general public to directly apply to a commission to be on a commission; and
6)Applying Colorado's Open Records Act to the commissions.
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The Reboot would increase the transparency of the performance commissions by:
1) Applying Colorado's Open Records Act to the commissions,
2) Requiring public hearings where the public can comment, and
3) Mandating public reports on judges every 2 years.
Rarely does one case deflate public confidence in the judiciary like the Colorado Supreme Court's decision that Colorado's Open Records Act does not apply to the judicial branch. Given that the Code of Judicial Conduct forbids judges from using the bench to help themselves, it's surprising to see such a flagrant decision where the Supreme Court helps itself.
In Office of the State Ct. Adm'r V. Background Info. Serv., 994 P.2d 420 (Colo. 1999), the Supreme Court declared that it wasn't clear that the legislature meant the Open Records Act applies to the judicial branch.
The opinion paved the way for a Supreme Court rule that allows the judicial branch to keep documents secret if such "inspections could compromise the safety or security of a Judicial Branch employee."
In general, Colorado's Open Records Act (CORA) requires that public records be disclosed unless such disclosure would be contrary to the public interest. The focus is on the public interest as opposed to the speculative safety or security of a judicial branch employee such as a judge.
Applying the Open Records Act to performance commission records provides much more transparency. That's why the judicial branch has done everything in its power to avoid application of CORA.
But it's very sad that we have to state that CORA applies to the performance commissions. We shouldn't have to make such a statement.
Retired judge Rebecca Kourlis, who now heads the Institute for the Advancement of the American Legal System (IAALS), wrote the above opinion for the Supreme Court, which gives one an idea of what IAALS and Kourlis are all about.
Transparency is crucial to improving the judiciary and that's why The Reboot would apply CORA to the performance commissions.
Public hearings every year where the public can comment on judges increases transparency and enhances accountability. Public hearings at the same time each year, such as the first week of May, which is Law Week, will raise the profile of the performance commissions without any cost.
The public will trust an open and transparent process that considers public comment on a regular basis. Too often, the state commission is picking and choosing who gets to comment on justices and judges by only providing certain individuals with surveys to complete. This practice must end.
Public reports every 2 years will help judges keep in touch with the public they serve and raise the confidence of the public. By the time a judge is up for retention, the public should have multiple reports to review to determine whether to vote to retain the judge.
Interestingly, retired judge Kourlis, mentioned above, previously wrote an article entitled Transparent Courthouse in 2006 and stated:
"Evaluations become more valuable when they occur more often. Frequent, regular evaluations assist judges by identifying areas of weakness early and allowing them to work toward professional self-improvement. Frequent evaluations also provide the commission with a larger amount of data with which to work, lowering the chance that an evaluation will be seen as an aberration."
Yet after running an institute that appears to be a business that caters to judges and judicial branches from other states, Kourlis has backed off of her previous desire for frequent evaluations.
Colorado already reviews county court judges every two years. Reviews of other judges and justices should be no less frequent. The irony in Colorado is that the more powerful the judge, the less frequent the review. This must change.
In this electronic age, the frequency of the reviews will not increase the cost. And The Reboot would stop the expensive and questionable practice of using out-of-state survey companies to perform surveys. The Reboot would create a more effective, efficient and less expensive system by using current legislative staff to support the performance commissions.
What's the result?
The Reboot will result in a stronger judiciary. Increasing transparency will improve public trust and confidence in the system.
A system that shields itself with darkness is not trustworthy. Darkness does not inspire confidence in the judiciary, and does exactly the opposite.
The proposed solution would:
1)Require background checks on judges,
2) Mandate public reports on judges every 2 years,
3)Require yearly public hearings,
4)Create a representational state commission and,
5) Remove conflicts of interest.
We refer to our proposal as
The Performance Commissions Reboot
or The Reboot for short.
The legislature gave us the current performance commission system via legislation in 1988.
We've spent years analyzing the commissions, doing research and traveling the state seeking public input. The Reboot is the result of that work. Don't you think the legislature should adopt The Reboot so voters can know more about judges in the next election?
How about a new rating method?
Do you like someone else telling you how to vote? Some people are offended by the "retain" or "do not retain" recommendations of the commissions. And why have the commissions been telling you to retain judges when the commissions have no idea whether the judges they're recommending have been disciplined? Is that fair or responsible? The constitution requires judicial discipline proceedings to be confidential. And a statute makes it a misdemeanor for anyone assisting the discipline commission to divulge information about any complaint. So none of the commissions advising you regarding how to vote on judges have any idea whether the judge they're recommending has been disciplined.
Only 5 other states have performance commissions like Colorado, and some of those states don't tell voters whether to retain or not retain a judge. They advise voters whether the judges have met the standards of their commission. But what does that really mean?
The Reboot creates a flag system that is readily understandable by voters, yet is a little more nuanced to deal with the complex issue of whether a judge is doing a good job. It alerts the public to judges the commissions are concerned about and allows the voter to make his or her own decision regarding whether the justice or judge should be retained.
Each commissioner would use a flag to represent their vote regarding a justice or judge. A green flag vote connotes complete confidence in the justice or judge at issue. A yellow flag connotes caution regarding the justice or judge at issue. And a red flag connotes serious concern about the justice or judge at issue. Each commissioner's flag would be shown on the final report of the commission.
Then a flag at the top of the report would represent the entire report. A green flag at the top of a performance evaluation would connote complete confidence of all members of a commission in the justice or judge being evaluated. A yellow flag at the top of a performance evaluation would connote that at least one member of the commission has caution regarding the justice or judge being evaluated and has not provided a green flag vote. A red flag at the top of a performance evaluation would connote that a majority of the commission members have serious concern about a justice or judge and have provided a red flag vote for the judge.
The first paragraph of the narrative evaluation would contain an explanation why the green, yellow or red flag was provided at the top of the evaluation and a numerical vote total of the commission members showing how many members voted for a green, yellow or red flag. So the voter would no longer have to dig through a report to understand a commission's recommendation. The information would be at the top.
The flags would serve as a method of prioritizing the information for voters without telling voters what to do. The Reboot makes the process easier for the commissions to perform, and easier for the general public to understand without being offensive. Let's hope the legislature adopts The Reboot as soon as possible.
The Reboot would remove the conflicts of interest in the current system by:
1)Moving the commissions to the legislative branch,
2) Removing the supreme court appointments on the commissions, and
3) Creating a representational state commission.
The Reboot would move the commissions to a new article in Title 2 of the Colorado Revised Statutes where legislative council and the state auditor are created.
How and when created?
For The Reboot to become law, the legislature must pass a bill eliminating the current commissions and creating the new commissions. Hopefully, that will happen in 2017.
How many commissions?
If The Reboot is adopted, there would continue to be 23 performance commissions in Colorado. One for each of our 22 judicial districts and a state commission that evaluates Court of Appeals and Supreme Court judges.
How many people on the commissions?
If The Reboot is adopted, the district commissions would have 7 to 11 members. The state commission would have 22 members.
Who selects the people on the commissions?
If The Reboot is adopted, the district commissions would be selected by the following:
1 attorney and 1 non attorney appointed by the speaker of the house;
1 attorney and 1 non attorney appointed by the president of the senate.
1 attorney and 2 non attorneys appointed by the governor.
Up to 4 people who apply to a commission directly and are approved by a majority vote of the current commissioners.
The state commission would consist of one representative of each of the 22 district commissions who is selected by majority vote of the district commission. There can never be more attorneys than non attorneys on the commission.
Yes. If The Reboot is adopted, no more than half of any commission could be comprised of members of the same political party.
Yes. If The Reboot is adopted then the commissions would have investigative power. Upon majority vote of any commission, the state auditor or legislative council would be required to use their subpoena power to obtain what the commission requests.
Background checks of judges would be mandatory if The Reboot is adopted. Every 2 years the commissions would receive the DMV and criminal history for every judge. The state auditor would be required to verify the financial disclosures filed by each judge every year.
Supreme Court involvement?
None. If The Reboot is adopted, the commissions will be moved to the legislative branch and the Supreme Court will no longer be approving the rules for the commissions. And the Supreme Court will no longer be appointing 3 members to any commission, let alone to the state commission that controls the rules which all commissions must follow.
Yes. If The Reboot is adopted, every commission will be required to hold public hearings every year during the first week of May. The first week of May is Law Week, which will help raise the profile of the commissions and the public's knowledge of the process.
Any public documents?
Yes. If The Reboot is adopted, Colorado's Open Records Act will apply to the judicial performance commissions.
What's the result?
Moving the performance commissions to the legislative branch will provide a proper tension to the process that will engage the public. The public has shown that it isn't that interested in what the judicial branch thinks about judges.
The commissions merely make a recommendation to the public. Thus far, the public hasn't paid much attention to the recommendations. The Reboot would improve the system.
The performance commissions are legislatively mandated to provide you and other voters with fair, responsible and constructive information about judges. So why has the chair of the state commissions tried to keep information about judges from you?
The Judicial Integrity Project previously pursued The Honest Judge Amendment as a citizen initiative. Honest Judge would make judicial discipline proceedings public. It would give voters fair, responsible and constructive information about judges. But who opposed The Honest Judge Amendment?
Heather Hanneman, the current chair of the state performance commission, is the managing partner of the law firm, Recht Kornfeld, that was paid to oppose Honest Judge. So while serving on a commission where she's required to provide voters with information, she's managing the firm that's getting paid to keep discipline information from voters.
Out of all the law firms in Colorado, why did the judges and groups trying to keep a lid on the discipline information choose the state chair's firm to oppose Honest Judge?
The state commission includes three members appointed by the chief justice of the Supreme Court. (Hanneman was not appointed by the chief justice. She was appointed by the Speaker of the House in 2010.)
The state commission is responsible for adopting rules for all commissions to follow. Unfortunately, it has a history of adopting rules and taking actions that appear to be directly contrary to providing voters with fair, responsible and constructive information on judges.
For years, the rules required an over-reliance on aggregate totals from survey results. A rule stated that if a judge received an aggregate total of 3.0 or above on a 4.0 scale, then the commissions had to consider a "retain" recommendation as opposed to a "do not retain" recommendation. That meant if one out of four surveys had a "0" rating and the others had a "4" rating, then the commissions had to consider "retain" as opposed to "do not retain." The rule improperly protected a Jekyll and Hyde judge.
And the rule is directly contrary to our state constitution, which clearly states that a judge can be removed from the bench for a specific instance of conduct. After The Judicial Integrity Project voiced concerns regarding the rule, the state commission quickly moved to eliminate it. But why on earth was the rule adopted in the first place?
Rules can easily change. And the numerical, aggregate totals from the survey results continue to be very prominent in the survey reports. Indeed, the totals appear to be the sole focus of the survey reports. To encourage retention of judges based on aggregate totals is arguably unconstitutional and unethical.
The Reboot would prevent such a rule from being made again and would prevent reliance on aggregate numerical results from surveys.
As stated above, the state commission did not send surveys to all groups to which it was required to send surveys. Because the commission used an expensive, out-of-state company to perform the surveys, one might initially think that the commission ran out of money. But that wasn't the case.
In the fall of 2016, the state commission spent $50,000 to buy radio ads to promote the commissions' recommendations regarding the justices and judges. That $50,000 should have been spent surveying the 10 categories of people that the state commission failed to survey regarding Court of Appeals and Supreme Court justices. Or it should have been spent surveying the categories of people who weren't surveyed regarding district and county court judges.
The state commission chose not only to not follow the law. The state commission chose to spend money touting its recommendations that were in violation of the law, without telling voters it had not complied with the law.
Did the state commission commit fiscal malfeasance? Bad faith? Fraud? This is what happens when you place the performance commissions in the judicial branch.
Colorado needs to adopt The Reboot now so this never happens again. The current state commission is quite literally a liability to the state.
Another commissioner on the state commission currently has a case pending before the Supreme Court. Do you think that having a case currently pending before Supreme Court is appropriate for a commissioner?
Scott Gessler was selected to be on the state commission by the President of the Senate. Gessler was Colorado's Secretary of State, and during that time allegations were filed against him with the Independent Ethics Commission. That commission determined he committed an ethics violation. He appealed to the Court of Appeals where the violation was affirmed.
Gessler was appointed to the state performance commission. Meanwhile, he requested that the Supreme Court hear an appeal of his case. The Supreme Court agreed to hear Gessler's case while he served on the commission. The case is currently pending with the Supreme Court. Does Gessler have an incentive to appease the Supreme Court while he's on the commission?
According to Kent Wagner, executive director of the Office of Judicial Performance Evaluation, Gessler recused himself from voting on whether Justice Hood should be retained in the 2016 election. According to the report of the state commission regarding Hood, there was one recusal.
Interestingly, that means Heather Hanneman did not recuse even though her firm accepted payment for keeping voters from knowing discipline information about judges.
In 2016, Representative Kevin Van Winkle sponsored a version of the performance commissions reboot. The state commission voiced its opposition to the bill at a legislative committee meeting as did Rebecca Kourlis, a retired judge who works with the Institute for the Advancement of the American Legal System. The nonpartisan bill died on a party-line vote in a "kill" committee.
Such a vote shows that those who favor a return to contested elections have a strong factual basis for their argument. We continue to believe the commission-based system can become a better system than a system based on contested elections.
Kourlis, who wrote Colorado's Supreme Court opinion that excepted the judicial branch from Colorado's Open Records Act, continues to be a contributor to the problems in our judicial branch.
The state commission is currently trying to stave off legislation while it belatedly considers changes. But the commission is actually powerless to make all the necessary changes. And haven't we seen enough of what this hand-picked state commission will do?
The legislature needs to step in now and adopt The Reboot. Another election under the current system is irresponsible and unacceptable.
The Reboot would enhance the accountability of the judiciary by:
1) Requiring background checks on judges including verification of financial disclosures,
2) Creating a representational state commission,
3) Mandating public reports on judges every 2 years, and
4) Allowing members of the general public to directly apply to a commission to be on a commission.
If no one ever checks up on a judge, a judge will never get into trouble. Although judges might like that, such a system slowly and surely undermines public confidence in the system.
Because judges are public servants, someone should consistently be making sure they are in compliance with the law. Doing so will increase public confidence in the judiciary.
Although judges file financial disclosures, no one currently checks to verify whether the financial disclosures are accurate. People often are surprised that no one ever verifies the disclosures. The Reboot would require the state auditor to check the disclosures on an annual basis.
Previous commissioners on district commissions have voiced concern that they have been unable to obtain information such as Department of Motor Vehicle reports or criminal histories. Performance commissions should be able to obtain whatever information they believe is necessary to recommend whether a judge should remain in office.
So The Reboot requires Department of Motor Vehicle reports and criminal histories to be run on judges every two years. In addition, The Reboot gives the commissions the power of subpoena by requiring the state auditor or legislative council, both of whom have the power of subpoena, to assist any commission with that power when a commission, by a majority vote, decides it needs additional information.
A representational state commission is a key component of The Reboot. As you can see, the hand-picked state commission that makes all the rules for other commissions to follow and reviews all Court of Appeals judges and Supreme Court justices hasn't been up to much good.
Appellate judges and Supreme Court justices rule over the entire state. Therefore, one representative from each judicial district should weigh in regarding whether such justice or judge should be retained in office.
And a representative from each judicial district should also be involved in making the rules for all commissions to follow. Having a representative state commission will increase the communication flow across the state and ensure all district commissioners understand the system.
For years, we've had an insular, manipulative state commission that has prevented the performance commission system from working well. We need to take what works with the current system and improve upon that. That's exactly what a representational state commission would do.
Public reports every 2 years on judges will encourage judges and justices who are on the bench for up to 10 years to stay on their toes. Frequent public reports will increase public confidence in the judicial system.
The judicial branch is often criticized for catering to the wealthy. Some say only the rich get justice. To combat such claims, the judicial branch must be more open and considerate of the general public.
Being sufficiently well-connected to get appointed to a commission is often a sign of wealth. You shouldn't have to be so politically well-connected to get on a commission that deals with the judicial branch.
It is actually estimated that half of the litigants in court these days represent themselves. And unaffiliated voters make up the largest part of Colorado's electorate.
Allowing the general public to apply directly to a commission to be on a commission is a common sense approach to dealing with Colorado's diverse population. It further increases public confidence in the system by allowing anyone to be involved in the process. It gives credence to the statement: Justice for all.
What's the result?
Enhanced accountability means better judges for all of us. The Reboot uses simple, common-sense measures to correct a troubled performance commission system. Adopting The Reboot would be a win for the judicial branch and a win for the people of Colorado.