No appellate court judge (Court of Appeals, Supreme Court) in Colorado has ever received an unfavorable recommendation from the state commission on judicial performance. Ever.
And no Colorado appellate court judge has ever lost a judicial retention election. Ever.
So although Colorado has judicial retention elections, when it comes to appellate court judges appointment to the bench is essentially for a lifetime.
You'll see appellate judges "retire" at age 72 as required by the state constitution. But "retire" doesn't really mean retire in Colorado.
Many appellate judges come back on the bench as senior judges. Even though judges are required to retire at 72, judges in their nineties have been making public policy across Colorado by serving as senior judges on our appellate courts.
So when you vote to retain an appellate court judge, you are essentially providing that judge with a lifetime appointment to the bench.
You need information to decide how to vote in judicial retention elections. Colorado created judicial performance commissions that were supposed to inform you about whether a judge should remain on the bench. The problem? The commissions are uninformed, can’t investigate, and actually hide information from you.
The system provides very little relevant information to the commissions, so it’s impossible for them to give you much information. And the state commission, which makes the rules for all district commissions, has actually fought against legislation that would provide the commissions – and you – more information.
The commissions aren’t even complying with current law with the information they’re supposed to review before making a determination on a judge. And the executive director for the commissions has admitted he destroys documents so neither the public nor future commissions can see what was provided to commissions about a judge.
The judicial performance commissions have no idea whether the judges they’re recommending have been disciplined or are currently in disciplinary proceedings. Why? Our state constitution states that judicial discipline proceedings are confidential – not public.
Don’t you think whether a judge has been disciplined is important information you should have when you determine how to vote on a judge?
And if our performance commissions were really intent on providing you information about judges, don’t you think they would have at least recommended a constitutional amendment making judicial discipline proceedings public? Such proceedings are public in 35 other states.
Yet Colorado’s state performance commission actually refused to support a measure to make judicial discipline proceedings public in Colorado. Our performance commissions are content to provide recommendations about judges without having any disciplinary information.
Knowing this, do you trust the recommendations of the performance commissions?
The system tries to make it look like the commissions are listening by allowing some people to complete surveys about judges. The survey process, however, is fraught with problems.
First of all, surveys are supposed to be sent to 11 categories of people. But surveys are actually only sent to a fraction of the required categories, with an emphasis on sending surveys to lawyers and judges. Judges aren’t even one of the 11 categories of people who are statutorily required to receive surveys. And very few people receive surveys.
So a lot, and in some instances the majority, of surveys completed about judges are completed not by the people affected by judges, but by other judges. Judges rating judges. Is that a process you trust?
And the performance commissions only consider the aggregate totals that are tabulated from the surveys. That means that any individual acts or misdeeds reported on the surveys are overlooked and ignored.
While an employee in Colorado can be terminated at any time for any reason (we’re an at-will state), judges aren’t held accountable for any individual instances of conduct. Judges just need an aggregate total on the surveys to get through the performance commissions.
So if a judge gets 60% thumbs ups from the surveys, he or she will get a favorable recommendation from a performance commission. In the other 40% of surveys, it could have been reported that the judge lied, acted on conflicts of interest and was incredibly unprofessional. But that’s not enough to get an unfavorable recommendation from a performance commission.
Colorado is a haven for bad judges. It’s very, very difficult for a judge to get an unfavorable recommendation from a performance commission. A judge can be very troubled, yet Colorado’s system requires a performance commission to provide a favorable recommendation to the judge.
Although many occupations in Colorado require background checks, there is no such requirement for judges. Educators, appraisers, sheriffs, police officers . . . even vehicle ID inspectors must go through background checks. A background check is not required, however, to become a judge.
When lawyers are licensed to practice, a background check – of sorts – is performed. But a lot of life is lived after a lawyer is licensed. And even after a judge is appointed, he or she lives a lot.
The performance commissions never do a background check on the judges they review. The judge could have DUIs, domestic incidents, and contacts with law enforcement, because no one ever checks. Wouldn’t you feel more confident that a judge is in compliance with the law if background checks were regularly performed like they are on other professionals?
The performance commissions have no investigative power whatsoever. Although judges file financial disclosures with the state, no one ever checks them to see if they are accurate. That means a judge could have financial connections in cases he’s involved with and no one would know it. Not even the attorneys litigating cases in court know whether the judge is financially involved with their opponent.
The judge could be financially helping himself or herself, or their families, by making certain rulings on the bench. And Colorado’s system does far too little to protect you from that.
Wouldn’t you feel more confident in Colorado’s judicial performance commissions if they had some investigative power?
Colorado has 23 judicial performance commissions. There is a performance commission for each of our 22 judicial districts and a state performance commission that makes the rules for all 23 commissions to follow. The state commission reviews all appellate court judges and the 22 district commissions review their district and county court judges.
The state commission is a problem. It has fought against background checks on judges, against checking the financial disclosures of judges and against requiring public hearings on judges.
The state commission has never made an unfavorable recommendation regarding an appellate court judge (Court of Appeals/Supreme Court). The state commission makes it harder for district commissions to do a good job.
Nevertheless, a district performance commission will occasionally go out of its way to do the right thing, resulting in giving a judge an unfavorable recommendation. And this is how the whole system survives.
The state commission claims the unfavorable recommendation. People who don’t understand that there are 23 separate performance commissions don’t understand that the state commission is taking credit for another commission’s work. The state commission will claim the system is working because a judge or two received an unfavorable recommendation.
The system regularly sacrifices a low-level judge or two to make it look like the system is working. The occasional judge who gets an unfavorable recommendation is a scapegoat for the entire system.
When the system is criticized, the district commissioners naturally speak out to defend their actions, noting that they recommended against retention of a judge. What the district commissioners aren’t aware of is that the state commission is taking advantage of them and that they should have had so much more information to evaluate a judge. District commissioners often don’t understand that most of the information they’re reviewing came from the judge under review.
So that’s how the system survives. A dark and troubled state commission relies on the occasional good work by one of the 22 district commission to keep the whole system afloat.
The state commission is a hand-picked commission with some members selected by the Supreme Court chief justice. It’s a commission filled with conflicts of interest. The state performance commission is not representational of the entire state. Most certainly, the state performance commission does not have your best interests at heart.
The state performance commission has fought against providing you with more information about judges. Colorado’s system is not aimed at informing voters. It’s geared toward protecting bad judges.
Too many people believe that just because someone is a judge, the judge must be a good person. But the fact is, a judge is simply a person. In most cases, a judge simply needs to be a lawyer who’s been licensed to practice law for 5 years. And that doesn’t mean he or she actually practiced law for 5 years.
A licensed lawyer who sits on the couch for 5 years can become a judge. He or she just needs the right political connections to get through Colorado’s dark nomination/appointment process.
We don’t know whether the judges on the bench are anything special because the system works very hard to ensure no one ever checks on the judges. The system doesn’t want us to know who the judges are. Colorado’s Open Records Act doesn’t even apply to judges. It’s literally pure darkness.
So why don’t you know more about the judges on the ballot? Because Colorado’s judicial system doesn’t want you to know more about the judges on the ballot.
If you’d like to know more about the judges on the ballot in the future, please sign our petition.
We must change the law to ensure voters are more informed about the judges on the ballot.
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.
Please SIGN OUR PETITIONto support judicial reform efforts.
Our proposed solution to give you more information on judges 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,
5) Remove conflicts of interest. and
6)End the darkness.
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?
The judge you’re voting on could actually be on a judicial improvement plan and you wouldn't know it. If a judge is not doing well, the performance commissions are strongly encouraged to put the judge on an improvement plan.
What does this mean? First of all, it means you won’t be informed that the judge is a problem. Second, it means the commission has turned over its power to recommend against retention to the chief judge of the judicial district.
So it will be up to the chief judge whether the probationary judge ultimately gets a public recommendation against retention. But as for the present, voters don't get to know anything about the improvement plan.
And the probationary judge is no longer an independent judge because he or she needs to do what the chief judge wants in order to stay on the bench.
A judge could get another 4 year (county court) 6 year (district court) 8 year (Court of Appeals) or 10 year (Supreme Court) term just because a performance commission put the judge on an improvement plan rather than advise voters that the judge is a problem.
And this issue is completely separate from whether the judge could have been disciplined or is currently going through disciplinary proceedings.
Why does Colorado’s system work so hard to protect bad judges? If you’d like to know more about the judges on the ballot in the future, please sign our petition.
Help yourself to a better justice system.
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.
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, Colorado will reboot its judicial performance commissions soon.
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 or writing 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 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.