Evaluating the Performance of Colorado Supreme Court Justices

It’s Valentine’s Day, but the Denver Post is not feeling the love…

Between a weekend social calendar and attending several events (including One Sweet Fundraiser for Clear The Bench Colorado – a great success!  Thanks to all who attended and contributed!) yesterday, I almost missed the publication of the following guest commentary article on judicial performance evaluations in Saturday’s Denver Post.  Curiously, the article was published only in the print edition, departing from the Post’s normal practice of also printing guest commentary articles online.

[UPDATE: the Denver Post, possibly in response to criticism, later did publish the article online]

A suspicious type might think that the Post’s exclusion of this article from the wider dissemination (and availability for internet search engine reference) of online publication fits in with a consistent pattern of suppressing any mention of the upcoming statewide retention elections for Colorado Supreme Court justices, or the dubious constitutionality (if not outright evasions of TABOR) of the recent “Dirty Dozen” tax increase bills (which the Denver Post supports – while supporting continued special-interest tax exemptions for newspapers and newspaper advertising supplements) in their news coverage.  (A real conspiracy-monger might mention that the Post’s journalistic integrity with regard to covering news uncomfortable for the Colorado Supreme Court could be compromised by the fact that the Denver Post is now the Colorado Supreme Court’s landlord – or cozy neighbor – in the same building).

In the spirit of the holiday – won’t you be my Valentine, Denver Post? – we will refrain from such musings, and continue instead to the well-written and informative article that the Denver Post did publish (albeit from a guest commentator) on Valentine’s Day Eve.

GuestCommentary

Evaluating the performance of justices

By William M. Banta

The opportunity for Colorado voters to decide whether a state Supreme Court justice is doing a good job doesn’t come around very often, only about once every 10 years.  This year, four out of the seven justices who sit on the Colorado Supreme Court are up for retention.

Ten years is a long time for any public servant to go without a job review, and the 10-year election cycle is about the only accountability our Supreme Court justices have to the people of Colorado.  The voters’ responsibility in determining whether or not to retain a justice is all the more important because this event occurs so infrequently.

Under our form of government, the function of the Colorado Supreme Court is to decide cases.  When it comes to the job performance of individual justices, the written decisions of the court provide the key to their performance.

In the last few years, the Supreme Court (including all four members who are up for re-election) has weighed in heavily on important constitutional questions such as taxes, schools, and the proper role for courts (vis-à-vis the legislative or executive branches of government).

The court has published controversial written decisions on these and other issues that impact Colorado citizens.  Because the court’s recent rulings about taxes, schools and judicial authority are not straightforward in their reasoning, what voters are going to want for 2010 is some analysis of the decision-making.

In evaluating Supreme Court cases, the decisions should be reviewed for reasoning and clarity.  The court’s conclusions should also be examined for adherence to the rule of law.  For instance, when the language of the Colorado Constitution reads one way but a justice writes a decision or supports an opinion that interprets the constitution in the opposite way, there’s a legitimate question whether the justice colored outside the lines or adhered to fundamental principles.  And that’s a job-performance issue that voters would want to consider.

In Colorado, there is a state commission on judicial performance that publishes its consensus of each justice’s performance.  For each 10-year retention cycle, the commission is required to evaluate job performance, write up a narrative, and make a recommendation for the voters.  In the past, the commission’s recommendation has always been that the voters should re-elect or retain a justice.

There has been a failure of real performance evaluation and a lack of analytical content in the write-ups for the voters.  If narratives provide meaningful information about how a justice has decided cases, there will be accountability and the system will work as it is designed to do.  Too often in the past, narratives have amounted to complimentary resumes instead of job performance evaluations.  Some commentators and observers have denigrated the narratives as a “rubber stamp” exercise for retaining judges.

Now would be a good time for the commission to write up substantive performance evaluations for the justices who seek re-election.  It would help the credibility of our judicial merit selection/performance evaluation system.

The Colorado system for appointing, evaluating, and retaining or not retaining Supreme Court justices depends on voters receiving relevant, substantive and vigorous information about individual job performance.  That’s what voters will need for the elections in November.

(William Banta was a State Judicial Performance Commission member in 2005 and 2006 and spent seven years on the 18^th Judicial District Performance Commission before that.)

Clear The Bench Colorado agrees wholeheartedly that voters need “relevant, substantive and vigorous information” – based on “the written decisions of the court” – in order to make an informed decision on whether to retain, or NOT to retain, “the four out of the seven justices who sit on the Colorado Supreme Court” who are scheduled for retention elections this November.   Based on our analysis of the most impactful decisions rendered by these Colorado Supreme Court justices during their tenure – led by the “Mill Levy Tax Freeze” property tax increase case, the “fees are not taxes” case, the “Telluride Land Grab” eminent domain abuse case, the ‘Lobato’ school funding case, and the judicial usurpation of legislative authority in the Congressional redistricting case, among others – the verdict is clear: these justices deserve a resounding “NO” vote in the November elections.

Become an informed voter; conduct your own evaluation of the performance of these justices, based on how (and whether) they follow the Constitution and uphold the rule of law.  Armed with information, Yes, you can exercise your right to vote “NO” on the four ‘unjust justices’ of the Mullarkey Majority (Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right to vote on tax increases, your right to defend your homes and business from seizure by rapacious governments, and your right to enjoy the benefits of the rule of law, instead of rule by activist, agenda-driven “justices.”  Help to Support Clear The Bench Colorado with your comments (Sound Off!) and your contributions – and vote “NO” on retaining these unjust justices in the November elections!