Colorado’s “Official” Judicial Performance Evaluation System Lacks Transparency, Covers Up a Politicized Judiciary
Colorado’s “official” system of judicial performance evaluations is, contra the propaganda propagated by the system’s apologists, among the least transparent and opaque such processes in the nation, and serves to cover up (and perpetuate) existing politicization of the state’s third branch of government.
Far from being a “model” or “one of the best” judicial review systems, Colorado’s program (administered by the Colorado Office of Judicial Performance Evaluation (COJPE), a government agency) is a fraud foisted upon the citizens and voters of Colorado (at significant taxpayer expense).
Colorado’s “Official” Judicial Performance Evaluation System Explained
Colorado’s courts are administered, at the trial court level, under 22 judicial districts (most, although not all of which include multiple counties). Each judicial district has a review commission consisting of 10 political appointees (6 non-attorneys and 4 attorneys). As noted on the COJPE website,
Appointments to the commission are made by the Chief Justice, Governor, President of the Senate, and Speaker of the House.
The state’s appellate courts (Colorado Court of Appeals, Colorado Supreme Court) are “reviewed” by the “State Commission of Judicial Performance” – another 10 political appointees (also 6 non-attorneys and 4 attorneys) appointed by the Chief Justice, Governor, President of the Senate, and Speaker of the House.
The commissions supposedly gather information from a number of sources – interviews, observations, and (primarily) survey results – to generate “reviews” of judges published as a “narrative” beginning with an “official recommendation” on whether the rated judge should be retained in office (notably, not once in the entire decades-long history of the state review commissions has there been a “do not retain” recommendation for a judge at the statewide, appellate-court level; and “retain” recommendations account for over 98% of judges reviewed at the district/county levels).
Why do we have political appointees telling Coloradans how to vote?
Partisan Bias on Review Commissions?
It should be noted that, in contrast to the judicial nominating commissions and the process for nominating appointees to judicial office, which includes a legal requirement for partisan balance among members and for nominations, judicial performance evaluation commissions have NO requirement for partisan balance, and are often (usually?) dominated by members of a single political party.
Unsurprisingly, the 2014 “State Commission of Judicial Performance” is completely dominated by Democrats – ALL of the attorney members, and all but one of the non-attorney members (who is officially unaffiliated) are not only Democrats, but major Democrat contributors (first and foremost, naturally, to Colorado’s Governor Hickenlooper himself):
- Bradley A. Levin, Chair (Democrat; contributor to Hickenlooper, several Democrat legislative candidates – McLachlan, Kagan, et al – and the Colorado Trial Lawyers Association PAC)
- Christina M. Habas (former Denver District Court judge; Democrat, contributor to Dem Don Quick for AG and left-leaning Colorado Trial Lawyers Association Small Donor Committee)
- Heather R. Hanneman (Democrat; contributor to Hickenlooper, Don Quick for AG, One Colorado, CTLA among others)
- Edward F. Harvey (Democrat; Hickenlooper contributor)
- David A. Kaplan (Democrat; contributor to Hickenlooper, Don Quick for AG among others)
- Michael J. Maday (Democrat; former Dem SD11 legislative candidate, contributor to numerous Democrat candidates, incl. Joe Neguse for Secretary of State, Mike Merrifield, Pete Lee, Tony Exum, and others.
- Joe D. Martinez (Democrat; Hickenlooper contributor)
- Roger D. Sherman (Democrat; Hickenlooper contributor; gave over $28,000 to Democrat candidates and Democrat-affiliated groups)
- William E. Sobesky (unaffiliated, but last major contribution was for Mike Feeley (Democrat for governor)
- Roland Williams (Democrat; contributes primarily to local Democrat party organization)
The partisan makeup of the majority of Colorado’s 22 judicial performance review commissions is similarly unbalanced.
“Survey Says!” Methodology Suspect, Statistically Invalid
The commissions rely heavily on surveys distributed to a selected subset of ”attorneys who had cases before the judge, other judges, court staff, jurors and court users.” In other words, the surveys are overwhelmingly distributed to people with a vested interest in the existing system.
The lack of statistical validity for survey results as a method of analysis (due small sample size, rate of return, even sample bias) has been noted by numerous sources – including the commissions themselves. The lack of statistical validity is particularly acute at the appellate court level – as even some of the major apologists for the current system have also admitted.
The survey sampling bias can also be politically manipulated by the commissions – as appears to be the case in one of this year’s (exceedingly rare) “do not retain” recommendations from the 20th Judicial District (Boulder County) commission “reviewing” District Court Judge Karolyn Moore.
As noted in a recent Daily Camera article, “Flaw in system led to ‘do not retain’ recommendation for Boulder County judge”
- an examination of the report shows that of the 297 attorneys to receive the confidential surveys, none was classified as a prosecutor. The report showed 91 criminal defense attorneys turned in surveys, along with 19 civil attorneys. Two respondents were classified as “other attorneys criminal.”
There is no other plausible explanation for such “sampling error” than deliberate manipulation of the surveys.
Other criticisms of the “survey methodology” have come from across the political spectrum; a recent Boulder Weekly article (“Bench Bias“) raises the specter of institutionalized “gender bias” in the review commissions (the “old-boy network” in action?)
A Durango Herald article (“When grading judges isn’t blind“) also alleged bias in the commission reviews.
Whether the bias(es) are of political, gender, racial, regional, or any other origin – the lack of transparency in the current system serves to cover up and perpetuate such problems.
Reform, Accountability, Transparency to DE-politicize Colorado Courts
Apologists for the current, non-transparent and unaccountable state-sponsored system support a continued cover-up of the existing politicization of Colorado’s judiciary. They are complicit in a fraud perpetuated on the citizens of Colorado.
In contrast, Clear The Bench Colorado‘s approach supports substantive evaluations of judicial performance based on documented reviews of their primary “work product” (the rated judge’s written opinions, which are posted as a reference for readers to review) – a vote for transparency and accountability.
Don’t be “tricked” by the incestuous Legal Establishment apologists – and the partisan political appointee “review” commissions they are complicit in foisting on Colorado voters.
There is a clear public need and demand for substantive, independent evaluations of judicial performance – but, just as clearly, the “official” COJPE “rubberstamp reviews” and consistent recommendations to reflexively retain incumbents (99% overall, and a staggering 100% “retain” recommendation record at the appellate court level) is NOT a credible solution.
Clear The Bench Colorado has shown the way towards a method of substantive, informative, well-researched and extensively documented evaluations of judicial performance - a model that could (and perhaps should) be emulated nationwide.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
Ultimately, though – it’s worth the effort.