Evaluations 2016

Evaluations of Judicial Performance – 2016

Colorado does not elect judges to office in contested elections (they are appointed by the governor from a list of 3 nominees selected by a judicial nominating commission), but they are required to receive voter approval to retain office (on a 4, 6, 8, or 10 year schedule based on the level of the court). The Colorado judges seeking retention in 2016 (appearing on the November 2014 general election ballot with a “Yes” or “No” vote option) are:

  • 1 Supreme Court Justice (Hood)
  • 10 Court of Appeals judges (Ashby, Berger, Bernard, Dunn, Furman, Hawthorne, Jones, Navarro, Roman, Terry)
  • 58 District & 36 County judges (94 total trial court judges)

Unlike the “official” government-sponsored commission “reviews” Clear The Bench Colorado does not insult your intelligence by telling you how to vote – but the following scorecards provide a substantive evaluations of the “work product” of the judges seeking your vote, presented in a scorecard format, to better inform your decision.

Colorado Supreme Court:

The following judicial performance review scorecard summarizes some of the Colorado Supreme Court cases over the current term of office for the justice seeking retention which have had the greatest impact on the largest number of Colorado Citizens (primarily those with broad public policy implications), and how the incumbent justice appearing on the November 2016 ballot voted in each case. Clear The Bench Colorado’s evaluation methodology – presented at a National Conference on Evaluating Appellate Judges  – has been acclaimed as the best in the nation for evaluating appellate court judgesGiven that it is impossible to present an analysis of every case on which a justice voted, CTBC presents a representative sample of cases addressing important constitutional questions.  Our methodology closely tracks that supposedly used by the state Commission on Judicial Performance (reviewing cases as the benchmark for assessing judicial performance). The difference is that we actually publicize the decisions and votes in each case… For information on each case, click the link (case name) to link to the ruling’s full text; see also links to related commentary for additional information. (Information on judges from other levels of court are below the Supreme Court matrix)



(Justice Hood took office January 2014)


Summary of Judicial Performance (rated as votes for, votes against, and mixed-result) Best possible rating would be 10-0-0 Voted 4-5-1 upholding the Constitution and state law

16SA75, Colorado Department of Transportation v. Amerco Real Estate Company (Administrative Law and Procedure—Delegation of Authority—Condemnation Proceedings) (September 2016) Colorado Supreme Court holds Colorado Department of Transportation unlawfully delegated condemnation authority

Concurred in Judgment (limiting government power to delegate authority to seize property via condemnation or eminent domain

16SA153, In the Matter of the Title, Ballot Title and Submission Clause for 2015–2016 #132 & #133 (Single-Subject Rule for ballot initiatives) (July 2016) Colorado Supreme Court declares ballot initiatives to reform redistricting violate single-subject rule

See also: Colorado Supreme Court strikes reapportionment reform, retains legislative mapmaking power for themselves

Voted Yes (denying ballot access for constitutional measure to reform legislative districting process

14SC176, Warne v. Hall (Civil Procedure—Pleading) (June 2016) Colorado Supreme Court overturns 50 years of state legal precedent to increase requirements to plead civil cases (increasing pre-trial burden on civil litigants)

Voted No (Dissent argued for preserving current pleading standards under state law)

15SC667, City of Longmont v. Colo. Oil and Gas Ass’n (Preemption) (May 2016) Colorado Supreme Court rules local ban on fracking conflicts with and preempted by state law

15SC668, City of Fort Collins v. Colo. Oil and Gas Ass’n (Moratoria — Preemption) (May 2016) Colorado Supreme Court rules local moratoria on fracking conflicts with and preempted by state law

Voted Yes (unanimous ruling) upholding state law over local fracking bans/moratoria

15SA22, Dwyer v. State (Constitutional Interpretation—Amendment 23—Public School Finance Act of 1994—Negative Factor) (September 2015) Colorado Supreme Court holds that the “negative factor” does not violate Amendment 23

Voted No (arguing that “negative factor” violates Amendmt 23)

13SC233, Taxpayers for Public Education v. Douglas County School District (Standing—Aiding Religious Schools—Colorado Constitution Article IX, Section 7) (June 2015) Colorado Supreme Court declares school choice voucher program unconstitutional

See also: Colorado Supreme Court reverses Court of Appeals, strikes down Douglas County School Choice Scholarship Program

Voted Yes (striking down school choice voucher program as unconstitutional under Colorado’s so-called “Blaine Amendment”)

14SA235, Figueroa v. Speers (Election Law – Candidate Elected But Unqualified to Serve) (March 2015) Colorado Supreme Court declares candidate ineligible for ballot “winner” but office immediately vacant

See also: Colorado Supreme Court declares disqualified Adams 12 School Board candidate “legally elected” but seat nonetheless vacant

Voted Yes (allowing disqualified candidate to be elected but not take office)

12SC783, Gessler v. Colorado Common Cause (Issue Committees) (June 2014) Colorado Supreme Court upholds $200 threshold for issue committees under article XXVIII of the Colorado Constitution (“article XXVIII”) and Fair Campaign Practices Act (FCPA)

See also: Federal Judge rebukes Colorado Supreme Court in challenge to state campaign finance law

Concurs in Part, Dissents in Part

14SA135, IN RE: the TITLE, BALLOT TITLE AND SUBMISSION CLAUSE FOR 2013–2014 #129 (“Constitutional Definition of ‘Fee’ ”) (June 2014) Ballot initiative opponents sought to deny petitioners right to submit a proposal to clarify the constitutional definition of “fee” to voters (alleging violation of single-subject rule). Court majority (5-2 vote) upheld single-subject determination and right of petitioners to submit ballot question.

See also: When is a “fee” not a tax? When the Mullarkey Court says so… 

Voted Yes (affirming petitioner right to put proposed amendment to a vote of the people)

13SA306, Hanlen v. Gessler (Election Law—Rulemaking Authority—Emergency Election Rules—School District Director Elections) (April 2014) Whether the Colorado Secretary of State can issue a rule that permits designated election officials to determine, after ballots have been printed, that an individual appearing on the ballot is “not qualified for office,” and directs that votes cast for that individual are “invalid and must not be counted.”

See also: Colorado Supreme Court strikes rule blocking disqualified candidate

Voted Yes (allowing candidate to be declared “winner” of election in which she was unable to run)
Other Views
State Commission on Judicial Performance “evaluations” (published in the “Blue Book”) Hood’s “evaluation”

(Some viewers may wonder why we include the recommendations and rubber-stamp “reviews” of the State Commission on Judicial Performance, since their conclusions often vary from what our analysis indicates. Quite simply, we welcome the comparison – look at their “evaluations”, then compare them with our analysis. We think that discerning readers will agree: the “Blue Book” narratives lack substance and provide little or no useful information on which to base an informed decision).

Colorado Court of Appeals:

The following matrix lists the Colorado Court of Appeals judges appearing on the November ballot, with a representative sample of consequential cases decided by each judge.    Click the link (case name) for  the ruling’s full text; links to related commentary for additional information are included where relevant. (Click the judge’s name for a link to their “official” government judicial performance evaluation)
CTBC’s summary rating for each Colorado Court of Appeals judge appears below their picture.
Ratings Code: X=strike against rule of law; O=upheld rule of law; M=Mixed





 In 12CA2312 & 12CA2316 RYAN RANCH COMMUNITY v. KELLEY et al, concurred in ruling that an HOA could not “recover” assessments from property not part of the HOA by contract.  In 14CA2178 ROCKY MOUNTAIN GUN OWNERS et al v. HICKENLOOPER, concurred in ruling holding plaintiffs had stated a claim challenging constitutionality of gun control legislation enacted by statute in 2013.  In 15CA0582 TABOR Foundation v. Regional Transportation District, concurred that RTD need not obtain voter approval before collecting sales tax on items not previously taxed due to legislation removing statutory exemptions – ruling that a tax policy change wasn’t a change in tax policy.



concurred in ruling that the CBE did not levy a TABOR-prohibited tax when it imposed a bridge safety surcharge, but instead imposed a permissible fee despite imposing “fee” on non-users of bridges paid.

See also: Life in the FASTER lane – updates on the Colorado Car Tax

concurred in ruling that Colorado’s public accommodations law trumps freedom of speech, free exercise of religion claims by cakeshop owner. (Ruling violates 1st Amdmt and freedom of association)

concurred in ruling that plaintiffs lacked standing to challenge $81 million tax subsidy to Aurora under Colorado Regional Tourism Act (RTA).Ruling improperly allows government to pick “winners & losers” in dispensing public funds



Ruling exempted entirety of Colorado judicial branch (including executive/regulatory functions such as attorney regulation) from Colorado Open Records Act (CORA) – essentially placing judiciary outside the law.
Specifically, “we follow the holding of our supreme court that the scope of the statutory vehicle—CORA—upon which Judicial Watch relies does not include the judiciary, and, thus, does not include regulation counsel.”
“We further conclude that, because Office of State Court Administrator held that the judiciary is not a “state agency” as that term is used in the definition of “public records” in section 24–72–202(6)(a)(I), the judiciary is also not part of the “state” as that term is used in that statute.”
In 11CA1856 & 11CA1857 TAXPAYERS FOR PUBLIC EDUCATION v. DOUGLAS COUNTY SCHOOL DISTRICT (Feb 2013) dissented from ruling upholding constitutionality of the Douglas County School Choice program.See also:
Colorado Court of Appeals reverses lower court, upholds constitutionality of Douglas County School Choice program
In 14CA1816 NORTON v. ROCKY MOUNTAIN PLANNED PARENTHOOD, concurred in ruling that prohibition on use of public funds “either directly or indirectly” to pay for abortions did not apply if funds were not expressly “for the purpose of” paying for abortions (ignoring that funds are fungible).


O – O – M

 In 12CA1116 & 12CA1117 ROCKY MOUNTAIN ENVIRONMENT AND LABOR COALITION v. COLORADO WATER QUALITY CONTROL COMMISSION, ruled that the commission complied with public notice and review requirements in conditionally approving a water project.  Upheld procedural due process. In 12CA1866 IDAHO PACIFIC LUMBER CO. v. CELESTIAL LAND COMPANY LTD, concurred in ruling that indebtedness owed to an independent contractor does not constitute “earnings” for the purpose of garnishment. Upholds procedural due process. In 12CA2613 RENO v. MARKS, dissented from ruling reversing trial court denying attorney fees for agency refusal to comply with CORA request, arguing that trial courts have discretion to determine “prevailing” party relevant to award of attorney fees.



In 11CA1005 COLORADO MEDICAL SOCIETY v. HICKENLOOPER, concurs that Colorado law permits certified registered nurse anesthetists (CRNAs) to administer anesthesia without supervision by a physician (ruling reduces burdensome licensing and regulatory requirements)  In 12CA1703 PIONEER NATURAL RESOURCES v. COLORADO DEPARTMENT OF REVENUE, ruled that the DOR could not negate sales tax exemption in statute by administrative action.  Upheld primacy of statute over unauthorized regulatory determination.  In 15CA0603 ESQUIBEL v. BOARD OF EDUCATION CENTENNIAL SCHOOL DISTRICT R-1, ruled that school district director seat was properly declared “vacant” once the director was “found guilty of a felony” within the meaning of the director vacancy statute.



In 09CA1230 STUDENTS FOR CONCEALED CARRY ON CAMPUS LLC v. REGENTS OF UNIVERSITY OF COLORADO, voted to overturn the CU Gun Ban (upholding Colorado state statute for concealed carry vs. University of Colorado)See also: Colorado Supreme Court upholds Colorado Court of Appeals rejection of CU Gun Ban

In 10CA2291 COLORADO ETHICS WATCH v. CLEAR THE BENCH COLORADO, ruled in favor of Colorado Ethics Watch that judges are “candidates for election” in applying campaign finance rules (despite judicial retention similarity to recall elections and phrasing of vote as yes/no ballot question).

 In 15CA1066 JEFFERSON COUNTY EDUCATION ASSOCIATION v. JEFFCO SCHOOL DISTRICT R-1, concurred in ruling that teacher’s request for sick leave is not part of the teacher’s personnel file and thus subject to CORA disclosure.

See also: Jeffco teacher sick leave records not protected



Complaint alleged misuse of public funds (by law, “no public funds shall be used… directly or indirectly” to pay for abortions); dismissed for lack of standing under pretext that funds spent by state (CDPHE) were “entirely federal funds” rather than state money
In 11CA1856 & 11CA1857 TAXPAYERS FOR PUBLIC EDUCATION v. DOUGLAS COUNTY SCHOOL DISTRICT ruled to uphold the constitutionality of the Douglas County School Choice program.See also:
Colorado Court of Appeals reverses lower court, upholds constitutionality of Douglas County School Choice program
 In 14CA1733 INDEPENDENT BANK v. PANDY, concurred in ruling that statute of limitations does not bar action to enforce prior properly rendered judgment. Upholds due process and prevents “running out the clock” on valid claims.



In 13CA0995 WAINSCOTT v. CENTURA HEALTH, ruled that “substantial compliance” with notice requirements for hospital lien to recover costs of providing medical services is sufficient under the law.Mixed impact because although “substantial compliance” in this case achieves purpose of act, potential for abuses of notice are increased. In 13CA0648 GASTEAZORO v. CATHOLIC HEALTH INITIATIVES COLORADO, concurred in ruling that the trial court acted within its discretion issuing jury instructions including nurses in “exercise of judgment that results in an unsuccessful outcome does not, by itself, mean that a physician or nurse was negligent.”

 In 15CA1066 JEFFERSON COUNTY EDUCATION ASSOCIATION v. JEFFCO SCHOOL DISTRICT R-1, concurred in ruling that teacher’s request for sick leave is not part of the teacher’s personnel file and thus subject to CORA disclosure.

See also: Jeffco teacher sick leave records not protected



In 11CA0892 CITY OF COLORADO SPRINGS v. COLORADO ETHICS WATCH, ruled in favor of Colorado Ethics Watch against city motion to have campaign finance complaint reviewed by Administrative Law Judge (ALJ). In 11CA1041 GRAY v. UNIVERSITY OF COLORADO HOSPITAL AUTHORITY, ruled that the University of Colorado Hospital Authority is immune from liability even for willful and wanton actions resulting in death under Colorado’s Government Immunity Act (GIA), § 24-10-101  In 12CA1628 COLORADO MINING ASSOCIATION v. URBINA, ruled to dismiss complaint of rulemaking procedural violations (failure to provide notice required by law) as moot due to after-the-fact passage of legislation adopting the regulations, allowing government agencies to violate the law and due process without repercussion.



In 06CA0733 Lobato v. State of Colorado, concurredin ruling to dismiss claim to force higher state spending on education as a non-justiciable political question (properly role of the legislature, not courts).See also: Colorado Supreme Court Usurps Legislature’s Role and Authority (again!), claims power to set ‘proper’ school funding amounts In 09CA0132 COLORADO MINING ASSOCIATION LLC LLC LLC v. HUBER, concurred in ruling to strike a severance tax increase as a violation of Colorado Constitution,Art. X Section 20 (TABOR)See also: Colorado Supreme Court prepares additional assault on taxpayer rights

In 14CA1816 NORTON v. ROCKY MOUNTAIN PLANNED PARENTHOOD, ruled that prohibition on use of public funds “either directly or indirectly” to pay for abortions did not apply if funds were not expressly “for the purpose of” paying for abortions (ignoring that funds are fungible).

For those interested in reviewing the full listing of Colorado Court of Appeals rulings, the FindLaw website (with searchable database of court rulings) is a valuable resource.

District/County Judges:

Since District/County judges rule on a much larger number of cases, many (if not most) of which do not result in published opinions – and as there are a great deal more of them appearing on the ballot – the methodology employed by Clear The Bench Colorado in reviewing judicial performance at this level relies primarily upon inputs from concerned citizens and knowledgeable parties (including attorneys, court-watchers, and sources in law enforcement) and lists specific cases only by exception. Our Know Your Judge: Citizen Input on District/County Judges 2016 page lists comments on each judge organized by judicial district. Anyone wishing to comment on any of the judges on this year’s ballot are welcome to submit comments and responsible, documented articles of reasonable length (please, no rants, slams, or diatribes) to our Know Your Judge: Citizen Input page 2016, or our Sound Off! page. Comments on any of the judicial performance evaluations are welcome, below.

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