Evaluations 2018

Evaluations of Judicial Performance – 2018

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 2018 (appearing on the November 2018 general election ballot with a “Yes” or “No” vote option) are:

• 1 Supreme Court Justice (Gabriel)
• 4 Court of Appeals judges (Dailey, Freyre, Harris, Richman)
• 52 District & 71 County judges (123 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 judges. Given 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)

KEY COLORADO SUPREME COURT CASES  September 2015- September 2018 (Justice Gabriel took office 1 September 2015)	JUSTICE GABRIEL
Summary of Judicial Performance (rated as votes for, votes against, and mixed-result) Best possible rating would be 10-0-0	Scored 5-5 upholding the Constitution and state law
18SA56, People v. Pappan – Searches and Seizures – Emergencies and Exigent Circumstances – Plain View Doctrine (September 2018) Majority ruled warrantless search justified by “exigent circumstances” (violating 4th Amdmt)	Voted No (Dissent argued exigent circumstances insufficient to set aside 4th Amendment protections)
16SC377, Colorado Union of Taxpayers Found. v City of Aspen  – Taxation – Constitutional Law (May 2018) Ruled that Aspen bag “fee” is not a tax because it “does not raise revenue for the general expense of government” See also: Colorado Supreme Court rules against TABOR advocates in Aspen Bag Fee Suit	Voted Yes (contrary to the express language of the Colorado Constitution,  Taxpayer’s Bill of Rights restricting tax increases without voter approval)
16SC639, TABOR Foundation v. Regional Transportation District  – Taxpayer Bill of Rights – Incidental and De Minimis Tax Revenue Increases (April 2018) Ruled that a .6% rate increase resulting in net revenue gain of $3 Million was “incidental” and “de minimus” and thus does not count as a tax policy change resulting in revenue gain. See also: Colorado judges continue to erode taxpayer rights	Voted Yes (contrary to the express language of the Colorado Constitution, Taxpayer’s Bill of Rights restricting tax rate increases without express voter approval)
17SC149, Campaign Integrity Watchdog v. Alliance for a Safe and Independent Woodmen Hills – Election Law -Constitutional Law—Political Speech (January 2018) Ruling upheld Colorado Constitution campaign disclosure requirements against attempt to create “lawyer’s loophole” exemption pushed by Secretary of State, Attorney General	Voted Yes (upholding Colorado Constitution and state disclosure requirements against attempt to carve out “lawyer’s loophole”)
15SC589, Denver School District v. Denver Classroom Teachers Association – Innovation Schools Act – Innovation Plans – Public Schools (April 2017) Ruling held that Teachers’ Union cannot veto school board decision to create “innovation plan” for new schools	Voted No (Dissent)  (argued that majority vote of teachers required to adopt innovation plan approval for new schools)
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 SupremeCourt 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 (argued “negative factor” violates Amendment 23)
Other Views
State Commission on Judicial Performance “evaluations” (published in the “Blue Book”)	Gabriel’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

APPEALS COURT JUDGES ON THE 2018 BALLOT

KEY COLORADO COURT OF APPEALS CASES

JUDGE DAILEY O-O-	In 14CA2178 ROCKY MOUNTAIN GUN OWNERS et al v. HICKENLOOPER,  wrote ruling holding plaintiffs had stated a claim challenging constitutionality of gun control legislation enacted by statute in 2013.	In 16CA1358 Varsity Tutors LLC v. Industrial Claim Appeals Office, concurred in ruling that online tutor brokerage is not required to pay unemployment taxes for independent contractors.
JUDGE FREYRE O-O-	15CA1371 Public Service Co. of Colorado v. City of Boulder et al concurred in ruling that challenge to Boulder establishing city-owned utility was not time-barred prior to final action	16CA0267 Campaign Integrity Watchdog, LLC v. Alliance for a Safe and Independent Woodmen Hills and Sarah Brittain Jack, ruled that  violators could not escape enforcement of judgment by running statute of limitations
JUDGE HARRIS X-X-X “received low marks for making decisions based on the law and facts and also for reaching issues that need not be decided”	no significant published opinions found	no significant published opinions found	no significant published opinions found
JUDGE RICHMAN M – O – X	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 15CA0603 ESQUIBEL v. BOARD OF EDUCATION CENTENNIAL SCHOOL DISTRICT R-1, concurred 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 17CA1502 Rocky Mountain Gun Owners v. Hickenlooper, ruled that 2013 legislation banning standard capacity magazines is a “reasonable exercise of the police power” (thus constitutional) contra clear text stating that the right to bear arms shall not “be called in question”

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 2018 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 2018, or our Sound Off! page. Comments on any of the judicial performance evaluations are welcome, below.