2024: Vote NO on Amendment H. It makes it harder to discipline a judge and provides for more secrecy.
2024 Judges on the ballot: Read our Blog post.
2024 Judges on the ballot: Read our Blog post.
Judging judges: Superficial reviews mask dysfunctional system
Key information is withheld from the judicial performance commissions and voters
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You don't know much about the judges on the ballot for a reason. Colorado's commissions on judicial performance are charged with providing evaluations to voters regarding judges at election time. But Colorado judge evaluations are based on an intentionally limited amount of information.
Basic information that should be considered when judges are evaluated is withheld from performance commissions. Imagine an employment review where complaints against the employee cannot be used in evaluating the employee. Ridiculous, right? Well, that’s essentially the scenario when judges are up for retention in Colorado. If the performance commissions were a business, the Attorney General would probably take them to court for deceptive advertising. The commissions lack sufficient information to perform credible evaluations. The commissions claim they have a standard by which they evaluate a judge when there is no such standard. If the performance commissions attempted to testify as experts in court, their opinions most likely would not be allowed because their opinions lack the reliability necessary to be admissible in court. Therefore, it's ironic that the judicial branch touts the recommendations of the performance commissions. When judges are evaluated in Colorado, the evaluation process is decidedly weighted in favor of the judges under review. More disturbingly, the state performance commission has fought against doing more thorough evaluations. |
Every Colorado Commission on Judicial Performance lacks crucial information about the judges the commission review. Please sign our petition to support improving the system.
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The following evidence is hidden from voters, and the performance commissions, about judges:
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Discipline information
Unlike the vast majority of states, Colorado has confidential judicial disciplinary proceedings. Judges can be, and are, disciplined in private. In other words, the discipline is kept from public view. Any of the judges on the ballot could have a discipline history, or currently be in discipline proceedings, and you wouldn’t know it. The performance commissions making the recommendations about the judges don’t know whether the judges have been disciplined or how many complaints have been filed against the judges they're evaluating.
Financial conflicts
No one checks the financial disclosures filed by Colorado judges. It's important that a judge not have a financial interest in a case. It's important that judges not use their judicial position to help themselves, their family or friends. Performance commissions should be able to evaluate whether a judge had a conflict of interest on a case. Yet the commissions are unable to determine whether a judge had a conflict of interest because financial disclosures in Colorado are limited and no one investigates whether the disclosures are accurate.
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Criminal histories
Think judges don’t have criminal histories? Think again. Judges get alcohol-related traffic offenses and have other contacts with law enforcement. And although judges are required by the Code of Judicial Conduct to be in compliance with the law, the judicial performance commissions do not receive criminal histories for any of the judges they’re evaluating. If a judge is contacted by law enforcement, or receives a criminal conviction, Colorado’s system does its best to bury the information.
Survey information
An incredibly limited number of surveys are sent out by the performance commissions. The only way to obtain a survey to comment about a judge, that can be completed confidentially, is to be sent a survey. And even if you receive a confidential survey, the information in the survey form you complete will not be provided as a whole to the performance commissions. Colorado uses an out-of-state company that takes the information from all surveys and reduces the information to aggregate tallies that minimize any individual instances of conduct.
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Public testimony
Colorado’s performance commissions are not required to hold public hearings. Other states with performance commissions require public hearings. Not Colorado. The only people who the performance commissions are required to listen to in person are the judge under review, the district attorney and the public defender. So if you witnessed a judge behaving badly, you don’t have the right to appear before a performance commission. You can complete a survey that won't be given in its entirety to the performance commission.
Historical information
Colorado's Open Records Act does not apply to judges. The state commission on judicial performance destroys all records regarding previous evaluations except for the ultimate report that was written. The lack of historical data about any particular judge results in the inability of any performance commission to notice a pattern of conduct or repeated disturbing behavior by a judge that should result in an unfavorable recommendation. The hiding and destruction of pertinent evidence is not consistent with judicial integrity.
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The judiciary and the public would benefit from more thorough, credible evaluations.
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With so much information being hidden, what do the performance commissions use to do their performance evaluations? Colorado's commissions on judicial performance rely on written opinions provided by the judge under review, a report regarding the judge under review written by an out-of-state private firm that is based on a compilation of limited surveys that are completed about the judge, and some courtroom observation. If the district attorney or public defender want to talk to a performance commission, they can. But the commissions do not receive any of the above-referenced information about judges such as discipline information, financial information, historical information or public testimony. The commissions have no investigative power.
Increasing the information the commissions receive would increase the credibility of the ultimate evaluation. With the limited information that the performance commissions currently receive, the retention recommendations of the performance commissions lack credibility. It is inappropriate for a governmental agency, particularly a judicial branch agency, to claim it does evaluations the public can rely on when those evaluations are based on such limited information. It is disturbing that the state judicial performance commission has lobbied against the performance commissions receiving more information. Judge retention elections are somewhat of a sham in Colorado. We need to change the system. |
The public is deceived because there is no performance standard.
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The performance commissions used to recommend that voters "retain" or "not retain" judges. In 2017, however, the legislature changed the recommendation the commissions make to "meets performance standard" or "does not meet performance standard." At the same time, the legislature told the state performance commission to adopt a specific standard by which the judges were judged.
The state commission refused to adopt a specific standard. The refusal resulted in inconsistent recommendations by district commissions. In 2018, Phillip Douglass, a judge in the 18th Judicial District, received a performance score of 83% yet received a “does not meet performance standard” recommendation. Thirty-three judges had lower scores and only one of them also had an unfavorable recommendation. Compare that with Cindy Dang, an Adams County Court judge, who received a performance score of 59% yet received a “meets performance standard” recommendation. A 59% score on a test would be a failing grade, yet the commission determined that Dang passed muster. Dang was retained. Douglass was not retained. If there was a standard which the performance commissions used, there would not have been inconsistent results. Colorado judge evaluations are not credible. Every Colorado Commission on Judicial Performance should not only have a standard, it should have the same standard. The Judicial Integrity Project brought the inconsistencies, and the fact that the state commission refused to adopt a clear standard, to the attention of the legislature. The state commission and its executive director lobbied the legislature to remove the language requiring the state commission to adopt a clear standard. The legislature did as the state commission and its executive director requested and removed the requirement for a clear standard. In 2020, the inconsistent results continued. The Denver Post reported that a district court judge in the 17th Judicial District, Tommee Crespin, alleged she was targeted in a racially biased manner by the performance commission. Her scores were higher than other judges who received favorable recommendations. If there was actually a performance standard that was followed, Crespin would not have received an unfavorable recommendation from the performance commission. Only 6 states have judicial performance commissions that make recommendations to voters. The recommendations in Utah, Alaska and New Mexico to voters are to retain or not retain a judge. Nevertheless, Utah still has a scoring system to determine the recommendation a judge should receive. Arizona, Colorado and Missouri have performance commissions that tell voters judges meet or don't meet performance standards, but only Arizona sets a specific, objective standard by which the commissions judge a judge. So when you read or hear that a Colorado judicial performance commission declares that a judge "meets" or "does not meet performance standard," please understand that there is no performance standard. None of the performance commissions in Colorado have a standard by which to judge a judge. Judges with very low performance scores are receiving favorable recommendations while a judge or two with higher scores receive an unfavorable recommendation. Do you trust an evaluation process that claims there is a performance standard when there is no such standard? |
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Colorado's state performance commission: A wolf in sheep's clothing.
If you'd like to download and print or save a pdf of this WANTED poster, please click here.
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Colorado has 23 judicial performance commissions in the judicial branch. There is a judicial performance commission in each of our 22 judicial districts and a state judicial performance commission that reviews all appellate court judges.
The state commission also adopts the rules for the district commissions to follow. Those rules make it difficult for commissions to issue unfavorable recommendations about judges. The state commission has lobbied the legislature against background checks on judges, against checking the financial disclosures of judges and against requiring public hearings on judges. The commission charged with informing you about judges has actively opposed receiving more information about judges. If the state commission was interested in doing credible evaluations of judges, why would it fight against receiving more information about judges? The commission's actions fail to benefit the judiciary or the public. The state commission is a hand-picked commission with some members selected by the Colorado Supreme Court chief justice. It’s a commission filled with conflicts of interest. The commission is not representational of the entire state. Most certainly, the state performance commission does not have your best interests at heart. The state commission is heavily influenced by an executive director, and that executive director also influences the district commissions. The executive director's office is in the Supreme Court building in downtown Denver. The state commission has never made an unfavorable recommendation regarding the appellate judges the commission reviews. The state performance commission has kept judicial performance in Colorado from becoming a credible evaluation process. |
How has Colorado's flawed judicial performance system survived?
A district performance commission will occasionally go out of its way, buck the system, and provide a judge with an unfavorable recommendation. And this is how the whole system survives. Proponents of the system claim a judge or two received an unfavorable recommendation and that means the entire system is working.
What they don't understand is that the system regularly sacrifices a lower court 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. Judge retention elections aren't based on sufficient, objective information. Lower court judges are sometimes targeted to make it look like the system works, when the system doesn't work.
In 2018, Phillip Douglass (see above) claimed he was targeted in his response to the judicial performance commissions' recommendation that he did not meet performance standards. In 2020, a district court judge in the 17th Judicial District, Tommee Crespin, claimed she was targeted in a racially biased manner. The Denver Post reported that she received an unfavorable recommendation from a performance commission although her scores were higher than others who received favorable recommendations.
When the system is criticized, well-intentioned district commissioners naturally speak out to defend their actions noting that they recommended against retention of a judge. What good 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 the judge. District commissioners often don’t understand that most of the information they’re receiving came from the judge under review. District commissioners often don't think about the information they're not receiving. And as shown by The Denver Post report regarding Crespin, some district commissioners have ulterior motives for targeting a judge.
People often don’t understand that there are 23 separate performance commissions. They often don’t understand that the state commission is limiting the information the 22 district commissions receive. They don't understand that the state commission takes credit for another commission’s work when it defends the system by arguing that a district commission gave a judge an unfavorable recommendation.
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 commissions to keep the whole troubled system afloat. Or the state commission allows a district commission to target a judge or two to keep the system going. Either way, as long as a judge here or there receives an unfavorable recommendation, proponents of the system claim the system works. Colorado needs a credible, consistent method for making recommendations to voters about judges.
What they don't understand is that the system regularly sacrifices a lower court 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. Judge retention elections aren't based on sufficient, objective information. Lower court judges are sometimes targeted to make it look like the system works, when the system doesn't work.
In 2018, Phillip Douglass (see above) claimed he was targeted in his response to the judicial performance commissions' recommendation that he did not meet performance standards. In 2020, a district court judge in the 17th Judicial District, Tommee Crespin, claimed she was targeted in a racially biased manner. The Denver Post reported that she received an unfavorable recommendation from a performance commission although her scores were higher than others who received favorable recommendations.
When the system is criticized, well-intentioned district commissioners naturally speak out to defend their actions noting that they recommended against retention of a judge. What good 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 the judge. District commissioners often don’t understand that most of the information they’re receiving came from the judge under review. District commissioners often don't think about the information they're not receiving. And as shown by The Denver Post report regarding Crespin, some district commissioners have ulterior motives for targeting a judge.
People often don’t understand that there are 23 separate performance commissions. They often don’t understand that the state commission is limiting the information the 22 district commissions receive. They don't understand that the state commission takes credit for another commission’s work when it defends the system by arguing that a district commission gave a judge an unfavorable recommendation.
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 commissions to keep the whole troubled system afloat. Or the state commission allows a district commission to target a judge or two to keep the system going. Either way, as long as a judge here or there receives an unfavorable recommendation, proponents of the system claim the system works. Colorado needs a credible, consistent method for making recommendations to voters about judges.
Colorado's judicial performance system undermines the entire judicial branch.
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The judicial branch relies on the trust and confidence of the people to support its judgments. Without the trust and confidence of the people, the judicial branch will fail. The judicial branch is a crucial part of a democracy. We do not want the judicial branch to fail.
Colorado Commissions on Judicial Performance are located in the judicial branch. The ridiculously feeble and deceptive system of judicial performance evaluation reflects poorly on Colorado's judicial branch. If judges are to be trusted, why does the judicial branch have to hide so much? Judicial performance evaluation should be a method by which the judicial branch promotes the trust and confidence of the people. The actions of Colorado's State Commission on Judicial Performance have not promoted the trust or confidence of the people. The commission has proven that the judicial branch should not be providing advice to voters. It is unseemly. If the performance commissions are to work effectively, the conflicts of interest must be removed. We need to build a better system. The performance commissions and the public should receive the discipline information regarding judges and background checks on judges. The commissions should hold public hearings. The more information the commissions receive, the more credible the ultimate evaluation. And we could obviously benefit from a restructured state commission. Please sign our petition to increase transparency, enhance accountability and remove the conflicts of interest in Colorado's judicial system. |