Judicial Evaluations Released for 2018

El Paso County and 18th District judges fall short of ‘performance standards’

Colorado judges standing for retention this year have now received their grades.

On Tuesday, the Colorado Office for Judicial Performance Evaluation released the performance assessments of 123 trial judges and five appellate judges who are up for retention in this year’s general election. The evaluations, which were carried out by the State Commission on Judicial Performance and local commissions in each of Colorado’s 22 judicial districts, also issued recommendations as to whether each judge met performance standards, with two judges receiving negative recommendations.

The appellate judges, who all received positive recommendations, were Supreme Court Justice Richard Gabriel and appellate court judges John Dailey, Rebecca Rankin Freyre, Elizabeth Harris and David Richman.

The 2018 judicial evaluations are also the first to be doled out since the rules governing them underwent a significant change earlier this year. The evaluations are available on the OJPE’s website.

Each general election, Colorado voters decide whether or not to retain appointed judges standing for retention. After serving a two-year provisional term, county judges stand every four years, district judges stand every six years, Court of Appeals judges stand every eight years and Supreme Court justices stand every 10 years.

Judicial performance commissions assess the judges’ legal knowledge, communication skills, judicial temperament and administrative performance. The commissions consider feedback that attorneys and non-attorneys give on surveys as well as courtroom observations and the judge’s own writings. More than 133,000 people received surveys for judges this year.

“Commission members take this work seriously and strive to provide voters a fair and reliable performance assessment of every judge standing for retention in Colorado,” said OJPE executive director Kent Wagner, in a press release. “Citizens who review the commissions’ evaluations will be more informed when they answer the ballot question: Should this judge be retained? Citizens’ votes matter and will determine if a judge remains in office for another term.”

Previously, the commissions would render a recommendation to voters that they either “Retain” or “Do Not Retain” each judge. But due to a rule change mandated by the state legislature, that language now reads to say a judge “Meets Performance Standard” or “Does Not Meet Performance Standard.”

The rules, which were adopted Jan. 25, also changed the recommendation requirements so that in order for a commission to find that a judge doesn’t meet standards, it must agree to it in a majority vote.

This year, Judge Phillip Douglass of the 18th Judicial District in Arapahoe County and Judge Christopher Acker of the El Paso County Court were the two judges to receive “Does Not Meet Performance Standard” determinations from their respective judicial performance commissions.

In the last election, the commissions recommended that 106 out of the 108 judges standing for retention be retained, according to the 2016 Judicial Performance Evaluation Statistical Report. Of the two judges receiving Do Not Retain determinations, one was voted out in the election. Since 1990, only 12 judges have not been retained by Colorado voters, with four of those having received “Retain” recommendations.

“I think it’s a sign of a problem,” said Chris Forsyth, attorney and founder of the Judicial Integrity Project, which advocates for more transparency in the judicial branch. The judicial evaluation system skews too much toward retaining judges, he said. When the commissions assess judges, they must rely too heavily on the survey responses and don’t have access to disciplinary records or complaints filed against the judges, which are kept confidential. 

“It’s horribly troubling that the commissions claim they can give recommendations on judges when they don’t have disciplinary information on [them],” Forsyth said. “They don’t realize the lack of information that they’re working from.”

But the OJPE says the fact that negative recommendations are such a rarity among the commissions isn’t a sign that the system is flawed, but rather that the judiciary is overwhelmingly qualified.

“That we have so few judges with unfavorable evaluations is an indication of the strength and quality of our judiciary,” Wagner told Law Week in an email. “It is also an indication that the merit selection system provides qualified candidates for the Governor to appoint as Colorado judges.” He added that the judicial performance commissions provide feedback to judges and justices that help them maintain or improve their performance.

With each evaluation, the commissions provide a narrative summarizing the judge’s strengths and weaknesses. When a judge receives a negative recommendation, he or she may provide a response, which voters may also access.

The narrative for District Judge Phillip Douglass, who presides over a criminal docket in Arapahoe County, said he is “often too familiar” with litigants, “at times making inappropriate comments, blurring necessary boundaries, and failing to maintain proper decorum and the appearance of neutrality.”

In his rebuttal, Douglass claimed “a few privileged lawyers vowed to seek [his] removal based on perceived slights after [his] appointment,” and that their comments “swayed” the commission. He noted that nearly all non-attorneys surveyed responded that he be retained.

The 4th Judicial District Commission, which determined El Paso County Court Judge Christopher Acker did not meet standards, noted in his narrative that his attorneys rated him below average in every category except for diligence. The survey results included comments regarding his “apparent lack of neutrality, and that he can be condescending and rude to those who appear before him,” according to the commission.

Acker, who was first appointed in 2003, responded by saying he had not had one of his criminal decisions overturned in “well over a decade” and that “[f]ollowing the law does not equate to lacking compassion.” Citing the survey results, Acker said “almost 2/3 of those who appear in front of me … agree I meet judicial performance standards.” 

— Doug Chartier

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