Every two years, Colorado voters are asked to vote to retain state judges. In 2022, 135 judges are up for retention on the Colorado Court of Appeals (eight judges), county courts (61 judges) and district courts (66 judges).
Judicial retention may not be the most glamorous thing on the ballot, but in Colorado, voters play an essential role in shaping the state bench. Colorado’s system for voting on judge retention is complicated, but the details matter when voters are looking to make an informed decision.
Under the Hood
Colorado’s system for selecting and retaining state judges is commission based.
Each of the state’s 22 judicial districts and the Colorado Supreme Court has a panel of seven attorney and non-attorney volunteers, of whom no more than four can be from the same political party. The panel reviews applications and interviews candidates for state court openings. The judicial nominating commissions then recommend finalists to the Colorado governor who appoints a judge for an initial two-year term.
At the end of the two-year term, voters are asked whether or not they should retain the judge for another term. If voters decide to retain a judge, they are approved for another term, the length of which varies by the court (county court is four years, district court is six years, the Colorado Court of Appeals is eight years and the Colorado Supreme Court is 10 years). Judges are once again subject to retention at the end of the term and can serve as long as they’re reelected or until they hit the mandatory state judge retirement age of 72.
Colorado’s current system for judge retention elections was created in 1966. According to the Brennan Center for Justice, Colorado is one of 14 states that uses a variation of the Missouri Plan, which appoints a judge based on their merits but then asks voters whether or not to retain the judge after a set term.
William Raftery, a senior analyst and researcher with the National Center for State Courts, explained that Colorado’s current system for appointing and retaining judges came out of a national movement that hoped to remove judges from politics and focus on qualifications.
Raftery has researched the many different systems states use to select and retain judges including how systems have changed over time. He estimates that there are around 22 different appointment and retention systems.
The wave of judicial reforms Colorado was part of in 1966 was designed to move judges out of machine politics and partisan elections, Raftery said, while also ensuring the most qualified judges were selected.
“Depending on where you were, you stuck a particular party label on somebody and that person, the whole slate [of a political party], was getting elected, regardless of what qualities or qualifications they had,” Raftery explained. Under this system, Raftery said voters are ideally asked to assess a judge based on their record, not their politics.
Judging a Judge
While a judge running on their record may sound great on paper, chances are that unless they’re an attorney or otherwise know a lot about local judges, most voters aren’t familiar with a particular judge’s record or performance.
Colorado looked to change that in 1988 when it introduced statewide Judicial Performance Evaluation Commissions, which look into a judge’s performance ahead of their retention election and publish some results of the investigation to the public along with their opinion of whether or not the judge met their performance standards.
In Colorado, each judicial district has its own JPE commission made of 10 volunteers of six non-attorneys and four attorneys. The state has an 11-member panel of five attorneys and six non-attorneys to evaluate the Colorado Supreme Court and Colorado Court of Appeals. Commissioners are appointed by leaders from both parties of the Colorado General Assembly as well as the Colorado Supreme Court chief justice and the governor.
JPEs are based on a handful of criteria. The information collected by JPEs includes a judge’s own self-evaluation, surveys by attorneys and non-attorneys who worked with the judge and data about how quickly a judge issued decisions in cases and how many rulings were overturned on appeal. Each commission also performs an anonymous audit of a judge to see how they run their courtroom.
Not all information available to the commission is available to the public. Instead, voters are able to look at an aggregated score from surveyed attorneys and non-attorneys who ranked a judge on a scale of one to four based on categories like the clarity of their writing, their demeanor in court, case management, fairness and knowledge of the law.
Raftery explained that Colorado’s JPE system is pretty similar to other states in that it limits its assessment to a judge’s professional performance but doesn’t’ consider things like ethics complaints against a judge or their behavior outside the courtroom.
“Discipline and judicial performance are different in the following sense,” said Raftery. “You can be an exemplary judge in a lot of respects, and then do something you should be disciplined for. You can be a mediocre judge and never have an ethics issue. Mediocrity is not unethical. So they’re coming at two different questions.” Raftery noted ethical issues can impact other criteria in a judge’s professional performance, but the two don’t overlap completely.
What Voters Know (And Don’t Know)
Out of the 135 judges up for retention this year, JPE commissions in each of the 22 judicial districts recommended retaining all of them. The public can see some of the results of each investigation, but other information is not accessible to the public. So what should voters know when considering retention?
“[Those] courts are where we preserve the Constitution and apply the Constitution. So for the public to have confidence in the rule of law, we have to have courts that are worthy of their confidence,” said Russell Carparelli, a former Colorado Court of Appeals judge and co-founder of the Our Courts civic education program at CJI. “One of the best ways to do that is to have the public [be] knowledgeable about the courts, and frankly, to have them involved in the courts.”
Carparelli emphasized that a lot of work goes into recommendations made by the JPE commissions. “The best way that we can ensure that our judges are fair and impartial, is by having these performance commissions,” said Carparelli. “What [voters] should keep in mind is that a lot of information has been collected on these judges. It’s been reviewed by citizens of both parties and no party.”
If a judge has a low score, Carparelli advises voters to look at the full JPE report. He said that voters should consider what parts of a judge’s performance matter the most to them (fairness, case management, etc.) and take those into consideration when deciding whether or not to vote for retention.
Carparelli also said out that while surveys to evaluate a judge’s performance are sent to most people who interact with the judge, people who had a negative experience with a judge are more likely to provide feedback than those who had a neutral or positive experience.
Chris Forsyth, a Colorado attorney and founder of the Judicial Integrity Project is more skeptical of the JPE findings and recommendations. Forsyth founded JIP after observing what he considered systematic problems with Colorado’s judiciary. He said the goal of JIP is to increase transparency and accountability and remove conflicts of interest in state courts.
Forsyth has a number of critiques about the JPEs and Colorado’s retention system and emphasized voters should understand that they might not have the full picture of a judge from the JPE report.
In Colorado, the judicial branch isn’t required to publicly disclose information about judges who are under investigation by the state’s Judicial Discipline Commission. And while the Colorado General Assembly plans to introduce bills next year to create formal criteria for when a discipline case against a judge should be made public, Forsyth emphasized the JPEs and voters in 2022 don’t know if a judge has been disciplined, or on what grounds.
Forsyth also said that since the survey system to collect feedback about a judge’s performance is done by contacting someone directly, people may not feel confident in the confidentiality of a survey and could be hesitant to provide criticism of a judge. He also pointed out that while anyone can submit a performance evaluation online, the questionnaire asks for identifying information. Forsyth believes neither route for responding to surveys is a truly confidential process.
“There’s just not enough information for these performance commissions to make a decision, let alone the voters to make a decision,” said Forsyth. “We understand that judges are an essential part of American democracy, but people lose trust in a system that is troubled and we want to bolster the trust in the judiciary … it would be better for the judicial system and promote confidence in this system if things were much more transparent than they are now.”