Colorado Commissions on Judicial Performance

1. ColoradoCommissions on Judicial Performance Jane B. Howell Executive Director Office of Judicial Performance Evaluation

2. Historical Background 1966 Constitutional Amendment • abolished partisan elections of judges and established a new merit selection system for the nomination, appointment, and retention of judges • Aims to strike a balance between an independent judiciary while maintaining public accountability

3. Authority 1988 Statute (13-5.5-101 et seq.) • General Assembly created Commissions on Judicial Performance to complement the merit selection process • From 1966 to 1990, judges were on the ballot for retention, but voters did not have information on their performance

4. Authority Rules Governing the Commissions on Judicial Performance • Promulgated by the State Commission • Approved by the Supreme Court

5. Goals • Provide voters with fair,responsibleand constructive evaluations of trial and appellate judges and justices seeking retention AND • Provide judges and justices with information to help improve their professional skills as judicial officers

6. CommissionInformation • One commission in each judicial district (22) • Evaluates district and county judges • One state commission • Evaluates Supreme Court justices and Court of Appeals judges • Promulgates Rules

7. CommissionMembership • 10 NONPARTISAN members • 6 non-attorneys • 4 attorneys • 4 appointing authorities • Governor (1 attorney and 2 non-attorneys) • Chief Justice (1 attorney and 2 non-attorneys) • Senate Pres. (1 attorney and 1 non-attorney) • Speaker (1 attorney and 1 non-attorney)

8. Commissioner Terms • Four-year terms • Maximum of 2 terms • If filling a vacancy, commissioner is eligible to serve balance of term plus two full terms • Terms expire on Nov. 30 of odd years • Appointing authority must appoint within 45 days of vacancy or State Commission makes the appointment

9. Officers • Commissions shall elect a chair and vice-chair • One of whom is an attorney • One of whom is a non-attorney • Two year terms expiring on Nov. 30 of each odd numbered year

10. Training • All state and district commissioners must attend a training session every 2 years • A commissioner who fails to meet the training requirement shall recuse from the consideration and vote on any matter involving the evaluation of a justice/judge • Unless excused by a 2/3 vote

11. Role of Chief Justice and Chief Judge • The commission meets with the Chief Justice/Judge prior to beginning any evaluations for an overview of the court • The meeting shall not concern the evaluation of any justice/judge’s performance, unless the commission had previously made a recommendation for improvement for a justice/judge being evaluated that year

12. Evaluation ProcessCommissioners must: All Evaluation Criteria is of equal weight Commissioners must: • Consider judge’s self-evaluation • Observe 3 judges in the courtroom • Review decisions/opinions • Review judge statistics • Consider survey results • interveiw

13. Evaluation ProcessCommissioners may: Commissioners may: • Conduct public hearings • Consider oral or written information from any person who has appeared before the judge during the previous year

14. Self-Evaluations • Requires the justice or judge to conduct an appraisal of his or her performance • Provides information to the commission that may be used during the interview • Information is confidential and cannot be quoted in the narrative

15. Courtroom Observation Each commissioner shall make unannounced visits to the courtroom to observe at least 3 justices/judges • To become knowledgeable of the responsibilities and duties of justices and judges • To observe demeanor, control over judicial proceedings, timeliness, communication skills, preparation, docket management

16. Review of Decisions • District commissioners shall review 3 decisions of county and district judges for: • Thoroughness of findings • Clarity of expression • Logical reasoning • Application of law to the facts

17. Review of Decisions • State commission reviews 10* opinions of appellate judges for: • Adherence to the record • Clarity of expression • Logical reasoning • Application of the law to the facts presented * • 5 opinions, civil and criminal, including one separate concurrence or dissent • 5 other opinions from list of all opinions authored

18. TrialJudge Statistics • District commissions review information on each trial judge about: • caseload and case types • Open case reports • Case aging reports • # of jury trials and jury trial days • # of court trials and court trial days • Sentence modifications (18-1.3-406 C.R.S.)

19. Appellate Judge Statistics • State commission reviews information on each appellate judge about: • Number of cases assigned to the justice/judge • Length of time justice/judge has had case

20. Surveys Trial Judge • Appellate judges survey district judges • District judges survey county judges • Attorneys who have appeared before the judge • Prosecutors • Public defenders • Private attorneys

21. Surveys • Non-Attorneys who have appeared before the judge • Litigants • Jurors • Probation Officers • Crime victims • GALs • CASA volunteers • Peace officers

22. Surveys Appellate Judge • Trial judges • Attorneys including prosecutors, public defenders, and private attorneys • Other appellate judges and staff attorneys

23. Surveys Critera on which judges are evaluated: • Integrity • Control over judicial proceedings • Attentiveness • Punctuality • Legal Ability • Knowledge and understanding of substantive, procedural, and evidentiary law

24. Surveys • Communication skills • Prompt case disposition • Preparation • Docket management • Administrative skills • Effectiveness in working with participants in the judicial process • Service to the legal profession and the public

25. Surveys Also survey on whether the judge: • Is courteous • Treats all parties who appear in the courtroom equally • Provides clear written and oral decisions • Displays appropriate demeanor

26. Surveys • Names and addresses of respondents are gathered quarterly from two statewide databases • Court • CDAC (Colorado District Attorney’s Council) • Surveys are mailed quarterly

27. Surveys • Survey results (reports) include statistical analysis, verbatim comments from survey respondents (confidential), and ranking each judge with other judges in the same judicial district and statewide

28. Surveys Retention judges: • Survey reports delivered to commissioners by May 1 of retention year Non-retention judges: • Survey reports delivered in off year (interim reports)

29. Interview Questions typically derive from: • Judge’s self-evaluation • Courtroom observation • Survey data and comments • Review of opinions/decisions • Any other written or oral information

30. Interview • Docket • Case Management (or lack thereof) • Pro Se issues • Sentencing practices • Trial management skills • Family law issues • Information from public hearings

31. Recommendations Based on: • Interview • Courtroom observations • Survey data • Self-evaluation • Review of decisions • Any other written or oral information

32. Recommendations Recommendation of: • Retain • Do Not Retain • No Opinion • Only given if the commission is equally divided • Not counted as for or against an individual

33. Recommendations A commission shall strongly consider a recommendation of “retain” for any justice or judge who receives an average of at least 3.0 on a 4.0 scale for the questionnaire responses • unless the other evaluation information indicates a significant performance problem, such as poor judicial temperament

34. Recommendations A commission shall strongly consider a recommendation of “do notretain” for any justice or judge who receives less than an average of 3.0 on a 4.0 scale unless:

35. Recommendations • Docket or caseload cannot be appropriately managed due to nature or high number of cases (provisional judge) • Commission believes that with additional experience on the bench and a commitment to improve judicial skills, the judge should be given more time • Judge must agree to be placed on an improvement plan

36. Narrative • May include the following sources of information: • Courtroom observation • Review of opinions/decisions • Interviews • Information from public hearings • Survey data • Summary of survey comments

37. Narrative 5 short paragraphs – 500 words • Retention recommendation • Biographical data • Undergraduate and law schools • Educational degrees • Professional association activities • Recent awards and honors • Volunteer or community work

38. Narrative • Information specific to work • And any other previous substantial legal or public employment • Description of performance • Including any areas of exemplary or distinguishing performance • And any areas of significantly poor performance • Additional information • Including description of groups of respondents surveyed • Percentage of responses received recommending retention and non-retention

39. Narrative Any commission issuing a “DoNot Retain” recommendation shall, at the justice or judge’s request, include a response of not more than 100 words

40. Narrative Timeline • The commission must deliver the draft narrative to the judge within 10 days of the interview • Judge has 10 days to respond in writing requesting an additional interview (commission may also request additional interview) • Additional interview must be held within 10 days of the request • Commission must deliver revised draft, if one, to the judge within 10 days of the additional interview

41. Improvement Plans • Commission identifies area(s) of improvement in writing • Commission notifies Jane Howell • Jane Howell notifies the judicial educator at the State Court Administrator’s Office • Judicial Educator, chief judge, and judge develop an improvement plan • Commission and Jane Howell are no longer involved • Contents of the plan are confidential • Fact that there is an improvement plan may be recited in the narrative.

42. Complaints Any commissioner or judge may file a written complaint with the state commission for any alleged violation of the rules or statutes governing judicial performance commissions

43. Complaints The state commission shall: • provide a copy to the chair of the district commission, who shall provide a written response • make an independent review and provide its determination to the district commission along with remedial instructions

44. Complaints • The state commission may not reverse any retention recommendation • but may cause a rebuttal to be published with the district commission’s recommendation

45. Complaints • or direct a district commission to revise a narrative within 10 days • Should the district commission fail to satisfactorily comply, the state commission may, in its discretion, rewrite the narrative

46. Confidentiality • Survey comments • Commission members and staff shall maintain confidentiality with regard to evaluation materials and communications • All interviews or deliberations directly concerning the retention of any judge • All oral and written documentation received by the commission • Content of Improvement Plans

47. After the narratives are made public The commission’s designated spokesperson may publicly discuss: • Recommendation • Narrative Survey data • Information from public hearings • Recommendation for an improvement plan (not the contents)

48. Publication • The day after judges must declare intent to stand for retention with the Secretary of State, narratives/recommendations/survey stats are posted at www.cojudicialperformance.com and www.courts.state.co.us • Linked to www.coloradobluebook.com, www.leg.state.co.com and www.cobar.org/ • Issue 250+ press releases • Published in the Legislative Council’s Blue Book