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|October 23-29, 2008
To retain or not to retain?
by Pamela White
It’s a part of the ballot that many voters leave blank. Others, feeling obligated to vote one way or another, blindly fill in all “yes” or all “no” squares with no information to help them make an informed choice. Is this what democracy looks like?
When it comes to deciding whether or not to retain Colorado’s judges, some voters simply opt out. County records show that, although roughly 160,000 votes were cast in the last presidential election in 2004, only about 100,000 citizens cast votes to retrain or not retain judges. That’s more than one third of voters in our county who didn’t feel they were adequately informed about — or who lacked interest in — judges who were up for retention.
“The ballot is long, and there is voter fall-off, especially during presidential election years like this year, where there is a lot of emphasis and publicity on high-ticket items like the presidential race and the senatorial races,” says Jane Howell, executive director of the Commissions for Judicial Performance. “Typically in a presidential year the voter fall-off is a little higher than in a non-presidential election year.”
The Commissions on Judicial Performance were created in 1988 by the Colorado General Assembly to provide voters with fair evaluations of trial and appellate judges and justices seeking retention in general elections. The results of the evaluations also provide judges with information that can be used to improve their professional skills as judicial officers. Commission members, a mix of attorneys and non-attorneys, are appointed by the Chief Justice, the governor, the president of the Senate and the Speaker of the House. Each commission is a 10-member body comprised of four attorneys and six non-attorneys. Members evaluate judges on the following criteria: integrity; knowledge and understanding of substantive, procedural and evidentiary law; communication skills; preparation; attentiveness and control over judicial proceedings; sentencing practices; docket management and prompt case disposition; administrative skills; punctuality; effectiveness in working with participants in the judicial process; and service to the legal profession and the public.
The evaluation process is comprehensive and includes in-court observation of the judges’ performances; evaluations written by attorneys, fellow judges, victims’ advocates, and others who’ve been in the respective judges’ courtrooms; self-evaluations; and a review of statistics, such as sentencing practices. Each judge then receives a recommendation of “retain,” “do not retain,” or “no opinion,” from the commission. The evaluations and the recommendations are then made public so that voters can make informed decisions.
“It is important because in Colorado we have merit selection and retention of judges, so we don’t have partisan election of judges,” Howell says. “We really do want the best judiciary that we can have.”
This year, there are 103 judges on state ballots, and all but one received positive recommendations from the commissions. The Hon. Judy L. Archuleta, a Jefferson County judge, is the only judge who received a “do not retain” recommendation.
Howell says that having only one out of 103 judge receive a negative recommendation is not a sign that the evaluation system is lenient; rather she says the evaluation process often results in judges who would otherwise face a negative recommendation opting to leave the bench.
“Some judges actually go through the process and know they are going to get a do-not-retain recommendation, and so they decide to retire,” she says.
This year, 116 judges were eligible to stand for retention; only 103 chose to do so.
“I’m not saying that all of those judges got bad recommendations and went through the process and decided not to stand, but some did,” she says. “So I can tell you the process does work, sometimes from the back end.”
In many states, judges run for office like any other candidate. But partisan election of judges not only politicizes the judiciary, but also results in the election of judges whose egos and political ambitions might exceed their skills and knowledge. Howell views Colorado’s system as being superior.
“We have merit selection of judges, so we have the best, most qualified people in those offices,” she says. “And then we still have public accountability. It’s still the people who decide whether they get to keep their jobs or not.”
This year, Boulder County voters are being asked whether to retain 14 judges, two from the Colorado Supreme Court, six who serve on the Court of Appeals and six who serve in the 20th Judicial District, either as District Court judges or Boulder County judges. All have been recommended for retention.
Detailed information from their evaluations, including their perceived strengths and weaknesses and their statewide ranking when compared with other judges, is available on the Commissions for Judicial Performance’s website at www.cojudicialperformance.com.
Says Howell: “It’s important for the public to have information about the judges about whether to retain or not retain, because it’s the integrity of our entire Colorado judiciary that’s at stake.”
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