NCFM Adviser Charles Corry, Ph.D 2014 Review of Colorado Judges

October 17, 2014

By NCFM

2014 Review of Colorado Judges

By Charles E. Corry, Ph.D.

For a printable copy of the 2014 EJF evaluation of Colorado judges click here.

There is general agreement that selection processes for judges typically works quite well and usually outstanding candidates are picked. There are, at times, biases built into the selection process that somewhat undermine it, e.g., a governor who primarily picks prosecutors for the bench who lack experience with civil law and real world experience. But even then most attorneys selected to mount the bench are quite good.

But the step from a practicing attorney, who is a partisan advocate only defending one side of a case in an adversarial system, to becoming an impartial jurist weighing both sides of an issue against often obscure and poorly worded laws, the cause of justice, both federal and state Constitutions, or other overarching documents, is huge. As in any profession, not all attorneys are able to climb to the next rung successfully, i.e., the Peter Principle.

There are also problems when jurists are promoted to a higher-level court. In the current review of Colorado judges there are several examples where the jurist sat as a magistrate for a number of years but upon promotion to county or district judge attorneys find their performance quite lacking. And in one case a district judge was promoted to the Colorado Supreme Court and has apparently not done well at that elevated level.

Often the longer they sit on the bench judges develop what is known as Black Robe Disease. As they age judges also develop the same physical and mental problems common to all humanity. And, unfortunately, some become corrupt and criminal.

Worldwide the question of how to remove corrupt and incompetent judges from the bench frequently occurs. Unfortunately, I have no universal answer.

However, I have attempted to evaluate the issue of judicial retention in Colorado using a standard measure between judicial districts. A printable version of my evaluation of state judges standing for retention in 2014 is available here.

More information on the background of all Colorado jurists, e.g., when appointed, results of previous evaluations, case documentations, etc., is available here.

Also, independent evaluations are made by another group, Clear The Bench Colorado, that contains additional information on judicial decisions. Their evaluation of jurists standing for retention in 2014 is available here.

But what might, and I emphasize might, work in Colorado state courts may be of little use to you. It is hoped, however, that our efforts may encourage you to take on the problems with judges in your jurisdiction.

2014 evaluations of Colorado jurists

If you ask any honest attorney (there are a few) they will tell you our courts are dysfunctional. Too many laws, too many cases, too much cronyism, too many bad judges, too much gender bias, etc. However, by statute in Colorado there are periodic reviews of judges designed to weed out the bad ones.

Colorado has a statewide Office of Judicial Performance Evaluations for Supreme and Appeals Court Justices. District and county court judges are evaluated by judicial performance commissions established in each of the twenty-two Judicial Districts. These commissions make a determination of whether they feel judges in state courts should be retained or not retained at fixed intervals, in effect telling the public how commissioners think citizens should vote for each judge after an analysis of their performance.

To understand the process a review of how Colorado state courts are set up, what their functions are, and how often judges at each level are evaluated is needed.

Brief review of Colorado state courts and their functions

For the purpose of judicial evaluations judges in the following state courts are required to stand for retention at specified intervals in an unopposed election where the question on the ballot for each judge is “Shall Judge ____ of Court _____ be retained in office Yes___ No___”

County courts

County courts are part of the state court system and are of limited jurisdiction. They handle civil cases under $15,000, misdemeanors, traffic infractions, some felony complaints, protection orders, and small claims. County court decisions may be appealed to the district court.

Except for the 2nd, 10th, 19th, 20th, and 21st judicial districts, all encompass more than one county, and a county judge may serve in more than one county. Except in Denver County judges are appointed by the governor from three or four candidates put forward by a judicial nominating commission within the judicial district. Each new judge then stands unopposed for retention after two years and every four years thereafter so long as they remain a county judge.

District courts

District judges are the senior judges within a Colorado judicial district. A chief judge is selected from the district judges in a given judicial district by the Chief Justice of the Colorado Supreme Court.

As part of the state court system, district judges are appointed by the governor from three candidates put forward by a judicial nominating commission within the judicial district. They then stand unopposed for retention after two years and every six years thereafter so long as they remain on the bench.

District court is a court of general jurisdiction and hears civil cases in any amount, as well as domestic relations (divorces and child custody), criminal, juvenile, probate, water, and mental health cases. In addition, some judicial districts have specialized courts such as drug courts, mental health courts, water courts, and lately veteran courts. Except for water courts, specialized courts may be run by a magistrate, county, or district judge appointed by the chief judge.

District court decisions may be appealed to the Colorado Court of Appeals and in limited cases directly to the Colorado Supreme Court. Most important cases in Colorado are heard first by a district court judge.

A district court judge may hear cases in any court within the judicial district and may often serve as a visiting judge in a neighboring district if there is a conflict of interest as in the case of disgracedSeventh Judicial District Attorney Myrl Serra or the ongoing investigation of Third Judicial District Attorney Frank Ruybalid.

Within a judicial district magistrates are appointed by and serve at the pleasure of the chief judge.

Colorado Court of Appeals

Judges on the Court of Appeals are appointed by the governor from three candidates put forward by a judicial nominating commission. The appeals court consists of 22 judges who serve eight-year terms. The court sits in three-member divisions to decide cases. The Chief Judge is appointed by the Chief Justice of the Supreme Court. The chief judge assigns judges to the divisions and rotates their assignments.

The Colorado Court of Appeals is usually the first court of appeals for decisions from the district courts, Denver probate court, and Denver juvenile court. The Court of Appeals also reviews decisions of several state administrative agencies. Its determination of an appeal is final unless the Colorado Supreme Court agrees to review the matter, i.e., grant certiorari.

Colorado Supreme Court

The Supreme Court is composed of seven justices who serve ten-year terms. The Chief Justice is selected from the membership of the body and serves at the pleasure of a majority of the justices. The Chief Justice also serves as the executive head of the Colorado Judicial System and is the ex-officio chair of the Supreme Court Nominating Commission when the rare vacancy occurs. The Chief Justice appoints the Chief Judge of the Court of Appeals and the Chief Judge of each of the state’s 22 judicial districts and is vested with the authority to assign judges (active or retired) to perform judicial duties in any judicial district.

The Colorado Supreme Court is the court of last resort in Colorado’s state court system. Its decisions are binding on all other Colorado state courts. The court generally hears appeals from the Court of Appeals, although in some instances individuals can petition the Supreme Court directly regarding a lower court’s decision.

Judicial performance evaluations

Mechanics of the process

As each judge nears the end of their current term a judicial performance evaluation commission undertakes a performance review based on fairly standard criteria. These commissions were created by the Colorado legislature in 1988. According to statute, C.R.S. § 13-5.5-101 et seq., these criteria include at least the following: integrity; legal knowledge; communication skills; judicial temperament; administrative performance; and service to the legal profession and the public, although other issues may be brought forward.

The Chief Justice, the Governor, the President of the Senate, and the Speaker of the House appoint state and local commission members for each of the twenty-two judicial districts to four-year terms. Each commission is a ten-member body comprised of four attorneys and six non-attorneys.

These commissions consider responses to anonymous surveys sent to attorneys and non-attorneys who had been in the judges courtroom, unannounced courtroom visitations by commission members, a self-evaluation, a personal interview with the judge, and other information in reaching their recommendation for each judge.

If a judge is retained after their initial evaluation approximately two years after taking the bench, preliminary surveys of a judge’s performance are taken three years and one year before they stand for retention again, plus another survey the year in which they will go before voters and on which the commission will base its final recommendation. So long as they remain on the bench that process is repeated each time they stand for retention.

Judges whose term is expiring are placed on the ballot in even years. Typically there were about 80-100 judges statewide standing for retention. However, as the state’s population has grown so has the number of judges and in 2014 there are 147 standing for retention.

Supreme and Appeals court judge’s names are placed on the ballot statewide. Names of judges in judicial districts are placed on the ballots of the counties within that district.

Reality of the evaluations

In practice these judicial commissions very rarely reach any recommendation about a judge except“Retain.” Judicial performance evaluations are on the web from 1998 through 2014. In those sixteen years roughly 1,300 judges have been evaluated yet only eight (8) have been rated “Do Not Retain.” Of those eight Jill Mattoon in the Tenth Judicial District (Pueblo County), remains on the bench despite her negative rating in the 2010 evaluation and in the Fourth Judicial District Karla Hansen remains on the bench in spite of her negative rating in the 2012 performance evaluation.

Now in any business or enterprise one expects to find about 5-10% incompetence, drunkenness, criminal activity, moral turpitude, or mentally disturbed individuals, and all these types of behavior by Colorado judges have been documented. Thus, as a very rough estimate, between 1998 and 2014 these commissions should have found about 60-130 judges unfit to remain on the bench and issued a“Do Not Retain” recommendation. That is a far cry from the eight actually so rated and generally ignored by voters.

The evidence is clear that unless a judge has committed rape, murder, or is obviously demented, the judicial performance commissions are going to find they should be retained on the bench.

Despite the fact that the information posted for the public is basically a whitewash these commissions do gather a great deal of information about individual judges. I was thus looking for a way to use what data are available for a more uniform, quantitative, and easily understood evaluation when a former judge reminded me of an October 13, 2002, Rocky Mountain News editorial (available here). In their conclusion of that editorial they made the following recommendation:

“…If less than 75 percent of attorneys surveyed thought a judge should be retained, or more than 15 percent thought he or she should not be, voters might consider rejecting the judge no matter what the commissions recommend. (At the very least they should treat the scores as a red flag and review the judges’ entire record.)”

I found the Rocky Mountain News recommendation quite interesting and first decided to try it out in comparison with the judicial performance evaluations of judges standing for retention in the November 2012 election.

The basic assumption is that there are no better judges of a judge than the attorneys who regularly appear before them. The Judicial Performance Evaluation in each district provides the percentages of those attorneys expressing an opinion to retain or not to retain. That is usually a smaller group than the total number of attorneys requested to submit an evaluation, as some were undecided or didn’t have enough information to make a recommendation on a particular judge. Thus, percentages voting Retain or Do Not Retain may or may not total 100%.

Prior to the 2012 November election I developed a table that provides a comparison of judges based on the percent of attorneys who voted to retain and not to retain (a printable version of the 2012 EJF evaluation is available here).

That approach proved quite useful and provided a standard measure of judicial performance between all Colorado judicial districts as attorneys across the state have roughly the same education and pass the same bar examination. So I have repeated the process for 2014 and those results are available here in a printable format (PDF).

I found it more informative to use slightly different metrics than the Rocky Mountain News suggested in 2002 for the evaluation of the 147 judges standing for retention in 2014. For an EJF evaluation and recommendation to “Retain” I suggest that in comparing ratings with all other judges, retention is only merited if >85% of the attorneys who submitted an evaluation expressed an opinion to retain. I consider the Rocky Mountain News suggestion of >15% of attorneys recommending “Do Not Retain” to remain a valid criteria and submit that if just 75% to 85% of the attorneys expressed an opinion to retain that the judge’s performance is marginal at best. However, if less than 75% of attorneys voted to retain a judge then I submit, and have rated them “Do Not Retain” in my evaluation.

To validate the proposed criteria I have reviewed and summarized the evaluations of all sitting judges in Colorado, and many retired ones as well, for the period 1998-2014. Since the majority of judges during this period received a recommendation to retain from 90% or more of the attorneys, and many judges received 100% of the attorney’s votes to retain, a lower cutoff for retention of 75% fits the available data quite well. Certainly any judge who receives less than 75% of support from attorneys does not merit a recommendation to retain as their performance is clearly substandard compared to their peers and as evaluated by members of the bar.

For judges who attorneys gave a less than a 75% “Retain” rating, and by the standards originally proposed by the Rocky Mountain News, I recommend that 44 judges Not Be Retained (30%) in the 2014 election.

There are certainly biases in this method and Twentieth Judicial District Attorney Stan Garnett points out that at least in the case of Boulder County Judge Karolyn Moore the surveys were only sent to defense attorneys, who apparently have a much more negative attitude about her than prosecutors due to her apparent bias towards the prosecution and harsh sentencing. Given that her only prior experience was as a deputy district attorney that is probably very true. As noted at the beginning, not all attorneys are able to step up from the adversarial role of a prosecutor, or defense attorney, into the essential role of an impartial jurist. Karolyn Moore apparently could not as only 45% of attorneys voted to retain while 40% voted not to retain Therefore the EJF agrees with the Judicial Performance Commission that she should Not Be Retained on the bench.

The ratings of some other jurists by attorneys as shown in the 2014 EJF evaluation suggests dangerous incompetence by a number of Colorado jurists.

Some of the worst examples are:

Attorneys in the Seventh Judicial District gave Montrose County Judge Julie Hoffman a rating of 50% retain and 50% not to retain. Judge Ben Morris wasn’t rated much better.
In the Tenth Judicial District County only a pathetic 11% of attorneys voted to retainCounty Judge Valerie Villaneua-Haynes while a full 74% said she should not be retained, the worst performance rating the EJF has seen.
In Alamosa County Judge Kimberly Wood only received a 52% vote to retain while 24% stated she should not be retained.
In Yuma County Judge Sara Wagers-Johnson only garnered support from 50% of the attorneys while 35% stated do not retain.
In Grand County Judge Ben McClelland only received 56% vote to retain and 32% wanted him out.
Adams County Judge Dianna Roybal got a retain vote of only 44% while 40% of attorneys want her out.
In the Eighteenth Judicial District Judge Elizabeth Volz garnered support from only 57% of attorneys while 22% want her out. In Arapahoe County Judge Cheryl Rowles-Stokes was supported by a mere 33% of attorneys while 51% voted to be rid of her. In Lincoln County just 23% voted to retain Judge Truston Fisher while a full 61% want him gone.
In the Twentieth Judicial District only 45% of attorneys supported County Judge Karolyn Moore while 40% want her out.

With such appraisals the EJF is clearly justified in stating that jurists with such low ratings by the male and female attorneys, both prosecutors and defense, criminal and civil, who appear before themshould not be retained on the bench in this state. And the current percentage of jurists who should be removed is so high partly because of accumulated deadwood on the bench due to the failure of the judicial performance review commissions to make honest recommendations during the course of its existence. But voters need to step up and vote these incompetents out. It is hoped that the EJF performance evaluations will serve as a voter guide in that respect as the official Blue Book is quite inadequate.

The performance of another forty-six Colorado jurists (31%) standing for retention in 2014 have been rated marginal on the basis that only 75% to 85% of attorneys voted to retain them. And many of those had 15% or more of attorneys voting not to retain which, if the Rocky Mountain News criteria were strictly followed, would merit a Do Not Retain rating. Obviously these jurists need to greatly improve their performance or do the citizens a favor and step down.

Conversely, attorneys indicate that we have some truly outstanding jurists on the bench in Colorado. Some 30 jurists (20%) were rated Retain by 90% or better of the attorneys who voted.

Some outstanding examples are:

100% of attorneys voted to retain Eleventh Judicial District Judge David Thorson.
In the Fifteenth Judicial District Cheyenne County Judge Gerald Keefe and Prowers County Judge Larry Stutler both received 100% support from attorneys.
Seventeenth District Judge John Popovich was in the 100% league as well.

Altogether, fifty-five (37%) of the one-hundred-forty-seven judges standing for retention were given a vote to Retain by greater than 85% of the attorneys who took the time and effort to rate them. These outstanding ratings by members of the bar reinforces the fairness of the criteria originally suggested by the Rocky Mountain News editors.

Where a number of judges are standing for retention in the same judicial district it also useful to make comparisons between how attorneys rated the different judges in that district. That is particularly apparent in the 18th Judicial District, the largest in the state, where the performance ratings ranged from 95% to a low of 23% voting to retain. Other large judicial districts exhibit similar spreads in attorney votes.

The question of gender bias

Of the 147 judges standing for retention 50 (34%) are female.

Consider the four judges where judicial performance commissions recommended they Not Be Retained and the one case of No Opinion (or no confidence). Of these, three (75%) are female. All three of the female jurists were appointed by Gov. Hickenlooper in 2011 and their experience prior to being appointed was as prosecutors. Again, it is likely they were unable to make the transition from adversarial prosecutors to impartial jurists.

From the 44 judges attorney votes suggest should not be retained, 20 (46%) are female. Of those 12 are standing for retention for the first time, having been appointed by Gov. Hickenlooper in 2011-2012. From the judicial performance reviews all twelve appear to be well qualified as attorneys.

Of those twelve the prior experience of seven was primarily as prosecutors.

A recent article Denver Post columnist Vincent Carroll described the vengeful abuse of her position by Arapahoe County Judge Cheryl Rowles-Stokes. Conversely, the judicial performance commissioncited “…her esteemed career in the Arapahoe County District Attorney’s Office of which she served as the Chief Deputy District Attorney in the Economic Crimes Unit for eleven years.” It seems obvious Judge Rowles-Stokes has been unable to make the transition to impartial jurist and should Not Be Retained.

I note also that DA Stan Garnett did not make a comparison with the other female county judge, Norma Sierra, standing for retention in his district. Her prior experience for 10 years as a magistrate would have given him plenty of exposure to her judicial qualifications. He simply defends his former employee, Karolyn Moore, whom defense attorneys clearly indicate has been unable to make the transition to impartial jurist and she has justly been rated Do Not Retain.

Based on these two examples I assume that for all seven former female prosecutors the attorney’s votes reliably reflect an inability to adapt to the role of impartial jurist rather than gender bias.

I have no basis to determine any possible bias in the remaining five female jurists standing for retention for the first time. But there is no evidence in the available data to suggest gender bias in the attorney votes, who are, after all, both male and female as well.

The other eight female judges we don’t recommend for retention have served on the bench for various periods from 1995 through 2008. Many of them, like Judge Norma Sierra, had previous experience as magistrates, and all seem well qualified as attorneys but just don’t appear to be suitable jurists in other attorney’s opinion.

The available data thus do not support gender bias regarding judicial retention.

Citizen’s role

None of the above is of any value if citizens fail to follow through and vote the bums out.

In previous elections voters have apparently not paid much attention to the performance reviews. And, of those who vote on judges, about two thirds vote to retain regardless, and one third vote to remove irrespective of how the performance commission rated the judge. But that does not excuse the dismal performance of the judicial review commissions.

It is the hope of the Equal Justice Foundation that citizens will take the time so essential to the improvement of our courts to print out and review the more quantitative, and I think fair, evaluationavailable here as a guide for how they vote on judges in the November 2014 election.

Court watching

For those citizens who would like to have an individual impact on a judge’s performance, or who don’t live in Colorado, we have found a citizen sitting in the courtroom and taking notes is probably the most effective thing an individual can do to improve our courts. Court watching has an immediate, and usually beneficial impact on judicial behavior, and helps reduce the outrages of child protective services (CPS) as well.

Feedback from many sources tell us that the EJF judicial performance and court watching forms have been widely useful in monitoring courts and CPS all across America.

In Colorado completed forms that provide a fair and honest evaluation of a jurist are linked anonymously to the individual in our chapter on Colorado Judges —Citizen’s Review. It is suggested that groups in other states and countries may want to post their own tabulation of judges to link citizen evaluations to.

But we cannot make our courts functional once again without your help and support! Ballots are now in your hands!

Charles E. Corry, Ph.D., F.G.S.A.

President, Equal Justice Foundation

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