Ask the Indy: Let’s talk about all those judges on your 2018 Colorado ballot

The question of how to find information about judges — including their party affiliation and others answered in this story in later updates — came from readers through our new Ask The Indy feature. If you have questions about the election, ask us here.

As you make your way through your long Colorado ballot, you’re forgiven if you’re stumped by the judge retention questions.

If you’re lucky, you’ve never found yourself in front of any of the handful of judges on your ballot before, but it’s still up to you whether to keep them on the bench. State judges in Colorado are appointed by politicians but are only allowed to stay on the bench if voters say so.

So where might you look to find information about whether these judges meet performance standards? It turns out there are entire commissions, called the Colorado Commissions on Judicial Performance, devoted to this very question.

These panels evaluate state judges and publish their findings in what’s called the “Blue Book,” which goes out to every active registered voter prior to an election. You should have gotten yours already, and if you kept it around you might consult it to see how those judges on your ballot fared in reviews by lawyers and the commission members.

If you already threw out your Blue Book, you can find performance evaluations for judges online here.

A voter who wants to dig even deeper can click back through the data itself. Here, for example, is the performance survey report for Colorado Supreme Court Justice Richard L. Gabriel, whom attorneys and district and appellate judges scored high.

Related: Ask The Indy: What’s the party affiliation of judges on Colorado’s 2018 ballot?

This year, there are 128 judges — from county judges to district court judges to Court of Appeals judges to the Supreme Court — appearing on ballots across Colorado, and they will differ depending on where you live. “Out of that group, two judges do not meet performance standard,” says Kent Wagner, director of the Colorado Office of Judicial Performance Evaluation. According to the 2018 evaluations, one of those judges is Christopher Edward Acker of El Paso County, and the other is Phillip L. Douglass of the 18th Judicial District. You can read the commission comments and the respective responses from the judges here and here.

In 2015, the Center for Public Integrity compiled the State Integrity Investigation, which analyzed multiple areas of state government in each state to assess a state’s risk for corruption. (Full disclosure, I worked on the project.) On Colorado’s evaluation system of judicial performance the report said:

“I believe the evaluations are comprehensive and complete with respect to the statute and rules governing the work of judicial performance commissions,” said Kent Wagner, director of the Office of Judicial Performance Evaluation. The Colorado Judicial Review Commission, which analyzes the performance of judges and evaluates their effectiveness, tends to give better grades to male judges, according to data reporting by The Durango Herald in 2014. In 2014, when the Office of Judicial Performance Evaluation evaluated Supreme Court Justice Brian Boatright, the commission “conducted a personal interview with Justice Boatright, read opinions that he authored, observed him in court, reviewed his self-evaluation, and reviewed survey responses from attorneys and judges regarding his performance. Among the survey questions was ‘how strongly do you recommend that Justice Boatright be retained or not retained in office?’ Of attorneys responding to this question, 66% recommended to retain, 15% not to retain, and 19% made no recommendation regarding retention. Of judges responding to this question, 97% recommended to retain, 1% not to retain, and 2% made no recommendation regarding retention.

Not everyone believes the narrative write-ups offer the best evaluations.

William Banta, a State Judicial Performance Commission member in 2005 and 2006 who spent seven years on the 18th Judicial District Performance Commission, wrote a 2010 op-ed in The Denver Post in which he said, “There has been a failure of real performance evaluation and a lack of analytical content in the write-ups for the voters.”

Too often, he wrote, “narratives have amounted to complimentary resumes instead of job performance evaluations. Some commentators and observers have denigrated the narratives as a ‘rubber stamp’ exercise for retaining judges.”

It turns out reading the narratives in the Blue Book, however, is not something every Colorado voter does.

Between 1998 and 2016, only three judges lost elections following a ‘do not retain’ recommendation, KUSA 9News found in an investigation two years ago.

In other words, even when the appointed volunteer commission members who review judges say one of them isn’t a keeper, voters tend to cast ballots to retain them anyway.

“On average, a judge deemed unfit to stay on the bench will win re-election in Colorado with 54 percent of the vote,” 9News reported.

Mike Maday, a mediator in Colorado Springs who sat on the state’s Judicial Performance Commission from 2014 to 2017, calls the evaluation process thorough. People who have had dealings with judges like lawyers, parties to court cases, jurors, court support staff and other judges, fill out evaluation forms, he says. Commissioners, he adds, look at those evaluations, personally observe the judges at work in the courtroom, read a sampling of their orders and opinions, and meet with each judge up for retention for an interview. “Any member of the public that appears in a courtroom or has some interactions with a judge can also go on their own and do an evaluation,” Maday says. “It’s a comprehensive, 360-type of evaluation. I think it’s a more thorough evaluation than almost anybody gets for any job.”

Some readers have asked how to find out how judges on their ballots have ruled on cases or if they are a member of a political party. The Supreme Court publishes its opinions here. The Court of Appeals publishes its opinions here. As for the lower trial courts, “They’re just not that publicly available,” says Wagner of the Colorado Office of Judicial Performance Evaluation, adding that judges in those courts are handling dispositions in courtrooms, and not making law like the higher courts. Finding out the party affiliation of a judge isn’t easy, either, because since 1966, partisanship hasn’t played a key role in the judicial selection process, Wagner says. Before that, he says, Colorado had partisan elections for judges. Now, the governor appoints state-level judges after a Supreme Court Nominating Commission or a judicial district nominating commission recommends three names.

If a voter really wants to find out if a judge is a member of a political party, the Secretary of State’s Office would respond to a Colorado Open Records Act request. Someone could also buy the state’s voter list for $50. “I expect that some judges are listed as confidential voters and their information is not available,” says Secretary of State spokeswoman Lynn Bartels, meaning they have asked for their information to be kept secret.

This year, voters in Colorado have a bonus on their ballot when it comes to judges.

If you’re confused about the way the questions asking you about these judges look on your ballot, you actually have an opportunity to vote to change that this year, too. The question, called Amendment W, asks voters if they want to change the state Constitution to allow a change in the way the section of the ballot on judicial retention appears.

Here’s an example of how the ballot section looks now versus one with the with the proposed changes:

Arguments for this measure are that voting “Yes” will help make the ballot more concise and user-friendly in the way it asks voters to retain judges. An argument against the change could be that voters might confuse judicial retention with a regular election and believe justices are actually running against each other rather than just asking to stay on the bench.

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