Wednesday, 28 Oct 2020

Colorado ballot questions about judges: How to handle them

Grappling with how to sort through all the judges on your ballot? You’re not alone.

Colorado’s judicial-retention system leaves it to voters to decide, at regular intervals after state and local judges win appointment, whether to allow them to continue serving. The challenge is that most of the names that appear on the ballot — if not all — are likely unfamiliar to most voters.

Here are answers to questions that may help you sort through these ballot items ahead of the Nov. 3 election.

What help is there?

Colorado has an evaluation process that offers information and evaluations on judges. Nonpartisan commissions assess all the judges on the ballot and issue simple recommendations about each judge or Colorado Supreme Court justice who is up for retention, along with more information if you’re willing to study up.

The process isn’t perfect, with critics pointing out gaps in information that might make the evaluations less useful for some voters. (More on that later.)

It’s also rare for a judge to get booted from the bench, though in 2018, the two judges rejected were the only ones who had received ratings of “Does Not Meet Performance Standard” by the commissions. Two years earlier, voters in 2016 decided not to retain one of two judges who received a thumbs-down from the commissions.

Why are these judges on my ballot?

In most states, judges face election in some way. Unlike states where judges run directly for office — sometimes in partisan races that can get nasty — Colorado has an appointment system, with retention votes held periodically.

The governor fills court vacancies by appointing Supreme Court justices, Court of Appeals judges, and district court and county court judges. The only exception is the city and county of Denver, where the mayor appoints the Denver County Court’s judges. Before any appointment is made, nominating commissions made up of attorney and non-attorney members vet applicants and recommend at least two candidates. For Court of Appeals and Supreme Court vacancies, at least three candidates are required.

Colorado’s system goes back about five decades and is meant to keep judges from soliciting donations and running political campaigns. The role of voters in deciding retention questions, however, long has been a challenge.

“In 1988, the legislature was answering the question of how to give voters more information on judges who are up for retention, so they created commissions on judicial performance,” said Kent Wagner, executive director of the state’s Office of Judicial Performance Evaluation. “We’ve been doing that ever since, with 231 commissioners (serving on panels) who evaluate the state of Colorado’s judges — and really serve to just give voters some information about the performance of judges.”

How often do judges appear on the ballot?

Voters play an initial role two years after an appointment, deciding whether to retain — or fire — recent appointees to the state’s higher courts and to lower courts in the judicial district or county in which they live.

After that, judges stand for retention again every four years (for county judges), six years (for district judges) or eight years (for Court of Appeals judges). Supreme Court justices stand for retention every 10 years.

So how many are up for retention this year?

Every Colorado ballot has Supreme Court Justices Melissa Hart (appointed in 2017) and Carlos A. Samour Jr. (appointed in 2018), both of whom are up for retention for the first time; and two Court of Appeals judges, Ted C. Tow III and Craig R. Welling, both also facing their first retention votes.

The number of district and county judges varies depending on where you live. In Denver, which has its own district court (one of 22 statewide), voters will decide retention questions for six district judges and seven county judges. That means Denver voters are being asked to vote yes or no on 17 judges.

How do I sort through so many?

To take the easy route, simply go to the website for the Colorado Office of Judicial Performance Evaluation, select your county and look for any judges with a “Does Not Meet Performance Standard” rating. That’s rare — only two received that designation this year: Judge Tomee Crespin of the 17th Judicial District, which covers Delta, Gunnison, Hinsdale, Montrose, Ouray and San Miguel counties, and Sedgwick County Court Judge James Craig Dolezal.

Occasionally there is controversy over the ratings, including this year. Crespin has protested her negative rating, alleging in a Denver Post story in October that she was a victim of racial and professional bias.

If you’re interested in knowing more about the judges, both the state website and the Blue Book, a ballot information booklet mailed to every voter before each election, provide the full evaluations for each justice or judge on your ballot.

How do I read each evaluation?

The evaluations typically follow a four-paragraph format, though there is some variance in how information is presented. The first paragraph always specifies the performance commission’s recommendation and its vote split.

Other paragraphs provide information about the judge’s court, his or her background, and the results of surveys of lawyers and others who have experience with that judge. That information may include negative impressions of the judge or concerns raised in the past by the commission, along with how well the judge addressed them.

It’s not unusual to learn that one judge is considered “intelligent, fair, and prepared for oral argument,” for example, or that another faces perceptions of favoring the prosecution in criminal cases or taking too long to issue written decisions. If a judge has been placed on an improvement plan, you’ll learn that, too.

If the commission recommends against retention, the judge’s response is included at the end.

What should I do with this information?

It’s up to you, since voters weigh such information in different ways. Some might not value the kinds of criticisms leveled by attorneys, while others are more interested in trying to discern a judge’s bias or political leanings. (The state evaluation office also solicits feedback from anyone who has experience with a judge.)

Who performs these evaluations?

The judicial performance commission for Supreme Court justices and appellate judges has 11 members. Ten-member commissions evaluate district and county judges within each of 22 judicial districts. The panels are made up of six non-attorneys, with the rest of the spots filled by attorneys. Appointments are made by the governor, the state’s chief justice, the House speaker and the Senate president.

The commissions solicit input on the judges’ performance by sending surveys to attorneys and others who are familiar with the judges.

Are there shortcomings to the evaluations?

Maybe, depending on whom you ask. Some voters don’t find the evaluations helpful because of what’s not included, including judges’ disciplinary records. Colorado keeps complaints and any resulting discipline confidential, except in rare cases in which a judge is publicly censured or removed by the state Supreme Court.

The Judicial Integrity Project, led by attorney Chris Forsyth, has pushed for Colorado to include disciplinary records in the commissions’ evaluations, along with other information that includes criminal histories. The group also has advocated for the addition of a chance for public testimony to the commissions’ process.

Note: This guide is adapted and updated from a 2018 story.

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