Judicial performance review: a balance between judicial independence and public accountability.

• Author: Dubofsky, Jean E.
• Position: Rethinking Judicial Selection: A Critical Appraisal of Appointive Selection for State Court Judges

Judicial performance review in Colorado is the most sophisticated method in the nation for providing information to voters in judicial retention elections. (1) Colorado has had a commission-based appointive system for judges--with the judges subject to periodic non-contested retention elections--for forty years. In the mid-1980s, some in Colorado thought that retention elections did not provide voters with enough information to hold judges accountable, and they sought to return the selection of judges to contested partisan elections. The performance review concept was a response to the call for more public accountability. But public accountability in Colorado--advanced by a commission without partisan balance--may encroach on judicial independence. (2)

This Article focuses on the role of judicial performance commissions that provide information to voters before non-contested retention elections for appointed judges. A performance commission might serve as a substitute for retention elections, But given the political climate in Colorado, where judges are subject to frequent public criticism, it is highly unlikely that retention elections, enshrined in the state constitution, will be replaced with periodic commission review. Questions that this Article will address include the following:

1. Who appoints the members of a judicial performance commission and should partisan balance be required?

2. What should commission members' qualifications be?

3. What are the appropriate criteria for evaluation of a judge's performance?

4. How does a commission obtain information about a judge?

5. What is done with the information obtained by the commission?

6. Should performance review include retired judges or magistrates who serve as-needed?

7. What kind of staffing and training is available for commissioners and who pays for it?

8. Does a performance review get rid of bad judges and assist voters in retaining good judges?

9. Should judges be subject to term limits?

10. To what degree does any performance evaluation limit judicial independence?

1. AN OVERVIEW OF THE COMMISSION-BASED JUDICIAL SELECTION PROCESS IN COLORADO

   Before discussing the role of judicial performance commissions, this Article describes the initial selection process for most judges in Colorado. (3) In 1966, Colorado voters adopted an amendment to the state constitution that provides an appointive process to select state court judges, replacing their direct election. (4) The appointive process (called a "modified Missouri Plan" (5)) consists of a statewide appellate judicial nominating commission ("the supreme court nominating commission") and nominating commissions for county and district court trial judges in each judicial district ("the district nominating comissions"). (6) For each judicial vacancy, a nominating commission sends two or three names selected from those who have applied for the position to the governor, who makes the final selection. (7)

   The supreme court nominating commission consists of a lawyer and a lay person from each congressional district (8) and an additional lay person, (9) with the chief justice as the ex officio chair. (10) The district nominating commissions each have three attorney members and four lay members, all of whom reside in the judicial district, with one of the six justices of the state supreme court acting as the ex officio chair. (11) The governor, the attorney general, and the chief justice select the lawyer members of each commission by majority vote, and the governor selects the lay members. (12) No more than one-half of the commission members plus one can be members of the same political party (13) and all commission members serve a term of six years. (14) The commissions rely on staffing from the supreme court and the state court administrator's office, and receive some training provided by the state court administrator. (15)

   When a judicial vacancy occurs, any person who meets the minimum qualifications to be a judge may file an application with the ex officio chair of the commission. (16) Immediately following interviews with the applicants, the commission votes on the names of two or three candidates to send to the governor. (17)

   For many years, the entire nominating process was confidential by custom, as it was thought that confidentiality protected the law practices of those applicants who were not selected. For about twenty years following this period of confidentiality, the commission chair announced the names of the two or three nominees when the governor received the names. More recently, the names of those who apply often become public knowledge. Members of the nominating commissions call references listed in applications, and applicants encourage their supporters to contact the members of the commission. The nominees also organize campaigns to lobby the governor, as the governor or his staff usually interviews each of the nominees and his office conducts an independent check on their qualifications.

   For the most recent state supreme court appointment, the former chief counsel to the governor (who is in the last year of eight years in office) suggested two people whom she said the governor would like to see nominated. (18) Because the governor appointed, or had a hand in appointing, all of the members of the appellate nominating commission, it was not surprising that two of the three names forwarded to the governor, following the interviews, were the names his former counsel suggested.

   The nomination and selection process moves quickly. The nominating commissions have no more than thirty days after a judge's death, retirement, tender of resignation, or removal from office to submit a list of nominees to the governor. (19) If the governor fails to make an appointment within fifteen days from the date the list is submitted to him, the chief justice of the supreme court has fifteen days to make the appointment. (20)

   After a judge serves a provisional term of at least two years, the judge's name (if the judge files a declaration of intent to run for another term) will appear on the statewide ballot (if the judge serves on an appellate court) or on a county or district ballot (if the judge serves on the trial bench). (21) Voters determine by majority vote if the named judge shall be retained in office for a term of years (four years for county judges, six years for district judges, eight years for appellate judges, and ten years for supreme court justices). (22) There is no limit on the number of times the judge may stand for retention, however, the Colorado Constitution requires a judge to retire at age seventy-two. (23)

   The constitutional amendment approved by voters in 1966 to replace the contested election of judges included the establishment of a separate commission on judicial qualifications. (24) In 1982, the voters amended the constitution to rename the commission (it became the Colorado Commission on Judicial Discipline) and to change its structure. (25) The Commission on Judicial Discipline (26) can recommend removal or discipline of a state judge for willful misconduct in office, willful or persistent failure to perform judicial duties, intemperance, or violation of the Colorado Code of Judicial Conduct, and recommend retirement for disability interfering with the performance of judicial duties. (27) The supreme court determines whether to accept the Commission's recommendation. (28)

   The judicial discipline commission's proceedings in individual cases are confidential, however, the commission's recommendation that a judge be removed from office is not confidential after it is filed with the supreme court. (29) The commission's annual report reflects that over the past thirty-nine years, twenty-four judges have been ordered to retire due to a disability, the commission has issued 166 private letters of admonition, reprimand, or censure against judges, and forty-seven judges have resigned during commission investigations. (30) Although on average six judges per year have been subject to commission action, it appears that no judge has been publicly sanctioned for wrongful conduct. (31)

   The judicial discipline commission was not intended to replace impeachment of a judge. (32) In Colorado, the impeachment process for a public official begins in the House of Representatives by majority vote; after trial in the Senate, conviction requires a two-thirds vote. (33) A judge has not been impeached in Colorado in more than sixty-five years. (34)

2. AN OVERVIEW OF JUDICIAL PERFORMANCE REVIEW IN COLORADO

   During the early 1980s, there were several efforts to return judges to elected politics. (35) In response, the state supreme court formed a committee of prominent attorneys to recommend how voters might receive more information about the judges who were on the ballot. The court accepted the committee's recommendation to establish a statewide judicial performance commission to prepare information about each judge to be disseminated to voters. (36) Many judges opposed the idea, particularly because they were concerned about losing discretion over the length of prison sentences in individual cases if systemwide information revealed disparities in sentencing. (37)

   The legislature codified the judicial performance commission concept in 1988. (38) The legislation created a statewide commission on judicial performance, which evaluates the appellate court judges and oversees the evaluation of county and district court trial judges by a judicial performance commission in each judicial district. (39) The state commission, however, may not substitute its evaluation for that of the local commission. (40) The ten members on the state commission and the ten members of each district commission are appointed by the legislative leadership, the governor, and the chief justice. The speaker of the house and the president of the senate each appoints one lawyer and one lay person, and the governor and the chief justice...