Colorado’s judicial Gold Standard for selecting judges focuses on merit and accountability

Special to The Colorado Statesman

For ninety years after it achieved statehood in 1876, Colorado elected its judges in partisan elections. As a result, mining and other business interests had so much clout in the courtroom on high profile cases that historian Page Smith lumped the judiciary in with the corrupt executive and legislative branches in labeling Colorado’s state government “a wholly owned subsidiary of the Rockefellers and Guggenheims.”

Voters finally had enough and adopted a sweeping merit selection and retention election plan in 1966. That reform has been so successful that Colorado can now be considered “the Gold Standard” of judicial selection systems, according to Rebecca Love Kourlis, executive director of the Institute for the Advancement of the American Legal System at the University of Denver.

Kourlis, who served eleven years as a Justice of the Colorado Supreme Court before heading IAALS, told a Law Week audience at the Colorado Bar Association May 2 that Colorado is one of just 13 states plus the District of Columbia that uses an all-merit system to choose its judiciary. The other states are Alaska, Connecticut, Delaware, Hawaii, Iowa, Massachusetts, Nebraska, New Hampshire, Rhode Island, Utah, Vermont and Wyoming.

Twenty-two states still choose all their states judges in contested elections. Eleven states use a mix of appointment and election, often electing trial judges and appointing appellate judges. Maine and New Jersey fill all judgeships by gubernatorial appointment while South Carolina and Virginia stock their benches by legislative appointments.

The 1966 constitutional amendment establishing a merit selection and retention election system was a ballot initiative led by the Colorado League of Women Voters and the Colorado Bar Association, among others. Under that plan, when a vacancy occurs in any of the state’s 22 judicial districts, two or three possible replacements are nominated by a seven-member nominating commission. At least four of the seven members must be non-lawyers and no more than four may be members of the same political party. A similar bipartisan commission of 16 members fills vacancies on the Court of Appeals and the Supreme Court, which must nominate three qualified replacements.

Once the candidates have been screened and nominated, the governor has fifteen days to choose one of the nominees for the vacancy. If the governor does not act in time, the Chief Justice makes the appointment from the list of eligible nominees. After at least two years in office, a judge goes before voters who can retain or remove the judge. If the judge is not retained, the selection process starts all over again.

This system of pre-screening assures that potential judges are chosen for merit, not loyalty to political bosses or campaign contributors — as happened all too often in Colorado’s early days. But it’s not the system of merit selection alone that accounts for Colorado’s high standard of judicial excellence and integrity, Kourlis said. Equally important are efforts to assure accountability and excellence that were adopted in 1988 by the legislature.

After the 1966 reforms were adopted, reformers realized that if citizens no longer had a partisan opponent on the ballot eager to spotlight the problems of a poorly performing judge, some other system of accountability had to be adopted. Thus, the 1988 legislature set up a system of Judicial Performance Commissions, using the bipartisan format with a majority of non-lawyer members that had proven so successful in the nominating commissions.

The performance commissions evaluate all judges at the middle of their terms and before they stand for retention. Judges are evaluated on six criteria: integrity, legal knowledge, communication skills, judicial temperament, administrative performance, and service to the legal profession and the public. Surveys are sent to attorneys, jurors, non-attorney court users, court staff and other judges. The commissions also consider judges’ self-evaluations, case management data, and reviews of a judge’s decisions and opinions.

At the following retention election, the judicial performance commission makes a recommendation to “Retain,” “Do Not Retain,” or “No Opinion.” If they are retained, Supreme Court justices then serve ten-year terms, Court of Appeals judges serve eight-year terms, District Court judges serve six-year terms and County Court judges serve four year terms.

After Kourlis’ presentation, Malia Reddick, director of the Quality Judges at the Institute for the Advancement of the American Legal System, spoke of some of the many problems in states that still use high-spending contested election. One case, Caperton v. Massey, involved a Chief Justice casting the deciding vote for a coal company that had spent $3 million to elect him to the West Virginia Supreme Court.

Chief Judge Janice Davidson of the Colorado Court of Appeals and practicing attorneys Gene Ciancio and Theresa Spahn gave detailed accounts of how Colorado’s system works in practice. Ciancio and Spahn urged citizens to serve on the nominating and performance commissions that are the heart and soul of our “Gold Standard.” They also urged attorneys to return the evaluations they are sent of judges, to help ensure the accountability system works.

Bob Ewegen retired from The Denver Post in 2008 after more than 36 years with the newspaper. He is now director of research and communications at the Law Office of Ellis Wright and Ewegen, LLP. His columns as well as the thoughts of attorneys Katy Ellis, Ben Wright and Misty Ewegen can also be found on the Blackacre Journal blog published by that law office at ewellp.com.