Colorado’s system of judicial discipline is so secret that the state’s nearly two dozen performance review commissions that evaluate judges have rarely known for sure whether a jurist they recommended voters keep on the bench had a record of misconduct or not.
That shortfall is a critical flaw in the state’s judicial retention process that should be fixed, according to a letter the chairman of the State Commission on Judicial Performance sent to a legislative committee reviewing possible changes to the discipline process.
“Current statutory language and rules governing (Judicial Performance Commissions) are silent on the use of disciplinary information from the Colorado Commission on Judicial Discipline in the evaluation process,” Thomas Neville, the chairman of the state commission, wrote the committee on July 29. “The evaluation narratives published for use by voters have long been criticized for not providing information about a judge’s disciplinary record, if any.”
Neville called the criticism “understandable.”
One member of a performance commission who spoke to The Denver Gazette said they weren’t even aware they could request a judge’s discipline record. Others said it was unclear how they could use the information as part of their review process.
Put simply, “JPCs should have access to information of judicial discipline maintained by the” discipline commission “to better fulfill their statutory and constitutional obligations” Neville wrote.
Doing so “can only enhance public confidence in the narrative evaluations … and the value of interim evaluations for improving judicial performance,” he wrote.
In an emailed statement to The Denver Gazette, the Judicial Department on Tuesday said, "We look forward to a robust discussion with the committee on this and other important policy matters."
Currently, the discipline commission operates under rules established by the Supreme Court, including confidentiality of records and how they might be shared.
Historically, the commissions rarely requested information about a judge’s discipline record as part of its retention review process, according to several members of commissions who spoke with The Denver Gazette only if their names were not used. Commission members are precluded by law from publicly discussing the performance review process, which is secret. All notes and paperwork compiled during an evaluation of a judge are destroyed following a commission's recommendations to voters.
The results of questionnaires the commissions send to lawyers and others are published as well as comments about the judge that are provided, although the respondents' are not identified. The commissions also offer a summary narrative about a judge's overall performance -- but there is no information about any discipline.
“We didn’t even know that we could make the request,” said a person who recently finished their appointed term on a commission.
In 2020, the commissions requested discipline information about all judges who were up for retention, according to Kent Wagner, the executive director of the State Commission on Judicial Performance. He did no say whether the discipline commission provided a response for all of them.
The commission has not asked the same of this year’s list of judges who are up for retention, he said. In prior years the requests were sporadic, mostly because the commissions were unclear how they could use the information, assuming they received any.
The performance of all of the state’s nearly 340 judges must be reviewed by a performance commission in their jurisdiction before their name is put to voters for retention. Each commission of 11 members is appointed by an elected government official or the chief justice of the Supreme Court.
There is one commission in each of the state’s 22 judicial districts – 23 when the new district for Arapahoe County is formalized – and one state commission that reviews the Court of Appeals judges and the justices of the Supreme Court.
All the judges except for magistrates are appointed by the governor. Each is then up for retention after a two-year provisional term. Thereafter, the Supreme Court justices are up for voter retention every 10 years, appellate judges every eight years, district judges every six years and county court judges every four years. All judges must retire by age 72.
Except for their age, though, there is no limit to how many times a judge can seek retention by voters.
The performance review commissions have a detailed process in which they review each judge’s performance using surveys, interviews and courtroom observances, ending with a report to voters that says whether or not a judge “meets performance standards.” The prior recommendation of “retain” or “not retain” was done away with in 2017.
Actions of the discipline commission, by law, are secret unless the sanction is a public one. Most aren’t and the commission’s annual reports only generally describe a judge’s conduct – without identifying the judge or the jurisdiction in which they work – and the private sanction that was taken.
Because its process is secret, the discipline commission doesn’t automatically share information about a judge with the performance review commissions. If asked, however, the discipline commission can use its discretion on whether to provide the information, but a performance review commission can’t rely on it soley and must verify the details on its own.
Neville said that discretion “severely limits how JPCs could use non-public information themselves.”
Recently, the performance and discipline commissions have tried to come up with rules that would allow the sharing of information and keeping it confidential, but those talks were postponed until the legislative committee finishes its work in exploring changes to the discipline process.
Much of the concern is that discipline is only public when the Supreme Court approves a request by the discipline commission for removal, suspension, retirement, censure, reprimand or other public discipline of a judge.
Few cases reach that far, however, and most result in private discipline issued by the commission without ever becoming public.
“If the (Colorado) Constitution were amended so disciplinary information became public at an earlier stage” of the discipline commission’s work, Neville wrote, “JPCs would be able to access and use that information as part of their evaluation process.”
That would alleviate the need for complex agreements to share the information between the two bodies, he said.