Quietly, the colorado legislature does something big

With all of the controversy swirling around this last legislative session, it’s easy to overlook the really good news about Colorado judges. With broad, bipartisan support, the General Assembly revamped Colorado’s process for judicial evaluation. This one act may result in better accountability and improvement in the quality of our judiciary.

Currently, Colorado judges face retention elections every six years for trial judges, eight years for appellate judges, and ten years for supreme court justices. Evaluating judges is tough, so as a way to help voters and to provide some accountability, Colorado has set up judicial performance commissions: a statewide commission for appellate and supreme court judges; and one commission for trial judges in each judicial district. These commissions analyze each judge’s performance and recommend whether voters should retain the judge in office.

Performance evaluations are critical, because they go hand-in-hand with Colorado’s judicial selection process. Unlike federal appointments, Colorado voters have no input into nominations or selections. For each vacancy, judicial selection commissions (not to be confused with the performance commissions) recommend three candidates to the governor, who selects one. The nominations and selections receive little to no public involvement. The process doesn’t involve public debate, analysis, or political compromise.

But judges can impact a state just as much as the legislature or the governor. Take something as mundane as commercial disputes. In Delaware, this is big business. Companies flock to Delaware to incorporate businesses and resolve disputes, which are big drivers of the state economy and state revenue. In many ways Delaware sets corporate governance policies across the country. Why? Because that state’s judiciary has a national reputation for high-quality service.

We all want good judges, but in Colorado judicial performance evaluations have needed improvement for some time. Few judges face a “do not retain” recommendation, and despite a lot of hard work, commissions miss critical information and input. And even when commissions recommend “do not retain,” voters often ignore them. Finally, judges themselves get relatively little feedback on their performance, only facing a review once every six, eight, or ten years.

For these reasons, a strong undercurrent of opinion wants elected judges. Straight up elections give the public plenty of opportunity to weigh in on judges. Selection commissions don’t. That’s why judicial performance commissions need improvement— so the public has a good source of information to make informed choices, instead of merely serving as a rubber stamp

The good news is this; the General Assembly recently made major improvements to the evaluation process. No longer will commissions recommend “retain” or “do not retain.” Instead, they will develop performance standards and inform voters whether the judges meet those standards. Ob- jective, well-understood standards, combined with solid explanations, give voters more information and the opportunity to make their own analysis.

But there are other, far-reaching changes. Instead of requiring occasional performance reviews, we nowhave a systemfor long-term improvement. The performance commissions nowmust provide interim evaluations every three years and recommend, if necessary, performance plans. No longer will evaluations come like a strike of lightening. Instead, judges will knowthe performance standards, receive feedback, and get the support to improve their craft.

And the commissions are developing better tools and information. For example, they need to receive case management data, which helps show how efficiently a judge manages and decides cases. And the public surveys of judges need lots of improvement. To be sure, the survey methods have have shown real improvement, and the new legislation takes a big step by creating a continuous survey process and by requiring more outreach to people who aren’t represented by attorneys.

Will these reformswork? Itwill take a fewyears to knowfor sure, but I’m optimistic. We nowhave a better evaluation process, and beyond thatwe have a systemfor judicial improvement. Broad support among lawmakers, combined with regular reports from the commissions to the general assembly, giveme hope thatwewill also have continuous improvement aswe learn more.

Colorado deserves a high quality judiciary that is accountable to the public in a meaningful way. Now, the commissions have the tools to provide that accountability, be a valuable resource for voters, and convince all Coloradans that we have a good system, without judicial elections.

Scott Gessler is the former Colorado secretary of state, a Denver attorney and member of the statewide judicial performance commission.