Judging the Judges: In Colorado, Nonlawyers Play a Central Role Community Volunteers Help Evaluate Integrity, Legal Ability, and Courtroom-Management Skills

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FEW lawyers know more about Colorado judges than Ed Harshbarger, a printer from Brighton, Colo. During the day Mr. Harshbarger works in the composing room of the Denver Post; in his free time he is a judge of judges, a nonlawyer member of Colorado's State Commission on Judicial Performance. Since 1986, when he began helping a citizens' group evaluate judges, Harshbarger has judged more than 75 judges.

Harshbarger does not receive or expect any payment for the time he spends meeting with other members of the statewide evaluation committee or with judges. Neither do several hundred other volunteers who make up the 22 local commissions that evaluate Colorado judges. "It's a public service you're performing," says Harshbarger. "The main requirement is to go in there with an open mind and with as much objectivity as you can muster."

As outsiders to the justice system, Harshbarger and other nonlawyers bring community expectations into the evaluation process. "To me, the true judge is a real public servant," Harshbarger says. "They aren't in there for personal gain or for the ego; they're in there to be a part of good government."

Nonlawyers, or average citizens, have always been important to Colorado's judicial evaluation process. In 1980, they were included on Colorado's Judicial Planning Council, which developed recommendations for evaluating judges. A few years later, the Colorado Judicial Institute - a citizens' group - conducted a pilot program, evaluating judges in several districts. And in 1988, when the Colorado Legislature passed a law establishing a statewide evaluation program, it gave nonlawyers the leading role in the evaluation process. According to the law, nonlawyers must outnumber lawyers six to four on each evaluation commission. `Civilian' participation rare

Nonlawyers join with lawyers to evaluate judges in only four other states. Alaska started the trend in 1975, followed by Utah, Arizona, and Hawaii. When Tennessee switches in 1996 from partisan election of appellate judges to merit appointments, a commission that includes nonlawyers will begin evaluating newly appointed appellate judges.

These states are among the 34 that appoint all or, at least, some state judges based on merit. In most of these "merit-system" states, judges must stand before voters periodically in noncompetitive retention elections. "There is a move toward evaluating judges who must stand for retention and providing information to voters," says Kathleen Sampson, director of information for the American Judicature Society, the only national court-improvement group that includes nonlawyers.

Ms. Sampson explains that judicial evaluations provide voters with a balanced view of judges' performance. Most state judicial systems have extensive rules that limit what judges can say during a campaign. "It's not really dynamic for judges to say, `I can really move cases and I'm fair,"' Sampson says. "Judicial evaluations fill a knowledge gap on the part of voters, giving them meaningful information to guide their voting decisions."

In Colorado, the evaluation process begins almost one year before scheduled retention elections. According to Jim Jezek, a policy analyst for the Office of State Court Administrator, information about each judge comes from several sources. First, questionnaires are sent to lawyers, jurors, litigants, court personnel, and law-enforcement personnel. Responses are analyzed by a private consultant, then forwarded to the commissions, along with docket-management statistics. The commission then interviews a variety of people who have had regular contact with the judge. After an in-depth interview with the judge, the commission releases its retention recommendation and a narrative profile of the judge to the public. …