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
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
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. …