Judicial Performance Review: A Balance between Judicial Independence and Public Accountability
Dubofsky, Jean E., Fordham Urban Law Journal
Judicial performance review in Colorado is the most sophisticated method in the nation for providing information to voters in judicial retention elections. (1) Colorado has had a commission-based appointive system for judges--with the judges subject to periodic non-contested retention elections--for forty years. In the mid-1980s, some in Colorado thought that retention elections did not provide voters with enough information to hold judges accountable, and they sought to return the selection of judges to contested partisan elections. The performance review concept was a response to the call for more public accountability. But public accountability in Colorado--advanced by a commission without partisan balance--may encroach on judicial independence. (2)
This Article focuses on the role of judicial performance commissions that provide information to voters before non-contested retention elections for appointed judges. A performance commission might serve as a substitute for retention elections, But given the political climate in Colorado, where judges are subject to frequent public criticism, it is highly unlikely that retention elections, enshrined in the state constitution, will be replaced with periodic commission review. Questions that this Article will address include the following:
1. Who appoints the members of a judicial performance commission and should partisan balance be required?
2. What should commission members' qualifications be?
3. What are the appropriate criteria for evaluation of a judge's performance?
4. How does a commission obtain information about a judge?
5. What is done with the information obtained by the commission?
6. Should performance review include retired judges or magistrates who serve as-needed?
7. What kind of staffing and training is available for commissioners and who pays for it?
8. Does a performance review get rid of bad judges and assist voters in retaining good judges?
9. Should judges be subject to term limits?
10. To what degree does any performance evaluation limit judicial independence?
I. AN OVERVIEW OF THE COMMISSION-BASED JUDICIAL SELECTION PROCESS IN COLORADO
Before discussing the role of judicial performance commissions, this Article describes the initial selection process for most judges in Colorado. (3) In 1966, Colorado voters adopted an amendment to the state constitution that provides an appointive process to select state court judges, replacing their direct election. (4) The appointive process (called a "modified Missouri Plan" (5)) consists of a statewide appellate judicial nominating commission ("the supreme court nominating commission") and nominating commissions for county and district court trial judges in each judicial district ("the district nominating comissions"). (6) For each judicial vacancy, a nominating commission sends two or three names selected from those who have applied for the position to the governor, who makes the final selection. (7)
The supreme court nominating commission consists of a lawyer and a lay person from each congressional district (8) and an additional lay person, (9) with the chief justice as the ex officio chair. (10) The district nominating commissions each have three attorney members and four lay members, all of whom reside in the judicial district, with one of the six justices of the state supreme court acting as the ex officio chair. (11) The governor, the attorney general, and the chief justice select the lawyer members of each commission by majority vote, and the governor selects the lay members. (12) No more than one-half of the commission members plus one can be members of the same political party (13) and all commission members serve a term of six years. (14) The commissions rely on staffing from the supreme court and the state court administrator's office, and receive some training provided by the state court administrator. …