Rosen apparently unaware of "detailed appraisal of a judge's behavior" available to Colorado voters

››› ››› MEDIA MATTERS STAFF

During his Newsradio 850 KOA show, Mike Rosen interrupted a caller apparently seeking information about the retention of Colorado judges by stating, "Don't bother." Rosen said that voters could "cast an educated vote" in judicial retention elections "[i]f there were some objective or even partisan source you could go to, to get a detailed appraisal of a judge's behavior." He apparently was unaware of a state website that provides such appraisals.

Based on statements he made during the October 17 broadcast of his show on Newsradio 850 KOA, Mike Rosen apparently was unaware of the existence of a "detailed appraisal of a judge's behavior" available to Colorado voters. In fact, a website maintained by the Colorado State Commissions on Judicial Performance provides such an appraisal of all judges seeking retention in the state.

Responding to a caller's apparent question about Amendment 40 -- a ballot initiative that seeks to impose term limits for Colorado Court of Appeals judges and Supreme Court justices -- Rosen said that voters could "cast an educated vote" in judicial retention elections "[i]f there were some objective or even partisan source you could go to, to get a detailed appraisal of a judge's behavior." According to Rosen:

Very few people in Denver or in Colorado have any idea of the history of each of these judges. The retention process is a formality. I don't know if any judge has ever not been retained as a result of that -- if it's ever happened, it's a very rare occurrence. If there were some objective or even partisan source you could go to, to get a detailed appraisal of a judge's behavior, then voters could take that information, through a filter, depending on the bias of the source, and cast an educated vote. On very rare occasions I know something about one of the judges -- which puts me in the distinct minority when I do -- and as a consequence, I don't bother voting yes or no, I just ignore it.

According to the Colorado State Commissions on Judicial Performance website, "Commissions on Judicial Performance were created in 1988 by the Colorado General Assembly for the purpose of providing voters with fair, responsible and constructive evaluations of trial and appellate judges and justices seeking retention in general elections." The commissions' website also states:

The State Commission on Judicial Performance developed evaluation techniques for district and county judges, justices of the supreme court, and judges of the court of appeals. According to statute, those criteria include the following: integrity; knowledge and understanding of substantive, procedural and evidentiary law; communication skills; preparation; attentiveness and control over judicial proceedings; and sentencing practices.

Local commissions review the district and county judges in their respective districts. Surveys are completed by a random sample of attorneys and non-attorneys who have appeared before the judge. The commissions also review relevant docket and sentencing statistics, conduct a personal interview with the judge, make unannounced court observations, and conduct public hearings. The State Commission reviews the supreme court justices and the court of appeals judges. Attorneys and trial court judges complete surveys; the state commission reviews opinions and conducts an interview with the justice or judge.

Each evaluation includes a narrative profile with the recommendation stated as "retain," "do not retain," or "no opinion."

The Commissions on Judicial Performance website features recommendations for judicial retention for the 2006 election, as well as archives of past recommendations and a fact sheet detailing the commission's process and authority.

According to the website, "As a result of [commission members'] efforts and the important backing of the Colorado legislature, the Colorado Judicial Performance Commission is nationally recognized as a model for other states, with similar judicial models to follow."

Similarly, the Rocky Mountain News reported on October 3 that "Colorado has one of the best systems in the country for evaluating its judges, according to a report released Monday by former state Supreme Court Justice Rebecca Love Kourlis' Institute for the Advancement of the American Legal System [IAALS]." The article also stated, "The report encourages other states to adopt a system similar to Colorado's, in which a panel of citizens conducts anonymous surveys, site visits and interviews with attorneys and others involved with the courts then recommends which judges voters should retain."

Referring to Love Kourlis in her October 2 column about the IAALS report, Diane Carman of The Denver Post noted, "In case anybody's keeping score, the daughter of former Gov. John Love is a Republican. She's also a former trial-court judge and former Colorado Supreme Court justice who has spent her entire career inside the judicial system."

As Colorado Media Matters previously noted, Amendment 40 would limit service for justices and judges to 10 years total (a two-year provisional term followed by two four-year terms) and would require them to stand in retention elections at the end of their provisional terms and again four years later.

Under current law, the governor initially appoints Colorado Supreme Court justices and Court of Appeals judges. Following the provisional two-year term, Supreme Court justices face retention elections and, if voters retain them, serve 10-year terms, facing retention elections at the end of each term. Court of Appeals judges serve a provisional two-year term, followed by eight-year terms, and similarly face retention elections at the end of the provisional term and each subsequent full term. There currently is no limit to the number of terms justices and judges can serve if voters retain them.

In its analysis of Colorado's Commissions on Judicial Performance, the IAALS report, "Shared Expectations," states:

Since 1998, Colorado's judicial performance evaluation commissions have collectively recommended 478 of 485 judges for retention, and have issued four recommendations of "Do Not Retain." Dozens of other judges have chosen not to stand for retention at the end of their terms after receipt of their evaluative data, raising the inference that at least some of them may have received poor evaluations and chosen not to stand for retention. Since 1990, Colorado voters have elected not to retain six judges, all on the trial courts.

From the October 17 broadcast of Newsradio 850 KOA's The Mike Rosen Show:

CALLER: My comment was a little bit off-topic I guess, but it's about the ballot coming up here.

ROSEN: Is that a little bit off topic or totally off topic?

CALLER: I would say totally.

ROSEN: OK.

CALLER: So anyhow, where I sit, I'm a Republican, very conservative, but my question is about the judges --

ROSEN: Don't bother. Let me answer that. Don't bother. The retention of judges process is strictly perfunctory. It's a charade.

CALLER: Right. Right.

ROSEN: Very few people in Denver or in Colorado have any idea of the history of each of these judges. The retention process is a formality. I don't know if any judge has ever not been retained as a result of that -- if it's ever happened, it's a very rare occurrence. If there were some objective or even partisan source you could go to, to get a detailed appraisal of a judge's behavior, then voters could take that information, through a filter, depending on the bias of the source, and cast an educated vote. On very rare occasions I know something about one of the judges -- which puts me in the distinct minority when I do -- and as a consequence, I don't bother voting yes or no, I just ignore it.

CALLER: Oh, I see.

ROSEN: It's simply not a practical means of removing bad judges. It's just something people cannot reasonably be expected to know about.

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