Colorado's 2014 Judicial Retention Elections

Once appointed, state judges in Colorado must face periodic retention elections held in general November elections in even numbered years, one after two years in office and again at intervals that vary from court to court.  Voters can vote to retain or not retain a judge.  If there are fewer "not retain" votes than "retain" votes, the judge stays in office for another term,  Most voters always vote to retain, and a minority of voters don't vote at all on these issues, or always vote not to retain.

For those voters who make their decisions on a case by case basis, there is a commission on judicial performance that recommends that a judge be retained, recommends that a judge not be retained, or makes no recommendation.  There is a separate volunteer committee for each judicial district in the state and another for appellate judges.

More than 98% of judges are recommended for retention and are almost always retained by the voters.  About half of those judges not affirmatively recommended for retention, usually only a few each year, are not retained by voters.  When a judge is not retained, a vacancy is created.  A different commission advertises the position and vets applicants.  Three finalists are selected.  Usually, the Governor makes the final pick, but in the case of Denver county court judges, the final choice is made by Denver's mayor since Denver county court judges are simultaneously Denver's municipal court.

This year, 160 judges end their terms and would normally face retention elections.  Of them, 14 can't run because they have reached mandatory retirement act.  Two more judges, upon learning that they would not be recommended for retention, voluntarily stepped down from office effective at the end of their current terms.

Four county court judges have not been recommended affirmatively for retention.  These are judges of the state's limited jurisdiction courts that handles misdemeanor cases, most evictions, most temporary restraining orders, most name changes and most civil cases where less than $15,000 is not in dispute and title to real estate is not at issue.

Three of the judges not receiving an affirmative recommendation to retain, one in Boulder (Karolyn Moore), one in Pueblo (Valerie Haynes) and one in the City and County of Denver (Dianne Briscoe), are rookie judges facing their first retention election.  A fourth, in Grand County which is home to Winter Estes Park (Ben McClelland), is an experienced county court judge [Ed. 10-29-14 corrected claim that Estes Park, which is actually in adjacent Larimer County, is in Grand County, which is home to Winter Park and Granby per comments; my apologies for the error].  In Boulder, Pueblo and Grand Counties, the recommendation to "not retain" was unanimous."  In Denver, where the judge agreed to enter into a supervised improvement plan, the commission was split and there was no recommendation made to retain or not to retain.  For what it is worth, all three of the rookie judges failing to secure retention recommendations are women.

The commission noted with regard to Judge McClelland, in Grand County, that:

Survey results and observation by Commissioners regarding Judge McClelland were mixed. To the positive, it was generally regarded that Judge McClelland is consistent in his rulings, works to learn the law, gives the parties a fair chance to present their cases, and is accommodating when it comes to scheduling. He moves his docket forward, is efficient in court, and is a hard worker. His oral communications in court are clear and direct and he maintains control over his courtroom. 

To the negative, commenters, including some Commissioners, described Judge McClelland as arrogant, defensive, impatient, and lacking appropriate judicial demeanor. His lectures from the bench tend to be grandiose, offensive, and off-putting. It was commented that Judge McClelland has a tendency, or at least the appearance, to rule based on his personal bias or opinion. These characteristics do not meet required judicial criteria of communication and judicial temperament. Among surveyed attorneys, Judge McClelland’s “retain” recommendation of 56% was significantly under the state average for all County Court judges (78%) and his “do not retain” recommendation of 32% was likewise higher than the state average (13%). Among non-attorneys, his “retain” recommendation of 78% was lower than the average (86%) and his “do not retain” recommendation of 14% was higher (8%). Although Judge McClelland received an average grade of 3.0 in the surveys, that score is below the 3.43 average combined grade for all county court judges standing for retention in 2014.

For Judge Moore, in Boulder County, a former deputy district attorney, the commission noted that:

Judge Moore’s survey results raised many concerns for the Commission. Among attorneys surveyed about retention, 45% recommended to retain, 40% not to retain, and 15% made no recommendation. Among non-attorneys, 90% recommended to retain, 5% not to retain, and 4% made no recommendation. When compared to all county judges by non-attorneys (including jurors), she received a slightly higher recommendation for retention (90% versus 86%) and was rated slightly higher than judges overall on a number of measures such as demeanor in court. She also received many positive comments from the non-attorneys particularly regarding demeanor and communication skills. 

On the other hand, she was seen as being biased toward the prosecution and harsh in her sentencing in comparison to other county judges. Judge Moore’s survey ratings by attorneys were very different from the non-attorneys. In all five categories, including all 17 subcategories, attorneys gave Judge Moore lower ratings when compared with all county judges. The categories include case management, application and knowledge of law, communications, demeanor, and diligence. Her overall score among attorneys was much lower than the average for all county judges – 2.51 compared to 3.29. Judge Moore was seen as being very biased in favor of the prosecution by 46% of the attorneys while on average all county judges were so rated by only 10% of attorneys. She was also perceived as being somewhat biased in favor of the prosecution by a higher percentage – 33% compared to 25%. The surveys provided similarly negative results for Judge Moore regarding a recommendation for retention. The same sampling methodology was used to survey attorneys and non-attorneys for all nine judges standing for retention. Judge Moore’s survey results were substantially more concerning than any of the other judges reviewed by this commission. Although she received positive comments from some attorneys, there were many explicit comments detailing concerns attorneys had with Judge Moore. The Commission is not convinced that Judge Moore fully understands the extent of her shortcomings as a judicial officer. 

Judge Karolyn Moore’s Response: I’m honored to serve the people of Boulder County. As a new judge, I’m focused on improving my judicial skills and initiated an improvement plan with my chief judge. Among the attorneys surveyed regarding my performance 93 criminal defense attorneys and 19 civil attorneys responded. I value their comments, however the surveys were not sent to prosecuting attorneys and other important voices were not heard, leading to imbalanced results. 

For Judge Haynes, in Pueblo County, the commission noted that:

Judge Haynes is polite to jurors, is perceived by the public as fair, and generally imposes consistent sentences. 

Judge Haynes does regularly reject plea agreements that the attorneys have worked out, and does so without providing support for her decision. This has contributed to a very heavy jury trial schedule, averaging almost one trial per week. Judge Haynes imposes requirements upon the attorneys practicing in front of her that have no basis in rule or law, and she renders inconsistent rulings on legal objections. The commission heard complaints that there are issues with efficiencies in the courtroom, including not starting her docket in a timely manner. Judge Haynes is not willing to work with others in order to resolve issues and has created a hostile environment in her courtroom. Proper mentoring of attorneys is noticeably lacking. The most significant criticism evidenced throughout this process was Judge Haynes’ lack of judicial temperament. She is described as rude, curt, having little compassion, and inappropriately raising her voice at those who appear in her courtroom. These concerns were evident in her May 2013 evaluation survey results, and no improvement is shown in the current survey. Judge Haynes acknowledges the results of both surveys and has only made recent attempts to improve her communication skills, which she believes are the root of the problem. The Commission believes that Judge Haynes fails to fully understand and acknowledge her contribution to the negative survey results and comments, which leaves little reason to expect improvements to occur.

Judge Briscoe, in the City and County of Denver was described by the commission as follows:

Judge Briscoe’s first two years as a judge were in the juvenile division, for which there are no survey results. Judge Briscoe had prior experience in juvenile law and believes that experience helped her perform well in the juvenile division. However, in her current assignment, in each area of case management, application and knowledge of the law, communications, demeanor and diligence, Judge Briscoe received scores from attorneys significantly below the average of scores for all other county court judges standing for retention. Her scores from non-attorneys in most areas were consistent with the average scores received for other county court judges. 

While the survey sample from lawyers was small (20 respondents), courtroom observations by members of the Commission and review of her oral rulings confirmed many of the concerns raised by the survey results. While Judge Briscoe displayed appropriate judicial demeanor and was patient and respectful to those appearing in her court, the Commission has significant concerns about Judge Briscoe’s application and knowledge of the law. Especially concerning was her apparent lack of familiarity or understanding of relevant law and rules even though she had been in her current assignment in the municipal criminal division for over 15 months at the time of her interview. In her interview, Judge Briscoe acknowledged her deficiencies in application and knowledge of the law. Judge Briscoe’s apparent lack of preparation on some matters and the difficulty she experienced in making sure some defendants without lawyers adequately understood the proceedings also concerned the Commission.

My general attitude towards judicial retention election is not to be lenient.  Very few judges are not recommended for retention at all, and their stand out status deserves attention.  The relevant issue is not whether they did something wrong, but whether there are better than even odds that a replacement would be better.  Given that the consequence for the judge is merely the need to find a new job for someone with a professional degree and considerable professional success, but that the broad discretion a judge has may impact thousands of cases, I generally argue that when in doubt, one should not retain.

But, ultimately each case must be judged individually on its own merits.  Extensive source data for evaluating those hard calls is available at the Commissions on Judicial Performance website.