DENVER — Judge Lael Montgomery confesses she was uneasy the first time she had to judge her own work, and read what attorneys, jurors and others thought about her, under Colorado’s performance evaluation system for judges.
Despite her apprehensions, it was a good motivator.
"Whether the feedback you get is favorable or unfavorable, it really is valuable just for the fact that you know you are accountable," said Montgomery, a district judge since 2001 and a county court judge before that. "It just raises your consciousness."
Increasingly, Colorado and other states are using performance reviews to hold judges more accountable without resorting to term limits, stripping them of legal immunity or taking other measures some fear would threaten the judiciary’s independence.
Nevada has no statewide system for rating judges’ performances, but the Las Vegas Review-Journal conducts a survey in which lawyers practicing in Clark County rate jurists according to specific job-related traits, and recommend whether they should be retained on the bench. Those rated are members of the Nevada Supreme Court, all judges of the Clark County District Court, and the municipal judges and justices of the peace in the county’s larger communities.
In Reno, the Washoe County Bar Association conducts a similar survey in which lawyers rate district judges and justices of the peace, and recommend whether to retain or vote out Supreme Court justices.
In Colorado, complaints about activist judges, arrogant judges, slow trials, high costs and corruption led to some "extremist" proposals in 2006, said Rebecca Love Kourlis, a former Colorado Supreme Court justice who formed the Institute for the Advancement of the American Legal System at the University of Denver.
Proposals included firing judges, jailing judges, stripping judges of judicial immunity and term-limiting them. Kourlis said all of those measures would upset the constitutionally mandated balance of powers and keep the courts from doing their job.
A South Dakota proposal in 2006 would have let people file suit or seek criminal charges against judges for violating their rights.
A Colorado proposal would have imposed term limits on some judges.
Another in Montana would have made it easier to recall judges.
The South Dakota and Colorado measures failed. The Montana proposal was disqualified when a judge found fraud and other violations by petition circulators.
"It seems to be part of our social conscience right now that we’re not real happy with the courts," Kourlis said.
Fifteen states plus the District of Columbia do officially authorized evaluations and give the results to the judges, voters or other decision-makers, the institute said. Kansas will become the 16th state to do so this year.
Florida, Massachusetts and Rhode Island give results only to judges. In more than a dozen other states, bar associations, civic groups or newspapers do evaluations. The North Carolina Bar Association is conducting a performance evaluation pilot program.
Malia Reddick of the American Judicature Society in Des Moines, Iowa, said they work best in states where judges stand for up-or-down retention elections. Colorado, Utah and six other states have retention elections, the institute said.
Colorado has 23 commissions, one for each judicial district and one for the state Supreme Court and the Court of Appeals. Each commission has 10 members appointed by the chief justice of the Supreme Court, the governor and leaders of the state House and Senate. Six members cannot be attorneys.
The commissions review the judges’ self-evaluations and results of questionnaires completed by attorneys, litigants, jurors, victims, peace officers and others who have been in the judges’ courts.
Commission members interview the judges and observe them in action. They also review the judges’ decisions or opinions and look at statistics including caseloads, case types and number.
The panel then makes a recommendation to retain, do not retain, or "no opinion" if members are evenly split.
Recommendations first go to the judges, who can decide whether to stand for retention. If the judge runs, the recommendation and a short explanation are posted on Colorado’s judicial performance Web site at cojudicialperformance.com.
If the judge doesn’t run, neither the recommendation nor the explanation is released.
In Colorado, county judges must stand for retention every four years, district judges every six years, state Court of Appeals judges every eight years and Supreme Court justices every 10 years.
Since 1990, 850 judges’ names have appeared on Colorado retention ballots, including 14 who received do-not-retain recommendations, state officials said. Voters tossed out five of those judges, plus one who had a "retain" recommendation.
John Andrews, a senior fellow at the Claremont Institute think tank who organized the unsuccessful term-limits push in Colorado, maintains those numbers amount to a retention rate of more than 99 percent and show the state’s system is "toothless."
But Jane Howell, executive director of the statewide Commission on Judicial Performance, disputes Andrews’ math. Some of those 850 names included judges standing for retention at least twice.
Also, the statistics don’t include judges who decided not to run after negative recommendations, she said. Those numbers aren’t recorded.
The experience is similar in Utah, said Richard Schwermer, the assistant state court administrator. "Over 15 years, more judges stepped down after learning of negative evaluations than were ousted by voters."
Colorado tweaked its system this year, adding a second evaluation during a judge’s term.
"If you walk into any courthouse probably in the whole United States and ask the right people who the good judges are, they know," Kourlis said. "Why shouldn’t the decision-makers know?"
The Review-Journal contributed to this report.ON THE WEB Institute for the Advancement of the American Legal System American Judicature Society Claremont Institute Utah State Courts