Did you realize that you don’t know whether any of the judges on your ballot have been disciplined? Not even the judicial performance commissions that are responsible for making recommendations to you on how to vote on judges know whether the judges have been disciplined. Why? Because, unlike most other states, our state constitution requires judicial discipline proceedings to be kept confidential.

As Statesman columnist Mario Nicolais wrote last week, the Colorado Judicial Institute held an event where former Alabama Supreme Court Justice Sue Cobb spoke about envying Colorado’s system. But Alabama has an active and public judicial discipline system. So the public knows who the problem judges are. It’s understandable why, as a judge, she would envy Colorado’s dark system.

Alabama, like most states, has partisan elections to select judges. That means judges raise money to campaign for a seat on the bench. Cobb spoke about how much better it is to not have money flowing into such elections. She supports Colorado’s supposedly nonpolitical system for selecting and retaining judges, where a nominating commission selects nominees, the governor appoints and judges go through uncontested retention elections.

But our judicial nominating commissions are politically imbalanced; vehicle ID inspectors have more thorough background checks than judges and our performance commissions receive little information. Worse yet, they aren’t complying with the law.

One state statute requires the performance commission to develop surveys for persons affected by justices and judges, including but not limited to 1) attorneys, 2) jurors, 3) litigants, 4) law enforcement personnel, 5) district attorneys’ offices, 6) public defender’s offices, 7) employees of the court, 8) court interpreters, 9) employees of probation offices, 10) employees of local departments of social services and 11) victims of crimes.

Now look on page J-2 of your Blue Book. For our Supreme Court and Court of Appeals judges, surveys were only sent to one of the 11 categories above. One. The commission decided to add the category of other judges, and two-thirds of the surveys considered for our appellate judge evaluations were completed by other judges.

Complete reliance on aggregate totals from survey results overlooks specific instances of conduct for which judges could properly be removed from the bench.

For instance, last year our Supreme Court again refused to comply with Colorado’s meager Open Records Act and adopted a rule making it the darkest of Colorado’s three branches of government. Did adopting that rule promote public confidence in the independence, integrity and impartiality of the judiciary? If not, adopting the rule was arguably a violation of the Code of Judicial Conduct for which a judge could be removed from the bench, let alone an advisory made to the public to not retain a judge.

We’ve tried to improve the performance commission system. Last year, state Rep. Kevin Van Winkle sponsored HB 16-1235 which would have provided more information to the commissions and to the public. If we don’t have politics in our judiciary, why did the bill die on a party-line vote in a “kill” committee?

All lawyers are sworn to use their knowledge to improve the legal system. Judges, like Robert Hawthorne who’s a Court of Appeals judge up for retention, are on the board of directors for the institute along with other lawyers. Yet the institute opposed the bill. The institute also opposed our proposed constitutional amendment that would remove the conflicts of interest in the judicial discipline system and make judicial discipline proceedings public.

The performance commissions don’t know whether a justice or judge has been disciplined. Is it fair or responsible for them to advise you on whether to retain a judge?