On Election Day, voters retained 102 of the 103 judges on the ballot across Colorado, but those numbers masked more nuanced trends and currents of dissatisfaction among voters asked to decide whether a judge stays or goes.

Historically, Colorado’s retention rate for judges has hovered around 99%.

“I know we all want to believe the processes that we set up to send people to these governmental offices are flawless, but I think we know that they’re not,” said George Brauchler, the outgoing 18th Judicial District Attorney. “If at the end of the day, quality control tells us that only less than 1% of any industry or any profession is not worthy of being kept in that position, that’s astronomical.”

The largest single source of voter information about the judges on the ballot comes from the Blue Book, with a narrative about each judge accompanying a recommendation from citizen-led performance commissions. In the three decades the system has existed, the recommendations to voters were to retain or not retain a judge, or, as is the case now, whether the judges do or do not meet performance standards. Most judges receive unanimously favorable ratings from their commissions. 

For some people, those recommendations are insufficient to perform the task of evaluating job performance.

During the election, “the most questions that I got were about knowing more about the judges,” said Jane Hamburger of the League of Women Voters of Larimer County.

About the recommendations, which are based on such items as judges’ demeanor, diligence and fairness, Steve Boand of Douglas County was more pointed: “There seemed to be not as much critical analysis to the positions the judges had taken, only the ‘happiness coefficient’,” he said.

One of the two judges who received a recommendation of not meeting performance standards lost her job in the 17th Judicial District of Adams and Broomfield counties. But four other district court judges across the state kept theirs, while receiving an unusually higher-than-average percentage of no votes.

While no coordinated campaign existed to oust any of the judges, the reasons varied from social media advocacy to local parties’ own, vague recommendations, to voters appearing to pay serious attention to an unfavorable Blue Book review.

Kent J. Wagner, executive director of the Office of Judicial Performance Evaluation confirmed that when a citizen-led performance commission gives a less-than-unanimous recommendation of support for a judge, that correlates to a higher percentage of no votes. However, “I think it would be very difficult to solely attribute the commission’s recommendations to the voter outcome,” he added.

Northern Colorado

Juan G. Villaseñor was a 2018 appointee in the Eighth Judicial District of Larimer and Jackson counties. Nearly 42% of voters in the district decided not to retain him, with a majority of conservative Jackson County even voting against him – the only place in the state in which a retained judge lost a jurisdiction.

The 10-member performance commission in the district voted 6-4 that Villaseñor met performance standards, although the Blue Book narrative pointed out several areas where members felt the judge was deficient. Some attorneys and other parties who appeared before him reportedly found Villaseñor’s communication was “demeaning, biased, and disrespectful,” with concern that he “inconsistently applied laws and rules.”

Rep. Cathy Kipp, D-Fort Collins, speculated the narrative played a large role in the outcome.

“I think people are reading their Blue Books. You look at all of them and say, ‘This one’s unanimous. Whoa, this one is really different,'” she said. Kipp did not disclose how she voted on Villaseñor’s retention.

Gil Barela, the chairman of the Larimer County Democrats, said he voted against Villaseñor “on recommendations from other people I trusted in the system,” namely attorneys.

“He had some bad marks,” Barela recalled. “In his job review, he was less than stellar, so people were out to – even some elected officials wanted him removed.”

Barela named outgoing county Commissioner Steve Johnson, a Republican, as one of those advocating against Villaseñor. On Oct. 12, Johnson posted on Facebook two recommendations to voters: first, an endorsement for the Republican candidate to succeed him as county commissioner. Second, a no vote on Villaseñor. 

“Larimer County has been involved in several cases before him, and I find he lacks even an elementary knowledge of land use law,” Johnson wrote. Elsewhere, Johnson commented that he was “voting against this guy and I rarely vote against judges.”

Reached for comment, Johnson acknowledged unprompted that he encouraged his friends to oppose Villaseñor, citing a ruling from the judge in June of this year against the board of county commissioners. Villaseñor wrote that the board erred in approving a Loveland Ready Mix Concrete plant on the edge of Laporte. The commissioners, he found, failed to determine whether the plant met all conditions under the land use code, and returned the issue to the board.

Johnson was not the only one opposing Villaseñor online. Bob Choate, assistant county attorney in neighboring Weld County, also wrote on Oct. 14 that the judge “has demonstrated his inability to apply the most basic of civil law.” Choate also claimed Villaseñor “has a reputation among lawyers in the community for getting it wrong.”

One person who shared the post was Jeff C. Jensen, one of the members of the performance commission who evaluated Villaseñor and the other judges in the Eighth Judicial District. Jensen said he would be voting against Villaseñor “for all the reasons [Choate] spelled out.” In a comment, Jensen went further, admitting he was one of the four commission members who voted that Villaseñor did not meet performance standards.

Commission proceedings are meant to be confidential. The rules for the performance commissions list several reasons that a commissioner may face removal for cause. Those reasons include improperly disclosing confidential information and “publicly advocating for or against the retention of any particular justice or judge.”

Villaseñor told Colorado Politics that Jensen’s post, in his eyes, violated the rules by publicly discussing the evaluation of a judge.

“Judges expect that performance commissioners will take their role seriously and that they’ll scrupulously abide by the rules. When that doesn’t happen, it calls into question the fairness and effectiveness of Colorado’s historically non-partisan method of evaluating judges,” Villaseñor said.

He added, “If my performance evaluation was based on factors other than those established by law, it’d be a sad day for Colorado’s judiciary, which prides itself on having a fair and nonpartisan system for selecting and retaining judges.”

On Nov. 17, Colorado Politics contacted Wagner, the director of the judicial performance evaluation office, to ask whether he believed Jensen’s post was grounds to remove him from the commission.

“In my opinion this type of advocacy for or against the retention of a judge would violate the Rules Governing the Commission on Judicial Performance,” Wagner said, “and may require the State Commission to recommend to the appointing [authority] that a member be removed for cause.”

However, he said, Jensen had resigned from the performance commission on Nov. 16 – one day earlier.

Suburban Denver

Prior to Election Day, the Elbert County Republicans published judicial retention endorsements on their website. “These recommendations were given to us by a conservative source based on ‘Could we do better’,” the webpage read.

In the 18th Judicial District, which encompasses Elbert, Lincoln and Douglas counties, along with much larger Arapahoe, the party recommended no votes only on Judges Cynthia D. Mares and Andrew C. Baum.

The Douglas County GOP put out a similar guide recommending no votes for Mares and another judge. Multiple people with the county party did not respond to emailed requests for comment.

“The tendency to vote no on judges just in general seems to be stronger in more Republican areas,” observed Brauchler, the district attorney. Several people spoke to the phenomenon of voters opposing judges’ retention on principle; most judges in Colorado had a degree of opposition between roughly 20% to 30%. Across the 18th Judicial District, Mares and Baum both received in excess of 30% no votes, but in the smaller, more rural counties, the percentages were greater: more than 43% of voters in Elbert and Lincoln counties sided against Mares, and the number was as high as 47% for Baum in Elbert County.

Both judges, appointed within the last three years, had unanimously favorable ratings from their performance commission, although Baum’s Blue Book narrative mentioned “concerns regarding his temperament and a gender bias.”

Tom Peterson, the chairman of the Elbert County Republicans, said the party “tried to get information on judges with respect to where they stood on issues of importance to us as conservatives.”

Peterson recalled the traffic on the party’s website stemming from the judges guide was “phenomenal,” adding that getting information on judges “is one of the final links for people to turn in their ballots. People don’t trust the Blue Book in its entirety.”

Grant Thayer, a Republican Elbert County commissioner, said he voted for both Baum and Mares, but found the Blue Book description of judges’ performance helpful only to a point.

“This whole thing about judging judges is every time we have an election, I don’t know what to do,” he said. “If you don’t have any experience with them, you have no knowledge of them.”

Thayer remembered that he had no idea how to vote on some judges, and therefore he did not vote. Such decisions were common, with roughly one-fifth of voters in the presidential election subsequently leaving the retention questions blank.

“Most people without knowledge, they’re not comfortable. And I certainly fall in that category,” Thayer observed.

Colorado Springs

Gregory R. Werner became a district court judge in 2006, and has been through three retention votes. Six years ago, the performance commission for the Fourth Judicial District in El Paso and Teller counties first alluded to his below average scores from attorneys who appeared before him. This year, the commission devoted substantial space in the Blue Book narrative calling attention to Werner’s “well below the average” scores. Members found him to meet performance standards by a vote of 7-3.

Approximately 41% of voters in both counties sided against Werner. Unlike the other district judges, there was little indication of anything other than voters’ reaction to the report of the commission.

“I had read the concerns,” said Sen. Pete Lee, D-Colorado Springs. “I hope Judge Werner has the humility to address the concerns that were raised in the Blue Book and were reflected by the voters.”

Lee defended the current process of judicial retention and said that as a lawyer, when people came to him asking questions about the judges, he would first point them to the Blue Book.

Teller County resident Erik Stone, who is also a member of the performance commission, acknowledged that one judge from the district did choose to retire after reading the commission’s proposed Blue Book narrative. But for Werner, Stone heard nothing about an oppositional campaign against him, and said he voted to retain the judge.

Stephanie Vigil, who ran as a Democratic candidate for a state House seat in 2020, recalled the local Democratic Party “had a lot of calls coming into the office. People being like, ‘I don’t know what to do with all these judges. Does anybody know?'”

Werner, she said, “just had the most name recognition of being people like, ‘I’m voting yes on everyone except that one guy.'” Vigil ended up voting against Werner’s retention.

Werner told Colorado Politics his scores suffered from a survey response rate of just 10% from attorneys – with only 25 individuals who had sufficient knowledge of the judge turning in their answers. He agreed that the Blue Book narrative based on those surveys was the factor behind his high share of no votes.

“If it’s a low response rate, some of which may have been from attorneys on a highly contentious case – the more contentious the case you have, the more a judge is required to intervene and say no to somebody,” Werner said. “It used to be attorneys did not take things as personally as they do now.”

The survivor

In the northeast corner of Colorado, voters of Sedgwick County, population 2,300, gave a full term to county Judge James Craig Dolezal. A 2017 appointee, Dolezal was one of the two judges deemed not to meet performance standards in the state. Nonetheless, 60% of voters backed him on Election Day.

Despite his successful retention, Dolezal also had issues with the state’s judicial performance system.

“The difference between the rural and metro county judges is a totally different circumstances and totally different situation. Especially at the county level, where you’re not looking at anything elevated above a felony conviction,” Dolezal told Colorado Politics.

Dolezal does not have a law degree. His performance commission, while finding him to be fair, believed his lack of legal knowledge was beyond remediation. Dolezal countered that there was a deficit of attorneys in the county, and the pandemic halted his trips to courthouses to observe other judges. 

He had no idea why voters chose to retain him despite an unfavorable Blue Book recommendation. Dolezal explained that people in rural areas have very little contact with the judicial system. He himself only holds court once per month, and his next date had approximately 45 cases on the docket, ranging from traffic offenses to harassment or DUI.

“A lot of the people that I have in front of me as self litigants, I view them as more of a mediation situation,” he said, “and I’m more concerned about finding out all the facts in totality as opposed to listening to what the attorneys say.”

Dolezal knew the unfavorable review from the commission was coming, but chose to stand for retention anyway. Chris Melonakis, a retired judge in the 17th Judicial District who also served on the first Adams County judicial performance commission, said a judge’s knowledge of the Blue Book narrative has sometimes prompted them to retire instead.

“You don’t really have the 99% [retention rate],” Melonakis said. “They know what’s coming. They take the graceful way out instead of standing for retention.”

He acknowledged the Blue Book narratives influenced voters but also, “there’s word of mouth that goes on in the communities. People go in as jurors, as litigants,” he said. “They hear the chatter.”

Melonakis believed the survey results inform the Blue Book narrative for the public, but also inform judges of problems to fix. To the extent that people advocate publicly against their retentions, “you better have the right attitude going in because people have the right to speak up.”