The Denver Gazette interviewed several former members of judicial performance commissions across the state about the newspaper’s review of appellate court decisions. Most refused to be identified because of concerns about legal retaliation for speaking about a system that is, by law, to remain secret.

Each of the 22 district commissions is made up of 10 members – six citizens and four lawyers. Their appointments come from: the Supreme Court Chief Justice, the governor, the House speaker, the Senate president, each of whom gets two, and the minority leaders of each chamber of the General Assembly who each get one.

The Chief Justice selects two attorneys, the governor two non-attorney citizens and the leaders of each chamber of the legislature gets one of each. The minority leaders choose a non-attorney each.

Commissions are busiest in election years, with rigid deadlines for when interviews must be conducted with the judge, district chief judges, district attorneys and public defenders. There are surveys that must be reviewed including those of jurors and attorneys who practice before the judge being evaluated.

By June of an election year, their work must be largely completed. Their final decision is made public in August after a judge decides whether to seek retention. Registered voters receive the state’s election “blue book” with the commissions’ recommendations sometime before the November election.

“I knew Colorado had a unique system of nominating and evaluating judges and the blue book was part of that,” said Jody Alyn, a non-attorney member of the Fourth Judicial District Performance Commission for nine years until she left in 2021. “I started the position with an eagerness to learn … and an idealism and hopefulness. I didn’t understand how the recommendations were arrived at, so I learned. I take voting really seriously.”

What Alyn found was a process in which “stacks and stacks of hard copies are to be read and then destroyed, a formal process” that included survey summaries – some with fewer than a dozen respondents – and a judge’s self-evaluation.

The only legal material were the three cases a judge under review had provided.

“I don’t remember that we always got only three, but they were instructed to provide us with three cases,” Alyn said. “All the time I asked why we only looked at so few cases and then only those selected by the judges. I remember asking what does it mean that the judges cherry-pick from their own caseloads. But those were the rules we worked by. I’m not sure it would even have been allowed to look on our own.”

Fellow commissioner Daniel Kay, a Colorado Springs attorney who served on the 4th District commission for a decade, thought he was the only one on his panel to actually read the appellate cases provided by the judges.

“I felt they were getting sick of me, frankly, and always asking questions about those few opinions,” Kay said.

Alyn read a number of appellate cases provided by The Denver Gazette of judges from a different judicial district than the one she served. She said she was shocked performance commissioners were “not getting the whole story.”

 “All I can say is, ‘Oh my God,'” Alyn said. “It was just astonishing to read those (cases) in a row. It’s pretty clear that a judge is reversed for a reason and the evidence is clearly laid out. There’s absolutely no question in my mind to have the appellate record would be advantageous to the commission and the voting public.”

How that would be done raised a different set of questions among legal experts and commissioners.

“If I were on the commission, I would want to see the information before interviewing the judge and to be able to ask about it all,” said Derek Kiernan-Johnson, a law professor at the University of Colorado. “Ultimately the point isn’t just for the voters. It’s a good workplace accountability review, with some teeth to actually reflect on their performance. A good judge would welcome that opportunity to reflect and explain.”

Reading the actual appellate decisions, and not relying solely on a statistic, would be paramount, according to former Colorado Supreme Court Justice Rebecca Love Kourlis, who founded the Institute for the Advancement of the American Legal System at the University of Denver.

“There are pros and cons to using data about where a judge’s orders are affirmed or reversed on appeal as part of the evaluation process … It may have little to do with a judge’s actions,” she wrote in an emailed statement to The Gazette. “Also, rural judges may not have many cases that are appealed, so the data can be skewed. If the appellate data is included, it should be analyzed thoughtfully and not given inappropriate weight.”

Commissioners interviewed by The Gazette said the additional information would help them see how a judge is really doing.

“Those cases need to be available to the review commissions,” Kay said. “But it’s not to carry any more weight than any of the other criteria. I think it would be beneficial if there’s a scorecard with a judge for the commission to use, something that shows their reversals and that we’re able to read them.”

It was suggested in 2009 that New York State consider, as part of a more comprehensive approach, adding a trial judge’s appellate record to the review process for any application to the appellate bench.

“Appellate Division candidates would be evaluated on their actual track record on the bench, rather than the praise of their hand-picked references,” according to an Albany Law Review article, noting the evaluations could include surveys, case management, “and the disposition of appeals from the candidate’s orders and judgments.”

The state’s process remains unchanged.

Colorado is among only 16 states in which judges are appointed by the governor and later retained by voters. The elections are not competitive and therefore not political in the accepted sense.

In Alaska, judges’ appellate records are integral to the evaluation process, which includes a public website listing a judge’s appellate record and links to the various cases for voters to read themselves.

“It’s useful and as an attorney and member of the public, it’s reassuring to know that someone’s taken a look that we don’t have a judge who’s reversed all the time,” said Susanne DiPietro, executive director of the Alaska Judicial Council that oversees the process. “As a practicing attorney who reads all the appellate decisions that come out each week, I can form my own opinion, but a member of the public might be reassured to know there’s a systematic way of reviewing records on appeal. It’s really just a tool of many.”

But it should only be part of the larger review process, some say, a chance to see if a judge is faltering in areas of the law that indicate either a small problem or one that would give commissioners pause before unanimously recommending retention.

“Anyone can make a call on a case and see it reversed,” said Chris Melonakis, a retired 17th Judicial District Court judge. “But if there’s a pattern, where the judge is consistently disregarding the law or creating stupid issues and reversed on the same issues, then that’s something that’s useful for a commission to see, but only as part of the overall.”

Commissioners would have a better picture of whether a judge is actually any good at being a judge, not just whether they manage a docket well, speak clearly, are nice to jurors or have a presence in the community, Alyn said.

“Using any single measure as the defining measure, I’d caution against,” Alyn said. “But I certainly think the appellate record is one of the more objective and most readily available, and one of the more important measures. Knowing now what we’ve been missing all this time adds to my concerns. Frankly, I’m flabbergasted.”