Evaluating the performance of justices

By William M. Banta

The opportunity for Colorado voters to decide whether a state Supreme Court justice is doing a good job doesn’t come around very often, only about once every 10 years. This year, four out of the seven justices who sit on the Colorado Supreme Court are up for retention.

Ten years is a long time for any public servant to go without a job review, and the 10-year election cycle is about the only accountability our Supreme Court justices have to the people of Colorado. The voter’s responsibility is determining whether or not to retain a justice is all the more important because this event occurs so infrequently.

Under our form of government, the function of the Colorado Supreme Court is to decide cases. When it comes to the job performance of individual justices, the written decisions of the court provide the key to their performance.

In the last few years, the Supreme Court (including all four members who are up for re-election) has weighed in heavily on important constitutional questions such as taxes, schools, and the proper role for courts (vis-ŕ-vis the legislative or executive branches of government).

The court has published controversial written decisions on these and other issues that impact Colorado citizens. Because the court’s recent rulings about taxes, schools and judicial authority are not straightforward in their reasoning, what voters are going to want for 2010 is some analysis of the decision-making.

In evaluating Supreme Court cases, the decisions should be reviewed for reasoning and clarity. The court’s conclusions should also be examined for adherence to the rule of law. For instance, when the language of the Colorado Constitution reads one way but a justice writes a decision or supports an opinion that interprets the constitution in the opposite way, there’s a legitimate question whether the justice colored outside the lines or adhered to fundamental principles. And that’s a job-performance issue that voters would want to consider.

In Colorado, there is a state commission on judicial performance that publishes its consensus of each justice’s performance. For each 10-year retention cycle, the commission is required to evaluate job performance, write up a narrative, and make a recommendation for the voters. In the past, the commission’s recommendation has always been that the voters should re-elect or retain a justice.

There has been a failure of real performance evaluation and a lack of analytical content in the write-ups for the voters. If narratives provide meaningful information about how a justice has decided cases, there will be accountability and the system will work as it is designed to do. Too often in the past, narratives have amounted to complimentary resumes instead of job performance evaluations. Some commentators and observers [e.g., KnowYourCourts.com]have denigrated the narratives as a “rubber stamp” exercise for retaining judges.

Now would be a good time for the commission to write up substantive performance evaluations for the justices who seek re-election. It would help the credibility of our judicial merit selection/ performance evaluation system.

The Colorado system for appointing, evaluating, and retaining or not retaining Supreme Court justices depends on voters receiving relevant, substantive and vigorous information about individual job performance. That’s what voters will need for the elections in November.

(William Banta was a State Judicial Performance Commission member in 2007 and 2008 and spent seven years on the 18th Judicial District Performance Commission before that.)

In this complaint to Chief Justice Mullarkey on unrelated issues and, which was drafted by a KnowYourCOURTS.com contributor,[n.1] the complainant inadvertently revealed the Standard of Review that Rick Wehmhoefer used.

According to his account of the telephone call, Wehmhoefer debated him about the merits of the divorce case from which his complaint arose: He claims that Wehmhoefer asked him, “If I were [sic.] to talk to your wife, what would she say about you? . . . What do the blogs say about you? . . . Are[n’t] there two sides to every story? Just answer the question –Are[n’t] there?”

He also claims that Wehmhoefer advised him that he should not have dismissed his appeal (which appears to have been legal advice).

[n.1] The contributor has asked to remain anonymous because of fear of retaliation from the divorce court judge with respect to his parenting time.

for cases, see:

• Scott v. Stutheit, 21 Colo. App. 28, 121 P. 151 (1912).
• Uptime Corp. v. Colo. Research Corp., 161 Colo. 87, 420 P.2d 232 (1966)

Dr. Rick has the "distinction" of being the first male telephone operator in the Bell system. (Read about it here).  However, `though Dr. Rick only rarely answers his own office phone these days and, while some may question what Dr. Rick has actually been doing these past 20+ years in his position as Executive Director of the Judicial Discipline Commission (other than mailing out pro forma denial letters), we understand that he is available for interviews to tell, "tales of stardom and seventies sexiness."

See our June 19, 2007 ColoradoPols blog entry here.

Ken Smith has posted a comprehensive editorial Web page (modeled after KnowYourCOURTS.com) regarding alleged corruption within Colorado's judicial oversight mechanisms.

Another page, found here, hosted by Chuck Corry, lists various Colorado agencies and resources including the following:

"Judicial discipline commission - This is widely regarded as a joke."