Judicial Retention Elections Under Fire in State That Originated the Concept

Here in Colorado, just over a year ago, we marked the 40-year anniversary of the merit-selection system of judges.  (2006 was also that year that Amendment 40, seeking judicial term limits, was introduced onto the Colorado ballot).  Chief Justice Mullarkey, heralded the anniversary:

Forty years ago, Colorado took a great step forward in building a better state.  Voters abandoned the partisan political election of judges that had prevailed since statehood, and adopted the merit selection of judges. It was a bold and visionary move . . . No longer would judges be subject to political whims, from that time on judges have been held accountable to the constitution and laws . . . Looking back over the past four decades, we can see that the merit selection of judges has been the key to developing a fair and impartial state court system that is able to adapt to the changing times.

Because Missouri originated the merit selection (“retention”) concept, it is called the Missouri Plan, which is adopted by twelve states, presently.  In Colorado, the system is described as consisting of three interwoven components: The first establishes a nominating commission in each of the state’s 22 judicial districts for trial court vacancies and one statewide commission for the appellate vacancies. When a vacancy occurs, a nominating commission solicits applications through notices sent to the media, local bar associations and the state judicial website. The commission reviews the applications and interviews the candidates. The top two or three nominees, dependent upon the vacancy, are then forwarded to the governor. The governor has 15 days to select from these candidates. 

The second component is the Judicial Discipline Commission, which KnowYourCOURTS.com has exposed as a sham. Purportedly, all judges must comply with the Colorado Code of Judicial Conduct or are subject to discipline or removal from the bench. The commission is composed of 10 members: four citizens, two attorneys, two district court judges and two county court judges.

The third component is the evaluation of judges through commissions on judicial performance to purportedly provide voters with fair, responsible evaluations of trial, as well as appellate judges and justices seeking retention. The evaluations allegedly also provide judges with constructive information that can be used to improve their professional skills as judicial officers.  Some have criticized the pro forma commissions as illusory and for disregarding substantive criticisms and feedback provided by the public.  Moreover, as KnowYourCOURTS.com has pointed out on its Public Access to Court Records pages, it has become even more exceedingly difficult for anyone to independently learn about judicial performance, because entire categories of cases have been sealed from the public.