Everyone, at some point and in some job, will have a performance review. They are critical to ensuring that an office, store, or team runs smoothly. It’s a place of accountability for both the supervisor and the employee. They are routine at almost every workplace, and in the state of Colorado, the position of judge is no different; only their supervisors are the public.
A judge’s probationary period, after they are picked by the Nominating Commissions and appointed by the governor, is only the first half of the Colorado judicial appointment system. The second half relies on retention elections. Retention elections differ from partisan or nonpartisan elections by removing both party attachments and opponents. In a retention election, you are simply voting “Yes, this judge should remain on the bench” or “No, they should be replaced.” A simple 50% majority is needed. These elections happen two years after a first-time appointment and after the court’s allotted term: ten years for the State Supreme Court, eight years for the Court of Appeals, six years for the District Courts.
Early critics of the merit system argued that increased judicial independence eroded the public’s right to hold those in positions of power accountable. The lack of information in retention elections thus constituted a blind vote. In 1988, this concern was addressed with the creation of the Office of Judicial Performance Evaluation and its byproducts, Judicial Performance Commissions and Judicial Performance Evaluations (JPEs). Colorado is one of many states that hold retention elections to “re-elect” judges, but it is one of seven states that attach a performance review to each and every voter’s ballot. In other states, such as Massachusetts, Rhode Island, Illinois, and Idaho, the reviews are sent only to the judges. In five states, reviews are given only to the reappointment body, usually the governor’s office.
Performance evaluation commissions are a separate entity from both the nominating commission and the Commission of Judicial Discipline. The latter focuses on complaints of direct judicial misconduct. The commissions, like their nominating brethren, are split between attorney and non-attorney. Kent Wagner, the Executive Director of the Office of Judicial Performance Evaluation, says that lawyers are essential to the committees for their legal expertise. But non-attorneys are just as valuable: “I think it’s really important to have non-attorneys in courts or in judicial performance evaluations because we want the average person to be able to understand what’s happening in a courtroom. If the rule of law is going to work, people have to understand what courts are doing.”
There are twenty three district commissions, one for each judicial district. An additional state commission oversees both the Colorado Supreme Court Justices and the Court of Appeals. Each commission (except the statewide commission, which has one more lawyer member) has ten members, six of whom must be non-attorneys and four of whom must be attorneys. The governor and the chief justice each appoint one attorney member and two non-attorney members, and the Speaker of the House and the President of the Senate each appoint one attorney member and one non-attorney member. The commissioners serve four-year terms.
HOW EVALUATIONS ARE CONSTRUCTED
Judicial Performance Evaluations, or JPEs, are the judicial system’s way of balancing independence and accountability, providing voters with nonpartisan information about their judges. They don’t study or report a judge’s decision record (although that information is public). Rather, JPEs focus on behavioral traits that pertain to the act of judging itself.
To provide an even playing field for all the judges, the JPEs focus on the following criteria alone:
- Integrity
- Legal knowledge
- Communication skills
- Judicial temperament
- Administrative performance
- Service to the legal profession and the public
To write these recommendations, the commission members venture down several data-collection avenues: judicial survey data, case-processing statistics, judicial opinions and orders, and self-evaluations from the judges. In addition, the commission members conduct in-court observations and judicial interviews.
When looking at a judge’s opinions, the commissioners aren’t looking at the effect of the opinion per se but rather at the writing itself. Wagner says, “I want the non-attorneys to be able to understand what actually happened in the case, what the judge decided, how they decided it, what facts they used to decide it, and a clear understanding of what the outcome is going to be.”
Possibly the largest section of data consists of written surveys. According to the Office of Judicial Performance Evaluation, survey report results are compiled from attorneys (including prosecutors, public defenders, and private attorneys), non-attorneys (including jurors, litigants, law enforcement personnel, court employees, court interpreters, probation office employees, social service department employees, and crime victims), and other judges. These surveys ask respondents to rate the judge on each of the six criteria. One concern emerges with taking such feedback from the public: if each case leaves at least 50% of the parties unhappy, how are the surveys fair? The first line of defense is the way the survey is constructed. According to Wagner, there are no questions about an individual case or its outcome. In addition, Wagner explains that the surveys provide both positive and negative information about the judges, which the commissioners can then contextualize and balance with their own observations. Finally, the commissioners visit the court to interview each judge. These in-person interviews allow for balance, as commissioners can seek clarity on survey responses.
One metric that Colorado doesn’t use is the decision reversal rate. Wagner explains that this statistic, while simple on the surface, doesn’t present the full picture. While some judicial opinions are overturned due to outright judicial error, many are simply a higher court setting a new legal precedent.
Finally, while partially based on data, many of these evaluations are subjective, so how can commissions ensure that fair and honest reviews are submitted? Here, the largest strength is the diversity of commissioners and the size of the commissions. On this point, Wagner draws a simple but striking picture: “you have to get ten people who are going to agree that this is what you’re going to say about that judge’s performance and in the way that it’s drafted. So it’s really a balance.”
Also, the system has its own checks and balances. This past August, in preparation for this year’s retention elections, three judges were found not to meet standards. In an unprecedented move, the statewide commission published its own retention narrative and recommendation, directly contradicting the district commission’s. This was after the state commission found one of the reviews in this northeastern district violated the rules in a “serious” manner. This was preceded by a complaint by the judge that the commission failed to conduct the legally mandated initial evaluation. In her response to the narrative, District Court Judge Dina M. Christiansen said, “I respectfully disagree with the commission’s narrative as it is not based on objective data contained in my 2026 evaluation showing 93% of attorneys and 82% of non-attorneys state that I do meet performance standards.” As a result, voters in the 13th judicial district will receive two narratives from both the state and district commissions. JPE is an organic system that changes in response to new information.
Danielle Kalil, Director of Civil Justice and the Judiciary at the Institute for Advancement of the American Legal System (IAALS), has been working on a project called JPE 2.0, a plan to revise and update JPEs for the 21st century. Part of this project involves restructuring and redefining the established criteria to limit bias. One example is the question of a judge’s temperament. As she explains, “That is such a subjective question; there’s almost no way to keep bias out of that question.” Her solution is to zoom in on specific behaviors, “instead, asking, did the judge speak respectfully to people in the courtroom? Did the judge explain what was going on? Did the judge show up on time?” You can prompt an evaluator about specific behaviors rather than a judge’s general impression.
HOW DO WE GET TO MEET OR DOES NOT MEET THE CRITERIA?
After collecting the data and interviews, the commissions meet up to create their narrative. This narrative summarizes the judge’s strengths and weaknesses and outlines specific problems. In 2017, a change was made to this system, wherein commissions shifted from recommending retention to simply indicating whether the judge does or doesn’t meet the criteria. This change was in response to the voter’s desire to not be told “how” to vote.
Once the narrative is complete, it is not only put in every Colorado Blue Book but also published on the Office of Judicial Performance Evaluation’s website. At that point, it is out of the commission’s hands and solely into the hands of the voters. Most of the time, voters vote to retain judges who receive a “meets criteria” evaluation and vote to remove judges who receive a “does not meet criteria ” evaluation. However, there are always outliers. In the past 16 years, there have only been 2 cases where the public did not agree with the commissions.
HOW ARE JUDGES REMOVED FROM THE BENCH?
According to the 2024 Judicial Performance Evaluation Statistical Report, “Colorado voters elected to retain 1,898 of the 1,914 (99.2%) judicial officers standing for retention since 1990.” Upon seeing such high retention rates, one could question how this system gets problematic judges out. The answer is twofold.
First, as Brittany Kauffman, CEO of IAALS, explains: “While one aspect of the process is to give information to the public, there’s also a role that JPEs play in giving feedback to the judges so that they can perform better.” JPEs are given not only to the voters but, importantly, to the judges themselves, and even more importantly, before they decide whether or not to stand for retention. If a judge decides not to stand for retention, their JPE for that election cycle never becomes part of the public record. This means a judge who receives a negative JPE could simply bow out before it’s released for everyone to read. Underperforming judges are filtered out by the system, just not as publicly.
The second answer lies in the difference between Performance Evaluation Commissions and the Colorado Commission of Judicial Discipline. According to their website, the Judicial Discipline Commission describes their role as “protecting the public from improper conduct of judges”. Outright violations of judicial ethics and procedures are sent to this commission, which is charged with the possible removal of such judges.
FUTURE OF JPES
One of the biggest proponents of this system was Supreme Court Justice Sandra Day O’Connor. In 2014, 12 years after retiring as a Supreme Court Justice and 5 years after launching the Quality Judges Campaign with IAALS, Justice Sandra Day O’Connor launched her “Judicial Selection Plan”. The plan suggests four critical elements, all of which Colorado has: a judicial nominating commission, gubernatorial nomination, judicial performance evaluations (JPEs), and retention elections. IAALS is dedicated to improving and continuing O’Connor’s work with the JPE 2.0 project.
This project took years to research, drawing on JPE experts across the country and conducting surveys of over 700 judges in Colorado, Alaska, Hawaii, Massachusetts, New Mexico, Idaho, Utah, and Virginia.
As IAALS’s Danielle Kalil explains, most of the current JPE systems were built in the 80s and don’t fully encompass what the job of judge has become. The largest part of the project is adjusting and recommending new criteria for evaluating these judges.
First, expanding “legal knowledge” to “judicial competence”. This competence would encompass not only a basic understanding of the law but also substantive law, procedures, technology, and community knowledge. The plan would expand the communication category to include the judge’s staff, holding the judge responsible for what their clerk and other staff say in court. They want to reform the administrative performance criteria to differentiate between factors within and outside the judge’s control.
The final adjustment includes adding a category that Colorado already has: Service to the legal profession and the public. Kalil explains that in several JPE states, this category either doesn’t exist or it exists as “community service”. She gives a specific case in which this wording could be negative: “If you’re a rural judge, you’re the only judge in town it might create an appearance, for example, of you being biased towards a particular part of the community.” This small adjustment in wording to “advancing the legal system” allows and encourages a judge to give back. Kalil explains, “the idea here is that part of the job of the judge is to make the system work well because they have such a unique vantage point and a front row seat to what’s working well and what’s not.”
JPE 2.0 is still in development and working with states, including Colorado, on implementation.
HOLES IN THE SYSTEM
Similar to the nominating commissions, one large issue with the system is vacancies. Colorado is unique in that each judicial district is granted both a nominating and evaluation commission. While this allows evaluations by the people who are most impacted by these judges, it requires many more people. According to the Office of Judicial Performance Evaluation, there are 26 commission vacancies, of which sixteen are non-attorney, and 10 are attorney slots. The 15th Judicial District, covering Baca, Cheyenne, Kiowa, and Prowers counties, is missing four alone, and only nine commissions are fully staffed. For JPEs to be completed in a timely and substantive manner, the commissions need to be staffed.
If you are interested in applying to become a commissioner, go to this website and select the performance evaluation commission for your district from the drop-down menu and you will be directied to the application. To qualify, you need to live in the judicial district you hope to join or live in Colorado for the state commission. In addition, the Office of Judicial Performance Evaluations seeks to ensure that appointments and committees as a whole reflect the diversity of the given area across race and ethnicity, gender, and disability. Finally, you would need to commit time to annual training provided by the Office of Judicial Performance Evaluations, as well as to reviewing performance surveys, reading legal opinions, observing courtrooms, interviewing judges, and completing scorecards to determine whether judges meet performance standards.
Colorado’s merit selection system determines how judges reach the bench. Judicial performance evaluations help voters decide whether to keep them there. Together, the two systems seek to balance judicial independence with public accountability—while giving Colorado citizens a meaningful role in both.
