Colorado Commissions on Judicial Performance

Transcription

1 Colorado Commissions on Judicial Performance 2014 Training Garfield County Courthouse Denver City & County Building El Paso County Courthouse (Historic) Weld County Courthouse Montrose County Courthouse (Historic) Office of Judicial Performance Evaluation 1300 Broadway, Suite 220 Denver, CO Kent J. Wagner Executive Director

2 Table of Contents Section 1: Colorado Judicial Branch Judicial Districts of Colorado.. 1 Colorado Court Facts... 2 Colorado Courts at a Glance 4 Section 2: Judicial Performance Materials Fact Sheet 17 Frequently Asked Questions 22 Title 13, Article 5.5, Colorado Revised Statutes. 27 Rules Governing the Commissions on Judicial Performance.. 41 Code of Judicial Conduct 50 Section 3: Evaluation Process 2014 Timeline.. 99 State Commission(er) Responsibilities District Commission(er), Chair, District Administrator Responsibilities Self-Evaluation Forms Questionnaires Chief Justice Directive Open Caseload Report Courtroom Observation. 132 Decision/Opinion Review. 136 Survey Methodology. 139 Guidelines for Conducting Public Hearings. 145 Narrative Requirements. 147 Improvement Plans. 151 Section 4: Reference Materials Addressing Implicit Bias in the Courts. 155 i

3 SECTION 1: COLORADO JUDICIAL BRANCH

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5 Court Facts Organization of the Judicial Branch The Colorado Supreme Court is the state's court of last resort. Requests to review decisions of the Colorado Court of Appeals constitute a majority of the Supreme Court's filings. The Colorado Court of Appeals is the state's intermediate appellate court. The Court of Appeals has jurisdiction, with exceptions, over appeals from the Colorado District Courts. There are 22 Judicial Districts within the state of Colorado as established by the state Legislature in The last major revision was November 2001 with the consolidation of Broomfield in the 17th Judicial District. Changes in district boundaries require a two-thirds vote of each house of the Legislature. District Court is a court of general jurisdiction, handling criminal, civil, domestic relations, juvenile, probate, and mental health cases. County Court is a court of limited jurisdiction, handling misdemeanors, criminal traffic violations, civil traffic infractions, small claims, felony complaints (which may be sent to District Court), and civil cases of under $15,000. There are seven water courts, one in each of the major river basins (South Platte, Arkansas, Rio Grande, Gunnison, Colorado, White, and San Juan rivers). They are divisions of the district court in that basin. Probation is also the responsibility of the Colorado Judicial Branch. Managed by the chief probation officer in each judicial district, probation employees prepare assessments and pre-sentence information for the courts, supervise the offenders sentenced to community programs, give notification and support services to victims, and provide special program services. As of July 1, 2012, there were more than 54,600 adults and juveniles on probation. In addition, more than 25,500 adults were on private probation or DUI monitoring. Personnel The head of the Colorado Judicial Branch is the chief justice of the Supreme Court, who is elected to the position by the justices of the Court. The justices select a state court administrator to oversee the daily administration of the branch. As of July 1, 2013, the Colorado Judicial Branch had 321 authorized positions for justices, judges and magistrates: seven Supreme Court justices, 22 Court of Appeals judges, 178 District Court judges, and 114 County Court judgeships. This excludes Denver County Court judges (17), who are appointed by the mayor of Denver. As of July 1, 2013, justices and judges are paid: chief justice of the Supreme Court, $147,805; associate Supreme Court justices, $144,688; chief judge of the Court of Appeals, $142,140; Court of Appeals judges, $138,957; District Court judges, $133,228; County Court judges, $127,497; Magistrates $110,040. Forty-three senior judges, who are retired from the bench, each hear cases approximately 60 days per year in districts where there are vacancies, a backlog of cases, conflicts of interest, etc. Business In the past 10 years, County Court filings have grown 2.92 percent. The growth was primarily in civil cases. District Court filings have grown percent. The greatest growth occurred in civil distraint warrant (tax lien) filings during Fiscal Year In Fiscal Year 2012, there were 484,371 cases filed statewide at the County Court level, 288,877 cases filed in District Court, 2,711 in the Court of Appeals and 1,494 in the Supreme Court. There were 1,076 cases filed in the 2

6 water courts. Courts funded by the state s General Fund include: Supreme Court, Court of Appeals, District Courts, and County Courts. Municipal and Denver County courts are funded by their respective local governments. Source: 3

7 Colorado Courts At A Glance Colorado Courts At A Glance is published by the Colorado Judicial Branch Office of the State Court Administrator 1300 Broadway, Suite 1200 Denver, CO (information current as of April 2011) A Message from the Chief Justice of the Colorado Supreme Court Thank you for your interest in the Colorado courts, one of the three branches of government working independently for a common goal: to protect the rule of law, the ideal that our country s founders worked so hard to reach. The Colorado Judicial Branch is charged with two responsibilities: resolving disputes and supervising offenders on probation. By resolving controversies according to the rule of law, the judiciary furthers the founders paramount principal that we are a government of laws and not people. No one is above the law; our courts protect individual rights and are open to all. Our busy state court system has four levels of courts: county courts, district courts, the Court of Appeals and the Supreme Court. County courts handle more than 541,000 case filings per year, and the district courts including our seven specially designated water courts handle more than 237,000 cases per year. The 22 judges of the Court of Appeals, sitting in panels of three, handle about 2,900 cases annually, and the seven-member Supreme Court, in which all justices hear each case, receives more than 1,500 case filings each year. This booklet provides an overview of Colorado s state courts and the justice system in order to help you better understand how the courts function and what rights you have in the courts. We believe a more complete understanding of the justice system also will help all citizens appreciate the important role an independent judiciary plays in protecting their constitutional rights. We hope you find this booklet useful and informative. Michael L. Bender Colorado Supreme Court Chief Justice 4

8 Introduction Colorado s courts play important roles in your life. When you buy or sell goods or property, get married or divorced, have children, work, retire, drive a car, and even after you die, your state courts can protect your rights and can enforce your responsibilities. If you are the victim of a crime, are accused of committing a crime, or witness a crime, you may be required to appear in a Colorado court. You may also be called upon to serve as a juror, one of the most important privileges we all share as citizens. In addition to state courts, there are federal courts in Colorado that deal with federal laws, such as bankruptcies and matters involving the United States Constitution. This booklet does not discuss federal courts. They are part of a parallel but entirely different judicial system. This booklet is designed to answer questions that you, the people of Colorado, may have about your state judicial branch. The following few pages present an overview of the Colorado Judicial Branch how it works and how it affects you. A glossary containing legal terms is provided beginning on page 11. Your rights in court If you are arrested or charged with a crime, even some types of traffic violations, you have certain constitutional rights. It is wise to exercise these rights even if you later decide to plead guilty to the charges. What are these rights? You have the right to remain silent and to refuse to answer any questions asked by police officers and other officials about the event. Anything you say may be used against you. You have the right to have a lawyer represent you. If you cannot afford to pay for a lawyer, you can ask the judge to appoint one for you. You have the right to a public and speedy trial, either by a jury or a judge only. You are not required to prove your innocence; instead, you are presumed innocent of any crime unless the district attorney (city attorney in a municipal court) presents sufficient evidence to prove your guilt beyond a reasonable doubt. You are entitled to testify in your own defense if you want to, but you cannot be forced to testify. You or your attorney may cross-examine any person who testifies against you. You are allowed to bring in witnesses, and the judge can order any person you want as a witness to appear in court. If you are found guilty, you have the right to appeal. You also have the right to make a statement or present additional information to the judge at the time of sentencing. The judge decides the sentence unless the death penalty is a possibility, in which case the jury decides. Violations of private rights and duties are considered civil cases. Suits can be brought for such matters as the recovery of damages from negligence, breach of contract, or violation of civil rights. The court does not appoint attorneys in civil cases; however, legal aid services may be available for people who cannot afford a lawyer to represent them in civil matters. Family law cases involving such things as dissolution of marriage, child support, allocation of parental responsibility, and dependency and neglect also are considered civil cases. People who cannot afford legal representation for family law cases also may qualify for legal aid services or for court-appointed counsel. For more information on our courts, please visit Colorado Courts at a Glance 5

9 Types of courts Several different courts in Colorado handle various kinds of cases. These courts are: MUNICIPAL COURTS Municipal (city) courts deal with violations of city laws committed within the city limits. Generally, these laws involve traffic, shoplifting, and minor offenses such as dog leash-law violations and disturbances. For some cases, you may have the right to a jury trial and to tell your side of the story in municipal court. Municipal courts are not state courts; however, you may appeal a municipal court decision to a state court. COUNTY COURTS Every county in the state has a county court, with at least one county judge. These courts handle traffic cases and minor criminal matters, as well as civil actions involving no more than $15,000. You may have a jury trial in many types of county court cases. An appeal from a county court decision may be made to the district court. Denver s court system, which will be explained later, differs from the courts in other counties in that it is administered by the City and County of Denver. SMALL-CLAIMS COURTS Small-claims courts are divisions of county court. Individuals are allowed to argue their own cases and to have speedy decisions on civil matters involving no more than $7,500. Court sessions are held during the day or evening to accommodate the public. There are no jury trials in small claims courts, and sometimes a magistrate hears the cases instead of a judge. Normally, neither side can be represented by an attorney. No plaintiff may file more than two claims per month or 18 claims per year in small-claims court. DISTRICT COURTS Each county in the state is served by a district court. Colorado is divided into 22 judicial districts. Unlike county courts, where there is at least one judge per county, district judges are assigned to the judicial district and may serve more than one county within that judicial district, particularly in rural areas of the state, where as many as seven counties may be included in a district. District courts have authority to handle many types of cases, including dissolution of marriage, civil claims in any amount, juvenile matters, probate (estates), mental health, and criminal matters. You may appeal a district court decision to the Colorado Court of Appeals and/or to the Colorado Supreme Court. WATER COURTS Colorado has seven water courts, one in each of the major river basins (South Platte, Arkansas, Rio Grande, Gunnison, Colorado, White, and San Juan rivers). Water court is a division of district court, and the Supreme Court appoints a district court judge from within each water division to act as water judge. Other personnel include the clerk of the water court and a water referee, who investigates applications for water rights and has the authority under a water judge s supervision to rule on such applications and other related matters. Water courts have exclusive jurisdiction over water rights, their adjudication, and litigation concerning such rights. Thus, cases relating to the determination of water rights and the uses and administration of water resources are determined by water judges. There are no jury trials in water courts, and all appeals from water judges decisions are filed directly with the Colorado Supreme Court. DENVER COURTS Denver s court system differs from those in the rest of the state, in part because Denver is both a city and a county. The Denver County Court functions as a municipal as well as a county court and is paid for entirely by Denver taxes rather than by state taxes. Denver County Court judges are appointed by the mayor of the city of Denver. Denver has the only separate juvenile court and separate probate court in the state. In other parts of Colorado, district courts handle juvenile and probate matters. The Denver juvenile and probate courts are state courts, along with Denver District Court. Colorado Courts at a Glance 6

10 PROBATE COURT Probate courts oversee the distribution of estates after deaths. They also appoint guardians and conservators to oversee the affairs of living persons who have been declared incapacitated. Probate courts also handle all involuntary mental health and alcoholism commitments. Denver is the only Colorado jurisdiction to have a special probate court. In Colorado s other judicial districts, probate matters are handled by district court judges along with other civil, criminal, domesticrelations and juvenile matters. JUVENILE COURT Juvenile courts handle matters of juvenile delinquency, dependency and neglect, paternity, adoption and relinquishment. All cases in juvenile court are civil actions. Delinquency cases involve allegations that a juvenile has broken criminal laws. The parents of the juvenile also are named in a delinquency petition. If a juvenile is found to have broken criminal laws, the court s options range from ordering special schooling or treatment for the juvenile to incarceration of the juvenile. Dependency and neglect cases involve allegations of abuse or neglect of children by their parents or legal guardians. If a child is found to be dependent and neglected, the juvenile court will order a treatment plan for the adult involved if possible or, as a last resort, if a treatment plan is unsuccessful, may terminate parental rights. Denver is the only Colorado jurisdiction to have a special juvenile court. In Colorado s other judicial districts, juvenile matters are handled by district court judges along with other civil, criminal, domesticrelations and probate matters. COURT OF APPEALS The Colorado Court of Appeals, located in Denver, has 22 judges. One is appointed by the Colorado Supreme Court chief justice as chief judge. The court sits in divisions, each consisting of three judges. Divisions of this court sometimes go to various parts of the state to hear oral arguments in cases that have been appealed from the state trial courts. Unlike the other courts discussed above, the Court of Appeals is not a trial court. The Court of Appeals usually is the first court to hear appeals of decisions made by Colorado district courts and Denver s probate and juvenile courts. In addition, it is responsible for reviewing the decisions of several state administrative agencies. Its determination of an appeal is final unless, upon petition of a party, the Colorado Supreme Court agrees to review the matter. SUPREME COURT The Colorado Supreme Court has seven justices. A chief justice is elected by the court from its membership. The chief justice is the chief executive officer of the judicial branch of state government. The Supreme Court is the court of last resort or the final court in the Colorado court system. An individual who has appealed to the Court of Appeals and is still dissatisfied with the outcome may ask the Supreme Court to review the case. In most situations, the Supreme Court has a right to refuse to do so. In some instances, such as water-rights or election-related cases, individuals can petition the Supreme Court directly regarding an administrative body s or lower court s decision. In addition to its legal duties, the Supreme Court has supervisory and administrative responsibilities. The Supreme Court has supervisory power over all other state courts and over all attorneys practicing law in Colorado. The following bodies assist the Supreme Court in its duties: The State Court Administrator s Office serves as the administrative arm of the state courts system. The office prepares the annual budget and request for appropriation from the Colorado legislature; supervises adult and juvenile offenders on probation; manages fiscal operations and purchasing; supervises personnel and payroll; maintains the Office of Dispute Resolution; and is responsible for computer operations, planning, internal fiscal and management audits, and training of judges and branch personnel. The Attorney Regulation System provides the process for receiving and investigating complaints against attorneys through the Office of the Attorney Regulation Counsel. The Presiding Disciplinary Judge hears cases and determines appropriate discipline. An attorney disciplined through this process can appeal the decision to the Supreme Court. The State Board of Law Examiners reviews the educational, professional, ethical and moral qualifications of individuals who want to be lawyers in Colorado. The board recommends qualified applicants to the Supreme Court. The court uses those recommendations to determine who may practice law in Colorado. For more information on our courts, please visit Colorado Courts at a Glance 7

11 Judges Colorado s population increases every year. As a result, the number of cases filed in the courts increases every year. Colorado judges work hard to cope with the increasing number of cases so individuals may have prompt court hearings. This is not an easy task. Judges do their best to move cases through their courts as fast as possible while still making certain that everyone has a fair hearing. The sheer number of cases sometimes makes this difficult. With the approval of the chief justice, senior judges who retire from service may assist local courts with case backlogs, and fill in for judges during vacations and emergencies. Trial judges have many responsibilities in addition to presiding over trials. The judges frequently must hold hearings where they listen to evidence and arguments and decide questions of law that are involved in a case. Judges spend considerable time researching legal matters and writing orders and opinions. Trial judges also have the responsibility of advising people of their constitutional rights when they are charged with a crime. To ensure that there is an adequate number of judges to handle cases in a timely manner, the state court system will occasionally request the addition of new judgeships to the trial courts in the districts where they are most needed. Only the Legislature has authority to add new judgeships to the state system. Judges on the Court of Appeals and the justices on the Supreme Court do not handle trials. They decide an appealed case by reading the printed record of the trial and by considering written briefs and hearing the arguments of the lawyers on both sides. They research and review the law involved in the case and then write opinions, some of which are published and become part of the law of Colorado. HOW DOES A JUDGE BECOME A JUDGE? A judge must be a special person: fair, just and knowledgeable in the law. How do judges attain their places on the bench? The people of Colorado passed a constitutional amendment in 1966 which provides that state judges be appointed rather than elected on a political ticket. This is called a merit selection system. When a vacancy occurs in a state court, a judicial nominating commission interviews applicants and recommends two or three individuals to the governor for consideration. The governor then appoints one of them as a judge to fill the vacancy. Every judicial district has a nominating commission. Each judicial nominating commission consists of three attorney members and four non-attorney members. The non-attorneys are appointed by the governor, and the attorneys are appointed jointly by the governor, Supreme Court chief justice and the attorney general. Every nominating commission has one more non-lawyer than there are lawyers, and no political party may have a majority of more than one on a commission. A state commission recommends individuals for the Court of Appeals and Supreme Court vacancies. The state commission is composed of one lawyer and one non-lawyer from each of Colorado s seven congressional districts, plus a nonlawyer member-at-large. The Colorado Constitution requires each judge to stand for retention election after serving a full term. Voters select yes if they wish to grant the judge another term in office or no if they think the judge should not be retained in office. Initially, a judge serves a two-year provisional term before standing for retention and then serves a full term. A county judge serves a four-year term; a district judge, six years; a Court of Appeals judge, eight years; and a Supreme Court justice, 10 years. All judges must retire by age 72. Our courts also benefit from the service of retired judges, who may be appointed at the request of trial courts, to hear cases in which judges have recused themselves or to fill in when a judge is absent or when there is a judicial vacancy or an overscheduled docket. Senior judges contract to provide 60 or 90 days of service per year. In return, the judge s retirement benefit is temporarily increased. For more information on judicial nominating commissions, please visit Colorado Courts at a Glance 8

12 JUDICIAL PERFORMANCE In 1988, the Colorado General Assembly created judicial performance commissions for the purpose of providing voters with fair, responsible, and constructive evaluations of trial and appellate judges and justices seeking retention in general elections. The results of the evaluations also provide judges with information that can be used to improve their professional skills. The State Commission on Judicial Performance develops evaluation techniques for district and county judges, judges of the Court of Appeals, and justices of the Supreme Court. Criteria include integrity; knowledge and understanding of substantive, procedural, and evidentiary law; communications skills; preparation for, attentiveness to, and control over judicial proceedings; sentencing practices; docket management and prompt case disposition; administrative skills; punctuality; effectiveness in working with participants in the judicial process; and services to the legal profession and the public. Each judicial district has its own 10-member Judicial Performance Commission. The governor and chief justice each appoint one attorney and two non-attorneys. The president of the Senate and speaker of the House each appoint one attorney and one non-attorney. The state commission is responsible for evaluating the performance of judges of the Court of Appeals and of the justices of the Supreme Court. Its members are appointed in a similar manner. Narrative profiles and recommendations concerning retention are available at least 45 days before each general election for those judges subject to that year s retention vote. The information is available on the judicial Web site and is published in the Colorado Legislature s Blue Book of Ballot Issues, which is mailed to each voter household prior to the election. For more information on the commissions, please visit COMMISSION ON JUDICIAL DISCIPLINE The Colorado Commission on Judicial Discipline oversees the ethical conduct and behavior of state court judges, justices, and senior judges. Created in 1966, the commission is composed of 10 members: four citizens, two attorneys, two district court judges, and two county court judges. The citizen and attorney members are appointed by the governor and must be approved by the Colorado Senate. The judge members are appointed by the Colorado Supreme Court. Commission members serve staggered four-year terms. The commission does not have jurisdiction over Denver County Court or municipal court judges. Complaints against these judges go to the mayors of the respective cities. The commission has the constitutional authority to investigate allegations of any of the following acts: Willful misconduct by a judge, including misconduct which, although not related to judicial duties, brings the judicial office into disrepute or is prejudicial to the administration of justice; Willful or persistent failure of a judge to perform judicial duties, including the incompetent performance of judicial duties; Intemperance, including extreme or immoderate personal conduct, recurring loss of temper or control, abuse of alcohol, or the use of illegal narcotics or dangerous drugs; Any conduct on the part of a judge that constitutes a violation of the Colorado Code of Judicial Conduct; or A disability, which is or is likely to become permanent, that interferes with the performance of judicial duties. For more information on the commission, please visit Colorado Courts at a Glance 9

13 The jury system Anatomy of a Colorado jury trial VOIR DIRE JURY SELECTED OPENING STATEMENTS BY LAWYERS PLAINTIFF S OR PROSECUTOR S CASE Presents evidence and testimony Defendant s lawyer cross-examines DEFENDANT S CASE (If defendant chooses to present a case) Presents evidence and testimony Plaintiff s lawyer or prosecutor cross-examines REBUTTAL BY PROSECUTOR OR PLAINTIFF JUDGE S INSTRUCTIONS TO THE JURY ON THE LAW CLOSING STATEMENTS BY LAWYERS JURY DELIBERATIONS AND VERDICT ENTRY OF JUDGMENT The jury system is an important part of the court process in Colorado. Persons accused of crimes have a right to trial by jury. Parties to a civil suit may choose to have their case decided by a jury. Jurors are selected at random from a computerized list of names taken from voter and driver s license registration records, and Department of Revenue lists. Juror summonses are then sent to the people selected, informing them when and where they are to appear for jury service. About 95 percent of all jury trials in the world take place in the United States. Those who have served as jurors often express a feeling of pride in and respect for our system of justice and an appreciation for the opportunity to be part of the judicial process. Efforts to streamline the jury system and make it more effective are continuing. Jurors in Colorado serve for only one day or one trial in any calendar year. Colorado jurors may take notes during trials and submit written questions to be posed to witnesses by the judge if the judge approves. Jurors also are given notebooks containing pertinent information about the case such as the judge s instructions, a glossary of terms used during the trial and information about witnesses and exhibits. If the parties agree, jurors also may discuss the case with each other before the trial is complete. Parties are encouraged to use technology to speed the presentation of evidence. Employers must pay regular employees who are serving as jurors their regular wages (or up to $50 per day) for the first three days of the trial. Unemployed jurors may claim a reimbursement for expenses. The state pays $50 per day to all jurors after the third day. The opportunity to serve on a jury allows you to become a better informed and more responsible citizen and to learn more about your courts and the law. For more information on jury service, please visit and be sure to click on the ``Colorado Jury Service video link. Colorado Courts at a Glance 10

14 The legal system Like the United States, the State of Colorado has three branches of government: Executive, Legislative, and Judicial. The Colorado Constitution defines each branch s responsibilities. The Constitution also guarantees many specific legal rights to all Coloradans and provides for the establishment of state courts. Courts are part of the Judicial Branch of government, and their major function is to resolve disputes. CIVIL DISPUTES Colorado s courts have power (called jurisdiction) to decide two kinds of disputes civil and criminal. Civil cases usually involve conflicts between private citizens, such as disputes over contracts, wills, personal injuries, or family law matters. Government departments, agencies, and officials may also be involved in civil cases. In deciding civil cases, judges often must interpret laws made by the Legislative Branch or rules made by government departments or agencies that are part of the Executive Branch. Litigation is only one way to resolve legal disputes; other methods are called alternative dispute resolution, or ADR. There are two basic types of ADR: negotiation, in which the parties have control of the decision-making; and adjudication, in which a neutral person makes the decision. Mediation is the most commonly used negotiation type of ADR. In mediation, a trained neutral third party helps the parties reach a resolution, but the parties make the actual decision. Arbitration is the most common adjudication type of ADR. Arbitration is like an informal trial where a neutral third party hears evidence and arguments from the parties and then makes a binding decision (called an award). An award made through binding arbitration can be appealed only for very limited reasons. CRIMINAL CASES Criminal cases in state trial courts involve charges of violations of certain laws enacted by the Colorado General Assembly, the Legislative Branch. Criminal charges are filed by government attorneys, called district attorneys, on behalf of the people of the State of Colorado. Some criminal charges called indictments are filed by grand juries, but this procedure is rarely used in Colorado state courts. The Colorado General Assembly establishes the definition of crimes and sets the ranges of penalties that trial judges may impose on convicted criminals. The Judicial Branch is responsible for the state courts and probation services. The Colorado Department of Corrections a department of the Executive Branch is responsible for the state prison system and community corrections facilities. Parole also under the Department of Corrections is the supervision of convicted criminals after they are released from the state prison system. The governor has constitutional power to change the sentences of convicted criminals. City (also called municipal) governments are similar in organization to the state government. City councils pass ordinances that control the behavior of individuals within the city limits. City attorneys may file charges when certain ordinances have been violated, and trials on such charges are held in a municipal court before a municipal judge. Municipal courts are not part of the state court system, but the procedures are very similar to those followed in state courts. CRIMINAL SENTENCES Whenever a defendant in a criminal case pleads guilty to or is found guilty of a criminal charge, the judge must sentence the defendant according to the law. Before any defendant is sentenced (except in traffic or other less serious criminal matters), the judge is given a report from the probation department. This report contains information about the defendant and recommendations from the probation department and other professionals involved in the case as to the sentence that should be imposed. A defendant may be sentenced to serve a stated period of time in a correctional facility. The Department of Corrections decides in which institution the defendant will serve the sentence. Upon the recommendation of a district attorney, the judge may postpone sentencing a defendant for a stated period of time after the defendant enters a plea of guilty. If the defendant is a law-abiding citizen Colorado Courts at a Glance 11

15 for that time, the judge may dismiss the case and the criminal record of the defendant may be erased. This is called a deferred sentence. A defendant may be granted probation. If this is done, the judge places the defendant under the supervision of the probation department instead of imposing a sentence to a correctional institution. Most defendants who receive probation are first-time offenders involved in nonviolent crimes. Payment to the victim for any losses (called restitution) is usually a requirement of probation. A defendant who violates probation or a deferred sentence may be sent to a correctional facility. Defendants who are sent to a correctional facility may be released before their sentence is fully served by being granted parole by the State Board of Parole. Defendants on parole must keep a parole officer advised of all their activities for the time required by the board. Defendants who violate conditions of parole may be returned to a correctional facility. For more information on our court system, please visit Probation Each judicial district has a probation department that is managed by a chief probation officer who is appointed by the judges of the district, with the approval of the chief judge. The mission of probation is to protect the community while holding offenders accountable. Probation does this by: Providing the judge with information on the offender to help the judge to fashion the most appropriate sentence; Providing support to victims; and Ensuring convicted offenders pay restitution to the victim, comply with conditions of the court, and complete community service as ordered. Information provided to the judge prior to sentencing is based on details of the current offense and the offender s criminal and social history; circumstances of the victim, such as restitution needed; and recommendations for sentencing. If the offender is granted probation, these reports are helpful to the supervising probation officer for case planning. If the offender is to be incarcerated, the report is forwarded to the Department of Corrections, where it is used in the diagnostic and placement process. Eventually, it may be reviewed by the parole board if the offender applies for parole. For those granted probation, supervision may include counseling, referral of defendants to treatment facilities, collection of restitution, drug and alcohol testing, and home detention. Personalized case management plans are developed through evidence-based assessment tools that are used to determine risk and need to help ensure efficient and effective use of resources. Special-needs offenders are referred to specialized programs. These programs are designed for female offenders, sexual perpetrators, drunk drivers and drug offenders. Evaluators work to refer offenders to programs that best address their needs. These referrals are often to weekly outpatient groups, individual therapy, or daily outpatient sessions. Certain high-risk offenders are referred to intensive supervision probation programs, which may include home monitoring. Defendants who fail to comply with conditions of probation can be returned to court and may subsequently be incarcerated or at least have their conditions of probation increased. The probation department s post-sentence victim services program is charged with the responsibility of notifying qualifying victims of crime about changes in the probation status of the person convicted of committing a crime against them. Victims who have asked for the service are told about numerous points of information, such as whether the offender has asked for early termination of probation, whether the offender s probation may be revoked or whether the offender s probation has been modified. Referrals to service agencies are also made for victims in need. For more information on probation, please visit Colorado Courts at a Glance 12

16 Administration The Colorado Judicial Branch, with 316 judges and 3,200 staff members, is centrally administered by the chief justice of the Supreme Court. To assist the chief justice, the Supreme Court appoints the state court administrator. Judicial districts are supervised by chief judges, who are appointed by the chief justice. The chief judge within each district appoints a district administrator, a chief probation officer, and clerks of court to assist in the management of the district. Innovative business techniques and new procedures are constantly under evaluation for possible introduction throughout the branch at all levels in order to improve efficiency and to make the courts more accessible to the citizens of Colorado. USEFUL LINKS Colorado Judicial Branch: Colorado Court Facts: Colorado State Government: Colorado Constitution: Court Records: Colorado Judicial Branch Organizational Chart Judicial Nominating Commissions State Board of Law Examiners State Judicial Performance Commission Board of Continuing Legal Education Office of Attorney Regulation Counsel Office of Attorney Registration Presiding Disciplinary Judge Judicial Discipline Commission Commission on the Legal Profession Access to Justice Commission Attorneys Fund for Client Protection Judicial Ethics Advisory Board Judicial Advisory Council Fairness and Diversity Committee Colorado Judicial Department Organizational Chart The Colorado court system consists of the Supreme Court, an intermediate Court of Appeals, district courts and county courts. Each county is served both by a district court and a county court. Special probate and juvenile courts exist in the City and County of Denver. Colorado statutes also authorize locally funded municipal courts with jurisdiction limited to municipal ordinance violations. Supreme Court Court of Appeals Chief Judge Chief Justice The Colorado court system consists of the Supreme Court, an intermediate Court of Appeals, district courts and county courts. Each county has both a district court and a county court. Special probate and juvenile courts created by the Colorado Constitution exist in the City and County of Denver. Colorado statutes also authorize locally funded municipal courts with jurisdiction limited to municipal ordinance violations. State Court Administrator Judicial Districts (22) Chief Judges District Administrators Chief Probation Officers Denver Probate Court 1 Denver Juvenile Court 1 District Courts County Courts (64) 1 Separate probate and juvenile courts are exclusive to the City and County of Denver. In the rest of the state, the district courts are responsible for juvenile and probate matters. 2 The Denver County Court functions as a municipal as well as a county court and is separate from the state court system. 3 Created and maintained by local government but subject to Supreme Court rules and procedures. County Court of Denver 2 Municipal Courts 3 Colorado Courts at a Glance 13

17 Glossary Law has a special language. Some familiar words have a different meaning when used in connection with our courts. This list will help you understand them. ALTERNATIVE DISPUTE RESOLUTION (ADR) A way to resolve legal disputes that involves such methods as mediation or arbitration, as a way to avoid litigation in court. ADR is generally less expensive and less time-consuming and can be less adversarial than litigation. APPEAL A request to take a case to a higher court for review. No new evidence may be introduced during the appellate process; the reviewing court considers whether errors occurred during prior proceedings. APPELLATE JURISDICTION The power of a court to review a case that has already been tried by a lower court. BRIEF A written document presented to the court by a lawyer to serve as the basis for argument. CAPITAL CASE A criminal case in which the death sentence may be imposed. CIVIL MATTERS Matters or cases pertaining to the private rights of individuals. COMMON LAW The law of a country based on custom, usage, and the decisions of courts. CONTEMPT OF COURT The punishable act of showing disrespect for the authority or dignity of a court. CONVICTION The finding that a person is guilty beyond a reasonable doubt of committing a crime. COUNSEL A lawyer or a group of lawyers. COURT OF RECORD A court in which a permanent record of proceedings is made. CRIMINAL MATTERS Matters or cases concerned with acts considered harmful to the general public that are forbidden by law and are punishable by fine, imprisonment, or death. DAMAGES Money claimed by, or ordered paid to, a person who has suffered injury due to the fault of someone else. DEFENDANT A person sued or accused. DISTRICT ATTORNEY A lawyer elected or appointed in a specified judicial district to serve as a prosecutor for the state in criminal cases. DOCKET A list of cases to be heard by a court. DOMESTIC RELATIONS Refers to dissolution of marriage (divorce), parenting time and parenting responsibilities, child support, maintenance (alimony), and property division. EVIDENCE Anything presented to the judge or jury to prove or disprove a fact. Evidence can be witness testimony, statements, writings, recordings, or objects. Statements by lawyers are not evidence. Colorado Courts at a Glance 14

18 FELONY A crime punishable by death or by imprisonment in a state penal institution. GRAND JURY A jury of 12 to 23 citizens that investigates accusations concerning crimes. If there is sufficient evidence, the jury may return an indictment. Used more often in federal court than in state courts. INDICTMENT A formal accusation against a person by a grand jury, based upon probable cause that the person committed a crime. INFORMATION A formal accusation of crime, based on an affidavit of a person allegedly having knowledge of the offense. JEOPARDY Exposure to possible conviction, such as being on trial in court. JURISDICTION The legal power to hear and decide cases; the territorial range of such power. JURY A group of people who swear or affirm to hear evidence, to inquire into the facts in a case, and to give a decision in accordance with their findings. JUVENILE CASES Cases involving delinquent children (under 18 years of age), children needing oversight, and dependent or neglected children (including abused children). MENTAL HEALTH CASES Cases involving actions in which a mentally ill person is committed to a hospital or other institution for treatment. A guardian may be appointed to handle the person s affairs. MISDEMEANOR A less serious criminal offense punishable by a sentence of two years or less. OPINION A formal statement by a judge or justice hearing a case. ORDINANCE A law passed by a city or town legislative body. PLAINTIFF A person who brings a suit in a court of law. PRE-SENTENCE INVESTIGATION REPORTS Reports by probation officers that present information necessary for the judge to sentence the offender. PROBATE MATTERS Matters or cases having to do with wills or estates. PROBATION An alternative form of sentencing for one convicted of a crime. After the convicted person agrees to behave properly, the person is placed under the supervision of a probation officer, rather than being put in jail or prison. PROSECUTOR A lawyer who represents the government in bringing legal proceedings against an alleged wrongdoer. PUBLIC DEFENDER A lawyer employed by the government to represent an accused person who cannot afford to hire a lawyer. RESTITUTION The act of making good or of giving the equivalent for any loss, damage or injury. SENTENCING When the defendant is brought before the court for imposition of punishment such as fines and costs, time in jail or prison, or probation. Colorado Courts at a Glance 15

19 SUBPOENA A written legal order directing a person to appear in court. SUMMONS An official order to appear in court in a criminal case. In civil cases, it is a notice that a case has been filed and that an answer is required. TESTIMONY A statement made under oath by a witness or a party to establish a fact. WARRANT A writ or order authorizing an officer to make an arrest, search, or to perform some other designated act. Updated April 2011 Colorado Courts at a Glance 16

20 SECTION 2: JUDICIAL PERFORMANCE MATERIALS

21 PURPOSE OFFICE OF JUDICIAL PERFORMANCE EVALUATION Ralph L. Carr Judicial Center 1300 Broadway, Suite 220 Denver, CO JUDICIAL PERFORMANCE FACT SHEET Commissions on Judicial Performance were created in 1988 by the Colorado General Assembly for the purpose of providing voters with fair, responsible and constructive evaluations of judges and justices seeking retention. The results also provide judges with information to help improve their professional skills as judicial officers. AUTHORITY Article VI, Colorado Constitution C.R.S et seq. Supreme Court Rules Governing the Commissions on Judicial Performance (Volume 12, Chapter 37, C.R.S.) COMMISSIONS There is one commission in each of the 22 judicial districts and one state commission. Each commission consists of 10 volunteer citizen members: six non-attorneys and four attorneys. Appointments to the commission are made by the Chief Justice, Governor, Speaker of the House and President of the Senate as follows: Chief Justice: Governor: Speaker of the House: President of the Senate: 1 attorney & 2 non-attorneys 1 attorney & 2 non-attorneys 1 attorney & 1 non-attorney 1 attorney & 1 non-attorney Commissioners serve a four-year term with a maximum of two terms served. If the initial appointment is to fill a vacancy, the commissioner is eligible to serve the balance of that term plus two full terms. The State Commission promulgates the Rules Governing Commissions on Judicial Performance and evaluates the Supreme Court justices and Court of Appeals judges. District Commissions evaluate the county and district judges in their judicial district. 17

22 PROCESS Trial Judge Performance Criteria o o o o o o Integrity including but not limited to whether the judge: Avoids impropriety or the appearance of impropriety Displays fairness and impartiality toward all participants; and Avoids ex parte communications Legal Knowledge including but not limited to whether the judge: Demonstrates an understanding of substantive law and the relevant rules of procedure and evidence Demonstrates awareness of and attentiveness to factual and legal issues before the court; and Appropriately applies statutes, judicial precedent, and other sources of legal authority or clearly explains the legal basis for departing from precedent. Communication Skills including but not limited to whether: The judge s finding of fact, conclusions of law, and orders are clearly written and understandable; The judge s oral presentations are clearly stated and understandable; The judge clearly explains all oral decisions; and The judge clearly presents information to the jury Judicial Temperament Including but not limited to whether the judge: Demonstrates courtesy toward attorneys, litigants, court staff, and others in the courtroom Maintains and requires order, punctuality, and decorum in the courtroom; and Demonstrates appropriate demeanor on the bench Administrative Performance Including but not limited to whether the judge: Demonstrates preparation for all hearings and trials Uses court time efficiently Effectively manages cases Issues findings of fact, conclusions of law, and orders without unnecessary delay Takes responsibility for more than his or her own caseload and is willing to assist other judges; and Understands and complies with the directives of the Colorado Supreme Court Service to the Legal Profession and the public By participating in service-oriented efforts designed to educates the public about the legal system and to improve the legal system 18

23 Appellate Judge Performance Criteria o o o o o o Integrity including but not limited to whether the justice or judge: Avoids impropriety or the appearance of impropriety Displays fairness and impartiality toward all participants; and Avoids ex parte communications Legal Knowledge including, but not limited to whether the justice s or judge s opinions: Are well-reasoned and demonstrate an understanding of substantive law and the relevant rules of procedure and evidence Demonstrate attentiveness to factual and legal issues before the court; and Adhere to precedent or clearly explain the legal basis for departure from precedent Communication Skills including, but not limited to whether the justice s or judge s: Opinions are clearly written and understandable; and Questions or statements during oral arguments are clearly stated and understandable Judicial Temperament including but not limited to whether the justice or judge: Demonstrates courtesy toward attorneys, litigants, court staff, and others in the courtroom; and Maintains appropriate decorum in the courtroom Administrative Performance including but not limited to whether the justice or judge: Demonstrates preparation for oral argument, attentiveness, and appropriate control over judicial proceedings Manages workload effectively Issues opinions in a timely manner and without unnecessary delay; and Participates in a proportionate share of the court s workload Service to the Legal Profession and the Public By participating in service-oriented efforts designed to educate the public about the legal system and to improve the legal system 19

24 Commissions must use the following information in order to make recommendations to the voters regarding the retention of an individual judge: o o o o o o Questionnaire results Trial Judge Questionnaires are sent to: attorneys (including prosecutors, public defenders, and private attorneys), jurors, litigants, law enforcement personnel, employees of the court (including law clerks), court interpreters, employees of probation offices, employees of local departments of social services, victims of crime, and appellate judges Appellate Judge Questionnaires are sent to attorneys (including prosecutors, public defenders, and private attorneys), employees of the court (including law clerks and staff attorneys), other appellate judges, and district judges Information from observing the judge in the courtroom Information furnished by the judge in a self-evaluation Review of decisions/opinions Review of individual judge statistics, including caseload information, open case reports, and case aging reports, Interview with the judge In addition, commissions may use the following information in order to make recommendations to the voters regarding the retention of an individual judge: o o o Information and documentation from interested persons Information from interviews with justices, judges, and other persons Information from public hearings Any information the commission uses must be made available to the judge being evaluated. Oral information may be summarized and a copy of written information shall be provided to the justice or judge. All commission interviews and deliberations concerning the retention of the judge are confidential. Commissions must meet with the chief justice or judge prior to initiating the evaluation process for an informational briefing and overview of the court. Commissions complete a written narrative for each judge standing for retention, which must include a retention recommendation of Retain, Do Not Retain, or No Opinion, and the number of commissioners who voted for and against retention. o If a commission identifies one or more areas of significantly poor performance of a judge, it may recommend that the judge be placed on any improvement plan. 20

25 PUBLICATION Narratives, recommendations, and survey reports are released to the public on the first day following the deadline for judges to declare their intent to stand for retention at and Results are linked to and Results are published in the Legislative Council s Blue Book (Voter Guide). STATISTICS Since its inception in 1988 there have been 11 evaluations of judges (one in each general election years since 1988). In that period there have been: o 17 recommendation to not retain o 12 no opinions o 10 judges have not been retained by the voters Last updated 12/17/13 21

26 Frequently Asked Questions What is merit selection and retention of judges? In 1966, Colorado voters passed a constitutional amendment that abolished partisan elections for state court judges and established a new merit selection system for the nomination, appointment, and retention of state court judges. The constitutional amendment provides that state court judges be appointed rather than elected on a political ticket. The system eliminates the influence of partisan politics, striking a balance between an independent judiciary, while maintaining public accountability. Each time a vacancy occurs, the Governor selects a new judge from a list of two or three highly qualified nominees chosen by a judicial nominating commission. The judge serves a two-year provisional term before his or her name is on the ballot for retention. Once retained, the judge serves a fixed term four years for county court judges, six years for district court judges, eight years for court of appeals judges, and ten years for supreme court justices before his or her name is on a retention ballot again. There is no limit on the number of terms a judge may serve, but the mandatory retirement age is 72. What judges are state court judges and what judges are not state court judges? State court judges are county court judges, district court judges, court of appeals judges, and supreme court justices. The following judges are not state court judges: Denver County judges (appointed by the Mayor of Denver); municipal court judges serving the cities and towns throughout the state of Colorado; administrative law judges located in the executive branch of government; federal judges and magistrates; and state court magistrates. Although the Denver County judges are not state court judges, the local district judicial performance commission also evaluates the Denver County judges. 22

27 How often do judges stand for retention election? All judges stand for retention election after serving a two-year provisional term. County court judges then stand every four years, district court judges every six years, court of appeals judges every eight years, and Supreme Court justices every ten years. What are commissions on judicial performance? Commissions on judicial performance provide voters with fair, responsible, and constructive evaluations of judges and justices seeking retention in general elections. The results of the evaluations also provide judges with information that can be used to improve their professional skills as judicial officers. There is one commission in each of the 22 judicial districts and one state commission. District commissions evaluate the county and district judges in the judicial district. A state commission evaluates the justices of the Supreme Court and judges of the Court of Appeals. What is the composition of the commissions? Each commission consists of 10 volunteer citizen commissioners: four attorneys and six non-attorneys. Who makes appointments to the commissions? Appointments are made by the Chief Justice of the Colorado Supreme Court, the Governor of Colorado, the Colorado Speaker of the House, and Colorado President of the Senate. The Chief Justice and the Governor appoint one attorney and two non-attorneys; the Speaker of the House and the President of the Senate appoint one attorney and one nonattorney. How are judges evaluated? Commissions prepare a narrative that includes the recommendation to voters on the retention of the judge. To evaluate the overall performance of a judge, commissions are required to use the following information: 23

28 Results from surveys sent to persons who have sufficient experience with a judge: attorneys (including prosecutors, public defenders, and private attorneys), jurors, litigants, law enforcement personnel, employees of the court, court interpreters, employees of probation offices, employees of local departments of social services, victims of crime, and other judges and justices. Information from observing the judge in the courtroom Information furnished by the judge in a self-evaluation Review of decisions/opinions Review of individual judge statistics Interview with the judge In addition, commissions may use the following information: o Information and documentation from interested persons o Information from interviews with justices and judges and other persons o Information from public hearings Who gets to fill out a survey questionnaire? When people appear in court, their names are entered into the court s computerized database. The state commission has contracted with an independent research company to randomly select names and addresses from this database. Those people will receive surveys with questions about judges whom they have observed. In some areas where a judge hears few cases, all those who have observed the judge may be surveyed. What happens after the survey questionnaires are completed and returned? The completed surveys are returned to the independent research company conducting the survey. That company compiles the results of all the completed questionnaires it receives into a composite report to be supplied to the commissions on judicial performance and judges. Individual survey questionnaires, including written comments, remain confidential. Judges and commissioners do not know the names of the people who make comments or what ratings specific individuals give the judges. Will judges and commissioners see any completed questionnaires? No. Judges and commissioners will not see individual questionnaires. They will only be able to see the composite report that compiles the results of all returned questionnaires. That report will include written comments provided by people being surveyed. 24

29 Are the overall results of the judicial performance surveys available to the public? How can I see them? Yes. In early August of 2012, survey results of the judges standing for retention election in November 2010, along with the commission s narratives and recommendations will be available on the Office of Judicial Performance Evaluation s website at You may also review past evaluation results of judges who stood for retention from 1998 through I would like to evaluate a judge. Can I do that? Since the survey is based on a random sampling of people who have appeared before the judge, only those persons randomly selected by the independent research firm can fill out the official questionnaire. However, if you would like to make written comments about a judge, you may write a letter outilining your performance feedback on a judge to the performance commission. The letter must include your name and address and the judge will receive a copy of the letter. You may either complete the public comment section on the Officeof Judicial Performance website or mail a copy of your letter to Office of Judicial Performance Evaluation, Ralph L. Carr Judicial Center, c/o Kent J. Wagner, Executive Director, 1300 Broadway, Suite 220, Denver, CO Do judicial performance commissions review individual cases of judges? Commissions do review some decisions of the judge as part of the overall evaluation of the judge s legal knowledge, reasoning, and communication skills. However, commissions have no authority to second guess, change, or reverse any judge s decision in any case. Why doesn t the narrative include the judge s party affiliation? In 1966, the people of Colorado passed a constitutional amendment that abolished partisan elections of state court judges and established a new merit selection system for the nomination, appointment, and retention of judges. Colorado's merit selection system provides that judges are selected based on their ability to know and apply the law fairly and impartially. They serve a provisional term during which they are evlauated, after which the voters decide whether each judge should continue to serve. 25

30 Why doesn t the judge run against anyone? In a merit selection and retention system, judges stand for retention election and therefore do not run against an opponent. The question on the ballot is: Shall Justice (Judge) of the Supreme (or other) Court be retained in office? Yes/No. In fact, under the Colorado Code of Judicial Conduct, judges are prohibited from campaign activity unless there is active opposition to his or her retention in office. This removes partisan politics and political campaigns from the retention process. What if I think a judge has done something illegal or unethical? Does the commission investigate complaints against a judge? No. The commission on judicial performance evaluates the overall performance of a judge. The Commission on Judicial Discipline has separate responsibility for judicial disciplinary matters. Does the commission evaluate the performance of state court magistrates? No. Since, state court magistrates are employees of the judicial district; they are evaluated yearly along with all other employees. Complaints about the job performance of a magistrate may be made to the district administrator. What if I think a magistrate has done something illegal or unethical? Since magistrates are attorneys, complaints should be directed to the Office of Attorney Regulation Counsel. 26

31 ARTICLE 5.5 COMMISSIONS ON JUDICIAL PERFORMANCE Section Legislative declaration Office of judicial performance evaluation State commission on judicial performance - repeal Powers and duties of the state commission District commission on judicial performance - repeal Powers and duties of district commissions Judicial performance criteria Evaluation in retention election years Interim evaluations Recusal Confidentiality Acceptance of private or federal grants - general appropriations Implementation of article. (Repealed) Repeal of article Legislative declaration. (1) The general assembly hereby finds and declares that it is in the public interest to establish a system of evaluating judicial performance to provide persons voting on the retention of justices and judges with fair, responsible, and constructive information about judicial performance and to provide justices and judges with useful information concerning their own performances. The general assembly further finds and declares that the evaluation of judicial performance should be conducted statewide and within each judicial district using uniform criteria and procedures pursuant to the provisions of this article. (2) The general assembly further finds and declares that it is in the public interest to establish an office of judicial performance evaluation within the judicial department of the state to implement the provisions of this article. Source: L. 88: Entire article added, p. 596, 1, effective May 12. L. 97: Entire section amended, p. 1647, 1, effective June 5. L. 2008: Entire section amended, p. 1271, 1, effective July Office of judicial performance evaluation. (1) There is hereby established in the judicial department the office of judicial performance evaluation, referred to in this article as the "office". The state commission on judicial performance established pursuant to section shall oversee the office. 27

32 (2) The state commission shall appoint an executive director of the office who shall serve at the pleasure of the state commission. The compensation of the executive director shall be the same as the general assembly establishes for a judge of the district court. The compensation paid to the executive director shall not be reduced during the time that a person serves as executive director. The executive director shall hire additional staff for the office as necessary and as approved by the state commission. (3) Subject to the supervision of the state commission, the office shall: (a) Staff the state and district commissions when directed to do so by the state commission; (b) Train members of the state and district commissions; (c) Collect and disseminate data on judicial performance evaluations; (d) Conduct public education efforts concerning the judicial performance evaluation process and retention recommendations of the state and district commissions; (e) Measure public awareness of the judicial performance evaluation process through regular polling; and (f) Complete other duties as assigned by the state commission. (4) Expenses of the office shall be paid for from the state commission on judicial performance cash fund created pursuant to section Source: L. 2008: Entire section added, p. 1271, 2, effective July State commission on judicial performance - repeal. (1) (a) (I) (A) There is hereby established the state commission on judicial performance, referred to in this article as the "state commission". The state commission shall consist of ten members. The speaker of the house of representatives and the president of the senate shall each appoint one attorney and one nonattorney. The governor and the chief justice of the supreme court shall each appoint one attorney and two nonattorneys. (B) For purposes of this subsection (1), "attorney" means a person admitted to practice law before the courts of this state. (II) (A) All members of the state commission shall serve terms of four years. The term of each member of the state commission shall expire on November 30 of an odd-numbered year, and the term of a member appointed to replace a member at the end of the member's term shall commence on December 1 of the year in which the previous member's term expires. (B) The term of each member serving as of January 1, 2009, shall be extended until November 30 of the odd-numbered year following the completion of that member's term. This subsubparagraph (B) is repealed, effective July 1, (b) (I) Any vacancy on the state commission shall be filled by the original appointing authority, but a member shall not serve more than two full terms plus any balance remaining on an 28

33 unexpired term if the initial appointment was to fill a vacancy. Within five days after a vacancy arises on the state commission, the state commission shall notify the appointing authority of the vacancy, and the appointing authority shall make an appointment within forty-five days after the date of the vacancy. If the original appointing authority fails to make the appointment within forty-five days after the date of the vacancy, the state commission shall make the appointment. (II) Justices and judges actively performing judicial duties may not be appointed to serve on the state commission. Former justices and judges are eligible to be appointed as attorney members; except that a former justice or judge may not be assigned or appointed to perform judicial duties while serving on the state commission. (c) The chair of the state commission shall be elected by its members every two years. (2) Members and employees of the state commission shall be immune from suit in any action, civil or criminal, based upon official acts performed in good faith as members of the state commission. (3) A member of the state commission shall recuse himself or herself from any evaluation of the person who appointed the member to the commission. Source: L. 88: Entire article added, p. 596, 1, effective May 12. L. 93: (1)(a) and (1)(b) amended, p. 658, 1, effective April 30. L. 97: (1)(a) and (1)(b) amended, p. 1647, 2, effective June 5. L. 2008: (1)(a) and (1)(b) amended and (3) added, p. 1272, 3, effective July 1. ANNOTATION Effect of 1997 amendment was to establish that terms of all members expire on November 30 of even-numbered years. Romanoff v. State Comm'n on Judicial Performance, 126 P.3d 182 (Colo. 2006). A member may serve past the expiration of the member's term until a successor is appointed. Romanoff v. State Comm'n on Judicial Performance, 126 P.3d 182 (Colo. 2006). Original appointing official may not appoint a successor more than 45 days after the expiration of a member's term. The state commission is authorized to appoint a successor when the original appointing official fails to make the appointment within 45 days after the expiration of a member's term. Romanoff v. State Comm'n on Judicial Performance, 126 P.3d 182 (Colo. 2006) Powers and duties of the state commission. (1) In addition to other powers conferred and duties imposed upon the state commission by this article, the state commission has the following powers and duties: (a) To appoint and supervise a person to serve as the executive director of the office of judicial performance evaluation; (b) To assist the executive director in managing the office and providing fiscal oversight of the operating budget of the office; (c) To develop uniform procedures and techniques for evaluating district and county judges, justices of the Colorado supreme court, and judges of the court of appeals based on performance 29

34 criteria provided in section ; (d) To develop guidelines and procedures for the continuous collection of data for use in the evaluation process; (e) To develop surveys for persons affected by justices and judges, including but not limited to attorneys, jurors, litigants, law enforcement personnel, attorneys within the district attorneys' and public defender's offices, employees of the court, court interpreters, employees of probation offices, employees of local departments of social services, and victims of crimes, as defined in section (5), C.R.S.; (f) To determine the statistical validity of completed surveys, report to the district commissions on the statistical validity of the surveys for their districts, and specify when and how statistically invalid surveys may be used; (g) To prepare alternatives to surveys where sample populations are inadequate to produce valid results; (h) To produce and distribute narratives and survey reports; (i) To review case management data and statistics for individual appellate justices and judges provided by the state court administrator; (j) To review written judicial opinions; (k) To collect information from direct courtroom observation; (l) To interview justices and appellate judges and other persons and accept information and documentation from interested persons; (m) To draft narratives that reflect the results of judicial performance evaluations of justices and appellate judges; (n) To distribute to the public narratives that reflect the results of each judicial performance evaluation of each appellate justice or judge; (o) (I) Subject to approval by the Colorado supreme court, to promulgate rules necessary to implement and effectuate the provisions of this article, including rules to be followed by the district commissions. (II) Prior to the final promulgation of any rule pursuant to this paragraph (o), the state commission shall post a notice of the proposed rule, allow for a period for public comment, and give the public an opportunity to address the commission concerning the proposed rule at a public hearing. (III) The state commission may adopt rules or standards that provide guidance to members of the state commission or members of district commissions regarding the review or interpretation of information obtained as a result of the evaluation process and the criteria contained in section Any such rules or standards shall: (A) Be consistent with paragraphs (e), (f), and (g) of this subsection (1), in that the rules or 30

35 standards and the application thereof shall take into consideration the statistical reliability of survey data; and (B) Not divest any member of the state commission or a district commission of his or her ultimate authority to decide whether to vote for or against recommending retention of a justice or judge and be consistent with subsection (2) of this section and section (2). (p) To develop procedures for the review of the deliberation procedures established by the district commissions. However, the state commission shall not have the power or duty to review actual determinations made by the district commissions. (q) To gather and maintain statewide statistical data and post a statistical report of the statewide data on its web site no later than thirty days prior to each retention election. The statistical report shall specify: (I) The total number of justices and judges who were eligible to stand for retention; (II) The total number of evaluations of justices and judges performed by the state and district commissions; (III) The total number of justices and judges who were evaluated but did not stand for retention; and (IV) The total number of justices and judges recommended as "retain", "do not retain", or "no opinion", respectively. (2) Unless recused pursuant to a provision of this article, each member of the state commission shall have the discretion to vote for or against retention of a justice or judge based upon his or her review of all information before the state commission. Source: L. 88: Entire article added, p. 597, 1, effective May 12. L. 93: (1)(k) amended and (1)(l) added, p. 659, 2, effective April 30. L. 97: (1)(g) repealed, p. 1482, 39, effective June 3; (1)(b), (1)(c), (1)(e), and (1)(i) amended and (1)(d.5) and (1)(m) added, p. 1648, 3, effective June 5. L. 2008: Entire section R&RE, p. 1273, 4, effective July District commission on judicial performance - repeal. (1) (a) (I) (A) There is hereby established in each judicial district a district commission on judicial performance, referred to in this article as the "district commission". The district commission shall consist of ten members. The speaker of the house of representatives and the president of the senate shall each appoint one attorney and one nonattorney. The governor and the chief justice of the supreme court shall each appoint one attorney and two nonattorneys. (B) For purposes of this subsection (1), "attorney" means a person admitted to practice law before the courts of this state. (II) All members of the district commission shall serve terms of four years. The term of each member of a district commission shall expire on November 30 of an odd-numbered year, and the term of any member appointed to replace a member at the end of the member's term shall commence on December 1 of the year when the previous member's term expires. 31

36 (III) The appointing authority may remove members of the district commissions for cause. (b) (I) Any vacancy on the district commission shall be filled by the original appointing authority, but a member shall not serve more than two full terms plus any balance remaining on an unexpired term if the initial appointment was to fill a vacancy. Within five days after a vacancy arises on a district commission, the district commission shall notify the appointing authority and the state commission of the vacancy, and the appointing authority shall make an appointment within forty-five days after the date of the vacancy. If the original appointing authority fails to make the appointment within forty-five days after the date of the vacancy, the state commission shall make the appointment. (II) Justices and judges actively performing judicial duties may not be appointed to serve on the district commission. Former justices and judges are eligible to be appointed as attorney members; except that a former justice or judge may not be assigned or appointed to perform judicial duties while serving on the district commission. (c) The chair of the district commission shall be elected by its members every two years. (2) The district administrator of each judicial district and his or her staff shall serve as the staff for the district commission. (3) Members and employees of a district commission shall be immune from suit in any action, civil or criminal, based upon official acts performed in good faith as members of the district commission. (4) A member of a district commission shall recuse himself or herself from an evaluation of the person who appointed the member to the commission. Source: L. 88: Entire article added, p. 598, 1, effective May 12. L. 93: (1)(a) and (1)(b) amended, p. 659, 3, effective April 30. L. 97: (1)(a) and (1)(b) amended, p. 1649, 4, effective June 5. L. 2008: (1)(a), (1)(b), and (2) amended and (4) added, p. 1275, 5, effective July Powers and duties of district commissions. (1) In addition to other powers conferred and duties imposed upon a district commission by this article, in conformity with the rules, guidelines, and procedures adopted by the state commission pursuant to section (1) (f) and the state commission's review of the deliberation procedures pursuant to section (1) (p), a district commission has the following powers and duties: (a) To review case management statistics and data for individual district and county court judges provided by the state court administrator; (b) To review written judicial opinions and orders of district and county court judges within the judicial district; (c) To collect information from direct courtroom observation of district and county court judges within the judicial district; 32

37 (d) To interview district and county court judges and other persons and accept information and documentation from interested persons; (e) To obtain information from parties and attorneys regarding district and county court judges' handling of domestic relations and family law cases with respect to the judges' fairness, patience with pro se parties, gender neutrality, and handling of emotional parties; and (f) To draft narratives that reflect the results of judicial performance evaluations of district and county court judges. (2) Unless recused pursuant to a provision of this article, each member of a district commission shall have the discretion to vote for or against retention of a district or county judge based upon his or her review of all information before the district commission. (3) Upon completing its required recommendations and narratives, each district commission shall collect all documents and other information, including all copies, received regarding the justices or judges evaluated. Each district commission shall forward the documents and other information, including all copies, to the state commission within thirty days following submission of the district commission's recommendations and narratives to the state commission. The state commission shall adopt rules regarding retention of evaluation information, which shall be made available to district commissions for subsequent evaluations of the justices or judges. Source: L. 88: Entire article added, p. 598, 1, effective May 12. L. 93: Entire section amended, p. 660, 4, effective April 30. L. 97: Entire section amended, p. 1650, 5, effective June 5. L. 2008: Entire section R&RE, p. 1276, 6, effective July Judicial performance criteria. (1) The state commission shall evaluate each justice of the Colorado supreme court and each judge of the Colorado court of appeals based on the following performance criteria: (a) Integrity, including but not limited to whether: (I) The justice or judge avoids impropriety or the appearance of impropriety; (II) The justice or judge displays fairness and impartiality toward all participants; and (III) The justice or judge avoids ex parte communications; (b) Legal knowledge, including but not limited to whether: (I) The justice's or judge's opinions are well-reasoned and demonstrate an understanding of substantive law and the relevant rules of procedure and evidence; (II) The justice's or judge's opinions demonstrate attentiveness to factual and legal issues before the court; and (III) The justice's or judge's opinions adhere to precedent or clearly explain the legal basis for departure from precedent; 33

38 (c) Communication skills, including but not limited to whether: (I) The justice's or judge's opinions are clearly written and understandable; and (II) The justice's or judge's questions or statements during oral arguments are clearly stated and understandable; (d) Judicial temperament, including but not limited to whether: (I) The justice or judge demonstrates courtesy toward attorneys, litigants, court staff, and others in the courtroom; and (II) The justice or judge maintains appropriate decorum in the courtroom; (e) Administrative performance, including but not limited to whether: (I) The justice or judge demonstrates preparation for oral argument, attentiveness, and appropriate control over judicial proceedings; (II) The justice or judge manages workload effectively; (III) The justice or judge issues opinions in a timely manner and without unnecessary delay; and (IV) The justice or judge participates in a proportionate share of the court's workload; and (f) Service to the legal profession and the public by participating in service-oriented efforts designed to educate the public about the legal system and to improve the legal system. (2) The district commissions shall evaluate district and county judges based on the following criteria: (a) Integrity, including but not limited to whether: (I) The judge avoids impropriety or the appearance of impropriety; (II) The judge displays fairness and impartiality toward all participants; and (III) The judge avoids ex parte communications; (b) Legal knowledge, including but not limited to whether: (I) The judge demonstrates an understanding of substantive law and relevant rules of procedure and evidence; (II) The judge demonstrates awareness of and attentiveness to factual and legal issues before the court; and (III) The judge appropriately applies statutes, judicial precedent, and other sources of legal authority; (c) Communication skills, including but not limited to whether: (I) The judge's findings of fact, conclusions of law, and orders are clearly written and 34

39 understandable; (II) The judge's oral presentations are clearly stated and understandable and the judge clearly explains all oral decisions; and (III) The judge clearly presents information to the jury; (d) Judicial temperament, including but not limited to whether: (I) The judge demonstrates courtesy toward attorneys, litigants, court staff, and others in the courtroom; (II) The judge maintains and requires order, punctuality, and decorum in the courtroom; and (III) The judge demonstrates appropriate demeanor on the bench; (e) Administrative performance, including but not limited to whether: (I) The judge demonstrates preparation for all hearings and trials; (II) The judge uses court time efficiently; (III) The judge issues findings of fact, conclusions of law, and orders without unnecessary delay; (IV) The judge effectively manages cases; (V) The judge takes responsibility for more than his or her own caseload and is willing to assist other judges; and (VI) The judge understands and complies with directives of the Colorado supreme court; and (f) Service to the legal profession and the public by participating in service-oriented efforts designed to educate the public about the legal system and to improve the legal system. Source: L. 2008: Entire section added, p. 1277, 7, effective July Evaluation in retention election years. (1) (a) (I) The state commission shall conduct an evaluation of each justice of the supreme court and each judge of the court of appeals whose term is to expire and who must stand for retention election. The evaluations shall be referred to in this subsection (1) as "retention year evaluations". (II) Retention year evaluations shall be completed and the narrative prepared and communicated to the appellate justice or judge no later than forty-five days prior to the last day available for the appellate justice or judge to declare such justice's or judge's intent to stand for retention. (III) Prior to the completion of the narratives for retention year evaluations, and following at least ten days' notice to the public and the appellate justices and judges, it is highly recommended that the state commission hold a public hearing regarding all appellate justices and judges who are subject to retention year evaluations. The state commission shall arrange to 35

40 have the public hearing electronically recorded and shall make copies of the recording available to members of the public. The state commission shall supply a copy of the recording at no cost to any justice or judge who is the subject of the hearing. (IV) The narrative prepared for a retention year evaluation shall include an assessment of the appellate justice's or judge's strengths and weaknesses with respect to the judicial performance criteria contained in section (1), a discussion regarding any deficiency identified in the interim evaluation prepared pursuant to section , and a statement of whether the state commission concludes that any deficiency identified has been satisfactorily addressed by the justice or judge. (V) Each appellate justice or judge who receives a retention year evaluation shall have the opportunity to meet with the state commission or otherwise respond to the evaluation no later than ten days following the justice's or judge's receipt of the evaluation. If the meeting is held or response is made, the state commission may revise its evaluation. (b) After the requirements of paragraph (a) of this subsection (1) are met, the state commission shall make a recommendation regarding the retention of each appellate justice or judge who declares his or her intent to stand for retention, which recommendation shall be stated as "retain", "do not retain", or "no opinion". A "no opinion" recommendation shall be made only when the state commission concludes that results are not sufficiently clear to make a firm recommendation and shall be accompanied by a detailed explanation. The narrative shall include the number of commission members who voted for and against the recommendation. (c) The state commission shall release the narrative, the recommendation, and any other relevant information related to a retention year evaluation to the public no later than forty-five days prior to the retention election. The state commission shall arrange to have the narrative and recommendation printed in the ballot information booklet prepared pursuant to section , C.R.S., and mailed to electors pursuant to section , C.R.S. (2) (a) (I) The district commission shall conduct an evaluation of each district and county judge whose term is to expire and who must stand for retention election. The evaluations shall be referred to in this subsection (2) as "retention year evaluations". (II) Retention year evaluations shall be completed and the narrative communicated to each judge no later than forty-five days prior to the last day available for the judge to declare the judge's intent to stand for retention. (III) Prior to the completion of narratives for retention year evaluations, and following at least ten days' notice to the public and the district and county judges, it is highly recommended that the district commission conduct a public hearing regarding all district and county judges who are subject to retention year evaluations. The district commission shall arrange to have the public hearing electronically recorded and shall make copies of the recording available to members of the public. The district commission shall supply a copy of the recording at no cost to any judge who is the subject of the hearing. (IV) The narrative prepared for a retention year evaluation shall include an assessment of the district or county judge's strengths and weaknesses with respect to the judicial performance criteria contained in section (2), a discussion regarding any deficiency identified in 36

41 the interim evaluation prepared pursuant to section , and a statement of whether the district commission concludes that any deficiency identified has been satisfactorily addressed by the judge. (V) Each judge who receives a retention year evaluation shall have the opportunity to meet with the district commission or otherwise respond to the evaluation no later than ten days following the judge's receipt of the evaluation. If the meeting is held or response is made, the district commission may revise its evaluation. (b) After the requirements of paragraph (a) of this subsection (2) are met, the district commission shall make a recommendation regarding the retention of each district or county judge who declares his or her intent to stand for retention, which recommendation shall be stated as "retain", "do not retain", or "no opinion". A "no opinion" recommendation shall be made only when the district commission concludes that results are not sufficiently clear to make a firm recommendation and shall be accompanied by a detailed explanation. The narrative shall include the number of commission members who voted for and against the recommendation. (c) The state commission shall release the narrative, the recommendation, and any other relevant information to the public no later than forty-five days prior to the retention election. The state commission shall arrange to have a summary of the narrative and recommendation printed in the ballot information booklet prepared pursuant to section , C.R.S., and mailed to electors within the judicial district pursuant to section , C.R.S. (3) Repealed. Source: L. 88: Entire article added, p. 598, 1, effective May 12. L. 93: (1)(a), (1)(c), (2)(a), and (2)(c) amended, p. 660, 5, effective April 30. L. 97: (1)(c) and (2)(c) amended and (3) added, p. 1650, 6, effective June 5. L. 2008: (1) and (2) amended and (3) repealed, pp. 1280, 1282, 8, 9, effective July Interim evaluations. (1) (a) During each full term of office of each Colorado supreme court justice and each judge of the court of appeals, the state commission shall conduct at least one interim evaluation of each justice and each judge. The evaluations shall be referred to in this subsection (1) as "interim evaluations". (b) Interim evaluations shall be completed and communicated to the chief justice of the Colorado supreme court or the chief judge of the court of appeals and the appellate justice or judge being evaluated. (c) Each appellate justice or judge who receives an interim evaluation shall have the opportunity to meet with the state commission or otherwise respond to the evaluation no later than ten days following the justice's or judge's receipt of the evaluation. If the meeting is held or response is made, the state commission may revise its evaluation. (d) The state commission shall release the survey evaluations related to interim evaluations to the public simultaneously with, and no earlier than, the release of the retention year evaluations pursuant to section (1) (c) prepared for that year. 37

42 (2) (a) During each full term of office of each district judge and county judge, the district commission shall conduct at least one interim evaluation of each district judge and county judge. The evaluations shall be referred to in this subsection (2) as "interim evaluations". (b) Interim evaluations shall be completed and communicated to the chief judge of the district and to the district or county judge being evaluated. (c) Each district or county judge who receives an interim evaluation shall have the opportunity to meet with the district commission or otherwise respond to the evaluation no later than ten days following the judge's receipt of the evaluation. If the meeting is held or response is made, the district commission may revise its evaluation. (d) The state commission shall release the survey evaluations related to interim evaluations to the public simultaneously with, and no earlier than, the release of the retention year evaluations prepared for that year. Source: L. 2008: Entire section added, p. 1282, 10, effective July Recusal. (1) A member of the state commission or a district commission shall disclose to the commission any professional or personal relationship with a justice or judge that may affect an unbiased evaluation of the justice or judge, including involvement with any litigation involving the justice or judge and the member, the member's family, or the member's financial interests. The state commission or a district commission may require the recusal of one of its members on account of a relationship with a justice or judge upon a two-thirds vote of the other members of the commission. (2) A member of the state commission or a district commission shall recuse himself or herself from participating in the consideration and vote on any matter involving the evaluation of a justice or judge for failure to meet the training, courtroom observation, interview, or opinion review responsibilities provided by rule, unless excused by a two-thirds vote of the other members of the commission. (3) An attorney serving as a member of the state commission or a district commission shall not request that a justice or judge being evaluated by the commission be recused from hearing a case in which the attorney appears as counsel of record, or request permission to withdraw from a case pending before a justice or judge being evaluated, solely on the basis that the attorney is serving as a member of a commission. (4) An attorney who appears in a matter where opposing counsel or a witness serves as a member of the state commission or a district commission that is evaluating the justice or judge before whom the matter is set may not seek withdrawal of the attorney, exclusion of the witness, or recusal of the justice or judge solely on the basis that the opposing counsel or witness is serving as a member of a commission. (5) A justice or judge being evaluated by the state commission or a district commission may not recuse himself or herself from a case solely on the basis that an attorney, party, or witness is a 38

43 member of the commission, nor should a justice or judge grant an attorney's request to withdraw from a case, solely on the basis that the attorney, party, or witness is serving as a member of a commission. Source: L. 2008: Entire section added, p. 1283, 10, effective July Confidentiality. (1) Except as provided in subsection (3) of this section, all comments in survey reports, selfevaluations, personal information protected under section (3) (a) (II), C.R.S., additional oral or written information, content of improvement plans, and any matter discussed in executive session shall remain confidential except as otherwise specifically provided by rule. Comments in survey reports may be summarized for use in a narrative. A member of a commission shall not publicly discuss the evaluation of any particular justice or judge. (2) Except as provided in subsection (3) of this section, all recommendations, narratives, and survey reports are confidential until released to the public on the first day following the deadline for justices and judges to declare their intent to stand for retention. Any comments included in the report shall be made available only to members of the commissions, the justice or judge being evaluated, and the chief justice or chief judge. (3) Information required to be kept confidential pursuant to this article may be released only under the following circumstances: (a) To the supreme court attorney regulation committee, as provided by rule of the state commission; (b) To the commission on judicial discipline, as provided by rule of the state commission; or (c) With the consent of the justice or judge being evaluated. Source: L. 2008: Entire section added, p. 1284, 10, effective July Acceptance of private or federal grants - general appropriations. The state commission is authorized to accept any grants of federal or private funds made available for any purpose consistent with the provisions of this article. Any funds received pursuant to this section shall be transmitted to the state treasurer, who shall credit the same to the state commission on judicial performance cash fund, which is hereby created and referred to in this section as the "fund". The fund shall also include the amount of the increases in docket fees collected pursuant to sections (1) and (4) (a), C.R.S. Any interest derived from the deposit and investment of moneys in the fund shall be credited to the fund. Any unexpended and unencumbered moneys remaining in the fund at the end of any fiscal year shall remain in the fund and shall not be credited or transferred to the general fund or another fund. Moneys in the fund may be expended by the state commission, subject to annual appropriation by the general assembly, for the purposes of this article. In addition, the general assembly may make annual appropriations from the general fund for the purposes of this article. Source: L. 88: Entire article added, p. 598, 1, effective May 12. L. 99: Entire section 39

44 amended, p. 167, 2, effective March 25. L. 2003: Entire section amended, p. 2672, 3, effective June Implementation of article. (Repealed) Source: L. 88: Entire article added, p. 599, 1, effective May 12. L. 90: Entire section amended, p. 860, 1, effective May 23. L. 2008: Entire section repealed, p. 1284, 11, effective July Repeal of article. (1) This article is repealed, effective June 30, (2) Repealed. Source: L. 88: Entire article added, p. 600, 1, effective May 12. L. 93: Entire section amended, p. 661, 6, effective April 30. L. 97: (2) repealed, p. 1482, 40, effective June 3. L. 99: (1) amended, p. 167, 1, effective March 25. L. 2008: (1) amended, p. 1284, 12, effective July 1. 40

45 RULE CHANGE 2011(17) CHAPTER 37 RULES GOVERNING THE COMMISSIONS ON JUDICIAL PERFORMANCE The State Commission on Judicial Performance with the approval of the Supreme Court Repeals and Readopts the following rules pursuant to section (1)(o)(I), C.R.S. ANALYSIS BY RULE Rule 1 Rule 2 Rule 3 Rule 4 Rule 5 Rule 6 Rule 7 Rule 8 Rule 9 Rule 10 Rule 11 Rule 12 Rule 13 Rule 14 Rule 15 Rule 16 Appointments Officers Procedures Meetings Executive Sessions Recusal Staff Chief Justice or Chief Judge Training Trial Judge Evaluations Appellate Judge and Justice Evaluations Recommendations Narratives Confidentiality Records Complaints 41

46 Rule 1. Appointments. (a) State and district commissioners shall be appointed to four-year terms, expiring on November 30 in odd-numbered years. A commissioner who resigns or moves out of the district or state shall advise the chair of the commission, the appointing authority, and the state commission. The chair of a commission shall advise the appointing authority and the state commission of any vacancy, and the date of the vacancy, if known. The executive director of the Office of Judicial Performance Evaluation shall within five days, in writing, advise the appropriate appointing authority of the vacancy, whether the vacancy must be filled with an attorney or a non-attorney, and that if no appointment is made within forty-five days of the vacancy, the state commission shall make the appointment. (b) The executive director of the Office of Judicial Performance Evaluation shall cause to be published and posted at all times on the office s web site the names of the state and district commissioners and the name, address, telephone number, and address of the executive director of the Office of Judicial Performance Evaluation and each district administrator. (c) The state commission may recommend to the appointing authority that a member of any commission be removed for cause pursuant to section , C.R.S. Cause means any malfeasance or nonfeasance in carrying out the commissioner s official duties and responsibilities, including improper disclosure of confidential information, failure to disclose any basis for recusal or to recuse when appropriate, advocating for or against the retention of any particular justice or judge, and failure to participate in three consecutive meetings. Rule 2. Officers. Commissions shall elect a chair and a vice-chair, one of whom should be an attorney, and one of whom should not be an attorney, to serve two-year terms. The terms of the chairs and vice-chairs of the commissions shall expire on November 30 of each even-numbered year. Rule 3. Procedures. (a) A majority of the total number of appointed members of a commission shall constitute a quorum. The procedures adopted by the state commission shall be used for the conduct of all meetings, evaluations, and other business, except as otherwise provided by these rules or statute. (b) The state commission shall, prior to final promulgation of any proposed rule, post a notice of the proposed rule, allow for a period of public comment, and give the public an opportunity to address the commission concerning the proposed rule at a public hearing. Rule 4. Meetings. (a) Although judicial performance commissions are not subject to the Colorado open meetings law, section , C.R.S., they should attempt to comply as fully as practicable with the spirit of that law. (b) The state commission should post a notice on its web site, including specific agenda information where possible, not less than twenty-four hours prior to the holding of any meeting at which a quorum of the state commission is expected to be in attendance. 42

47 (c) The state commission shall conduct all business publicly, unless it has decided to proceed in executive session in accordance with these rules. No adoption of any proposed policy, position, resolution, rule, regulation, or formal action shall occur at any executive session. Rule 5. Executive Sessions. A motion to go into executive session must be approved by a two-thirds vote of the commissioners, and for only the following purposes: (a) Consideration of confidential materials as part of an evaluation of a justice or judge, including deliberations. Members of other commissions and staff may not be present during such consideration; (b) Conferences with an attorney representing the commission concerning disputes involving the commission; (c) Investigation of charges or complaints against an employee or consideration of dismissal, discipline, promotion, demotion, or compensation of the employee; (d) Specialized details of security arrangements or investigations, including where disclosure of the matters discussed might reveal information that could be used for the purpose of committing, or avoiding prosecution for, a violation of the law; or (e) Any other matter required to be kept confidential by state or federal statutes or rules, including these rules. Rule 6. Recusal. (a) A commissioner shall: (i) Disclose to the commission any professional or personal relationship or interest with respect to a justice or judge that may affect an unbiased evaluation of the justice or judge, including any litigation involving the justice or judge and the commissioner, the commissioner s family, or the commissioner s financial interest. A commission may require recusal of one of its members on account of such relationship upon a two-thirds vote of the other commissioners; (ii) Recuse himself or herself from any evaluation of the person who appointed the commissioner; (iii) Recuse himself or herself from participating in the consideration and vote on any matter involving the evaluation of a justice or judge for failure of a commissioner to meet the training, courtroom observation, interview, or opinion review responsibilities provided by these rules, unless excused by a two-thirds vote of the other commissioners; (iv) Once recused, not be present during any part of the evaluation of the justice or judge. (b) An attorney serving as a commissioner shall not request that a justice or judge being evaluated by the commission be recused from hearing a case in which the attorney appears as counsel of record, or request permission to withdraw from a case pending before a justice or judge being evaluated, solely on the basis that the attorney is serving as a judicial performance commissioner. (c) An attorney who appears in a matter where opposing counsel or a witness serves as a member of a judicial performance commission which is evaluating the justice or judge before 43

48 whom the matter is set, may not seek withdrawal of the attorney, exclusion of the witness, or recusal of the justice or judge solely on the basis that the opposing counsel or witness is serving as a judicial performance commissioner. (d) A justice or judge being evaluated by a judicial performance commission may not recuse himself or herself from a case in which an attorney, party, or witness is a judicial performance commissioner, nor should a justice or judge grant an attorney s request to withdraw from a case, solely on the basis that the attorney, party, or witness is serving as a judicial performance commissioner. Rule 7. Staff. The executive director of the Office of Judicial Performance Evaluation, district administrators, and their staffs shall assist their respective commissions in the performance of their duties, including meeting and interview arrangements, obtaining and distributing information, and posting notices. Staff shall not participate in interviews or deliberations conducted by the commission concerning the evaluation of any justice or judge nor the drafting of narratives. Rule 8. Chief Justice or Chief Judge. Prior to beginning any evaluations, each commission shall meet with the chief justice or chief judge of the court for which there is a justice or judge to be evaluated that year. The meeting is to allow the chief justice or chief judge to provide an overview of the court, and shall not concern the evaluation of any justice or judge s performance, unless the commission had previously made a recommendation for improvement for a justice or judge being evaluated that year. Rule 9. Training. The state commission shall provide training bi-annually that is reasonably accessible and convenient to all commissioners. Each commissioner shall attend one training session, or an appropriate alternative as determined by the state commission, each year in which the commissioner is to evaluate a justice or judge. Rule 10. Trial Judge Evaluations. (a) The state commission shall develop three separate survey questionnaires: one shall be for appellate judges and justices concerning each district judge; one shall be for attorneys, including prosecutors, public defenders, and private attorneys, who have appeared before the trial judge; and one shall be for non-attorneys including jurors, litigants, law enforcement personnel, employees of the court, court interpreters, employees of probation offices, employees of local departments of social services and victims of crimes who have appeared before each trial judge being evaluated. Surveys shall be conducted on a continuing basis, and results provided to the district commission and the trial judge. To ensure the anonymity of respondents, a district commission shall not receive completed questionnaires, and all reports of the results shall be based on aggregate data, including the percentage responding as undecided or don t know 44

49 enough to respond. Comments shall be separated from completed questionnaires before the comments are forwarded to the trial judge whom each comment concerns. (b) Each district commissioner shall make unannounced visits to the courtroom to observe at least three of the trial judges being evaluated. The district commission shall ensure that each trial judge being evaluated receives adequate observation. (c) The district administrator shall provide the district commission with information concerning the caseload, case types, open case reports and case aging reports, and sentence modifications pursuant to section , C.R.S. for each trial judge during the period of evaluation, to the extent possible. (d) The state commission shall develop self-evaluation forms that shall be completed by each trial judge being evaluated. (e) Each district judge shall submit to the district commission not less than three decisions he or she issued, one of which was reversed on appeal, together with the reversing opinion, if applicable. Each county judge shall submit to the district commission transcripts of three findings of fact, conclusions of law, and orders, one of which was reversed on appeal, together with the reversing decision, if applicable. Each district commission shall review the three decisions or transcripts and any others authored by the trial judge that the commission in its discretion may select for compliance with the statutory criteria for legal knowledge and for thoroughness of findings, clarity of expression, logical reasoning, and application of the law to the facts presented. All decisions and opinions submitted or reviewed shall have been issued during the judge s current term. (f) A district commission may interview district and county court judges and other persons and accept information and documentation from interested persons, if the person provides his or her name and address. The district commission shall provide the trial judge with a written summary of any oral information, and a copy of any written information, no later than ten days prior to the interview with the commission. The trial judge also may submit additional written information to the commission prior to or after the interview. (g) The district commission shall interview each trial judge being evaluated following its initial review of information. Rule 11. Appellate Judge and Justice Evaluations. (a) The state commission shall develop four separate survey questionnaires: one shall be for trial judges concerning each appellate judge or justice being evaluated; one shall be for attorneys including prosecutors, public defenders, and private attorneys, who have appeared before the appellate judge or justice; one shall be for other appellate judges and justices, and staff attorneys; and one shall be for employees of the court. Surveys shall be conducted on a continuing basis, and results provided to the state commission and the appellate judge or justice. To ensure the anonymity of respondents, the state commission shall not receive completed questionnaires, and all reports of the results shall be based on aggregate data, including the percentage responding as undecided or don t know enough to respond. Comments shall be separated before the comments are forwarded to the appellate judge or justice whom each comment concerns. 45

50 (b) Each state commissioner shall make unannounced visits to the courtroom to observe at least three of the appellate judges or justices being evaluated. The state commission shall ensure that each appellate judge or justice being evaluated receives adequate observation. (c) The clerks of the supreme court and the court of appeals shall provide the state commission with information concerning opinions authored including concurrences and dissents, and cases on desk reports excluding case names for each appellate judge or justice during the period of evaluation, to the extent possible. (d) The state commission shall develop self-evaluation forms that shall be completed by each appellate judge or justice being evaluated. (e) Each appellate judge or justice shall submit to the state commission five opinions he or she authored, including both civil and criminal cases, at least one of which is a separate concurrence or dissent, if applicable, and one of which was reversed on appeal, together with the reversing opinion, if applicable, and in the case of a judge of the court of appeals, at least one unpublished opinion. The state commission shall review the five opinions and any others authored by the appellate judge or justice that the commission in its discretion may select for compliance with the statutory criteria for legal knowledge and for adherence to the record, clarity of expression, logical reasoning, and application of the law to the facts presented. All opinions submitted or reviewed shall have been issued during the appellate judge or justice s current term. (f) The state commission may interview justices and appellate court judges and other persons and accept information and documentation from interested persons, if the person provides his or her name and address. The state commission shall provide the appellate judge or justice with a written summary of any oral information, and a copy of any written information, no later than ten days prior to the interview with the commission. The appellate judge or justice also may submit additional written information to the commission prior to or after the interview. (g) The state commission shall interview each appellate judge or justice being evaluated following its initial review of information. Rule 12. Recommendations. (a) Following the evaluation based upon the survey data, courtroom observations, case information, self-evaluations, review of decisions, interviews, and any other written or oral information received, a commission shall prepare a recommendation regarding the retention of each justice or judge. The recommendation shall be retain, do not retain, or no opinion. The recommendation of no opinion shall be given only when the commission is equally divided, and as such shall not be counted for or against retention. Individual commissioners may not vote no opinion, but shall vote to retain, or to not retain, or shall recuse themselves. (b) A commission shall consider a recommendation of retain for any justice or judge who receives an average of at least 3.0 on a 4.0 scale for the questionnaire responses, and issued no decision or opinion more than 180 days after a matter was briefed, argued, or otherwise submitted to the court for decision, whichever is latest, unless the other evaluation information indicates a significant performance problem, such as poor judicial temperament. (c) A commission shall consider a recommendation of do not retain for any justice or judge who receives less than an average of 3.0 on a 4.0 scale for the questionnaire responses, unless: 46

51 (i) The nature or high number of cases of a justice or judge s docket or caseload is such that it cannot appropriately be managed in a timely manner. This may be particularly true for a provisional justice or judge, who when appointed may inherit a significantly high number of cases that cannot be managed quickly; or (ii) The commission believes that with additional experience on the bench and a commitment to improve his or her judicial skills, the justice or judge should be given more time to develop his or her judicial skills. The justice or judge must agree to the recommendations contained in a performance plan that identifies areas of significantly poor performance and makes specific recommendations for improvement. Rule 13. Narratives. (a) Within ten days following the interview, a commission shall provide the justice or judge a complete written draft of the narrative supporting the recommendation. A narrative shall consist of four short paragraphs totaling not more than 500 words, as follows: (i) The retention recommendation, including the number of commissioners who voted for and against retention; (ii) Undergraduate and law schools attended, previous substantial legal or public employment, relevant professional activities or awards, and volunteer or other community work; (iii) A description of the performance of the justice or judge over the past term, including any areas of notably strong or weak performance, any deficiencies identified in the interim evaluation, and the extent to which such deficiency has been satisfactorily addressed, and any additional information that the commission believes may be of assistance to the public in making an informed voting decision; (iv) A description of the groups of respondents surveyed, whether any of the groups surveyed had an insufficient response rate, the percentage of responses received from each group who recommend that a justice or judge be retained, the percentage received from each group who recommend that a justice or judge not be retained, and the percentage received from each group indicating undecided or don t know enough to make a recommendation. (b) The justice or judge being evaluated may respond in writing to the draft narrative, and request an additional interview, within ten days of receipt of the draft. Any additional interview shall be held within ten days of the request. The commission may revise the draft narrative, and shall provide the justice or judge with the final narrative within ten days following the additional interview. (c) Any commission issuing a do not retain or no opinion recommendation shall, at the justice or judge s request, include a response from the justice or judge of not more than 100 words. The commission may then change its vote count or revise the draft narrative, and shall provide the justice or judge with the final narrative within ten days following the receipt of the response. (d) If the commission has identified one or more areas of significantly poor performance, it may recommend to the chief justice or chief judge that the justice or judge be placed on an improvement plan. 47

52 Rule 14. Confidentiality. (a) All comments in survey reports, self-evaluations, personal information protected under section (3)(a)(II), C.R.S., additional oral or written information under rules 10(f) and 11(f), content of improvement plans, any matter discussed in executive session under rule 5, and complaints, responses and decisions under rule 16, shall remain confidential except as otherwise specifically provided in these rules. Information from comments in survey reports, self-evaluations, and additional oral or written information under rules 10(f) and (g) and 11(f) and (g), may be summarized for use in a narrative. No commissioner may publicly discuss the substance of the evaluation of any particular justice or judge. Each commission may designate a sole or primary spokesperson to publicly discuss, between July 1 and December 31 of an election year, the process of evaluating the justices and judges. (b) All recommendations, narratives, and survey reports are confidential until released to the public on the first day following the deadline for judges to declare their intent to stand for retention. Any comments included in the report shall be made available only to commissioners, the justice or judge being evaluated, and the chief justice or chief judge. (c) Otherwise confidential information may be released only under the following circumstances: (i) To the supreme court attorney regulation committee, if an allegation is made against a justice or judge in the course of the evaluation process which, if true, would constitute a violation of the Colorado rules of professional conduct, on the same basis as that body provides confidential information to the state commission; (ii) To the commission on judicial discipline, if an allegation is made against a justice or judge in the course of the evaluation process, which, if true, would constitute a violation of the code of judicial conduct, or which would constitute extra-judicial conduct that reflects adversely on the judiciary, on the same basis as that body provides confidential information to the state commission; or (iii) With the consent of the justice or judge. A justice or judge disclosing otherwise confidential information shall be deemed to have consented to the release of related confidential information. Rule 15. Records. Upon completing its required recommendations and narratives, each commission shall collect all documents and other information, including all copies, received regarding the justices or judges evaluated. Each commission shall forward the documents and other information, including all copies, to the state commission within 30 days following submission of their recommendations and narratives to the state commission. The state commission shall establish guidelines regarding retention of evaluation information, which shall be made available to commissions in subsequent judicial performance evaluation cycles. Rule 16. Complaints. (a) Any commissioner, justice or judge may file a written complaint with the state commission regarding any alleged violation of these rules or the statutes governing judicial performance commissions. The state commission shall provide a copy to the chair of the 48

53 particular district commission, who shall provide a written response. The state commission shall make an independent review and provide its decision to the district commission along with any remedial instructions. The state commission may not reverse any retention recommendation, but may cause a rebuttal to be published with the district commission s recommendation or direct a district commission to revise a narrative within ten days. Should the district commission fail to satisfactorily comply, the state commission may, in its discretion, rewrite the narrative. (b) The state commission may, following the redaction of confidential information, publically disclose a complaint, response, and the state commission s decision. Amended and adopted by the Court, En Banc, December 8, 2011, effective January 1, By the Court: Nancy E. Rice Justice, Colorado Supreme Court 49

54 COLORADO CODE OF JUDICIAL CONDUCT Includes all rule changes through 2013 (9) Index of Canons and Rules Canon 1: A JUDGE SHALL UPHOLD AND PROMOTE THE INDEPENDENCE, INTEGRITY, AND IMPARTIALITY OF THE JUDICIARY, AND SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY. Rule 1.1. Compliance with the Law Rule 1.2. Promoting Confidence in the Judiciary Rule 1.3. Avoiding Abuse of the Prestige of Judicial Office Canon 2: A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY, COMPETENTLY, AND DILIGENTLY. Rule 2.1. Giving Precedence to the Duties of Judicial Office Rule 2.2. Impartiality and Fairness Rule 2.3. Bias, Prejudice, and Harassment Rule 2.4. External Influences on Judicial Conduct Rule 2.5. Competence, Diligence, and Cooperation Rule 2.6. Ensuring the Right to Be Heard Rule 2.7. Responsibility to Decide Rule 2.8. Decorum, Demeanor, and Communication with Jurors Rule 2.9. Ex Parte Communications Rule Judicial Statements on Pending and Impending Cases Rule Disqualification Rule Supervisory Duties Rule Administrative Appointments Rule Disability and Impairment Rule Responding to Judicial and Lawyer Misconduct Rule Cooperation with Disciplinary Authorities Canon 3: A JUDGE SHALL CONDUCT THE JUDGE'S PERSONAL AND EXTRAJUDICIAL ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH THE OBLIGATIONS OF JUDICIAL OFFICE. Rule 3.1. Extrajudicial Activities in General Rule 3.2. Appearances before Governmental Bodies and Consultation with Government Officials Rule 3.3. Testifying as a Character Witness Rule 3.4. Appointments to Governmental Positions Rule 3.5. Use of Nonpublic Information Rule 3.6. Affiliation with Discriminatory Organizations Rule 3.7. Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities Rule 3.8. Appointments to Fiduciary Positions Rule 3.9. Service as Arbitrator or Mediator Rule Practice of Law Rule Financial, Business, or Remunerative Activities Rule Compensation for Extrajudicial Activities Rule Acceptance and Reporting of Gifts, Loans, Bequests, Benefits, or Other Things of Value Rule Reimbursement of Expenses and Waivers of Fees or Charges Rule Reporting Requirements 50

55 Canon 4: A JUDGE OR CANDIDATE FOR JUDICIAL OFFICE SHALL NOT ENGAGE IN POLITICAL OR CAMPAIGN ACTIVITY THAT IS INCONSISTENT WITH THE INDEPENDENCE, INTEGRITY, OR IMPARTIALITY OF THE JUDICIARY. Rule 4.1. Political and Campaign Activities of Judges and Judicial Candidates in General Rule 4.2. Political and Campaign Activities of a Judge Who is a Candidate for Retention Rule 4.3. Retention Campaign Committees Rule 4.4. Activities of Judges Who Become Candidates for Nonjudicial Office 51

56 COLORADO CODE OF JUDICIAL CONDUCT Includes all rule changes through 2013 (9) Preamble [1] An independent, fair and impartial judiciary is indispensable to our system of justice. The United States legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society. Thus, the judiciary plays a central role in preserving the principles of justice and the rule of law. Inherent in all the Rules contained in this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system. [2] Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence. [3] The Colorado Code of Judicial Conduct establishes standards for the ethical conduct of judges and judicial candidates. It is not intended as an exhaustive guide for the conduct of judges and judicial candidates, who are governed in their judicial and personal conduct by general ethical standards as well as by the Code. The Code is intended, however, to provide guidance and assist judges in maintaining the highest standards of judicial and personal conduct, and to provide a basis for regulating their conduct through disciplinary agencies. Scope [1] The Colorado Code of Judicial Conduct consists of four Canons, numbered Rules under each Canon, and Comments that generally follow and explain each Rule. Scope and Terminology sections provide additional guidance in interpreting and applying the Code. An Application section establishes when the various Rules apply to a judge or judicial candidate. [2] The Canons state overarching principles of judicial ethics that all judges must observe. Although a judge may be disciplined only for violating a Rule, the Canons provide important guidance in interpreting the Rules. Where a Rule contains a permissive term, such as "may" or "should," the conduct being addressed is committed to the personal and professional discretion of the judge or candidate in question, and no disciplinary action should be taken for action or inaction within the bounds of such discretion. [3] The Comments that accompany the Rules serve two functions. First, they provide guidance regarding the purpose, meaning, and proper application of the Rules. They contain explanatory material and, in some instances, provide examples of permitted or prohibited conduct. Comments neither add to nor subtract from the binding obligations set forth in the Rules. Therefore, when a Comment contains the term ''must," it does not mean that the Comment itself is binding or enforceable; it signifies that the Rule in question, properly understood, is obligatory as to the conduct at issue. [4] Second, the Comments identify aspirational goals for judges. To implement fully the principles of this Code as articulated in the Canons, judges should strive to exceed the standards of 52

57 conduct established by the Rules, holding themselves to the highest ethical standards and seeking to achieve those aspirational goals, thereby enhancing the dignity of the judicial office. [5] The Rules of the Colorado Code of Judicial Conduct are rules of reason that should be applied consistent with constitutional requirements, statutes, other court rules, and decisional law, and with due regard for all relevant circumstances. The Rules should not be interpreted to impinge upon the essential independence of judges in making judicial decisions. [6] Although the black letter of the Rules is binding and enforceable, it is not contemplated that every transgression will result in the imposition of discipline. Whether discipline should be imposed should be determined through a reasonable and reasoned application of the Rules, and should depend upon factors such as the seriousness of the transgression, the facts and circumstances that existed at the time of the transgression, the extent of any pattern of improper activity, whether there have been previous violations, and the effect of the improper activity upon the judicial system or others. [7] The Code is not designed or intended as a basis for civil or criminal liability. Neither is it intended to be the basis for litigants to seek collateral remedies against each other. ANNOTATION By expressing approval of the canons of ethics, the Supreme Court did not enact them into law. In re Petition of Colo. Bar Ass'n, 137 Colo. 357, 325 P.2d 932 (1958). Nevertheless, they are recognized as principles of exemplary conduct. Although the canons employing language of wide coverage cannot be given the effect of law, they nevertheless are recognized generally as a system of principles of exemplary conduct and character. In re Petition of the Colo. Bar Ass'n, 137 Colo. 357, 325 P.2d 932 (1958). Neither the supreme court nor the grievance committee has the power or authority to institute or conduct disciplinary proceedings of any kind involving the conduct of a duly elected judge, he being responsible solely to the people, the constitution fixing the remedy at impeachment. In re Petition of Colo. Bas Ass'n, 137 Colo. 357, 325 P.2d 932 (1958). 53

58 Terminology The first time any term listed below is used in a Rule in its defined sense, it is followed by an asterisk (*). "Appropriate authority" means the authority having responsibility for initiation of disciplinary process in connection with the violation to be reported. In Colorado, the Commission on Judicial Discipline is the authority responsible for investigating judicial misconduct and disciplining judges, except with respect to Denver County court and municipal judges, over whom it has no jurisdiction pursuant to Colo. Const. Article VI 26; , C.R.S.; C.J.R.D. 4(a). See Rules 1.1, 2.14 and "Contribution" means both financial and in-kind contributions, such as goods, professional or volunteer services, advertising, and other types of assistance which, if obtained by the recipient otherwise, would require a financial expenditure. See Rule 3.7. "De minimis," in the context of interests pertaining to disqualification of a judge, means an insignificant interest that could not raise a reasonable question regarding the judge's impartiality. See Rule "Domestic partner" means a person with whom another person maintains household and an intimate relationship, other than a person to whom he or she is legally married. See Rules 2.11, 3.13, and "Economic interest" means ownership of more than a one percent legal or equitable interest in a party, or a legal or equitable interest in a party of a fair market value exceeding $5,000, or a relationship as director, advisor, or other active participant in the affairs of a party, except that: (1) Ownership in a mutual or common investment fund that holds securities, or of securities held in a managed fund, is not an "economic interest" in such securities unless the judge participates in the management of the fund; (2) securities held by an educational, religious, charitable, fraternal, or civic organization in which the judge or the judge's spouse, domestic partner, parent, or child serves as a director, an officer, an advisor, or other participant is not an "economic interest" in securities held by the organization; (3) the proprietary interest of a policy holder in a mutual insurance company, of a depositor in a financial institution, or deposits or proprietary interests the judge may maintain as a member of a mutual savings association or credit union, or a similar proprietary interest is an "economic interest" in the organization only if the outcome of the proceeding could substantially affect the value of the interest; and (4) ownership of government securities is an "economic interest" in the issuer only if the outcome of the proceeding could substantially affect the value of the securities. See Rules 1.3 and "Fiduciary" includes relationships such as executor, administrator, trustee, or guardian. See Rules 2.11, 3.2, and 3.8. "Impartial," "impartiality," and "impartially" mean absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering 54

59 issues that may come before a judge. See Canons 1, 2, and 4, and Rules 1.2, 2.2, 2.10, 2.11, 2.13, 3.1, 3.12, 3.13, 4.1, and 4.2. "Impending matter" is a matter that is imminent or expected to occur in the near future. See Rules 2.9, 2.10, 3.13, and 4.1. "Impropriety" includes conduct that violates the law, court rules, or provisions of this Code, and conduct that undermines a judge's independence, integrity, or impartiality. See Canon 1 and Rule 1.2. "Independence" means a judge's freedom from influence or controls other than those established by law. See Canons 1 and 4, and Rules 1.2, 3.1, 3.12, 3.13, and 4.2. "Integrity" means probity, fairness, honesty, uprightness, and soundness of character. See Canon 1 and Rule 1.2. "Judicial candidate" means a sitting judge who is seeking selection for judicial office by appointment or retention. See Rules 2.11, 4.1, 4.2, and 4.3. "Knowingly," "knowledge," "known," and "knows" mean actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances. See Rules 2.11, 2.15, 2.16, 3.6, and 4.1. "Law" encompasses court rules and orders as well as statutes, constitutional provisions, and decisional law. See Rules 1.1, 2.1, 2.2, 2.6, 2.7, 2.9, 3.1, 3.4, 3.9, 3.12, 3.13, 3.14, 3.15, 4.1, 4.2, and 4.4. "Member of the judge's family" means a spouse, domestic partner, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship. See Rules 3.7, 3.8, 3.10, and "Member of a judge's family residing in the judge's household" means any relative of a judge by blood or marriage, or a person treated by a judge as a member of the judge's family, who resides in the judge's household. See Rules 2.11 and "Nonpublic information" means information that is not available to the public. Nonpublic information may include, but is not limited to, information that is sealed by statute or court order or impounded or communicated in camera, and information offered in grand jury proceedings, presentencing reports, dependency cases, or psychiatric reports. See Rule 3.5. "Pending matter" is a matter that has commenced. A matter continues to be pending through any appellate process until final disposition. See Rules 2.9, 2.10, 3.13, and 4.1. "Personally solicit" means a direct request made by a judge or judicial candidate for financial support or in kind services, whether made by letter, telephone, or any other means of communication. See Rule 4.1. "Political organization" means a political party or other group sponsored by or affiliated with a political party or candidate, the principal purpose of which is to further the election or appointment of candidates 55

60 for political office. For purposes of this Code, the term does not include a judicial candidate's retention committee created as authorized by Rule 4.3. See Rule 4.1. "Public election" includes primary and general elections, partisan elections, nonpartisan elections, and retention elections. See Rule 4.2. "Third degree of relationship" includes the following persons: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew, and niece. See Rule

61 Application The Application section establishes when the various Rules apply to a judge or judicial candidate. I. Applicability of This Code Comment (A) The provisions of the Code apply to all full-time judges. Parts II through V of this section identify those provisions that apply to three distinct categories of part-time judges. The three categories of judicial service in other than a full-time capacity are necessarily defined in general terms because of the widely varying forms of judicial service. Canon 4 applies to judicial candidates. (B) A judge, within the meaning of this Code, is anyone who is authorized to perform judicial functions, including an officer such as a magistrate, referee, or member of the administrative law judiciary. [1] The Rules in this Code have been formulated to address the ethical obligations of any person who serves a judicial function, and are premised upon the supposition that a uniform system of ethical principles should apply to all those authorized to perform judicial functions. [2] The determination of which category and, accordingly, which specific Rules apply to an individual judicial officer, depends upon the facts of the particular judicial service. [3] This code does not apply to a person appointed by the court to serve as a master in a particular case. This code does not apply to municipal judges except to the extent it is made applicable by statute, municipal charter or ordinance. However, reference to the code by all judicial officers, including municipal judges, is recommended to provide guidance concerning the proper conduct for judges. II. Senior and Retired Judges Senior judges, while under contract pursuant to the senior judge program, and retired judges, while recalled and acting temporarily as a judge, are not required to comply: (A) with Rule 3.9 (Service as Arbitrator or Mediator); or (B) with Rule 3.8 (Appointments to Fiduciary Positions). III. Part-Time Judges A judge who serves on a part-time basis (A) is not required to comply: (1) with Rules 3.8 (Appointments to Fiduciary Positions), 3.9 (Service as Arbitrator or Mediator), 3.10 (Practice of Law), 3.11 (A) and (B) (Financial, Business, or Remunerative Activities); and (B) shall not practice law in the court on which the judge serves or in any comparable level court in the same judicial district on which the judge serves or in any court subject to the appellate jurisdiction of the court on which the judge serves, and shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto; (C) shall not practice law with respect to any controversies which will or appear likely to come before the court on which the judge serves or any court of the same or comparable jurisdiction within the same judicial district on which the judge serves. 57

62 Comment [1] This Canon limits a part-time judge from practicing law in any comparable level court in the same judicial district as the judge serves. However, this prohibition shall not apply to any temporary assignment of a part-time judge to a comparable level court outside the judicial district the judge serves. In addition, this prohibition shall not apply to a one-time assignment of a part-time judge to a court of higher jurisdiction (such as a one-time assignment under order in a district court case) either within, or outside of, the judicial district in which the judge serves. A part-time judge serving on temporary assignment is not thereby precluded from practicing law in the court to which that judge may be temporarily assigned. During such period of temporary assignment, however, the judge shall not actively participate as counsel in any case pending before the court to which the judge is temporarily assigned. [2] A part-time judge who practices law must avoid undertaking or continuing any relationship which precludes the judge from maintaining the integrity of the bench which he or she serves and at the same time providing the undivided loyalty to clients which the exercise of professional judgment on behalf of a client demands. Being "of counsel" is deemed to be the practice of law, whereas acting as a mediator or arbitrator is not deemed to be the practice of law. Necessarily, the professional responsibilities of a part-time judge who practices law limit the practice of law by the judge's partners and associates. ANNOTATION Ethics Opinions A part-time county court judge with authority by chief judge order to preside over cases in the district court may not appear as a lawyer in the district court in the judicial district. In this case, the part-time judge had continuing authority to hear district court criminal cases, but never exercised his authority. The opinion precludes the judge from appearing in district court civil cases in the same judicial district. CJEAB Op IV. Appointed Judges An Appointed Judge who serves pursuant to C.R.C.P. 122 and section , C.R.S., for the period of the appointment, and in his or her capacity as Appointed Judge, (A) is not required to comply with the following canons: (1) 2.10 (A) (Judicial Statements on Pending and Impending Cases), except as to the case where he or she is appointed, and should require similar abstention from comment on the part of those personnel who are subject to the Appointed Judge's direction and control; (2) 3.2 (Appearances Before Governmental Bodies and Consultation with Governmental Officials); 3.3 (Testifying as a Character Witness); 3.4 (Appointments to Governmental Positions); 3.7 (Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities); 3.8 (Appointments to Fiduciary Positions); 3.9 (Service as Arbitrator of Mediator); 3.10 (Practice of Law); 3.11 (Financial, Business, or Remunerative Activities); 3.12 (Compensation for Extrajudicial Activities); 3.13 (C) (Reporting of Certain Gifts, Loans, Bequests, Benefits, or Other things of Value); 3.14 (Reimbursement of Expenses and Waivers of Fees or Charges); and 3.15 (Reporting Requirements); (3) 4.1 (A)(5, 12, 13) (Political and Campaign Activities of Judges in General); 4.2 (Political and Campaign Activities of a Judge Standing for Retention); and 4.4 (Campaign Committees). 58

63 (B) should refrain as follows: (1) from financial and business dealings that relate directly to any issues in the case to which the Appointed Judge is appointed; (2) from accepting any gift, bequest, favor or loan from any party to or the lawyer appearing in the case to which the appointed judge is appointed, and should require a spouse, domestic partner or family member residing in the judge's household to refrain from accepting gifts, bequests, favors, or loans in the same manner as the judge. V. Time for Compliance A person to whom this Code becomes applicable shall comply immediately with its provisions, except that those judges to whom Rules 3.8 (Appointments to Fiduciary Positions) and 3.11 (Financial, Business, or Remunerative Activities) apply shall comply with those Rules as soon as reasonably possible, but in no event later than one year after the Code becomes applicable to the judge. Comment [1] If serving as a fiduciary when selected as judge, a new judge may, notwithstanding the prohibitions in Rule 3.8, continue to serve as fiduciary, but only for that period of time necessary to avoid serious adverse consequences to the beneficiaries of the fiduciary relationship and in no event longer than one year. Similarly, if engaged at the time of judicial selection in a business activity, a new judge may, notwithstanding the prohibitions in Rule 3.11, continue in that activity for a reasonable period but in no event longer than one year. 59

64 Canon 1 A JUDGE SHALL UPHOLD AND PROMOTE THE INDEPENDENCE, INTEGRITY, AND IMPARTIALITY OF THE JUDICIARY, AND SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY. Rule 1.1 Compliance with the Law (A) A judge shall comply with the law,* including the Code of Judicial Conduct. (B) Conduct by a judge that violates a criminal law may, unless the violation is minor, constitute a violation of the requirement that a judge must comply with the law. (C) Every judge subject to the Code of Judicial Conduct, upon being convicted of a crime, except misdemeanor traffic offenses or traffic ordinance violations not including the use of alcohol or drugs, shall notify the appropriate authority* in writing of such conviction within ten days after the date of the conviction. In addition, the clerk of any court in this state in which the conviction was entered shall transmit to the appropriate authority within ten days after the date of the conviction a certificate thereof. This obligation to self-report convictions is a parallel but independent obligation of judges admitted to the Colorado bar to report the same conduct to the Office of Attorney Regulation pursuant to C.R.C.P ANNOTATION Violations by a judge of federal or state criminal law may constitute a violation of the requirement that a judge must comply with the law, unless the violation is trivial. Matter of Vandelinde, 366 S.E.2d 631, 633 (W. Va. 1988) (involving a magistrate judge's misconduct in the form of excess election contributions). Violation of law, however trivial, harmless or isolated, is not necessarily a violation of the judicial canons. However, conduct that is grave, intentional and threatening, such as criminal mischief in third degree, falls on censurable side of line. In re Conduct of Roth, 645 P.2d 1064 (Or. 1982) (disciplining a judge for third degree criminal mischief). Some violations of law (such as minor traffic infractions) may be of such a nature as to not come within the intended meaning of [this Rule]. In re Sawyer, 594 P.2d 805, 811 (Or. 1979) (concluding that a judge who is regularly-employed as a part-time teacher for pay by a state-funded college violates a state constitutional prohibition against officials of one state department exercising functions of another). Rule 1.2 Promoting Confidence in the Judiciary A judge shall act at all times in a manner that promotes public confidence in the independence,* integrity,* and impartiality* of the judiciary, and shall avoid impropriety and the appearance of impropriety. Comment [1] Public confidence in the judiciary is eroded by improper conduct and conduct that creates the appearance of impropriety. This principle applies to both the professional and personal conduct of a judge. [2] A judge should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens, and must accept the restrictions imposed by the Code. 60

65 [3] Conduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary. Because it is not practicable to list all such conduct, the Rule is necessarily cast in general terms. [4] Judges should participate in activities that promote ethical conduct among judges and lawyers, support professionalism within the judiciary and the legal profession, and promote access to justice for all. [5] Impropriety occurs when the conduct compromises the ability of the judge to carry out judicial responsibilities with integrity, impartiality and competence. Actual improprieties include violations of law, court rules or provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge's honesty, impartiality, temperament, or fitness to serve as a judge. [6] A judge should initiate and participate in community outreach activities for the purpose of promoting public understanding of and confidence in the administration of justice. In conducting such activities, the judge must act in a manner consistent with this Code. ANNOTATION Law reviews. For article, "From the Cloister of the Street: Judicial Ethics and Public Expression", see 64 Den. U. L Rev. 549 (1988). One meaning of impartiality in the judicial context is lack of bias for or against any party to a proceeding. Impartiality may also involve open-mindedness, not in the sense that judges should have no preconceptions on legal issues, but rather that judges should be willing to consider views that oppose those preconceptions and remain open to persuasion when those issues arise in a pending case. Republican Party of Minn. v. White, 536 U.S. 765, 775, 779 (2002). The role of the judiciary, if its integrity is to be maintained, is one of impartiality. People v. Martinez, 185 Colo. 187, 523 P.2d 120, aff'd, 186 Colo. 225, 526 P.2d 1325 (1974). Courts must meticulously avoid any appearance of partiality, not merely to secure the confidence of the litigants immediately involved, but to retain public respect and secure willing and ready obedience to their judgments. Wood Bros. Homes v. City of Fort Collins, 670 P.2d 9 (Colo. App. 1983). The duty to be impartial cannot be fulfilled where, by his active role in the presentation of the prosecution's case, a trial judge calls witnesses, presents evidence, and cross-examines defense witnesses, because these are the acts of an advocate and not a judge. People v. Martinez, 185 Colo. 187, 523 P.2d 120, aff'd, 186 Colo. 225, 526 P.2d 1325 (1974). Such conduct constitutes reversible error. The assumption by the court of the role of advocate for the prosecution is inconsistent with the proper function of the judiciary and constitutes reversible error. People v. Martinez, 185 Colo. 187, 523 P.2d 120, aff'd, 186 Colo. 225, 526 P.2d 1325 (1974). Courts must meticulously avoid any appearance of partiality, not merely to secure the confidence of the litigants immediately involved, but to retain public respect and secure willing and ready obedience to their judgments. Wood Bros. Homes v. City of Fort Collins, 670 P.2d 9 (Colo. App. 1983). Judge's advice to prosecution not error unless defendant denied fair trial. While it may be ill-advised for a trial judge to point out a possible deficiency in the prosecution's case, such conduct is not reversible error 61

66 where it does not so depart from the required standard of impartiality as to deny the defendant a fair trial. People v. Adler, 629 P.2d 569 (Colo. 1981). Judge is ill-advised to be expert witness and judge on same issue in two proceedings. The actions of a retired judge in becoming an expert witness in a case concerning the same issue - size of attorney fees in an estate proceeding - as in another dispute raises the specter of an appearance of impropriety. The judge is ill-advised to place himself in this position and then preside at the trial of the latter case. However, when the judge does not actually testify in the former case, and the record contains no indication that the judge acted with prejudice, the judge does not have such an interest as to require disqualification. Colo. State Bd. Of Agriculture v. First Nat'l Bank, 671 P.2d 1331 (Colo. App. 1983). Actual bias arises where a prejudice in all probability prevents a judge from dealing fairly with a party. People v. Julien, 47 P.3d 1194 (Colo. 2002). Disqualification requires more than mere relationship. Determining factors are closeness of the relationship and its bearing on the underlying case. Schupper v. People, 157 P.3d 516 (Colo. 2007). Existence of a marriage relationship between a judge and a deputy district attorney in the same county is sufficient to establish grounds for disqualification even though no other facts call into question the judge's impartiality. Smith v. Beckman, 683 P.2d 1214 (Colo. App. 1984). While a dissent may be written in a succeeding case or two, the code of judicial conduct should bury the idea of a judge dissenting on the same issue ad infinitum. People v. Steed, 189 Colo. 212, 540 p.2d 323 (1975). Public reprimand ordered based upon appearance of impropriety arising from judge's conduct hiring the judicial district's coroner. Appointee did not apply during application period; selection was made on basis of criteria not stated in official announcement, including known friendship with the Chief Justice, and on terms significantly different from those advertised to general public. In re Johnstone, 2 P.3d 1226 (Alaska 2000). Ethics Opinions A judge whose spouse is running for city council, which exercises supervisory responsibility over the chief of police and city manager, would not be required to disqualify himself in all cases charged by the police department. The existence of this relationship would not, in the usual case, cause the judge's impartiality to be questioned. Colo. J.E.A.B. Op A part-time county judge who maintains a part-time civil practice may not exercise discretionary authority to sit as a district judge in criminal matters and also continue to appear in the same district court as a lawyer on civil matters. To allow a judge to preside over cases while practicing in the same court would erode confidence in the impartiality of the judiciary. Colo. J.E.A.B. Op A judge may not advertise her ability to perform wedding ceremonies by sending fliers to wedding planners and may not otherwise solicit business as a wedding officiant. Colo. J.E.A.B. Op A judge is not required to automatically disqualify himself when the parents of his estranged godchild or the parent s colleagues appear before the judge. Colo. J.E.A.B. Op

67 A judge need not automatically disqualify herself where an attorney who represented the judge's adult child, the costs of which were paid by the judge but reimbursed by the adult child, appears before the judge. Colo. J.E.A.B. Op An active judge planning to retire in the near future should refrain from setting or hearing private mediations until the judge actually retires. Colo. J.E.A.B. Op A judge may serve on the board of an organization devoted to seeking funds to assist defendants in obtaining court-ordered substance abuse treatment, and the judge may make recommendations to a private foundation that it should fund programs to the same end, but it would be inappropriate for the judge to assist in determining which particular defendants receive the scholarship funds. Colo. J.E.A.B. Op A judge should disqualify himself sua sponte if an attorney or firm currently representing the judge, or the judge's adversary in a current matter, appears before the judge. A judge should also disqualify himself sua sponte for a reasonable period, typically for one year, after the representation has ended, when the judge's attorney, other members of that firm, the judge's adversary's attorneys, or members of that attorney's firm appear before the judge in order to avoid an appearance of impropriety. After the expiration of a reasonable period of time, disqualification is not required but may be appropriate under the circumstances. Disclosure should continue until the passage of time or circumstances make the prior representation irrelevant. Colo. J.E.A.B. Op To avoid an appearance of impropriety, when a judge's spouse contributes to a political candidate, the contribution should be made in the spouse's name alone and from the spouse's separate bank account, with no reference to the judge or the judge's position. Colo. J.E.A.B. Op A judge may recommend a lawyer only in circumstances where the judge has a sufficiently close relationship with the requesting party that he would automatically recuse himself from the case due to the closeness of the relationship regardless of whether the judge had been asked to make the recommendation. Colo. J.E.A.B. Op Service on the judge's homeowners' association board of directors would be inappropriate where the association is large and substantial, maintains sizable cash reserves and operates under a large budget, and engages in outside transactions likely to result in litigation. Colo. J.E.A.B. Op A judge should disqualify himself from cases in which a partner or associate in his brother-in-law's firm acts as counsel, Colo. J.E.A.B. Op A judge need not recuse in every case involving a law enforcement agency for which the judge's spouse occasionally performs arson investigations. Colo. J.E.A.B. Op A mentee judge may discuss pending or impending matters with his or her mentor judge but the mentee judge alone is responsible for making decisions in the matter. Colo. J.E.A.B. Op A judge's report of an attorney's misconduct in a case pending before the judge requires the judge to disqualify himself or herself. Colo. J.E.A.B. Op A judge who, immediately following a hearing, had lunch with one of the attorneys in the proceeding, violated Canon 2A by creating an appearance of impropriety. The closeness in time between the hearing and the social lunch could suggest to a reasonable observer that the attorney had influence over the judge based upon their social relationship. Alaska Formal Op

68 A judge engages in improper political activity by moderating a partisan political debate. Despite all candidates being represented and no sponsorship by any political party, political debates by their nature engage the moderator in political discourse inappropriate to judicial office. Such a debate improperly lends the prestige of judicial office to the event in a state with a non-elected judiciary. Alaska Formal Op While a judge may "speak, write, lecture, and teach on both legal and non-legal subjects" and may accept compensation so long as the compensation does not exceed a reasonable amount nor exceed that which would be received by a person who is not a judge, it is not permissible for a judge to write a regular column in a for-profit publication in which the placement of the article, not within the judge's control, could be construed as endorsing other articles or advertisements that might demean the office. Md. Ethics Op A judge should not participate on the advisory board of an arbitration association where it is likely that the judge's opinions on matters before the board could be construed as the giving of legal advice. Md. Ethics Op A judge's introduction of keynote speaker at event that is primarily commemorative but which also is used to raise funds would create appearance of impropriety. Neb. Ad. Op No appearance of impropriety for judge who serves on board of directors of charitable organization to allow his name to appear on the organization's stationery provided judge's position is not identified and his name not selectively emphasized. U.S. Conf. Ad. Op. No. 35. No appearance of impropriety for judge to participate in a seminar in another country designed to improve relations with that country where judge's expenses are paid by organization unlikely to come before Utah courts. Utah Ad. Op No appearance of impropriety for judge to teach a course involving only one component of the bar. Utah Ad. Op Rule 1.3 Avoiding Abuse of the Prestige of Judicial Office A judge shall not abuse the prestige of judicial office to advance the personal or economic interests* of the judge or others, or allow others to do so. Comment [1] It is improper for a judge to use or attempt to use his or her position to gain personal advantage or deferential treatment of any kind. For example, it would be improper for a judge to allude to his or her judicial status to gain favorable treatment in encounters with traffic officials. Similarly, a judge must not use judicial letterhead to gain an advantage in conducting his or her personal business. [2] A judge may provide a reference or recommendation for an individual based upon the judge's personal knowledge. The judge may use official letterhead if the judge indicates that the reference is personal and if there is no likelihood that the use of the letterhead would reasonably be perceived as an attempt to exert pressure by reason of the judicial office. [3] Judges may participate in the process of judicial selection by cooperating with appointing authorities and screening committees, and by providing information to such entities concerning the professional qualifications of a person being considered for judicial office. 64

69 [4] Special considerations arise when judges write or contribute to publications of for-profit entities, whether related or unrelated to the law. A judge should not permit anyone associated with the publication of such materials to exploit the judge's office in a manner that violates this Rule or other applicable law. In contracts for publication of a judge's writing, the judge should retain sufficient control over the advertising to avoid such exploitation. ANNOTATION Ethics Opinions Judicial officer may not advertise his or her availability to perform wedding ceremonies by sending fliers to wedding planners and may not otherwise solicit business as a wedding officiant. Colo. J.E.A.B. Op Judge may not testify as a character witness on a voluntary basis, but he or she is obligated to comply with a subpoena if one is issued. Judge should consider attempting to discourage, to the extent reasonable, a party or lawyer from subpoenaing the judge as a character witness, unless the interests of justice require the judge's testimony. Colo. J.E.A.B. Op Judge's spouse is not subject to the Code of Judicial Conduct and thus may freely pursue elected office. However, the judge should refrain from attending all political events in support of the spouse's candidacy and must avoid activities that could be perceived as constituting an endorsement of the candidate or using the prestige of the judicial office to benefit the spouse. Colo. J.E.A.B. Op A judge should take appropriate steps to ensure that neither the content of the foreword to a book a judge was asked to write nor the advertising exploit the judicial office or advance the private interests of others. Utah Ad. Op Advising a judge to retain control over the advertising of his publications, including a veto right, to ensure that the judicial position is not exploited nor the private interests of others advanced by use of the prestige of the judge's office. U.S. Conf. Ad. Op. No. 55. A judge should not receive compensation for publication on how to practice before judge's court; forprofit publication on scholarly and legal topics permissible. U.S. Conf. Ad. Op. No. 87. Canon 2 A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY, COMPETENTLY, AND DILIGENTLY. Rule 2.1 Giving Precedence to the Duties of Judicial Office The duties of judicial office, as prescribed by law,* shall take precedence over all of a judge's personal and extrajudicial activities. 65

70 Comment [1] To ensure that judges are available to fulfill their judicial duties, judges must conduct their personal and extrajudicial activities to minimize the risk of conflicts that would result in frequent disqualification. See Canon 3. [2] Although it is not a duty of judicial office unless prescribed by law, judges are encouraged to participate in activities that promote public understanding of and confidence in the justice system. ANNOTATION Whether a judge may sit on the board of directors of his or her homeowner's association is to be determined on a case-by-case basis. Where the association is large and substantial, maintains significant cash reserves, operates under a sizeable budget and engages in substantial business-type contacts with the outside enterprises of the kind that might involve the association in litigation, it would be inappropriate for a judge to serve on the association's board. Colo. J.E.A.B. Op Rule 2.2 Impartiality and Fairness A judge shall uphold and apply the law,* and shall perform all duties of judicial office fairly and impartially.* Comment [1] To ensure impartiality and fairness to all parties, a judge must be objective and open-minded. [2] Although each judge comes to the bench with a unique background and personal philosophy, a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question. [3] When applying and interpreting the law, a judge sometimes may make good-faith errors of fact or law. Errors of this kind do not violate this Rule. [4] It is not a violation of this Rule for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard. Rule 2.3 Bias, Prejudice, and Harassment (A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice. (B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge's direction and control to do so. (C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others. (D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding. 66

71 Comment [1] A judge who manifests bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute. [2] Examples of manifestations of bias or prejudice include but are not limited to epithets; slurs; demeaning nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening, intimidating, or hostile acts; suggestions of connections between race, ethnicity, or nationality and crime; and irrelevant references to personal characteristics. Even facial expressions and body language can convey to parties and lawyers in the proceeding, jurors, the media, and others an appearance of bias or prejudice. A judge must avoid conduct that may reasonably be perceived as prejudiced or biased. [3] Harassment, as referred to in paragraphs (B) and (C), is verbal or physical conduct that denigrates or shows hostility or aversion toward a person on bases such as race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation. [4] Sexual harassment includes but is not limited to sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwelcome. Rule 2.4 External Influences on Judicial Conduct (A) A judge shall not be swayed by public clamor or fear of criticism. (B) A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge's judicial conduct or judgment. (C) A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge. Comment [1] An independent judiciary requires that judges decide cases according to the law and facts, without regard to whether particular laws or litigants are popular or unpopular with the public, the media, government officials, or the judge's friends or family. Confidence in the judiciary is eroded if judicial decision making is perceived to be subject to inappropriate outside influences. ANNOTATION The judge may, at her discretion, meet with a special interest group, but the judge is not required to do so. In assessing whether to grant a request for a meeting, the judge should require the special interest group to submit a written request specifying the purpose of the meeting. If the purpose is not improper and the judge wishes to grant the request, she should send a written response laying out ground rules for the meeting. At the meeting itself, the judge should ensure that the group is not given any impression that it is in a special position to influence the judge, and the judge should not engage in any ex parte communications with the group regarding any pending or impending matters. Colo. J.E.A.B. Op While a mentee judge may consult with his or her mentor judge or any other judge on "pending or impending matters," the extent of those consultations should be limited to aiding the mentee judge in reaching a final decision on that matter. The consultation should not in any way actually influence, or appear to influence; the decision the mentee judge is responsible for making in a pending matter. The final adjudicative responsibility for any decision resides solely with the mentee-judge. Colo. J.E.A.B. Op

72 Rule 2.5 Competence, Diligence, and Cooperation (A) A judge shall perform judicial and administrative duties, competently and diligently. (B) A judge shall cooperate with other judges and court officials in the administration of court business. Comment [1] Competence in the performance of judicial duties requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary to perform a judge's responsibilities of judicial office. [2] A judge should seek the necessary docket time, court staff, expertise, and resources to discharge all adjudicative and administrative responsibilities. [3] Prompt disposition of the court's business requires a judge to devote adequate time to judicial duties, to be punctual in attending court and expeditious in determining matters under submission, and to take reasonable measures to ensure that court officials, litigants, and their lawyers cooperate with the judge to that end. [4] In disposing of matters promptly and efficiently, a judge must demonstrate due regard for the rights of parties to be heard and to have issues resolved without unnecessary cost or delay. A judge should monitor and supervise cases in ways that reduce or eliminate dilatory practices, avoidable delays, and unnecessary costs. Rule 2.6 Ensuring the Right to Be Heard (A) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law.* (B) A judge may encourage parties to a proceeding and their lawyers to settle matters in dispute but shall not act in a manner that coerces any party into settlement. Comment [1] The right to be heard is an essential component of a fair and impartial system of justice. Substantive rights of litigants can be protected only if procedures protecting the right to be heard are observed, [2] The steps that are permissible in ensuring a self-represented litigant's right to be heard according to law include but are not limited to liberally construing pleadings; providing brief information about the proceeding and evidentiary and foundational requirements; modifying the traditional order of taking evidence; attempting to make legal concepts understandable; explaining the basis for a ruling; and making referrals to any resources available to assist the litigant in preparation of the case. Selfrepresented litigants are still required to comply with the same substantive law and procedural requirements as represented litigants. [3] The judge plays an important role in overseeing the settlement of disputes, but should be careful that efforts to further settlement do not undermine any party's right to be heard according to law. The judge should keep in mind the effect that the judge's participation in settlement discussions may have, not only on the judge's own views of the case, but also on the perceptions of the lawyers and the parties if the case remains with the judge after settlement efforts are unsuccessful. Among the factors that a judge should consider when deciding upon an appropriate settlement practice for a case are (1) whether the parties have requested or voluntarily consented to a certain level of participation by the judge in settlement discussions, (2) whether the parties and their counsel are relatively sophisticated in legal matters, (3) whether the case will be tried by the judge or a jury, (4) whether the parties participate with 68

73 their counsel in settlement discussions, (5) whether any parties are unrepresented by counsel, and (6) whether the matter is civil or criminal. [4] Judges must be mindful of the effect settlement discussions can have, not only on their objective and impartiality, but also on the appearance of their objectivity and impartiality. Despite a judge's best efforts, there may be instances when information obtained during settlement discussions could influence a judge's decision making during trial, and, in such instances, the judge should consider whether disqualification may be appropriate. See Rule 2.11(A)(1). Rule 2.7 Responsibility to Decide A judge shall hear and decide matters assigned to the judge, except when disqualification is required by Rule 2.11 or other law.* Comment [1] Judges must be available to decide the matters that come before the courts. Although there are times when disqualification is necessary to protect the rights of litigants and preserve public confidence in the independence, integrity, and impartiality of the judiciary, judges must be available to decide matters that come before the courts. Unwarranted disqualification may bring public disfavor to the court and to the judge personally. The dignity of the court, the judge's respect for fulfillment of judicial duties, and a proper concern for the burdens that may be imposed upon the judge's colleagues require that a judge not use disqualification to avoid cases that present difficult, controversial, or unpopular issues. ANNOTATION Unnecessary and unwarranted delay by district court judge in issuing a decision violates this Rule. In Re Jones, 728 P.2d 311 (Colo. 1986). Rule 2.8 Decorum, Demeanor, and Communication with Jurors (A) A judge shall require order and decorum in proceedings before the court. (B) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court staff, court officials, and others subject to the judge's direction and control. (C) A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding. Comment [1] The duty to hear all proceedings with patience and courtesy is not inconsistent with the duty imposed in Rule 2.5 to dispose promptly of the business of the court. Judges can be efficient and businesslike while being patient and deliberate. [2] Commending or criticizing jurors for their verdict may imply a judicial expectation in future cases and may impair a juror's ability to be fair and impartial in a subsequent case. [3] A judge who is not otherwise prohibited by law from doing so may meet with jurors who choose to remain after trial but should be careful not to discuss the merits of the case. 69

74 ANNOTATION Judge who met with jurors after the trial to thank them for their service erred in using jurors' post-verdict statements to impeach the verdict. In re Hall v. Levine, 104 P. 3d 222 (Colo. 2005). Rule 2.9 Ex Parte Communications (A) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending* or impending matter,* except as follows: (1) When circumstances require it, ex parte communication for scheduling, administrative, or emergency purposes, which does not address substantive matters, is permitted, provided: (a) the judge reasonably believes that no parry will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication; and (b) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication, and gives the parties an opportunity to respond. (2) A judge may obtain the written advice of a disinterested expert on the law applicable to a proceeding before the judge, if the judge gives advance notice to the parties of the person to be consulted and the subject matter of the advice to be solicited, and affords the parties a reasonable opportunity to object and respond to the notice and to the advice received. (3) A judge may consult with court staff and court officials whose functions are to aid the judge in carrying out the judge's adjudicative responsibilities, or with other judges, provided the judge makes reasonable efforts to avoid receiving factual information that is not part of the record, and does not abrogate the responsibility personally to decide the matter. (4) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to settle matters pending before the judge. (5) A judge may initiate, permit, or consider any ex parte communication when expressly authorized by law* or by consent of the parties to do so. (B) If a judge inadvertently receives an unauthorized ex parte communication bearing upon the substance of a matter, the judge shall make provision promptly to notify the parties of the substance of the communication and provide the parties with an opportunity to respond. (C) A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed. (D) A judge shall make reasonable efforts, including providing appropriate supervision, to ensure that this Rule is not violated by court staff, court officials, and others subject to the judge's direction and control. Comment [1] To the extent reasonably possible, all parties or their lawyers shall be included in communications with a judge. [2] Whenever the presence of a party or notice to a party is required by this Rule, it is the party's lawyer, or if the party is unrepresented, the party, who is to be present or to whom notice is to be given. [3] The proscription against communications concerning a proceeding includes communications with lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted by this Rule. 70

75 [4] A judge may initiate, permit, or consider ex parte communications expressly authorized by law or by consent of the parties, including when serving on therapeutic or problem-solving courts such as many mental health courts, drug courts, and truancy courts. In this capacity, judges may assume a more interactive role with the parties, treatment providers, probation officers, social workers, and others. [5] A judge may consult with other judges on pending matters, but must avoid ex parte discussions of a case with judges who have previously been disqualified from hearing the matter, and with judges who have appellate jurisdiction over the matter. [6] A judge may consult ethics advisory committees, outside counsel, or legal experts concerning the judge's compliance with this Code. Such consultations are not subject to the restrictions of paragraph (A)(2). [7] As it applies to paragraph 5(C), the definition of judicially noticed facts is set forth in Rule 201 of the Colorado Rules of Evidence. ANNOTATION The initiation of an ex parte communication by a judge with a party in a dependency hearing regarding the adequacy of her attorney's representation was improper, but judge would not be disqualified where disqualification motion and affidavits failed to allege facts from which it might be inferred that the ex parte communication demonstrated a bias against the party or her attorney. S.S. v. Wakefield, 764 P.2d 70 (Colo. 1988). Trial court's ex parte communication with defendant's counsel directing counsel to prepare the form of order was not improper and did not require the attorney fee order to be vacated, where the communication was made after court had reached its decision based on full briefing of the issues and a telephone hearing, where plaintiff's counsel was given an opportunity to object and did in fact object, and where there was no evidence of bias on the part of the judge or prejudice to plaintiff as a result of the court's action. Aztec Minerals Corp. v. State, 987 P.2d 895 (Colo. App. 1999). Applied in People v. Wieghard, 727 P.2d 383 (Colo. App. 1986). Law reviews. For article, "Ex Parte Communications with a Tribunal: From Both Sides," see 29 Colo. Law. 55 (April 2000). Ethics Opinions A judge may, at her discretion, meet with a special interest group, but the judge is not required to do so. In assessing whether to grant a request for a meeting, the judge should require the special interest group to submit a written request specifying the purpose of the meeting. If the purpose is not improper and the judge wishes to grant the request, she should send a written response laying out ground rules for the meeting. At the meeting itself, the judge should ensure that the group is not given any impression that it is in a special position to influence the judge, and the judge should not engage in any ex parte communications with the group regarding any pending or impending matters. Colo. J.E.A.B. Op While a mentee judge may consult with his or her mentor judge or any other judge on "pending or impending matters," the extent of those consultations should be limited to aiding the mentee judge in reaching a final decision on that matter. The consultation should not in any way actually influence, or appear to influence; the decision the mentee judge is responsible for making in a pending matter. The final adjudicative responsibility for any decision resides solely with the mentee-judge. Colo. J.E.A.B. Op

76 Rule 2.10 Judicial Statements on Pending and Impending Cases (A) A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending* or impending* in any court, or make any nonpublic statement that might substantially interfere with a fair trial or hearing. (B) A judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial* performance of the adjudicative duties of judicial office. (C) A judge shall require court staff, court officials, and others subject to the judge's direction and control to refrain from making statements that the judge would be prohibited from making by paragraphs (A) and (B). (D) Notwithstanding the restrictions in paragraph (A), a judge may make public statements in the course of official duties, may explain court procedures, and may comment on any proceeding in which the judge is a litigant in a personal capacity, subject to Canon 1. Comment [1] This Rule's restrictions on judicial speech are essential to the maintenance of the independence, integrity, and impartiality of the judiciary. [2] This Rule does not prohibit a judge from commenting on proceedings in which the judge is a litigant in a personal capacity. In cases in which the judge is a litigant in an official capacity, such as a writ of mandamus, the judge must not comment publicly. ANNOTATION Ethics Opinions While a mentee judge may consult with his or her mentor judge or any other judge on "pending or impending matters," the extent of those consultations should be limited to aiding the mentee judge in reaching a final decision on that matter. The consultation should not in any way actually influence, or appear to influence; the decision the mentee judge is responsible for making in a pending matter. The final adjudicative responsibility for any decision resides solely with the mentee-judge. Colo. J.E.AB. Ad. Op Rule 2.11 Disqualification (A) A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality* might reasonably be questioned, including but not limited to the following circumstances: (1) The judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge* of facts that are in dispute in the proceeding. (2) The judge knows* that the judge, the judge's spouse or domestic partner,* or a person within the third degree of relationship* to either of them, or the spouse or domestic partner of such a person is: (a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party; (b) acting as a lawyer in the proceeding; (c) a person who has more than a de minimis* interest that could be substantially affected by the proceeding; or (d) likely to be a material witness in the proceeding. 72

77 (3) The judge knows that he or she, individually or as a fiduciary,* or the judge's spouse, domestic partner, parent, child, or other member of the judge's family residing in the judge's household,* has an economic interest* in the subject matter in controversy or in a party to the proceeding. (4) The judge, while a judge or a judicial candidate,* has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy. (5) The judge: (a) served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during such association; (b) served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy; (c) was a material witness concerning the matter; or (d) previously presided as a judge over the matter in another court. (B) A judge shall keep informed about the judge's personal and fiduciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the judge's spouse or domestic partner and minor children residing in the judge's household. (C) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(1), may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification. If, following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be incorporated into the record of the proceeding. (D) In limited circumstances, the rule of necessity applies and allows judges to hear a case in which all other judges also would have a disqualifying interest or the case could not otherwise be heard. Comment [1] Under this Rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned; regardless of whether any of the specific provisions of paragraphs (A)(1) through (5) apply. The term "recusal" is sometimes used interchangeably with the term "disqualification." [2] A judge's obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed. [3] The rule of necessity may override the rule of disqualification. The rule of necessity is an exception to the principle that every litigant is entitled to be heard by a judge who is not subject to disqualifications which might reasonably cause the judge's impartiality to be questioned. The rule of necessity has been invoked for trial court and court of appeals judges where disqualifications exist as to all members of the court and there is no other judge available. It has been invoked as to the supreme court when all or a majority of its members have a conflict of interest; the importance of having the court render a decision overrides the existence of the conflict, which might otherwise leave litigating parties in limbo. Under the rule of necessity, a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter requiring immediate judicial action, such as a hearing on probable cause or a temporary restraining order. In matters that require immediate action, the judge must disclose on the record the basis for possible disqualification and make reasonable efforts to 73

78 transfer the matter to another judge as soon as practicable. Rather than deny a party access to court, judicial disqualification yields to the demands of necessity. [4] The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not itself disqualify the judge. If, however, the judge's impartiality might reasonably be questioned under paragraph (A), or the relative is known by the judge to have an interest in the law firm that could be substantially affected by the proceeding under paragraph (A)(2)(c). The judge's disqualification is required. [5] A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification. [6] ''Economic interest," as set forth in the Terminology section, means ownership of more than a one percent legal or equitable interest in a party, or a legal or equitable interest in a party of a fair market value exceeding $5,000, or a relationship as a director, advisor, or other active participant in the affairs of a party, except that: (1) Ownership in a mutual or common investment fund that holds securities, or of securities held in a managed fund, is not an "economic interest" in such securities unless the judge participates in the management of the fund; (2) securities held by an educational, religious, charitable, fraternal, or civic organization in which the judge or the judge's spouse, domestic partner, parent, or child serves as a director, officer, advisor, or other participant is not an "economic interest" in securities held by the organization; (3) the proprietary interest of a policy holder in a mutual insurance company, of a depositor in a financial institution or deposits or proprietary interests the judge may maintain as a member of a mutual savings association or credit union, or a similar proprietary interest is an "economic interest" in the organization only if the outcome of the proceeding could substantially affect the value of the interest; and (4) ownership of government securities is an "economic interest" in the issuer only if the outcome of the proceeding could substantially affect the value of the securities. ANNOTATION Law reviews. For article, Disqualification of Judges, see 13 Colo. Law. 54 (1984). Courts must meticulously avoid any appearance of partiality, not merely to secure the confidence of the litigants immediately involved, but to retain public respect and secure willing and ready obedience to their judgments. Wood Bros. Homes v. City of Fort Collins, 670 P.2d 9 (Colo. App. 1983). Upon reasonable inference of a "bent of mind" that will prevent judge from dealing fairly with party seeking recusal, it is incumbent on trial judge to recuse himself. Wright v. District Court, 731 P.2d 661 (Colo. 1987). At least an appearance of bias or prejudice existed due to a professional relationship between the trial judge and expert witness for defendants and the trial court erred in denying a motion for recusal. Hammons v. Birket, 759 P.2d 783 (Colo. App. 1988). Not all ex parte communications are per se grounds for disqualification under C.R.C.P. 97. The critical test is whether the affidavits in support of the motion to disqualify, along with any other matters of record, establish facts from which it may reasonably be inferred that the judge is prejudiced or biased, or appears to be prejudiced or biased, in favor of or against a party to the litigation. Goebel v. Benton, 830 P.2d 995 (Colo. 1992). 74

79 Not every connection between a judge and a participant in a case will require the judge to disqualify himself or herself. It is a judge's duty to sit on a case unless a reasonable person could infer that a judge would be prejudiced against a defendant. People v. Crumb, - P.3d -, 2008 WL (Colo. App., Sept. 18, 2008). Although judges hearing appeal from trial court's dismissal of antitrust action brought against software manufacturer used the operating system at issue in the lawsuit, raising the potential for a conflict of interest, the rule of necessity required those judges to proceed with the case. Pomerantz v. Microsoft Corp., 50 P.3d 929 (Colo. App. 2002). Successor judge erred in determining that the same circumstances that led the trial judge to recuse himself or herself from defendant's other cases also existed before the commencement of trial in this case. People v. Schupper, 124 P.3d 856 (Colo. App. 2005). Applied in People v. Mills, 163 P.3d 1129 (Colo. 2007); Spring Creek Ranchers Ass'n, Inc. v. McNichols, 165 P.2d 244 (Colo. 2007); Schupper v. People, 157 P.3d 516 (Colo. 2007); People v. Julien, 47 P.3d 1194 (Colo. 2002); People v. Harlan, 8 P.3d 448 (Colo. 2000); In re Estate of Elliott, 993 P.2d 474 (Colo. 2000); Office of State Court Adm'r v. Background Information Services, Inc., 994 P.2d 420 (Colo. 1999); Comiskey v. District Court In and For County of Pueblo, 926 P.2d 539 (Colo. 1996); Wilkerson v. District Court In and For County of El Paso, 925 P.2d 1373 (Colo. 1996); People v. District Court, In and For Eagle County, State of Colo., 898 P.2d 1058 (Colo 1995); Klinck v. District Court of Eighteenth Judicial District, 876 P.2d 1270 (Colo. 1994); Moody v. Corsentino, 843 P.2d 1355 (Colo. 1993); Goebel v. Benton, 830 P.2d 995 (Colo. 1992); Brewster v. District Court of the Seventh Judicial Dist., 811 P.2d 812 (Colo. 1991); Zoline v. Telluride Lodge Ass'n, 732 P.2d 635 (Colo. 1987); People ex rel. A.E.L., 181 P.3d 186 (Colo. App. 2008); Kane v. County Court Jefferson County, 192 P.3d 443 (Colo. App. 2008); parsons ex rel. Parsons v. Allstate Ins. Co., 165 P.3d 809 (Colo. App. 2006); In re Marriage of McSoud, 131 P.3d 685 (Colo. App. 2006); Keith v. Kinney, 140 P.3d 141 (Colo. App. 2005); People v. Cambell, 94 P.3d 1186 (Colo. App. 2004); People ex rel S.G., 91 P.3d 443 (Colo. App. 2004); Tripp v. Borchard, 29 P.3d 345 (Colo. App. 2001); Prefer v. PharmNetRx, LLC, 18 P.3d 844 (Colo. App. 2000); People v. Anderson,991 P.2d 319 (Colo. App. 1999); People v. Lanari, 926 P.2d 116 (Colo. App. 1996); People v. Bowring, 902 P.2d (Colo. App. 1995); People v. McCarty, 851 P.2d 181 (Colo. App. 1992); Giralt v. Vail VIII. Inn Assocs., 759 P.2d 801 (Colo. App. 1988). Ethics Opinions A judge who sits on the county bench in a small, rural district and whose spouse wishes to run for election to the city council, which oversees the chief of police, is not required to disqualify himself in cases charged by the police department. He should, however, consider whether the facts and circumstances make disqualification appropriate in a particular case, and, if his spouse is elected, he should disclose her role on the city council in cases charged by the police department. Colo. J.E.A.B. Op A judge is not required to disqualify himself when the judge's estranged godchild's father appears before him, solely because of that relationship, but disqualification may nevertheless be appropriate depending on the judge's subjective and objective analysis of the circumstances. The judge should, however, disclose the godparent relationship to each party when his godchild's rather appears in his court. Colo. J.E.A.B. Op A judge need not disqualify herself sua sponte when the attorney who represented the judge's adult daughter appears before the judge. The judge should consult her own conscience to determine whether disqualification is warranted if the judge maintains a disabling prejudice for or against the attorney. If the 75

80 judge concludes that disqualification is unnecessary, disclosure of the daughter's representation may still be appropriate until the passage of time, the limited consequences of the prior matter and the nature of the judge's relationship with the attorney have made the prior representation irrelevant Colo. J.E.A.B. Op A judge should disqualify himself or herself sua sponte if an attorney or firm currently representing the judge, or representing the judge's adversary in a current matter, appears before the judge. A judge should also continue to disqualify himself or herself sua sponte for a reasonable period of time after the representation has ended, typically one year, when the judge's attorney, other members of that firm, the judge's adversary's attorneys, or members of that attorney's firm appear before the judge. After the expiration of a reasonable period of time, continued disqualification is not required, but may be appropriate under the facts and circumstances of the case in which the judge was represented. Colo. J.E.A.B. Op A judge who presides over a county court in a small rural jurisdiction should disqualify himself when any member of his brother-in-law's firm appears in the court on which he serves. Colo. J.E.A.B. Op, A judge must disqualify in any case in which the judge's spouse, who is an officer employed by a fire protection district which assists the sheriff s department with arson investigations, or those he or she supervises, participated in the investigation of the case. The judge is not, however, required to disqualify from all cases involving a law enforcement agency for which the judge's spouse occasionally performs arson investigations. Colo. J.E.A.B. Op A judge's report of an attorney's misconduct in a case pending before the judge requires the judge to disqualify himself or herself. Colo. J.E.A.B. Op Rule 2.12 Supervisory Duties (A) A judge shall require court staff, court officials, and others subject to the judge's direction and control to act in a manner consistent with the judge's obligations under this Code. (B) A judge with supervisory authority for the performance of other judges shall take reasonable measures to ensure that those judges properly discharge their judicial responsibilities, including the prompt disposition of matters before them. Comment [1] A judge is responsible for his or her own conduct and for the conduct of others, such as staff, when those persons are acting at the judge's direction or control. A judge may not direct court personnel to engage in conduct on the judge's behalf or as the judge's representative when such conduct would violate the Code if undertaken by the judge. [2] Public confidence in the judicial system depends upon timely justice. To promote the efficient administration of justice, a judge with supervisory authority must take the steps needed to ensure that judges under his or her supervision administer their workloads promptly. Rule 2.13 Administrative Appointments (A) In making administrative appointments, a judge: (1) shall exercise the power of appointment impartially* and on the basis of merit; and (2) shall avoid nepotism, favoritism, and unnecessary appointments. 76

81 (B) A judge shall not approve compensation of appointees beyond the fair value of services rendered. Comment [1] Appointees of a judge include assigned counsel, officials such as referees, commissioners, special masters, receivers, and guardians, and personnel such as clerks, secretaries, and bailiffs. Consent by the parties to an appointment or an award of compensation does not relieve the judge of the obligation prescribed by paragraph (A). [2] Unless otherwise defined by law, nepotism is the appointment or hiring of any relative within the third degree of relationship of either the judge or the judge's spouse or domestic partner, or the spouse or domestic partner of such relative. Rule 2.14 Disability and Impairment A judge having a reasonable belief that the performance of a lawyer or another judge is impaired by drugs or alcohol, or by a mental, emotional, or physical condition, shall take appropriate action, which may include a confidential referral to a lawyer or judicial assistance program. Comment [1] "Appropriate action" means action intended and reasonably likely to help the judge or lawyer in question address the problem and prevent harm to the justice system. Depending upon the circumstances, appropriate action may include but is not limited to speaking directly to the impaired person, notifying an individual with supervisory responsibility over the impaired person, or making a referral to an assistance program. [2] Taking or initiating corrective action by way of referral to an assistance program may satisfy a judge's responsibility under this Rule. Assistance programs have many approaches for offering help to impaired judges and lawyers, such as intervention, counseling, or referral to appropriate health care professionals. Depending upon the gravity of the conduct that has come to the judge's attention, however, the judge may be required to take other action, such as reporting the impaired judge or lawyer to the appropriate authority, agency, or body. See Rule Rule 2.15 Responding to Judicial and Lawyer Misconduct (A) A judge having knowledge* that another judge has committed a violation of this Code that raises a substantial question regarding the judge's honesty, trustworthiness, or fitness as a judge in other respects shall inform the appropriate authority.* (B) A judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question regarding the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate authority. (C) A judge who receives information indicating a substantial likelihood that another judge has committed a violation of this Code shall take appropriate action. (D) A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct shall take appropriate action. Comment [1] Taking action to address known misconduct is a judge's obligation. Paragraphs (A) and (B) impose an obligation on the judge to report to the appropriate disciplinary authority the known 77

82 misconduct of another judge or a lawyer that raises a substantial question regarding the honesty, trustworthiness, or fitness of that judge or lawyer. Ignoring or denying known misconduct among one's judicial colleagues or members of the legal profession undermines a judge's responsibility to participate in efforts to ensure public respect for the justice system. This Rule limits the reporting obligation to those offenses that an independent judiciary must vigorously endeavor to prevent. [2] A judge who does not have actual knowledge that another judge or a lawyer may have committed misconduct, but receives information indicating a substantial likelihood of such misconduct, is required to take appropriate action under paragraphs (C) and (D). Appropriate action may include, but is not limited to, communicating directly with the judge who may have violated this Code, communicating with a supervising judge, or reporting the suspected violation to the appropriate authority or other agency or body. Similarly, actions to be taken in response to information indicating that a lawyer has committed a violation of the Rules of Professional Conduct may include but are not limited to communicating directly with the lawyer who may have committed the violation, or reporting the suspected violation to the appropriate authority or other agency or body. Rule 2.16 Cooperation with Disciplinary Authorities (A) A judge shall cooperate and be candid and honest with judicial and lawyer disciplinary agencies. (B) A judge shall not retaliate, directly or indirectly, against a person known* or suspected to have assisted or cooperated with an investigation of a judge or a lawyer. Comment [1] Cooperation with investigations and proceedings of judicial and lawyer discipline agencies, as required in paragraph (A), instills confidence in judges' commitment to the integrity of the judicial system and the protection of the public. Canon 3 A JUDGE SHALL CONDUCT THE JUDGE'S PERSONAL AND EXTRAJUDICIAL ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH THE OBLIGATIONS OF JUDICIAL OFFICE. Rule 3.1 Extrajudicial Activities in General A judge may engage in extrajudicial activities, except as prohibited by law* or this Code. However, when engaging in extrajudicial activities, a judge shall not: (A) participate in activities that will interfere with the proper performance of the judge's judicial duties; (B) participate in activities that will lead to frequent disqualification of the judge; (C) participate in activities that would appear to a reasonable person to undermine the judge's independence,* integrity,* or impartiality;* (D) engage in conduct that would appear to a reasonable person to be coercive; or (E) make use of court premises, staff, stationery, equipment, or other resources, except for incidental use for activities that concern the law, the legal system, or the administration of justice, or unless such additional use is permitted by law. 78

83 Comment [1] To the extent that time permits, and judicial independence and impartiality are not compromised, judges are encouraged to engage in appropriate extrajudicial activities. Judges are uniquely qualified to engage in extrajudicial activities that concern the law, the legal system, and the administration of justice, such as by speaking, writing, teaching, or participating in scholarly research projects. In addition, judges are permitted and encouraged to engage in educational, religious, charitable, fraternal or civic extrajudicial activities not conducted for profit, even when the activities do not involve the law. See Rule 3.7. [2] Participation in both law-related and other extrajudicial activities helps integrate judges into their communities, and furthers public understanding of and respect for courts and the judicial system. [3] Discriminatory actions and expressions of bias or prejudice by a judge, even outside the judge's official or judicial actions, are likely to appear to a reasonable person to call into question the judge's integrity and impartiality. Examples include jokes or other remarks that demean individuals based upon their race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, or socioeconomic status. For the same reason, a judge's extrajudicial activities must not be conducted in connection or affiliation with an organization that practices invidious discrimination. See Rule 3.6. [4] While engaged in permitted extrajudicial activities, judges must not coerce others or take action that would reasonably be perceived as coercive. For example, depending upon the circumstances, a judge's solicitation of contributions or memberships for an organization, even as permitted by Rule 3.7(A), might create the risk that the person solicited would feel obligated to respond favorably, or would do so to curry favor with the judge. ANNOTATION Judge's use of judicial chambers stationery for letters to opposing counsel in personal matter creates appearance of impropriety; objectively reasonable person would not know the difference between judicial chambers stationery and official court stationery. Judge privately reprimanded for this and other misconduct. Inquiry Concerning a Judge, 822 P.2d 1333, 1340 (Alaska 1991). Public reprimand appropriate where judge was arrested for and plead guilty to drunk driving. In re Weaver, 691 N.W.2d 725 (Iowa 2004). District court judge's two-month secret intimate relationship with assistant county attorney, who appeared before him on behalf of State on daily basis, was conduct that brought disrepute to judicial office, and warranted 60 day suspension without pay, despite lack of evidence that judge's relationship with county attorney prejudiced any defendant who appeared before him, where affair occurred with subordinate public servant, judge allowed affair to remain hidden from those who appeared before him against assistant county attorney, judge and county attorney engaged in intimate encounters in courthouse, and both parties were married to other people. In re Gerard, 631 N.W (Iowa 2001). Juvenile court judge's retaliation and intemperate statements directed at the attorneys required by law to appear on child welfare cases was at least negligent and ran afoul of duties to give precedence to his or her judicial duties over all other activities of the judge, to be patient and courteous to all persons dealt with in a judicial capacity, and to disqualify himself if impartiality could reasonably be questioned; the judge allowed his non-judicial activities, namely his federal action against the Director of the Office of the Guardian ad Litem, to take priority over his judicial duty to hear child welfare cases, and he did so by treating the Director, the attorneys in her office, and the attorneys of the Attorney General's office with considerable disrespect, creating a continuing situation where his impartiality could reasonably be, and was, repeatedly questioned. In re Anderson, 82 P.3d 1134 (Utah 2004). 79

84 Ethics Opinions The judge may speak at a CLE which is, in effect, limited to only one component of the bar, provided that the judge satisfies certain conditions. In addition, the judge should consider with care the topic on which he presents, and should avoid presenting on a topic such as trial strategy, which could raise questions regarding the judge's impartiality. Colo. J.E.A.B. Op Judges are not permitted to be members of special bar association, as it would convey the appearance of a special relationship to one side in the adversarial process. Judges should avoid membership in even the most praiseworthy and noncontroversial organizations if they espouse or are dedicated to a particular legal philosophy or position. Alaska Ad. Op A judge may not participate in an infomercial for a local surgeon, which would demean the judicial office and lend the prestige of the judge's office to advance the physician's private interests. Md. Ad. Op Judge may serve as a director of a non-profit corporation formed to solicit funds from the community to provide incentives for participants in a local Drug Court. Md, Ad. Op Judge may make presentations before groups representing single components of the judicial system as long as the judge is careful about the contents of the discussions and does not give legal advice, comment on pending cases, or offer opinions that would indicate biases or prejudgment of certain types of cases. The judge must also be willing to accept invitations from other components in the system. Utah Ad. Op Judge may maintain membership in a cycling club that is sponsored, in part, by a law firm. Utah Ad. Op Rule 3.2 Appearances before Governmental Bodies and Consultation with Government Officials A judge shall not appear voluntarily at a public hearing before, or otherwise consult with, an executive or a legislative body or official, except: (A) in connection with matters concerning the law, the legal system, or the administration of justice; (B) in connection with matters about which the judge acquired knowledge or expertise in the course of the judge's judicial duties; or (C) when the judge is acting pro se in a matter involving the judge's legal or economic interests, or when the judge is acting in a fiduciary* capacity. Comment [1] Judges possess special expertise in matters of law, the legal system, and the administration of justice, and may properly share that expertise with governmental bodies and executive or legislative branch officials. [2] In appearing before governmental bodies or consulting with government officials, judges must be mindful that they remain subject to other provisions of this Code, such as Rule 1.3, prohibiting judges from using the prestige of office to advance their own or others' interests, Rule 2.10, governing public comment on pending and impending matters, Rule 2.11, outlining the circumstances under which a judge must disqualify himself or herself, and Rule 3.1(C), prohibiting judges from engaging in extrajudicial 80

85 activities that would appear to a reasonable person to undermine the judge's independence, integrity, or impartiality. [3] In general, it would be an unnecessary and unfair burden to prohibit judges from appearing before governmental bodies or consulting with government officials on matters that are likely to affect them as private citizens, such as zoning proposals affecting their real property. In engaging in such activities, however, judges must not refer to their judicial positions, and must otherwise exercise caution to avoid using the prestige of judicial office. ANNOTATION Ethics Opinions A district court judge may not accept a voting or non-voting board position on a local community board that combines integrated services and legislative advocacy because such membership would involve legislative advocacy beyond matters to improve the law. Colo. J.E.A.B. Op The judge should not accept appointment to a blue ribbon panel of public and private leaders charged with "reducing the state's contribution and vulnerability to a changed climate" by developing a set of recommendations and policy proposals addressing how Colorado can mitigate and adapt to climate change. The judge's work on the panel would involve consulting with or providing recommendations to the legislative and executive branches on climate control issues, which are unconnected with the law, the legal system, the administration of justice, or the role of the judiciary. Colo. J.E.A.B. Op Rule 3.3 Testifying as a Character Witness A judge shall not testify as a character witness in a judicial, administrative, or other adjudicatory proceeding or otherwise vouch for the character of a person in a legal proceeding, except when duly summoned. Comment [1] A judge who, without being subpoenaed, testifies as a character witness abuses the prestige of judicial office to advance the interests of another. See Rule 1.3. Except in unusual circumstances where the demands of justice require, a judge should discourage a party from requiring the judge to testify as a character witness. ANNOTATION Ethics Opinions A judge may not testify as a character witness on a voluntary basis, but he is obligated to comply with a subpoena if one is issued. Where a judge has been asked to provide such testimony, the judge should consider whether the interests of justice require his or her testimony, and if not should then consider attempting to discourage the subpoenaing party or lawyer from requiring the testimony, because of the possibility that the testimony is being sought to trade on the judge's position. Colo. J.E.A.B. Op A judge may not write a letter to the pardon board at the request of convicted felon sentenced by the judge, nor should the judge write such a letter of the judge's own initiative. Alaska Ad. Op

86 A judge should not testify as a character witness for a criminal defendant in a trial unless the judge has been subpoenaed. The giving of such character testimony by judges should be discouraged, and is appropriate only where a subpoena makes it unavoidable. Utah Ad. Op Rule 3.4 Appointments to Governmental Positions A judge shall not accept appointment to a governmental committee, board, commission, or other governmental position, unless it is one that concerns the law, the legal system, or the administration of justice. Comment [1] Rule 3.4 implicitly acknowledges the value of judges accepting appointments to entities that concern the law, the legal system, or the administration of justice. Even in such instances, however, a judge should assess the appropriateness of accepting an appointment, paying particular attention to the subject matter of the appointment and the availability and allocation of judicial resources, including the judge's time commitments, and giving due regard to the requirements of the independence and impartiality of the judiciary. [2] A judge may represent his or her country, state, or locality on ceremonial occasions or in connection with historical, educational, or cultural activities. Such representation does not constitute acceptance of a government position. [3] Complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives. Every governmental board, committee and commission is different and must be evaluated independently to determine whether judicial participation is appropriate. In considering the appropriateness of accepting extrajudicial assignments, a judge should ensure that the mission and work of the board or commission relates to the law, the legal system, or the administration of justice. To effectuate the Code's goal of encouraging judges to participate in their communities, the relationship between the board's mission and the law, legal system, or the administration of justice should be construed broadly. Any judicial ethics advisory opinions issued before adoption of this Code requiring a narrow link or stringent nexus are no longer valid. A judge should avoid participating in governmental boards or commissions that might lead to the judge's frequent disqualification or that might call into question the judge's impartiality. The changing nature of some organizations and of their relationship to the law makes it necessary for a judge to regularly reexamine the activities of each organization with which the judge is affiliated to determine if it is proper to continue the affiliation. ANNOTATION Ethics opinions Judge's service on a state Children's Justice Act task force created by federal statute and requiring state judge membership should be limited to roles permitted by ethical limitations. "Fundamentally, whether a judge may sit on any board or committee, turns on whether that board or committee is devoted to the improvement of the law or the administration of justice, and, regardless of whether it is or not, whether participation by a judge would lead to an appearance of partiality in cases coming before that judge." Ak. Ad. Op

87 Rule 3.5 Use of Nonpublic Information A judge shall not intentionally disclose or use nonpublic information* acquired in a judicial capacity for any purpose unrelated to the judge's judicial duties. Comment [1] In the course of performing judicial duties, a judge may acquire information of commercial or other value that is unavailable to the public. The judge must not reveal or use such information for personal gain or for any purpose unrelated to his or her judicial duties. [2] This rule is not intended, however, to affect a judge's ability to act on information as necessary to protect the health or safety of the judge or a member of a judge's family, court personnel, or other judicial officers if consistent with other provisions of this Code. Rule 3.6 Affiliation with Discriminatory Organizations (A) A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation. (B) A judge shall not use the benefits or facilities of an organization if the judge knows* or should know that the organization practices invidious discrimination on one or more of the bases identified in paragraph (A). A judge's attendance at an event in a facility of an organization that the judge is not permitted to join is not a violation of this Rule when the judge's attendance is an isolated event that could not reasonably be perceived as an endorsement of the organization's practices. Comment [1] A judge's public manifestation of approval of invidious discrimination on any basis gives rise to the appearance of impropriety and diminishes public confidence in the integrity and impartiality of the judiciary. A judge's membership in an organization that practices invidious discrimination creates the perception that the judge's impartiality is impaired. [2] An organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation, persons who would otherwise be eligible for admission. Whether an organization practices invidious discrimination is a complex question to which judges should be attentive. The answer cannot be determined from a mere examination of an organization's current membership rolls, but rather, depends upon how the organization selects members, as well as other relevant factors, such as whether the organization is dedicated to the preservation of religious, ethnic, or cultural values of legitimate common interest to its members, or whether it is an intimate, purely private organization whose membership limitations could not constitutionally be prohibited. [3] When a judge learns that an organization to which the judge belongs engages in invidious discrimination, the judge must resign immediately from the organization. [4] A judge's membership in a religious organization as a lawful exercise of the freedom of religion is not a violation of this Rule. [5] This Rule does not apply to national or state military service. 83

88 Rule 3.7 Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities (A) Subject to the requirements of Rule 3.1, a judge may participate in activities sponsored by organizations or governmental entities concerned with the law, the legal system, or the administration of justice, and those sponsored by or on behalf of educational, religious, charitable, fraternal, or civic organizations not conducted for profit, including but not limited to the following activities: (1) assisting such an organization or entity in planning related to fund-raising, and participating in the management and investment of the organization's or entity's funds; (2) soliciting* contributions* for such an organization or entity, but only from members of the judge's family,* or from judges over whom the judge does not exercise supervisory or appellate authority; (3) soliciting membership for such an organization or entity, even though the membership dues or fees generated may be used to support the objectives of the organization or entity, but only if the organization or entity is concerned with the law, the legal system, or the administration of justice; (4) appearing or speaking at, receiving an award or other recognition at, being featured on the program of, and permitting his or her title to be used in connection with an event of such an organization or entity, but if the event serves a fund-raising purpose, the judge may participate only if the event concerns the law, the legal system, or the administration of justice; (5) making recommendations to such a public or private fund-granting organization or entity in connection with its programs and activities, but only if the organization or entity is concerned with the law, the legal system, or the administration of justice; and (6) serving as an officer, director, trustee, or nonlegal advisor of such an organization or entity, unless it is likely that the organization or entity: (a) will be engaged in proceedings that would ordinarily come before the judge; or (b) will frequently be engaged in adversary proceedings in the court of which the judge is a member, or in any court subject to the appellate jurisdiction of the court of which the judge is a member. (B) A judge may encourage lawyers to provide pro bono public legal services. Comment [1] The activities permitted by paragraph (A) generally include those sponsored by or undertaken on behalf of public or private not-for-profit educational institutions, and other not-for-profit organizations, including law-related, charitable, and other organizations. [2] Even for law-related organizations, a judge should consider whether the membership and purposes of the organization, or the nature of the judge's participation in or association with the organization, would conflict with the judge's obligation to refrain from activities that reflect adversely upon a judge's independence, integrity, and impartiality. [3] Mere attendance at an event, whether or not the event serves a fund-raising purpose, does not constitute a violation of paragraph 4(A). It is also generally permissible for a judge to serve as an usher or a food server or preparer, or to perform similar functions, at fund-raising events sponsored by educational, religious, charitable, fraternal, or civic organizations. Such activities are not solicitation and do not present an element of coercion or abuse the prestige of judicial office. [4] Identification of a judge's position in educational, religious, charitable, fraternal, or civic organizations on letterhead used for fund-raising or membership solicitation does not violate this Rule. 84

89 The letterhead may list the judge's title or judicial office if comparable designations are used for other persons. [5] In addition to appointing lawyers to serve as counsel for indigent parties in individual cases, a judge may promote broader access to justice by encouraging lawyers to participate in pro bono public legal services, if in doing so the judge does not employ coercion, or abuse the prestige of judicial office. Such encouragement may take many forms, including providing lists of available programs, training lawyers to do pro bono public legal work, and participating in events recognizing lawyers who have done pro bono public work. ANNOTATION Ethics opinions A district court judge may not accept a voting or non-voting board position on a local community board that combines integrated services and legislative advocacy because such membership would involve legislative advocacy beyond matters to improve the law. Colo. J.E.A.B. Op A judge may serve on a grant-making committee of a community foundation. Colo. J.E.A.B. Op A judge may serve on the board of directors of a public charter school in a neighboring judicial district. Colo. J.E.A.B. Op The judge should not accept appointment to a blue-ribbon panel of public and private leaders charged with "reducing the state's contribution and vulnerability to a changed climate" by developing a set of recommendations and policy proposals addressing how Colorado can mitigate and adapt to climate change. Colo. J.E.A.B. Op A judge may serve on the board of an organization devoted to seeking funds to assist defendants in obtaining court-ordered substance abuse treatment, and he may make recommendations to a private foundation that it should fund programs to the same end, but it would be inappropriate for the judge to assist in determining which particular defendants receive the scholarship funds. Colo. J.E.A.B. Op A judge may make monetary contributions to further pro bono activities, but it is inappropriate for judges to solicit attorneys to participate in particular pro bono programs. Acknowledging the pro bono activity of particular attorneys would be permissible if it were done in a manner that is public, but letters of congratulation sent directly to the attorney could be interpreted as evidence that the attorneys are in a special position of influence or that the judge's ability to act impartially has been compromised. Alaska Ad. Op Judge may as college trustee co-host outreach event for alumni who are lawyers. Md. Ad. Op Judge may serve as a director of a non-profit corporation formed to solicit funds from the community to provide incentives for participants in a local Drug Court. Md. Ad. Op A judge shall not be a director or officer of an organization if it is likely that the organization will be engaged regularly in adversary proceedings in any court. Md. Ad. Op A judge may not serve on the board of a mental health organization whose representatives frequently appear in the judge's court. Utah Ad. Op

90 Judge may participate in a nationally renowned non-profit musical education and performance organization. Utah. Ad. Op Part-time traffic referee may not practice criminal law. The referee also may not practice law at the court or courts which the referee serves. The judges of the district must enter disqualification in all cases in which the referee appears as counsel. Utah Ad. Op Rule 3.8 Appointments to Fiduciary Positions (A) A judge shall not accept appointment to serve in a fiduciary* position, such as executor, administrator, trustee, guardian, attorney in fact, or other personal representative, except for the estate, trust, or person of a member of the judge's family,* and then only if such service will not interfere with the proper performance of judicial duties. (B) A judge shall not serve in a fiduciary position if the judge as fiduciary will likely be engaged in proceedings that would ordinarily come before the judge, or if the estate, trust, or ward becomes involved in adversary proceedings in the court on which the judge serves, or one under its appellate jurisdiction. (C) A judge acting in a fiduciary capacity shall be subject to the same restrictions on engaging in financial activities that apply to a judge personally. (D) If a person who is serving in a fiduciary position becomes a judge, he or she must comply with this Rule as soon as reasonably practicable, but in no event later than one year after becoming a judge. Comment [1] A judge should recognize that other restrictions imposed by this Code may conflict with a judge's obligations as a fiduciary; in such circumstances, a judge should resign as fiduciary. For example, serving as a fiduciary might require frequent disqualification of a judge under Rule 2.11 because a judge is deemed to have an economic interest in shares of stock held by a trust if the amount of stock held is more than de minimis. Rule 3.9 Service as Arbitrator or Mediator A judge shall not act as an arbitrator or a mediator or perform other judicial functions apart from the judge's official duties unless expressly authorized by law.* Comment [1] This Rule does not prohibit a judge from participating in arbitration, mediation, or settlement conferences performed as part of assigned judicial duties. Rendering dispute resolution services apart from those duties, whether or not for economic gain, is prohibited unless it is expressly authorized by law. ANNOTATION Ethics Opinions Active judge soon to retire and participate in the Senior Judge Program should refrain from setting or hearing private mediations until after he retires. Colo. J.E.A.B. Op

91 A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge. Trial judges conducting settlement conferences in their own cases must, however, have a heightened awareness of the appearance that the parties might feel improper pressure to settle or that the judge will no longer be impartial if the case fails to settle. Alaska Ad. Op Rule 3.10 Practice of Law A judge shall not practice law except as permitted by law or this Code. A judge may act pro se but should not defend himself or herself when sued in an official capacity. The judge may, without compensation, give legal advice to and draft or review documents for a member of the judge's family,* but is prohibited from serving as the family member's lawyer in any forum. Comment [1] A judge may act pro se in all legal matters, including matters involving litigation and matters involving appearances before or other dealings with governmental bodies. A judge must not use the prestige of office to advance the judge's personal or family interests. See Rule 1.3. [2] A judge who drafts or reviews documents as permitted by this rule must comply with C.R.C.P. 11(b). ANNOTATION Ethics Opinions Judge may not participate in a local legal service's call-a-lawyer program by providing advice to callers, anonymous or otherwise, because doing so would constitute the practice of law. The judge may, however, engage in activities intended to encourage attorneys to perform pro bono services or act in an advisory capacity to the legal services pro bono program. Colo. J.E.A.B. Op A judge may serve as a National Guard judge advocate if the judge's role is limited to performing only those duties that do not resemble services provided by civilian attorneys for members of the military. Judges may not take any actions while serving as a National Guard judge advocate that would give the impression that the judge is an advocate on matters that concern the civilian justice system. Ak. Ad. Op Rule 3.11 Financial, Business, or Remunerative Activities (A) A judge may hold and manage investments of the judge and members of the judge's family.* (B) A judge shall not serve as an officer, director, manager, general partner, advisor, or employee of any business entity except that a judge may manage or participate in: (1) a business closely held by the judge or members of the judge's family; or (2) a business entity primarily engaged in investment of the financial resources of the judge or members of the judge's family. (C) A judge shall not engage in financial activities permitted under paragraphs (A) and (B) if they will: (1) interfere with the proper performance of judicial duties; (2) lead to frequent disqualification of the judge; 87

92 Comment (3) involve the judge in frequent transactions or continuing business relationships with lawyers or other persons likely to come before the court on which the judge serves; or (4) result in violation of other provisions of this Code. [1] Judges are generally permitted to engage in financial activities, including managing real estate and other investments for themselves or for members of their families. Participation in these activities, like participation in other extrajudicial activities, is subject to the requirements of this Code. For example, it would be improper for a judge to spend so much time on business activities that it interferes with the performance of judicial duties. See Rule 2.1. Similarly, it would be improper for a judge to use his or her official title or appear in judicial robes in business advertising, or to conduct his or her business or financial affairs in such a way that disqualification is frequently required. See Rules 1.3 and [2] as soon as practicable without serious financial detriment, the judge must divest himself or herself of investments and other financial interests that might require frequent disqualification or otherwise violate this Rule. ANNOTATION Judge's conduct in assuming command responsibility in furtherance of speculative real estate development project which depends for success upon official action of city and which results in substantial profit to judge violates canon requiring judge to avoid giving grounds for any reasonable suspicion that he is using power or prestige or his office to persuade others to contribute to the success of private business ventures and rule that judge shall not directly or indirectly lend the influence of his name or prestige of his office to aid or advance the welfare of a private business and such conduct warrants censure. In re Foster, 318 A.2d 523 (Md. 1974). Ethics Opinions A judge may not serve as president of a corporation which markets products to correctional facilities. As a company officer, the judge would be engaged in financial dealings. A judge's service to an organization that markets product to correctional facilities may reasonably be perceived to exploit the judge's judicial position, and may cast reasonable doubt on the judge's capacity to act impartially as a judge. Utah Ad. Op Rule 3.12 Compensation for Extrajudicial Activities A judge may accept reasonable compensation for extrajudicial activities permitted by this Code or other law* unless such acceptance would appear to a reasonable person to undermine the judge's independence,* integrity,* or impartiality.* Comment [1] A judge is permitted to accept honoraria, stipends, fees, wages, salaries, royalties, or other compensation for speaking, teaching, writing, and other extrajudicial activities, provided the compensation is reasonable and commensurate with the task performed. The judge should be mindful, however, that judicial duties must take precedence over other activities. See Rule 2.1. [2] Compensation derived from extrajudicial activities may be subject to public reporting. See Rule

93 ANNOTATION Statutory disclosure and reporting requirements are contained in and -203, C.R.S. Ethics Opinions Judge may not charge a fee for performing ceremonies at the court conducted during normal business hours. Utah Ad. Op Rule 3.13 Acceptance and Reporting of Gifts, Loans, Bequests, Benefits, or Other Things of Value (A) A judge shall not accept any gifts, loans, bequests, benefits, or other things of value, if acceptance is prohibited by law* or would appear to a reasonable person to undermine the judge's independence,* integrity,* or impartiality.* (B) Unless otherwise prohibited by law, or by paragraph (A), a judge may accept the following without publicly reporting such acceptance: (1) items with little intrinsic value, such as plaques, certificates, trophies, and greeting cards; (2) gifts, loans, bequests, benefits, or other things of value from friends, relatives, or other persons, including lawyers, whose appearance or interest in a proceeding pending* or impending* before the judge would in any event require disqualification of the judge under Rule 2.11; (3) ordinary social hospitality; (4) commercial or financial opportunities and benefits, including special pricing and discounts, and loans from lending institutions in their regular course of business, if the same opportunities and benefits or loans are made available on the same terms to similarly situated persons who are not judges; (5) rewards and prizes given to competitors or participants in random drawings, contests, or other events that are open to persons who are not judges; (6) scholarships, fellowships, and similar benefits or awards, if they are available to similarly situated persons who are not judges, based upon the same terms and criteria; (7) books, magazines, journals, audiovisual materials, and other resource materials supplied by publishers on a complimentary basis for official use; or (8) gifts, awards, or benefits associated with the business, profession, or other separate activity of a spouse, a domestic partner,* or other family member of a judge residing in the judge's household,* but that incidentally benefit the judge. (C) Unless otherwise prohibited by law or by paragraph (A), a judge may accept the following items, and must report such acceptance to the extent required by Rule 3.15: (1) gifts incident to a public testimonial; (2) invitations to the judge and the judge's spouse, domestic partner, or guest to attend without charge: (a) an event associated with a bar-related function or other activity relating to the law, the legal system, or the administration of justice; or (b) an event associated with any of the judge's educational, religious, charitable, fraternal or civic activities permitted by this Code, if the same invitation is offered to nonjudges who are engaged in similar ways in the activity as is the judge; and 89

94 Comment (3) gifts, loans, bequests, benefits, or other things of value, if the source is a party or other person, including a lawyer, who has come or is likely to come before the judge, or whose interests have come or are likely to come before the judge. [1] Whenever a judge accepts a gift or other thing of value without paying fair market value, there is a risk that the benefit might be viewed as intended to influence the judge's decision in a case. Rule 3.13 imposes restrictions upon the acceptance of such benefits, according to the magnitude of the risk. Paragraph (B) identifies circumstances in which the risk that the acceptance would appear to undermine the judge's independence, integrity, or impartiality is low, and explicitly provides that such items need not be publicly reported. As the value of the benefit or the likelihood that the source of the benefit will appear before the judge increases, the judge is either prohibited under paragraph (A) from accepting the gift, or required under paragraph (C) to publicly report it. [2] Gift-giving between friends and relatives is a common occurrence, and ordinarily does not create an appearance of impropriety or cause reasonable persons to believe that the judge's independence, integrity, or impartiality has been compromised. In addition, when the appearance of friends or relatives in a case would require the judge's disqualification under Rule 2.11, there would be no opportunity for a gift to influence the judge's decision making. Paragraph (B)(2) places no restrictions upon the ability of a judge to accept gifts or other things of value from friends or relatives under these circumstances, and does not require public reporting. [3] Businesses and financial institutions frequently make available special pricing, discounts, and other benefits, either in connection with a temporary promotion or for preferred customers, based upon longevity of the relationship, volume of business transacted, and other factors. A judge may freely accept such benefits if they are available to the general public, or if the judge qualifies for the special price or discount according to the same criteria as are applied to persons who are not judges. As an example, loans provided at generally prevailing interest rates are not gifts, but a judge could not accept a loan from a financial institution at below-market interest rates unless the same rate was being made available to the general public for a certain period of time or only to borrowers with specified qualifications that the judge also possesses. [4] Rule 3.13 applies only to acceptance of gifts or other things of value by a judge. Nonetheless, if a gift or other benefit is given to the judge's spouse, domestic partner, or member of the judge's family residing in the judge's household, it may be viewed as an attempt to evade Rule 3.13 and influence the judge indirectly. Where the gift or benefit is being made primarily to such other persons, and the judge is merely an incidental beneficiary, this concern is reduced. A judge should, however, remind family and household members of the restrictions imposed upon judges, and urge them to take these restrictions into account when making decisions about accepting such gifts or benefits. ANNOTATION Statutory disclosure and reporting requirements are contained in and -203, C.R.S. Ethics Opinions Judge may not receive free travel to conference sponsored by The Roscoe Pound Foundation of Trial Lawyers of America because it could convey a special relationship to one side in the adversarial process. Alaska. Ad. Op Judge may not allow law firm to pay for function following investiture. Md. Ad. Op

95 Rule 3.14 Reimbursement of Expenses and Waivers of Fees or Charges (A) Unless otherwise prohibited by Rules 3.1 and 3.13(A) or other law,* a judge may accept reimbursement of necessary and reasonable expenses for travel, food, lodging, or other incidental expenses, or a waiver or partial waiver of fees or charges for registration, tuition, and similar items, from sources other than the judge's employing entity, if the expenses or charges are associated with the judge's participation in extrajudicial activities permitted by this Code. (B) Reimbursement of expenses for necessary travel, food, lodging, or other incidental expenses shall be limited to the actual costs reasonably incurred by the judge and, when appropriate to the occasion, by the judge's spouse, domestic partner,* or guest. (C) A judge who accepts reimbursement of expenses or waivers or partial waivers of fees or charges on behalf of the judge or the judge's spouse, domestic partner, or guest shall publicly report such acceptance as required by Rule Comment [1] Educational, civic, religious, fraternal, and charitable organizations often sponsor meetings, seminars, symposia, dinners, awards ceremonies, and similar events. Judges are encouraged to attend educational programs, as both teachers and participants, in law-related and academic disciplines, in furtherance of their duty to remain competent in the law. Participation in a variety of other extrajudicial activity is also permitted and encouraged by this Code. [2] Not infrequently, sponsoring organizations invite certain judges to attend seminars or other events on a fee-waived or partial-fee-waived basis, and sometimes include reimbursement for necessary travel, food, lodging, or other incidental expenses. A judge's decision whether to accept reimbursement of expenses or a waiver or partial waiver of fees or charges in connection with these or other extrajudicial activities must be based upon an assessment of all the circumstances. The judge must undertake a reasonable inquiry to obtain the information necessary to make an informed judgment about whether acceptance would be consistent with the requirements of this Code. [3] A judge must assure himself or herself that acceptance of reimbursement or fee waivers would not appear to a reasonable person to undermine the judge's independence, integrity, or impartiality. The factors that a judge should consider when deciding whether to accept reimbursement or a fee waiver for attendance at a particular activity include: (a) whether the sponsor is an accredited educational institution or bar association rather than a trade association or a for-profit entity; (b) whether the funding comes largely from numerous contributors rather than from a single entity and is earmarked for programs with specific content; (c) whether the content is related or unrelated to the subject matter of litigation pending or impending before the judge, or to matters that are likely to come before the judge; (d) whether the activity is primarily educational rather than recreational, and whether the costs of the event are reasonable and comparable to those associated with similar events sponsored by the judiciary, bar associations, or similar groups; (e) whether information concerning the activity and its funding sources is available upon inquiry; (f) whether the sponsor or source of funding is generally associated with particular parties or interests currently appearing or likely to appear in the judge's court, thus possibly requiring disqualification of the judge under Rule 2.11; (g) whether differing viewpoints are presented; and (h) whether a broad range of judicial and nonjudicial participants are invited, whether a large number of participants are invited, and whether the program is designed specifically for judges. 91

96 ANNOTATION Statutory disclosure and reporting requirements are contained in and -203, C.R.S. Rule 3.15 Reporting Requirements (A) A judge shall publicly report the source and amount or value of: (1) compensation received for extrajudicial activities as permitted by Rule 3.12; (2) gifts and other things of value as permitted by Rule 3.13(C), unless the value of such items does not exceed the statutory amount specified in Title 24, Article VI of the Colorado Revised Statutes; and (3) reimbursement of expenses and waiver of fees or charges permitted by Rule 3.14(A). (B) When public reporting is required by paragraph (A), a judge shall report the date, place, and nature of the activity for which the judge received any compensation; the description of any gift, loan, bequest, benefit, or other thing of value accepted; and the source of reimbursement of expenses or waiver or partial waiver of fees or charges. (C) The public report required by paragraph (A)(1) shall be made at least annually. Public reports required by paragraph (A)(2) and (3) shall be made quarterly. (D) Reports made in compliance with this Rule shall be filed as public documents in the office of the clerk of the court on which the judge serves or other office designated by law*. (E) Full time magistrates shall file reports required by paragraph A in the office of the clerk of the court on which the magistrate serves annually on or before January 15. Comment [1] In Colorado, judges' public reporting requirements are governed both by this Code and by statute. See and -203, C.R.S. [2] Pursuant to section , all judges are required to file an annual disclosure with the secretary of state. [3] Pursuant to section , judges are required to file quarterly disclosures reporting gifts, loans, tickets to events, and reimbursement for travel and lodging expenses. [a] Money, including a loan, pledge, or advance of money or a guarantee of a loan of money with a value of $25 or more must be reported (3)(a), C.R.S. [b] Any gift of any item of real or personal property, other than money, with a value of S50 or more must be reported (3)(b). [c] Any loan of any item of real or personal property, other than money, if the value of the loan is $50 or more (3)(c). [d] Waiver or partial waiver of the cost of attending CLEs or other educational conferences or seminars is included within the statutory requirement that judges report tickets to sporting, recreational, educational or cultural events with a value of S50 or more, or a series of tickets with a value of $100 or more (3)(e), C.R.S. [e] Payment of or reimbursement for actual and necessary expenditures for travel and lodging at a convention or meeting at which the judge is scheduled to participate must be reported unless the payment or reimbursement is made from public funds, a joint governmental agency, an association of judges, or the judicial branch (3)(f), C.R.S. [4] The disclosure reports filed with the secretary- of state's office may be posted electronically on its website when technically feasible. 92

97 Canon 4 A JUDGE OR CANDIDATE FOR JUDICIAL OFFICE SHALL NOT ENGAGE IN POLITICAL OR CAMPAIGN ACTIVITY THAT IS INCONSISTENT WITH THE INDEPENDENCE, INTEGRITY, OR IMPARTIALITY OF THE JUDICIARY. Rule 4.1 Political and Campaign Activities of Judges and Judicial Candidates in General (A) Except as permitted by law,* or by this Canon, a judge or a judicial candidate* shall not: (1) act as a leader in, or hold an office in, a political organization;* (2) make speeches on behalf of a political organization; (3) publicly endorse or oppose a candidate for any public office; (4) solicit funds for, pay an assessment to, or make a contribution* to a political organization or a candidate for public office; (5) attend or purchase tickets for dinners or other events sponsored by a political organization or a candidate for public office; (6) publicly identify himself or herself as a candidate of a political organization; (7) seek, accept, or use endorsements from a political organization; (8) personally solicit* or accept campaign contributions; (9) use or permit the use of campaign contributions for the private benefit of the judge or others; (10) use court staff, facilities, or other court resources as a judicial candidate; (11) knowingly,* or with reckless disregard for the truth, make any false or misleading statement; (12) make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending* or impending* in any court; or (13) in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial* performance of the adjudicative duties of judicial office. (B) A judge or judicial candidate shall take reasonable measures to ensure that other persons do not undertake, on behalf of the judge or judicial candidate, any activities prohibited under paragraph (A), except as permitted by Rule 4.3. Comment General Considerations [1] A judge plays a role different from that of a legislator or executive branch official. Rather than making decisions based upon the expressed views or preferences of the electorate, a judge makes decisions based upon the law and the facts of every case. Therefore, in furtherance of this interest, judges and judicial candidates must, to the greatest extent possible, be free and appear to be free from political influence and political pressure. This Canon imposes narrowly tailored restrictions upon the political and campaign activities of all judges and judicial candidates, taking into account the various methods of selecting judges. [2] When a person becomes a judicial candidate, this Canon becomes applicable to his or her conduct. 93

98 Participation in Political Activities [3] Public confidence in the independence and impartiality of the judiciary is eroded if judges or judicial candidates are perceived to be subject to political influence. Although judges and judicial candidates may register to vote as members of a political party, they are prohibited by paragraph (A)(1) from assuming leadership roles in political organizations. [4] Paragraphs (A)(2) and (A)(3) prohibit judges and judicial candidates from making speeches on behalf of political organizations or publicly endorsing or opposing candidates for public office, respectively, to prevent them from abusing the prestige of judicial office to advance the interests of others. See Rule 1.3. [5] Although members of the families of judges and judicial candidates are free to engage in their own political activity, including running for public office, there is no "family exception" to the prohibition in paragraph (A)(3) against a judge or candidate publicly endorsing candidates for public office. A judge or judicial candidate must not become involved in, or publicly associated with, a family member's political activity or campaign for public office. To avoid public misunderstanding, judges and judicial candidates should take, and should urge members of their families to take, reasonable steps to avoid any implication that they endorse any family member's candidacy or other political activity. [6] Judges and judicial candidates retain the right to participate in the political process as voters in both primary and general elections. For purposes of this Canon, participation in a caucus-type election procedure does not constitute public support for or endorsement of a political organization or candidate, and is not prohibited by paragraphs (A)(2) or (A)(3). Statements and Comments Made during a Campaign for Judicial Office [7] Judicial candidates must be scrupulously fair and accurate in all statements made by them and by their retention committees. Paragraph (A)(ll) obligates candidates and their committees to refrain from making statements that are false or misleading, or that omit facts necessary to make the communication considered as a whole not materially misleading. [8] Judicial candidates are sometimes the subject of false, misleading, or unfair allegations. For example, false or misleading statements might be made regarding the identity, present position, experience, qualifications, or judicial rulings of a candidate. In other situations, false or misleading allegations may be made that bear upon a candidate's integrity or fitness for judicial office. As long as the candidate does not violate paragraphs (A)(11), (A)(12), or (A)(13), the candidate may make a factually accurate public response. In making any such response, the judge should maintain the dignity appropriate to judicial office. [9] Paragraph (A)(12) prohibits judicial candidates from making comments that might impair the fairness of pending or impending judicial proceedings. This provision does not restrict arguments or statements to the court or jury by a lawyer who is a judicial candidate, or rulings, statements, or instructions by a judge that may appropriately affect the outcome of a matter. Pledges, Promises, or Commitments Inconsistent with Impartial Performance of the Adjudicative Duties of Judicial Office [10] The role of a judge is different from that of a legislator or executive branch official Campaigns for retention to judicial office must be conducted differently from campaigns for other offices. The narrowly drafted restrictions upon political and campaign activities of judicial candidates provided in Canon 4 are intended to help preserve the integrity and independence of the judiciary, and to honor Colorado's merit-based system of selecting and retaining judges. 94

99 [11] Paragraph (A)(13) makes applicable to both judges and judicial candidates the prohibition that applies to judges in Rule 2.10(B), relating to pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office. [12] The making of a pledge, promise, or commitment is not dependent upon, or limited to, the use of any specific words or phrases; instead, the totality of the statement must be examined to determine if a reasonable person would believe that the candidate for judicial office has specifically undertaken to reach a particular result. Pledges, promises, or commitments must be contrasted with statements or announcements of personal views on legal, political, or other issues, which are not prohibited. When making such statements, a judge should acknowledge the overarching judicial obligation to apply and uphold the law, without regard to his or her personal views. ANNOTATION Judge who allowed candidate for public office to place a sign in support of candidate outside judge's home publicly endorsed candidate for public office, thereby engaging in a prohibited political activity and improperly lending the prestige of his office to advance the private interests of another. In re Inquiry Concerning McCormick, 639 N.W.2d 12 (Iowa 2002). Ethics Opinions To make clear that any contribution by the judge's spouse to a political candidate is not from the judge, that contribution should be made in the spouse's name alone from the spouse's separate bank account with no reference to the judge or judicial position. Colo. J.E.A.B. Op A judge may not contribute to another judge's retention campaign fund. Although a judge standing for retention is not necessarily a candidate for "public" office, judicial contributions to retention elections necessarily politicizes them, in contravention to the Code. Alaska Op A judge may not attend a political party caucus. A judge may vote in a primary election, even when participation is conditioned on party affiliation. Utah. Ad. Op A judge may not act as a master of ceremonies at a "Meet the Candidates Night" sponsored by a local PTA, because the meeting is a political gathering. Utah Ad. Op Rule 4.2 Political and Campaign Activities of a Judge Who is a Candidate for Retention (A) A judicial candidate* in a retention public election* shall: (1) act at all times in a manner consistent with the independence,* integrity,* and impartiality* of the judiciary; (2) comply with all applicable federal and state election, election campaign, and election campaign fund-raising laws and regulations; (3) review and approve the content of all campaign statements and materials produced by the candidate or his or her campaign committee, as authorized by Rule 4.3, before their dissemination; and (4) take reasonable measures to ensure that other persons do not undertake on behalf of the candidate activities, other than those described in Rule 4.3, that the candidate is prohibited from doing by Rule

100 ANNOTATIONS Ethics Opinions Judges standing for retention may not appear on a television program in which a representative of the League of Women Voters would ask them questions to help provide viewers with more information about whether or not the judges should be retained. Viewers might reasonably expect that the judge was seeking an approval vote and might therefore understand that the judge is engaging in campaign activity. Colo. J.E.A.B. Op Rule 4.3 Retention Campaign Committees (A) A judge who is a candidate for retention in office should abstain from any campaign activity in connection with the judge's own candidacy unless there is active opposition to his or her retention in office. If there is active opposition to the retention of a candidate judge: (1) The judge may speak at public meetings; (2) the judge may use advertising media, provided that the advertising is within the bounds of proper judicial decorum; (3) a nonpartisan citizens' committee or committees advocating a judge's retention in office may be organized by others, either on their own initiative or at the request of the judge; (4) any committee organized pursuant to subsection (A)(3) may raise funds for the judge's campaign, but the judge should not solicit funds personally or accept any funds except those paid to the judge by a committee for reimbursement of the judge's campaign expenses; (5) the judge should not be advised of the source of funds raised by the committee or committees; (6) the judge should review and approve the content of all statements and materials produced by the committee or committees before their dissemination. Comment [1] Judicial candidates are prohibited from personally soliciting funds in support of their retention or personally accepting retention campaign contributions. See Rule 4.1(A)(8). [2] Retention campaign committees may solicit and accept campaign contributions, manage the expenditure of campaign funds, and generally conduct campaigns. Judicial candidates are responsible for compliance with the requirements of election law and other applicable law, and for the activities of their retention campaign committees. [3] At the start of a retention campaign, the candidate must instruct the retention campaign committee to solicit or accept only such contributions as are reasonable in amount, appropriate under the circumstances, and in conformity with applicable law. Although lawyers and others who might appear before a judge who is retained are permitted to make campaign contributions, the judge should not be informed of the source of any funds. ANNOTATION The Fair Campaign Practice Act, et. seq., C.R.S. applies to campaigns for and against retention in office. 96

101 Ethics Opinions A great deal of media attention to a judge's ruling, even if it is critical of the ruling, does not, in itself, constitute active opposition to the judge's retention. However, if there is an organized campaign in opposition to the judge's retention or if there are individual comments opposed to the judge's retention that have been broadcast to a public audience, the judge may safely conclude that there is active opposition to the judge's retention. Here, the Board concludes that the numerous comments posted on the local newspaper's website recommending non-retention of the judge amount to active opposition. Nevertheless, the Board cautions the judge that even though he may, ethically, campaign for retention, he should begin a campaign with great care, bearing in mind that our system strongly disfavors judicial campaigns. Colo. J.E.A.B. Op Judges standing for retention may not appear on a television program in which a representative of the League of Women Voters would ask them questions to help provide viewers with more information about whether or not the judges should be retained. Viewers might reasonably expect that the judge was seeking an approval vote and might therefore understand that the judge is engaging in campaign activity. Colo. J.E.A.B, A judge may operate a retention campaign if there is active opposition to the judge's retention. Active opposition does not include a below-average performance rating by the Judicial Conduct Commission or casual, water-cooler type discussions in opposition to the judge's retention, but can include scenarios where an anti-retention message is broadcast to a large audience of potential voters, such as through a letter to the editor, lawn signs, or paid advertisements in a publication. Active opposition may also be found in news stories, timed to a judge's retention election, that raise negative facts and qualification issues not immediately relevant to a news-making case. Utah Ad. Op Rule 4.4 Activities of Judges Who Become Candidates for Nonjudicial Office (A) Upon becoming a candidate for a nonjudicial elective office, a judge shall resign from judicial office, unless permitted by law* to continue to hold judicial office. (B) Upon becoming a candidate for a nonjudicial appointive office, a judge is not required to resign from judicial office, provided that the judge complies with the other provisions of this Code. Comment [1] In campaigns for nonjudicial elective public office, candidates may make pledges, promises, or commitments related to positions they would take and ways they would act if elected to office. Although appropriate in nonjudicial campaigns, this manner of campaigning is inconsistent with the role of a judge, who must remain fair and impartial to all who come before him or her. The potential for misuse of the judicial office, and the political promises that the judge would be compelled to make in the course of campaigning for nonjudicial elective office, together dictate that a judge who wishes to run for such an office must resign upon becoming a candidate. [2] The "resign to run'* rule set forth in paragraph (A) ensures that a judge cannot use the judicial office to promote his or her candidacy, and prevents post-campaign retaliation from the judge in the event the judge is defeated in the election. When a judge is seeking appointive nonjudicial office, however, the dangers are not sufficient to warrant imposing the "resign to run" rule. 97

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103 SECTION 3: EVALUATION PROCESS

104 2014 Timeline Sat. Jan. 11 Sat. Mar. 22 Tues., Apr. 1 Tues., Apr. 1 Sun., June 1 Mon. June 2 Tues. June 3 Wed.., July 2 Wed., July 2 Wed., July 16 Mon., Aug. 4 1 Tues., Aug. 5 Tues., Nov. 4 Commissioners shall attend training sessions within the assigned dates. Commissions conduct organizational meetings to elect chairs, vicechairs, and public information liaisons within this timeframe, and provide the Office of Judicial Performance Evaluation (OJPE) with the names of the designated officers. Commissions will want to schedule a meeting with Chief Judges for overview of the court prior to beginning any evaluations. Surveyor delivers retention survey reports to Commissioners, retention judges and Chief Judges by this date. Commissioners conduct courtroom observations, review written decisions/opinions, review judicial statistics, review judges selfevaluations, review survey reports, interview retention judges, and prepare draft narratives with retention recommendations. Commissions may choice to conduct public hearings and interview other judges and/or other persons (optional) if they feel a need for more information regarding a judge s performance. Commissions must provide draft narratives to retention judges by this date. Commissions must consider this date when scheduling retention judge interviews, as by rule, the draft narratives must be delivered to the judges within 10 days following the interview. (See Rule 13) Judges may submit written responses and/or request additional interviews. Judges receiving do not retain or no opinion recommendations may submit 100 word responses to Commissions to be incorporated into narratives. (See Rule 13) Commissions must submit final narratives to retention judges and OJPE by this date. OJPE submits final narratives to Legislative Council for publication in the Blue Book. Judicial candidates must declare their intent to stand for retention with the Secretary of State by this date. OJPE posts final narratives and survey reports to website and issues over 250 press releases statewide. Election Day 1 Pursuant to Article VI, sec. 25 of the Colorado Constitution, judges must declare intent to stand for retention not more than six months nor less than three months prior to the General Election. 99

105 STATE COMMISSION(ER) RESPONSIBILITIES Promulgate (subject to the approval of the Supreme Court) rules necessary to implement and effectuate the provisions of , et seq., C.R.S., including rules to be followed by the district commissions Adopt rules or standards that provide guidance to state and district commissioners regarding the review or interpretation of information obtained as a result of the evaluation process and criteria Develop uniform procedures and techniques for evaluating trial and appellate judges based on statutory performance criteria Develop guidelines and procedures for the continuous collection of data for use in the evaluation process Develop surveys for persons affected by justices and judges including attorneys (including district attorneys, public defenders, and private attorneys), jurors, litigants, law enforcement personnel, court and probation employees, court interpreters, social services employees, and crime victims Determine the statistical validity of completed surveys, report to the district commissions on the statistical validity of the surveys for their respective judicial districts and specify when and how statistically invalid surveys may be used Develop procedures for the review of the deliberation procedures established by district commissions Evaluate the performance of Supreme Court justices and court of appeals judges Publish narratives and survey reports (without confidential comments) of all justices and judges standing for retention Investigate complaints by commissioners or judges who believe there has been a violation of the rules or statute 100

106 District Commission(er) DISTRICT RESPONSIBILITIES Act pursuant to Title 13, Article 5.5 of the Colorado Revised Statutes and abide by the Rules Governing the Commissions on Judicial Performance Attend one training session every two years Elect a chair, vice-chair, and public information liaison Meet with the Chief Judge before conducting evaluations Follow recusal requirements Evaluate the performance county and district judges Prepare a narrative and recommendation for each judge being evaluated May recommend that a judge be placed on an improvement plan Comply with all statutory and rule confidentiality requirements Forward all documents and other evaluation materials to the State Commission within 30 days of submitting the final narratives to the State Commission Chair Has primary contact with the District Administrator Contacts the members of the commission for meetings and works with the District Administrator to schedule meetings Ensures that commissioners who do not meet training, courtroom observation, interview, decision review, and statistics review responsibilities do not vote on any matter involving the evaluation of a judge, unless excused by a two-thirds vote of the other commissioners Organizes the public hearing, if one is held Notifies the Executive Director if a vacancy occurs on the commission District Administrator Serves as the staff for the district commission Assists their respective commissions in the performance of their duties, including: o o o o Meeting and interview arrangements, including commission meeting with the Chief Judge Obtaining and distributing information Posting notices Providing statistical information on each judge Shall not be involved in the development or production of the narrative Shall not be present during interviews or deliberations conducted by the commission 101

107 COMMISSIONS ON JUDICIAL PERFORMANCE 2014 Self-Evaluation Trial Court Judge Information on this Self-Evaluation form will not be quoted or reproduced in the narrative, but is intended for discussion with the District Commission and as a tool for professional growth. You may complete this form electronically or handwrite in black ink. Name: Date: Date Appointed: Position before taking the bench: Describe your workload during your current term: % Civil % Domestic Relations % Juvenile % Mental Health % Probate % Criminal % Water % Misdemeanor % Traffic % Traffic Infractions % Small Claims 102

108 In an effort to facilitate meaningful dialogue with the Commission, please respond to the following questions in narrative form. Legal Ability Please describe what you do to remain current in all the areas of the law, substantive and procedural. To what extent do you conduct your own legal research and write decisions, and to what extent do you rely on law clerks and other personnel for those tasks? Integrity Please describe your efforts to ensure equal treatment of all persons in your courtroom. 103

109 Please describe how you ensure that your conduct is free from any appearance of impropriety. Communication Skills What do you think makes a clear written decision? Please describe how you approach communicating both oral and written decisions to parties and counsel. Judicial Temperament Please describe what steps you take to promote public confidence in the court. 104

110 What steps do you take to assure appropriate judicial demeanor? Administrative Skills Please describe how you manage your workload to ensure decisions are made promptly. What steps do you take to work effectively with other judges and court personnel? Settlement Activities Please describe steps you take to appropriately encourage settlement negotiations. 105

111 Community Service Do you engage in community service activities? How important do you think community involvement is to your judicial role? Philosophy How would you best describe the judicial philosophy that guides you daily? Other What has been the greatest challenge during your term and how did you meet it? Please describe your overall performance over the current term. After completing this form, please give it to your district administrator in a sealed envelope on or before March 1, The district administrator will deliver it to the chair of your commission. 106

112 COMMISSIONS ON JUDICIAL PERFORMANCE 2014 Self-Evaluation Appellate Judge Information on this Self-Evaluation form will not be quoted or reproduced in the narrative, but is intended for discussion with the District Commission and as a tool for professional growth. You may complete this form electronically or handwrite in black ink. Name: Date: Date Appointed: Position before taking the bench: 107

113 In an effort to facilitate meaningful dialogue with the Commission, please respond to the following questions in narrative form. Legal Ability Please describe what you do to remain current in all the areas of the law, substantive and procedural. To what extent do you conduct your own legal research and write your own opinions, and to what extent do you rely on law clerks and other personnel for those tasks? Integrity Please describe how you ensure that your conduct is free from any appearance of impropriety. 108

114 Communication Skills What do you think makes a clear written opinion? Please describe how you approach communicating with counsel in oral argument. Judicial Temperament Please describe what steps you take to promote public confidence in the court. What steps do you take to assure appropriate judicial demeanor? 109

115 Administrative Skills Please describe how you manage your workload to ensure that opinions are issued promptly. What steps do you take to work effectively with other judges and court personnel? Community Service Do you engage in community service activities? How important do you think community involvement is to your judicial role? Philosophy How would you best describe the judicial philosophy that guides you daily? 110

116 Other What has been the greatest challenge during your term and how did you meet it? Please describe your overall performance over the current term. After completing this form, please place it in a sealed envelope and return it to Kent J. Wagner, Executive Director, Office of Judicial Performance Evaluation, Ralph L. Carr Judicial Center, 1300 Broadway, Suite 220, Denver, CO 80203, on or before March 1,

117 Colorado Judicial Performance Attorneys Regarding Trial Judges Survey Questions _ Which of the following types of cases have you observed Judge (Last Name) s performance? Please circle all that apply. (Only respondents who indicate they have observed the judge in criminal other than traffic cases will be asked question 2d and the bias question between 5 and 6.) Civil... 1 Criminal other than traffic... 2 Traffic... 3 Domestic... 4 Juvenile... 5 Probate... 6 Other... 9 Using a grade scale, where an "A" is excellent along with B, C, D or F for fail, please grade Judge [Last Name] on the following. If, for a specific question you feel that you do not have enough information to grade the judge, please check DK/NA for Don't Know/Not Applicable. 1. Case Management: a. Promptly issuing a decision on the case after trial. A B C D F DK/NA b. Maintaining appropriate control over proceedings. A B C D F DK/NA c. Promptly ruling on pre-trial motions. A B C D F DK/NA d. Setting reasonable schedules for cases. A B C D F DK/NA 2. Application and Knowledge of Law: a. Being able to identify and analyze relevant facts. A B C D F DK/NA b. Basing decisions on evidence and arguments. A B C D F DK/NA c. Willing to reconsider error in fact or law. A B C D F DK/NA d. [Criminal only] Issuing consistent sentences when the circumstances are similar. A B C D F DK/NA 3. Communications: a. Making sure all participants understand the proceedings. A B C D F DK/NA b. Providing written communications that are clear, thorough and well reasoned. A B C D F DK/NA 4. Demeanor: a. Giving proceedings a sense of dignity. A B C D F DK/NA b. Treating participants with respect. A B C D F DK/NA c. Conducting his/her courtroom in a neutral manner. A B C D F DK/NA d. Consistently applying laws and rules. A B C D F DK/NA 112

118 5. Diligence: a. Using good judgment in application of relevant law and rules. A B C D F DK/NA b. Doing the necessary homework and being prepared for his/her cases. A B C D F DK/NA c. Being willing to handle cases on the docket even when they are complicated and time consuming. A B C D F DK/NA Having observed Judge (Last Name) in a criminal case, would you say the judge is: (This question is asked only if respondent indicated at the beginning of the survey he/she observed the judge in a criminal case.) Very biased in favor of the prosecution... 1 Somewhat biased in favor of the prosecution... 2 Completely Neutral... 3 Somewhat biased in favor of the defense... 4 Very biased in favor of the defense... 5 Don t Know/Not Sure What would you say are Judge (Last Name) s strengths? 7. What would you say are Judge (Last Name) s weaknesses? 8. Keeping in mind your responses to each of the previous questions, how strongly do you recommend that Judge (Last Name) be retained in office, or not be retained in office? Strongly recommend retain in office... 5 Recommend retain in office... 4 Neither recommend nor not recommend retain in office... 3 Recommend not retain in office... 2 Strongly recommend not retain in office

119 9. And what would you say are Judge [Last Name] s weaknesses? 10. Keeping in mind your responses to each of the previous questions, how strongly do you recommend that Judge [Last Name] be retained in office, or not retained in office? Strongly recommend he/she be retained in office... 5 Recommend he/she be retained in office... 4 Neither recommend nor not recommend h/s be retained in office.. 3 Recommend he/she not be retained in office... 2 Strongly recommend he/she not be retained in office... 1 Don t know enough to make a recommendation... 6 Thank you for taking the time to complete this questionnaire. Please place it in the self-addressed, postage-paid envelope provided and place it in the mail. Your participation in this survey is very much appreciated. Commission on Judicial Performance Evaluation of JUDGE [FULL NAME] If we have made a mistake and you either were not in Judge [Last Name] s courtroom or you feel that you do not have sufficient experience with Judge [Last Name] to have an opinion on the judge s judicial performance, please just return this questionnaire, unanswered, in the enclosed postage-paid envelope, to stop any further requests to evaluate Judge [Last Name]. Using a grade scale, where an A is excellent along with B, C, D or F for fail, please grade the judge on the following. (If you feel that you don t have experience with the judge in a specific area, or just don t know, please circle the number corresponding to Don t Know/Not Applicable DK/NA). DK 1. Demeanor: A B C D F N/A a. Giving court proceedings a sense of dignity b. Treating participants in the case politely and with respect c. Conducting his/her courtroom in a neutral manner d. Having a sense of compassion and human understanding for those who appear before him/her Barcode

120 DK 2. Fairness: A B C D F N/A a. Giving participants an opportunity to be heard b. Treating those involved in the case without bias c. Treating fairly people who represent themselves d. Giving each side enough time to present his or her case DK 3. Communications: A B C D F N/A a. Making sure participants understand the proceedings, and what s going on in the courtroom b. Using language that everyone can understand c. Speaking clearly so everyone in the courtroom can hear what s being said DK 4. Diligence: A B C D F N/A a. Beginning court on time b. Maintaining appropriate control over proceedings c. Setting reasonable schedules for cases d. Being prepared for his/her cases e. Managing court proceedings so that there is little wasted time DK 5. Application of Law: A B C D F N/A a. Giving reasons for rulings b. Willing to make decision without regard to possible outside pressure c. Being able to identify and analyze relevant facts [If you were in [Last Name] s courtroom during a criminal case or cases please answer this question, otherwise skip to the next question.] On the scale below, please indicate by circling the appropriate number how biased you think Judge [Last Name] is toward the defense or the prosecution. If you feel Judge [Last Name] is completely unbiased, circle 0. Bias toward Completely Bias toward Defense Neutral Prosecution [If you were in [Last Name] s courtroom during a criminal case or cases please answer this question, otherwise skip to the next question.] On the scale below, please indicate by circling the appropriate number how lenient or how harsh you think the sentences generally handed down by [Last Name] are. If you feel Judge [Last Name] generally hands down appropriate sentences, circle 0. Sentences Appropriate Sentences Too Light Sentences Too Harsh Though your name will never be associated with your answers, because the judge will see a typed transcript of the comments that you and others write, it is important that you do not include information in the comments below that would unintentionally identify you as the author. 8. What would you say are Judge [Last Name] s strengths? Continued on Back Page

121 Colorado Judicial Performance Attorneys Regarding Appellate Judges Survey Questions 1. [This question asked for each judge evaluated.] Which of the following types of cases have you appealed to the [Court of Appeals/Supreme Court] in which [ Judge/Justice Last Name] authored the decision, concurred or dissented? (Please check all that apply.) Civil... 1 Criminal... 2 Domestic... 3 Juvenile... 4 Other Using a grade scale, where an "A" is excellent along with B, C, D or F for fail, please grade [ Judge/Justice Last Name] on the following. If, for a specific question you feel that you do not have enough information to grade the judge/justice, please check DK/NA for Don't Know/Not Applicable. a. Being fair and impartial toward each side of the case. b. Allowing parties to present their arguments and answer questions. c. Treating parties equally regardless of race, sex or economic status. d. Being courteous toward attorneys. e. Not engaging in ex parte communications. f. Being prepared for oral argument. Would you say you are sufficiently knowledgeable about [Judge/Justice Last Name] s legal writings to have formed an opinion about them? Yes (Ask Q3a to Q3f) No (Skip to Q4) Don't know (Skip to Q4) 3. Please evaluate [ Judge/Justice Last Name] on the following topics. a. Writing opinions that are clear. b. Writing opinions that adequately explain the basis of the Court's decision. c. Issuing opinions in a timely manner. d. Making decisions without regard to possible criticism. e. Making reasoned decisions based upon the law and facts. f. Refraining from reaching issues that need not be decided. 4. What would you say are [Judge/Justice Last Name] s strengths? 116

122 5. What would you say are [Judge/Justice Last Name] s weaknesses? 6. Keeping in mind your responses to each of the previous questions, how strongly do you recommend that [Judge/Justice Last Name] be retained in office, or not retained in office? Strongly recommend retain in office... 5 Recommend retain in office... 4 Neither recommend nor not recommend retain in office... 3 Recommend not retain in office... 2 Strongly recommend not retain in office

123 Chief Justice Directive SUPREME COURT OF COLORADO OFFICE OF THE CHIEF JUSTICE DIRECTIVE CONCERNING COLORADO STANDARDS FOR CASE MANAGEMENT IN THE TRIAL COURTS PURPOSE The purpose of this Chief Justice Directive (CJD) is to establish standards for timeliness of case processing in the Judicial Branch. The following standards replace those contained in Chief Justice Directive and any subsequent modifications to those standards. BACKGROUND Standards for case management and delay reduction in the trial courts were first established in 1989 with the issuance of Chief Justice Directive 89-01: Concerning Colorado Standards for Case Management in the Trial Courts (CJD 89-01). CJD was based on a comprehensive study by the Supreme Court Delay Reduction Committee and included the recommendations contained in their final report, Colorado Standards for Case Management Trial Courts. Since that time, societal, public policy and technological changes have significantly altered the business of the courts. The Branch has made informal adjustments to the standards over the years and introduced additional measures of timeliness in 2000 and In 2000, the Branch submitted a request for twenty-four additional district court judges. As part of this request, the Branch committed to meeting updated timeliness goals when all the new judgeships and supporting positions were filled (these were known as the ZBB goals). In 2006, in response to a rule change requiring that specific individual caseload data be made available to judicial performance commissions, the Caseflow Leadership Task Force issued Resource Realistic goals. The timeliness goals issued for this purpose are somewhat less stringent than those already in existence for two reasons: first, because the courts had recently undergone severe budget reductions and staff layoffs, they needed to be reflective of the overall understaffing of the courts, and, 118

124 secondly, because these goals were to be used by the commissions when reviewing caseload data on individual judges rather than entire districts. While these adjustments addressed short-term and specific needs, larger issues such as the appropriateness of measuring timeliness, how the various goals fit together, and how timeliness measures should be applied fell second to more immediate demands. Yet, the Branch recognizes that the courts and the public are better served by a comprehensive set of standards that take into account how the work of the courts is accomplished and that operate in concert with each other to measure the success of the organization as well as individual members of the bench. To that end, the Caseflow Leadership Task Force has examined case processing practices, timeliness goals and caseload data to create the following comprehensive measures of case processing timeliness for the Branch. MEASURING TIMELINESS AND THE WORK OF THE COURTS The work of the courts revolves around resolving issues of freedom and fairness. Whether it is a criminal case which may result in loss of liberty or a dissolution of marriage case in which parenting time will be determined, each case before the court is of extraordinary importance to the people involved in it. But the courts are not only responsible for achieving a just resolution for the individuals involved in the cases before them, each court must also operate within the expectations, resources and standards of the community in which it is located. As a result, courts must strive to balance fairness and justice with access and timeliness. Given these competing ideals, setting strict timelines for the resolution of all cases, regardless of location or resources, seems a particularly arbitrary and inadequate means for assessing whether a judge, the bench or the organization as a whole, is appropriately addressing the needs of each case. At the same time, it cannot be overlooked that the Branch is accountable to the public for hearing and resolving their disputes in as timely a manner as possible. Measures of timeliness generally focus on individual judges. However, judges are just one part of a much larger whole. The Colorado trial courts see well over 700,000 new cases a year. These cases are not processed solely by judges but with the assistance of case processing, probation and administrative staff and numerous of other professionals who work in and around the court system. Obviously, the nature of the work before the courts differs between a large urban court and a small Chief Justice Directive Pg

125 rural one based simply on the volume of cases, availability of staff and the resources available in the community. However, there are also significant differences among urban courts and, similarly, among rural courts. No two locations face the same issues in carrying out the administration of justice. Whether it is a difference in the demographics of a community, the geography covered by a jurisdiction, or the presence of a state hospital, prison or major water basin, each court has a unique set of issues, obstacles and resources that affect how the court can and must operate. Therefore, evaluations of the timeliness with which cases are processed by individual judges are incomplete without taking a broader view of the system in which those individual judges operate. While the organizational issues which form the foundation of the courts affect how the business of the courts is approached, it is only by combining this information with the manner in which the courts handle the individual cases before them that the effectiveness of the Judicial Branch can be assessed. Each case filed in the court has different requirements for time, services and other resources in achieving a just resolution. The management of individual cases reflects strongly on an individual judge s case processing timeliness; seeing the organization as a whole can provide a clearer picture of what is really happening with these cases. If a judge is assigned a complex civil case or a particularly egregious criminal case, it can delay the remainder of his or her entire caseload. As part of a larger organization, it is possible for other judges, either sitting in that district or from the senior judge program, to assist with the remainder of the docket. Where those resources are not available, the remaining caseload on the judge s docket must linger. A judge, and those who support the judge, must constantly strive to balance the needs of the cases on his or her docket and the needs and resources available to each judge, courtroom and the organization as a whole. In reviewing the various standards operating in the Branch at the time this effort was undertaken, it became clear that each had their place. Creating one set of standards that can be used at all levels and for all purposes simply does not provide valid or useful evaluative information. One set of standards does not fit all levels of court business. While a district is made up of individual courtrooms and a separate clerk s office, it operates as a whole unit. How an individual judge manages his or her docket is one important measure of access and justice, but how the district as a whole functions is equally as important. Therefore, this CJD establishes two approaches to measuring the work of the courts: organizational goals and individual benchmarks. These goals and benchmarks are being issued as a means of measuring the goals to which the courts aspire, but with Chief Justice Directive Pg

126 the recognition that the time it takes to process a case is only one measure of whether justice was served in that case. The organizational goals are rather stringent, aspirational timelines to be applied at the district-wide or higher level. These measures are intended to be used for management at the organizational level and for reporting to external bodies, such as the legislature, on the overall timeliness of case processing in the Branch. These goals are aspirational in that it is believed that, given full staffing and good management practices at all levels, they can be achieved by the organization. The organizational goals do not accommodate variation in case assignment practices or small caseloads and, as such, are not intended to be applied to individual judges. An individual judge is not expected to meet the organizational goals; individual benchmarks have been established for this purpose. The individual benchmarks are established to provide a more realistic means of measuring the timeliness of case processing at the individual level. These benchmarks are intended to provide feedback to individual judges on their performance, to be used by the Chief Judge of a district in overseeing workload distribution in that particular district and to provide the information required by the Rules of the Commissions on Judicial Performance. The benchmarks recognize that there are many practical issues outside the control of a judge that can affect the length of time a case remains open. These include, but are not limited to, when and how cases are assigned to judicial officers, the time cases spend with a magistrate, docket rotation, third-party assessments, pre-sentence investigations, transferring of cases to accommodate prolonged trials, and the time required for the filing and processing of paperwork. Further, they recognize the dramatic fluctuations in percentages that can occur when a pool of cases being analyzed is small. The individual benchmarks go a long way in addressing the unique nature of individual case assignment; however, it is simply not possible for a number-based standard to provide a complete picture of the quality with which an individual judge manages his or her caseload. Therefore, while these individual benchmarks are established as a starting point for evaluating a judge s ability to Chief Justice Directive Pg

127 manage caseload, it is always recommended that qualitative information about the court and the caseload be obtained whenever the timeliness of an individual judge is being evaluated. THE GOALS AND BENCHMARKS The following standards are not being promulgated as mandatory rules but, rather, as goals and benchmarks that strive to balance the need for uniformity in expectations concerning timeliness with an acknowledgement that the diversity of case assignment, docket rotation and local judicial discretion in managing individual cases has a significant impact on timeliness statistics. All judges are encouraged to study these standards and to attempt their implementation in a manner consistent with the overriding goals of eliminating unnecessary delay in the judicial process, making more effective use of judicial resources in the resolution of disputes, and making the judicial process more accessible to litigants and the public. Chief Justice Directive Pg

128 District Court: ORGANIZATIONAL GOALS Case Type District Court Organizational Goals Criminal Civil Domestic Relations General Juvenile Juvenile Delinquency Dependency and Neglect Expedited Permanency Plan No more than 5% of cases open more than 1 year No more than 10% of cases open more than 1 year No more than 5% of cases open more than 1 year No more than 5% of cases open more than 1 year No more than 5% of cases open more than 1 year No more than 5% of cases open more than 18 months No more than 10% of cases open more than 1 year County Court: Case Type County Court Organizational Goals Civil Misdemeanor Traffic DUI/DWAI Small Claims Infractions No more than 5% of cases open more than six months No more than 10% of cases open more than six months No more than 5% of cases open more than six months No more than 20% of cases open more than seven months No more than 1% of cases open more than six months No more than 1% of cases open more than six months Chief Justice Directive Pg

129 BENCHMARKS FOR INDIVIDUAL JUDGES District Court: Case Type Criminal Civil Domestic Relations General Juvenile Juvenile Delinquency Dependency and Neglect Expedited Permanency Plan District Court Benchmarks for Individual Judges No more than 10% of cases open more than 1 year No more than 20% of cases open more than 18 months No more than 10% of cases open more than 18 months No more than 10% of cases open more than 1 year No more than 5% of cases open more than 1 year No more than 5% of cases open more than 18 months No more than 10% of cases open more than 1 year County Court: Case Type Civil Misdemeanor Traffic DUI/DWAI Small Claims Infractions County Court Benchmarks for Individual Judges No more than 20% of cases open more than six months No more than 20% of cases open more than six months No more than 20% of cases open more than six months No more than 20% of cases open more than seven months No more than 20% of cases open more than six months No more than 5% of cases open more than six months Chief Justice Directive Pg

130 LIMITATIONS The data used to determine whether the organizational goals and/or the individual benchmarks are being met are taken from the Branch s ICON/Eclipse database. This is a working database that is used for all court business, such as docketing, electronic filing of paperwork, recording events in a case, entering orders, etc. While the information entered into ICON/Eclipse is used for day-to-day business operations, the Branch is also able to access the database to conduct research and analysis. The data in ICON/Eclipse is a valuable asset to the Branch. However, because it is an active database with thousands of users and hundreds of uses, there are some limitations to the data and its applications. The data used for these measures are equivalent to a point-in-time snapshot of a judge s open caseload. For purposes of these measures, a judge s open cases are those that are actively managed by that judge at the time the data is extracted from the database. Cases with active bench warrants or mental health stays, cases in which a notice of appeal has been filed, and cases that have been reopened for post-judgment activity are excluded from the pool. It is always recommended that input from the local Chief Judge regarding additional factors specific to districts or individual judges that may impact case management be obtained any time the organizational goals or individual benchmarks are being used. In addition to the local issues that may be explained during these discussions, the following general information should be taken into consideration when reviewing this type of data: Case Timeliness May be Affected by Factors Outside of the Courtroom Many factors outside of the direct control of the judge can affect case timeliness. For example, criminal cases are often dependent on production of various reports and evaluations, such as presentence investigation reports, sex offender evaluations, and/or mental health evaluations. Juvenile case processing is directly affected by the availability of required treatment services. Domestic Relations cases may be delayed by parenting assessments or other necessary evaluations. Statutory deadlines may also influence case timeliness. For example, by law, divorce cases cannot be ruled on until at least 90 days have passed from the date the case is filed with the court. Chief Justice Directive Pg

131 Higher Numbers of Complex Cases have Increased Case Processing Time Certain case types, such as business litigation, medical malpractice, homicide, and divorce cases with extensive assets, generally take longer to process due to their complexity. Additionally, district judges have indicated that civil litigation has become more complicated in recent years as the issues being brought before the court have increased in complexity, there are more issues to be ruled upon in each case, more motions are being filed, and more attorneys are participating in each case. A few high profile or highly-complex cases may result in longer average disposition times for the judges dockets as a whole. Local Case Assignment Practices May Affect Performance Data Local case assignment practices affect the case load and case types assigned to judges. In some jurisdictions, cases are processed by a magistrate or by a county court judge before being assigned to another judge or being bound over to district court. In certain county courts, cases are assigned to a magistrate or First Appearance Center before they are sent to a county judge. In many of the larger courts, judges rotate docket assignments on annual or biannual basis thereby inheriting the open caseload of the judge hearing that docket previous to the rotation. Since the Branch s data management system does not track historical information on case assignments, the data provided shows only the number of days a case is open, but not the number of days a case is assigned to a specific judge. This may pose a challenge for evaluating a particular judge s data because the amount of time the case spent under any one judicial officer cannot be isolated. Case processing goals are measured in terms of the percent of cases meeting the goal (e.g., no more than 5 percent of criminal cases open more than one year.) Therefore, in addition to potentially providing a skewed picture of the time a judge has spent on a case, the aforementioned case assignment practices may also weaken the statistical reliability of the caseload data. In jurisdictions where judges manage a docket of mixed case types, the caseload data for judges with small case loads of a particular case type might not be a statistically valid or reliable indicator of performance because only slight changes in the data can move a judge in or out of compliance. For example, a judge with only twenty criminal cases on his or her docket would be considered in compliance with performance goals if he or she had only one case (5%) open longer than 12 months, but out of compliance if two cases (10%) were open longer than 12 months at the time the data was extracted. Chief Justice Directive Pg

132 Finally, the point-in-time data can present a narrow, and potentially misleading, picture of a judge s caseload. For example, a judge may manage his or her docket by resolving the simpler cases as quickly as possible so as to allow more time for the other, complex cases. An open caseload of primarily complex cases will most likely consist of cases that, due to their complexity, have been open longer. Without the simpler, shorter-lived cases to mitigate the overall length of open cases in the judge s caseload statistics, it would appear that a judge that handles his or her docket efficiently and conscientiously is instead allowing cases to remain open for an above-average amount of time. Resource Constraints Force Courts to Prioritize Budget constraints in recent years forced many courts to cut staff and reduce services. At the same time, court case load continued to grow, requiring many courts to focus limited resources on cases with a direct impact on public safety and child welfare. Civil cases, since they do not meet this criteria, are often given the lowest priority for case processing, which can, in turn, increase average case processing time and create a backlog of the civil caseload. FUTURE REVIEW These goals and benchmarks are based on the business of the courts as it exists today and the technology currently available to measure it. While these measures are seen as a reasonable means of assessing the timeliness of case processing in the Colorado courts, they do have their limitations. The Branch continually strives to improve on both business practices and the technology to support them. Therefore, the measures established here shall be reviewed and updated as technology allows for improved statistical information or as the business of the courts changes significantly. Chief Justice Directive is hereby repealed. Done at Denver, Colorado this 15th day of July, /s/ Mary J. Mullarkey, Chief Justice Chief Justice Directive Pg

133 Judicial Performance Data under Rule 10(c) Of the Rules Governing the Commissions on Judicial Performance Hon. November 7, 2013 Colorado Judicial Branch Office of the State Court Administrator 1300 Broadway, Suite 1200 Denver, CO

134 Open Caseload Data--General Caveats Time Period Covered and Who is Included The data represents open cases as of November 4, The open case report in ICON/Eclipse was used to compile the data. Magistrates and senior judges were excluded from the data. County judges were removed from the district court data. District judges were removed from the county court data. Certain Cases Removed Reopened cases, cases with an active warrant, cases in which a Notice of Appeal has been filed, and cases in which a Mental Health Stay has been ordered were eliminated from the analysis. Case Timeliness Affected by Factors Outside of the Courtroom Many factors outside of the direct control of the judge can affect case timeliness. For example, criminal cases are often dependent on production of various reports and evaluations, such as pre-sentence investigation reports, sex offender evaluations, and/or mental health evaluations, and juvenile case processing is directly affected by the availability of required treatment services. Statutory deadlines may also influence case timeliness. For example, by law, divorce cases cannot be ruled on until at least 90 days have passed from the date the case is filed with the court. Local Case Assignment Practices May Affect Performance Data Local case assignment practices affect the caseload and case types assigned to judges. In some jurisdictions, cases are processed by a magistrate or by a county court judge before being assigned to another judge or bound over to district court. In certain county courts, cases are assigned to a magistrate or First Appearance Center before they are sent to a county judge. Since the judicial department s data management system does not track historical information on case assignments, the data provided shows only the number of days a case is open, but not the number of days a case is assigned to a specific judge. This may pose a challenge for evaluating a particular judge s data because the amount of time the case spent under the previous judicial officer is not discounted. Case assignment practices might also weaken the statistical reliability of the caseload data. In jurisdictions where judges manage a mixed docket of various case types, the caseload data for judges with small case loads of a particular case type might not be statistically valid nor a reliable indicator of performance because only slight changes in the data can move a judge in or out of compliance. 129 Prepared by: Office of the State Court Administrator, Court Services Division November 7,

135 Higher Numbers of Complex Cases have Increased Case Processing Time Certain case types, such as business litigation, medical malpractice, homicide, and divorce cases with extensive assets, generally take longer to process due to their complexity. Additionally, judges have indicated that district civil litigation has become more complicated in recent years as the issues being brought before the court have increased in complexity, there are more issues to be ruled upon in each case, more motions are being filed, and more attorneys are participating in each case. High profile or highly complex cases may result in longer average disposition times for judges dockets as a whole. 130 Prepared by: Office of the State Court Administrator, Court Services Division November 7,

136 District Name Case Class Hon. For 2014 Election Open Cases as of November 4, 2013 District Criminal Suggested Time Standard No more than 10% of cases open more than one year Cases Open Longer than Time Benchmark Total Open Caseload Percentage Open Longer Than Time Benchmark % Hon. District Civil No more than 20% of cases open more than one year % Hon. Hon. DN Domestic Relations No more than 5% of cases open more than eighteen months No more than 10% of cases open more than eighteen months Hon. General Juvenile No more than 10% of cases open more than one year % Hon. Juvenile Delinquency No more than 5% of cases open more than one year Prepared by: Office of the State Court Administrator, Court Services Division November 7,

137 COURTROOM OBSERVATION Commissioners are required to collect information from direct courtroom observation of judges being evaluated as part of the retention election evaluation process. Courtroom observation is valuable because it gives commissioners an opportunity to observe the judge s: Demeanor Control of judicial proceedings Timeliness Communication skills Preparation Docket management Colorado Revised Statutes defines the criteria to be used in evaluating judges by judicial performance commissions. We have prepared and attached a Trial Judge Courtroom Observation Form for your use during observations that is structured around the criteria in the statute. During your observation you may also want to consider whether the judge: displayed judicial fairness and impartiality toward all parties; acted in the interests of the parties without regard to personal prejudices; listened carefully and impartially; applied rules consistently across people and over cases; maintained a neutral demeanor or expression while in court; was open, clear, and transparent about how the rules of law were applied and how decisions were being made; consistently treated participants equally and displayed behavior appropriate for the situation; was unhurried, patient and careful provided participants with specific information about what to do, where to go, and when to appear; treated everyone with courtesy, dignity, and respect; maintained appropriate courtroom tone & atmosphere; demonstrated appropriate consideration for the rights of all persons in the court; demonstrated an intention to do what is right for everyone involved; helped interested parties understand decisions and what parties must do as a result; used clear language when speaking to jurors, litigants, witnesses, and attorneys; demonstrated respect for people's time and acknowledged their patience as needed; demonstrated interest in the needs, problems, and concerns of participants; seemed prepared for the proceedings; demonstrated appropriate body language (e.g., eye contact, facial expressions, posture, attire); demonstrated respectful voice quality (e.g., pitch, volume, tone); clearly articulated awareness of the practical impact on the parties of the judge's rulings, including the effect of delay and increased litigation expense; clearly explained the reasons for his/her decisions when appropriate. allowed participants to voice their perspectives/arguments; 132

138 demonstrated to the parties that their story or perspective had been heard; behaved in a manner that showed the judge had fully considered the case as presented through witnesses, arguments, and documents before the court; attended, where appropriate, to the participants' comprehension of the proceedings 133

139 JUDICIAL PERFORMANCE COMMISSION JUDICIAL DISTRICT TRIAL JUDGE COURTROOM OBSERVATION Date: Judge: Time: Division: STRONGLY STRONGLY NOT 4 AGREE 3 DISAGREE 2 1 AGREE DISAGREE OBSERVED N/O SECTION A. INTEGRITY 1. Displays fairness and impartiality toward all participants. 2. Avoids impropriety, or the appearance of impropriety. 3. Applies rules consistently for all parties N/O N/O N/O SECTION B. LEGAL KNOWLEDGE 4. Displays adequate knowledge of substantive law and relevant rules of procedure and evidence. 5. Displays awareness of and attentiveness to factual and legal issues before the court. 6. Appropriately applies statutes, judicial precedent, and other sources of legal authority N/O N/O N/O SECTION C. COMMUNICATION SKILLS 7. Explains the reason for delays or interruptions of the proceedings. 8. Pays attention when participants speak. 9. Takes action to ensure his/her remarks are understood. 10. Ensures pro se defendants understand the sequence of the proceedings. 11. Provides participants with specific information about what to do, where to go, and when to appear. 12. Clearly explains all oral decisions and explains what parties must do as a result N/O N/O N/O N/O N/O N/O SECTION D. JUDICIAL TEMPERAMENT 13. Demonstrates an appropriate demeanor on the bench N/O Revised: 12/13 KJW 134

140 14. Demonstrates courtesy toward attorneys, litigants, court staff, and others in the courtroom. 15. Maintains order, punctuality, and decorum in the courtroom N/O N/O SECTION E. ADMINISTRATIVE PERFORMANCE 16. Is punctual. 17. Demonstrates preparation for the hearing or trial. 18. Uses court time efficiently N/O N/O N/O SECTION F. ADDITIONAL COMMENTS Commissioner Revised: 12/13 KJW 135

141 DECISION/OPINION REVIEW Trial Judges District judges are required to submit to the commission three (3) written orders or rulings that he or she has prepared, including one which was reversed on appeal, if applicable. Because county court rulings are often oral, county court judges are required to submit transcripts of three (3) findings of fact, conclusions of law, and orders, also including one which was reversed on appeal, if applicable. If county court judges have written rulings, they may instead submit them. Trial court written orders and rulings may take one of many forms. For example, a district judge may enter oral findings of fact and conclusions of law and ask the parties to a dispute to prepare suggested findings and conclusions. The judge usually selects the findings and conclusions proposed by one side and makes necessary modifications. The changes typically remove adversarial rhetoric and state the findings and conclusions in neutral terms. The wholesale acceptance of one side s proposal although not prohibited may reflect the lack of a carefully considered impartial judgment and is therefore generally disfavored. A district judge may enter a written ruling granting or denying a motion on a question of law. Summary judgment rulings are the most likely source of rulings that reflect a district court judge s ability to analyze and resolve questions of law in writing. County judge rulings are often oral. (In all actions tried upon the facts without a jury, the county court shall orally announce its decision, including findings of fact and conclusions of law, and direct the entry of judgment. No written findings shall be required.) (R. 352, C.R.C.P.) The rulings should be reviewed for clarity so that the parties receiving the ruling would understand the issue being resolved and the reasons for the court s decision. The commission is not to review a ruling to determine whether it is correct in the eyes of the commission -- an appellate court determines whether the substance of the legal ruling is correct. Each commissioner should review the decisions for thoroughness of findings, clarity of expression, logical reasoning, and application of the law to the facts presented. In other words, the rulings should contain enough information about factual allegations or procedural context and the applicable legal principles, along with an explanation of how the judge has applied the law to the facts, to justify the result. The rulings should acknowledge the losing party s arguments and explain why they were rejected. Appellate Judges Appellate justices and judges prepare opinions with the assistance of law clerks and staff attorneys. The justices or judges who join in an opinion are responsible for the entire content regardless of how much or how little he or she actually wrote. Each justice or judge is required to submit five (5) opinions he or she has authored, including one concurrence or dissent, which are separate opinions by the justice or judge disagreeing or further explaining a point of agreement or disagreement with the majority 136

142 opinion. Each state commissioner should review the opinions, as well as any others authored by the appellate justice or judge that the commission in its discretion may select, for compliance with the statutory criteria, legal knowledge, adherence to the record, clarity of expression, logical reasoning, and application of the law to the facts presented. In other words, appellate decisions should be reviewed for clarity, persuasiveness, and tone. The opinions should contain a fair statement of the pertinent facts and a discussion of the applicable legal principles and case law. The opinions should acknowledge the losing party s arguments and explain why they were rejected. The application of the law to the facts of the case should justify the result, and the holding (the court s ruling) should be clear and concise. 137

143 Trial Judge Decision Review District commissioners shall reviews 3 1 written decisions of district and county judges for: Thoroughness of findings Does the judge explain how the testimony or evidence supports the facts? Does the judge explain how he or she relied on one particular item of evidence over another? Does the ruling contain enough information about the factual allegations or procedural context and the applicable legal standard to justify the result? Does the judge explain how he or she applied the law to the facts? Clarity of expression Is the decision readily understandable or ambiguous? Is there minimal legalese so that the average person can make sense of it? Could the average person understand the reasons for the court s decision? Is the ruling clear and concise? Logical reasoning Do the facts sequentially support the decision or are the facts randomly presented to achieve a desired result? Does B follow from A, or does the judge assert something without explaining how he or she got there? Application of the law to the facts presented Does the judge thoroughly explain how he or she has applied the law to the facts to justify the result? Does the justice or judge thoroughly explain how important facts relate to the law? Does the application of the law to the facts of the case justify the result? Finally: Does the decision acknowledge the losing party s arguments and explain why they were rejected? 1 Not less than three decisions selected by the judge, one of which was reversed on appeal, together with the reversing opinion, if applicable. 138

144 Survey Methodology Below is a description of the methodology used in the Attorney and Non-attorney surveys. Each Judicial Performance Survey Report that you receive will contain a methodology section with specific details regarding the judge and survey responses for that judge. I have included this information in the training manual to familiarize you to the type of information that can be found at the end of the reports. This information can be very helpful in analyzing the survey results. I. Attorneys Regarding Trial Judges a. Sample: Research & Polling, Inc. received case data with the names of attorneys who had likely been in each judge s courtroom from the following primary sources: Colorado Judicial Department Colorado District Attorneys Council Colorado Public Defender s Office Denver County Courts District Attorney s Office, Second Judicial District (Denver) The data from these different sources are combined, duplicates removed, and addresses corrected. Only judges that are standing for retention are evaluated during the reporting cycle (the intent was to increase the number of completed attorney evaluations for each retention judge by excluding those not standing for retention). The number of possible judges that attorney respondents could evaluate was increased from seven to 10. Attorneys are first mailed a letter inviting them to complete the survey online. The letter provides the link to the online survey, as well as a unique password to access the survey. Approximately one week later, attorneys are sent an invitation to complete the online survey, which also provides the Web address and their unique password. About a week after the first is sent, a reminder is sent, providing the same information. Potential respondents who do not complete the survey after the second are then telephoned and asked to either complete the survey by phone, or to complete it online. Since 2010, the Judicial Performance Survey reports are based on a moving average, or rolling sample, of data collected over a period of time equal to the justice s or judge s term of office: ten years for a Supreme Court justice, eight years for a COA judge, six years for a district judge, and four years for a county judge. To use a district judge as an example: as survey data is collected it is pooled together for six years. After six years, as new data is added to the judge s survey results, the oldest data in the pool is deleted. 139

145 b. Questions: Respondents evaluated judges on 17 aspects of judicial performance using a grade scale of A, B, C, D, or F. These grades are then converted to a numerical score where A = 4, B = 3, C = 2, D = 1 and Fail = 0. The A through F scale was chosen because it is almost universally recognized and understood. This makes it easy for respondents to complete their questionnaire, and for the public to interpret the results. Respondents were also asked if they considered the judge biased toward the defense or prosecution in criminal cases. In a final question, respondents were asked to indicate how strongly they would recommend that the judge be retained or not retained in office. c. Comments: Respondents are also asked what they considered to be the judge s strengths and weaknesses. By statute, these comments are confidential and only provided to the judge, the District Commission on Judicial Performance, and chief justice or chief judge of the district. They are not released to the public when the rest of the report is released. Before being given to the judge and the Commission, an attempt is made to redact all respondent identifying information from the comments. Since 2005, there have been changes to the number of comment questions asked, though the strengths and weaknesses questions have been posed in every survey. A number is assigned of each attorney respondent comment so that the judge/commission can track both the strengths section and the weaknesses section responses by individuals. Most spelling and typographical errors have been corrected. d. Analysis: The Attorneys Regarding Trial Judges section first shows a table of the percentage distribution for each of the A through F questions, including don t know/not applicable responses. The next column to the right shows the judge s average grade for each question. For comparison purposes, averages were also computed for all district judges standing for retention in 2012 and are shown in the furthest right column on the page. Tables showing the percentage distribution for all questions for all district retention judges are located at the end of this methodology section. The overall question averages are calculated by adding up the averages for each question and dividing by the number of questions. The next table shows the percentage distribution of the responses to the question about recommending retention. The first column of percentages is for the report-judge and the second column displays the percentages for all district retention judges. The next page displays the question averages in horizontal bar-graph form. The percentage distribution to the retention question is then presented in the graph on the next page. The third part of the Attorneys Regarding Trial Judges section of the report lists the comments the attorneys made about the judge s strengths and weaknesses. 140

146 e. Cooperation Rate: The overall cooperation rate for the Attorneys Regarding Trial Judges Survey is calculated as the number of completed survey evaluations divided by the number of possible evaluations. For example, let s say 100 attorneys who had contact with a specific judge were sent an invitation to complete the online survey. Of these, 40 completed and returned the questionnaire. If the rate were simply calculated using these figures, the response rate would be 40%. However, in addition to the 40 attorneys that completed the survey, another 15 indicated on the online survey that they did not have enough experience with the judge to properly evaluate the judge. These 15 respondents are then removed from the denominator (i.e ). This increases the official response rate to 47% (i.e. 40/85=47%). II Non-Attorneys Regarding Trial Judges a. Sample: Research & Polling, Inc. received case data with the names of non-attorneys who had likely been in each judge s courtroom from the following primary sources: Colorado Judicial Department Colorado District Attorneys Council Colorado Public Defender s Office Denver County Courts District Attorney s Office, Second Judicial District (Denver) The data from these different sources are combined, duplicates removed, and addresses corrected. Only judges that are standing for retention are evaluated during the reporting cycle (the intent was to increase the number of completed attorney evaluations for each retention judge by excluding those not standing for retention). The following are current practice in collecting nonattorney survey responses: Court staff, probation officers, and court interpreters were asked to complete the survey online, with the possibility of evaluating up to 10 judges RPI surveyed all non-attorneys with courtroom experience instead of a random sample of each sub-population (i.e. court employees, court interpreters, probation officers, witnesses, law enforcement personnel, jurors, crime victims, litigants, etc.). The only exception to this is the criminal defendants, for which RPI selected a random sample. As stated above, court staff, probation officers, and court interpreters were asked to complete the survey online. They are sent an invitation to complete the online survey, which also provides the Web address and their unique password. About a week after the first is sent, a reminder is sent, providing the same information. Other non-attorneys were surveyed via standard mail. First, they were mailed an initial postcard informing the recipient that he or she would be receiving a questionnaire. Two to three weeks after the postcard was mailed, the potential respondent was sent a personalized introductory letter and a questionnaire with a postage-paid return envelope. If the person did not respond, a second questionnaire and letter 141

147 were sent approximately four weeks later. Questionnaires are barcoded, and if a respondent mailed back two questionnaires, the second one was deleted from the data file. Since 2010, the non-attorney section of the Judicial Performance Survey reports have been based on a moving average, or rolling sample, of survey results collected over a period of time equal to the judge s term of office: six years for a district judge and four years for a county judge. To use a district judge as an example: as survey data is collected it is pooled together for six years. After six years, as new data is added to the judge s survey results, the oldest data in the pool is deleted. b. Questions: Respondents evaluated judges on 19 aspects of judicial performance using a grade scale of A, B, C, D, or F. These grades were then converted to a numerical score where A = 4, B = 3, C = 2, D = 1 and Fail = 0. The A through F scale was chosen because it is almost universally recognized and understood. This makes it easy for respondents to complete their questionnaire, and for the public to interpret the results. Respondents were also asked if they considered the judge biased toward the defense or prosecution in criminal cases. In a final question, respondents were asked to indicate how strongly they would recommend that the justice or judge be retained or not retained in office. c. Analysis: The Non-Attorneys Regarding Trial Judges section first shows a table of the percentage distribution for each of the A through F questions, including don t know/not applicable responses. The next column to the right shows the judge s average grade for each question. For comparison purposes, averages are also computed for all district judges standing for retention and are shown in the furthest right column on the page. Tables showing the percentage distribution for all questions for all district retention judges are located at the end of this methodology section. The overall question averages are calculated by adding up the averages for each question and dividing by the number of questions. The next table shows the percentage distribution of the responses to the questions about prosecution or defense bias and recommending retention. The first column of percentages is for the report-judge and the second column displays the percentages for all district retention judges. The percentages for the retention question are shown. The next page displays the question averages in horizontal bar-graph form. The percentage distribution of the prosecution-defense bias and retention questions are then presented in the graph on the next page. The third part of the Non-Attorneys Regarding Trial Judges section of the report lists the comments the non-attorneys made about the judge s strengths and weaknesses. 142

148 d. Comments: In addition to the A through F questions, non-attorney respondents were asked what they considered to be the judge s strengths and weaknesses. By statute, these comments are confidential and only provided to the judge, the District Commission on Judicial Performance, and the chief justice or chief judge of the district. They are not released to the public when the rest of the report is released. Before being given to the judge and the Commission, an attempt is made to redact all respondent identifying information from the comments. Since 2005 there have been changes to the number of comment questions asked, though the strengths and weaknesses questions have been posed in every survey. A number is assigned to each non-attorney respondent comment so that the judge/commission can track both the strengths section and the weaknesses section responses by individuals. e. Cooperation Rate: The estimated cooperation rate for the non-attorney survey is calculated as the number of completed questionnaires divided by the number of eligible respondents who actually received a questionnaire. The true cooperation rates are likely higher than shown because of the percentage of people who were mailed questionnaires about judges with whom they may not have had sufficient experience. This is due, in part, to many cases being disposed of without the parties having appeared in court, as well as in the case of law enforcement, the data includes all those who were subpoenaed for a case, not just those who appeared. A Final Word Regarding the Survey Results The most frequently asked question that we receive from judges regarding the survey statistics is, What is the margin of sampling error associated with these results? The answer to this question is that a margin of error cannot be calculated since we are not selecting a random sample of eligible respondents (attorneys and non-attorneys) to be surveyed; instead, we are attempting to survey all members of the eligible population. Since we are not generating a random sample, we cannot estimate a percentage or value of the population sampled with a known probability of error. Every eligible respondent in the attorney and non-attorney population is now given an opportunity to evaluate judges with whom they have had a recent experience 1. The only exception is among the criminal defendant population, in which, due to its size, a random sample is selected. The respondents know the purpose and content of the survey, and based on that, decide whether to respond to it. Measures are taken to increase the response rate so that concerns 1 Attorneys have the opportunity to evaluate up to 10 judges on an online survey. Among the non-attorney population, court staff, probation officers, and interpreters also have the opportunity to evaluate up to 10 judges on an online survey. The remaining non-attorney populations are mailed a paper survey with the opportunity to evaluate one judge. 143

149 regarding sampling bias can be mitigated. The higher the response rate, the more confident we can feel the results of the respondents are similar to the results of the non-respondents. Attorneys and non-attorneys receive multiple waves of reminders via or mail to complete the survey. Further, all non-responding attorneys are then contacted on the telephone and given the opportunity to complete the evaluation with the professional interviewer. RPI has contacted hundreds of non-responding attorneys to encourage their participation. We have been informed by the vast majority of the non-responding attorneys that the primary reason for not participating in the survey is because of a lack of sufficient information to evaluate that particular judge. The Judicial Performance Evaluation Survey is a valuable means, perhaps the only practical means, for the Commissions on Judicial Performance to have a summary of results from structured interviews among stakeholders who have courtroom familiarity with each judge being evaluated. We are continuing to take steps to increase cell sizes and cooperation rates for each judge in order to further enhance this evaluation program. 144

150 GUIDELINES FOR CONDUCTING PUBLIC HEARINGS When preparing to conduct a public hearing, you will find the following information to be helpful: 1. Notice. The commission must give at least 20 days notice of each public hearing. It is a good idea to also issue a press release to local news media, including newspapers and radio stations. They might not run the notice or publish the press release but at least you've made the information available. Also, notices should be posted at each courthouse within the judicial district. Keep a record of efforts made to provide public notice. Avoid scheduling the public hearing during religious and other holidays or civic events. 2. Location. The location for public hearings may be determined by each judicial district based on available space and accessibility under the Americans with Disabilities Act (ADA). Schools, courthouses, and public libraries (particularly those with large assembly rooms and audio-visual equipment) are good places. It is important that those persons who testify can hear and be heard. Check that the building is ADA compliant. 3. Electronic Record. The commission shall arrange to have the public hearing electronically recorded and shall make the copies of the recording available to members of the public, if requested. Commissions shall supply a copy of the recording at no cost to any judge who is the subject of the hearing , C.R.S. 4. Sign-up sheets. Speakers who testify should give their names, addresses, phone numbers, and any organizational affiliations. Sign-up sheets should be made available so the chair can call people to the microphone to testify. You will want to attach the sign-up sheets to the minutes along with any additional information given to the district commission by persons who testify. 5. Testimony. At the start of the hearing, the chair should announce guidelines for the meeting. These might include: Request to sign up Time limit All speakers address the chair The chair can also decide what form of procedure will be followed. Since the hearings are electronically recorded, request that individuals address the chair when speaking and begin by stating their name for the record. If the chair announces someone's name before the person speaks, it is easier to follow who is speaking. It also makes for a more organized meeting if people do not speak until recognized by the chair. 145

151 6. Interpreter. It may be necessary to have an interpreter present. 7. Security. You may want to consider having security present at a public hearing. 8. Checklist. Public Hearings Checklist Items 1. Arrange for Hearing Location (Schools, courthouses, public libraries, etc.) ADA Accessible? PA System Available? Security Available? 2. Public Notice (At least 20 days prior to hearing) Posted in all County Courthouses within the Judicial District Write press release including information about the public hearing (date, time, location, etc.) Send press release to local media Follow-up phone reminders to media 3. Prepare sign-up sheets for speakers Consider requiring speakers to identify themselves Chair to use sheet to call speakers forward to testify 4. Arrange for interpreter (if necessary, depending on population demographics) 5. Determine how to electronically record hearing 6. Testimony at hearing Determine which procedure to use Chair to announce guidelines Use sign-up sheets Set time limit Have speakers address the chair Complete 146

152 NARRATIVE REQUIREMENTS A narrative shall consist of four short paragraphs totaling not more than 500 words, as follows: (1) The retention recommendation, including the number of commissioners who voted for and against retention (2) Undergraduate and law schools attended, previous substantial legal or public employment, relevant professional activities or awards, and volunteer or other community work (3) A description of the groups of respondents surveyed, whether any of the groups surveyed had an insufficient response rate, the combined percentage of responses received from each group that recommends a justice or judge be retained, the combined percentage received from each group that recommends that a justice or judge not be retained, and the combined percentage received from each group that makes no recommendation as to whether a justice or judge be retained. Other evaluation methods prescribed by Rule and used by the Commission should also be outlined in this paragraph; (4) A description of the performance of the justice or judge over the past term, including any areas of notably strong or weak performance with respect to the judicial performance criteria contained in (1) and (2), any deficiencies reflected in the interim evaluation, the extent to which such deficiency has been satisfactorily addressed, and any additional information that the commission believes may be of assistance to the public in making an informed voting decision. Any commission issuing a do not retain recommendation shall, at the justice or judge s request, include a response from the justice or judge of not more than 100 words. The commission may then change its vote count or revise the draft narrative, and shall provide the justice or judge with the final narrative within ten days following the receipt of the response. If the commission has identified one or more areas of significantly poor performance, it may recommend to the chief justice or chief judge that the justice or judge be placed on an improvement plan. 147

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156 IMPROVEMENT PLANS Commission identifies area(s) of improvement in writing Commission notifies Executive Director of the Office of Judicial Performance Evaluation Executive Director notifies the judicial educator at the State Court Administrator s Office Judicial Educator, Chief Judge, and judge develop an improvement plan Commission and the OJPE are no longer involved Contents of the plan are confidential Fact that there is an improvement plan may be recited in the narrative 151

157 Proposed Judicial Performance Plan Judge Andre Rudolph The Performance Commission in the 2 nd Judicial District recommended that Judge Rudolph be placed on a performance plan as a condition of receiving a do retain. Judge Rudolph and I met on October 12, 2012, with Chief Judge Marcucci, to begin the process of jointly developing an improvement plan for Judge Rudolph. During the meeting we discussed areas the Commission identified as areas for improvement. The main areas for improvement are: Case Management: Promptly issuing a decision on the case after trial. Maintaining appropriate control over a court proceeding. Promptly ruling on pre-trial motions. Setting reasonable schedules for cases. Application and Knowledge of Law: Being able to identify and analyze relevant facts. Basing decisions on evidence and argument. Willing to reconsider error in fact and law. Issuing consistent sentences when the circumstances are similar. Communications: Making sure all participants understand the proceedings. Providing written communications that are clear, thorough and well-reasoned. Demeanor/Judicial Temperament: Giving proceedings a sense of dignity. Treating parties with respect. Conducting his courtroom with a neutral manner. Consistently applying laws and rules. Diligence: Using good judgment in application of relevant law and rules. Doing the necessary homework and being prepared for his cases. Being willing to handle cases on the docket even when they are complicated and time consuming. Judge Rudolph will work with a mentor judge throughout this next year. The mentor judge role will be to discuss issues raised by the performance commission, provide guidance and practical suggestions on techniques and practices that Judge Rudolph may incorporate into his practice. Judge Rudolph will also schedule meetings and courtroom observations with other county court judges who demonstrate good courtroom control and exhibit appropriate demeanor with individuals in the courtroom. The purpose of the observations would be to identify techniques, skills and practices that Judge Rudolph may incorporate into his practice. As he brings these techniques into his practice he will work with his mentor judge, or the Judicial Educator to receive feedback on whether or not improvement is occurring. Judicial Education and Judge Rudolph will identify and select a mentor judge by February 15,

158 Judge Rudolph will participate in the videotaping program offered by Colorado Judicial Education. Judge Rudolph will schedule a day during a high volume calendar for Judicial Education staff to set up a camera and capture Judge Rudolph on the bench for at least 3 hours of proceedings. Best days are when multiple cases have been set and there is a variety of interactions to be filmed. Judge Rudolph will review footage individually and seek feedback from the mentor judge, other judges or close confidents. After reviewing the film and making changes, Judicial Education would be available to re-film Judge Rudolph and provide new footage for comparison. The comparison will provide demonstration of growth and changed behavior, as well as reinforce areas for continued improvement. The initial video tape session will be completed by March 29, In conjunction with working with a mentor judge and videotaping it may become apparent that a professional coach would be beneficial for Judge Rudolph to work with. The coach would focus specifically on communication styles, body language, demeanor and procedural fairness. Judicial Education can identify and support Judge Rudolph in working with a coach on an as needed basis. A benefit of utilizing a professional coach is receiving the use of assessment tools and structured feedback instruments to better identify areas of strength and weakness. Judge Rudolph will select and attend judicial education courses with educational objectives specific to improving his knowledge, skills and behaviors in case/docket management and application and knowledge of law. The following are suggestions for courses offered at the National Judicial College that may meet the criteria: Special Court Jurisdiction: Advanced (JS 611) June 3-13 Reno, NV Decision Making (JS 618) July 8-11 Reno, NV Logic and Opinion Writing (JS 621) April 29-May 2 Reno, NV Best Practices in Handling Cases with Self-Represented Litigants August Reno, NV Handling Small Claims Cases Effectively April 8-May 24 Web Judicial Education can assist Judge Rudolph with course selection, financial assistance and coordination of scholarship opportunities, if needed. Judicial Education recommends Judge Rudolph seriously look at attending the Special Court Jurisdiction: Advanced course because it covers multiple topics over a week period. This is a course many Colorado County Court Judges attend within the first five years of taking the bench. Participants have found it very helpful in establishing and reviewing their practices for managing dockets and their courtroom. I also think Advanced Trail Bench Skills and the Decision Making courses would be appropriate given the identified areas for improvement. Finally, I realize the 153

159 Logic and Opinion Writing course is not a course many county court judges take because they tend not to issue many written opinions. However, judges who have taken the course find the instruction and review of logic and formulating decision to be very helpful in structuring their thoughts and articulating them orally from the bench. Clearly these are not the only courses available to Judge Rudolph and Judicial Education will assist him to find other opportunities from other judicial education providers as directed. Judicial Education will be available to identify other interventions and improvement strategies throughout the year if needed. 154

160 SECTION 4: REFERENCE MATERIALS

161 Helping Courts Address Implicit Bias Addressing Implicit Bias in the Courts* Fairness is a fundamental tenet of American courts. Yet, despite substantial work by state courts to address issues of racial and ethnic fairness, 1 public skepticism that racial and ethnic minorities receive consistently fair and equal treatment in American courts remains widespread. 2 Why? The Influence of Implicit Associations Perhaps one explanation may be found in an emerging body of research on implicit cognition. During the last two decades, new assessment methods and technologies in the fields of social science and neuroscience have advanced research on brain functions, providing a glimpse into what Vedantam (2010) refers to as the hidden brain. Although in its early stages, this research is helping scientists understand how the brain takes in, sorts, synthesizes, and responds to the enormous amount of information an individual faces on a daily basis. 3 It also is providing intriguing insights into how and why individuals develop stereotypes and biases, often without even knowing they exist. The research indicates that an individual s brain learns over time how to distinguish different objects (e.g., a chair or desk) based on features of the objects that coalesce into patterns. These patterns or schemas help the brain efficiently recognize objects encountered in the environment. What is interesting is that these patterns also operate at the social level. Over time, the brain learns *Preparation of this project brief was funded by the Open Society Institute, the State Justice Institute, and the National Center for State Courts. The views expressed are those of the authors and do not necessarily reflect the views of the funding organizations. The document summarizes the National Center for State Courts project on implicit bias and judicial education. See Casey, Warren, Cheesman, and Elek (2012), available at for the full report of the project

162 Helping Courts Address Implicit Bias to sort people into certain groups (e.g., male or female, young or old) based on combinations of characteristics as well. The problem is when the brain automatically associates certain characteristics with specific groups that are not accurate for all the individuals in the group (e.g., elderly individuals are frail ). Scientists refer to these automatic associations as implicit they operate behindthe-scenes without the individual s awareness. Scientists have developed a variety of methods to measure these implicit attitudes about different groups, but the most common measure used is reaction time (e.g., the Implicit Association Test, or IAT). 4 The idea behind these types of measures is that individuals will react faster to two stimuli that are strongly associated (e.g., elderly and frail) than to two stimuli that are less strongly associated (e.g., elderly and robust). In the case of race, scientists have found that most European Americans who have taken the test are faster at pairing a White face with a good word (e.g., honest) and a Black face with a bad word (e.g., violent) than the other way around. For African Americans, approximately a third show a preference for African Americans, a third show a preference for European Americans, and a third show no preference (Greenwald & Krieger, 2006, pp ). There is evidence that judges are susceptible to these implicit associations, too. Rachlinski, Johnson, Wistrich, and Guthrie (2009), for example, found a strong White preference on the IAT among White judges. Black judges also followed the general African American population findings, showing no clear preference overall (44% showed a White preference but the preference was weaker overall). The question is whether these implicit associations can influence, i.e., bias, an individual s decisions and actions, and there is growing evidence that the answer is yes. Research has demonstrated that implicit bias can affect decisions regarding, for example, job applicants (e.g., Bertrand & Mullainathan, 2004; Rooth, 2010; Addressing Implicit Bias in the Courts 2 156

163 Helping Courts Address Implicit Bias Ziegert & Hanges, 2005), medical treatment (e.g., Green, Carney, Pallin, Ngo, Raymond, Lezzoni, & Banaji, 2007), a suspect s dangerousness (Correll, Park, Judd, & Wittenbrink, 2002; Correll, Park, Judd, Wittenbrink, Sadler, & Keesee, 2007; Plant & Peruche, 2005), and nominees for elected office (Greenwald, Smith, Sriram, Bar- Anan, & Nosek, 2009; Payne, Krosnick, Pasek, Leikes, Akhtar, & Thompson, 2010). Kang (2009) describes the potential problem this poses for the justice system: Though our shorthand schemas of people may be helpful in some situations, they also can lead to discriminatory behaviors if we are not careful. Given the critical importance of exercising fairness and equality in the court system, lawyers, judges, jurors, and staff should be particularly concerned about identifying such possibilities. Do we, for instance, associate aggressiveness with Black men, such that we see them as more likely to have started the fight than to have responded in self-defense? (p. 2) The problem is compounded by judges and other court professionals who, because they have worked hard to eliminate explicit bias in their own decisions and behaviors, assume that they do not allow racial prejudice to color their judgments. For example, most, if not all, judges believe that they are fair and objective and base their decisions only on the facts of a case (see, for example, Rachlinski, et al., 2009, p. 126, reporting that 97% of judges in an educational program rated themselves in the top half of the judges attending the program statistically impossible in their ability to avoid racial prejudice in decisionmaking ). Judges and court professionals who focus only on eliminating explicit bias may conclude that they are better at understanding and controlling for bias in their decisions and actions than they really are. Addressing Implicit Bias in the Courts 3 157

164 Helping Courts Address Implicit Bias Rachlinski, et al. (2009) also found preliminary evidence that implicit bias affected judges sentences. Additional research is needed to confirm these findings. More importantly for the justice system, though, is the authors conclusion that when judges are aware of a need to monitor their own responses for the influence of implicit racial biases, and are motivated to suppress that bias, they appear able to do so (p. 1221). The next section discusses potential strategies judges and court professionals can use to address implicit bias. Reducing the Influence of Implicit Bias Compared to the science on the existence of implicit bias and its potential influence on behavior, the science on ways to mitigate implicit bias is relatively young and often does not address specific applied contexts such as judicial decision making. Yet, it is important for strategies to be concrete and applicable to an individual s work to be effective; instructions to simply avoid biased outcomes or respond in an egalitarian manner are too vague to be helpful (Dasgupta, 2009). To address this gap in concrete strategies applicable to court audiences, the authors reviewed the science on general strategies to address implicit bias and considered their potential relevance for judges and court professionals. They also convened a small group discussion with judges and judicial educators (referred to as the Judicial Focus Group) to discuss potential strategies. These efforts yielded seven general research-based strategies that may help attenuate implicit bias or mitigate the influence of implicit bias on decisions and actions. 5 Strategy 1: Raise awareness of implicit bias Individuals can only work to correct for sources of bias that they are aware exist (Wilson & Brekke, 1994). Simply knowing about implicit bias and its potentially harmful effects on judgment and behavior may prompt individuals to pursue Addressing Implicit Bias in the Courts 4 158

165 Helping Courts Address Implicit Bias corrective action (cf. Green, Carney, Pallin, Ngo, Raymond, Iezzoni, & Banaji, 2007). Although awareness of implicit bias in and of itself is not sufficient to ensure that effective debiasing efforts take place (Kim, 2003), it is a crucial starting point that may prompt individuals to seek out and implement additional strategies. Strategy 1: Potential Actions to Take Individual: Seek information on implicit bias by attending educational sessions, taking the IAT, and reading relevant research. Courts: Provide education on implicit bias that includes judicial facilitators/ presenters, examples of implicit bias across other professions, and exercises to make the material more personally relevant. Strategy 2: Seek to identify and consciously acknowledge real group and individual differences The popular color blind approach to egalitarianism (i.e., avoiding or ignoring race; lack of awareness of and sensitivity to differences between social groups) fails as an implicit bias intervention strategy. Color blindness actually produces greater implicit bias than strategies that acknowledge race (Apfelbaum, Sommers, & Norton, 2008). Cultivating greater awareness of and sensitivity to group and individual differences appears to be a more effective tactic: Training seminars that acknowledge and promote an appreciation of group differences and multicultural viewpoints can help reduce implicit bias (Rudman, Ashmore, & Gary, 2001; Richeson & Nussbaum, 2004). Addressing Implicit Bias in the Courts 5 159

166 Helping Courts Address Implicit Bias Strategy 2: Potential Actions to Take Individual: Participate in diversity training that focuses on multiculturalism, associate with those committed to egalitarian goals, and invest effort in identifying the unique characteristics of different members of the same minority groups. Courts: Provide routine diversity training that emphasizes multiculturalism and encourage court leaders to promote egalitarian behavior as part of a court s culture. Diversity training seminars can serve as a starting point from which court culture itself can change. When respected court leadership actively supports the multiculturalism approach, those egalitarian goals can influence others (Aarts, Gollwitzer, & Hassin, 2004). Moreover, when an individual (e.g., new employee) discovers that peers in the court community are more egalitarian, the individual s beliefs become less implicitly biased (Sechrist & Stangor, 2001). Thus, a systemwide effort to cultivate a workplace environment that supports egalitarian norms is important in reducing individual-level implicit bias. Note, however, that mandatory training or other imposed pressure to comply with egalitarian standards may elicit hostility and resistance from some types of individuals, failing to reduce implicit bias (Plant & Devine, 2001). In addition to considering and acknowledging group differences, individuals should purposely compare and individuate stigmatized group members. By defining individuals in multiple ways other than in terms of race, implicit bias may be reduced (e.g., Djikic, Langer, & Stapleton, 2008; Lebrecht, Pierce, Tarr, & Tanaka, 2009; Corcoran, Hundhammer, & Mussweiler, 2009). Addressing Implicit Bias in the Courts 6 160

167 Helping Courts Address Implicit Bias Strategy 3: Routinely check thought processes and decisions for possible bias When individuals engage in low-effort information processing, they rely on stereotypes and produce more stereotype-consistent judgments than when engaged in more deliberative, effortful processing (Bodenhausen, 1990). As a result, low effort decision makers tend to develop inferences or expectations about an individual early on in the information-gathering process. These expectations then guide subsequent information processing: Attention and subsequent recall are biased in favor of stereotype-confirming evidence and produce biased judgment (Bodenhausen & Wyer, 1985; Darley & Gross, 1983). Expectations can also affect social interaction between the decision maker (e.g., judge) and the stereotyped target (e.g., defendant), causing the decision maker to behave in ways that inadvertently elicit stereotype-confirming behavior from the other person (Word, Zanna, & Cooper, 1973). Individuals interested in minimizing the impact of implicit bias on their own judgment and behaviors should actively engage in more thoughtful, deliberative information processing. Strategy 3: Potential Actions to Take Individual: Use decision-support tools such as notetaking, checklists, and bench cards and techniques such as writing down the reasons for a judgment to promote greater deliberative as opposed to intuitive thinking. Courts: Develop guidelines and/or formal protocols for decision makers to check and correct for implicit bias (e.g., taking the other person s perspective, imagining the person is from a nonstigmatized social group, thinking of counter-stereotypic thoughts in the presence of an individual from a minority social group). Addressing Implicit Bias in the Courts 7 161

168 Helping Courts Address Implicit Bias When sufficient effort is exerted to limit the effects of implicit biases on judgment, attempts to consciously control implicit bias can be successful (Payne, 2005; Stewart & Payne, 2008). To do this, however, individuals must possess a certain degree of self-awareness. They must be mindful of their decision-making processes rather than just the results of decision making (Seamone, 2006) to eliminate distractions, to minimize emotional decision making, and to objectively and deliberatively consider the facts at hand instead of relying on schemas, stereotypes, and/or intuition. Strategy 4: Identify distractions and sources of stress in the decision-making environment and remove or reduce them Tiring (e.g., long hours, fatigue), stressful (e.g., heavy, backlogged, or very diverse caseloads; loud construction noise; threats to physical safety; popular or political pressure about a particular decision; emergency or crisis situations), or otherwise distracting circumstances can adversely affect judicial performance (e.g., Eells & Showalter, 1994; Hartley & Adams, 1974; Keinan, 1987). Specifically, situations that involve time pressure (e.g., van Knippenberg, Dijksterhuis, & Vermeulen, 1999), that force a decision maker to form complex judgments relatively quickly (e.g., Bodenhausen & Lichtenstein, 1987), or in which the decision maker is distracted and cannot fully attend to incoming information (e.g., Gilbert & Hixon, 1991; Sherman, Lee, Bessennof, & Frost, 1998) all limit the ability to fully process case information. Decision makers who are rushed, stressed, distracted, or pressured are more likely to apply stereotypes recalling facts in ways biased by stereotypes and making more stereotypic judgments than decision makers whose cognitive abilities are not similarly constrained. A decision maker may be more likely to think in terms of race and use implicit racial stereotypes (Macrae, Bodenhausen, & Milne, 1995; Mitchell, Nosek, & Banaji, 2003) because race often is a salient, i.e., easily-accessible, attribute. In Addressing Implicit Bias in the Courts 8 162

169 Helping Courts Address Implicit Bias Strategy 4: Potential Actions to Take Individual: Allow more time on cases in which implicit bias might be a concern by, for example, spending more time reviewing the facts of the case before committing to a decision; consider ways to clear your mind (e.g., through meditation) and focus completely on the task at hand. Courts: Review areas in which judges and other decision makers are likely to be over-burdened and consider options (e.g., reorganizing court calendars) for modifying procedures to provide more time for decision making (see Guthrie, Rachlinski, Wistrich, 2007). addition, certain emotional states (anger, disgust) can exacerbate implicit bias in judgments of stigmatized group members, even if the source of the negative emotion has nothing to do with the current situation or with the issue of social groups or stereotypes more broadly (e.g., DeSteno, Dasgupta, Bartlett, & Cajdric, 2004; Dasgupta, DeSteno, Williams, & Hunsinger, 2009). Happiness may also produce more stereotypic judgments, though this can be consciously controlled if the person is motivated to do so (Bodenhausen, Kramer, & Susser, 1994). Given all these potential distractions and sources of stress, decision makers need enough time and cognitive resources to thoroughly process case information to avoid relying on intuitive reasoning processes that can result in biased judgments. Addressing Implicit Bias in the Courts 9 163

170 Helping Courts Address Implicit Bias Strategy 5: Identify sources of ambiguity in the decisionmaking context and establish more concrete standards before engaging in the decision-making process When the basis for judgment is somewhat vague (e.g., situations that call for discretion; cases that involve the application of new, unfamiliar laws), biased judgments are more likely. Without more explicit, concrete criteria for decision making, individuals tend to disambiguate the situation using whatever information is most easily accessible including stereotypes (e.g., Dovidio & Gaertner, 2000; Johnson, Whitestone, Jackson, & Gatto, 1995). In cases involving ambiguous factors, decision makers should preemptively commit to specific decision-making criteria (e.g., the importance of various types of evidence to the decision) before hearing a case or reviewing evidence to minimize the opportunity for implicit bias (Uhlmann & Cohen, 2005). Establishing this structure before entering the decision-making context will help prevent constructing criteria after the fact in ways biased by implicit stereotypes but rationalized by specific types of evidence (e.g., placing greater weight on stereotype-consistent evidence in a case against a Black defendant than one would in a case against a White defendant). Strategy 5: Potential Actions to Take Individual: Commit to decision-making criteria before reviewing case-specific information. Courts: Develop protocols that identify potential sources of ambiguity; consider the pros (e.g., more understanding of issues) and cons (e.g., familiarity may lead to less deliberative processing) of using judges with special expertise to handle cases with greater ambiguity. Addressing Implicit Bias in the Courts

171 Helping Courts Address Implicit Bias Strategy 6: Institute feedback mechanisms Providing egalitarian consensus information (i.e., information that others in the court hold egalitarian beliefs rather than adhere to stereotypic beliefs) and other feedback mechanisms can be powerful tools in promoting more egalitarian attitudes and behavior in the court community (Sechrist & Stangor, 2001). To encourage individual effort in addressing personal implicit biases, court administration may opt to provide judges and other court professionals with relevant performance feedback. As part of this process, court administration should consider the type of judicial decision-making data currently available or easily obtained that would offer judges meaningful but nonthreatening feedback on demonstrated biases. Transparent feedback from regular or intermittent peer reviews that raise personal awareness of biases could prompt those with egalitarian motives to do more to prevent implicit bias in future decisions and actions (e.g., Son Hing, Li, & Zanna, 2002). This feedback should include concrete suggestions on how to improve performance (cf. Mendoza, Gollwitzer, & Amodio, 2010; Kim, 2003) and could also involve recognition of those individuals who display exceptional fairness as positive reinforcement. Feedback tends to work best when it (a) comes from a legitimate, respected authority, (b) addresses the person s decision-making process rather than simply the decision outcome, and (c) when provided before the person commits to a decision rather than afterwards, when he or she already has committed to a particular course of action (see Lerner & Tetlock, 1999, for a review). Note, however, that feedback mechanisms which apply coercive pressure to comply with egalitarian standards can elicit hostility from some types of individuals and fail to mitigate implicit bias (e.g., Plant & Devine, 2001). By inciting hostility, these imposed standards may even be counterproductive to egalitarian goals, generating backlash in the form of increased explicit and implicit prejudice (Legault, Gutsell, & Inzlicht, 2011). Addressing Implicit Bias in the Courts

172 Helping Courts Address Implicit Bias Strategy 6: Potential Actions to Take Individual: Seek feedback through, for example, participating in a sentencing round table discussing hypothetical cases or consulting with a skilled mentor or senior judge about handling challenging cases; ask for feedback from colleagues, supervisors and others regarding past performance; document and review the underlying logic of decisions to ensure their soundness. Courts: Periodically review a judge s case materials and provide feedback and suggestions for improvement as needed; develop a bench-bar committee to oversee an informal internal grievance process and work with judges as needed; convene sentencing round tables to discuss hypothetical cases involving implicit bias issues and encourage more deliberate thinking. Strategy 7: Increase exposure to stigmatized group members and counter-stereotypes and reduce exposure to stereotypes Increased contact with counter-stereotypes specifically, increased exposure to stigmatized group members that contradict the social stereotype can help individuals negate stereotypes, affirm counter-stereotypes, and unlearn the associations that underlie implicit bias. Exposure can include imagining counterstereotypes (Blair, Ma, & Lenton, 2001), incidentally observing counter-stereotypes in the environment (Dasgupta & Greenwald, 2001; Olson & Fazio, 2006), engaging with counter-stereotypic role models (Dasgupta & Asgari, 2004; Dasgupta & Rivera, 2008) or extensive practice making counter-stereotypic associations (Kawakami, Dovidio, Moll, Hermsen, & Russin, 2000). Addressing Implicit Bias in the Courts

173 Helping Courts Address Implicit Bias Strategy 7: Potential Actions to Take Individual: View images (e.g., by hanging photos, creating new screen savers and desk top images) of admired individuals (e.g., Martin Luther King, Jr.) of the stereotyped social group; spend more time with individuals who are counter-stereotypic role models; practice making positive, i.e., counter-stereotypic, associations, with members of minority social groups. Courts: Assess visual and auditory communications for implicit bias and modify to convey egalitarian norms and present counter-stereotypic information; increase representation of stigmatized social groups in valued, authoritative roles in the court to foster positive intergroup relations and provide immediately accessible counter-stereotype examples. For individuals who seek greater contact with counter-stereotypic individuals, such contact is more effective when the counter-stereotype is of at least equal status in the workplace (see Pettigrew & Tropp, 2006). Moreover, positive and meaningful interactions work best: Cooperation is one of the most powerful forms of debiasing contact (e.g., Sherif, Harvey, White, Hood & Sherif, 1961). In addition to greater contact with counter-stereotypes, this strategy also involves decreased exposure to stereotypes. Certain environmental cues can automatically trigger stereotype activation and implicit bias. Images and language that are a part of any signage, pamphlets, brochures, instructional manuals, background music, or any other verbal or visual communications in the court may inadvertently activate implicit biases because they convey stereotypic information (see Devine, 1989; Rudman & Lee, 2002; Anderson, Benjamin, & Bartholow, 1998; for examples of how such communications Addressing Implicit Bias in the Courts

174 Helping Courts Address Implicit Bias can prime stereotypic actions and judgments; see also Kang & Banaji, 2006). Identifying these communications and removing them or replacing them with non-stereotypic or counter-stereotypic information can help decrease the amount of daily exposure court employees and other legal professionals have with the types of social stereotypes that underlie implicit bias. Conclusion Research shows that individuals develop implicit attitudes and stereotypes as a routine process of sorting and categorizing the vast amounts of sensory information they encounter on an ongoing basis. Implicit, as opposed to explicit, attitudes and stereotypes operate automatically, without awareness, intent, or conscious control and can operate even in individuals who express low explicit bias (Devine, 1989). Because implicit biases are automatic, they can influence or bias decisions and behaviors, both positively and negatively, without an individual s awareness. This phenomenon leaves open the possibility that even those dedicated to the principles of a fair justice system may, at times, unknowingly make crucial decisions and act in ways that are unintentionally unfair. Thus although courts may have made great strides in eliminating explicit or consciously endorsed racial bias, they, like all social institutions, may still be challenged by implicit biases that are more difficult to identify and change. Devine (1989) argues that prejudice need not be the consequence of ordinary thought processes if individuals actively take steps to avoid the influence of implicit biases on their behavior. Avoiding the influence of implicit bias, however, is an effortful, as opposed to automatic, process and requires intention, attention and time. Combating implicit bias, much like combating any habit, Addressing Implicit Bias in the Courts

175 Helping Courts Address Implicit Bias involves becoming aware of one s implicit bias, being concerned about the consequences of the bias, and learning to replace the biased response with non-prejudiced responses ones that more closely match the values people consciously believe that they hold (Law, 2011). Once judges and court professionals become aware of implicit bias, examples of strategies they can use to help combat it and encourage egalitarianism are: Consciously acknowledge group and individual differences (i.e., adopt a multiculturalism approach to egalitarianism rather than a color-blindness strategy in which one tries to ignore these differences) Routinely check thought processes and decisions for possible bias (i.e., adopt a thoughtful, deliberative, and self-aware process for inspecting how one s decisions are made) Identify sources of stress and reduce them in the decision-making environment Identify sources of ambiguity and impose greater structure in the decisionmaking context Institute feedback mechanisms Increase exposure to stereotyped group members (e.g., seek out greater contact with the stigmatized group in a positive context) Those dedicated to the principles of a fair justice system who have worked to eliminate explicit bias from the system and in their own decisions and behaviors may nonetheless be influenced by implicit bias. Providing information on implicit bias offers judges and court staff an opportunity to explore this possibility and to consider strategies to address it. It also provides an opportunity to engage judges and court professionals in a dialog on broader race and ethnic fairness issues in a thoughtful and constructive manner: Addressing Implicit Bias in the Courts

176 Helping Courts Address Implicit Bias Recognizing that implicit bias appears to be relatively universal provides an interesting foundation for broadening discussions on issues such as minority over-representation (MOR), disproportionate minority contact (DMC), and gender or age discrimination. In essence, when we look at research on social cognitive processes such as implicit bias we understand that these processes are normal rather than pathological. This does not mean we should use them as an excuse for prejudice or discrimination. Rather, they give us insight into how we might go about avoiding the pitfalls we face when some of our information processing functions outside of our awareness. (Marsh, 2009, p. 18) 1 See, for example, state court reports of racial fairness task forces and commissions, available through the National Center for State Courts at and the National Center for State Courts Interactive Database of State Programs to address race and ethnic fairness in the courts, available at 2 See, for example, National Center for State Courts (1999, p. 37), reporting on a national survey of public attitudes about state courts that found 47% of Americans surveyed did not believe that African Americans and Latinos receive equal treatment in America s state courts, 55% did not believe that non-english speaking persons receive equal treatment, and more than two-thirds of African Americans thought that African Americans received worse treatment than others in court. State surveys, such as the public opinion survey commissioned by the California Administrative Office of the Courts report similar findings: A majority of all California respondents stated that African Americans and Latinos usually receive less favorable results in court than others, approximately two-thirds believed that non-english speakers receive less favorable results, and, a much higher proportion of African Americans, 87%, thought that African Americans receive unequal treatment (see Rottman, 2005, p. 29). 3 Social science research on implicit stereotypes, attitudes, and bias has accumulated across several decades into a compelling body of knowledge and continues to be a robust area of inquiry, but the research is not without its critics (see What Are the Key Criticisms of Implicit Bias Research? in Appendix B in Casey, et al., 2012). There is much that scientists do not yet know. This project brief and the full report on which it is based are offered as a starting point for courts interested in exploring implicit bias and potential remedies, with the understanding that advances in technology and neuroscience promise continued refinement of knowledge about implicit bias and its effects on decision making and behavior. 4 See How Is Implicit Bias Measured in Appendix B in Casey, et al. (2012) for more information on measures of implicit bias. 5 See Appendix G in Casey, et al. (2012) for more information on the strategies. Addressing Implicit Bias in the Courts

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