Judging the Judges: In Colorado, Nonlawyers Play a Central Role

FEW lawyers know more about Colorado judges than Ed Harshbarger, a printer from Brighton, Colo. During the day Mr. Harshbarger works in the composing room of the Denver Post; in his free time he is a judge of judges, a nonlawyer member of Colorado's State Commission on Judicial Performance. Since 1986, when he began helping a citizens' group evaluate judges, Harshbarger has judged more than 75 judges.

Harshbarger does not receive or expect any payment for the time he spends meeting with other members of the statewide evaluation committee or with judges. Neither do several hundred other volunteers who make up the 22 local commissions that evaluate Colorado judges. ``It's a public service you're performing,'' says Harshbarger. ``The main requirement is to go in there with an open mind and with as much objectivity as you can muster.''

As outsiders to the justice system, Harshbarger and other nonlawyers bring community expectations into the evaluation process. ``To me, the true judge is a real public servant,'' Harshbarger says. ``They aren't in there for personal gain or for the ego; they're in there to be a part of good government.''

Nonlawyers, or average citizens, have always been important to Colorado's judicial evaluation process. In 1980, they were included on Colorado's Judicial Planning Council, which developed recommendations for evaluating judges. A few years later, the Colorado Judicial Institute - a citizens' group - conducted a pilot program, evaluating judges in several districts. And in 1988, when the Colorado Legislature passed a law establishing a statewide evaluation program, it gave nonlawyers the leading role in the evaluation process. According to the law, nonlawyers must outnumber lawyers six to four on each evaluation commission.

`Civilian' participation rare

Nonlawyers join with lawyers to evaluate judges in only four other states. Alaska started the trend in 1975, followed by Utah, Arizona, and Hawaii. When Tennessee switches in 1996 from partisan election of appellate judges to merit appointments, a commission that includes nonlawyers will begin evaluating newly appointed appellate judges.

These states are among the 34 that appoint all or, at least, some state judges based on merit. In most of these ``merit-system'' states, judges must stand before voters periodically in noncompetitive retention elections. ``There is a move toward evaluating judges who must stand for retention and providing information to voters,'' says Kathleen Sampson, director of information for the American Judicature Society, the only national court-improvement group that includes nonlawyers.

Ms. Sampson explains that judicial evaluations provide voters with a balanced view of judges' performance. Most state judicial systems have extensive rules that limit what judges can say during a campaign. ``It's not really dynamic for judges to say, `I can really move cases and I'm fair,''' Sampson says. ``Judicial evaluations fill a knowledge gap on the part of voters, giving them meaningful information to guide their voting decisions.''

In Colorado, the evaluation process begins almost one year before scheduled retention elections. According to Jim Jezek, a policy analyst for the Office of State Court Administrator, information about each judge comes from several sources. First, questionnaires are sent to lawyers, jurors, litigants, court personnel, and law-enforcement personnel. Responses are analyzed by a private consultant, then forwarded to the commissions, along with docket-management statistics. The commission then interviews a variety of people who have had regular contact with the judge. After an in-depth interview with the judge, the commission releases its retention recommendation and a narrative profile of the judge to the public. If commission members can't reach a decision, they can choose to make a ``no opinion'' recommendation.

Recommendations are based on judges' skills, abilities, and work habits. Judges' decisions on individual cases are off-limits, except as an indication of their knowledge of the law. While judges are held accountable for performing their tasks diligently, their independence as decision makers is respected. Judges are evaluated in a variety of areas such as courtroom-management skills, integrity, legal ability, and communication skills.

Nonlawyers rely on attorneys to evaluate judges' legal abilities. But in all other areas, nonlawyers are equal partners in the evaluation process. ``I think any human being recognizes when another person is being arrogant or is compassionate and treats people with dignity and respect,'' says William Neighbors, chair of the Colorado's State Commission on Judicial Performance and former justice of the Supreme Court of Colorado. ``Lay people bring experiences from their lives and occupations, adding a common sense perspective to the judicial system,'' he says.

Not all that goes on between judges and commissions is open to the public. Evaluations provide judges with very personal feedback on how they are doing and how they can become better judges. In the past decade, Judge Philip Roan of Adams County District Court in Brighton, Colo., has been evaluated several times. Before evaluations were required by law, he encouraged the judges in his circuit to take part in one of Colorado's first pilot evaluation projects. He led the way by volunteering himself. ``I felt my own evaluation was extremely fair,'' Judge Roan says. ``I learned a lot and, hopefully, I've become a better judge.''

Enthusiasm for Colorado's judicial-evaluation program isn't universal. Some judges aren't happy with the commission's opinion of their performance: Of the 87 Colorado judges evaluated this year, three received recommendations that they not be retained.

Judges in other states view Colorado's evaluation process with mixed feelings. Many don't mind nonlawyers contributing to the process, but some don't like the idea of evaluations conducted independent of a state judicial system. ``Colorado left judges out of the loop,'' says Judge Alexander P. White, chair of the American Bar Association's Judicial Performance Evaluation Committee.

Judge White is an advocate of unbiased performance evaluations and a critic of sloppy or biased evaluations. He believes that the public must consider not just the judge's merits, but the evaluation's merits. Last year, during his reelection in Cook County, Ill., he went through a gauntlet of evaluations, and he questions the fairness and accuracy of some of them. ``I was interviewed by 15 bar associations - some of which had their own agendas,'' he says.

Getting information out

In the weeks before the general elections this November, Colorado's evaluation commissions had only one agenda: Each commission was scrambling to get their recommendations in newspapers or printed as flyers and distributed throughout communities. ``The soft spot in the whole process is getting the information out,'' Harshbarger says.

The Colorado Legislature provides very little money to commissions to help publicize their recommendations. Still, the commissions made their recommendations felt this year. Two of the three judges who received ``do not retain'' recommendations were voted off the bench. Harshbarger is encouraged by voters' response to the commissions' work. ``Finally, people are starting to look at the issues and performance and deciding to do something about it,'' he says.