Secrecy abounds for voters in judicial retention

The following column is about a collaborative story between Colorado Politics and MetroWest Newspapers that investigated flaws in Judge Tomee Crespin’s performance evaluation in the 17th Judicial District.

By Liam Adams
and Michael Karlik

Judge Tomee Crespin’s page on the website of the Office of Judicial Performance Evaluation (OJPE) seemed straightforward. There were survey response reports, a 500-word narrative from the 17th Judicial District performance evaluation commission, and a 100-word response from the judge herself.

But we thought voters, who determine whether a judge is retained or not, deserved to know more about why the commission decided 5-3 that Crespin “does not meet performance standards.” She is one of only two judges in Colorado not recommended for reappointment this year.

Liam Adams
Liam Adams

We didn’t think our story would be an open-and-shut case. Neither did we expect such secrecy from a governmental branch whose purpose is to oversee the implementation of laws and enforce them. Not to mention judges are expected to make rulings and hold proceedings in public.

We first realized the OJPE is more protected than we thought when we tried calling commission members. In each of Colorado’s 22 judicial districts, 10 people serve on a volunteer performance evaluation commission. Four members are attorneys; six are not. We wanted to hear from 17th Judicial District commissioners about how they voted on Crespin’s retention — and why.

Michael Karlik
Michael Karlik

Yet, after leaving a message for one commissioner, we soon received a call from Kent Wagner, OJPE’s executive director. He made a few things clear: Commission members can’t and won’t talk; the commission’s “voice” is the Blue Book narrative sent to all Colorado voters; contact him if we have questions.

We ultimately weren’t deterred from calling other commissioners, but we still had little luck. One spoke with us, but he wouldn’t talk about Crespin’s case specifically. So we went the records route.

We requested communications between commissioners about Crespin, and the scorecards and matrices commissioners complete for evaluations. The OJPE said it would cost $550 for the agency to review the records responsive to our request. Not only was that out of our price range, it turns out the records would have revealed very little. Wagner later informed us the OJPE was only obligated to provide email correspondences about meeting times. And the email addresses would be redacted. Imagine: pages full of black highlights except for, “How about Thursday at 10 a.m.?”

Such redactions are permitted because the Colorado Judicial Department is subject to P.A.I.R.R. 2 (Public Access to Information and Records), not CORA (the Colorado Open Records Act). Legislative efforts to make the judicial branch subject to CORA have failed. In the end, the only thing we obtained through a records request was a complaint Crespin filed with the state performance evaluation commission and that commission’s response.

Another problem inherent in covering the judicial department is the number of people reluctant to speak on the record. While we were able to obtain information from numerous off-the-record sources, those individuals clearly were worried about information being traced back to them. Their jobs could be in jeopardy or they could face retaliation, even for speaking out about unethical behavior they were witnessing.

That raises multiple issues of public concern: If judges must enforce the law in public but possibly endure retaliation in private (as Crespin alleges she experienced), how is that fair? If employees of the courts can’t go to the media and don’t have a satisfactory internal resolution to their problem, should the legislature step in?

The judicial department publishes an annual judicial discipline report, which publicly lists the names of those few judges whose conduct merits a public censure and mentions without name those issued a “private censure.” What conduct was addressed privately?

In 2018, one judge had “excessive absenteeism for extra-judicial activities.” A judge in 2019 a “promoted extensive drinking at a conference hotel among court staff which led to a consensual sexual relationship with a staff member” that resulted in an “increasingly stressful employment relationship.”

Voters do not see those reprimands on a judge’s retention narrative. Arguably, those types of misconduct are just as important to a judge’s evaluation as, perhaps, their demeanor in the courtroom. But even though we heard from one retired judge — who himself served on a retention commission — that voters should use all available information to make their decisions, it’s quite clear voters have nowhere close to complete information.

We heard from multiple sources in the judicial branch that women and judges of color have a harder time with the retention system than white men. But proving that is difficult without knowing everything that goes into a judge’s evaluation. This not only makes it harder for the news media to do its job, it ensures that most ordinary Coloradans — who have a wealth of information available to them when evaluating legislators, governors and ballot initiatives — will decide who runs the third branch of state government based on only 500 words.

Liam Adams is a reporter for MetroWest Newspapers. Contact him at ladams@metrowestnewspapers.com; Michael Karlik is a reporter for Colorado Politics. Contact him at michael.karlik@coloradopolitics.com.

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