Second Regular Session Seventieth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 16-0865.01 Jane Ritter x4342 HOUSE BILL 16-1235 HOUSE SPONSORSHIP Van Winkle, SENATE SPONSORSHIP Kefalas and Lundberg, House Committees Senate Committees State, Veterans, & Military Affairs A BILL FOR AN ACT Concerning a representational state judicial performance commission to increase the flow of information between judicial performance commissions to enhance the commissions' ability to make informed judicial retention recommendations. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) The bill makes revisions to various functions of the state commission on judicial performance (state commission) and the district commissions on judicial performance (district commission), referred to collectively as the "commissions". The changes include: Changing the makeup of the state commission to include one representative from each judicial district to ensure representation from the entire state; Establishing guidelines for when attorneys and nonattorneys are appointed to the state commission by a district commission; Not allowing the chief justice to select individuals for the state commission, which reviews the chief justice's performance; Mandating annual public meetings at which the public is invited to attend and confidentially comment on justices and judges; Requiring the state commission to obtain and verify required financial disclosures, criminal histories, and driving histories for each justice or judge reviewed by the commissions; Requiring judicial evaluations to take place every 2 years and to be made public at that time; Mandating that the commissions make a "do not retain" recommendation when a majority of commissioners determine that it is more probable than not that a justice or judge: Knowingly committed a dishonest act during the performance of judicial duties; Knowingly made inaccurate or insufficient public financial disclosures; or Was improperly influenced by a conflict of interest in performing a judicial act; and Mandating that the commissions make a "do not retain" recommendation when two-thirds of the attorneys who complete a questionnaire or survey for the commission recommend that the justice or judge is not retained. The bill is funded from any fees and cost recoveries for electronic filings, network access and searches of court databases, electronic searches of court records, and any other information technology services performed pursuant to statute. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, add 13-5.5-101.3 as follows: 13-5.5-101.3. Definitions. As used in this article, unless the context otherwise requires: (1) "Attorney" means a person admitted to practice law before the courts of this state. (2) "District commission" means a district commission on judicial performance established in section 13-5.5-104. (3) "Interim evaluation" means a judicial evaluation conducted pursuant to section 13-5.5-106.3. (4) "Judicial performance evaluation" or "evaluation" means either an interim evaluation or a retention year evaluation of a justice or judge. (5) "Office" means the office of judicial performance evaluation established in section 13-5.5-101.5. (6) "Retention year evaluation" means a judicial evaluation conducted pursuant to section 13-5.5-106. (7) "State commission" means the state commission on judicial performance established pursuant to section 13-5.5-102. SECTION 2. In Colorado Revised Statutes, 13-5.5-101.5, amend (1) and (3) as follows: 13-5.5-101.5. 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 is established in the judicial department. The state commission on judicial performance established pursuant to section 13-5.5-102 shall oversee the office. (3) Subject to the supervision of the state commission state commission's supervision, the office shall: (a) Staff the state and district commissions commission, when directed to do so by the state commission, as follows: (I) A staff member or the executive director of the state commission may not concurrently serve in any other position related to the courts or in any position where the staff member or executive director is supervised by, overseen by, or works alongside a justice or judge. A staff member or executive director of the state commission may not report to any justice or judge for additional duties. (II) Assign each district administrator and his or her staff, as described in section 13-5.5-104 (2), to perform staff duties for one performance commission in a different judicial district. A district administrator or his or her staff must not serve as performance commission staff for the judicial district in which he or she currently works. (b) Train members of the state and district commissions; (c) Collect and disseminate data on judicial performance evaluations annually. The data collected regarding each justice and judge must include the following: (I) Public financial disclosures filed pursuant to part 2 of article 6 of title 24, C.R.S.; (II) At least one independent credit report from a consumer reporting agency, as defined in section 12-14.3-102 (4), C.R.S.; (III) The justice's or judge's criminal history record from the public website maintained by the Colorado bureau of investigation; (IV) The justice's or judge's driving history record from the division of motor vehicles in the department of revenue; (V) All completed surveys and questionnaires, and any reports, comments, or complaints filed with the office concerning a justice or judge; and (VI) The district commission's and the state commission's completed judicial performance evaluations. (c.5) Disseminate the data collected pursuant to paragraph (c) of this subsection (3) on judicial performance evaluations to all commissioners who evaluate a justice or judge. The office shall disseminate records regarding court of appeals judges or supreme court justices to all district commissioners. The records are confidential unless referred to in an interim or retention year evaluation regarding a violation of law or an inadequacy of public financial disclosures. The office shall disseminate completed evaluations of each justice and judge to the public in a manner consistent with this article. (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; and (g) Verify the accuracy and completeness of the public financial disclosures filed by each justice and judge with the secretary of state by comparing such disclosures with at least one credit report from a consumer reporting agency, searching property records, and performing any other investigation necessary to verify said accuracy and completeness. If the office finds any inaccuracies or discrepancies in the public financial disclosures filed by a justice or judge, the office shall notify any commissioners who evaluate that justice or judge. SECTION 3. In Colorado Revised Statutes, 13-5.5-102, amend (1) (a) (II) (A) and (1) (b) (I); and repeal and reenact, with amendments, (1) (a) (I) as follows: 13-5.5-102. State commission on judicial performance. (1) (a) (I) The state commission on judicial performance is established. The state commission consists of one representative of each district commission. On or before November 30, 2016, each odd-numbered judicial district shall appoint a nonattorney member of the district commission to represent that judicial district on the state commission. On or before November 30, 2016, each even-numbered judicial district shall appoint an attorney member of the district commission to represent that judicial district on the state commission. Each district commission shall appoint its member to serve on the state commission by a majority vote. (II) (A) All Members of the state commission shall serve terms of four two years. The term of each member of the state commission shall expire expires on November 30 of an odd-numbered even-numbered year, and the term of a member appointed to replace a member at the end of the member's term shall commence begins on December 1 of the year in which the previous member's term expires. When a member's two-year term is nearing completion, if the current representative is an attorney, the district commission shall select a nonattorney to serve the subsequent two-year term. If the current representative is a nonattorney, the district commission shall select an attorney to serve the subsequent two-year term. District commission members who were appointed by the chief justice may not serve at any time on the state commission. (b) (I) Any A vacancy on the state commission shall be filled by the original appointing authority district commission whose state commission representative position became vacant, but a member of the state commission shall not serve more than two full nonconsecutive 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 the state commission, the state commission shall notify the appointing authority of the vacancy district commission that appointed the person vacating, and the appointing authority district commission 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 If the vacancy occurs before the completion of a term, the appointing district commission must select an attorney to replace an attorney or a nonattorney to replace a nonattorney. SECTION 4. In Colorado Revised Statutes, 13-5.5-103, repeal and reenact, with amendments, (1) (c), (1) (f), (1) (g), (1) (j), (1) (o) (III), and (1) (p) as follows: 13-5.5-103. 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: (c) To ensure all district commissions obtain sufficient information and support to facilitate and promote an open discourse regarding judicial performance evaluations; (f) To ensure that a district commission does not solely rely on aggregate numerical totals from survey results to make a recommendation on any justice or judge; (g) In addition to reviewing up to two opinions or orders submitted by a justice or judge, to accept and consider all orders or opinions of any justice or judge that are submitted by a person other than a justice or judge, the justice's or judge's family, or staff; (j) To review at least five written opinions or orders of each justice or judge that are either selected at random or are provided by a person other than the justice's or judge's family or staff; (o) (III) The state commission may not adopt a rule that: (A) Attempts to limit the information a commissioner can rely on to support his or her recommendation; (B) Encourages commissioners to give greater or lesser weight to any information; or (C) Discourages commissioners from advocating for or against a particular justice or judge in a commission meeting. (p) To ensure that district commissions make independent recommendations regarding justices and judges without any improper influence from justices, judges, judicial staff, political entities, or the state commission. The commissioners shall base their recommendations on the quality of the justice's or judge's work using primarily the criteria enumerated in section 13-5.5-105.5. The state commission does not have the power or duty to review actual determinations made by the district commissions. SECTION 5. In Colorado Revised Statutes, 13-5.5-104, amend (1) (a) (I) and (2) as follows: 13-5.5-104. District commission on judicial performance. (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 A district commission shall consist consists of ten members, each of whom must reside in the judicial district where the judges he or she evaluates preside. The speaker of the house of representatives and the president of the senate shall each appoint one attorney and one nonattorney to a district commission. 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. (2) The district administrator of each judicial district and his or her staff shall serve as the staff for the district commission A district administrator or a member of his or her staff may not serve as district commission staff for the judicial district where he or she currently works. The office shall assign the district administrator and his or her staff to serve as staff for one district performance commission in a different judicial district pursuant to section 13-5.5-101.5 (3). SECTION 6. In Colorado Revised Statutes, 13-5.5-105, amend (1) as follows: 13-5.5-105. 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 13-5.5-103 (1) (f) (1) (c) and (1) (o) and the state commission's review of the deliberation procedures pursuant to section 13-5.5-103 (1) (p), a district commission has the following powers and duties: (a) To review case management statistics and data provided by the state court administrator for individual district and court judges, county court judges, provided by the state court administrator appellate judges, and justices; (b) To review written judicial opinions and orders of district and county court judges within the judicial district and appellate judges and justices; (c) To collect information from direct courtroom observation of district and county court judges within the judicial district and, at the state commission's request, information from direct courtroom observation of appellate judges and justices; (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; (g) To hold at least one public meeting annually to which the public is invited and encouraged to attend and comment concerning judges or justices or procedures followed by the commission; (h) In addition to reviewing up to two opinions or orders submitted by a judge, to accept and consider all orders or opinions of a judge that are submitted by a person other than that judge or the judge's family or staff; (i) To review at least five written opinions or orders of each judge that are either selected at random or are provided by any person other than the judge's family or staff; (j) To select, by a majority vote, a member of the district commission to represent the district on the state commission in accordance with the provisions of section 13-5.5-102 (1); and (k) To make recommendations to the district commission's representative on the state commission concerning matters of interest, including rules and procedures to be followed, information on justices or judges that would be helpful, and whether to recommend retention for a particular appellate justice or judge. A district commission has the discretion to review appellate decisions to make such a recommendation. SECTION 7. In Colorado Revised Statutes, 13-5.5-105.5, add (3) and (4) as follows: 13-5.5-105.5. Judicial performance criteria. (3) If a majority of the district or state commission is convinced through the performance of its duties that it is more probable than not that a justice or judge is perceived by the public as unfair or lacking proper judicial temperament, even if the commissioners are unable to find fault with the rulings that have been presented to the commission, then the commissioners must consider a "do not retain" recommendation. (4) A district commission or the state commission shall make a "do not retain" recommendation in any of the following circumstances: (a) If a majority of the members of the district or state commission become convinced through the performance of their duties that it is more probable than not that a justice or judge performed a knowingly dishonest act during the performance of his or her judicial duties. For the purposes of this paragraph (a), a dishonest act includes a knowingly false statement of fact or law in an order. (b) If a majority of the members of the district or state commission become convinced through the performance of their duties that it is more probable than not that a justice or judge knowingly made inaccurate or insufficient public financial disclosures; (c) If a majority of the members of the district or state commission become convinced through the performance of their duties that it is more probable than not that a justice or judge performed an act during the course of his or her judicial duties that was improperly influenced by a conflict of interest; or (d) If two-thirds or more of the attorneys who completed surveys or questionnaires regarding a particular justice or judge recommend that the justice or judge not be retained. SECTION 8. In Colorado Revised Statutes, 13-5.5-106, amend (1) (a) (I), (1) (a) (III), (1) (c), (2) (a) (I), (2) (a) (III), and (2) (c) as follows: 13-5.5-106. Evaluation in retention election years. (1) (a) (I) The state commission shall conduct an a retention year 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". (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 shall hold a public hearing regarding all justices and appellate justices and judges who are subject to retention year evaluations. The state commission shall arrange to 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 The identity of any person who comments at such a hearing must remain confidential unless such person requests to waive confidentiality. The state commission shall not reveal the names of those who comment to any justice or judge. (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 the August 1 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 1-40-124.5, C.R.S., and mailed to electors pursuant to section 1-40-125, C.R.S. (2) (a) (I) The district commission shall conduct an a retention year 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". (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 shall 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. (c) The state commission shall release the narrative, the recommendation, and any other relevant information to the public no later than forty-five days the August 1 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 1-40-124.5, C.R.S., and mailed to electors within the judicial district pursuant to section 1-40-125, C.R.S. SECTION 9. In Colorado Revised Statutes, 13-5.5-106.3, amend (1) (a), (1) (d), (2) (a), and (2) (d) as follows: 13-5.5-106.3. 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 an interim evaluation of each justice and each judge The evaluations shall be referred to in this subsection (1) as "interim evaluations" every two years. (d) The state commission shall release the survey evaluations information related to interim evaluations to the public simultaneously with, and no earlier than, the release of the retention year evaluations pursuant to section 13-5.5-106 (1) (c) prepared for that year immediately upon the completion of the evaluation. (2) (a) During each full term of office of each district judge and county judge, The district commission shall conduct at least one an interim evaluation of each district judge and county judge The evaluations shall be referred to in this subsection (2) as "interim evaluations" every two years. Prior to the completion of the narratives for interim evaluations, and following at least ten days' notice to the public and the justices and judges, the district commission shall hold a public hearing concerning all district and county court judges to which the public is invited to attend, comment, and submit any information regarding judges or the procedures followed by the district commission. The identity of any person who comments at or submits information to such a hearing is confidential, unless the person requests to waive confidentiality. (d) The state commission shall release the survey evaluations information related to interim evaluations to the public simultaneously with, and no earlier than, the release of the retention year evaluations prepared for that year immediately upon the completion of the evaluation. SECTION 10. In Colorado Revised Statutes, amend 13-5.5-106.5 as follows: 13-5.5-106.5. Confidentiality. (1) The open meetings law, part 4 of article 6 of title 24, C.R.S., is applicable to all meetings of the state and district commissions. Each commission is a "state public body", as defined in section 24-6-402 (1), C.R.S. Justices and judges, even if serving during their initial appointment period, are considered "elected officials", as that term is used in section 24-6-402 (3) (b) (II), C.R.S. Except as provided in subsection (3) of this section, all comments in survey reports, self-evaluations, personal information protected under section 24-72-204 (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 and the names of individuals who comment or provide information to either the state or a district commission are confidential. (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 the evaluations of the state commission are made public pursuant to sections 13-5.5-106 and 13-5.5-106.3. (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 when any district or state commission member believes reporting to the supreme court attorney regulation committee is appropriate; or (b) To the commission on judicial discipline as provided by rule of the state commission; or when any district or state commission member believes reporting to the commission on judicial discipline is appropriate. (c) With the consent of the justice or judge being evaluated. SECTION 11. In Colorado Revised Statutes, 13-5.5-107, amend (1); and add (3) as follows: 13-5.5-107. Acceptance of federal grants - general appropriations. (1) The state commission is authorized to accept any grants of federal or private funds made grants available for any purpose consistent with the provisions of this article. Any funds money 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 also includes the amount of the increases in docket fees collected pursuant to sections 13-32-105 (1) and 42-4-1710 (4) (a), C.R.S. Any interest derived from the deposit and investment of moneys money in the fund shall be credited to the fund. Any unexpended and unencumbered moneys money 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 Money 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. (3) (a) Fees and cost recoveries for electronic filings, network access and searches of court databases, electronic searches of court records, and any other information technology services performed pursuant to section 13-32-114 must be deposited into the fund. (b) The state commission shall annually report on its website: (I) A complete accounting of the expenses, fees, and cost recoveries for electronic filings, network access and searches of court databases, electronic searches of court records, and any other information technology services performed pursuant to section 13-32-114; and (II) All revenue provided to the state commission from federal grants and any appropriations by the general assembly. SECTION 12. In Colorado Revised Statutes, repeal 13-5.5-109. SECTION 13. In Colorado Revised Statutes, 13-32-114, amend (2) as follows: 13-32-114. Judicial department information technology cash fund - creation - uses. (2) The moneys money in the fund shall be is subject to annual appropriation by the general assembly to the judicial department for any expenses related to the department's information technology needs or the needs of the commissions on judicial performance, article 5.5 of this title. Any moneys money in the fund not expended for the purpose of this section may be invested by the state treasurer as provided in section 24-36-113, C.R.S. All interest and income derived from the investment and deposit of moneys money in the fund shall be credited to the fund. Any unexpended and unencumbered moneys money remaining in the fund at the end of any fiscal year shall remain remains in the fund and shall must not be credited or transferred to the general fund or any other fund. SECTION 14. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.