Guest opinion: ‘Corrupt system’ led to Judge McClelland’s ouster
April 30, 2015
I read Kim Trygg's letter concerning Judge McClelland's non-retain vote by the District Judicial Performance Commission.
While Ms. Trygg has the procedure for Judicial Retention correct, what we all fail to realize is that the system has been intentionally and covertly biased to retain certain judges and not retain certain others.
A succinct review of the process is necessary to show what I will call a "judicial scam" perpetrated by certain parties in the Colorado Supreme Court, the Administrative Division of the Supreme Court, and members of the State Colorado Judicial Performance Commission.
1. After an initial "probationary" period of two years; every judge comes up for retention on a four- to 10-year term depending on the court.
“I don’t know Ben McClelland and cannot opine one way or another to his judicial acumen. But what I do know is that he received a cumulative score of 3.1, which should have triggered the rule noted above for the Commissioners to vote for retention.”
2. In addition to the Statute, the State Commission proposes rules that are reviewed by the Colorado Supreme Court, en banc, and approved.
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3. The Statute provides that every person who had contact with the judge is entitled to a survey. (CRS 13-5.5-101 et.seq.)
4. The names of the persons entitled to a survey are collected by the Colorado Supreme Court Administrative Division which is under direct supervision of Colorado Supreme Court Justice Nancy Rice.
5. The surveys are sent to an out-of-state firm located in Utah for tabulation and returned to the state Colorado Judicial Performance Commission and respective District Judicial Performance Commissions for their recommendations as to whether to retain or not retain a judge.
6. The Rules approved by the Colorado Supreme Court on March 17, 2014, state that the Commissioners "shall" consider a recommendation of retention if the aggregate survey result is a 3 or above; and "shall" consider a non-recommendation vote if the aggregate survey result is 2 or below.
7. The recommendations of the respective Commissions to retain or not retain are submitted for publishing in the "Blue Book"for review and recommendation to the voters who then decide whether a certain judge should remain on the bench.
Retired Supreme Court Justice Rebecca Kourlis left her office early to work on the Judicial Performance System and has written a book named "Transparent Courthouse" that studies various State Judicial Performance structures and makes recommendations to make them as fair and unbiased as possible.
One of the results of her studies is that 99 percent of the time, whatever the Commission recommends either for or against retention, is followed by the voter.
At first look, the Colorado system seems pretty legit until further investigation.
First, I want to make clear that I don't know Ben McClelland and cannot opine one way or another to his judicial acumen. But what I do know is that he received a cumulative score of 3.1, which should have triggered the rule noted above for the Commissioners to vote for retention. That the rules weren't adhered to, a do not retain advised, and then a Commissioner requesting the judgeship should raise serious questions.
But much more serious than this is a set of biased covert rules that were revealed by Kent Wagner in December 2014 in partial response to a CORA request. He provided a set of unpublished rules (he refers to them as "parameter" and as such did not need to be revealed or shown to the Supreme Court for approval) that purposely left out certain persons out of the survey pools; even though they met the statutory requisite to receive a survey. One of the factions was Rule 120 litigants.
Mr. Wagner went on to explain that persons in the Judicial Performance Commission with help from persons in the Supreme Court Administrative Division covertly decided on these "parameters" and they have been in effect since 2004.
The bottom line of these actions is that certain persons within the Judicial Branch can covertly manipulate who receives reviews; and depending on whether they want a certain judge to be retained or not, can direct surveys to persons who most likely would support their biased position.
Judge Moore, a county judge in Boulder County, up for retention in 2014, is the perfect example. It was/is well known that certain defense attorneys did not like Judge Moore. The powers that be did not send surveys to any of the 29 Boulder County district attorneys that had been before Judge Moore.
When the tabulations came back from Utah, under the Rules set by the Supreme Court, the Boulder District Judicial Performance Commission had no choice but to recommend "Do not retain" for Judge Moore. This is despite affidavits from District Attorney Stan Garnett that had they been given surveys; they would have unanimously given her high marks for retention. Kent Wagner, in the local paper dismissed it as a "statistical anomaly." I had a statistical sampling expert do the math and the odds are 7 billion to one to leave out 29 district attorneys out of less than 175 attorneys eligible to survey Judge Moore.
Again, I cannot give an opinion as to the judicial profile of Ben McClelland, but I can say with certainty that the system used for his "DO NOT RETAIN" recommendation is biased and corrupted.
Peter Coulter is publisher of the website http://www.ColoradoJudicial PerformanceCommission.com, which is "dedicated to transparency and accountability in the Colorado Judicial System." He can be emailed at peter@ColoradoJudicial PerformanceCommission.com.