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Michael L. Bender

Supreme Court

Meets Standards(Retain)2 cycles on record

Evaluation history

  • 2010 retention cycle
    Supreme Court
    Meets Standards(Retain)
    VotersRetained· 60.4% yes
    872,387 yes · 571,029 no50% needed to retain
    Retention Year: 2010 Recommendation: Retain Reports: 2010 Retention Survey Report 2009 Interim Survey Report Need an accessible PDF Document version? Please click on the link below and email our staff Contact Us The State Commission on Judicial Performance recommends by a vote of 7 to 1 that Justice Michael L. Bender BE RETAINED. Two Commissioners recused. Justice Bender was appointed to the Colorado Supreme Court in 1997. He graduated from Dartmouth College with a Bachelor of Arts degree, and received his law degree from the University of Colorado School of Law in 1967. Since his appointment to the Supreme Court, Justice Bender has been involved in several judicial committees, including Chair of the Judicial Building Steering Committee for the new Ralph Carr Justice Center, liaison to the Judicial Discipline Commission, and Chair of the Jury Reform Standing Committee. He is also a member of various bar association committees and involved in numerous community service activities. In 2006, he received the University of Colorado School of Law Alumni Award for Distinguished Achievement. Prior to his appointment to the Supreme Court, Justice Bender was in private practice specializing in criminal and civil litigation. He was president and shareholder of Michael L. Bender, P.C. Prior to that, he was in practice with Bender & Treece, P.C. Between 1968 and 1978, he served as a public defender and with the Equal Employment Opportunity Commission. Justice Bender was also an adjunct faculty member at the University of Denver College of Law for five years, teaching criminal law, criminal trial advocacy, and employment discrimination law. Attorneys who responded to survey questions indicate that, compared to the other justices, Justice Bender’s performance is somewhat stronger in the areas of making decisions without regard to possible criticism, writing opinions that are clear, and refraining from deciding issues that need not be decided. Several attorney comments reflected concern that Justice Bender’s opinions are result oriented. The judges surveyed indicate that Justice Bender’s performance is somewhat weaker for refraining from reaching issues that need not be decided, making reasoned decisions, and being fair and impartial. Several commented that Justice Bender is a good judge dedicated to the legal community. The Commission reviewed a number of opinions written by Justice Bender. The Commission found that they are for the most part thoughtful and reasoned, but some opinions are overly detailed and difficult to follow. Of all attorneys surveyed about retention, 79% recommended to retain, 17% not to retain, and 4% expressed no opinion. Excluding those who had no opinion, 82% recommended to retain and 17% not to retain. Of all judges surveyed, 84% recommended to retain, 13% not to retain, and 3% expressed no opinion. Excluding those who had no opinion, 87% recommended to retain and 13% not to retain. (These percentages may not total 100% due to rounding.)
  • 2000 retention cycle
    Supreme Court
    Meets Standards(Retain)
    VotersRetained· 72.3% yes
    954,850 yes · 366,195 no50% needed to retain
    Retention Year: 2000 Recommendation: Retain The State Commission on Judicial Performance recommends that Justice Michael L. Bender BE RETAINED. Justice Bender was appointed to the Colorado Supreme Court in 1997. Prior to his appointment to the bench, he practiced law in Denver, Colorado, 1980-1996, and in Los Angeles, California, 1978-1980. Justice Bender also served as a Public Defender in Denver for five years. He is a graduate of Dartmouth College and the University of Colorado School of Law. Over the years, Justice Bender has served on numerous boards and committees. He was on the Board of Governors of the Colorado Bar Association for two terms and on its Ethical Committee for 8 years. He also served as a director of the Colorado Trial Lawyers Association. Currently he serves on the Law Alumni board of the University of Colorado School of Law and on the Criminal Justice Standards Committee of the American Bar Association. In 1990 Justice Bender received both the Robert C. Heeney Memorial Award for Outstanding Service from the National Association of Criminal Defense lawyers and the Fireman Award given by the Colorado State Public Defender's Office. The State Commission is impressed with the Supreme Court responsibilities Justice Bender has assumed since his appointment. He participates on committees dealing with attorney discipline, civil justice reform, promoting the Judicial Branch's legislative agenda and judicial training. He is particularly involved with educating the public about how the judicial system operates, and chairs the Supreme Court's Public Education Committee. Comments received from attorneys indicated his opinions are thoughtful and well reasoned. Attorneys and court personnel rated Justice Bender highly. Eighty percent (80%) voted to retain Justice Bender, 11% voted not to retain and 9% had no opinion. Eighty-eight percent (88%) of trial court judges voted to retain Justice Bender, 4% voted not to retain and 8% had no opinion.

Surveys & reports

  • 2010 cycle
    • 2009 Interim Survey Report(PDF on OJPE)
      Read full interim survey textexpand
      ## Page 1 State of Colorado Logo COMMISSION ON JUDICIAL PERFORMANCE TThhee HHoonnoorraabbllee MMiicchhaaeell LL.. BBeennddeerr 2009 Interim Judicial Performance Survey Supreme Court ## Page 2 September 30, 2009 The Honorable Michael L. Bender Colorado State Judicial Bldg. 2 East 14th Avenue Denver, CO 80203 Dear Justice Bender: This year, The State Commission on Judicial Performance has requested Talmey- Drake Research & Strategy to provide interim survey reports concerning all justices and judges. Going forward, there will continue to be survey reports on retention justices and judges in retention election years and interim survey reports on all justices and judges in non-retention years. Talmey-Drake Research & Strategy conducted the 2009 Interim Judicial Performance Survey regarding appellate judges among attorneys who have had a case they appealed decided between July 1, 2008 and March 31, 2009, and for which an opinion was published. The results in this report also include responses to surveys conducted prior to July 1, 2008 and not used in previous reports. These earlier surveys were conducted by mail. In addition to this introduction, the report is divided into three main sections: Results. The results section is broken down into three parts. Tables: A table displaying the percentage distribution of grades for each question that used an “A” to “F” scale, your average grade for each question and the combined average for the other six Supreme Court justices. The table also shows the averages for all “A” to “F” questions combined. The table also gives the percentage results to the retain/do not retain question. Graphs: Following the table is a set of graphs displaying the average grades for each question. Comments: Respondents were also asked to comment about your performance. These comments have been redacted to eliminate respondent identifying information. Most spelling and typographical errors have been fixed, but where the respondent entered a comment in all upper or all lower case, or without punctuation, the comment was not corrected. Methodology. The second section of the report discusses the methodology of the survey. Questionnaire. And the final section provides a copy of the questions that were used. 100 Arap ahoe, Suite One, Boulder, CO 80302 Phone 303.443.5300 Fax 303.447.9386 ## Page 3 The Honorable Michael L. Bender September 30, 2009 Page 2 If you have any questions about the methodology and how the survey was conducted, please feel free to contact me at 303-443-5300 ext 1 or by email at talmey@talmeyresearch.com (please put the words “Judicial Performance” in the subject line), and for any other questions you might have about the survey please call the Executive Director of the Office of Judicial Performance Evaluation, Jane Howell, at 303-837-3665. Best regards, Paul A. Talmey President enc: ## Page 4 SSuurrvveeyy ooff AAtoorrnneeyyss RReeggaarrddiinngg JJuussttiiccee MMiicchhaaeell LL.. BBeennddeerr ((SSaammppllee SSiizzee 3)) ## Page 5 Survey of Attorneys Regarding Appellate Judges Average Justice Michael L. Bender All Supreme Court Justices Sample Size = 33 Excluding A B C D Fail DK/NA Justice Bender Justice Bender Question 2: 2a.Being fair and impartial toward each side of the case. 67% 24% 3% 3% 0% 3% 3.59 3.26 2b.Writing opinions that are clear. 55% 42% 3% 0% 0% 0% 3.52 3.08 2c.Writing opinions that adequately explain the basis of the 58% 39% 3% 0% 0% 0% 3.55 3.13 Court's decision. 2d.Issuing opinions in a timely manner. 52% 33% 9% 3% 0% 3% 3.38 3.36 2e.Allowing parties to present their arguments and answer 64% 12% 3% 3% 0% 18% 3.67 3.41 questions. 2f. Making decisions without regard to possible criticism. 58% 24% 0% 0% 0% 18% 3.70 3.42 2g.Making reasoned decisions based upon the law and 64% 21% 12% 0% 3% 0% 3.42 2.92 facts. 2h.Refraining from reaching issues that need not be 61% 21% 6% 0% 0% 12% 3.62 2.98 decided. 2i. Treating parties equally regardless of race, sex or 79% 3% 0% 3% 0% 15% 3.86 3.71 economic status. 2j. Being courteous toward attorneys. 73% 9% 0% 3% 0% 15% 3.79 3.58 2k.Not engaging in ex parte communications. 67% 3% 3% 0% 0% 27% 3.88 3.91 2l. Being prepared for oral argument. 67% 9% 3% 0% 0% 21% 3.81 3.53 Overall Average Grade: 3.65 3.34 2009 Interim Judicial Performance Survey 55 ## Page 6 Survey of Attorneys Regarding Appellate Judges Percentage Justice Michael L. Bender All Supreme Court Justices Sample Size = 33 Excluding Justice Bender Justice Bender 5. How strongly do you recommend that Justice Bender be retained in office, or not be retained in office? [Percentages excluding undecided responses.] Strongly recommend retention 89% 69% Somewhat recommend retention 7% 14% Somewhat recommend not to retain 0% 8% Strongly recommend not to retain 4% 9% Total Retain 96% 83% Total Not Retain 4% 17% [Percentages including undecided responses.] Strongly recommend retention 81% 64% Somewhat recommend retention 6% 13% Undecided or Don't Know 10% 7% Somewhat recommend not to retain 0% 7% Strongly recommend not to retain 3% 8% Total Retain 87% 77% Undecided/Don't Know 10% 7% Total Not Retain 3% 15% 2009 Interim Judicial Performance Survey 66 ## Page 7 Justice Michael L. Bender Survey of Attorneys Regarding Appellate Judges Average Grades 3.65 Overall average grade 3.34 3.59 2a. Being fair and impartial toward each side of the case. 3.26 3.52 2b. Writing opinions that are clear. 3.08 2c. Writing opinions that adequately explain the basis of the Court's 3.55 decision. 3.13 3.38 2d. Issuing opinions in a timely manner. 3.36 2e. Allowing parties to present their arguments and answer 3.67 questions. 3.41 3.70 2f. Making decisions without regard to possible criticism. 3.42 3.42 2g. Making reasoned decisions based upon the law and facts. 2.92 3.62 2h. Refraining from reaching issues that need not be decided. 2.98 2i. Treating parties equally regardless of race, sex or economic 3.86 status. 3.71 3.79 2j. Being courteous toward attorneys. 3.58 3.88 2k. Not engaging in ex parte communications. 3.91 3.81 2l. Being prepared for oral argument. 3.53 2.0 2.5 3.0 3.5 4.0 Justice Bender All Supreme Court Justices Except Justice Bender 2009 Interim Judicial Performance Survey 77 ## Page 8 Justice Michael L. Bender Survey of Attorneys Regarding Appellate Judges Q5. How strongly do you recommend that Justice Bender be retained or not retained in office? Excluding Undecided Respondents 89% Strongly retain 69% 7% Somewhat retain 14% All SC Justices Justice Except Justice 0% Bender Bender Somewhat not retain Total Retain 96% 83% 8% Total Not Retain 4% 17% 4% Strongly not retain 9% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Including Undecided Respondents 81% Strongly retain 64% 6% Somewhat retain 13% All SC Justices 10% Justice Except Justice Undecided or Don't Know Bender Bender 7% Total Retain 87% 77% Undecided or DK 10% 7% 0% Total Not Retain 3% 15% Somewhat not retain 7% 3% Strongly not retain 8% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Justice Bender All Supreme Court Justices Except Justice Bender 2009 Interim Judicial Performance Survey 88 ## Page 9 MMeetthhooddoollooggyy ## Page 10 MMeetthhooddoollooggyy Sample: For the 2009 Interim Judicial Performance Survey Talmey-Drake Research & Strategy received data files from the Colorado Judicial Department containing the names of attorneys who had appeals decided with a published opinion by the Supreme Court or Court of Appeals between July 1, 2008 and March 31, 2009. Each attorney in the sample was then assigned to evaluate up to a maximum of seven judges and justices who had written opinions, concurrences or dissents in the cases he or she had appealed. If there were fewer than seven Supreme Court justices for an attorney to potentially evaluate, and he or she had cases decided by the Court of Appeals during the time period, the attorney was asked to evaluate the appropriate Court of Appeals judges. However, the combined total number of justices and judges any one attorney was asked to evaluate did not exceed seven. The 2009 Interim Judicial Performance Survey of Attorneys Regarding Appellate Judges was conducted online. All attorneys who were listed in the data files were first sent a letter introducing them to the Survey and informing them that they would soon be receiving an email with a link to the Survey. The letter also included the Survey’s Web address, and a password if the respondent wished to take the survey before receiving the email. Approximately one week after the letter was mailed a first email was sent, and a week after that a second reminder email was sent. In order to increase the number of responses, attorneys who had not responded after the second email request were telephoned and asked to either go online to take the survey, or if they preferred, to complete the survey by telephone. Responses to surveys conducted in prior years by mail that had not been used in a previous Judicial Performance report were combined with the above data to create the total sample used in the 2009 Interim Judicial Performance Survey. The table below shows the count of completed survey evaluations by Supreme Court and Court of Appeals by when the data was collected. 2009 Online Data Collected Data Collected Survey 2006 - 2008 2005 - 2006 Total Supreme Court 80 83 55 218 Court of Appeals 1,074 302 27 1,403 Total 1,154 385 82 1,621 2009 Interim Judicial Performance Survey 1100 ## Page 11 Questions: The questions used online for the 2009 Interim Judicial Performance Survey asked respondents to use a grade of A, B, C, D, or F to assess the judge or justice’s performance on twelve aspects of judicial performance (see question list at the end of this report). These scores were then converted to a numerical value where A = 4, B = 3, C = 2, D = 1 and Fail = 0. Respondents were also asked to indicate how strongly they would recommend that the judge or justice be retained or not retained. Comments: While the numerical (closed-ended) questions were the same from 2005 through 2009, the comment questions were different in 2009. In the 2009 survey the two comment questions asked for the justice’s strengths and the justice’s weaknesses. Prior to 2009 the comments questions asked for “Comments about (Justice) relating to any of your response to the previous (closed ended) questions?” The second comment question was asked after the retain/do not retain question and asked: “And why do you think that way about retaining or not retaining (Justice)?” Positive responses to these questions are included under Justice’s Strengths in the comments section and negative responses are included under Justice’s Weaknesses. These comments have been redacted to eliminate respondent identifying information. Most spelling and typographical errors have been fixed, but where the respondent entered a comment in all upper or all lower case, or without punctuation, the comment was not corrected. Cooperation Rate: The overall response rate for the Attorneys Regarding Appellate Judges Survey is calculated as the number of completed survey evaluations (Supreme Court plus Court of Appeals) divided by the number of possible evaluations. An equivalent response rate for an individual justice is computed as the number of completed evaluations for that justice divided by the number of possible evaluations that could have been completed for the justice. A table of the overall response rate and the response rate for Justice Bender is shown below. No Undeliv- Completed Response Sent Response erable Evaluations Rate Justice Bender 72 34 5 33 49.3% All Supreme Court Justices 551 302 30 218 41.8% All Appellate Judges 6985 5191 155 1621 23.7% (SC and COA) The 2009 Interim Judicial Performance Survey was the first time in which the Attorneys Regarding Appellate Judges survey was conducted online. A total of 1,678 attorneys were asked to participate in the online survey and on average to evaluate 3.48 judges or justices each—a total of 5,834 potential survey evaluations—257 Supreme Court and 5,577 Court of Appeals. Just over twenty- six percent (26.5%) of attorneys surveyed evaluated one or more appellate judges or justices. Fifty-four out of 165 attorneys who were asked to evaluate one or more Supreme Court justices did so (32.7%). Similarly, 445 attorneys who were 2009 Interim Judicial Performance Survey 1111 ## Page 12 asked to evaluate one or more Court of Appeals judges completed the evaluation of at least one judge (29.4%). The average number of judges or justices evaluated per attorney was 2.59 for a total of 1,154 (19.8%) completed evaluations—80 Supreme Court and 1,074 Court of Appeals. Note, these figures are only for the online survey (plus telephone follow-up interviews) and will not match the numbers in the All Appellate Judges response rate in the table above, which include evaluations from the prior mail surveys. Projectability: Most surveys seen by the public are surveys that are intended to be projectable, that is the results from the sample of people surveyed can be used to estimate a percentage or value of the population sampled with a known probability of error. For example, a pre-election poll of 500 likely Colorado voters is used to estimate the percentage of voters who will vote for Candidate A on election day, plus or minus some number of percentage points. The plus or minus amount is usually what is known as the 95%-confidence interval (the known probability of error), or what the media often refers to as the margin-of- error. The Colorado Judicial Performance Evaluation Survey is not projectable with a known probability of error because the results are calculated from a self-selecting sample that is self-selecting based on the content and subject matter of the survey. In other words, the potential respondent knows the purpose and content of the survey, and based on that, decides whether to respond to the survey. While projectability within a known probability of error is a highly desirable attribute of a survey, it is often not feasible to achieve. Commercial market research often uses nonprojectable (and small) samples—the most well known of which are for focus groups. Moreover, the federal courts have long accepted, and do not expect, projectable samples for market confusion surveys used in trademark litigation. In other words, one can still use the results of the Judicial Performance Evaluation Survey to estimate how everyone who has observed a judge in the courtroom would grade him or her, just not with a known probability of error. The Judicial Performance Evaluation Survey is a valuable means, perhaps the only practical means, for the Judicial Performance Commissions to have a summary of structured interviews with a number of people who have courtroom familiarity with the judge being evaluated, and who most often—albeit not always—are responding out of a desire to improve the performance of our state’s judicial system. Survey Results: The report shows the survey results both graphically and in tables. Tables: This section shows the percentage distribution of grades and the average numerical grade for each of the A through F scaled questions (A=4, B=3, C=2, D=1 and F = 0) for Justice Bender as compared to the average grade for all 2009 Interim Judicial Performance Survey 1122 ## Page 13 justices excluding Justice Bender. For comparison purposes, the next two pages show the combined percentage distribution of grades and grade averages for all Supreme Court justices. The overall averages shown in the graphs and tables are calculated by summing the average grade for each question and dividing by the number of questions summed. This gives each question equal weight in computing the overall averages. The sample size is shown at the beginning of the section and on each of the tables. This is the number of respondents who answered most or all of the questions in the questionnaire. It should be noted, however, that the number of responses for individual questions can vary from the overall sample size. Graphs: The graphs visually display the average numerical grade for each of the A through F scaled questions (A=4, B=3, C=2, D=1 and F = 0) for the report- justice compared to the average grade for all justice excluding Justice Bender . In addition to the grade-scale graphs, the question regarding retention is also graphed. 2009 Interim Judicial Performance Survey 1133 ## Page 14 Survey of Attorneys Regarding Appellate Judges All Supreme Court Justices Sample Size = 218 Average A B C D Fail DK/NA Grade Question 2: 2a.Being fair and impartial toward each side of the case. 60% 20% 9% 3% 6% 3% 3.26 2b.Writing opinions that are clear. 52% 27% 9% 7% 4% 0% 3.08 2c.Writing opinions that adequately explain the basis of the 52% 26% 9% 7% 5% 1% 3.13 Courts decision. 2d.Issuing opinions in a timely manner. 54% 29% 6% 4% 1% 6% 3.36 2e.Allowing parties to present their arguments and answer 62% 16% 9% 4% 1% 8% 3.41 questions. 2f. Making decisions without regard to possible criticism. 56% 18% 3% 3% 4% 17% 3.42 2g.Making reasoned decisions based upon the law and facts. 56% 15% 11% 11% 8% 0% 2.92 2h.Refraining from reaching issues that need not be decided. 48% 20% 7% 5% 8% 12% 2.98 2i. Treating parties equally regardless of race, sex or 65% 6% 2% 1% 3% 22% 3.71 economic status. 2j. Being courteous toward attorneys. 66% 20% 5% 3% 1% 5% 3.58 2k.Not engaging in ex parte communications. 57% 4% 0% 0% 0% 39% 3.91 2l. Being prepared for oral argument. 59% 16% 7% 2% 1% 14% 3.53 Overall Average Grade: 3.36 2009 Interim Judicial Performance Survey 1144 ## Page 15 Survey of Attorneys Regarding Appellate Judges All Supreme Court Justices Sample Size = 218 Average Grade 5. How strongly do you recommend that the Justice be retained in office, or not be retained in office? [Percentages excluding undecided responses.] Strongly recommend retention 69% Somewhat recommend retention 14% Somewhat recommend not to retain 8% Strongly recommend not to retain 9% Total Retain 83% Total Not Retain 17% [Percentages including undecided responses.] Strongly recommend retention 64% Somewhat recommend retention 13% Undecided or Don't Know 7% Somewhat recommend not to retain 7% Strongly recommend not to retain 8% Total Retain 77% Undecided/Don't Know 7% Total Not Retain 15% 2009 Interim Judicial Performance Survey 1155 ## Page 16 QQuueessttiioonnnnaaiirreess ## Page 17 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 . 5 2. Using a grade scale, where an “A” is excellent along with B, C, D or F for fail, please grade the [Judge/Justice] 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/NS for Don’t Know/Not Sure. a. Being fair and impartial toward each side of the case. A B C D F DK/NS b. Writing opinions that are clear. A B C D F DK/NS c. Writing opinions that adequately explain the basis of the Court’s decision. A B C D F DK/NS d. Issuing opinions in a timely manner. A B C D F DK/NS e. Allowing parties to present their arguments and answer questions. A B C D F DK/NS f. Making decisions without regard to possible criticism. A B C D F DK/NS g. Making reasoned decisions based upon the law and facts. A B C D F DK/NS h. Refraining from reaching issues that need not be decided. A B C D F DK/NS i. Treating parties equally regardless of race, sex or economic status. A B C D F DK/NS j. Being courteous toward attorneys. A B C D F DK/NS k. Not engaging in ex parte communications. A B C D F DK/NS l. Being prepared for oral argument. A B C D F DK/NS ## Page 18 3. What would you say are Judge (Last Name)’s strengths? _ _ _ 4. What would you say are Judge (Last Name)’s weaknesses? _ _ _ 5. 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 the judge be retained in office . 5 Somewhat recommend the judge be retained in office . 4 Undecided or don’t know enough to make recommendation . 3 Somewhat recommend the judge not be retained in office . 2 Strongly recommend the judge not be retained in office . 1
    • 2010 Retention Survey Report(PDF on OJPE)
      Read full retention survey textexpand
      ## Page 1 State of Colorado Logo COMMISSION ON JUDICIAL PERFORMANCE TThhee HHoonnoorraabbllee MMiicchhaaeell LL.. BBeennddeerr 2010 Judicial Performance Survey Report Supreme Court ## Page 2 March 25, 2010 The Honorable Michael L. Bender Colorado State Judicial Bldg. 2 East 14th Avenue Denver, CO 80203 Dear Justice Bender: I am pleased to make available to you the attached copy of your 2010 Judicial Performance Survey Report. The report is based on two surveys relating to how you are seen carrying out the performance of your office: One of attorneys who have had cases heard before the Supreme Court, and a second survey of district judges regarding Supreme Court justices who are standing for retention in November, 2010. The methodology underlying these surveys has changed somewhat since the last reports were issued in 2009. A few minutes perusing the methodology section toward the end of this report should inform you of the relevant changes, and provide you with a methodological context to better interpret your survey results. In addition to this introduction, the report is divided into five main sections: A brief summary of the results of the two surveys. The numerical results of the survey of attorneys in both tabular and graphical form. In addition to the numerical results, this section also contains comments attorneys made about your judicial performance. In some instances the comments have been redacted to eliminate respondent identifying information. A copy of the attorney questionnaire is at the back of this report. The numerical results of the survey of district judges in both tabular and graphical form. In addition to the numerical results, this section also contains comments these judges made on the subject of your judicial performance. In few instances the comments have been redacted to eliminate respondent identifying information. A copy of the district judge questionnaire is at the back of this report. The fourth section of the Report discusses the methodology of the surveys. The final section provides copies of the questions or questionnaires that were used for each survey. 100 Arap ahoe, Suite One, Boulder, CO 80302 Phone 303.443.5300 Fax 303.200.7385 ## Page 3 Hon. Justice Michael L. Bender March 25, 2010 Page 2 If you have any questions about the methodology and how the survey was conducted, please feel free to contact me at 303-443-5300 ext 1 or by email at talmey@talmeyresearch.com (please put the words “Judicial Performance” in the subject line), and for any other questions you might have about the survey please call the Executive Director of the Office of Judicial Performance Evaluation, Jane Howell, at 303-866-6465. Best regards, Paul A. Talmey President enc: ## Page 4 SSuummmmaarryy ooff RReessuullttss Attorneys assigned Justice Michael L. Bender an overall average grade11 of 3.36, and District Judges assigned Justice Bender an overall average grade of 3.36 resulting in a combined grade of 3.36. The average combined grade for all Supreme Court Justices standing for retention was 3.39 . The combined average grade is computed as the total of the overall average from the attorney survey plus the overall average from the district judge survey, divided by two. Justice Bender Average Grades Combined Attorney District Judge Overall Grade 3.36 3.36 3.36 Sample Size - 175 133 Table 1 The results presented in this report are based on data collected from 2005 through 2009. (See Methodology section for description of sampling process.) Table 2 shows Justice Bender’s overall average grades from attorneys for each of these years. Justice Bender Average Attorney Grades by Year 2005 2006 2007 2008 2009 Overall Grade 3.47 3.00 3.44 3.36 3.36 Sample Size 8 18 47 48 54 Table 2 1 The overall average grade for the attorney and district judge surveys are computed by summing the average grade for each A through F question and dividing by the number of questions. See the tables in each of the survey sections. 1 ## Page 5 SSuurrvveeyy ooff AAtoorrnneeyyss RReeggaarrddiinngg JJuussttiiccee MMiicchhaaeell LL.. BBeennddeerr ((SSaammppllee SSiizzee 117755)) ## Page 6 Survey of Attorneys Regarding Appellate Judges Average Justice Michael L. Bender All Supreme Court Justices Sample Size = 175 Excluding A B C D Fail DK/NA Justice Bender Justice Bender Question 2: 2a.Being fair and impartial toward each side of the case. 57% 23% 7% 5% 7% 1% 3.18 3.16 2b.Allowing parties to present their arguments and answer 59% 22% 8% 4% 1% 6% 3.42 3.44 questions. 2c.Treating parties equally regardless of race, sex or 74% 9% 3% 2% 2% 10% 3.67 3.57 economic status. 2d.Being courteous toward attorneys. 66% 17% 6% 3% 3% 5% 3.48 3.52 2e.Not engaging in ex parte communications. 65% 2% 2% 1% 1% 30% 3.86 3.78 2f. Being prepared for oral argument. 62% 20% 4% 2% 2% 9% 3.52 3.43 Question 2 Average Grade 3.52 3.48 Question 3: 3a.Writing opinions that are clear. 49% 35% 9% 5% 2% 0% 3.25 3.12 3b.Writing opinions that adequately explain the basis of the 51% 32% 8% 5% 4% 0% 3.20 3.08 Court's decision. 3c.Issuing opinions in a timely manner. 48% 26% 11% 2% 2% 11% 3.31 3.32 3d.Making decisions without regard to possible criticism. 56% 23% 9% 3% 1% 8% 3.42 3.24 3e.Making reasoned decisions based upon the law and 50% 22% 12% 5% 12% 0% 2.95 2.83 facts. 3f. Refraining from reaching issues that need not be 47% 21% 8% 6% 6% 12% 3.09 2.88 decided. Question 3 Average Grade 3.20 3.08 Overall Average Grade: 3.36 3.28 2010 Judicial Performance Survey Report 33 ## Page 7 Survey of Attorneys Regarding Appellate Judges Percentage Justice Michael L. Bender All Supreme Court Justices Sample Size = 175 Excluding Justice Bender Justice Bender 6. How strongly do you recommend that Justice Bender be retained in office, or not be retained in office? [Percentages excluding undecided responses.] Strongly recommend retain 65% 63% Somewhat recommend retain 17% 16% Somewhat recommend not retain 7% 9% Strongly recommend not retain 10% 11% Total Retain 82% 79% Total Not Retain 17% 20% [Percentages including undecided responses.] Strongly recommend retain 63% 59% Somewhat recommend retain 16% 15% Undecided or Don't Know 4% 7% Somewhat recommend not retain 7% 9% Strongly recommend not retain 10% 10% Total Retain 79% 74% Undecided/Don't Know 4% 7% Total Not Retain 17% 19% 2010 Judicial Performance Survey Report 44 ## Page 8 Justice Michael L. Bender Survey of Attorneys Regarding Appellate Judges Average Grades 3.36 Overall average grade 3.28 3.52 Question 2 average grade 3.48 3.18 2a. Being fair and impartial toward each side of the case. 3.16 2b. Allowing parties to present their arguments and 3.42 answer questions. 3.44 2c. Treating parties equally regardless of race, sex or 3.67 economic status. 3.57 3.48 2d. Being courteous toward attorneys. 3.52 3.86 2e. Not engaging in ex parte communications. 3.78 3.52 2f. Being prepared for oral argument. 3.43 3.20 Question 3 average grade 3.08 3.25 3a. Writing opinions that are clear. 3.12 3b. Writing opinions that adequately explain the 3.20 basis of the Court's decision. 3.08 3.31 3c. Issuing opinions in a timely manner. 3.32 3.42 3d. Making decisions without regard to possible criticism. 3.24 2.95 3e. Making reasoned decisions based upon the law and facts. 2.83 3.09 3f. Refraining from reaching issues that need not be decided. 2.88 2.0 2.5 3.0 3.5 4.0 Justice Bender All Supreme Court Justices Excluding Justice Bender 2010 Judicial Performance Survey Report 5 ## Page 9 Justice Michael L. Bender Survey of Attorneys Regarding Appellate Judges Q6. How strongly do you recommend that Justice Bender be retained or not retained in office? Excluding Undecided Respondents 65% Strongly recommend retain 63% 17% Somewhat recommend retain 16% All SC Justices Justice Except Justice 7% Bender Bender Somewhat recommend not retain Total Retain 82% 79% 9% Total Not Retain 17% 20% 10% Strongly recommend not retain 11% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Including Undecided Respondents 63% Strongly recommend retain 59% 16% Somewhat recommend retain 15% All SC Justices 4% Justice Except Justice Undecided or Don't Know 7% Bender Bender Total Retain 79% 74% Undecided or DK 4% 7% 7% Total Not Retain 17% 19% Somewhat recommend not retain 9% 10% Strongly recommend not retain 10% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Justice Bender All Supreme Court Justices Excluding Justice Bender 2010 Judicial Performance Survey Report 6 ## Page 10 SSuurrvveeyy ooff DDiissttrriicctt JJuuddggeess RReeggaarrddiinngg JJuussttiiccee MMiicchhaaeell LL.. BBeennddeerr ((SSaammppllee SSiizzee 113)) ## Page 11 Survey of District Judges Regarding Appellate Judges Average All SC Justice Michael L. Bender Retention Sample Size = 133 Justices Excluding Justice A B C D Fail DK/NA Justice Bender Bender 1. Being fair and impartial toward each side in a case. 49% 24% 8% 9% 1% 9% 3.24 3.47 2. Writing opinions that are clear. 51% 28% 12% 5% 1% 4% 3.27 3.38 3. Writing opinions that adequately explain the basis of 57% 21% 12% 5% 2% 4% 3.32 3.47 the Court's decision. 4. Issuing opinions in a timely manner. 34% 23% 6% 4% 1% 31% 3.26 3.29 5. Making decisions without regard to possible criticism. 62% 15% 2% 4% 3% 15% 3.51 3.61 6. Making reasoned decisions based upon the law and 49% 25% 10% 6% 4% 5% 3.16 3.40 facts. 7. Refraining from reaching issues that need not be 38% 26% 9% 5% 4% 18% 3.07 3.35 decided. 8. Treating parties equally regardless of race, sex or 72% 7% 1% 4% 2% 15% 3.66 3.75 economic status. 9. Not engaging in ex parte communications. 46% 2% 2% 1% 2% 48% 3.74 3.81 Overall Average Grade: 3.36 3.50 2010 Judicial Performance Survey Report 186 ## Page 12 Survey of District Judges Regarding Appellate Judges Percentage Justice Michael L. Bender All SC Sample Size = 133 Retention Justices Excluding Justice Bender Justice Bender 10. Recommend to be retained/not retained in office. [Percentages excluding undecided responses.] Strongly recommend retain 69% 75% Somewhat recommend retain 18% 16% Somewhat recommend not retain 8% 6% Strongly recommend not retain 5% 2% Total Retain 87% 91% Total Not Retain 13% 8% [Percentages including undecided responses.] Strongly recommend retain 67% 71% Somewhat recommend retain 17% 15% Undecided or Don't Know 3% 6% Somewhat recommend not retain 8% 6% Strongly recommend not retain 5% 2% Total Retain 84% 86% Undecided/Don't Know 3% 6% Total Not Retain 13% 8% 2010 Judicial Performance Survey Report 197 ## Page 13 Justice Michael L. Bender Survey of District Judges Regarding Appellate Judges Average Grades 3.36 Overall average of 1 through 9 3.50 3.24 1. Being fair and impartial toward each side in a case. 3.47 3.27 2. Writing opinions that are clear. 3.38 3. Writing opinions that adequately explain the basis of the 3.32 Court's decision. 3.47 3.26 4. Issuing opinions in a timely manner. 3.29 3.51 5. Making decisions without regard to possible criticism. 3.61 3.16 6. Making reasoned decisions based upon the law and facts. 3.40 3.07 7. Refraining from reaching issues that need not be decided. 3.35 8. Treating parties equally regardless of race, sex or 3.66 economic status. 3.75 3.74 9. Not engaging in ex parte communications. 3.81 2.0 2.5 3.0 3.5 4.0 Justice Bender All SC Retention Justices Excluding Justice Bender 2010 Judicial Performance Survey Report 1180 ## Page 14 Justice Michael L. Bender Survey of District Judges Regarding Appellate Judges Q10. Recommend to be retained/not retained in office. Excluding Undecided Respondents 69% Strongly recommend retain 75% 18% Somewhat recommend retain 16% All SC Justices 8% Justice Except Justice Somewhat recommend not retain Bender Bender 6% Total Retain 87% 91% Total Not Retain 13% 8% 5% Strongly recommend not retain 2% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Including Undecided Respondents 67% Strongly recommend retain 71% 17% Somewhat recommend retain 15% All SC Justices 3% Justice Except Justice Undecided or Don't Know 6% Bender Bender Total Retain 84% 86% 8% Undecided or DK 3% 6% Somewhat recommend not retain Total Not Retain 13% 8% 6% 5% Strongly recommend not retain 2% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Justice Bender All SC Retention Justices Excluding Justice Bender 2010 Judicial Performance Survey Report 1191 ## Page 15 MMeetthhooddoollooggyy ## Page 16 MMeetthhooddoollooggyy The results shown in the 2010 Judicial Performance Survey Report are based on two surveys1: The survey of Attorneys Regarding Appellate Judges and the survey of District Judges Regarding Appellate Judges. Below is a description of the methodology of the two surveys. I Attorneys Regarding Appellate Judges a. Sample: The Attorneys Regarding Appellate Judges sample comes from a list of issued Supreme Court opinions provided by the Clerk of the Supreme Court and a similar list of Court of Appeals opinions provided by the Clerk of the Court of Appeals. These lists included the names of the attorneys associated with the cases and the names of the judges who authored opinions, concurrences or dissents for those cases. i. Prior to 2009, the survey of Attorneys Regarding Appellate Judges was conducted using paper questionnaires mailed to the attorneys‟ offices. All attorneys from the Supreme Court opinions list and the Court of Appeals opinions list were assigned to evaluate justices or judges subject to the following rules applied in the order shown. 1. No attorney would be asked to evaluate the same justice or judge in a 24-month period. 2. Attorneys would only be asked to evaluate justices or judges who had written an opinion, concurrence or dissent in one of their cases. 3. If an attorney was eligible to evaluate both a Supreme Court justice and a Court of Appeals judge, the attorney was assigned to evaluate the justice. 4. If at this point there were still several justices or judges the attorney could potentially evaluate, the attorney was assigned the justice or judge with whom he or she had had the most cases with opinions issued during the sampling time frame. 5. If there were still several justices or judges the attorney could evaluate, he or she was either randomly assigned to one of them, or assigned to the justice or judge with the smallest sample in order to even out sample sizes. Attorneys were mailed a questionnaire, and if they did not respond they were sent a reminder postcard followed by a second questionnaire and in some cases a second reminder postcard. Questionnaires were barcoded, and if an attorney mailed back two questionnaires, the second one was deleted from the data file. Attorneys who did not 1 A third survey was attempted of Supreme Court and COA non-attorney employees. Talmey-Drake Research received lists of 21 Supreme Court employees and 15 Court of Appeals employees. No justice or judge had more than one completed survey-evaluation, and therefore the results are not reported. 13 ## Page 17 complete the second request were then telephoned and asked to complete the survey by phone. ii. In 2009 the Attorneys Regarding Appellate Judges Survey moved from being a paper survey mailed to potential respondents to an online survey. Moving the survey to online permitted asking individual attorneys to evaluate up to seven Supreme Court justices or COA judges, and with the exception of the effects of the modified assignment rules 1 through 5 below, it became a survey of all attorneys who had cases before either the Supreme Court or the Court of Appeals. Allowing an attorney to evaluate up to seven justices or judges, entailed slightly modifying the assignment rules: 1. No attorney would be asked to evaluate the same justice or judge in a 24-month period. 2. Attorneys would only be asked to evaluate justices or judges who had written an opinion, concurrence or dissent in one of their cases. 3. The list of seven justices or judges could include both justices and judges. If an attorney had more than seven possible justices or judges he or she could potentially evaluate, Supreme Court justices were assigned to that attorney first. 4. If there were more than seven justices or judges who could be assigned to the attorney, the attorney was assigned the justices or judges with whom he or she had had the most cases with opinions issued during the sampling time frame. 5. If there were still more than seven justices or judges the attorney could evaluate, justices or judges were either randomly assigned to available list slots or were assigned to the justices or judges with the smallest sample sizes. Attorneys were first mailed a letter about the online survey to let them know that they would soon receive an email with a link to the survey. The Web address of the survey and a password were included in the letter if the attorney wanted to complete the survey immediately. A week after the first email was sent, a follow-up email was sent. Potential respondents who did not complete the survey after the second email were then telephoned and asked to either complete the survey then by phone, or to please complete it online. iii. In 2010 rule #2 above was changed so that an attorney would be asked to evaluate all seven justices if the case was heard by the Supreme Court, and the full three- judge panel if the case was heard by the Court of Appeals—not just the justices or judges who had written the opinion, concurrences or dissents. Because some of the survey questions refer specifically to the justice‟s or judge‟s legal writing, a question was added to the questionnaire asking “Would you say you are sufficiently knowledgeable about Justice/Judge„s legal writings to have formed an opinion about them?” If the respondent answered “No” or “Don‟t Know” to this question he or she was not asked about the justice‟s or judge‟s writings. A copy of the list of the Attorney Regarding Appellate Judges questions is reprinted in the last section of this report. In addition to attorneys who had cases before either the Supreme Court or Court of Appeals, COA staff attorneys were also surveyed in 2010. 14 ## Page 18 The results shown in the 2010 Judicial Performance Survey Report for the Attorneys Regarding Appellate Judges survey are based on the combined data collected from January 2005 through early February 2010 for those questions that have been consistently asked during that time period. Starting in 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 in the first quarter of the seventh year, the oldest quarter of data in the pool is deleted. The current data for all judges only goes back as far as 2005—or the year the judge took the bench—therefore the rolling of the data only affects the county judge sample in the 2010 reports. b. Questions: The survey questions asked respondents to use a grade of A, B, C, D, or F to assess the justice or judge's performance on twelve aspects of judicial performance (See Questionnaire section.) These grades were then converted to a numerical scores 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. 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. Comments: In addition to the A through F questions, respondents were also asked what they considered to be the justice‟s or judge‟s strengths and what they considered to be the justice‟s or judge‟s weaknesses. By statute these comments are confidential and only provided to the justice or judge and the State Commission on Judicial Performance. They are not released to the public when the rest of the report is released. Before being given to the justice or 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, though the strengths and weaknesses questions have been asked in every survey. The number to the left of each comment refers to the same attorney respondent in both the strengths section and the weaknesses section. 15 ## Page 19 Most spelling and typographical errors have been fixed, but where the respondent entered a comment in all upper or all lower case, or without punctuation, the comment was not corrected. d. Analysis: The Attorneys Regarding Appellate Judges section first shows a table of the percentage distribution for each of the A through F questions, including “don‟t know” responses. The next column to the right shows the justice‟s average grade for each question. For comparison purposes, averages were also computed for all Supreme Court justices, excluding the report-justice—but including Supreme Court justices who are not eligible to stand for retention in 2010—and are shown in the furthest right column on the page. Tables showing the percentage distribution for all questions for all seven justices 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-justice and the second column displays the percentages for all Supreme Court justices, excluding the report-justice. The percentages are shown both including and excluding “don‟t know/undecided” responses. 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 Appellate Judges section of the report lists the comments the attorney made about the judge‟s strengths and weaknesses. e. Cooperation Rate: The overall response rate for the Attorneys Regarding Appellate Judges Survey is calculated as the number of completed survey-evaluations (Supreme Court plus Court of Appeals) divided by the number of possible evaluations. An equivalent response rate for an individual justice or judge is computed as the number of completed survey- evaluations for that justice or judge divided by the number of possible evaluations that could have been completed for the judge or justice. A table of the overall response rate and the response rate for Justice Bender is shown below. 16 ## Page 20 Requested No Undeliv- Completed Cooperation Evaluations Response erable Evaluations Rate Justice Bender 827 647 175 21.2% All Supreme Court 3408 2693 25 689 20.4% Justice All Appellate Judges 5471 4430 43 997 18.4% (SC and COA) The cooperation rate in the table above is based on the percent of survey-evaluations completed, and not the percent of attorneys who responded with at least one completed evaluation. From 2005 to 2010 a total of 3,712 attorneys were asked to participate in the Attorneys Regarding Appellate Judges Survey and on average to evaluate 4.6 justices or judges each—a total of 17,075 potential attorney evaluations. One thousand three hundred and eighty (1,380) attorneys responded (37.2%) with one or more survey evaluations. The average number of judges evaluated per attorney was 2.5. II District Judges Regarding Appellate Judges a. Sample: All district judges and appellate judges (Supreme Court and Court of Appeals) were sent a questionnaire in January 2010 asking them to evaluate the four Supreme Court justices and five Court of Appeals judges standing for retention in 2010. b. Questions: The questionnaire consisted of nine A through F questions plus the recommend retention question (see the next report section for the questionnaire). The A through F responses were converted to a numerical scores where A = 4, B = 3, C = 2, D = 1 and Fail = 0. c. Comments: In addition to the A through F questions, respondents were asked to write a comment about each justice and judge. By statute these comments are confidential and only provided to the justice or judge and the State Commission on Judicial Performance. They are not released to the public when the rest of the report is released. Before being given to the justice or judge and the Commission, an attempt is made to redact all respondent identifying information from the comments. An effort has been made to correct spelling and typographical errors. 17 ## Page 21 d. Analysis: The District Judges Regarding Appellate Judges section first shows a table of the percentage distribution for each of the A through F questions, including “don‟t know” responses. The next column to the right shows the justice‟s or judge‟s average grade for each question. For comparison purposes, averages were also computed for the other three retention Supreme Court justices‟ combined results, and are shown in the furthest right column on the page. Tables showing the percentage distribution for all questions for the four Supreme Court retention justices are located at the end of this methodology section. The overall 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-justice and the second column displays the percentages for the other three Supreme Court retention justices combined. The percentages are shown both including and excluding “don‟t know/undecided” responses. 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 Appellate Judges lists the comments district and appellate justices and judges wrote about the report-justice. e. Cooperation Rate: One hundred and eighty-eight (188) questionnaires were mailed (7 Supreme Court, 22 Court of Appeals and 159 district judges) and 137 were returned, though not all nine justices and judges were evaluated in every returned questionnaire. 18 ## Page 22 Projectability Most surveys seen by the public are surveys that are intended to be projectable, that is the results from the sample of people surveyed can be used to estimate a percentage or value of the population sampled with a known probability of error. For example, a pre- election poll of 500 likely Colorado voters is used to estimate the percentage of voters who will vote for Candidate A versus Candidate B on election day, plus or minus some number of percentage points. The plus or minus amount is usually what is known as the 95%-confidence interval (the known probability of error), or what the media often refers to as the margin-of-error. Neither the Attorneys Regarding Appellate Judges nor the District Judges Regarding Appellate Judges is projectable with a known probability of error because the results are calculated from a self-selecting sample that is self-selecting based on the content and subject matter of the survey. In other words, the potential respondent knows the purpose and content of the survey, and based on that, decides whether to respond to the survey. While projectability within a known probability of error is a highly desirable attribute of a survey, it is often not feasible to achieve. Commercial market research often uses nonprojectable (and small) samples-the most well known of which are for focus groups. Moreover, the federal courts have long accepted, and do not expect, projectable samples for market confusion surveys used in trademark litigation. In other words, one can still use the results of the Judicial Performance Evaluation Survey to estimate how everyone who has observed a justice or judge in the courtroom would grade him or her, just not with a known probability of error. The Judicial Performance Evaluation Survey is a valuable means, perhaps the only practical means, for the Judicial Performance Commissions to have a summary of structured interviews with a number of people who have courtroom familiarity with the judge being evaluated, and who most often - albeit not always - are responding out of a desire to improve the performance of our state's judicial system. 19 ## Page 23 Survey of Attorneys Regarding Appellate Judges All Supreme Court Justices Sample Size = 2162 Average A B C D Fail DK/NA Grade Question 2: 2a.Being fair and impartial toward each side of the case. 56% 20% 9% 6% 6% 3% 3.16 2b.Allowing parties to present their arguments and answer 60% 21% 8% 3% 2% 6% 3.43 questions. 2c.Treating parties equally regardless of race, sex or 68% 9% 4% 2% 3% 14% 3.59 economic status. 2d.Being courteous toward attorneys. 65% 19% 6% 3% 2% 5% 3.51 2e.Not engaging in ex parte communications. 57% 4% 2% 1% 1% 36% 3.79 2f. Being prepared for oral argument. 58% 19% 7% 2% 2% 10% 3.44 Question 2 Average Grade 3.49 Question 3: 3a.Writing opinions that are clear. 49% 28% 14% 6% 4% 1% 3.14 3b.Writing opinions that adequately explain the basis of the 48% 27% 12% 7% 5% 1% 3.09 Court's decision. 3c.Issuing opinions in a timely manner. 50% 25% 9% 2% 3% 11% 3.32 3d.Making decisions without regard to possible criticism. 55% 18% 11% 4% 4% 8% 3.27 3e.Making reasoned decisions based upon the law and facts. 48% 19% 14% 9% 10% 0% 2.85 3f. Refraining from reaching issues that need not be decided. 42% 20% 14% 6% 8% 10% 2.90 Question 3 Average Grade 3.10 Overall Average Grade: 3.29 2010 Judicial Performance Survey Report 20 ## Page 24 Survey of Attorneys Regarding Appellate Judges All Supreme Court Justices Sample Size = 2162 Average Grade 6. How strongly do you recommend that the Justice be retained in office, or not be retained in office? [Percentages excluding undecided responses.] Strongly recommend retain 64% Somewhat recommend retain 16% Somewhat recommend not retain 9% Strongly recommend not retain 11% Total Retain 80% Total Not Retain 20% [Percentages including undecided responses.] Strongly recommend retain 59% Somewhat recommend retain 15% Undecided or Don't Know 6% Somewhat recommend not retain 8% Strongly recommend not retain 10% Total Retain 74% Undecided/Don't Know 6% Total Not Retain 18% 2010 Judicial Performance Survey Report 21 ## Page 25 Survey of District Judges Regarding Appellate Judges All 2010 Supreme Court Retention Justices Average Sample Size = 137 A B C D Fail DK/NA Grade 1. Being fair and impartial toward each side in a case. 56% 21% 7% 5% 0% 10% 3.41 2. Writing opinions that are clear. 52% 28% 10% 4% 1% 6% 3.35 3. Writing opinions that adequately explain the basis of the 58% 24% 9% 3% 1% 6% 3.43 Court's decision. 4. Issuing opinions in a timely manner. 33% 25% 5% 4% 0% 32% 3.28 5. Making decisions without regard to possible criticism. 63% 14% 3% 2% 2% 15% 3.58 6. Making reasoned decisions based upon the law and facts. 52% 26% 8% 5% 1% 8% 3.34 7. Refraining from reaching issues that need not be decided. 43% 24% 9% 4% 1% 19% 3.28 8. Treating parties equally regardless of race, sex or 72% 7% 3% 2% 1% 16% 3.73 economic status. 9. Not engaging in ex parte communications. 46% 3% 1% 0% 1% 49% 3.79 Overall Average Grade: 3.47 2010 Judicial Performance Survey Report 22 ## Page 26 Survey of District Judges Regarding Appellate Judges All 2010 Supreme Court Retention Justices Sample Size = 137 Average Grade 10. Recommend retain/not retain. [Percentages excluding undecided responses.] Strongly recommend retain 74% Somewhat recommend retain 16% Somewhat recommend not retain 7% Strongly recommend not retain 3% Total Retain 90% Total Not Retain 10% [Percentages including undecided responses.] Strongly recommend retain 70% Somewhat recommend retain 16% Undecided or Don't Know 5% Somewhat recommend not retain 6% Strongly recommend not retain 3% Total Retain 86% Undecided/Don't Know 5% Total Not Retain 9% 2010 Judicial Performance Survey Report 23 ## Page 27 QQuueessttiioonnnnaaiirreess ## Page 28 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 ..................................................................................................... 5 2. 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 justice, please check DK/NS for Don't Know/Not Sure. 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 Justice Roy Bean 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 (Last Name)’s strengths? __________________________________________________________________________________ _________________________________________________________________________________ ______________________________________________________________________________ ## Page 29 5. What would you say are Judge (Last Name)’s weaknesses? _ _ _ 6. 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 the judge be retained in office . 5 Somewhat recommend the judge be retained in office . 4 Undecided or don’t know enough to make recommendation . 3 Somewhat recommend the judge not be retained in office . 2 Strongly recommend the judge not be retained in office . 1 ## Page 30 Please answer the enclosed questions about each of the four Supreme Court justices and the five Court of Appeals judges who are eligible to stand for retention in November 2010. For questions 1 through 9 please grade each of the judges using a grade scale where an “A” is excellent along with B, C, D or F for fail. If, for a specific question, you feel that you do not have enough information to grade the judge on the task, or for some reason feel that you cannot grade him or her on the item, please circle the number that indicates “no grade.” Thank you. Page 12 ## Page 31 1. Being fair and impartial toward each side in a case. H. Please write comments you would like to make about Judge No Nancy J. Lichtenstein in the space below. If you would like A B C D F Grade to make more comments than space allows, feel free to attach Justice Michael L. Bender . 4 3 2 1 0 6 a sheet with additional comments. Justice Alex J. Martinez . 4 3 2 1 0 6 _ Justice Mary J. Mullarkey . 4 3 2 1 0 6 _ Justice Nancy E. Rice . 4 3 2 1 0 6 _ Judge Sean Connelly. 4 3 2 1 0 6 _ _ Judge John Daniel Dailey . 4 3 2 1 0 6 _ Judge Richard L. Gabriel . 4 3 2 1 0 6 _ Judge Nancy J. Lichtenstein . 4 3 2 1 0 6 _ Judge David J. Richman . 4 3 2 1 0 6 _ _ I. Please write comments you would like to make about Judge David J. Richman in the space below. If you would like to 2. Writing opinions that are clear. make more comments than space allows, feel free to attach a No sheet with additional comments. A B C D F Grade _ Justice Michael L. Bender . 4 3 2 1 0 6 _ Justice Alex J. Martinez . 4 3 2 1 0 6 _ Justice Mary J. Mullarkey . 4 3 2 1 0 6 _ Justice Nancy E. Rice . 4 3 2 1 0 6 _ Judge Sean Connelly. 4 3 2 1 0 6 _ Judge John Daniel Dailey . 4 3 2 1 0 6 _ Judge Richard L. Gabriel . 4 3 2 1 0 6 _ Judge Nancy J. Lichtenstein . 4 3 2 1 0 6 _ Judge David J. Richman . 4 3 2 1 0 6 _ Please mail the completed questionnaire in the enclosed postage-paid envelope. Thank you. Page 2 Page 11 ## Page 32 F. Please write comments you would like to make about 3. Writing opinions that adequately explain the basis of the Judge John Daniel Dailey in the space below. If you Court’s decision. would like to make more comments than space allows, feel No free to attach a sheet with additional comments. A B C D F Grade _ Justice Michael L. Bender . 4 3 2 1 0 6 _ Justice Alex J. Martinez . 4 3 2 1 0 6 _ Justice Mary J. Mullarkey . 4 3 2 1 0 6 _ Justice Nancy E. Rice . 4 3 2 1 0 6 _ Judge Sean Connelly . 4 3 2 1 0 6 _ Judge John Daniel Dailey . 4 3 2 1 0 6 _ Judge Richard L. Gabriel . 4 3 2 1 0 6 _ Judge Nancy J. Lichtenstein . 4 3 2 1 0 6 _ Judge David J. Richman . 4 3 2 1 0 6 _ 4. Issuing opinions in a timely manner. G. Please write comments you would like to make about Judge Richard L. Gabriel in the space below. If you No A B C D F Grade would like to make more comments than space allows, feel Justice Michael L. Bender . 4 3 2 1 0 6 free to attach a sheet with additional comments. _ Justice Alex J. Martinez . 4 3 2 1 0 6 _ Justice Mary J. Mullarkey . 4 3 2 1 0 6 _ Justice Nancy E. Rice . 4 3 2 1 0 6 _ Judge Sean Connelly . 4 3 2 1 0 6 _ Judge John Daniel Dailey . 4 3 2 1 0 6 _ Judge Richard L. Gabriel . 4 3 2 1 0 6 _ Judge Nancy J. Lichtenstein . 4 3 2 1 0 6 _ Judge David J. Richman . 4 3 2 1 0 6 _ _ Page 10 Page 3 ## Page 33 5. Making decisions without regard to possible criticism. D. Please write comments you would like to make about Justice Nancy E. Rice in the space below. If you would like to make No more comments than space allows, feel free to attach a sheet A B C D F Grade with additional comments. Justice Michael L. Bender . 4 3 2 1 0 6 _ Justice Alex J. Martinez . 4 3 2 1 0 6 _ Justice Mary J. Mullarkey . 4 3 2 1 0 6 _ Justice Nancy E. Rice . 4 3 2 1 0 6 _ Judge Sean Connelly. 4 3 2 1 0 6 _ Judge John Daniel Dailey . 4 3 2 1 0 6 _ Judge Richard L. Gabriel . 4 3 2 1 0 6 _ Judge Nancy J. Lichtenstein . 4 3 2 1 0 6 _ _ Judge David J. Richman . 4 3 2 1 0 6 _ E. Please write comments you would like to make about Judge 6. Making reasoned decisions based upon the law and Sean Connelly in the space below. If you would like to make facts. more comments than space allows, feel free to attach a sheet No with additional comments. A B C D F Grade _ Justice Michael L. Bender . 4 3 2 1 0 6 _ Justice Alex J. Martinez . 4 3 2 1 0 6 _ Justice Mary J. Mullarkey . 4 3 2 1 0 6 _ Justice Nancy E. Rice . 4 3 2 1 0 6 _ Judge Sean Connelly. 4 3 2 1 0 6 _ Judge John Daniel Dailey . 4 3 2 1 0 6 _ Judge Richard L. Gabriel . 4 3 2 1 0 6 _ Judge Nancy J. Lichtenstein . 4 3 2 1 0 6 _ Judge David J. Richman . 4 3 2 1 0 6 _ Page 4 Page 9 ## Page 34 S5 B. Please write comments you would like to make about Justice 7. Refraining from reaching issues that need not be Alex J. Martinez in the space below. If you would like to make decided. more comments than space allows, feel free to attach a sheet No with additional comments. A B C D F Grade _ Justice Michael L. Bender . 4 3 2 1 0 6 _ Justice Alex J. Martinez . 4 3 2 1 0 6 _ Justice Mary J. Mullarkey . 4 3 2 1 0 6 _ Justice Nancy E. Rice . 4 3 2 1 0 6 _ Judge Sean Connelly . 4 3 2 1 0 6 _ Judge John Daniel Dailey . 4 3 2 1 0 6 _ Judge Richard L. Gabriel . 4 3 2 1 0 6 _ Judge Nancy J. Lichtenstein . 4 3 2 1 0 6 _ Judge David J. Richman . 4 3 2 1 0 6 _ C. Please write comments you would like to make about Justice Mary J. Mullarkey in the space below. If you would like to 8. Treating parties equally regardless of race, sex or make more comments than space allows, feel free to attach a economic status. sheet with additional comments. No _ A B C D F Grade _ Justice Michael L. Bender . 4 3 2 1 0 6 _ Justice Alex J. Martinez . 4 3 2 1 0 6 _ Justice Mary J. Mullarkey . 4 3 2 1 0 6 _ Justice Nancy E. Rice . 4 3 2 1 0 6 _ Judge Sean Connelly . 4 3 2 1 0 6 _ Judge John Daniel Dailey . 4 3 2 1 0 6 _ Judge Richard L. Gabriel . 4 3 2 1 0 6 _ Judge Nancy J. Lichtenstein . 4 3 2 1 0 6 _ Judge David J. Richman . 4 3 2 1 0 6 Page 8 ## Page 35 9. Not engaging in ex parte communications. 10. [Continued] No Judge Judge Judge 6 A B C D F Grade Connelly Dailey Gabriel Justice Michael L. Bender . 4 3 2 1 0 6 Strongly recommend to retain . 5 5 5 Somewhat recommend to retain . 4 4 4 Justice Alex J. Martinez . 4 3 2 1 0 6 Undecided or don’t know enough Justice Mary J. Mullarkey . 4 3 2 1 0 6 to make recommendation . 3 3 3 Justice Nancy E. Rice . 4 3 2 1 0 6 Somewhat recommend not retain . 2 2 2 Judge Sean Connelly. 4 3 2 1 0 6 Strongly recommend not retain . 1 1 1 Judge John Daniel Dailey . 4 3 2 1 0 6 Judge Judge Judge Richard L. Gabriel . 4 3 2 1 0 6 Lichtenstein Richman Judge Nancy J. Lichtenstein . 4 3 2 1 0 6 Strongly recommend to retain . 5 5 Judge David J. Richman . 4 3 2 1 0 6 Somewhat recommend to retain . 4 4 Undecided or don’t know enough to make recommendation . 3 3 Somewhat recommend not retain . 2 2 10. Recommend to be retained/not retained in office. Strongly recommend not retain . 1 1 Justice Justice A. Please write comments you would like to make about Justice Bender Martinez Strongly recommend to retain . 5 5 Michael L. Bender in the space below. If you would like to Somewhat recommend to retain . 4 4 make more comments than space allows, feel free to attach a sheet with additional comments. Undecided or don’t know enough _ to make recommendation . 3 3 _ Somewhat recommend not retain . 2 2 Strongly recommend not retain . 1 1 _ _ _ Justice Justice _ Mullarkey Rice Strongly recommend to retain . 5 5 _ Somewhat recommend to retain . 4 4 _ Undecided or don’t know enough _ to make recommendation . 3 3 _ Somewhat recommend not retain . 2 2 Strongly recommend not retain . 1 1 Page 6 Page 7

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