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Michael H. Berger

Court of Appeals

Meets Standards(Retain)1 cycle on record

Evaluation history

  • 2016 retention cycle
    Court of Appeals
    Meets Standards(Retain)
    VotersRetained· 68.9% yes
    1,455,076 yes · 656,357 no50% needed to retain
    Retention Year: 2016 Recommendation: Retain Reports: 2016 Retention Survey Report 2015 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 9 to 0, with one recusal, that Judge Michael H. Berger BE RETAINED. Judge Berger was sworn in as a Judge on the Court of Appeals on January 24, 2014. He earned a bachelor’s degree from Cornell University in 1972 and a law degree from the University of Colorado, School of Law in 1975. Judge Berger was admitted to the Colorado bar in 1975 after which he spent a year as law clerk for Colorado Supreme Court Justice Edward Pringle. Before joining the bench he was a partner at the law firms of Husch Blackwell LLP (2011-2013), Jacobs Chase LLP (2007-2011) and Koff Corn & Berger P.C. (1982-2007). His practice focused on commercial litigation, appeals, and legal ethics.  Judge Berger has served as a Visiting Lecturer in Law, University of Colorado School of Law (1978-1979) and as a frequent presenter on legal ethics. He serves on many professional committees including the Colorado Supreme Court Committee on Rules of Civil Procedure (current Chair), Colorado Supreme Court Committee on Rules of Appellate Procedure, and the Colorado Supreme Court Standing Committee on the Colorado Rules of Professional Conduct. The Commission conducted a personal interview with Judge Berger, read opinions he authored, observed him in court, reviewed his self-evaluation and reviewed survey responses from attorneys and judges regarding his performance. Among the survey questions was “how strongly do you recommend that Judge Berger be retained in office, or not be retained in office?” Of attorneys completing the survey 77% recommended to retain, 14% not to retain, and 9% made no recommendation regarding retention. Of judges completing the survey 100% recommended that he be retained. Attorney survey responses indicate that Judge Berger’s performance was above average in treating parties equally, courtesy toward attorneys, issuing opinions in a timely manner, and being fair and impartial toward each side of the case. Attorney responses also indicate that he is strong in making reasoned decisions, writing opinions that are clear and that adequately explain the basis of the decision. The Commission’s observation of Judge Berger during oral arguments showed that he was well prepared and actively questioned the attorneys as they presented their arguments. Attorneys further acknowledge that he has strong analytical skills and his decisions are well researched, thorough, and straightforward.  His independence and intellect were often mentioned and admired.  Attorney comments  also noted that this independence, on occasion, compromises his attention to precedent in order to reach a desired conclusion.  The Commission agrees with Judge Berger that he should continue to work to gain additional experience in the area of criminal law.  Judge Berger is conscientious and the Commission commends him for his work to improve the legal profession.

Surveys & reports

  • 2016 cycle
    • 2015 Interim Survey Report(PDF on OJPE)
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      ## Page 1 The Honorable Michael H. Berger 2015 Judicial Performance Interim Report Court of Appeals ## Page 2 May 29, 2015 The Honorable Michael H. Berger Colorado Court of Appeals 2 East 14th Avenue Denver, CO 80203 Dear Judge Berger: I am pleased to make available to you the attached copy of your 2015 Judicial Performance Interim Survey Report. This report is based on a survey of attorneys who have had cases heard before a Court of Appeals panel of which you authored an opinion, concurrence, or dissent. In addition to this introduction, the report is divided into four main sections: 1. A brief summary of the results of the attorney survey. 2. 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. 3. The third section of the report discusses the methodology of the surveys. 4. The final section provides a copy of the attorney questionnaire. If you have any questions about the methodology and how the survey was conducted, please feel free to contact me at 505-821-5454 or by email at sanderoff@rpinc.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, Kent Wagner, at 303-928-7779. Best regards, Brian Sanderoff President ## Page 3 Summary of Results Respondents rated judges on various questions using an A to F scale, in which the grades were then converted to numerical scores: A= 4, B=3, C=2, D=1 and F=0. An average score of 4.0 is the highest possible score and a 0.0 is the lowest possible score. Attorneys assigned Judge Michael H. Berger an overall average grade of 3.33. Average Attorney Grades by Year Judge Berger Average Sample Score Size Year 2007 NA NA 2008 NA NA 2009 NA NA 2010 NA NA 2011 NA NA 2012 NA NA 2013 NA NA 2014 3.33 45 All Years 3.33 45 Table 1 The results presented in this report are based on data collected from 2007 through 2014. (See Methodology section for description of sampling process.) The table above shows Judge Berger's overall average grades from attorneys for up to eight years (for each year in which survey results are available.) Provisional judges will not have samples for the years prior to their appointment. 1 ## Page 4 Survey of Attorneys Regarding Judge Michael H. Berger (Sample Size 45) ## Page 5 Survey of Attorneys Regarding Court of Appeals Judges Average (0.0 to 4.0 scale) Judge Michael H. Berger All COA Judge Berger Judges* Sample Size = 45 A B C D Fail DK/NA Question 2: 2a.Being fair and impartial toward each side of the case. 56% 26% 5% 9% 2% 2% 3.26 3.22 2b.Allowing parties to present their arguments and answer 65% 14% 2% 7% 0% 12% 3.55 3.44 questions. 2c.Treating parties equally regardless of race, sex or 72% 12% 2% 2% 0% 12% 3.74 3.55 economic status. 2d.Being courteous toward attorneys. 53% 19% 5% 2% 2% 19% 3.46 3.50 2e.Not engaging in ex parte communications. 58% 7% 0% 0% 0% 35% 3.89 3.81 2f. Being prepared for oral argument. 56% 9% 12% 0% 0% 23% 3.58 3.47 Question 2 Average Grade 3.58 3.50 Question 3: 3a.Writing opinions that are clear. 52% 26% 13% 3% 6% 0% 3.13 3.20 3b.Writing opinions that adequately explain the basis of the 48% 29% 6% 13% 3% 0% 3.06 3.13 Court's decision. 3c.Issuing opinions in a timely manner. 61% 23% 10% 0% 0% 6% 3.55 3.38 3d.Making decisions without regard to possible criticism. 45% 26% 13% 3% 6% 6% 3.07 3.26 3e.Making reasoned decisions based upon the law and 42% 19% 16% 13% 10% 0% 2.71 2.92 facts. 3f. Refraining from reaching issues that need not be 45% 10% 23% 3% 6% 13% 2.96 3.10 decided. Question 3 Average Grade 3.08 3.17 Overall Average Grade: 3.33 3.33 * Includes only the Court of Appeals judges evaluated during this interim cycle. Note: Respondents rated judges on various questions using an A to F scale, in which the grades were then converted to numerical scores: A=4, B=3, C=2, D=1 and F=0. An average score of 4.0 is the highest possible score and a 0.0 is the lowest possible score. 'DK/NA' = Don't Know / Not Applicable. 2015 Judicial Performance Interim Report 2 ## Page 6 Survey of Attorneys Regarding Court of Appeals Judges Percentage Judge Michael H. Berger All COA Judge Berger Judges* How strongly do you recommend that Judge Berger be retained in office, or not be retained in office? Strongly recommend retain 46% 48% Recommend retain 32% 27% Neither recommend nor not recommend retain 10% 12% Recommend not retain 7% 7% Strongly recommend not retain 5% 6% Total Retain 78% 75% Neither 10% 12% Total Not Retain 12% 13% * Includes only the Court of Appeals judges evaluated during this interim cycle. 2015 Judicial Performance Interim Report 3 ## Page 7 Judge Michael H. Berger Survey of Attorneys Regarding Court of Appeals Judges Average Grades 3.33 Overall average grade 3.33 3.58 Question 2 average grade 3.50 3.26 2a. Being fair and impartial toward each side of the case. 3.22 2b. Allowing parties to present their arguments and 3.55 answer questions. 3.44 2c. Treating parties equally regardless of race, sex or 3.74 economic status. 3.55 3.46 2d. Being courteous toward attorneys. 3.50 3.89 2e. Not engaging in ex parte communications. 3.81 3.58 2f. Being prepared for oral argument. 3.47 3.08 Question 3 average grade 3.17 3.13 3a. Writing opinions that are clear. 3.20 3b. Writing opinions that adequately explain the 3.06 basis of the Court's decision. 3.13 3.55 3c. Issuing opinions in a timely manner. 3.38 3.07 3d. Making decisions without regard to possible criticism. 3.26 2.71 3e. Making reasoned decisions based upon the law and facts. 2.92 2.96 3f. Refraining from reaching issues that need not be decided. 3.10 2.0 2.5 3.0 3.5 4.0 Judge Berger All Court of Appeals Judges* * Includes only the Court of Appeals judges evaluated during this interim cycle. 4 2015 Judicial Performance Interim Report ## Page 8 Judge Michael H. Berger Survey of Attorneys Regarding Court of Appeals Judges How strongly do you recommend that Judge Berger be retained or not retained in office? 46% Strongly recommend retain 48% 32% Recommend retain 27% Judge Berger All COA Judges* 10% Neither retain nor not retain Total Retain 78% 75% 12% Neither 10% 12% Total Not Retain 12% 13% 7% Recommend not retain 7% 5% Strongly recommend not retain 6% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Judge Berger All Court of Appeals Judges* * Includes only the Court of Appeals judges evaluated during this interim cycle. 5 2015 Judicial Performance Interim Report ## Page 9 MMeetthhooddoollooggyy ## Page 10 Methodolgy The results shown in the 2015 Judicial Performance Interim Survey Report are based on the survey of Attorneys Regarding Appellate Judges. Below is a description of the methodologies used for this survey. Attorneys Regarding Court of Appeals Judges a. Sample: The Attorneys Regarding Court of Appeals Judges sample comes from a list of Court of Appeals opinions provided by the Clerk of the Court of Appeals. This list 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. Only judges and justices that are due to receive an interim evaluation in 2015 were evaluated during this reporting cycle. The intent was to increase the number of completed attorney evaluations for each judge and justice by excluding those not due to receive an interim evaluation in 2015. The number of possible judges and justices that attorney respondents could evaluate was 10. Attorneys are first mailed a letter inviting them to complete the survey online. The letter provides the link to the online survey, as well as a unique password to access the survey. Approximately one week later, attorneys are sent an email invitation to complete the online survey, which also provides the Web address and their unique password. About a week after the first email is sent, a reminder email is sent, providing the same information. Potential respondents who do not complete the survey after the second email are then telephoned and asked to either complete the survey by phone, or to complete it online. Since 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 and eight years for a COA judge. To use a Court of Appeals judge as an example: as survey data is collected it is pooled together for eight years. After eight years, as new data is added to the judge’s survey results, the oldest data in the pool will be deleted. 7 ## Page 11 b. Questions: Respondents evaluated judges on 17 aspects of judicial performance using a grade scale of A, B, C, D, or F. (See Questionnaire section.) These grades were then converted to a numerical score 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. Respondents were also asked to indicate how strongly they would recommend that the judge be retained or not retained in office. c. Analysis: The Attorneys Regarding Court of Appeals Judges section first shows a table of the percentage distribution for each of the A through F questions, including “don’t know/not applicable” responses. The next column to the right shows the judge’s average grade for each question. For comparison purposes, averages were also computed for all Court of Appeals judges receiving an interim evaluation in 2015 and are shown in the furthest right column on the page. Tables showing the percentage distribution for all questions for all Court of Appeals judges 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-judge and the second column displays the percentages for all Court of Appeals judges. 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 last part of the Attorneys Regarding Court of Appeals Judges section of the report lists the comments the attorneys made about the judge’s strengths and weaknesses. d. Comments: Respondents were also asked what they considered to be the judge’s strengths and weaknesses. By statute, these comments are confidential and only provided to the 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 judge and the Commission, an attempt is made to redact all respondent identifying information from the comments. The number to the left of each comment refers to the same attorney respondent in both the strengths section and the weaknesses section. Most spelling and typographical errors have been corrected. 8 ## Page 12 e. Cooperation Rate: The overall cooperation rate for the Attorneys Regarding Court of Appeals Judges Survey is calculated as the number of completed survey-evaluations divided by the number of possible evaluations, resulting in an overall cooperation rate of 25.9% for Judge Berger. Undeliverable surveys have been excluded from the cooperation rates. Looking at only the 2014 results, the cooperation rate for Judge Berger is 25.9% (not shown below). A table of Judge Berger’s cooperation rate is shown below. This cooperation rate is based on data collected from 2014 through 2014. Undeliv- Requested No erable/Not Completed Cooperation Evaluations Response Applicable Evaluations Rate Judge Berger 343 129 169 45 25.9% 9 ## Page 13 Survey of Attorneys Regarding Court of Appeals Judges All Court of Appeals Judges* Average Sample Size = 2268 Grade (0.0 to A B C D Fail DK/NA 4.0 scale) Question 2: 2a.Being fair and impartial toward each side of the case. 56% 20% 9% 6% 5% 5% 3.22 2b.Allowing parties to present their arguments and answer 57% 19% 6% 3% 2% 12% 3.44 questions. 2c.Treating parties equally regardless of race, sex or 62% 10% 4% 3% 3% 19% 3.55 economic status. 2d.Being courteous toward attorneys. 61% 16% 6% 3% 2% 12% 3.50 2e.Not engaging in ex parte communications. 53% 4% 2% 0% 1% 40% 3.81 2f. Being prepared for oral argument. 56% 16% 6% 2% 2% 17% 3.47 Question 2 Average Grade 3.50 Question 3: 3a.Writing opinions that are clear. 50% 26% 11% 4% 4% 4% 3.20 3b.Writing opinions that adequately explain the basis of the 50% 24% 11% 7% 4% 4% 3.13 Court's decision. 3c.Issuing opinions in a timely manner. 54% 25% 9% 2% 2% 8% 3.38 3d.Making decisions without regard to possible criticism. 51% 17% 9% 5% 4% 15% 3.26 3e.Making reasoned decisions based upon the law and facts. 49% 19% 13% 10% 8% 1% 2.92 3f. Refraining from reaching issues that need not be decided. 47% 18% 11% 5% 6% 14% 3.10 Question 3 Average Grade 3.17 Overall Average Grade: 3.33 * Includes only the Court of Appeals judges evaluated during this interim cycle. Note: Respondents rated judges on various questions using an A to F scale, in which the grades were then converted to numerical scores: A= 4, B=3, C=2, D=1 and F=0. An average score of 4.0 is the highest possible score and a 0.0 is the lowest possible score. 2015 Judicial Performance Interim Report 10 ## Page 14 Survey of Attorneys Regarding Court of Appeals Judges All Court of Appeals Judges* Average Grade (0.0 to 4.0 scale) How strongly do you recommend that the Judge be retained in office, or not be retained in office? Strongly recommend retain 48% Recommend retain 27% Neither recommend nor not recommend retain 12% Recommend not retain 7% Strongly recommend not retain 6% Total Retain 75% Neither 12% Total Not Retain 13% * Includes only the Court of Appeals judges evaluated during this interim cycle. 2015 Judicial Performance Interim Report 11 ## Page 15 QQuueessttiioonnnnaaiirree ## Page 16 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 judge/justice, please check DK/NA for Don't Know/Not Applicable. 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 [ Judge/Justice Last Name] 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/Justice Last Name]’s strengths? __________________________________________________________________________________ _________________________________________________________________________________ ______________________________________________________________________________ ## Page 17 5. What would you say are [Judge/Justice Last Name]’s weaknesses? _ _ _ 6. Keeping in mind your responses to each of the previous questions, how strongly do you recommend that [Judge/Justice Last Name] be retained in office, or not retained in office? Strongly recommend retain in office . 5 Recommend retain in office . 4 Neither recommend nor not recommend retain in office . 3 Recommend not retain in office . 2 Strongly recommend not retain in office . 1
    • 2016 Retention Survey Report(PDF on OJPE)
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      ## Page 1 The Honorable Michael H. Berger 2016 Judicial Performance Survey Report Appellate Court Conducted by: 75 Washington Ave. Ste. 206 Portland, ME 04101 www.marketdecisions.com ## Page 2 Contents Summary of Results . 1 Overall Score . 1 Retention Scores . 2 Individual Category Scores . 3 Respondent Characteristics . 4 Survey of Attorneys . 5 Methodology and How to Read Results . 5 Retention . 7 General Evaluation . 8 Writing .10 Survey of District and Appellate Judges .11 Methodology and How to Read Results .11 Retention .13 Individual Questions .14 i ## Page 3 Summary of Results For Judge Michael H. Berger, 224 qualified survey respondents submitted surveys. Of those who responded, 120 agreed they had worked with Judge Berger enough to evaluate his performance. This report reflects these 120 responses. Respondents rated judges on various questions using an A to F for fail scale, in which the grades were then converted to the following numerical scores: A= 4, B=3, C=2, D=1 and Fail=0. An average score of 4.0 is the highest possible score and a 0.0 is the lowest possible score. Overall Score Figure 1 0.00 1.00 2.00 3.00 4.00 Combined 3.65 Attorneys 3.3 District and Appellate Judges 3.85 Table 1 Judge Michael H. Berger Overall Scores District and Combined Attorneys Appellate Judges Overall Grade 3.65 3.3 3.85 2016 Judicial Performance Survey Report for Judge Michael H. Berger 1 ## Page 4 Retention Scores Figure 2 0% 20% 40% 60% 80% 100% Combined 92% Attorneys 77% District & Appellate Judges 100% Table 2 Judge Michael H. Berger Overall Retention Scores District & Combined Attorneys Appellate Judges % Recommending 92% 77% 100% Retention 2016 Judicial Performance Survey Report for Judge Michael H. Berger 2 ## Page 5 Individual Category Scores Table 3 Judge Michael H. Berger Overall Category Scores District and Area Attorneys Appellate Judges General 3.47 3.85 Writing 3.12 N/A 2016 Judicial Performance Survey Report for Judge Michael H. Berger 3 ## Page 6 Respondent Characteristics Table 4: Response Rates % Without Undeliverable or Group Total Sent Complete Response Rate sufficient Not Applicable* knowledge** Attorneys 257 13 43 43% 59% District and Appellate 211 0 77 56% 35% Judges *Undeliverable or Not Applicable surveys are those that were returned as undeliverable, the person no longer works at the address provided, or the respondent is deceased **The percent without sufficient knowledge are those that said they had insufficient experience to evaluate the judge or justice 2016 Judicial Performance Survey Report for Judge Michael H. Berger 4 ## Page 7 Survey of Attorneys Methodology and How to Read Results For Judge Berger, 106 qualified survey respondents submitted surveys. Of those who responded, 43 agreed they had worked with Judge Berger enough to evaluate his performance. This report reflects these 43 responses. The survey results are divided into two sections: General Evaluation and Writing. The results are shown in both graphs and tables. Each judge’s scores are shown along with a comparison to other judges who serve at the same court level. The comparison group is called “Appellate Judges” on the charts. a. Response rates During the 2015 administration, a total of 13,709 survey invitations were sent to 5,482 attorneys inviting them to evaluate judges and justices standing for retention in 2016. On average, each attorney was asked to evaluate 2.5 judges. 3,738 surveys were completed with an additional 1,818 responses where the attorney indicated that they did not have enough experience with the judge to be comfortable evaluating him or her. The response rate for the survey was 42% and the survey completion rate (the number of those familiar enough to evaluate the judge divided by the total number of attorney responses including those indicating they did not have sufficient familiarity to evaluate the judge) was 67%. A total of 161 invitations were sent to 27 staff attorneys working in the appellate courts. Of these, 81 surveys were completed and an additional 11 indicated that they did not have enough experience with the judge to be comfortable evaluating him or her. The response rate for the survey was 57% and the survey completion rate (the number of those familiar enough to evaluate the judge divided by the total number of attorney responses including those indicating they did not have sufficient familiarity to evaluate the judge) was 88%. b. Methodology The 2015 attorney survey was conducted online beginning on September 16, 2015 and closed on February 22nd 2016. Attorneys were first mailed a pre-notification letter sent on September 16, 2015 informing them about the survey and providing a link and login information to access the survey online. Next, a series of three email invitations were sent on September 24th, September 30th, and October 14th. Reminder calls were placed to the offices of selected attorneys in an attempt to increase response rates between November 12th and December 1st. Additional invitations were sent upon request during the reminder calls. 2016 Judicial Performance Survey Report for Judge Michael H. Berger 5 ## Page 8 Appellate staff attorneys received the same survey as other attorneys, but were invited separately with a series of email invitations starting with the initial invite on October 5th, 2015 and followed with reminders on October 14th and 22nd. To further increase response rates, an additional cycle of data collection took place in January and February 2016. Invitations were e-mailed to attorneys who had appeared before judges standing for retention in the 3rd and 4th quarters of 2015. The initial invitations were sent on January 19th and reminders were sent on January 29th and February 3rd. c. Questions: Respondents evaluated judges on 6 aspects of judicial performance using a grade scale of A, B, C, D, or F. These grades were then converted to a numerical score where A = 4, B = 3, C = 2, D = 1 and Fail = 0. Those that indicated that they were familiar with the Judge’s written opinions were asked to rate the judge in an additional six areas related to the Judge’s writing skills. In a final question, respondents were asked to indicate how strongly they would recommend that the judge or justice be retained or not retained in office. For this evaluation cycle, the “Don’t know enough to make a recommendation” response category was excluded from the retention question. d. Analysis: Letter grades were then converted to a numerical score where A = 4, B = 3, C = 2, D = 1 and Fail = 0 for analysis. The overall score is calculated by averaging the responses to all questions answered. This score will have the same numerical range as the individual questions from zero to four. The overall average will be reported for each judge along with the average scores for the judge’s peers. In addition, the report will include the distribution of responses for each question. That is, the percentage of attorneys that assigned a rating of A, B, C, D, and F. e. Comments: Respondents were also asked what they considered to be the judge or justice’s strengths and weaknesses. By statute, these comments are confidential and only provided to the judge and the District Commission on Judicial Performance. They are not released to the public when the rest of the report is released. 2016 Judicial Performance Survey Report for Judge Michael H. Berger 6 ## Page 9 Retention Keeping in mind your responses to each of the previous questions, how strongly do you recommend that Judge Berger be retained in office, or not be retained in office? Table 5 Judge Michael H. Berger Total Retain 77% Neither 9% Total Not Retain 14% Figure 3 100% 80% 59% 60% 56% 40% 21% 17% 20% 9% 9% 9% 9% 5% 6% 0% Strongly recommend Somewhat Undecided or don't Somewhat Strongly recommend that he or she be recommend he or know enough to recommend he or he or she not be retained in office she be retained in make a she not be retained retained in office office recommendation in office Judge Berger All Appellate Judges 2016 Judicial Performance Survey Report for Judge Michael H. Berger 7 ## Page 10 General Evaluation Using a grade scale, where an "A" is excellent along with B, C, D or F for fail, please grade Judge Berger on the following. If, for a specific question you feel that you do not have enough information to grade the judge, please check DK/NA for Don't Know/Not Applicable. Figure 4 3.43 Appellate General Overall Average 3.47 3.55 Being prepared for oral argument 3.71 3.94 Not engaging in ex parte communications 4 3.47 Being courteous toward attorneys 3.43 Treating parties equally regardless of race, sex, or 3.67 economic status 3.69 Allowing parties to present their arguments and answer 3.48 questions 3.41 3.22 Being fair and impartial toward each side of the case 3.28 0 1 2 3 4 All Appellate Judges Judge Berger 2016 Judicial Performance Survey Report for Judge Michael H. Berger 8 ## Page 11 Table 6 Appellate General Judge Michael H. Berger All Overall A B C D Fail DK/NA Appellate Number of Responses: 43 Average Judges Being fair and impartial toward 49% 30% 9% -- 5% 7% 3.28 3.22 each side of the case Allowing parties to present their arguments and answer 56% 21% 2% 2% 5% 14% 3.41 3.48 questions Treating parties equally regardless of race, sex, or 63% 14% 2% 2% -- 19% 3.69 3.67 economic status Being courteous toward 56% 19% 5% 7% -- 14% 3.43 3.47 attorneys Not engaging in ex parte 43% -- -- -- -- 57% 4 3.94 communications Being prepared for oral 65% 12% 2% 2% -- 19% 3.71 3.55 argument Appellate General Overall Average 3.47 3.43 2016 Judicial Performance Survey Report for Judge Michael H. Berger 9 ## Page 12 Writing Using a grade scale, where an "A" is excellent along with B, C, D or F for fail, please grade Judge Berger on the following. If, for a specific question you feel that you do not have enough information to grade the judge, please check DK/NA for Don't Know/Not Applicable. Figure 5 3.18 Appellate Writing Overall Average 3.12 Refraining from reaching issues that need not be 3.13 decided 3 Making reasoned decisions based upon the law and 2.98 facts 2.76 3.39 Making decisions without regard to possible criticism 3.6 3.45 Issuing opinions in a timely manner 3.5 Writing opinions that adequately explain the basis of the 3.16 Court's decision 3.11 3.22 Writing opinions that are clear 3.14 0 1 2 3 4 All Appellate Judges Judge Berger Table 7 Appellate Writing Judge Michael H. Berger All Overall A B C D Fail DK/NA Appellate Number of Responses: 37 Average Judges Writing opinions that are clear 43% 38% 11% 5% 3% -- 3.14 3.22 Writing opinions that adequately explain the basis of the Court's 43% 35% 14% 5% 3% -- 3.11 3.16 decision Issuing opinions in a timely manner 51% 27% 8% -- -- 14% 3.5 3.45 Making decisions without regard to 59% 14% 5% 3% -- 19% 3.6 3.39 possible criticism Making reasoned decisions based 38% 24% 22% 8% 8% -- 2.76 2.98 upon the law and facts Refraining from reaching issues 35% 24% 11% 8% 3% 19% 3 3.13 that need not be decided Appellate Writing Overall Average 3.12 3.18 2016 Judicial Performance Survey Report for Judge Michael H. Berger 10 ## Page 13 Survey of District and Appellate Judges Methodology and How to Read Results For Judge Berger, 118 qualified survey respondents submitted surveys. Of those who responded, 77 agreed they had worked with Judge Berger enough to evaluate his performance. This report reflects these 77 responses. a. Response rates For the inter-appellate evaluation, invitations were sent via email to all 28 Supreme Court justices and Court of Appeals judges. Judges and justices not standing for retention in 2016 were invited to evaluate all their appellate peers standing for retention. Appellate Judges and Justices standing for retention in 2016 were invited to evaluate their fellow judges up for retention, but not themselves. Of these, 23 responded and 21 completed the survey. The response rate was 82% and the completion rate was 91%. District judges were invited to evaluate their peers standing for retention on the Court of Appeals or Supreme Court via email. For this survey all district judges were sent invitations to evaluate the 11 Court of Appeals judges or Supreme Court justices standing for retention. A total of 1,983 survey invitations were sent and 613 responded and 611 completed the survey. The overall response rate was 31% and the completion rate was 99%. b. Methodology Both District Judges and fellow members of the Supreme Court or Court of Appeals were asked to evaluate the appellate judges and justices standing for retention in 2016. The evaluation of appellate judges and justices standing for retention by their peers in the appellate courts began with an email invitation sent on January 6th. A reminder email was sent on January 13th to those who had not yet responded. The evaluation of appellate judges and justices by their peers in the district courts began with an email invitation sent on November 10th. A reminder email was sent on November 23rd to those who had not yet responded. c. Questions Both groups of judges providing appellate evaluations answered the same questions. The survey consisted of a series of 9 questions where the respondent was asked to rate the judges performance with an A through F letter grade. They were then asked how strongly they do or do not recommend the judge or justice for retention and given an opportunity to provide any written comments. 2016 Judicial Performance Survey Report for Judge Michael H. Berger 11 ## Page 14 d. Analysis Letter grades were then converted to a numerical score where A = 4, B = 3, C = 2, D = 1 and Fail = 0 for analysis. The overall score is calculated by averaging the responses to all questions answered. This score will have the same numerical range as the individual questions from zero to four. The overall average will be reported for each judge along with the average scores for the judge’s peers. In addition, the report will include the distribution of responses for each question. That is, the percentage of attorneys that assigned a rating of A, B, C, D, and F. e. Comments Respondents were given the option to leave supporting comments in a box next to where they graded each judge. By statute, these comments are confidential and only provided to the judge and the District Commission on Judicial Performance. They are not released to the public when the rest of the report is released. 2016 Judicial Performance Survey Report for Judge Michael H. Berger 12 ## Page 15 Retention Keeping in mind your responses to each of the previous questions, how strongly do you recommend that Judge Berger be retained in office, or not be retained in office? Table 8 Judge Michael H. Berger Total Retain 100% Neither 0% Total Not Retain 0% Figure 6 100% 86% 78% 80% 60% 40% 20% 20% 14% 2% 1% 0% 0% Strongly recommend Somewhat Undecided or don't Somewhat Strongly recommend that he or she be recommend he or know enough to recommend he or he or she not be retained in office she be retained in make a she not be retained retained in office office recommendation in office Judge Berger All Appellate Judges 2016 Judicial Performance Survey Report for Judge Michael H. Berger 13 ## Page 16 Individual Questions Using a grade scale, where "A" is excellent along with B, C, D, or F for fail, please grade the following appellate judges on each aspect by selecting the appropriate letter grade. If you feel that you don't have enough information about a judge to mark a specific grade, please select "No Grade". Figure 7 Appellate Judge Overall Average 3.69 3.85 Not engaging in ex parte communications 3.92 4 Treating parties equally regardless of race, sex, or 3.84 economic status 3.91 Being fair and impartial toward each side of the case 3.74 3.86 Refraining from reaching issues that need not be 3.53 decided 3.74 Making reasoned decisions based upon the law and 3.61 facts 3.83 Making decisions without regard to possible criticism 3.77 3.91 Issuing opinions in a timely manner 3.64 3.85 Writing opinions that adequately explain the basis of the 3.59 Court's decision 3.83 Writing opinions that are clear 3.58 3.81 0 1 2 3 4 All Appellate Judges Judge Berger 2016 Judicial Performance Survey Report for Judge Michael H. Berger 14 ## Page 17 Table 9 Appellate Individual Questions Judge Michael H. Berger All Overall A B C D Fail DK/NA Appellate Number of Responses: 77 Average Judges Writing opinions that are clear 83% 14% 3% -- -- -- 3.81 3.58 Writing opinions that adequately explain the basis of the Court's 83% 17% -- -- -- -- 3.83 3.59 decision Issuing opinions in a timely manner 78% 14% -- -- -- 8% 3.85 3.64 Making decisions without regard to 89% 3% 3% -- -- 6% 3.91 3.77 possible criticism Making reasoned decisions based 83% 17% -- -- -- -- 3.83 3.61 upon the law and facts Refraining from reaching issues that 78% 14% 6% -- -- 3% 3.74 3.53 need not be decided Being fair and impartial toward each 86% 8% 3% -- -- 3% 3.86 3.74 side of the case Treating parties equally regardless of 83% 8% -- -- -- 8% 3.91 3.84 race, sex, or economic status Not engaging in ex parte 78% -- -- -- -- 22% 4 3.92 communications Appellate Judge Overall Average 3.85 3.69 2016 Judicial Performance Survey Report for Judge Michael H. Berger 15

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