The need for the judicial branch of government to preserve its integrity exceeds that of any other public institution.
The activities of legislative and executive bodies can have profound effects on people’s lives. But courts pass judgment. They have the power to deny individuals of their freedom. They decide grave matters of property, family and crime, and their activities spring most immediately from society’s core ethics, a quality reflected in the ceremony of court proceedings.
If members of the public are to accept the legitimacy of the court system, they must have trust in the personal character of its officers and the culture of its offices. But in Colorado, the integrity of the judicial branch is in doubt.
We know this largely because of persistent and deep reporting by David Migoya and The Denver Post. Based on the paper’s recent stories about the Colorado Judicial Branch, it is clear that an independent, transparent, exhaustive investigation of the branch is in order. Inquiries so far announced are not up to the task of ensuring transparency for the people of Colorado. Furthermore, an independent investigation must weigh the question of whether criminal acts were committed at the highest level of the branch.
In the summer of 2019, Migoya reported that Christopher Ryan, Colorado’s chief court administrator, resigned after the newspaper started looking into a questionable contract Ryan had awarded to Mindy Masias, who until March that year had been the branch’s chief of staff. She had resigned following the discovery of irregularities in claims she made for travel and other reimbursements. Yet, strangely, the department, with the approval of then-Chief Justice Nathan Coats and the other six justices of the Colorado Supreme Court, gave a $2.5 million contract to a company Masias had just founded to provide leadership training to judges and other administrative officials throughout the judicial branch.
Just before he resigned, Ryan canceled the contract. At the time, he said the reason for the cancellation was related to technicalities. But now we know the real reason.
According to the Post’s reporting this month, Ryan says the $2.5 million Masias contract was actually an attempt to suppress damaging information. In exchange for the money, Masias would refrain from filing a “tell-all” sexual-discrimination lawsuit that threatened to implicate more than 20 judges and department administrators. A memo that the Post obtained outlined the allegations: sexism and harassment by “the Chief Justice,” judges sending pornographic videos through official email, a coverup of harassment accusations against a judge, sexual misconduct, apparent misuse of private information and other wrongdoings. Most of the alleged perpetrators remain unidentified.
In January 2019, a meeting about the allegations took place in Coats’ chambers and included Coats; the chief justice’s counsel, Andrew Rottman; Ryan; and the then-head of the department’s human resources, Eric Brown. Here’s how the Post described what happened:
Brown began to read the memo aloud and got about half-way through it when Coats waved his arms for Brown to stop, Ryan said.
“Coats says that’s enough, he doesn’t want to hear any more,” Ryan said. “Then he said, ‘What can we do about it? What are our options?”’
That’s when Ryan and Brown “made the proposal” for the judicial training contract to Masias … The contract “would prevent a lawsuit and the judiciary from having to deal with a public airing of a host of ills of personal things judges do that are not related to their decision-making,” Ryan told The Post … “It was definitely a quid-pro-quo.”
A quid-pro-quo made under false pretenses with public funds.
In a message sent to judicial personnel from the email account of new Chief Justice Brian Boatright but signed anonymously by “The Colorado Supreme Court,” the justices say they are engaging an outside investigator to conduct an independent review of the allegations and make recommendations to the justices. There is no chance such a review, commissioned by the very department under suspicion, can meet the standards of transparency and thoroughness due the people of Colorado in this matter. In fact, the justices don’t even say if any part of the review would ever be made public.
Colorado Auditor Dianne Ray will investigate circumstances around the $2.5 million contract, and her office could recommend charges to the attorney general’s office or a district attorney. But the scope of her inquiry is limited, and it comes with no assurance that members of the public will learn much, or anything, about her findings.
Several state lawmakers have said the Legislature could have an oversight role to play. But, while there is certainly legislation lawmakers should consider in response to the case, it’s not clear that the General Assembly is the proper venue through which to conduct an exhaustive review that will result in findings for public inspection.
There’s an alternative. Gov. Jared Polis could appoint Attorney General Phil Weiser as a special prosecutor to conduct an investigation. Given the conflict inherent in Weiser’s office investigating another state agency, Weiser in turn could appoint a special assistant attorney general to handle the matter, with the understanding that one outcome would be a public account of key findings.
It’s likely, if the Post’s reporting stands up to scrutiny, that such an investigator would consider criminal charges. The attorney general might also find cause to invoke the “patterns and practices” provision of the law enforcement reform bill adopted last year in the wake of the Black Lives Matter protests. The provision allows the attorney general to bring a civil suit against government officials who exhibit a pattern of conduct “that deprives persons of rights, privileges, or immunities.”
The judicial branch case highlights the need for the Legislature to apply better transparency to the state’s court system. The need has long existed. Now it’s urgent.
State and local government bodies are subject to the Colorado Open Records Act, but, based on a legal precedent established by the courts themselves, the judiciary is exempt. Lawmakers in their upcoming session should adopt legislation that pulls the court system further into CORA-like sunshine, where a general presumption that records are open to public inspection would prevail.
In recent years, due largely to the work of journalists like Migoya, transparency-minded lawmakers, and advocacy groups like the Colorado Freedom of Information Coalition, judicial branch transparency has indeed expanded. In 2018, the Legislature succeeded in applying a narrow provision of CORA to the judicial branch when it passed a bill, later signed into law, that opened records of sexual harassment complaints and investigations to the complainant and the subject of a complaint.
But judicial branch administrative and budget records remain outside CORA’s reach. And the sexual harassment provision is due to expire on May 1.
There is no doubt that the vast majority of judges, administrators and staffers throughout Colorado’s judicial system are honest public servants who care deeply about their work and perform their duties honorably. This is all the more reason for an exhaustive public accounting of alleged improprieties, because reported widespread misconduct now threatens the reputation of the whole system.