Judicial discipline proceedings would be public in Colorado under proposal
A legislative committee discussed several changes to state law in wake of Judicial Branch misconduct allegations
A photograph of the Ralph L. Carr Colorado Judicial Center. (Moe Clark/Colorado Newsline)
As Colorado’s Judicial Branch has continued to face heat over the past year and a half for alleged misconduct, the Legislative Interim Committee on Judicial Discipline proposed three pieces of legislation intended to improve the state’s judicial discipline processes.
At the committee’s meeting Wednesday, state legislators from the House and Senate discussed three ideas for staff to draft bill language around, including updates to Colorado’s Constitution and statutes. The committee will meet again Sept. 30 to determine whether it will send legislation to the full General Assembly next year. Should the bills make it through the Legislature next year, Colorado voters would be asked to approve the constitutional amendments during the 2024 election.
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The interim committee formed after former State Court Administrator Christopher Ryan told The Denver Post last year he believed a former Judicial Branch chief of staff was awarded a $2.5 million contract to keep her from going public with years worth of alleged misconduct from judicial department officials in a threatened sex discrimination lawsuit. Independent investigators later determined the deal was not a quid pro quo and that the chief justice had already decided to award the contract to the employee before learning of her threats. Still, they found that the decision was “steeped in unethical behavior, misconduct and lies,” the Post reported.
Another investigation, this one looking specifically at allegations of harassment and sexism across the Judicial Branch, was delayed because of how many employees came forward to speak with the independent investigators. The report on this investigation came out July 11 and detailed multiple individual allegations as well as the overall problematic power culture within the department.
As the Colorado Commission on Judicial Discipline has continued its own investigations into this and similar matters, leaders have cited a lack of cooperation from the Judicial Branch as the reason behind delays. Most recently, a letter penned by the executive director of the commission claimed branch officials had misrepresented their cooperation with the commission’s investigations. Essentially, the letter said the department has not been cooperative in providing materials the commission legally requested in a timely manner.
Committee Vice Chair Rep. Terri Carver, a Colorado Springs Republican, said while there is a decent amount of overlap between the first two proposals, it’s because the committee wants to ensure the specifics are outlined as clearly as possible in both the Constitution and statues. Committee Chair Rep. Mike Weissman, an Aurora Democrat, said he views the constitutional changes as a place for issues to be outlined more broadly and “stand the test of time” while the statues are where the details would be fleshed out. The pair said their proposals are based on everything presented to the committee in its prior hearings as well as other states’ standards on similar matters.
The committee agreed to move forward with Carver’s proposal for a resolution that would ask voters to change Article VI of the Colorado Constitution under Section 23, concerning the retirement and removal of justices and judges. One of the proposed changes would create an independent body separate from the commission to decide whether a justice or judge engaged in misconduct, as well as prosecution or discipline. The commission would retain its investigatory functions.
The new body would only come into play if the commission, through its investigation, decides a formal hearing is warranted because “the evidence and the level of misconduct takes it beyond an informal remedial action or private discipline,” Carver said. The proceedings of the independent body would be public, as currently any such proceedings remain confidential. Carver said Colorado is currently one of “very few states” where these proceedings take place behind closed doors.
The body would be composed of an equal number of judges, lawyers and citizens, with one of each being randomly selected to handle each case, excluding any potential conflicts of interest. Judges would be appointed by the Colorado Supreme Court, while lawyers and citizens would be appointed by the governor, with Senate confirmation required for both.
The Judicial Branch has opposed the idea of creating an independent board to oversee discipline, as previously reported by the Post. The department wants to keep discipline in the hands of the Supreme Court, but the commission questioned how well the court holds itself accountable as it looks to maintain the public appearance of the court system.
Currently, the Supreme Court is in charge of handling public judicial discipline matters, and this can present a conflict of interest especially if a fellow justice is being investigated for misconduct. But the current system allows most discipline that judges receive to be shielded from the public, the Post also reported.
According to Carver’s committee proposal, the commission would be able to appeal to the Supreme Court if charges were dismissed after the independent body’s proceedings. She said they also intend to modify language around these proceedings to be a more limited appellate review as opposed to a full-blown “de novo” review. This means that if an issue were to be brought before the state Supreme Court, it would review the adjudicate proceedings instead of starting a brand new trial.
Another change legislators hope to see in the Constitution would allow the commission to keep the complaint victims up to date on their investigations prior to any formal proceedings. Other than this, investigations remain confidential until they are brought to a formal hearing. Carver said there is legal confusion currently as to whether the commission is able to keep victims up to date because of the sweeping confidentiality provision in the Constitution.
The committee also proposed that should a judge be reprimanded for any form of wrongdoing or misconduct — privately or publicly — the results of the commission’s investigation must be shared with the Commissions on Judicial Performance for purposes of retention, as well as Judicial Nominating Commissions, Carver said. The Office of Attorney Regulation Counsel and the Office of the Presiding Disciplinary Judge would also be given any information on judicial discipline because of their oversight roles.
Carver added that in an attempt to improve transparency and accountability, aggregate data on how the process works would be compiled for the public. The data would remain aggregated in an attempt to protect confidentiality, and Carver said legislative staff will advise the committee on whether a constitutional amendment is necessary to allow this kind of data compilation.
Another proposed constitutional change would create a rulemaking committee for judicial discipline, chaired by a member of the commission, but the size of this committee has yet to be determined. The Supreme Court’s role in this body would involve a review and approval process, as is the case with other rulemaking committees.
Rights of the victim
The last proposed constitutional amendment outlines how a complaint against a Supreme Court justice should be handled. If the commission decides to appeal the initial group of three’s review, the appellate review couldn’t go to the Supreme Court. Instead, a panel of seven randomly selected courts of appeals judges would be compiled to hear the appellate review. Any judge with prior disciplinary action taken against them or a conflict of interest would be excluded from the pool of judges pulled for the panel.
The second potential resolution would update the Colorado statutes. The first change Weissman suggested would cement the commission’s subpoena power while conducting investigations into accusations.
Other potential changes Weissman detailed pertain to confidential and anonymous reporting, which he said the committee has heard is “integral to a functioning process” throughout its hearings. He also mentioned outlining the specific rights of the victim throughout the investigation and hearing process, ensuring the details of the complaint process are fully explained.
It would also be cemented in statutes how discipline data and metrics are tracked and reported publicly, but in a way that keeps specific details of a complaint confidential unless it goes to a public hearing.
The final item in this piece is for the committee to decide whether it wants to keep a misdemeanor penalty for revealing any information about complaints while they’re still in the commission’s investigative phase. Weissman said there is no definitive decision on this yet, but some see it as discouraging the reporting of a misconduct complaint.
The third piece of legislation the committee discussed, which would also lead to a change in the statutes, would create an ombudsman office to help both employees and members of the public better understand the judicial discipline process.
This was the fourth of five meetings the interim committee will hold. A variety of recommendations were made and witnesses were heard throughout the earlier meetings.
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