On Wednesday, March 15, 2023, The Denver Gazette reported that a State House Committee approved the bills that propose overhauling the process for how Colorado will discipline its judges. This includes a constitutional referendum that voters would witness in 2024.

The House Judiciary Committee voted 13-0, overwhelmingly approving the three measures: House concurrent resolution 23-1001, House Bill 23-1019, and House Bill 23-1205. These bills are now headed to the chamber’s appropriations panel before they will be decided in the full house. 

In 2021, allegations formed regarding judicial misconduct that went unpunished or mismanaged. The said allegations were at the core of threats by a former high-ranking judicial department official who faced firing over financial irregularities. She threatened a tell-all sex-discrimination lawsuit and allegedly received a multi-million-dollar contract.

However, the judicial department, through two separate investigations could not prove that the contract was the result of a quid pro quo, but they did admonish the department for a number of shortcomings including concerns with the process for filing misconduct complaints against judges and the overall experience by victims. The investigations also unveiled the growing disagreement and distrust between the Colorado Commission on Judicial Discipline and the state Supreme Court, specifically with how the former operates. 

These events paved the way for the summer-long hearings of the special legislative committee. The legislators decided then to split the commission from the court, in order to recreate it as an independent body. However, legislators noted that additional changes are necessary in order to comply with the Colorado Constitution which mandates a referendum. 

The resolution, HCR23-1001 offers a solution through an amendment to the constitution of Colorado that modifies how the judicial discipline will work more efficiently. One of the biggest restructural changes is the removal of the state Supreme Court from the discipline decision-making process. In the current process, three judges (special masters) hear formal discipline cases and make recommendations to the Commission on Judicial Discipline, which then prosecutes the allegations. The said recommendations, if formal and public censure, are now forwarded to the Supreme Court which then decides to approve or reject them.

As a form of change, the new system will be comprised of the 12-member adjudicative body made up of four citizens, four attorneys, and four district court judges. One from each category is randomly selected to sit on the three-person committee to hear formal discipline cases and make a decision on any potential punishment, or to dismiss a case outright. The Supreme Court will only now act as an appellate body, deciding only issues brought up on appeal. The court must recuse itself from any disciplinary matter against a sitting or retired Supreme Court justice, or if an employee of a justice, a family member, or a justice themselves is a witness in a discipline case. If that happens, the court is replaced by a seven-member panel randomly selected from the state’s 22 sitting judges of the Court of Appeals and more than 300 district court judges.

In the issue of how the Supreme Court and the discipline commission will interact, HB23-1019 sets out rules for how guidelines governing the proposed judicial discipline process will be written. The bill would require both sides to have input and make “good-faith efforts” at resolving any disputes. Currently, the court has the overall authority to change the rules without specifically seeking input or comments from the commission. Moreover, in accordance with the bill, the commission will be required to publish annual statistics about discipline cases conducted over the previous year and allow the public access to a searchable database.

Bill co-sponsor Rep. Mike Weissman, an Aurora Democrat, stated “that only has a chilling effect on any complainants,” This is in regard to the changes that complaints about judicial misconduct can now be filed anonymously or online. The commission is required to update anyone who files a complaint about the status of their case. The bill would remove the misdemeanor criminal penalty for a complainant to disclose a matter before the judicial discipline.

According to the first bill’s liaison, Terry Scanlon, “It became clear that our process of judicial discipline was outdated, what we have from the 1960s is a bit of an outlier.” He added, “We’ve gotten out of sync. Some of what we heard this summer was troubling over what it’s like to be a complainant.”

The last bill, HB23-1205, on the other hand, is mandated to establish an office of judicial ombudsman whose job is to create an anonymous reporting system for judicial employees and help complainants understand their rights and options in reporting judicial misconduct. The ombudsman would remain in contact with a complainant throughout the discipline process while ensuring its confidentiality. The office of the judicial ombudsman would not be in the same building as the Supreme Court to prevent victims from being intimidated to seek assistance.

Rep. Jennifer Bacon, D-Denver, who co-sponsored the ombudsman bill stated, “all of this isn’t necessarily about a Supreme Court justice, and I’m sure we’ll never see another multi-million-dollar contract again … these issues became so notorious that people asked us to help them rebuild their confidence in the judiciary.”

 

Source: The Denver Gazette