Colorado lawmakers launch effort to reform judicial discipline

A trio of Colorado lawmakers launched an effort this week to reform the state’s long-troubled system for disciplining judges who violate ethical or professional rules.

A bipartisan bill introduced Monday aims to immediately give more independence, funding and access to the Colorado Commission on Judicial Discipline, and also would also create a special committee to study how to best overhaul the system for disciplining judges in order to “restore public confidence” in the state’s courts.

The committee would finish its work and make recommendations for change, which could include amending the Colorado Constitution, before the start of next year’s legislative session.

The proposal is sponsored by Sen. Pete Lee, D-El Paso County, Sen. Bob Gardner, R-El Paso County, and Rep. Mike Weissman, D-Arapahoe County, and follows reporting by The Denver Post last year that revealed an alleged blackmail scandal and cover-up in which a top judicial administrator allegedly threatened to publicly reveal judges’ unaddressed misconduct unless she was given a lucrative contract.

In January, leaders of the Commission on Judicial Discipline, the group responsible for disciplining judges, told legislators they tried to hire a law firm to investigate allegations of judicial misconduct connected to that scandal, but that the effort stalled because the state Supreme Court did not sign off on the necessary funding in what leaders of the commission said was an attempt to influence the scope of the commission’s investigation.

“The credibility of Colorado’s judiciary is best served by a system of judicial discipline that is overseen by an independent commission on judicial discipline that includes perspectives from the community, the bar and the judiciary, rather than being ultimately controlled by the judiciary,” the bill, SB22-201, reads.

The proposed reforms include creating an independent office of judicial discipline within the Judicial Department that would be overseen by the commission and staffed by an executive director, attorney, support person and investigator. The bill sets aside $400,000 in new state funding for the commission, which Lee said is aimed at giving them independence from the Judicial Department.

“It became clear to me after looking into it that the Office of Judicial Discipline is structurally, functionally and financially dependent on the Judicial Department,” Lee said, saying the bill was prompted by news coverage of the scandals. “They are not independent, so they can be daunted at every turn.”

The lawmakers also propose explicitly requiring any member of the state’s Judicial Department to report potential misconduct about a judge or state Supreme Court justice to the Commission on Judicial Discipline and share information and documents about the alleged misconduct.

The proposal would prohibit the Judicial Department from discouraging information sharing with the commission — including through non-disclosure agreements — and would require that other judicial oversight agencies, like the Office of Attorney Regulation Counsel or the Office of Judicial Performance Evaluation, also report potential judicial misconduct to the commission.

The Commission on Judicial Discipline is enshrined in the Colorado Constitution, which requires that most discipline proceedings against judges be kept confidential and gives the state Supreme Court the authority to set rules for the commission.

Those tenets can’t be changed without a constitutional amendment that’s put to voters, but the bill would require the state Supreme Court to give notice before changing the commission’s rules, and hold a public hearing about the proposed changes.

For years, Colorado judges have been disciplined almost entirely in secret because of the requirements set out in the state constitution. Only six judges have been publicly disciplined in Colorado since 2010, and only about 54 judges have faced private discipline since 2010. There are around 400 judges in the state.

The state’s constitution gives the justices — not the commission — the ultimate power to carry out any public discipline against judges. Public discipline includes steps like censure, suspension or removal. The commission can issue private discipline, like admonishments, censures or improvement plans, without going through the state’s high court.

The bill would create a special committee of lawmakers to study the larger issues around judicial discipline that could then introduce up to three bills next year’s legislative session around reform. The committee would consider whether the discipline system for judges is effective, how it should be funded, whether it should remain under the authority of the state Supreme Court, whether the commission should be given more power, and how transparency and confidentiality should be balanced, among other issues.

The commission’s executive director has in the past dismissed the vast majority of complaints the organization receives on the grounds the complaints do not fall under the commission’s jurisdiction. The commission does not consider judges’ rulings — legal issues must be decided in the courts — and instead considers problems like an unprofessional demeanor, late judgments or sexual harassment.

In 2020, the commission received 199 complaints; only nine were accepted for further investigation, according to the commission’s most recent annual report.

The special committee would also consider whether that screening process should be adjusted, according to the 24-page bill.

Christopher Gregory, executive director of the Commission on Judicial Discipline, declined to comment on the bill Monday.

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