A pair of recommendations to reform Colorado's system of judicial discipline — including a potential amendment to the state Constitution voters could be asked to pass in 2024 — are headed to the General Assembly following Friday's formal approval by the legislature's Legislative Council.
The recommendations came from an interim committee of legislators formed last spring with the passage of a bill that gave independent funding to the Colorado Commission on Judicial Discipline following weeks of contentious public hearings that bared the undertow of discord between that body and the Colorado Supreme Court that sits above it.
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Commission members have said, and Supreme Court justices have refuted, the level of cooperation that once existed between the two has been irreparably damaged during inquiries the former had taken up into allegations of misconduct that included sitting and past members of the high court. Those allegations are rooted in a purported contract-for-silence scandal that has rocked Colorado's third branch of government since it was revealed in newspaper stories nearly two years ago.
The interim committee heard dozens of hours of testimony from a variety of stakeholders about ideas on changing Colorado's method of disciplining its judges. The most significant change that could occur, should a proposed bill be approved and signed by the governor, is the removal of absolute secrecy over pending judicial discipline matters. Currently, a judge's discipline record only becomes public if the Supreme Court approves it. The proposed bill would make it public from the filing of formal charges, much like cases in criminal or civil courts, and the hearings thereafter would be open.
Additionally, the bill removes the Supreme Court as overseer of the discipline process. Currently, the court selects three judges, known as special masters, to sit as tribunal in a discipline case. Under the proposal, three people arbitrarily chosen from a larger pool — a trial judge, an attorney and a citizen without connection to either profession — would sit as the tribunal, and the Supreme Court would only act as the appellate review.
And if a sitting or former Supreme Court justice is the subject of or witness in any inquiry, the entire court would be recused and a new panel of seven would be chosen from the state's 11 Court of Appeals judges.
A third measure of proposed changes would have created an independent ombudsman's office to walk complainants through the process and keep them updated. Members of the interim committee instead said the measure needed more work at the statehouse. The Judicial Department on Friday confirmed it has plans to create such an office for non-judicial complaints by its employees. An investigation earlier this year determined the department suffered from employee fears of retaliation for reporting misconduct and insufficient avenues for safe reporting.
"The department is in the planning stages of an organizational ombudsman office or function to provide a safe landing place, support, and resources for employees involved in conflicts with other employees," spokesman Jon Sarche said in an email. "An ombudsman office or function regarding a judge’s conduct should be outside and independent of the Judicial Department. The department has not proposed and is not discussing an internal ombudsman function for issues related to the conduct of judges."
Regarding the constitutional amendment, Rep. Mike Weissman, D-Aurora, who chaired the interim committee, told the Legislative Council that "this is one of those issues that is pretty much beyond party," noting the panel unanimously approved the suggested resolution.
"We also knew that downstream (of needing a 2/3 approval by the General Assembly), a 55% margin we would need to earn in the electorate to pass constitutional changes would require broad support and a pretty good universe of proponents, including members of this legislature and both parties," Weissman said. "This (measure) represents earnest and legitimate compromise."
