Bills that propose overhauling the process for how Colorado disciplines its judges — including a constitutional referendum that voters would see in 2024 — were overwhelmingly approved by a state House committee on Wednesday.
The three measures — House Concurrent Resolution 23-1001, House Bill 23-1019 and House Bill 23-1205 — each unanimously passed the House Judiciary Committee, 13-0. They are now headed to that chamber’s appropriations panel before it can go to a vote of the full House.
The bills are the result of summer-long hearings by a special legislative committee formed after allegations surfaced in 2021 about judicial misconduct that went unpunished or was handled leniently.
Those 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 instead.
Newspaper stories in 2019 exposed the contract and later, in 2021, the underlying threats that were allegedly the reason behind it. The contract was cancelled following the news reports.
Two separate investigations, launched by the Judicial Department, could not prove the contract was the result of a quid pro quo but did admonish the department for a number of shortcomings that included concerns with the process for filing misconduct complaints against judges and the overall experience by victims who did.
The hearings also uncovered an underbelly of deep distrust, disagreement and discord between the Colorado Commission on Judicial Discipline and the state Supreme Court, specifically with how the commission operates and how it is in part beholden to the court’s oversight.
Legislators chose to split the commission from the court into an independent body, but they noted additional changes are necessary to comply with how the Colorado Constitution already established the judicial discipline process, including a voter referendum to change it.
The resolution, HCR23-1001, offers an amendment to the Colorado Constitution that changes how the judicial discipline process works. Voters would be asked to approve or reject the measure in 2024.
The biggest change is removing the state Supreme Court from the discipline decision-making process. Currently, the court names three judges, known as special masters, to hear formal discipline cases and make recommendations to the Commission on Judicial Discipline, which prosecutes them.
Those recommendations, if they are for formal and public censure, are forwarded to the Supreme Court, which can approve or reject them.
The new system will have a 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 as the three-person committee to hear formal discipline cases and make a decision on any potential punishment, or to dismiss a case outright.
Under the proposal, the Supreme Court acts only as an appellate body, deciding only issues brought up on appeal. It will not be able to dismiss a case or hide any decision from public view, as it can now.
Additionally, the court must recuse itself from any discipline 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. Should that happen, 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.
Another bill, HB23-1019, sets out rules for how guidelines governing the proposed judicial discipline process will be written, particularly how the Supreme Court and the discipline commission interact.
Until now, the court has had overall authority to change the rules without specifically seeking input from the commission, which has occurred on occasion. The bill would require both sides to have input and make “good-faith efforts” at resolving any disagreements.
It would also allow public comment about any proposed rule change, a first.
The commission would also be required to publish annually statistics about discipline cases conducted over the previous year and allow the public access to a searchable database.
Additionally, complaints about judicial misconduct can be filed anonymously or online, also a first, and 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 discipline commission.
“That only has a chilling effect on any complainants,” bill co-sponsor Rep. Mike Weissman, an Aurora Democrat.
The Judicial Department, and by extension the Supreme Court, generally supported the referendum and first bill, according to its liaison, Terry Scanlon.
“It became clear that our process of judicial discipline was outdated,” Scanlon told legislators.
Weissman agreed.
“What we have from the 1960s is a bit of an outlier,” he said. “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, establishes an office of judicial ombudsman whose job is to create the 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.
Its office would not be located in the same building as the Supreme Court to prevent victims from being intimidated to seek assistance.
The office is separate from one the Judicial Department had proposed earlier in the year for its human resources department, where employees could go for help when considering filing a complaint about other department employees. That proposal was rejected by the legislature’s appropriations committee.
“The ombuds concept is what CCASA finds the most important to changing the culture within the judicial branch,” said Elizabeth Newman, public policy director for the Colorado Coalition Against Sexual Assault. “Providing that safe place is the most critical piece of this reform.”
Said Rep. Jennifer Bacon, D-Denver, who co-sponsored the ombudsman bill: “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.”
