The Colorado Supreme Court has approved a new rule – just days after taking public testimony about it – that requires the seven justices to step down from any misconduct inquiry that involves them or a former member of the court.
The rule, formally known as Rule 41 of the Rules of Judicial Discipline and adopted Thursday, also requires the justices to recuse themselves if the inquiry involves a colleague, family member or staffer either as a focus of investigation or as a witness.
In approving the rule, the court glaringly did not address objections by the Colorado Commission on Judicial Discipline, which had said it was a conflict of interest for the justices to replace themselves in such inquiries with members of the state Court of Appeals, which the new rule does. The commission recommended replacements from a pool that includes district court judges.
The court did, however, address concerns by The Judicial Integrity Project, which argued that naming appellate judges was unconstitutional because it gave them additional duties not allowed by law.
“Randomly substituting in judges from the Court of Appeals as contemplated by this rule is not an expansion of the Court of Appeals’ jurisdiction,” the justices wrote. “Any judicial officers randomly selected will not be acting in their capacities as Court of Appeals judges; rather, they will be temporarily stepping into the shoes of the Supreme Court justices.”
The commission would not comment when The Denver Gazette asked about the court's rejection of their finding. The court similarly refused to comment when asked to explain. The court and commission have been at odds for months despite laws that require the two sides to work out their problems when there's disagreement.
A court spokesman last week said Rule 41 “mirrors” the summertime work of a special legislative committee that took testimony about reforming the judicial discipline process. The committee referred to the Legislature a resolution that would create a wholly independent office of judicial discipline, including a three-person tribunal to hear cases. That resolution – known as HCR23-1001 – was introduced last week and similarly recuses justices during inquiries involving them and replaces them with appellate court judges.
The resolution also makes formal judicial proceedings public and limits the Supreme Court to reviewing discipline decisions rather than being able to keep them secret or dismiss them outright.
If approved by the Legislature, the resolution would need to be approved by voters in 2024 because it would amend the Colorado Constitution. The court spokesman said the new rule was merely to ensure the process did not have to wait until voter approval. The resolution, if approved, would codify the new rule in law so that the court couldn't change it in the future.
Rule 41 is largely in response to a three-year-old scandal in which the disciplinary process for judicial misconduct has come under heavy fire, particularly by the discipline commission that handles it.
Part of the scandal included accusations that former Chief Justice Nathan “Ben” Coats in 2019 had approved a contract to a former Judicial Department administrator who was being fired for financial irregularities. The contract was allegedly in response to a threatened tell-all sex-discrimination lawsuit in which years of judicial misconduct were either kept from the commission or handled leniently. An investigation by an outside firm hired by the Judicial Department said it was not a quid-pro-quo deal.
Coats is under investigation by the commission, according to the person who filed that complaint, which by law are to be kept secret.
Under current rules, the Supreme Court acts as the final arbiter on any discipline the commission metes out – even if its against one of their own. That changes with Rule 41.
Coats is also under investigation by the Office of Attorney Regulation Counsel, which announced the inquiry shortly after news reports exposed the contract allegations in February 2021.
ARC Jessica Yates last week told The Denver Gazette that she had no information to report about that investigation.
Along with the constitutional amendment resolution, the House of Representatives is set to take up House Bill 23-1019, which allows anyone to anonymously file a complaint alleging judicial misconduct in person or via the discipline commission’s website.
The bill also would mandate the commission keep complainants informed about every stage of the complaint process, and establish a rulemaking process for the discipline system.
Additionally, the commission would be required to maintain a searchable database that would show the types of discipline meted out and the frequency and type of complaints filed against jurists statewide.
The measures are first to be heard by the House Judicial Committee. No date for those hearings has been scheduled.
Chief Justice Brian Boatright in November issued his own directive – known as CJD 22-01 – in which any complaint of judicial misconduct levied by any employee, volunteer or contractor of the Judicial Department must be referred to the discipline commission within 35 days.
The directive, however, requires a judge to report to the discipline commission the misconduct of another judge only if they have “knowledge,” such as personally witnessing it.
A judge who “receives information” about another judge’s misconduct – unless as a complaint by an employee or contractor – doesn’t have to. Instead, the judge “shall take appropriate action, which may include reporting the violation” to the discipline commission.
In an amendment to its budget submission, the commission said the Supreme Court did not consult with it about the new directive even though the Legislature last year passed a law that requires it to consult.
