Colorado’s Supreme Court would violate the state Constitution by approving a rule under which they would step down as overseer of any discipline matter that involves them and appoint appellate judges to replace them, according to public testimony Wednesday about the measure.
The justices are looking to pass a new rule, properly known as Rule 41, that would require the court to recuse itself from several matters of judicial discipline, including those in which a sitting or former justice is accused of wrongdoing in an effort to avoid any perceived conflict of interest.
The rule suggests the seven justices replace themselves with a panel of randomly selected members of the Court of Appeals, a move some say also harbors several conflicts of interest. Others point to similar rules in other states.
The rule is the court’s response to a three-year scandal that, in part, had allegations that several instances of judicial misconduct over several years went unreported to the state’s Commission on Judicial Discipline. The scandal brought forth investigations into former Supreme Court Chief Justice Nathan “Ben” Coats. It’s unclear whether any other justice is under inquiry.
At a public hearing before the court Wednesday, the executive director of The Judicial Integrity Project in Denver said only voters can change the Constitution that limits how appellate court judges can be used.
“Does the Supreme Court have the power to increase the jurisdiction of the Court of Appeals to add judicial discipline complaints? No,” according to Chris Forsyth. “The Court of Appeals is a legislatively created court, whose jurisdiction is limited by the statutes. The Constitution does not allow for the Court of Appeals on disciplinary matters.”
He added: “Absent a constitutional amendment, who presides over disciplinary matters cannot be changed.”
The General Assembly is expected to propose voters take up a constitutional amendment in 2024 that would restructure how judicial discipline is handled. Other sweeping changes to how judicial discipline will happen were proposed Monday in House Bill 23-1019, which is sponsored by Rep. Mike Weissman, an Aurora Democrat, and Republican Minority Leader Rep. Mike Lynch of Wellington. Also sponsors are Sens. Bob Gardner, the Republican assistant minority leader, and Julia Gonzales, D-Denver.
Forsyth did not suggest the rule couldn’t be approved after a constitutional amendment is passed that would allow for it.
But until then, justices are still allowed to sit in judgment of their peers if they are subject to disciplinary proceedings.
Rule 41 would take immediate aim at any conflict of interest the justices could be perceived to have, but Forsyth suggested the rule cannot withstand a constitutional challenge – which ironically would likely be determined by the high court proposing it.
The discipline commission has said in letters to the court that it prefers a three-person tribunal made up of a lawyer, judge and citizen to oversee any discipline case and the Supreme Court would only determine whether any proposed penalty is legal and justified.
The commission also said any replacement to the Supreme Court should instead come from a pool of district court and appellate judges.
The court currently can dismiss a case outright or decide to keep any proposed discipline from it from becoming public.
But rather than address Forsyth’s assertion directly, the justices instead peppered him with questions that had more to do with a pair of investigations the Judicial Department paid for to look into the scandal.
Additionally, the justices seemed to praise the thoughts of Brittany Kauffman, the CEO of the Institute for the Advancement of the American Legal System at the University of Denver. The organization was co-founded in 2006 by Rebecca Love Kourlis, who stepped down as a Colorado Supreme Court justice to be IAALS’s first executive director.
Kauffman told the justices that Rule 41 is a good idea and that 13 other states handled discipline matters similarly. The rule, she said, runs parallel to one recommended by the American Bar Association.
Kauffman did not address – and none of the justices asked her – whether Forsyth’s contention about the appellate court judges and the Colorado Constitution held any merit.
“Is there any part of the rule that causes you concern or heartburn,” Justice Carlos Samour asked Kauffman.
“No, I don’t think so,” she said.
It’s unclear how soon the court might approve, reject or amend the proposed rule.
