Colorado judges who face formal charges of misconduct would face a public trial rather than a secret one, which has been the norm for decades, according to a number of sweeping preliminary recommendations made Wednesday by an interim legislative committee reviewing changes to judicial discipline.
Other changes recommended by the committee of eight legislators include the creation of a three-person panel to oversee that trial – a judge, a lawyer and a member of the public – and that any level of public or private discipline to a judge must be disclosed to the committees reviewing a judge's performance for voter retention or considering their nomination to a higher bench.
Currently, a three-judge panel is chosen by the Supreme Court to adjudicate the charges levied against a judge and the commissions on judicial performance review and judicial nomination generally don't know of a judge's discipline record before making recommendations to voters or the governor.
Voters would have to approve the majority of the dozen changes offered by the interim committee because it would require changes to the Colorado Constitution. That wouldn't happen until 2024. Several other recommended changes would be done through statutory changes by the legislature.
"We appreciate the committee’s hard work. We support the concepts discussed today and look forward to working through the details as the Committee’s work progresses," Judicial Department spokesman Robert McCallum wrote in an email to The Denver Gazette.
The Commission on Judicial Discipline said it would have no comment until recommended changes are finalized.
The committee was formed after legislation last spring that independently funded the Colorado Commission on Judicial Discipline, which relied on the state Supreme Court to cover its operating costs and ran into problems during an investigation into alleged misconduct.
Still unclear is whether legislators are barred by the current wording of the Constitution from making any substantive legislative changes to the discipline process via the General Assembly session that begins in January or must wait until the public vote in 2024.
"How this process is working, what is happening, to have the public know and be informed, how else do you accomplish public accountability and transparency if you don't provide a window into how the process is working?" said Rep. Terri Carver, R-Colorado Springs, the vice-chairperson of the committee. "Establishing wording in the Constitution to make it absolutely clear."
Among the proposed changes to the state Constitution:
* Three-person independent adjudicative body made up of a judge nominated by the Supreme Court, an attorney and a member of the public nominated by the governor and approved by the state Senate;
* Supreme Court is merely allowed to be the appellate step in a judge's discipline, rather than the body that approves it;
* Allow the discipline commission to appeal the dismissal of charges by the three-person body to the Supreme Court;
* All formal proceedings against a judge must be public. Private sanctions would remain confidential;
* Victims and those who report misconduct must be kept informed at every stage of the discipline process;
* All forms of discipline against a judge must be shared with the Colorado Commissions on Judicial Performance and the Judicial Nominating Commissions for consideration in their processes;
* Creation of a rulemaking committee composed of members of the judicial discipline commission and the Supreme Court for the discipline process; and,
* Creation of a seven-person panel made up of randomly chosen Colorado Court of Appeals judges to adjudicate discipline charges against a state Supreme Court justice. No judge with a record of discipline may sit on the panel;
The committee offered a number of other changes that could be done through statutes, including:
* The creation of an ombudsman's office to respond to the public's questions about judicial discipline and guide them through that process.
* Codify the subpoena authority of the discipline commission during its investigative stage.
* Safe-reporting protections for victims and the acceptance of anonymous complaints against judges.
* Data collection and reporting of all judicial discipline cases to the public in aggregate form to ensure confidentiality.
* Determine whether to keep the misdemeanor punishment for anyone publicly discussing any disciplinary investigation, which might be a disincentive to reporting misconduct.
The committee recommendations are headed to legislative workers to create draft resolutions and bills that it would ultimately vote on and send to the General Assembly for approval. The committee is scheduled to meet on Sept. 30 to review the drafts.
During its four meetings, the committee's heard from more than 19 organizations about changes to the discipline process and dozens of additional witnesses about their concerns.
The committee was formed in the wave of scandal that began in 2019 with newspaper stories into a controversial contract awarded to a former Judicial Department official facing firing for financial irregularities. From that came additional stories with allegations the contract was the result of a quid-pro-quo arrangement to prevent a tell-all sex-discrimination lawsuit that would reveal years of judicial misconduct that was concealed.
Two investigative companies hired by the Judicial Department determined there was no contract-for-silence deal, that the alleged misconduct was largely handled, although some of it ineffectively, and that misconduct and mismanagement affected the highest levels of the department.
Legislators stepped in after members of the normally secretive Commission on Judicial Discipline disclosed the problems it was having while looking into the scandal, particularly with how the Supreme Court had dragged its feet on providing evidence the commission requested and generally not cooperating with its investigation.
The court denied the assertions and said it cooperated fully and was amenable to changes, yet it privately lobbied legislators to either leave the discipline process unchanged or consider fixes the court thought to be best.
Wednesdays recommendations largely sided with concerns voiced by the discipline commission.
