The Colorado legislature is in the recommendations stage for potential reforms concerning how state judges are disciplined.
A special committee of legislators on Aug. 10 and 17 held meetings to discuss reforms in the wake of scandal around the Colorado Judicial Branch and how it handles allegations of judicial misconduct.
The committee was created by Senate Bill 22-201, which passed earlier this year in response to a public scandal around the Colorado Judicial Branch.
Last week’s meeting included testimony from legal stakeholders and the Aug. 17 meeting focused on what steps the legislature is planning to take to reform judicial discipline.
Legislative Interim Committee on Judicial Discipline Chair Rep. Mike Weissman and Vice Chair Rep. Terri Carver outlined what changes to state law might look like and what issues are priorities.
The biggest themes of the proposed legislation were public transparency, protection of people who come forward with complaints and increased independence of judicial branch investigations. The representatives said any legislation will probably be a mix of constitutional changes and bills and will need to be carefully written so as to not cross the separation of powers.
Colorado’s current system of judicial discipline was created in the 1960s and tasks a 10-member panel of volunteers with reviewing complaints made against state judges. Complaints the committee’s executive director thinks have merit are investigated by judicial branch employees and when there are grounds for sanctions, the committee makes recommendations to the Colorado Supreme Court. All discipline proceedings are confidential and can’t be accessed through Colorado’s Open Records Act and the decision to ultimately sanction a judge is up to the Supreme Court.
The current system has come under scrutiny in recent years after a former judicial branch employee published a list of alleged misconduct by judges and other staff which were allegedly covered up. An independent investigation contracted by the judicial branch found little evidence to back up the claims but did find the branch has room to improve transparency around discipline proceedings and lacks avenues for confidential reporting.
“We are trying to move to a more balanced approach,” said Carver at the Aug. 17 meeting, underscoring the legislature would like to address concerns brought by the public, the legal community and the judiciary around the enforcement of Colorado’s Code of Judicial Conduct.
“We all go through school, we learn about the three branches of government. You know, we think of judges and justices as deciders in black robes. The reality is, they’re also bosses, they’re employers, they’re fountains of organizational culture. It’s really that that we’re talking about here,” said Weisman.
The representatives laid out proposed changes for a concurrent resolution and statutory language. Since the committee hasn’t drafted specific language, Carver and Weissman emphasized the resolution and statutory changes overlap a lot.
“If it looks like we’re being somewhat redundant, that’s not by accident, it’s by design,” said Carver. “Identifying the issues where there’s legal uncertainty, establishing the appropriate language in the constitution to make it absolutely clear, as well as the legislative authority.”
New Rules, New Structures
The legislators proposed several major changes to the commission’s current structure.
On top of creating the interim committee, SB-201 set aside independent funding for the commission on judicial discipline which was housed within the Colorado Judicial Branch. The committee considered what other steps can make the commission more independent, or, at a minimum, appear more independent from the branch.
First, the legislators proposed passing a joint resolution that would create a new adjudicative body and ratchet back the power the Colorado Supreme Court has over discipline proceedings.
The legislators proposed creating an independent adjudicative body with equal numbers of judges, lawyers and citizens to rule on judicial misconduct and impose sanctions. They also proposed changing the current standard of review the Colorado Supreme Court has over judicial disciplinary cases. Rather than the current de novo review, looking at both facts and law, the Colorado Supreme Court would only consider the legal questions presented by a case.
“The review that we’re talking about is scope of review on the facts, scope is limited to if it’s clearly erroneous and as to sanctions, the scope of review is whether the sanctions imposed are lawful,” said Carver. A new appeal route would be created to allow the commission to appeal an adjudicative stage case dismissal to the state Supreme Court.
The resolution would also specify how appeals involving a Colorado Supreme Court Justice are handled. A pool of state Appeals Court judges who don’t have any disciplinary action against them would be selected to hear the case.
The legislators proposed passing a joint resolution to create a rulemaking committee to direct the commission. The rule makers would be led by a current commission member, but the size of the panel and its composition are still up in the air, according to the lawmakers.
Weissman said legislators plan to propose possible changes in state law and the constitution.
First, the legislators recommend codifying the subpoena power of the judicial commission. While there are rules that allow subpoenas, Weissman emphasized the power should be written into statute and would only apply to investigations into specific cases.
Weissman added lawmakers may want to consider changing current criminal law that opens up misdemeanor criminal liability to people who disclose information about the commission. Testimony during the special session showed the criminal statute has been used to discourage people from reporting or discussing cases of sexual harassment or discrimination, he said, and legislators may want to consider the law down the line.
Transparency
To address numerous concerns around the lack of transparency to the public and those who file complaints, the senators proposed creating formal rules for when proceedings should be public and publishing more annual data on complaints.
“We heard many, many stakeholders testify that Colorado was really an outlier in that we are one of the very few states that does not allow the formal proceeding to be public,” explained Carver.
The joint resolution, she explained, would change Colorado’s current sweeping confidentiality provision for disciplinary proceedings. The senators proposed that once the commission finds evidence to support a complaint and a formal investigation begins, the case would no longer be confidential. She said there would be exceptions and special considerations for confidentiality when the person bringing the complaint fears harm or retaliation.
The resolution would further require that any case that results in private or public discipline of a judge would be shared with Colorado Judicial Performance Commission and the Judicial Nominating Commission, which make hiring and retention decisions for Colorado courts. Discipline cases would also need to be shared with the Office of Attorney Regulation Counsel and the Office of the Presiding Disciplinary Judge.
In addition to its annual reports on the number of complaints it receives and the number of judges disciplined, the legislators proposed that the Commission on Judicial Discipline publish more, in-depth data every year. The data would be aggregated and wouldn’t identify anyone. The senators suggested annual data on the number of complaints dismissed every year, the reasons for dismissal, the outcome of cases that aren’t dismissed, the number of cases that reach adjudication, the outcome of adjudicated claims, how many claims were substantiated and what sanctions were imposed.
Weissman explained annual aggregate data would be publicly available and could help the branch see patterns of complaints, misconduct and room for additional training.
‘A Victim-Centered Approach
The Aug. 10 committee hearing featured testimony from the Colorado Women’s Bar Association and the Colorado Coalition Against Sexual Assault over sexual harassment in the workplace and the importance of safe reporting.
Reading an anonymous letter by a former judicial clerk, CCSA shared that while clerking for a Colorado judge, the woman was sexually harassed. The process of reporting the judge to the commission for judicial discipline, according to the testimony, dragged on over the course of many months and she said she felt left in the dark while also struggling with anxiety, depression and fears of retaliation. The woman, who was a law student, dropped out of school after struggling with her mental health and skepticism of the justice system. Representatives from the CWBA explained that, based on input from their members, they recommended the legislature implement procedures which protect potential harassment or discrimination victims.
The state legislators said they would like to create more protections for possible victims of harassment or discrimination.
For the resolution, that might mean creating rules that require complainants to be kept in the loop at critical stages of an investigation, similar to requirements under the Colorado Victims Rights Act. The legislature may need to pass laws or ask voters to codify this rule, the legislators added.
The judicial branch should also create more avenues for anonymous and confidential reporting, according to the legislators. This could mean creating digital complaint filing options, allowing commissioners to initiate an investigation based on anonymous complaints and codifying procedural rights for reporting.
The Legislative Interim Committee will hold one more meeting on Sept. 30 to fine tune its proposed changes which will be considered by the Colorado General Assembly next year.