Monday, September 12, 2022

Colorado lawmakers seek constitutional change, ombudsman, open disciplinary hearings against judges

By David Migoya


A constitutional amendment proposed by a panel of Colorado legislators would create an independent three-person board to handle disciplinary hearings against judges, one of several recommendations to change how the state handles their discipline.

That board would be composed of a judge, a lawyer and a citizen connected to neither profession. Each member would be chosen randomly from a pool of 12 nominees — four in each category — appointed by the governor and the Supreme Court.

The amendment, which would require voter approval, would create the Independent Judicial Discipline Adjudicative Board as an autonomous agency within the Judicial Department, supplementing the existing Commission on Judicial Discipline, according to draft copies of the resolution made public Friday.

Additionally, a proposed bill to the General Assembly would create the office of the judicial discipline ombudsman within the commission whose primary job would be to create an anonymous reporting system for submitting complaints against judges, then helping complainants throughout the process.

The measures are the work of an interim legislative committee that heard dozens of hours of testimony about potential changes to the state’s process of disciplining judges.

The eight-member committee was the result of legislation earlier this year that separated the discipline commission’s funding from the Supreme Court, which had been accused of meddling in and hindering the commission’s work.

Many of the accusations – some of them by members of the normally secretive discipline commission itself – were connected to the body’s continuing efforts to investigate allegations of judicial misconduct that were unreported or handled quietly for years. That came to light in February 2021, when it was revealed a former Judicial Department executive had threatened a tell-all sex-discrimination lawsuit unless given a lucrative contract.

Committee chairman Rep. Mike Weissman, D-Aurora, said it’s likely the bills and resolution will undergo additional changes. The committee was required to have the drafts written by Sept. 9 and is scheduled to meet Sept. 30 to propose revisions and take a final vote to forward the measures to the General Assembly at its next session.

Any changes to the discipline commission’s authority would require a constitutional amendment approved by 55% of the voters. It currently sits beneath the Supreme Court, which mandates how it operates and ultimately decides whether a judge’s discipline is made public.

The commission would no longer conduct hearings on discipline matters, but rather only determine whether a judge’s alleged misconduct warrants a hearing. The commission would have the authority to dismiss a complaint or request remedial action short of a formal hearing.

The Supreme Court currently reviews any discipline recommendation by the commission to determine whether it should be dismissed or made public. That would change under the proposed new system, and the court would only step in if a judge appeals the decision by the three-person adjudicative board.

More importantly, a panel of seven Court of Appeals judges would be named to review any appeal if it is a Supreme Court justice who is being disciplined.

Currently all judicial discipline is secret unless it is made public by the Supreme Court, including any information-sharing with the commissions that nominate attorneys to become judges or those that review the performance of judges for retention. That would change under the new system, allowing the discipline record of judges to be shared with those bodies and making public the filing of formal charges against a judge.

A 10-person panel composed evenly of members chosen by the discipline commission and the Supreme Court will write the rules for how the discipline process will work. Currently, the rules are exclusively written by the court with occasional input from the commission.

The committee also recommended a bill that would allow for anonymous online reporting to the discipline commission and to keep complainants informed about their cases. The commission would be required to file an annual report with detailed statistics on the number and type of complaints filed and their outcomes.

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