Colorado lawmakers advance changes on disciplining judges

by David Migoya

The Ralph L. Carr Colorado Judicial Center in downtown Denver, home of the Colorado Supreme Court.

A special state legislative panel on Friday unanimously passed a pair of resolutions that would dramatically change how Colorado investigates and disciplines judges, one of them a Constitutional amendment voters would consider in 2024.

One resolution creates a three-member board to pass judgment in formal discipline cases. The other measure sets up anonymous reporting, requires comprehensive annual reports of how the process works and what it's done, and formally sets up the three-person board once it is approved by Constitutional amendment.

Left for additional legislative work, however, is a proposal to create an ombudsperson’s office within the Judicial Department to work with anyone considering filing a complaint of judicial misconduct. Legislators said there wasn’t enough time to make the proposal as comprehensive as needed but promised to press for a bill in the upcoming session.

The two approved proposals by the General Assembly Interim Committee on Judicial Discipline now head to the 18-member Legislative Council, a year-round committee of legislators that will decide whether to move the measures to the full House and Senate. The proposed bills will begin in the House, members of the interim committee agreed. The council next meets Oct. 14.

Although the proposals make substantive changes to the judicial discipline process, several key amendments were left for the broader legislative process to work out.

Two critical components not addressed in the proposals, but which the panel members insisted should be handled at the legislature, were the decriminalization of confidentiality breaches and the scope of subpoena authority for the Colorado Commission on Judicial Discipline during its initial investigations into a complaint of misconduct.

“There is an absolutely commitment (by the interim committee) on the necessity for those provisions,” Rep. Terri Carver, R-Colorado Springs, said. “We were not able to get fully vetted alternatives and believe it better to reserve the issues for the legislative session.”

Added to the proposals was a requirement for a public hearing and input in the rulemaking process for how the discipline commission and the three-person board will operate in its new iteration.

The proposals also add a legal requirement for the discipline commission to keep anyone who files a complaint about a judge fully informed. The committee heard testimony from women who said they were frequently left in the dark about the process and were often warned about the misdemeanor criminal penalties for talking about it.

“This was not a process that inspired confidence,” Carver said. “No more will we hear testimony or read in (a) report that someone files a complaint and months pass, they hear nothing and then hear something and then it’s silent all over again.”

Unchanged, however, is a provision in the proposals where a special panel of seven Court of Appeals judges would replace the Supreme Court should one of its justices be the subject of discipline or is a material witness in a case. The discipline commission voiced concern over that structure, saying the collegial atmosphere in the lower court has as much a potential conflict of interest and suggested the special panel include trial court judges.

Voters will specifically be asked to approve the creation of the three-person board to oversee the discipline process. The board – an attorney, a judge and a citizen not connected to either profession – would sit in judgment during a formal discipline hearing against a judge. It would also sit as the appellate body for any informal discipline the commission recommends. The Supreme Court would only be able to overrule any discipline if it determines the board had misused its discretion.

The measure that would have created an ombudsperson office was not approved but, according to the two committee members who worked on it, it will be offered as a primary bill in the upcoming legislative session. Committee members said they received numerous emails from people insisting on expanding the scope of the office.

“Between today and the end of session a year from now, much work needs to be done,” Rep. Jennifer Bacon, D-Denver, said. “We have a year and cannot extend these issues any longer. The culture is critical and there will be a space for people to talk about the things that intimidate them.”

Rep. Mike Lynch, R-Wellington, said he saw that the proposal for an ombudsperson, no matter how important, required more work.

“We discovered through stakeholders that it needs to do much more,” Lynch said. “There needs to be more scope in the ombudsperson's office than initially thought.”

Seven of the committee members agreed to either sponsor or co-sponsor the proposals in the General Assembly. Carver did not because she is term-limited.

Carver summed up the committee’s work by noting how “Colorado was an outlier” in the judicial discipline process.

“What we are proposing is a drastically different system,” Carver said. “I hope, with these changes, the people of Colorado will see how we have done this in interest of public accountability.”

Committee chairman Rep. Mike Weissman, D-Aurora, pointed to the seriousness of their work.

“We are taking about our (state’s) foundational document, the separation of powers and trust in government,” he said.

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Colorado lawmakers advance changes on disciplining judges