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

Colorado’s chief justice acknowledges “inadequacies” in state’s system for disciplining judges

Chief Justice Brian D. Boatright of the Colorado Supreme Court addresses an auditorium full of students at Pomona High School before he and the other six members of the court hear two cases at the high school on Oct. 26, 2021 in Arvada. The visit is part of the Colorado Judicial Branch’s “Courts in the Community” outreach program.

By Shelly Bradbury

Colorado Supreme Court Chief Justice Brian Boatright on Thursday acknowledged “inadequacies” in the state’s system for disciplining judges and said he welcomed reform while stopping short of fully supporting the current effort by lawmakers to remake the system.

“From everything I am aware of, I think judicial discipline works,” Boatright said, adding later, “I don’t think the system is broken. But with that said, I am completely supportive of looking at any reforms that would make the system better.”

During a public hearing before the Senate Judiciary Committee on Thursday, Boatright listed several concerns with the bipartisan bill, SB22-201, which aims to reform the state’s system for disciplining judges who violate ethical and professional rules. The measure was introduced Monday by Sen. Pete Lee, D-El Paso County, Sen. Bob Gardner, R-El Paso County, and Rep. Mike Weissman, D-Arapahoe County.

Boatright has publicly said he and the state Supreme Court support the reform effort, but he and Justice Monica Márquez also personally lobbied lawmakers over concerns about the bill and its timing, The Denver Post found. Boatright sent an email Wednesday to judges across the state in which he said the bill has “serious flaws.”

The reform bill aims to give the Colorado Commission on Judicial Discipline more independence from the Colorado Supreme Court and would also create a special committee to consider how to best overhaul the judicial discipline system.

The bill follows reporting by The Post on an alleged blackmail scandal within the Colorado Judicial Department in which a top administrator allegedly threatened to make judges’ unaddressed misconduct public unless she was given a $2.75 million contract.

“The public will not have faith in a system in which those charged with assessing misconduct of judges are overseen by judges, where judges screen all complaints against judges and select which complaints move forward for investigation,” Lee said Thursday. “If the judges control the budget, the rules, the appeals, the outcome, the system is at best suspect and at worst fundamentally flawed.” (Click to continue reading)

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Colorado’s chief justice acknowledges “inadequacies” in state’s system for disciplining judges

Ex-probate judge says ‘enough already’ to proposed sanction

PORTLAND, Maine — The Committee on Judicial Responsibility and Disability has recommended former York County Probate Judge Robert M.A. Nadeau pay a $10,000 fine and be barred from sitting on the bench again. 

The sanction, if imposed, would be the harshest the Maine Supreme Judicial Court, charged with disciplining judges, has handed down short of disbarment.

“Enough already,” Nadeau, 62, said in a brief filed in Portland. The Biddeford lawyer is representing himself before the justices at a hearing that was scheduled for Thursday morning at the Cumberland County Courthouse. The courthouse is closed Thursday because of inclement weather, according to information posted on the court system’s website. A new date has not been set.

Nadeau, who has been sanctioned twice previously for violating the code of conduct for judges, lost his bid for re-election in a three-way race last year, according to results posted online by the Maine secretary of state’s office. Nadeau, an independent, garnered 37,539 votes, to the 42,388 votes that winner Bryan M. Chabot, a Democrat from Wells, received. Bernard J. Broder III, an independent from Old Orchard Beach, came in third with 26,085 votes.

Nadeau first was elected probate judge in York County in 1996. He was re-elected in 2000 and 2004 but defeated in 2008 in the Democratic primary. He was elected again in 2012 as an independent.

He first was suspended from the bench in 2007 for a week without pay for lying about his opponent in his 2004 re-election bid. He was suspended for 30 days without pay last year for statements he made in a 2013 letter to the attorney representing his former girlfriend in a protection from harassment matter.

The most recently proposed sanction stems from actions Nadeau took in November 2012, when he directed probate court staff not to appoint certain attorneys to litigants who qualified for indigent legal service, and in April 2015, when he changed the probate court schedule without consulting staff after the commissioners turned down his request for more court days and a raise.

In a brief filed with the state supreme court in late November, Nadeau urged the justices “to avoid piling it on.”

“Five counts of allegations of judicial misconduct, particularly on the heels of a recent law court finding of misconduct resulting in a now completed, highly publicized 30-day suspension related to a private, non-judicial matter, would and did certainly look awful, particularly to those not trained in law,” he wrote. “The suspension, exacerbated by [retired Justice Robert Clifford’s] findings (regardless of what this court may ultimately do regarding them), were highly publicized in the recent election, costing Judge Nadeau, an independent at almost 62 years of age, to narrowly lose a personally very expensive re-election effort in a three-way race pitting himself against a Democrat and a second independent candidate, and to further punitively suffer the loss of a significant future income and benefits. Enough already?”

Cabanne Howard, executive secretary and counsel to the committee that investigates and recommends sanctions for Maine judges, said in his brief that Nadeau “continues to fail to take any responsibility for his actions.”

“This pattern was evident the first time the Court disciplined him for violating the Code of Judicial Conduct, when it noted that while he ‘acknowledges disappointment and embarrassment’ for his violation, and apologizes to the public and the court, the closest he comes to admitting that he acted wrongfully is to acknowledge that he ‘exercised poor judgment.’” 

To assure Nadeau does not serve as a probate judge again, the committee has recommended his license to practice law be suspended indefinitely but that the suspension be suspended. The suspension would go into effect only when and if Nadeau sought election to the Probate Court again.

All judges except those who serve in the Probate Courts are appointed by the governor and subject to confirmation by the state Senate. It is highly unlikely a lawyer who had been sanctioned more than once for violating the Judicial Code of Conduct would be nominated for a judgeship let alone be confirmed.

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Ex-probate judge says ‘enough already’ to proposed sanction