Judicial discipline report notes 6 corrective actions against judges in 2020

By MICHAEL KARLIK

 

DENVER, CO - JANUARY 13: Colorado Supreme Court Justice Brian Boatright stands at the podium in the Senate as he swears in senators at the start of the first legislative day of the 73rd General Assembly at the Colorado State Capitol on January 13, 2021 in Denver, Colorado. (Photo By Kathryn Scott)

Colorado's Commission on Judicial Discipline initiated six corrective actions against judges in 2020 — the same number as the prior year — ranging from mild concerns about the handling of cases to illegal behavior that resulted in a Supreme Court censure.

The commission released its annual report, which includes specific details about judges who received public discipline, and only general, non-identifying information about circumstances involving private sanctions. The majority of complaints about judges were for issues the commission could not resolve because they pertained to evidence, court procedures or law, and not official misconduct.

Of the two cases meriting public discipline, the first involved former Weld County District Court Judge Ryan L. Kamada, who the state Supreme Court censured in December for obstructing a federal drug investigation and improperly disclosing information about cases. In one instance, Kamada texted friends that a woman in a divorce proceeding would be "free game tomorrow night." Last month, a federal court sentenced Kamada to little over a year in prison for his interference in the drug operation.

In the other instance of public discipline, the commission reported that it commenced formal proceedings against former Baca County Court Judge Debra M. Gunkel in December. She had violated the terms of her deferred sentence for impaired driving by picking up a second DUI conviction.

The report revealed that the state Supreme Court initially rejected a proposed resolution to Gunkel's disciplinary case, without noting what the proposal entailed. But her case was not resolved until May of this year, when the justices accepted her resignation and censured Gunkel.

There were three instances of private discipline meted out to unnamed judges. The commission reprimanded one judge and placed them into a counseling program after the judge exhibited a "pattern of personal conduct with staff in the close quarters of the courthouse [that] adversely affected the work environment."

In another circumstance, a judge delayed issuing a decision for nearly three years in a complex case that involved a 19-day trial with 46 witnesses. 

"The Commission determined that the intensity and complexity of the litigation were the primary cause of the delay, but that the judge, nonetheless, should have resolved it more promptly," explained the disciplinary report.

Finally, the commission twice reprimanded a judge for their "insensitivity in using racial and ethnic terms" and problems handling administrative tasks.

The commission dismissed two cases that did not amount to provable violations, but nonetheless registered its concerns. The commission encouraged one judge to seek the help of a retired senior judge in managing their docket when, as in the case at hand, the judge only was able to issue two orders in 20 months in a parental dispute. Frequent legal motions, changes in court staff and the COVID-19 pandemic were the sources of the delays.

Another judge received encouragement to better explain the nature of their communications with a magistrate, after the father in another parental dispute complained about improper discussion between the district court judge and a magistrate who also happened to be a witness on behalf of the mother.

In total, the commission received 199 requests for evaluation of judicial conduct in 2020. The executive director ultimately dismissed 190 of those because they involved the conduct of non-judges, did not reasonably relate to judicial misconduct or had no provable violation.

"The disruption of the judicial branch’s management of hearings and trials during the COVID-19 pandemic prompted several complaints about delays and the occasional difficulties in connecting with remote hearings by video and in managing the proceedings," the report noted. "These situations were unavoidable and did not involve judicial misconduct."

In 2019, there were 221 requests for evaluation, of which the executive director dismissed 211. That year, discipline included two public actions, two instances of private discipline and two cases being dismissed while noting the concerns of the commission.

The judicial discipline process, which by and large takes place out of the public's eye, came under scrutiny earlier this year after The Gazette and The Denver Post reported that the Judicial Department awarded a multimillion-dollar contract to a former employee allegedly in exchange for her silence about instances of misconduct within the judiciary. A committee of legislators and executive branch officials is charged with selecting a firm to perform an independent investigation.

The Commission on Judicial Discipline dates to 1967 and monitors the judiciary's compliance with the canons of judicial ethics. Pursuant to the state constitution, the process remains confidential until the commission files a disciplinary recommendation to the Supreme Court at the end of formal proceedings.

"A significant number of the complaints made in the judicial discipline process are in fact somebody's effort to call attention to a case that turned out in a way they didn’t agree with. Those cases have to be winnowed out," former Justice Rebecca Love Kourlis told Colorado Politics in February. She added that a person might turn to human resources if they want a judge's problematic behavior to stop, while the judicial discipline process may be best reserved for "conduct that is reprehensible and which leads the complainant to want to see that person disciplined or taken off the bench."

In addition to dismissing the charges and doling out public or private reprimands, discipline could also include removing a judge from office, suspension without pay, or measures "necessary to curtail or eliminate the judge's misconduct."

Besides Gunkel, the only judge subject to public censure during 2021 so far is former Arapahoe County District Court Judge Natalie T. Chase, who offered her resignation in April after admitting to using the N-word in front of court employees and ordering her staff to perform her personal tasks at work, among other incidents.

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Judicial discipline report notes 6 corrective actions against judges in 2020

Judges who misbehave in Colorado are largely shielded from public scrutiny

Rare public censure of a former judge last week spotlights a process largely conducted in secret

By Shelly Bradbury

The former Weld County District Court judge who was censured by the Colorado Supreme Court last week is just the fourth judge in the state to receive public discipline in the last decade — highlighting the largely secret process used to correct judges who violate ethical or professional rules.

Colorado shields judges accused of misconduct in the vast majority of cases, and its discipline process offers judges more privacy than in 35 other states, according to the National Center for State Courts.

Because of the state’s constitution, the public is barred from knowing which judges committed what offenses except for in the most egregious cases, or in cases in which the misconduct becomes public apart from the confidential proceedings.

Colorado judges were disciplined privately 51 times between 2010 and 2019 for offenses ranging from failing to issue timely rulings to having a sexual relationship with a member of the court staff, according to annual reports from the Colorado Commission on Judicial Discipline.

Critics say the secrecy undermines public confidence in the state’s judges and allows judges to escape public scrutiny for their missteps, while proponents argue the confidentiality protects judges from false accusations and encourages genuine and honest participation in the discipline process.

“We need to be able to trust that judges are maintaining the highest level of professionalism in their job duties,” said Chris Forsyth, executive director of The Judicial Integrity Project, a Colorado group focused on reforming judicial discipline. “The lack of transparency undermines that.”

But William Campbell, executive director of the Colorado Commission on Judicial Discipline, said he felt confidentiality is “defensible and necessary.”

“If it’s not done in a spotlight, people are more willing to complain to us and have us look at it, and judges are more likely to be thoughtful in their response, rather than thinking they’ve got to have a good quote for the newspaper,” he said.

Discipline for the nearly 400 judges and justices who sit on county and district courts, Denver’s juvenile and probate courts, the Colorado Court of Appeals and the state Supreme Court is all handled through the commission, which consists of a volunteer board led by Campbell, who is paid.

The commission takes in close to 200 complaints a year, and Campbell dismisses about 90% of them as soon as they are received for procedural reasons, like the issue not falling under the commission’s jurisdiction or the complaint being a matter of law that should be handled in an appeals court, rather than by the disciplinary commission.

The remaining 10% of complaints are reviewed by the volunteer board, which decides whether to discipline the judge, and whether to do it privately or publicly. Most judges are disciplined through “informal proceedings” that often result in a private admonition, reprimand or censure.

The details of discipline usually become public only if the commission moves a case into “formal proceedings,” and even then only are made public at the very end of the process, when the commission makes a recommendation to the state Supreme Court on what discipline is warranted.

The secret discipline process stands in stark contrast with the court system as a whole, which was built on public proceedings, said Paul Chessin, an attorney who has argued for more transparency in the attorney discipline process.

“There is a long tradition that judicial proceedings are public, because that instills the public’s confidence and trust that the system is working,” he said. “Proceedings in secret do the opposite. Then, there is a perception that the actions taken are arbitrary or capricious or perhaps could be playing favorites.”

Colorado is one of just 12 states where the process is confidential until a recommendation for public discipline is filed, according to the National Center for State Courts. In most states, the allegations against judges become public when formal charges are filed or once a judge has had a chance to respond to formal charges.

“Colorado is in the more anti-transparency, privacy-protection rank,” said Russell Wheeler, a visiting fellow with the Brookings Institution and former president of the Federal Judicial Center.

He said the discipline process must walk a line between protecting the reputation of judges and the court system from baseless accusations and bringing legitimate misconduct to light. Most judicial disciplinary bodies in the U.S. receive a high number of false or frivolous complaints, he said.

“Judges have to accept the fact that when they accept the judicial office, they’re going to be expected to have the public know about their lives in a way that non-judges don’t, but you don’t want to make the transparency so transparent that it scares away people who would otherwise be willing to serve,” he said.

Although most complaints are dismissed in Colorado for procedural reasons, there’s no way for the public to check that, Forsyth said. He’d like to see the process be open to inspection from the initial request for investigation. He pointed to Ryan Kamada, the ex-judge in Weld County who on Monday was publicly censured for tipping his friend off to a drug investigation and making inappropriate comments about people in his courtroom.

“Now we are hearing litigants who said they complained about this guy,” he said. “Were there complaints filed with the Judicial Discipline Commission before all this happened? … We don’t know.”

Besides Kamada, the three other judges who have been publicly disciplined since 2010 are Laurie Booras, who called another judge “the little Mexican,” Robert Rand, who made misogynistic and inappropriate comments, and Lance Timbreza, who was charged with driving under the influence.

While Campbell defended the confidential system, he said the office has increased its transparency since he took charge 11 years ago. The commission created a website to reach a wider audience, and began giving a summary of discipline cases without identifying the judges involved in its annual reports, he said.

“We try to take something that is required to be done in private, and as much as we can, disclose what is going on,” he said.

 

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Judges who misbehave in Colorado are largely shielded from public scrutiny