Colorado’s Supreme Court justices should not cede the ultimate power to determine how judges are publicly disciplined to an independent board, state Judicial Department representatives argued in a document submitted to state lawmakers this week as part of an ongoing effort to reform judicial discipline.
The Judicial Department’s stance goes directly against a proposal by the Commission on Judicial Discipline — the body responsible for investigating judges’ misconduct — and is one of several remaining conflicts between the two organizations as the reform effort unfolds this summer, according to documents reviewed by The Denver Post.
Colorado lawmakers earlier this year launched an effort to examine the system for disciplining the state’s judges in light of allegations that judges’ misconduct was previously covered up by the Judicial Department.
Lawmakers this summer are holding a series of public hearings to guide the reform effort. The next public hearing is scheduled for Aug. 10 at the state Capitol building.
Under the Colorado Constitution, judges who misbehave on the job are investigated by the Commission on Judicial Discipline, which can issue minor, private discipline to judges — like a private admonishment, censure or improvement plan. But all public discipline, including public censures, suspensions or a judge’s removal from the bench, must go through the Colorado Supreme Court.
The Commission on Judicial Discipline has proposed taking that power from the state Supreme Court and instead giving the authority to an independent disciplinary board made up of judges, lawyers and citizens. The Colorado Judicial Department opposes that idea, according to the document submitted to lawmakers Monday.
“No investigation has revealed that this basic structure of Colorado’s current system is deficient,” the unsigned document reads. “Thus, the justification for making such a significant and novel change to the current system is conspicuously lacking.”
The Commission on Judicial Discipline, in its own unsigned document submitted to lawmakers Tuesday, argued that the Supreme Court justices may not dole out fair discipline because of their concern for the reputation of the court system or potential liability for the Judicial Department, and compared the justices to a company’s board of directors, who feel obligated to protect the institution.
“To be credible, a neutral, detached and objective decision-maker must oversee a system of judicial discipline,” the commission’s document reads. “To be credible, that decision-maker cannot be a corporate board of directors that may prioritize the risks of incurring financial liability over the necessities of enforcing ethics rules. To be credible, that final decision-making body cannot be the same entity that also controls access to evidence and decides whether misconduct allegations are reported in the first place.”
The commission also raised the issue of more direct conflicts of interest, like if a member of the state Supreme Court were to face discipline proceedings — that justice’s colleagues would be in charge of any public discipline.
The Judicial Department wrote that the justices are considering a rule change to address such conflicts. Jon Sarche, a spokesman for the department, said Wednesday the justices expect to publish a draft rule in October. He said he could not share any additional details.
The recommendations and responses filed with state lawmakers this week also show the Judicial Department opposed a proposed change that would strip the Colorado Supreme Court of its authority to set the rules and procedures for the Commission on Judicial Discipline, another power enshrined in the state’s constitution.
The commission and Judicial Department did find some areas of agreement during meetings in late July, according to the documents. Both believe there should be more transparency in the process for disciplining judges — which now is, under the state constitution, almost entirely cloaked in secrecy.
The two entities agree that disciplinary proceedings should no longer be kept secret once a case has gone into formal proceedings, which is a stage in the process that happens after investigators believe a judge’s misconduct is supported by a preponderance of evidence.
“Although we do not agree with all of the commission’s recommendations, the department and the commission are not and should not be adversaries in this process,” the Judicial Department’s document reads. “It is clear that both parties want a robust, fair, and more transparent system of judicial discipline, which is essential to Colorado’s merit selection and retention system.”
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