State lawmakers released the first drafts of bills to change how Colorado handles complaints against judges.
The draft legislation, which may still be revised before it’s put in front of the General Assembly next year, would establish complainant rights and ratchet back some of the power the Colorado Supreme Court has over discipline proceedings.
The Legislative Interim Committee on Judicial Discipline on Sept. 9 published two draft bills and a draft concurrent resolution after it looked into Colorado’s current judicial discipline practices over the summer. The commission will hold its final public hearing on Sept. 30 to collect any final input on the proposed legislation and discipline process.
The special committee was created by Senate Bill 22-201, passed earlier this year. On top of establishing the interim committee to look into Colorado’s discipline proceedings, the bill set aside money to create an office independently funded from the Colorado Judicial Branch. SB22-201 laid out several key responsibilities of the new office tasked with investigating allegations of misconduct by Colorado judges but asked the interim committee to come up with the best system to handle complaints, the office’s makeup and the Colorado Supreme Court’s role overseeing discipline appeals and proceedings.
Over the summer, the committee has held four public meetings to learn more about Colorado’s current system for assessing judicial conduct, what models other states use and to hear from stakeholders. In its second-to-last session, the committee hinted at what priorities would make their way into proposed legislation including creating protections for people who file complaints, formalizing when discipline proceedings become public and creating a greater separation of power within the Colorado Judicial Branch.
SB22-201 was passed after a public scandal around Colorado’s Judicial Branch shone a light on the current system for judicial discipline after allegations of widespread misconduct and cover-ups. Many of the published allegations against the branch haven’t been supported by investigations since, but nonetheless, public trust in the court and its culture was hurt.
A New Board and a New Office
The current commission tasked with investigating judge misconduct is housed within the Colorado Judicial Branch which raised flags around conflict of interest and influence from the branch itself.
With independent funding set aside, a proposed concurrent resolution would create an independent adjudicative board to look into complaints. The board would be separate from the Judicial Branch and would be made up of four judges, four attorneys and four citizens. Randomly selected three-member panels with one judge, one lawyer and one citizen would conduct formal proceedings in discipline cases and impose penalties.
The resolution would hike back the power of the Colorado Supreme Court to reverse the panel’s decision. The Supreme Court would only be able to review questions of law de novo, review the panel’s determination of facts for clear error and review any sanctions for abuse of discretion.
Currently, proceedings against a judge are only made public when the commission files recommendations that the Colorado Supreme Court impose formal sanctions. The resolution would clarify that all proceedings would still be confidential until a formal disciplinary proceeding is filed but would allow certain state offices, including judicial appointment committees and the Office of the Attorney Regulation Counsel, to request files from any cases that resulted in private or public discipline.
Misconduct investigations and disciplinary proceedings against Colorado judges will be overseen by a newly created office, the Office of the Judicial Ombudsman, according to a proposed bill draft.
The bill explains that an ombudsman can be helpful in settings with power disparities, such as the Colorado Judicial Branch, where people are asked to navigate complicated proceedings. Setting up the Office of the Judicial Ombudsman, lawmakers hope that people impacted by judicial misconduct will be able to raise concerns and navigate the process more easily after the committee heard testimony from attorneys and others that filing a complaint is a murky process.
The ombudsman will be appointed after a hiring committee is convened in January 2024, according to the proposed bill. The ombudsman’s office would be responsible for overseeing an anonymous complaint filing system, including an online option, reviewing complaints, referring supported claims to the Commission on Judicial Discipline and working with complainants to explain the process and connect them with any needed support services.
Increasing Transparency, Independence
A second proposed bill would require the Commission on Judicial Discipline to disclose additional information in its annual report and take away some of the Colorado Supreme Court’s power over proceedings.
The commission releases a report once a year summarizing its work including the number of complaints it received, the outcome of any investigations and discipline recommendations it made. The annual report is a rare public look into the judicial discipline process, but over the summer has been critiqued during hearings as lacking enough information for Colorado voters, who re-elect state judges, to be informed about discipline proceedings or to understand how the process works.
The proposed bill would require the commission to publish more detailed information in its annual reports including the number of requests for evaluation it dismissed due to lack of jurisdiction over a judge or subject matter, the types of complaints it investigated, the results of investigations and the number of complaints that were or weren’t supported after an investigation. Additionally, the commission would be tasked with publishing the demographics of people filing complaints and the named judges. The commission’s annual reports would need to be publicly available in an online, searchable format.
Several parts of the proposed bill would need approval from Colorado voters to go into effect, including parts that would reduce the influence of the Colorado Supreme Court over proceedings.
After testimony raising concerns over the role the Colorado Supreme Court can play overseeing discipline proceedings, the proposed bill would strike out the high court’s power to appoint a special master to oversee an investigation. It would also grant the commission the power to order a formal hearing about the removal of a judge instead of handing that power exclusively to the Colorado Supreme Court. The commission would also have independent authority to issue testimony subpoenas for its investigations.
If the proposed bill is passed, any changes to the Colorado Supreme Court’s oversight role couldn’t go into effect until approved by Colorado voters in 2024.