An interim committee of the Colorado General Assembly met for the last time to discuss bills it will introduce next session changing how complaints against state judges are handled.
At the Sept. 30 meeting, lawmakers gave additional background on proposed legislation, passed a handful of amendments and explained what issues didn’t make it into the drafts that they plan to prioritize next session.
The Legislative Interim Committee on Judicial Discipline was created earlier this year by Senate Bill 22-201, which set aside independent funding for a new office to look into misconduct allegations against state judges. SB22-201 created an interim legislative committee to look into how the state judicial branch handles complaints against judges and to draft legislation to make any needed changes to the process.
The bill came after the Colorado Judicial Branch was hit by a public scandal alleging it covered up and mishandled complaints against its staff, including judges. While two independent investigations commissioned by the branch found little evidence to back up most allegations, the published reports did find cases where serious misconduct by state judges wasn’t handled properly by the Colorado Judicial Branch and discovered deeper cultural problems in the branch around routes for employees to report senior staff and fears of retaliation.
Over the course of the summer, the Legislative Interim Committee on Judicial Discipline, a bipartisan group of four state representatives and four state senators, held five public hearings to learn more about the judicial branch scandal, understand Colorado’s current system for judicial discipline, hear feedback from stakeholders and the public and prioritize issues for next session.
On Sept. 9, the committee publicly released its first drafts of legislation, two bills and one concurrent resolution, to be introduced in the 2023 Colorado General Assembly session. At Friday’s final public meeting, the lawmakers explained the background of certain proposed changes and added that they plan to further develop some points when the state legislature reconvenes in January 2023.
The committee agreed to present a concurrent resolution to the state legislature that would ask Colorado voters in 2024 to change the state constitution to reform the judicial discipline process.
If passed, voters will be asked to reduce the power the Colorado Supreme Court has over judicial discipline proceedings and formalize protections for people who bring forward complaints.
Under Colorado’s current system, set out in the state constitution, the state Supreme Court has the power to decide and impose sanctions against judges who are found to have committed misconduct. The court has a de novo review standard in discipline cases, allowing it to make new findings of both the facts and the law of a case, brought by Colorado’s Commission on Judicial Discipline. The resolution would create a new board with the power to impose sanctions and would only allow the state Supreme Court to review appeals on questions of law and clear error in fact-finding.
The resolution would also create a standardized process for when complaints, which are kept confidential until the Colorado Commission on Judicial Discipline makes recommendations to the state Supreme Court, are made public. If passed by voters, complaints against judges would no longer be confidential once a formal proceeding against a judge starts.
The resolution would also formalize details of the new body tasked with looking into complaints, including setting out a rule-making process and specifying the composition of adjudicative boards that would run formal proceedings after an investigation. Currently, a panel of state judges are tasked with overseeing formal proceedings, but the resolution would create a pool of citizens, lawyers and judges who’d be selected to oversee the process.
“We have moved significantly from the structure in the current constitutional provisions on judicial discipline,” said Rep. Terri Carver. “It has been, quite frankly again, informed by what other states have done and our excellent stakeholder input.”
Lawmakers passed two amendments to the resolution which they plan to dive deeper into at a later date. One amendment was mainly structural and the other offered increased protections for complainants against defamation claims.
“If there is a defamation action coming out on the other side because one party doesn’t like what the other party said, that’s a chilling effect on the entire thing. And we don’t want that,” explained Rep. Mike Weissman, adding that the resolution would be amended to grant absolute immunity against defamation claims for testimony provided during a disciplinary proceeding.
Lawmakers said Weissman and Rep. Mike Lynch plan to introduce the resolution in the House next session with Sen. Bob Gardner and Sen. Julie Gonzalez set to introduce it in the Senate. They noted the resolution will likely be altered next session to address any further concerns.
The second piece of legislation the committee agreed to introduce next year would change the judicial discipline process for complainants, investigators and the public.
The bill would create a new body, the Judicial Discipline Adjudicative Board, to look into complaints and set out rules for the body. The bill would require people who file complaints to be kept in the loop about their case, require more detailed information be published every year about the complaints filed, formalize the office’s subpoena power, create more avenues for people to make complaints and clarify confidentiality protections for complainants.
Carver noted that the proposed bill doesn’t make headway on two critical issues discussed during the interim committee meetings. She explained that while they didn’t make it into the first draft, both issues are important to the committee.
The first issue is the new office’s subpoena power in its investigations. While the draft formalized the body’s ability to subpoena, Carver noted it doesn’t address some questions about what this power would look like including its legal venue.
“We believed it was better to reserve the subpoena issue… for the legislative session, with the commitment and full intent that there will be a subpoena provision in this bill to address all those issues,” said Rep. Carver.
Rep. Weissman added that the committee found subpoenas were rare in the judicial discipline process, but the codified power was written in to ensure “there be a solid process for issuance and for resolution of disputes about issuance.”
The second issue the bill doesn’t speak to is current misdemeanor criminal penalties for breach of confidentiality in the judicial discipline process. Over the summer, the committee heard from people who’ve filed complaints that the threat of potential criminal action for talking about a complaint had a chilling effect for bringing allegations and discouraged them from speaking about their experiences or asking for help out of fear of criminal charges.
Carver explained that she doesn’t believe a misdemeanor criminal penalty is appropriate as a wide-reaching sanction but added that the committee wasn’t able to dive into the details of alternative sanctions. She noted that different sanctions might make sense depending on who broke confidentiality (a board member versus a witness) and under what circumstances.
“But we were not able to get a fully vetted alternative sanction for breach of confidentiality. That is why we decided the better course was to delete that section but put on record our full commitment and statement that this must be addressed in this bill in 2023,” she said.
Lawmakers also passed amendments to clarify how a formal adjudicative panel would be staffed by the Colorado Judicial Branch, deciding staff from the selected judge’s district would be asked to support, and to specify what specific information complainants must be notified of in the process.
All amendments were passed and the committee decided the bill will also be introduced by Weissman and Lynch in the House and then Gardner and Gonzalez in the Senate.
Creating an Ombudsman
The final bill would create an office to explain the complaint process to people and offer support to those making complaints.
Rep. Jennifer Bacon and Lynch, who drafted the third bill, said the bill needs additional work before it’s introduced to committee but underlined the bill’s intention and changes.
Bacon explained that the bill was based on testimony and stakeholder feedback that navigating the judicial discipline process was confusing and difficult. She explained that the ombudsman’s office would “act as an advocate for the complainant in the sense of helping the complainant make decisions that are best for the complainant and not the system.”
Lynch said that what initially seemed like a straightforward task, creating an ombudsman office, ended up being “a can of worms” that uncovered deeper issues.
“I want to say that you can count on there definitely being an ombuds office by the end of next session. I’m pretty confident that we’ll be able to get that done,” said Lynch. “I feel that taking the additional time to put into this, is prudent to make sure that we cover all the bases from all of the information that we received through this process.”
Other members of the committee expressed that while it wasn’t tasked by SB22-201 with creating an ombudsman office, they believe the office is needed to address concerns brought by complainants but also to protect judicial branch employees after independent investigations identified cultural issues in the branch.
Representatives specifically thanked the National Center for State Courts for providing its expertise and research and the Colorado Women’s Bar Association for its continued engagement with the committee and feedback.
The interim committee will officially be dissolved now that it’s held its final meeting, but lawmakers noted its work identifying and addressing structural issues at the Colorado Judicial Branch will continue next session and in years to come.