Disciplining judges: Violations rarely prosecuted and aren't public

Commission includes 4 judges and dismisses 97% of complaints

When you vote to retain a judge in Colorado you could unknowingly be voting for a judge who has been disciplined, who is currently in discipline proceedings, or who should have been disciplined. That's because in Colorado all of this information is kept in the dark.

Unlike most other states, Colorado's constitution states that judicial discipline proceedings are confidential. It's a misdemeanor for anyone who assists the discipline commission to willfully and knowingly disclose the contents of any filing with the discipline commission. The executive director of the judicial discipline commission actually threatens criminal prosecution to individuals who want to talk.

​Yet Colorado's state constitution requires compliance with the Code of Judicial Conduct. According to the constitution, judges can be removed from office for any violation of the Code. Enforcement of the Code, however, has come under great scrutiny.

In 1993, the rate that Colorado's judicial discipline commission dismisses complaints against judges hit 97%. The dismissal rate has averaged 97% ever since. The increase in dismissals was the result of rule changes by Colorado's Supreme Court. 

Colorado's constitution gives the Supreme Court the power to make the rules for Colorado's Commission on Judicial Discipline. So Colorado's Supreme Court used its rule making authority to create an executive director who reports not only to the discipline commission, but also to the Supreme Court. Then the Supreme Court drafted rules requiring the executive director to dismiss complaints. The result was a dramatic increase in the number of complaints dismissed. 
 
The lack of transparency surrounding judicial discipline means the validity of all those dismissals cannot be verified. Even if a judge is disciplined in Colorado, the discipline is usually done in private. Not even the judicial performance commissions that make recommendations to voters about judges know whether the judges they're evaluating have been disciplined.

Colorado is in a minority of states without public judicial discipline proceedings.

According to the National Center for State Courts, 34 states have public judicial discipline proceedings. Colorado is one of only 16 states without public judicial discipline proceedings.

The American Bar Association recommends public judicial discipline proceedings.

The American Judicature Society recommended public judicial discipline proceedings.

The Justice System Journal has published an article in support of public judicial discipline proceedings.

​The public's trust in the judiciary is heightened with public judicial discipline proceedings. Colorado should make judicial discipline proceedings public like the majority of other states.

Public judicial discipline proceedings help judges become better judges.

Attorney discipline proceedings in Colorado are public. And there's a good reason why. A published case regarding lawyer discipline, whether the lawyer is punished or not, provides guidance to other lawyers on what to do in a similar situation. Lawyers are constantly learning.

Colorado judges, on the other hand, aren't learning anything because judicial discipline cases are confidential and aren't published. Judges do not get the benefit of published opinions advising them of how to behave in certain situations. Judges aren't learning how to be better judges. And judges have little fear regarding committing misconduct because they know if they behave badly it will most likely be kept under wraps.

Judges are public servants. Yet judicial discipline proceedings are private. Most lawyers work in the private sector. Yet lawyer discipline proceedings are public. The disparate treatment makes no sense. The discipline proceedings of public servants should be public.

A vigorous system that enforces judicial ethics does more than discipline the individual at issue; It teaches other judges how to act in a similar situation. But when discipline decisions are not published or shared, the knowledge is lost. Colorado's dark judicial discipline system benefits no one except bad judges. The lack of transparency undermines the judiciary's credibility. Judicial discipline proceedings should be public in Colorado.

Even the funding of the discipline commission is kept in the dark.

Funding of governmental commissions and agencies is usually public. Watchdogs focus on how much money the commission or agency receives and how it's spent. 

Colorado's Commission on Judicial Discipline is located in the judicial branch. The judicial branch submits an annual budget request to the legislature. Line items in the budget request describe what the money requested is to fund. But you won't find the discipline commission in the budget request.

The actual commission consists of volunteers. But a paid executive director runs the discipline commission's office and it costs money to prosecute cases. Is the judicial branch withholding funds from the commission to ensure cases are rarely prosecuted?

​Colorado's legislature should not allow the judicial branch to hide the amount of money that is used to fund Colorado's Commission on Judicial Discipline.

Formation and isolation undermine Colorado's Commission on Judicial Discipline.

Nominating Commissions

Because judicial discipline proceedings are not public, the Judicial Nominating Commissions don't receive discipline information about potential nominees. In other words, if a district court judge applies to be an appellate court judge the nominating commission doesn't know whether the district court judge has already been disciplined or is in discipline proceedings

Colorado's Commission on Judicial Discipline:

- The judges (4) outnumber the lawyers (2).
 
- The legal professionals (6) outnumber the citizens (4).
 
- The dismissal rate of complaints against judges hit 97%
   in 1993 and has averaged 97% ever since.
 
- And no one knows what’s in all those dismissed complaints
   because it’s all “confidential.”
 
Do these facts promote your confidence in Colorado’s judiciary?

Performance Commissions

Because judicial discipline proceedings are not public, the Judicial Performance Commissions don't know whether the judges they're evaluating have been disciplined. In other words, the commissions regularly recommend retention for almost all judges without knowing whether the judges have been disciplined. The commissions could be providing favorable recommendations for judges who have been disciplined or who are in discipline proceedings.

Improving the judicial discipline process​ in Colorado is essential.

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Two simple steps would greatly improve Colorado's process for disciplining judicial misconduct. First, Colorado should make judicial discipline proceedings public. Second, Colorado should remove the conflicts of interest in the judicial discipline process.

The legislature is responsible for Colorado's current system. The legislature put forth a referendum (constitutional amendment proposed by the legislature) for the current system, which was adopted by majority vote of the public in 1966. We simply need to correct the mistakes made more than 50 years ago.

​Please sign our petition to increase transparency, enhance accountability and remove the conflicts of interest in Colorado's judicial system. And make no mistake about it, the most important piece of judicial reform in Colorado is to make judicial discipline proceedings public.
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Help yourself to a better justice system.