May 9—Along with the next American president, Colorado voters in November 2024 will decide whether to change the state's system of disciplining its judges, the culmination of a judiciary scandal that began nearly five years ago with revelations of an insider-deal contract.
The Colorado legislature on Monday formally approved the proposed amendment — House Concurrent Resolution 23-1001 — in which the current 56-year-old method of judicial discipline would be shelved for one of greater transparency and accountability.
The body also approved a companion measure, House Bill 23-1019, which sets out in law the procedures by which the new judicial discipline system will work. The bill is moot should voters not pass the amendment.
A third bill, House Bill 23-1205, separately establishes an ombudsperson's office to help anyone with misconduct concerns in the Judicial Department that can range from issues with other employees or judges. The ombudsperson's function is to help guide victims through the complaint process, should the victim choose to proceed with a formal filing, or be an advocate for the victim and resolution of any matters they bring forth.
Alleged misconduct by a judge will not be referred automatically to the Colorado Commission on Judicial Discipline, but rather require the complainant's consent.
The bills head to Gov. Jared Polis's desk. The amendment resolution does not require the governor's approval.
"Bipartisan judicial discipline reforms ... have been years in the making and are vitally important to enhance transparency and independent decision making in our judicial process," Rep. Mike Weissman, D-Aurora and chairman of the committee that drafted the legislation, said. "Without a yes vote, reforms won't happen. I hope voters (approve the amendment) for the sake of better accountability in their state government."
The lone holdout in either the Senate or House of Representative votes to send the amendment to voters — the tally was 97-1 — was Rep. Rod Bockenfeld, a three-term Watkins Republican and former Arapahoe County commissioner with a career history in banking and a law degree.
"I believe it is a separation of powers issue," Bockenfeld told The Denver Gazette in an email. "I believe the justices will be challenging certain aspects of the commission and will probably prevail."
He said some legislators involved in the process "have a tendency to overreach."
"Some people like a lot of government," Bockenfeld wrote in explanation. "My constituents, not so much."
Many of the reforms are specifically designed to dampen the influence the Colorado Supreme Court has had in the discipline process, an outcome of a summer legislative committee hearings that disclosed the underbelly of a system under siege.
If approved by the voters, changes to the discipline system will include:
— How judicial members of the discipline commission are chosen. Currently, four of 10 on the commission are judges, two district and two county. All four are selected by the Colorado Supreme Court. The new system would require the State Court Administrator to randomly select a field of 10 district and 10 county court judges. The Supreme Court would chose two from each list.
— How discipline cases are heard. Currently, formal misconduct charges are heard by three special masters named by the Supreme Court, who decide on an outcome and recommend the discipline to the high court. The new method would use a three-person adjudicative panel — one judge, one attorney and one citizen — named from a pool of each to preside over any discipline case. The Supreme Court would sit only as an appellate review body, not as the approver or rejector of discipline as it is now.
— Whether Supreme Court justices must step aside from a case. Until a new directive in January, there was no requirement for a justice to recuse themselves from a case, even if another justice was under scrutiny. The amendment would require the justices to step aside in matters that involve another justice, members of their families or if they are to be a witness, and, if all have stepped aside, be replaced by a seven-person panel made up of judges from across the state.
— When discipline cases are made public. Currently, that happens after a case has been adjudicated and the Supreme Court receives a recommendation of discipline from the commission. The new method would make public any formal filing of discipline and any ensuing trial and verdict public.
— How the procedural rules for discipline are crafted. Currently, the Supreme Court writes the rules, with some consent of the discipline commission and public input. The new rulemaking method would be from a panel of 13 people — four named by the Supreme Court, four named by the adjudicative board, four by the commission and a victim's advocate named by the governor.
Also key is a component in which complainants of judicial misconduct would be advised of a case's progress. Currently, there is no requirement for complainants to be updated and they frequently are not.
The eventual move toward judicial discipline reform began in July 2019 with newspaper accounts of a multi-million-dollar training contract given to a former Judicial Department official who faced firing for financial irregularities.
Internal investigations found that former Chief of Staff Mindy Masias over many months had doctored receipts, collected expenses inappropriately and was involved in a number of other questionable conduct.
When faced with firing, Masias instead threatened a tell-all sex-discrimination lawsuit that would reveal years of judicial misconduct had been handled quietly or not at all, a stark contrast to the discipline she faced.
Masias had been the department's human resources director, and, at one time, when the discipline commission was without an executive director, she and her assistant, Eric Brown, filled in for several months. Brown became HR director when Masias became chief of staff.
It's unclear if any of the nearly two dozen instances of alleged misconduct she was to reveal were things Masias learned while overseeing the discipline commission's functions.
Ryan and Brown resigned and the contract was canceled when newspaper stories revealed its existence. Others in the department said it was actually the revelation of a secret tape recording that Masias had made with then-Chief Justice Nancy Rice about Masias not getting the state court administrator's job.
Nevertheless, former State Court Administrator Chris Ryan — the highest civilian position in the Judicial Department — in February 2021 said the contract Masias received was approved by then-Chief Justice Nathan "Ben" Coats as a way to silence the threatened lawsuit.
Ryan, Brown and Coats, along with the latter's counsel, Andrew Rottman, were in a meeting, in which a two-page document outlining Masias' allegations was read from.
Coats and Rottman denied the lawsuit threat influenced their decision, which additional investigations bore out, although neither Ryan, Brown nor Masias has ever spoken to investigators.
The three were eventually referred to the Denver district attorney for criminal investigation, but that office said it couldn't proceed because the referral had taken too long and the time left to potentially bring charges would expire.
The discipline commission immediately launched its own inquiry into the contents of the Masias memo only to run into its own obstacles with the Supreme Court. Commission members publicly told legislators of delays and intentional obstacles to information and documents it had requested.
Additionally, commissioners said funding they said they needed to pay for their own investigators was being threatened by the Office of Attorney Regulation Counsel, the body that manages its budget. The commission's funding comes from the Supreme Court. Although independent of the Supreme Court, OARC's director is an appointee.
Legislators last year quickly moved to separate the discipline commission from OARC's financial oversight and created a special committee to take testimony about potential reforms to the discipline process.
Dozens of people told legislators over several hearings last summer of problems within the Judicial Department — an independent investigator found a toxic environment where women were largely afraid to step forward with complaints about judges — and Ryan, despite an investigator's contrary finding, reiterated his stand that the Masias contract was a quid-pro-quo deal.
The committee's chairman, Sen. Pete Lee, D-Colorado Springs, resigned after charges were filed in El Paso County, alleging he voted from the wrong address, accusations that were largely based on paperwork from the OARC. Those documents were later found to be faulty and the charges were dismissed. Lee, a strong proponent of judicial reform who was term-limited, did not return to the statehouse.
While the legislature was reviewing the three bills it drafted, the discipline commission took the unprecedented step of recommending a formal public censure of Coats.
It was the first time in state history a member of the high court, let alone its chief, was censured for misconduct.
That recommendation is awaiting approval or denial by a special tribunal of seven Court of Appeals judges who replace the Supreme Court.
All seven justices recused from the Coats case under new rules that were adopted in January.
