Members of the Colorado Supreme Court for months privately raised objections and lobbied lawmakers to delay a bill that would revamp the state’s process for disciplining judges — all while publicly proclaiming their support for reform, The Denver Post found.
Chief Justice Brian Boatright and Justice Monica Márquez personally met with state Sen. Julie Gonzales, a Denver Democrat who sits on the Senate Judiciary Committee, in early March to express concerns about the bill and suggest the reform effort be delayed until after the conclusion of several investigations into an alleged blackmail scandal within the Colorado Judicial Department, Gonzales said.
Boatright on Wednesday also sent an email to all of the state’s judges in which he said he supports some parts of the reform bill — SB22-201, which was introduced Monday — but that he believes it also has “serious flaws.”
Sen. Pete Lee, D-El Paso County, a sponsor of the judicial discipline bill, said he received pushback from the Judicial Department throughout the process of drafting the legislation, which seeks to give more independence to the Colorado Commission on Judicial Discipline, the group responsible for disciplining the state’s judges for violating professional or ethical rules.
The commission’s leaders complained publicly in January that some of their investigative efforts connected to the blackmail scandal were stalled by the state Supreme Court.
“I want to take the Chief Justice at his word…,” Lee said. “I think he said, ‘I want to get us out of judicial discipline,’ or, in other words, ‘We don’t want to do it internally.’ But they say that, then they resist — they have expressed resistance to — provisions in the bill that would facilitate that removal.”
The behind-the-scenes effort to influence the bill and the state Supreme Court’s months-long back-and-forth with the Colorado Commission on Judicial Discipline was detailed to The Post by lawmakers and in 713 pages of documents and emails obtained this week under the state’s public record laws.
“Not to be alarmists (sic), but the discipline issue is in some ways getting more high-stakes and will probably be more public soon,” judicial branch legislative liaison Terry Scanlon, the department’s lobbyist, wrote in a March 22 email to chief judges Michelle Amico and James Hartmann, seeking a meeting about the bill. Neither chief judge returned requests for comment Wednesday.
“How do you say no to that?”
Earlier that month, on March 7, Boatright, Márquez and Scanlon met with Gonzales about the reform bill. At that point, the bill was still a draft and Gonzales had not yet seen it, she said.
The justices had “several concerns,” and suggested the bill should be delayed, Gonzales said, adding they did not seem to be trying to stop the bill entirely during the 45-minute meeting, but were concerned about the timing of the reform effort.
“I took the meeting because I am interested to hear their perspective, but I will state I came away from that meeting surprised over their raising concerns on a draft of a policy I had not yet had the opportunity to review,” she said, adding she’d normally delay meetings with stakeholders until a bill is introduced or until she’d had a chance to talk with the bill’s sponsors, but made an exception in this case in light of who requested the meeting.
“The appropriate and polite thing to do is to sit down and have a meeting with the chief justice of the Colorado Supreme Court,” she said. “You know? How do you say no to that?”
Bill sponsors Sen. Bob Gardner, R-El Paso County, and Rep. Mike Weissman, D-Arapahoe County did not return requests for comment about the bill and it was not clear Wednesday if they’d also been approached by justices.
Personal lobbying by members of the state’s highest court is highly unusual, but does not violate the justices’ ethical boundaries, said David Kaplan, past chair of the Commission of Judicial Performance.
The state’s Judicial Code of Conduct specifically authorizes judges and justices to consult with lawmakers over issues that concern the legal system or the administration of justice, he said.
“The more interesting topic is not that they’re lobbying against it, but that they’re doing that while they’re not acting efficiently and effectively to renew confidence in the judicial disciplinary process, which is what the (bill) is trying to do,” Kaplan said. “While they’re giving reasons why it shouldn’t pass, if they would have taken a more proactive position on fortifying the discipline process, they probably wouldn’t have needed to be presented the legislation.”
Months of back-and-forth
Emails between the Colorado Judicial Discipline Commission and the state Supreme Court show months of back-and-forth debate over information sharing and funding in 2021.
“Chief Justice Boatright, the decisions made by your predecessors are fixtures of history at this point,” commission vice-chair and District Court Judge David Prince wrote in a July 23 letter. “However, you now chart the course of interactions with the Commission for the Department and your staff… the Commission implores you to reconsider the overall approach to the Commission pursued to date this year.”
In a statement Wednesday, Judicial Department spokesman Rob McCallum said Boatright “is supportive of thoughtful, transparent and inclusive efforts at reform.”
“The Chief Justice and the Court are not opposed to reform, including reform of our system of judicial discipline, as long as it is done thoughtfully and includes many important voices in the process,” the statement said.
In an email Boatright sent to judges Wednesday, obtained by The Post through an open records request, Boatright reiterated his belief that some of the reform efforts should be put on hold until investigations into the blackmail scandal conclude, which is expected to happen within a few months.
“Those investigations will provide important insight into issues that need to be addressed in the disciplinary process, and the reports are expected to include specific recommendations for change,” he wrote. “It makes little sense to try to ‘fix’ perceived problems before the issues are actually identified.”
Boatright also said the changes proposed in the bill would “place a large burden” on Judicial Department staff because the bill requires the department to gather basic information about complaints about judges before handing that information over to the commission. The bill would require those records be kept for three years.
“We had hoped to have a more meaningful dialogue with the prime bill sponsor prior to introduction, but he has largely not engaged with us or sought our feedback in the process,” Boatright wrote. “Although I think there are serious flaws in the bill that would have significant unintended consequences and some of the language is unnecessarily inflammatory, there are some provisions of the bill that I wholeheartedly support.”
Support for independent funding
The bill would help the justices get out of the “awkward position” of overseeing the budget of the Commission on Judicial Discipline, Boatright wrote. He previously told lawmakers during a January public hearing that the justices “completely support” giving the commission independent funding, and a spokesman for the Judicial Department reiterated that stance in a statement Wednesday.
Boatright said he plans to testify about the bill at a Senate Judiciary Committee meeting Thursday, and told judges to loop in the Judicial Department if they plan to follow suit.
“Our ability to advocate on behalf of the Department is strengthened when we speak with one voice and when we work together,” he wrote.
The push for judicial reform follows reporting by The Post last year that uncovered an alleged blackmail scandal and high-level cover-up in which a top judicial administrator was accused of threatening to publicly reveal judges’ unaddressed misconduct unless she was given a lucrative state contract.
As work progressed on the reform bill, Scanlon, the Judicial Department lobbyist, said in a March 17 email to Colorado Court of Appeals Judge John Dailey that the department’s relationship with Lee and, “I guess, more largely the General Assembly” was in “a challenging stage.”
The pair were discussing a letter Lee sent about another bill he sponsored aimed at reducing implicit bias in jury selection that has since been defeated.
“I’ve proposed an outline of the response,” Dailey wrote, suggesting they tell the state senator: “Thanks. You’ve got a few things wrong. And don’t try to tell the supreme court what to do.”
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