Colorado’s judicial discipline, agency budget mostly secret

By Arthur Kane | Watchdog.org

Since its inception nearly 50 years ago, the Colorado Commission on Judicial Discipline has only made three disciplinary cases against judges public, and the director told Watchdog.org that even the commission’s budget is a state secret.

Colorado, whose judicial discipline secrecy is enshrined in the state constitution, is one of only a handful of states where the fact-finding hearing after formal charges isn’t public, records from the American Judicature Society show. In the three times the information was released in Colorado there was a formal hearing scheduled before the state Supreme Court.

CCJD Executive Director William Campbell, who noted he increased transparency since taking over about six years ago, said the process works fine and sees no reason to change it.

“When there’s a problem, we address it,” he said. “Nothing is getting shuffled under the rug.”

But Cynthia Gray, director of the Center for Judicial Ethics, said judges should face a similar system as when there are criminal complaints against average people.

“That’s how the court system works,” she said. “The grand jury proceedings are confidential, but when an indictment is filed it is public.”

Campbell said Colorado doesn’t have the same problems as places that elect their judges and has a State Commission on Judicial Performance that recommends whether voters should retain the appointed judges.

He also said there have been between 20 and 30 cases in the commission’s history that would have become public, but the judges resigned or retired before the cases made it to the state Supreme Court. There have also been about 300 private disciplinary actions since 1967 when the CCJD started its work, Campbell wrote in an email.

“People who complain about a judge will be more comfortable if their names are not public,” he said. “They don’t want to be in the news. And people might not want to be judges if complaints are public.”

Gray said a public hearing helps protect the accused judge and society.

“It’s a protection for the judge involved so he can defend himself in public and for the public to make sure the work is being done properly,” she said.

Only 15 states and the District of Columbia make formal action public only if a court orders or recommends public discipline, AJS records show. The other states make formal charges against a judge public or have open hearings on those allegations.

Campbell said two Colorado judges were publicly disciplined in the 1980s and last year the state Supreme Court publicly censured Larimer County Judge Robert A. Rand. He resigned before the formal Supreme Court hearing.

Campbell said Rand made “racy” comments that left people in his court — particularly women — uncomfortable, met privately with people before his court without the competing side present and used state resources for his personal antique car business.

The CCJD’s annual reports show that the public never finds out about the details of dozens of sometimes significant complaints. Last year, the commission received 189 complaints, similar numbers to previous years. Campbell dismissed 170 of those because they didn’t meet the guidelines of what the commission investigates and the commission dismissed all but 10 of the rest as unfounded or under the jurisdiction of appellate courts.

Of the remaining complaints, one judge was put on diversionary education for docket management, one complaint was solved when the judge retired, one — apparently Rand — was put into formal proceeding and two judges received private discipline. Five cases were carried over to 2014, according to the CCJD’s annual report.

Campbell said the private discipline is often about relatively minor issues like docket management or when a judge says something in court he or she shouldn’t have.

“I think it’s working pretty well,” he said. “The kinds of things we run into here are not typically as serious as states with elected judges.”

One of the two private disciplinary measures detailed in the 2013 annual report was a reprimand against a judge who didn’t recuse himself or notify litigants in cases involving a company where the judge’s brother was employed as a top executive. The CCJD only investigated when the issue was highlighted by a media report.

“The media coverage that triggered the Commission’s investigation created a negative impression of the judiciary and an appearance of impropriety, contrary to former Canon 2(A) which required a judge to act in a manner that promoted public confidence in the integrity and impartiality of the judiciary,” the annual report said.

Campbell declined to confirm the judge’s name, and the judge Watchdog.org believes was involved in the case didn’t return a call seeking comment.

Campbell also cited Colorado’s system of appointing, instead of electing, judges as a safeguard against bad judges. Judges face retention votes every six to 10 years depending on the level of the court (after two years for newly appointed judges). Watchdog.org found the retention board also rarely recommends a judge’s removal.

In Tuesday’s election, 146 judges will faced retention votes, but the commission recommended voters retain all but three judges and issued “no opinion” on one additional judge. That’s typical of most years. The commission’s website shows that between 1990 and 2012, about 98 percent of judges were recommended for retention.

CCJD’s lack of transparency extends to information that isn’t protected by the state constitution and is public for most any other government agency in the country, except maybe organizations like the CIA or NSA.

Campbell declined to reveal the commission’s annual budget, citing a 2012 appeals court ruling that determined the judiciary isn’t a state agency and isn’t subject to the Colorado Open Records Act.

“We follow the holding of our supreme court that the scope of the statutory vehicle—CORA—upon which Judicial Watch relies does not include the judiciary,” the opinion said.

Jeff Roberts, executive director of the Colorado Freedom of Information Coalition, said the judiciary should have similar transparency as other state divisions and the court shouldn’t be able to exempt itself from state law.

“It seems like people ought to be able to know how these dollars are spent, if not specifically, then in general,” he said, adding to fix the problem the :egislature must clarify that the judicial department is subject to CORA. “They’re ruling on themselves and there’s no apparent separate entity that oversees that.”

Campbell noted the money for his commission’s “modest” budget comes from attorney registration fees and not taxes, but Roberts said it’s still public money.

“The way we read (CORA), it doesn’t apply to us,” Campbell said. “The (state) Supreme Court oversees us, and we feel the public doesn’t need to know.”