Colorado judiciary long on taxpayer money, short on transparency

By Arthur Kane | Watchdog.org

Colorado Court Administrator Gerald Marroney barreled down the hallway of the judicial building on a recent afternoon, looking straight ahead and ignoring my questions.

“I wanted to ask you why the judicial department doesn’t seem very transparent considering it gets millions of dollars from taxpayers — yet you don’t want to release documents most other departments do?” I asked after a state Internet portal authority personnel committee meeting.

Minutes before, Marroney, a former state judge, closed the committee meeting without any justification that an executive session was appropriate under state law.

“You’re not going to talk?” I persisted as Marroney quickened his pace. “Doesn’t that kind of show a lack of transparency, too?”

“You got information from my staff,” grunted Marroney, referring to the denial of my request for information on how often people were called for jury duty.

Marroney stepped through the double doors and into an elevator, and I followed.

“We’ve asked the department for a lot of different things, and you always say no. Shouldn’t the taxpayers know what you guys are spending money (on). Once the department has told me that even the budget isn’t open.”

Marroney fled the elevator into a secured portion of the building. He didn’t respond.

For the past decade, the Colorado Judicial Branch and its judges have repeatedly closed off more and more records to the public. The department received more than a half-billion dollars last year, with $387 million of that coming from general fund tax proceeds, legislative Joint Budget Committee records show.

Despite that, the appellate court in 2012 determined the department doesn’t have to produce documents, such as budgets and internal memos, under the Colorado Open Records Act.

Marroney declined an interview about the department’s records policies, so I decided to find the administrator, who made $142,000 last year, after a meeting.

Denver media attorney Steve Zansberg said the appellate judges acted unilaterally to rule their own department was not subject to CORA.

“As things stand the Colorado judicial branch by its own ruling is not an agency and not subject to the Colorado Open Records Act,” he said, adding criminal filings are subject to the Colorado Criminal Justice Records Act, but not the workings of the department — budgets, memos and emails, for example.

In the ruling, Judicial Watch, a conservative, nonpartisan foundation that investigates government misconduct, sued when it was denied records of the Colorado Attorney Regulation Counsel’s investigation of the Maricopa County, Ariz., attorney’s office.

“It’s just unusual for another state to come in to investigate a duly elected official,” said Judicial Watch president Tom Fitton, adding his organization asked the state Supreme Court to review the ruling, but the high court declined. “We wanted to know how it was done.”

The district court ruled mostly in Judicial Watch’s favor, saying many records were subject to release under CORA, but the appellate court reversed that decision and ruled the judicial department isn’t subject to state open records laws.

“CORA Does Not Require the Judiciary to Release the Records Requested by Judicial Watch,” wrote appellate judge Steve Bernard.

But state Sen. Kevin Lundberg, a Berthoud Republican who sits on the Senate judiciary committee, suggested the Legislature needs to clarify the question.

“I don’t believe the judiciary is above the law,” said Lundberg, who will be vice chairman of the committee next session. “I understand there are legitimate exceptions in CORA in every arena, but everybody has to play by the same rules. The judicial department interprets the law. It’s not their job to rewrite the law to their convenience.”

Judicial department staff is using the ruling — one determined by judges who are paid employees of the judicial department — to justify not providing records that are clearly public for almost every other agency. I asked William Campbell, executive director of the Colorado Commission on Judicial Discipline, about his budget, and he cited the appellate court ruling in refusing to disclose the information.

“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.”

The judicial department’s practices are in stark contrast to accepted open records conventions.

“It is declared to be the public policy of this state that all public records shall be open for inspection by any person at reasonable times, except as provided in this part 2 or as otherwise specifically provided by law,” the legislative intent of state open records laws, CRS 24-72-201, states.

Judicial officials have apparently flipped that accepted practice, requiring a law that specifically says the record should be made available. For example, I wanted to determine if people were being called for jury duty more frequently than in the past, after I was called for jury duty four years in a row when, previously, the summons came once every few years.

In response, judicial spokesman Jon Sarché, in an email, wrote: “The statute governing what is and is not public as far as juries is 13-71-101 to 13-71-109. Nothing in there authorizes the release of the number of times anybody’s been called.”

The names of jurors are public, so it’s unclear what the problem would be with releasing how often people were called.

Looking at those statutes, nothing prevents disclosure of the information, either, but Sarché seem annoyed that anyone would question the decision when I pointed that out.

“I thought I was very clear: Our Legal Department determined that because nothing in the statute authorizes release of the information you want, we cannot provide it,” he wrote.

Zansberg said the department determined the law prevented their release, but anybody disputing that interpretation would have to go to the judges in the same judicial department that determined the records are closed.

“The judiciary is generating its own records policy,” he said, noting that the federal courts are not subject to the Freedom of Information Act.

Zansberg said he believes the state judiciary is putting together a policy to deal with access to its own records that will closely mirror CORA.

If true, the policy would still be subject to the whims of the chief justice, as previous such directives. Ten years ago, the judicial department, with the stroke of a pen, closed off whole sections of public records created and maintained with public dollars.

COURT OVERSEER: State Sen. Kevin Lundberg, R-Berthoud, is incoming vice chairman of the Senate judiciary committee and believes the department should be subject to state records laws.

The majority of court filings are open if a person wants to travel to the local courthouse, but the judicial department maintains an electronic database of lawsuits filed, including the names of plaintiffs and defendants and other pertinent information. That database would be useful to determine which doctors statewide have the most malpractice lawsuits or which lawyers have been sued the most for failing their clients or what businesses are subject to the most legal claims.

But the then-chief justice decided the courts have to remove plaintiffs’ and defendants’ names when the judiciary sells the state-maintained database to the public. The judicial directive says “requests shall not contain any names of parties associated with a case.”

Zansberg said Colorado residents can petition the General Assembly or go directly to voters if they believe the judiciary acted improperly to close itself off from transparency and accountability.

“If enough people are outraged — as I believe they should be — … we, the people, should push for an initiative,” he said. “Perhaps it’s what people will do if the General Assembly does not act.”

I asked for interview with state Supreme Court Chief Justice Nancy Rice.

Sarché, who was paid nearly $77,000 last year, also denied that request. I’ll work to find Rice, who taxpayers paid $147,000 last year, to ask her about the transparency issues at the department she heads.