Independent oversight is key to the maintenance of trust in any institution, especially public institutions.
Reporting in The Denver Post and other news outlets raised serious issues regarding the judicial discipline process. As members of the legislature, we found that Colorado’s decades-old judicial discipline system did not meet the modern standards of independence and public accountability necessary for public trust.
We, along with our legislative colleagues, have worked to change that. In our 2022 legislative session, we passed a bi-partisan bill, Senate Bill 201, that established independent funding for the Commission on Judicial Discipline. The bill passed the legislature with 94 “yes” votes out of 100. It requires the judicial branch to share key information with the commission and requires the commission to report to the legislature for purposes of ongoing oversight.
Finally, because legislators of both parties agreed that issues of judicial discipline are serious and complex enough to warrant additional study, SB 201 also created an interim committee to
examine how to improve our judicial discipline system and to propose recommendations
to the general assembly next year.
This summer and fall, a bipartisan group of legislators – four Democrats and four Republicans –
have taken testimony from witnesses, consulted experts from non-partisan research
organizations, and studied judicial discipline laws and systems from other states. After careful
deliberation, the interim committee unanimously approved two measures that will make extensive and important changes to our system of judicial discipline in Colorado.
The first measure is a concurrent resolution that, if approved by two-thirds of the legislature next year and then approved by voters in the November 2024 election, will make several key changes to our constitutional framework for judicial discipline.
First, instead of remaining confidential and out of public view until near the end of the process, judicial discipline matters would be open (as most other court proceedings are) once formal proceedings commence. This change would move Colorado out of a small minority of states whose judicial discipline proceedings are as closed as ours are now.
Second, a new Independent Judicial Discipline Adjudicative Board would be created, consisting of equal numbers of judges, lawyers, and non-lawyers. This new independent board would act like a “court” for formal judicial discipline proceedings and determine what sanctions are appropriate.
The Adjudicative board would largely replace the role of “special masters” – judges appointed by the Colorado Supreme Court – and the supreme court itself in imposing sanctions. Other states have long since enacted similar approaches to create more separation between those potentially subject to discipline and those imposing discipline. There is a limited appellate review of the Adjudicative Board’s decision.
Third, in situations when Colorado Supreme Court justices are potentially involved in disciplinary proceedings, they would be removed from their usual role in the appellate review process and replaced by seven randomly selected judges of the Colorado Court of Appeals.
Finally, while preserving the confidentiality of complainants, witnesses, and judges not yet sanctioned through formal proceedings, our constitution would make it clear that the public has a right to know aggregate, non-identifiable data about what is going on in our judicial discipline system and that complainants have a right to be kept informed about ongoing investigations. These latter provisions are similar to the provisions of the Victims Rights Amendment to our state constitution, long ago approved by voters.
The second measure is a companion bill that would give effect to the proposed constitutional
changes. The bill would enhance reporting by the commission to the legislature and the public,
explicitly allow both confidential and anonymous judicial discipline complaints to be made, and
require the commission to update complainants at key stages throughout the judicial discipline
process. The purpose of these provisions is to increase information available to public about
judicial discipline matters and to make the process more “user-friendly” for individuals who lodge
complaints. Interim committee testimony established that our current system is deficient in both
of these respects.
Finally, the interim committee invested significant time in researching and discussing the role that an ombuds office could play in supporting complainants in the judicial discipline process. Ultimately the committee did not propose a specific bill on this subject, but legislators of both parties have committed to continue to work on the issue in the 2023 session.
We hope that our colleagues will support these bipartisan measures next year, and we urge voters of all parties to support the proposed constitutional changes in 2024. Our state needs and deserves a more modern, conflict-free process for resolving judicial discipline complaints.
Rep. Mike Weissman (D-Aurora) served as the chair of the Interim Committee on Judicial
Discipline. Rep. Terri Carver (R-Colorado Springs) served as the vice-chair of the Interim
Committee on Judicial Discipline.
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