Judicial discipline largely handled in “darkness” in Colorado, with most states offering greater transparency

The three-minute video posted on the Florida Supreme Court’s website shows the moment a judge, dressed in her black robes, put her hands on the shoulders of a courthouse employee and briefly shook him.

The video, along with 62 documents that outline the judicial misconduct case against Circuit Judge Vegina T. Hawkins, became public record in July 2019 once the Florida Judicial Qualifications Commission began formal disciplinary proceedings against the judge. Hawkins lost her re-election bid in 2020, and the disciplinary case was dismissed. But as the case wound through the state’s formal disciplinary process, the public could follow along.

Florida is one of 26 states where confidentiality for a judge accused of misconduct ends once formal charges are filed by a disciplinary commission. Other states with similar practices include California, Kansas and Washington. Another seven states make the cases public once the accused has a chance to respond to the allegations, and two more states allow the public to watch hearings but don’t reveal any details until then, according to the Center for Judicial Discipline at the National Center for State Courts.

But Colorado is one of 15 states where disciplinary cases against judges are secret until a recommendation for a public punishment is ordered. In most cases, however, Colorado judges are disciplined through informal proceedings that end with a private disciplinary decision.

“There’s no other state that is as dark as Colorado,” said Chris Forsyth, executive director of The Judicial Integrity Project, which pushes for judicial disciplinary reform in Colorado.

The state’s judicial disciplinary proceedings came under scrutiny last week after the Colorado Supreme Court released a previously secret memo that cited multiple examples of sexual misconduct and harassment by judges, allegations that reached the highest levels of the Colorado Judicial Department. The memo was released after a series of articles in The Denver Post about allegations a former human resources administrator threatened to tell everything she knew in exchange for a $2.5 million contract. The contract has been dissolved.

In Colorado, complaints against judges remain confidential until the Colorado Commission on Judicial Discipline recommends public discipline. Twelve other states have similar laws, including New Mexico, Utah and Wyoming. Only three states — Delaware, Hawaii and North Carolina — keep discipline a secret until a court orders it to become public, according to the National Center for State Courts Center for Judicial Discipline.

Forsyth has pushed for years for change, saying judges are public servants, and their misdeeds deserve public scrutiny.

“There’s no other reason for this darkness other than to undermine the trust and confidence of judges in Colorado,” he said.

Transparency varies from state to state. Some commissions such as Florida’s post documents as cases move through proceedings, some issue news releases about decisions and some issue orders along with board member’s opinions on why they determined discipline was warranted. Nowhere in the United States can the public see a list of formal complaints against judges, said Cynthia Gray, director of the Center for Judicial Ethics at the National Center for State Courts.

“That would be true in every state,” Gray said. “You just can’t go in and look at them.”

But many states offer more information to the public than in Colorado.

In Arkansas, for example, the Judicial Discipline and Disability Commission published a news release in May announcing a judge had resigned and was barred from serving again after he was caught receiving sexual photographs — and asking for more — from a woman facing charges in his courtroom. In Colorado, if a judge resigned before a disciplinary decision, it’s likely the allegation never would become public.

In Minnesota, a judge in March was publicly reprimanded for failing to appropriately supervise a law clerk, approving inaccurate time cards and sending inappropriate email messages about attorneys arguing in her courtroom. Judicial reprimands in Colorado remain confidential.

The Colorado Supreme Court memo released last week listed specific examples of judicial misconduct, but it’s impossible to know if disciplinary action was instigated or whether anyone was at least reprimanded or censured.

A few of the instances discussed in the memo include:

  • A judge sent a pornographic email over judicial email and still was promoted to a chief judge position
  • A law clerk was given a release agreement to protect a court of appeals judge from harassment accusations during the Supreme Court selection process
  • Another judge took off his shirt and rubbed his chest hair on a female employee and no action was taken.

None of those instances are available for review on the Colorado Commission on Judicial Discipline’s website. That could mean those judges were considered for discipline and none was given. Or they were privately admonished, reprimanded or censured. Or the commission may never have received those cases for review.

William Campbell, executive director of the Colorado Commission on Judicial Discipline, said it would “verge on breaching confidentiality” if he confirmed whether any of those incidents came before the commission. However, in a Friday news release, the commission said it had “reviewed its records spanning the last five years and has not been able to identify a referral from the State Court Administrator’s Office or the Office of the Chief Justice that appears to match the limited details reported publicly.”

The commission only investigates the cases it knows about and if no one complains to the commission, no case is considered. And no changes in law can fix a culture where formal complaints of misbehavior are not made.

Amending the Constitution

The memo’s contents captured the attention of the Colorado General Assembly with Senate President Leroy Garcia, D-Pueblo, and House Speaker Alec Garnett, D-Denver, calling for an investigation. Garcia also told The Post that legislators are considering holding hearings or forming committees to examine the situation.

But the legislature cannot single-handedly change how judicial discipline is handled.

In 1966, Colorado voters amended the state Constitution to create the judicial discipline commission and to establish rules on how it would function. So the secrecy is embedded in the state Constitution.

Campbell said when he first accepted the job leading the commission he met with a Supreme Court liaison who said, “Bill, you’ve got a confidential job that needs more transparency.”

Since Campbell was hired, the commission created a website where visitors can read annual reports and find brief summaries of disciplinary cases. But the commission is limited on what it can reveal.

To eliminate such secrecy, voters would have to approve a ballot measure that would change the state Constitution. That would mean the legislature would have to approve a general election ballot referendum. Or someone could lead a ballot initiative, meaning an organization or individuals would have to pay for an expensive drive to collect enough signatures to put the issue on the ballot.

“It’s non-partisan and no one benefits more than another so no one wants to put money into it,” Forsyth said.

States with more transparent judicial discipline procedures are typically states where judges are elected and must run partisan political campaigns, Campbell said. In Colorado, a commission nominates judicial candidates to the governor, who then appoints them to the bench. After that, voters decide whether to retain judges, but those judges don’t campaign for the yes or no votes.

“As a general principle the states that have a very selective nominating process tend to have less complaints about judges,” Campbell said. “We hope to handle them in a constructive way. If it’s terrible, it becomes public.”

Campbell says the confidentiality also protects those who file complaints since judges hold a lot of power.

“When people talk to me or write to me about ethics concerns with a judge they’re often terrified the judge will find out,” he said.

More confidentiality?

Even in states where judicial discipline is more open, the decision-makers sometimes find themselves opining for more confidentiality.

Earlier this month, Superior Court Judge David S. Keenan in King County, Washington, was admonished for participating in an advertisement on city buses for North Seattle College. His picture and the wording, “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities. David’s changing the World. He started at North,” were printed on the buses in August 2019.

But the ad ran afoul of state judicial ethics canons because it “can reasonably be read to express a preference or commitment in favor of marginalized communities,” according to the Washington Commission on Judicial Conduct’s decision and order, which is posted on its website. The bus ads also could be viewed as campaign advertisements.

Keenan, according to the documents, was a high school dropout who eventually earned his GED and multiple other degrees at the college and is a strong supporter of its mission. He also has a reputation as a community volunteer who promotes access to diversity and equality in the law.

The decision tore at the commission’s members, leading one to write an “opinion dissenting in part” to say she wished the commission was not legally bound to make the admonishment public.

“I would greatly prefer that the Commission was able to write Judge Keenan a private cautionary letter, sparing him the stress, expense and embarrassment of a public Commission proceeding,” Sherry Appleton wrote. “The State Constitutional provision that governs this Commission does not currently allow such a private sanction, however, and perhaps that is something that the legislature and the public can reexamine.”

 

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