Our Proposed solution would:
1)Transfer jurisdiction over judicial discipline to the Independent Ethics Commission, and
2) Make judicial discipline proceedings public in Colorado, bringing Colorado in line with35other states.
We call the proposed solution
The Honest Judge Amendment.
The legislature is responsible for our current system. The legislature put forth a referendum (constitutional amendment proposed by the legislature) for our current system, which was adopted by majority vote of the public in 1966.
Don't you think the legislature should pursue The Honest Judge Amendment as a referendum to correct the problems the legislature created with our current judicial discipline system?
Honest Judge would remove conflicts of interest in the current system by:
1) Transferring the power to discipline judges to the Independent Ethics Commission and
2) Transferring the power to make rules regarding judicial discipline to the Independent Ethics Commission.
Currently, our judicial discipline commission includes4judges and the Supreme Court writes the rules for the commission. Both of these facts constitute conflicts of interest.
Where is the Independent Ethics Commission created?
How and when created?
By an initiative (citizen-sponsored amendment that received enough signatures to make the ballot) to amend the constitution that voters approved in 2006.
How many commissions are there?
There is1Independent Ethics Commission.
How many people are on the commission?
There are5 members on the Independent Ethics Commission.
Who selects the members of the commission?
1member appointed by the Colorado senate;
1 member appointed by the Colorado house of representatives;
1member appointed by thegovernorof the state of Colorado;
1member appointed by the chief justice of the Colorado Supreme Court; and
1member, who shall be either a local government official or a local government employee, appointed by the affirmative vote of at least three of the four other members.
Yes. No more than two members shall be affiliated with the same political party. Each of the five members shall be registered Colorado voters and shall have been continuously registered with the same political party, or continuously unaffiliated with any political party, for at least two years prior to appointment to the commission. (The commission can consist of all citizens, but lawyers have served on the commission.)
Yes. The Honest Judge Amendment would also provide the Independent Ethics Commission with prosecutorial powers for judicial disability and discipline matters.
Supreme Court involvement?
Outside of appointing one member of the commission, there is no direct involvement of the Supreme Court. The Independent Ethics Commission is truly independent in this regard.
If The Honest Judge Amendment is adopted, the Supreme Court would be required to accept the recommendations of the Independent Ethics Commission if substantial evidence supported the recommendation.
Yes. The Honest Judge Amendment requires judicial discipline hearings to be public. The Independent Ethics Commission currently has public hearings.
Any public documents?
Yes. The Honest Judge Amendments requires that once probable cause is found, judicial discipline proceedings are public.
What's the result?
A better justice system. The Honest Judge Amendment removes the conflicts of interest and increases transparency, which enhances accountability. Public trust and confidence in the judicial branch will increase as a result.
Adopting The Honest Judge Amendment would be a win-win for Colorado.
If you fail to water a plant, it will die. The same is true of ethics and justice. It takes nourishment and a nurturing environment for ethical justice to grow. Colorado is not providing such an environment.
A vigorous system that enforces ethics does more than discipline the individual at issue; It teaches others how to act in the same situation. But when the discipline decisions are not published or shared, the knowledge is lost. Such is the case in Colorado where judicial discipline proceedings are confidential and the dismissal rate is 97%.
The discipline system for lawyers is much more public than the discipline system for judges. Attorney discipline proceedings are public, and attorneys aren't even public servants. Judges are public servants, yet judicial discipline proceedings are confidential.
A published case regarding attorney discipline, whether the lawyer was punished or not, provides guidance to other lawyers on what to do in a similar situation. Lawyers are constantly learning. The cases are regularly published in a monthly publication of the Colorado Bar Association. The cases are also published in case law databases so lawyers can search for them and find them when needed. A published case may also be reviewed and discussed at a continuing legal education class for lawyers. So one published opinion can lead to a huge learning experience for all lawyers.
Judges in Colorado, however, aren't learning anything. The last published case that was litigated in Colorado was in 1986. In 1984, the Supreme Court drafted a rule that required the executive director to dismiss complaints. And the dismissal rate skyrocketed after that point. The dismissal rate hit 97% in 1993 and has averaged 97% ever since.
As for the 3% remaining, some judges retire or some accept some form of discipline without it becoming public. The discipline will only become public if the Supreme Court ultimately enters an order. Because judges can avoid that, we don't see published judicial discipline cases like we see attorney discipline cases.
What voters don't understand is that a judge they're voting to retain might have been disciplined and the voter doesn't know it because the judicial performance commission doesn't even know it. It's kept under wraps by a very dark law that's unfortunately ensconced in our state constitution.
Worse yet, the legislature adopted a law that makes it a misdemeanor for anyone who assists the judicial discipline commission to willfully and knowingly reveal the contents of any filing with the commission. The executive director of the judicial discipline commission actually threatens criminal prosecution to individuals who want to talk. The result is an improper silence that makes it appear that no questionable behavior ever occurred.
We're to the point that people don't file complaints with the discipline commission because they know nothing will be done. So why waste the time filing a complaint?
In the end, we all lose with such a system. The most devastating effect may actually be the loss of knowledge for all the judges on the bench. They're not learning to be better judges because there's no case law teaching them how to ethically confront difficult situations. Colorado's judicial branch simply pretends that the problems don't exist.
Our justice system is not ethically evolving because we're not allowing it to grow. The constitution prohibits such growth.
We need to correct the judicial discipline system so ethical justice will be nurtured and flourish in Colorado. We can end the darkness by making judicial discipline proceedings public. Most states have public judicial discipline proceedings. Colorado is in an unfortunate minority where the proceedings are confidential. And we may be the only state where it is literally a crime to disclose the contents of a filing with the discipline commission.
We can remove multiple conflicts of interest by transferring jurisdiction over judicial discipline proceedings to the Independent Ethics Commission, which already exists and disciplines members of our executive and legislative branches.
We've seen enough of what happens when judges judge judges and judges make the rules regarding judicial discipline. It's time to allow ethical justice to grow in Colorado.
Integrity. Without it, there is no justice. The hallmark of judicial integrity is compliance with the Code of Judicial Conduct. Our state constitution actually requires compliance with the Code. According to the constitution, judges can be removed from office for any violation of the Code.
But the state constitution gave the Supreme Court the power to make the rules for the Commission on Judicial Discipline. So our Supreme Court used its rule making authority to create an executive director who reports not only to the discipline commission, but also to the Supreme Court. Then the Supreme Court drafted rules requiring the executive director to dismiss complaints. The result was a dramatic increase in the number of complaints dismissed by the commission. In 1993, the rate that the commission dismisses complaints against judges hit97%and has averaged97%ever since.
Everything the commission does is confidential. It's a misdemeanor for anyone who assists the discipline commission to willfully and knowingly disclose the contents of any filing with the discipline commission. The executive director actually threatens criminal prosecution to individuals who want to talk.
The flaws with this one commission prevent our nominating commissions and performance commissions from having much credibility. Correcting the discipline problem in Colorado is imperative for building a better justice system.
The Honest Judge Amendment
To correct the discipline problem, we must edit the state constitution because the discipline commission is created in the constitution. And the constitution requires judicial discipline proceedings to be confidential. The Honest Judge Amendment would 1)transfer jurisdiction over judicial discipline to the Independent Ethics Commission, which already exists and disciplines members of our executive and legislative branches, and 2) make judicial discipline proceedings public.35 states have public judicial discipline proceedings. Colorado should join that majority of states with public judicial discipline proceedings.
Honest Judge would enhance accountability of the judiciary by:
1) Removing the Supreme Court's power to make the rules regarding judicial discipline,
2) Removing the power of the Supreme Court to appoint 40% (4 judges) of the judicial discipline commission,
3) Making judicial discipline proceedings public, and
4) Allowing the Independent Ethics Commission to review complaints previously dismissed by the judicial discipline commission.
Only two states have fewer cases of published judicial misconduct than Colorado.
The Code of Judicial Conduct is the backbone of an impartial justice system. So it is imperative that judges who violate the Code be held accountable.
Resurrecting the Code of Judicial Conduct would yield broad-based judicial reform. The Code of Judicial Conduct affects every area of law. So by enhancing accountability for violations of the Code, you truly improve the entire justice system.
People often complain about a judge or a ruling without realizing that if Colorado had an enforceable Code of Judicial Conduct, the problem most likely wouldn't exist.
People often get upset about the particular area of law they have had involvement with, be it criminal, family, probate, civil or something else. Unfortunately, the problem is often much bigger than their individual case or circumstance. The problem often is actually due to the fact that the Code of Judicial Conduct is not being enforced in Colorado -- in any area of law.
And often the problem isn't due to trial court judges, but the appellate court judges and the judges who make the rules -– the Colorado Supreme Court. If you look closely, you can see violations in published appellate cases or in rulemaking proceedings by the Supreme Court. We simply need to enforce the Code of Judicial Conduct.
Judges should not have been allowed to cover up their own misconduct by adopting a rule requiring an executive director to dismiss complaints. Valid complaints were dismissed simply because they were part of an appealable order.
Given this fact, Honest Judge has a provision that allows the Independent Ethics Commission to prosecute any complaint that was previously dismissed by the current judicial discipline commission.
Honest Judge doen't require that the Independent Ethics Commission review all previous complaints. It simply allows the commission, if it chooses to do so, to review and prosecute previously dismissed complaints. It’s not a criminal prosecution, so double jeopardy does not apply. The public needs to know that if there is a bad judge on the bench who was improperly protected by Colorado's current system, the Independent Ethics Commission can remove that judge. The provision fosters the trust of the people.
And lawyers and judges are ethically required to respond appropriately to judicial misconduct and not assist with such conduct. Given such rules, amnesty cannot be granted to judges who previously benefited from inappropriate dismissals from the discipline commission.
Judges created this situation. We trusted them and they betrayed that trust. It’s important to note that the legislature can impeach a judge for any violation of the Code of Judicial Conduct at any time and Honest Judge Amendment does not change this fact. However, the legislature is very hesitant to use this power.
Yes, there are good judges in Colorado. Good judges have nothing to fear from this amendment. The amendment does not change the standards with which judges must comply. Judges simply have to comply with the Code of Judicial Conduct, which supposedly they have been doing all along. The Honest Judge Amendment only changes who makes the decision regarding whether a violation has been committed and when the process becomes public. Good judges should support The Honest Judge Amendment because it will increase the public's confidence in them and the entire system.
Help yourself to a better justice system.
Honest Judge would increase transparency of the discipline commission by:
1) Making judicial discipline proceedings public upon a finding of probable cause and
2) Removing the criminal penalty for disclosing the contents of filings with the commission.
Colorado is dark. Very dark. The Honest Judge Amendment would shine a spotlight on judicial discipline, bringing Colorado in line with the 35states that have public judicial discipline proceedings.
Judges are public servants. To improve the confidence in the judiciary, Colorado should make judicial discipline proceedings public upon a finding of probable cause with The Honest Judge Amendment.
Seeing is believing. Click on any of the links below to see what public judicial discipline looks like.
These35states have public judicial discipline proceedings. Click on any of the links below to see what it looks like.
The below states also have public judicial discipline proceedings, but theydon't have one link where you can see all of the discipline cases as do the above states:
For an article on why judicial discipline proceedings should be public, click on the link below:
"Judges are among the most powerful of public officials. They decide who goes to jail, who wins or loses millions of dollars, and who gets custody of children. In the discharge of those duties, and off the bench as well, judges are bound by ethical rules, which in most states have been promulgated based upon the American BarAssociation’s Model Code of Judicial Conduct. While the vast majority of judges are
honorable and take their ethical obligations seriously, there will always be some who engage in disreputable behavior. Disciplining such judges is important business that should be transacted in public, just as any criminal trial and most civil trials would be. This argument is rooted in the Sixth Amendment’s guarantee that criminal trials shall be public, in federal and state laws that render most civil proceedings public, and in the debates that shaped the drafting and adoption of the Constitution."