The judicial branch is a big topic. People often assume only the best of judges. People will say, "if a judge is bad we would have heard something." But when it's a misdemeanor to reveal the contents of a complaint or the proceedings before the judicial discipline commission, Coloradans are naturally not going to hear much about bad judicial behavior. Judges have done everything they possibly can do to ensure you never hear anything negative about a judge. It's hard to believe that in the 21st century in the United States of America that someone can be criminally punished for speech. But that's the way it is in Colorado.
On this page, we'll post facts that show the need for judicial reform in Colorado. Yes, there's a 97% dismissal rate of complaints against judges. And when you vote for judges, you don't know much because Colorado's Open Records Act doesn't apply to judges, judicial discipline proceedings are confidential and the judicial performance commissions rely mostly on information provided by the judges themselves when deciding whether to recommend a judge for retention. These facts alone should make any reasonable person realize that Colorado needs judicial reform. But people often want more. So on this page, we'll show you more.
Colorado's judicial branch has paid $55,000 to settle sexual harassment allegations while our other branches have not paid out any money for such claims.
As this Denver Post article relates, the specifics of the cases are unknown due to the fact that Colorado's Open Records Act does not apply to the judicial branch and other laws also require confidentiality of judicial branch information.
A lot of raunchy stuff can happen in all that darkness, and a lot of rights can be violated. When will Colorado's legislative and executive branches ever realize it's their obligation to keep appropriate checks and balances on our judicial branch?
A troubled situation in the San Luis Valley, as reported in this Colorado Public Radio story, teaches us SO much.
Judge resigns after reports of judicial abuse. Officials promise reforms. And a responsible journalist reports the events as they occur.
The judge is a municipal judge who worked in Alamosa and Monte Vista. If the judge was a state court judge? He’d most likely still be on the bench, the townspeople would still be in danger . . . and we’d all be in the dark.
Why? The towns’ system for handling the situation is nothing like Colorado’s state judicial system.
The ACLU drafted a report entitled “Justice Derailed” that criticized municipal courts around the state. The municipal judge in Alamosa and Monte Vista was singled out in the report, which caught the town councils’ attention.
And here’s where the municipalities’ systems and the state system begin to differ. There is no conflict of interest for the members of the town councils. The members of the councils aren’t judges. They can objectively assess the situation and take action.
If the judge was a state court judge (county, district, Court of Appeals, Supreme Court), the report would be filed with Colorado’s Commission on Judicial Discipline as opposed to the town councils. The executive director of the state commission reports to the Supreme Court. The Supreme Court writes the rules for the state commission. And the state commission contains 4 judges, 2 lawyers and 4 non-lawyer citizens.
So if the judge was a state court judge, the report would have fallen into the hands of a commission with a whole lot of conflicts of interest.
Because the town councils didn’t have those conflicts, they start to take action. They behave responsibly. They promise transparency and reforms.
Not only that, you can read all about the situation thanks to a reporter who’s paying attention. This is where the systems of municipalities and the state differ once again.
What happens at the town councils is public and covered by Colorado’s Open Records Act. Everything that goes on at the state judicial discipline commission, however, is confidential (private) and Colorado’s Open Records Act does not apply.
We wouldn’t hear anything about the judge if he was a state court judge because Colorado law makes it a misdemeanor for anyone who assists the state judicial discipline commission to disclose the proceedings before the commission. So the reporter probably wouldn’t know what was happening.
The people in Alamosa and Monte Vista are safer and responsible change is taking place because 1) there aren't conflicts of interest on the town councils, and because 2) the actions of the councils are public. But the towns' systems and the state system are different in one more important way.
What isn’t mentioned in the story, or even in the ACLU report, is the right to appeal orders of municipal court judges. The right to an appeal from a municipal court ruling varies from municipality to municipality. And most assuredly, an appeal is not an adequate remedy for many of the transgressions related in the ACLU report.
In Alamosa, however, the rulings of the municipal judge can be appealed to the district court. Why is this important?
Because Colorado’s Commission on Judicial Discipline has a rule that protects judges from being disciplined for actions related to an appealable order. Alamosa doesn’t have such a rule
Colorado’s constitution provides that a state court judge can be disciplined for ANY violation of the Code of Judicial Conduct. But the constitution gave the Supreme Court the right to make PROCEDURAL rules.
Well, the Supreme Court adopted a rule strongly suggesting that any conduct related to an order that can be appealed cannot be the subject of discipline. Such a rule is SUBSTANTIVE inasmuch it implies violations of the Code of Judicial Conduct related to appealable orders cannot be disciplined.
Other states discipline conduct related to appealable orders. The purposes of appeals and discipline are different. An appeal rights a wrong in a particular case. Discipline protects the public. One does not prohibit the other.
Yet Colorado’s Commission on Judicial Discipline regularly dismisses a lot of complaints against judges, broadly alleging that the complaint is related to a disputed ruling or an appealable order.
If the Alamosa judge was a state court judge, the state judicial discipline commission most likely would ultimately dismiss any complaint against him because his actions are related to matters in disputed rulings that can be appealed.
So not only would he still be on the bench, he most likely wouldn’t be disciplined. The citizens of Alamosa and Monte Vista are very lucky this judge wasn't under the jurisdiction of our state judicial discipline commission.
Thank you to the cities of Alamosa and Monte Vista for providing what at this time appear to be responsible and constructive actions regarding judicial misconduct.
Thank you to Allison Sherry with Colorado Public Radio for reporting these important, newsworthy events.
And thank you to the ACLU for speaking up about judicial misconduct. If there’s one thing we know, it’s that it can be intimidating to be a voice for judicial reform. Attorneys who are willing to do so are few and far between.
Shining a light on the troubled judge situation in the San Luis Valley, and comparing that with our state judicial system, shows Coloradans that we need judicial reform and what needs to happen to achieve reform.
We need to remove conflicts of interest, increase transparency and enhance accountability. Please sign our petition to let legislators know that you’d like to see those changes happen.
Coloradans deferred to 109 lawyers and judges to retain a Supreme Court justice. That's in part because the state performance commission relied on the small amount of surveys to make its recommendation to the public that William Hood be retained.
33 of those surveys were completed by attorneys. 76 of the surveys were completed by district and appellate judges. So more than two-thirds of the surveys were completed by other judges. No surveys were sent to or completed by the general public or any litigants whose cases were heard by Hood. And no public hearings were held to get public input regarding Hood.
He started serving as a Supreme Court Justice in January 2014. He received an interim evaluation in 2015. That report was based on 44 completed surveys. All the surveys were completed by attorneys. No surveys were sent to or completed by the general public or any litigants whose cases were heard by Hood. And again, no public hearings were held to get public input.
So his evaluation was completely based on aggregate totals from surveys. Aggregate totals gloss over specific instances of conduct which might create concern about a judge. In the 2015 survey, 2% of attorneys recommended against retention. This year, 9% recommended against retention. Nevertheless, the performance commission has recommended that he be retained.
There are more than 5 million people in Colorado. There are more that 3.7 million registered voters in Colorado. More than 2,000 cases have crossed Hood's desk since he was appointed to the Supreme Court. Yet his performance evaluation is based on 109 completed surveys in 2016 and 44 completed surveys in 2015. He makes statewide public policy through the cases he decides, yet neither you, nor any other member of the general public, were asked by the state performance commission for your opinion.
We do know that the state performance commission did not consider Hood's vote to adopt the Supreme Court rule making the judicial branch the darkest of Colorado's 3 branches of government. That's because they completely relied on the surveys.
Hood, along with the other justices, refused to apply Colorado's Open Records Act to the judicial branch and legislated a dark standard for the judicial branch. Such a selfish decision by a judge is arguably a violation of the Code of Judicial Conduct. Hiding information from the public certainly doesn't foster confidence in the judiciary. Yet the state performance commission didn't even consider his decision to adopt the rule. Singular acts of judges should be sufficient to make a commission take pause in recommending retention.
And did you know that the state performance commission is chaired by Heather Hanneman? She's a lawyer whose firm was paid to oppose The Honest Judge Amendment, which would make judicial discipline proceedings public upon a finding of probable cause. At present, such proceedings are confidential. That means no performance commission that's advising you on whether to retain a judge knows whether the judge they're recommending for retention has been disciplined.
Let's repeat that fact: No performance commission that's advising you on whether to retain a judge knows whether the judge they're recommending for retention has been disciplined.
Yet the chair of the state commission -- who's legislatively mandated to provide you with fair and responsible evaluations about judges -- worked against you receiving discipline information about judges. Wouldn't it be more fair and responsible if all the performance commissions simply told you that they don't have sufficient information to provide you with a recommendation? How is it fair or responsible for them to recommend retention when they don't know whether the judges they are recommending to be retained have been disciplined?
If the performance commissions were really complying with their legislative mandate, wouldn't they be pursuing the Honest Judge Amendment?
And in regard to the performance commissions, The Judicial Integrity Project tried to get a bill through the legislature that would have mandated public hearings on judges, required public reports on judges every two years, and provided more thorough evaluations on judges including background checks. Yet the judges, who aren't supposed to be political, fought the bill with the assistance of leadership of the bar association. Many judges maintain their membership with Colorado's voluntary bar association.
The executive director of the state performance commission openly stated the commission's opposition to the bill. He thought the bill created too much work. Former justice Rebecca Kourlis also opposed the bill but had a hard time criticizing any particular aspect of the bill. She tried to say we don't have any issue with our judges or our performance commissions. In contrast, almost 20 people testified in support of the bill. Yet the bill died by one vote in a "kill" committee.
Judges know that voters, one after another, will walk into the voting booth in November and vote to retain judges that the voter knows nothing about. That's exactly what happens every year. It will happen again. And that's why the system isn't changing.
If you want to change the game, you should vote to not retain. If you like the current system, you should vote to retain every judge.
So based on 109 surveys that were mostly completed by other judges, and none of which were completed by the general public, the public will "follow" the recommendation of the state performance commission and vote to retain Hood in November. Other judges will receive the same benefit of the doubt. The state performance commission will then continue to claim that the system works. Does it?
The Supreme Court abruptly ended its nationwide search for a state court administrator in September 2017 and hired longtime employee, Christopher Ryan.
Ryan has a political science degree from CU. He started working for Colorado’s judicial branch as a bailiff in Denver District Court in 1990. Most recently, he served as the clerk for our Supreme Court and Court of Appeals.
Apparently a Master’s degree in Business Administration is not required to oversee the incredibly large judicial budget – which was $710 million in 2017. Yes, he’ll oversee a budget of more than a half billion dollars.
So all the resumes from other candidates with fancy post-graduate degrees from elite schools who showed that they had turned companies around, that they had saved companies millions, and that they were brilliant business managers . . . those resumes are now in the trash.
The most important requirement for the job was apparently that it be filled by an insider. And that’s exactly what Christopher Ryan is. He knows from his long tenure in Colorado’s judicial branch just what the judges want.
His functions as state court administrator will include contracting with retired judges so they can be assigned to certain cases. So if you ever see a retired judge on a case, Chris Ryan is responsible for hiring that certain judge for that certain case. He has the power to fix cases.
That way, the Supreme Court’s heart’s desires can be fulfilled without the Supreme Court ever having to rule. And the Supreme Court obviously watched The Wizard of Oz and learned that if you ever go looking for your heart’s desires, don’t look further than your own backyard.
None of our Supreme Court justices got on the bench for their business savvy. They should not be responsible for hiring the person who oversees such a ridiculously large budget.
The state court administrator should be an elected position. The legislature has the power to make the state court administrator an elected position, which would improve transparency and accountability in the judicial branch.
But Colorado’s judicial branch continually runs roughshod over the legislature. That’s why the Supreme Court gets to hire the state court administrator.
Type your paragraph here.
Oh, the hypocrisy of it all.
Did you see this story? It was buried inside The Denver Post. Colorado's judicial branch “inadvertently” disclosed private information of thousands and thousands of Colorado jurors.
It's what The Denver Post didn't tell you that's even more shocking.
You see, social security numbers, dates of birth and corresponding names of jurors were free on the internet for anyone who wanted them. And the info was available for almost a year before it taken down – after someone from Alaska contacted Colorado's judicial branch.
But during the same time period that judicial had info regarding private Colorado citizens free for the taking on the internet, guess what judicial was doing. You won’t believe it. And this is what The Post didn't tell you.
Judicial was doing everything it could do to ensure it could keep private every bit of information regarding judicial branch employees.
Supreme Court Justice Monica Marquez was actually testifying before the legislature that the Supreme Court had the right to adopt selfish rules allowing it to keep private any information it wanted to keep private regarding judicial branch employees. (Also see our Feb. 4 Facebook post).
According to the Code of Judicial Conduct, judges aren’t supposed to use their power to help themselves. But there she was, objecting to the legislature’s attempt to make Colorado’s Open Records Act apply to judicial. All while judicial had the private information of thousands and thousands of Coloradans (including you?) up for grabs on the internet.
And our legislators gave Marquez what she wanted. Do you suppose they would have done so if they knew how lightly judicial treated the private information of others?
Did you see the ad below opposing Amendment 72 in 2016? It was pitched by a "retired" judge. Which is kind of funny because it sure looks like he's working and cashing in on his judicial status.
And judges in Colorado never really retire. They can go back on the bench and preside over cases on a part-time basis. So what do you think about this retired judge serving as a pitch person for the opponents to a constitutional amendment?
Does it make you wonder whether Colorado judges can be bought? He's already been paid as a judge and is getting retirement benefits. Should he be able to further sell his judicial status for his financial gain? The opponents of 72 (big tobacco) sure want you to find him convincing. He's even giving the pitch from a courthouse.
Please understand that we take no position on the proposed constitutional amendment. We are simply questioning a judge using his judicial status to persuade voters regarding a political issue. After all, one of the supposed benefits of our system is that we keep politics out of it.
Do his actions make you question the integrity of Colorado's judiciary? Should he be allowed to do this? Sometimes it's amazing what Colorado judges can get away with in broad daylight. Isn't it?
Colorado's judicial department was a finalist for the "Black Hole Award" given by the Society of Professional Journalists. Who'd Colorado lose to? The Virgin Islands government. We're the only judicial branch on the list. Our judicial department, which is supposed to be the fairest of all, is now being compared with U.S. territories. Other finalists were Los Angeles City Hall and the New York State Police. Sometimes it's just so bad you have to laugh to keep from going crazy.
Measures sought by The Judicial Integrity Project would help fight the black hole issue. The Performance Commission Reboot would make Colorado's Open Records Act apply to the performance commissions. And The Honest Judge Amendment would make judicial discipline proceedings public upon a finding of probable cause. Most people don't realize when they vote to retain a judge, the commissions advising them whether to retain a judge have no idea whether that judge has been disciplined. If that judge is one of the 3% who actually is disciplined, it's almost always kept confidential so the public doesn't know. So, you could be voting to retain a judge who has actually received discipline. Again, sometimes it's so bad you have to laugh to keep from going crazy.
Colorado Court of Appeals Judge Karen Ashby tells a whopper from the bench. The two judges beside her also know what she says is false. And they don’t say a word.
Who are the victims? Injured worker Michael Sanchez . . . and you.
If anyone walks into court and lies, they’re usually in big trouble. But not Colorado judges. And they can spin their lies into statewide public policy. Just like they do in Michael Sanchez’s case.
The lie happens between the 3 and 4 minute marks on the video. Can you spot it? Probably not without some background information.
To understand the lie, you need to know a little about the case and you need to know a little about retired Judge Janice Davidson. First, the case:
Michael Sanchez had worked for Denver Water for almost 20 years when he injured his back. Most employers must offer an injured worker a choice of multiple physicians to treat with. But Colorado law allows Denver Water, a government employer, to choose the one and only physician who can treat an injured worker as long as it has “its own occupational health care provider system.”
So Denver Water hired a doctor on a contract to come to Denver Water two days a week for a half day and called that “its own occupational health care provider system.” They paid the doctor more than $100,000 a year for the part-time gig.
And boy did he earn his keep. Denver Water documents show that it credited the doc for reducing its workers compensation costs. So much so that Denver Water received about $2 million in refunds from its insurer at the time – Liberty Mutual.
The doctor kept saving Denver Water money, so Denver Water kept renewing his contracts. And that’s the doctor Michael Sanchez was forced to treat with.
Although records show that Michael Sanchez complained of a low-back injury on the date of injury and forward, you sure wouldn’t know that from Denver Water’s doctor’s records. He claimed Michael Sanchez didn’t complain of a low-back injury until months later. Even the insurance company’s records state that Michael suffered a low-back injury on the date of injury.
Over the course of time, Michael Sanchez saw 4 other doctors who determined he suffered a low-back injury at work. 4 doctors vs. 1 with a glaring conflict of interest.
The issue went to a hearing. But the matter was not heard by a jury or a judicial branch judge. It was heard in Colorado’s Office of Administrative Courts, which is in the executive branch where the administrative law judges (ALJs) are hired off the street by an executive branch employee.
The ALJ ruled that the part-time contract doctor was sufficient for Denver Water to claim it had “its own occupational health care provider system.” Then the ALJ sided with Denver Water’s doctor, and issued an order with multiple misstatements of fact that are not consistent with the evidence presented at hearing. For instance, the ALJ stated the injury was to the mid-back and stated records related a mid-back injury although the records referred to clearly relate a low-back injury.
Of course Michael appealed. But he still didn’t get a judicial branch judge. Colorado’s system requires that he appeal to a separate executive branch agency.
The agency he had to appeal to is called The Industrial Claim Appeals Office. It’s filled with members who are permanent, full-time employees hired off the street by another executive branch employee. Two members of the office hear the appeal without providing any notice to the parties of the names of the members who will be hearing the appeal.
Guess who heard Michael’s appeal. Remember Liberty Mutual from above? It’s the insurance company that gave Denver Water about $2 million in refunds due to the reduction in costs created by the Denver Water doctor. Well, a lawyer who worked for Liberty Mutual during that time period and who handled Liberty Mutual’s workers’ compensation cases including, upon information and belief, Denver Water’s, heard the case.
Without ruling on all arguments raised, the Industrial Claim Appeals Office upheld the ALJ’s ruling.
Michael appealed to Colorado’s Court of Appeals. This is the first time his case could be heard by a judicial branch judge who is nominated by a commission, appointed by the governor and subject to a retention election. Real judges. Everything will be corrected. Right?
Well, this is where Michael ran into the judges in the video: Karen Ashby, Robert Hawthorne and Henry Nieto. He also ran into Janice Davidson. Ashby and Hawthorne are current judges on the Colorado Court of Appeals. Nieto and Davidson are retired judges.
And now we're getting to the second piece of information you need to know to understand Judge Ashby's lie: Janice Davidson.
Davidson isn’t in the video clip you see. She's only mentioned. She’s a former chief judge of the Court of Appeals.
The chief judge of the Court of Appeals is selected by and works for the chief justice of the Colorado Supreme Court. Colorado law then allows the chief judge of the Court of Appeals to handpick the judges who hear any case at the Court of Appeals. And with the help of the chief justice of the Colorado Supreme Court, retired judges can be put on a division at the Court of Appeals as well.
You see, Colorado’s Court of Appeals is not an independent court. If the chief justice of Colorado’s Supreme Court and/or the chief judge of the Court of Appeals want a decision to go one way or the other, they can put the judges on the case who they know will reach the result they want.
In 2003, Davidson assigned herself and, with the assistance of the chief justice, assigned two retired judges to hear a case called Dee Enterprises. The case is important because Michael Sanchez argues in his case that the Dee Enterprises decision is clearly erroneous.
Why was the division of judges who heard Dee Enterprises handpicked by Davidson and the chief justice? Because a constitutional challenge was made to Colorado’s workers’ compensation system in Dee Enterprises.
Davidson wrote the Dee Enterprises opinion, which relies on misstatements of law to reach its conclusion. You see, the U.S. Supreme Court has ruled that workers’ compensation cases must be heard in the judicial branch “upon its own record and the facts elicited before it.” The U.S. Supreme Court case is Crowell v. Benson.
Remember the ALJs in the executive branch above? It was argued that Colorado’s system is unconstitutional because judicial branch judges are not determining the cases on their own record with the facts elicited before them. The ALJs who are hired off the street by an executive branch employee are determining the cases. It’s a separation of powers issue.
In order to circumvent the U.S. Supreme Court decision, Davidson came up with a fallacy. She claimed a later case named Thomas overruled Crowell. It’s a completely false contention. These administrative law cases have been discussed and bandied about for years. A lot of things can be said about the cases, but it cannot be said that Thomas overruled Crowell.
The Thomas case actually explicitly states that it upholds Crowell’s determination that workers’ compensation cases must be heard in the judicial branch. Nevertheless, Davidson published her decision, which includes other intentional misstatements of law as well.
Why did she do it?
Well, in 1996 a bill in the Colorado legislature would have put judges who hear workers’ compensation cases in the judicial branch where they would be subject to Colorado’s nomination process, appointed by the governor and subject to a retention election. In other words, the bill would have done exactly what was argued to be constitutionally required in Dee Enterprises.
But who do you think opposed it?
Colorado’s judicial branch went on the public record and stated “We don’t want the work.” Colorado's judicial branch lobbied against the bill. And the judicial branch won. The bill was killed.
Fast forward to 2017 when Michael Sanchez challenged the fraudulent Dee Enterprises opinion because it’s directly contrary to U.S. Supreme Court case law. As recently as 2011, in Stern v. Marshall, the U.S. Supreme Court reaffirmed that Crowell v. Benson is still good law. The Dee Enterprises case is clearly erroneous.
But remember, judicial has publicly stated it doesn’t want the work. And Colorado law allows the chief justice and the chief judge of the Court of Appeals to pick the judges who hear a case at the Court of Appeals. After all, that’s how Davidson and two retired judges ended up on the Dee Enterprises panel.
Guess who was chosen to hear Michael’s case. You won’t believe it. Out of all of the appellate judges, retired judge Janice Davidson was hand selected to hear the case.
Michael Sanchez filed a motion to disqualify Davidson based on her actions and misstatements of law in the fraudulent Dee Enterprises opinion. He also challenged the provisions that allow the chief justice and chief judge of the Court of Appeals to arbitrarily assign retired judges to certain cases. When government can arbitrarily do something, it usually violates the equal protection clause.
He also moved to disqualify Judge Hawthorne because he has embedded himself in the workers’ compensation issue with false statements in opinions like Davidson. He was handpicked to hear the case for a reason.
And now we’re FINALLY to the point we started off with – Judge Karen Ashby’s lie.
On March 28, 2017, oral argument was held in Michael Sanchez’s case. The video link shows the oral argument. But before the video begins, the parties walked into the courtroom to see the judges’ nameplates on the bench. The nameplates showed that Judges Karen Ashby, Robert Hawthorne and Janice Davidson were the judges who would hear the case.
Before the judges came into the courtroom, however, a court clerk took Davidson’s nameplate off and replaced it with the name of another retired judge, Henry Nieto. Then Ashby, Hawthorne and Nieto came into the courtroom.
In the video link (the actual video starts at 1:08), you see and hear Judge Ashby address the issue regarding Davidson. At 3:08, Judge Ashby addresses the motions for disqualification that were filed by Michael Sanchez. In regard to the motion about Davidson, Ashby states that “Judge Davidson was not assigned to be on this division.”
She claims Davidson was never assigned to the division of judges at the Court of Appeals who heard Michael Sanchez’s case. And by doing so, the division gets around ruling on the motion regarding Davidson.
The problem: Ashby’s statement is a lie. Davidson was assigned to the division that heard Sanchez’s case. Her initials were placed on the docket for the division, her nameplate was originally on the bench for Michael Sanchez’s oral argument, and – here’s the kicker -- there were six other cases on the division’s docket on the same day as Michael Sanchez’s case and Davidson was a judge who ruled in every one of those cases. Every one.
You can verify it all for yourself. Just look at the oral argument docket for March 28, 2017, on the Court of Appeals’ website. Write down the case numbers of all the cases besides Sanchez’s on the docket. Then search each case number on the opinion page of the Court of Appeals’ website. You’ll see Davidson was assigned to Division IV and ruled on every case. And Ashby and Hawthorne, and even Nieto in one instance, ruled with Davidson on those cases.
Why did Ashby lie?
On May 18, 2017, a published opinion, written by Ashby, issued in Michael Sanchez’s case. The opinion claims the fraudulent Dee Enterprises opinion is appropriate without going into any of the specifics argued by Michael Sanchez. You’d think Davidson wrote the opinion herself.
Lawyers must acknowledge controlling legal authority. It’s an ethical requirement. The Michael Sanchez opinion fails to acknowledge that the U.S. Supreme Court case named Thomas did not overrule Crowell v. Benson as Dee Enterprises held. Indeed, Thomas explicitly upheld Crowell. So the U.S. Supreme Court still holds that workers’ compensation cases must be heard in the judicial branch “upon its own record and the facts elicited before it.” There is no rational basis in law or fact for ruling that Thomas overruled Crowell. The Michael Sanchez opinion written by Ashby, as well as Dee Enterprises, fails to meet the ethical requirements of the legal profession.
Sanchez filed a petition for rehearing with the Court of Appeals, noting again the failure of the Court to acknowledge controlling law along with many other issues in the opinion.
For instance, the opinion makes it sound like two of the five doctors had determined Michael Sanchez’s injury was not work related. Denver Water’s doctor referred Michael to another doctor, who originally determined his injury was not work related based on the minimal information the Denver Water doctor provided.
But once the other doctor received all the information in Michael’s case, he changed his mind and stated that the injury was work related. It’s very dubious that the opinion written by Ashby makes it look like the doctor never changed his mind. Other facts stated by Ashby are not supported by the evidence either. Ashby improperly skews the facts, and avoids arguments and facts, to make her opinion look less radical than it is.
On the doctor issue, Michael Sanchez 1) challenged whether Denver Water's part-time, contract doctor can really constitute its own health care provider system and 2) challenged the law that treats government workers differently than private workers. The handpicked division denied both arguments.
You see, private employers with their own health care provider system must still provide an injured worker with other treating providers to choose from. Yet Denver Water, because it’s a government employer with a so-called health care provider system, does not have to provide the injured worker with other treating providers. So Denver Water can pay a part-time doctor handsomely to reduce its workers compensation costs and force its injured workers to treat with that doctor. Michael Sanchez argued that the unequal treatment of government and private workers is unconstitutional.
Ashby denies the argument by stating government employers are more likely to have healthcare provider systems. The order makes no sense because both of the groups in the comparison, private and government employers, have healthcare provider systems. So whether government employers are more likely to have a system is irrelevant because both groups in the comparison have such a system. Similarly situated parties are being treated unequally.
And you wouldn’t know it from reading the opinion, but the arbitrary assignment of retired judges, along with the constitutional prohibition of judges over the age of 72 serving on the bench, was raised in the case. When a Court can’t even come up with an argument against something it doesn’t want to admit, then it does as Ashby, Hawthorne, Nieto and Davidson do -- avoid the argument altogether in a written opinion and simply issue a one word “denial” on the issue.
The petition for rehearing was denied on July 20, 2017, showing that the division’s decision to not follow U.S. Supreme Court case law and to not correctly state the facts in Michael Sanchez’s case was intentional and willful.
As is often said in the legal world regarding opinions of Colorado’s appellate courts, the opinion in Michael’s case is “result oriented.” That’s code for it’s unethical, unprofessional and not supported by the law but it’s what the judges wanted to do.
On March 25, 2017, we did a Facebook post regarding the then-upcoming oral argument in Michael’s case. We stated you would most likely see a violation of the Code of Judicial Conduct if you came to the argument. We had no idea that the first violation would be just a couple of minutes after the judges came into the courtroom.
The glaring lack of judicial integrity in the actions of the Court of Appeals is in no small part why The Judicial Integrity Project was formed. Colorado’s judicial system protects and promotes unethical behavior of judges. And when many of the most ethically challenged lawyers are sitting on our appellate courts, Colorado really has a problem, as Michael’s case shows.
Michael will request that the Colorado Supreme Court step in and correct the situation. But remember who chose the panel of judges at the Court of Appeals. Neither Davidson nor Nieto could have been assigned to the case without the involvement of the chief justice of the Colorado Supreme Court. When panels of judges are stacked with certain judges, as Michael’s was, it clearly appears to be a setup.
If you use the mob as an analogy, the Godfather hardly ever does the dirty work. He assigns Guido to do the kill. That’s how the chief justice of the Colorado Supreme Court uses Colorado’s Court of Appeals.
So the chances of a petition for certiorari being granted are slim at best.
Some will claim that we’re simply complaining about a result not in Michael’s favor. They would not be correct. A system is enabling these judges to do what they have done. Why did the judges who heard his case make false statements of fact and law? If the ruling in Michael’s case constitutes a lawful order, we shouldn’t be able to point out false statements of fact and law made by the judges. We shouldn’t be able to point out Ashby’s lie.
It is often said that justice is truth. Has Michael received justice when it can be proven that the judges lied?
The judicial branch relies on the trust and confidence of the people for the validity of its judgments. What’s to trust in this scenario? Are you confident in judges who have done what these judges have done? Are you confident in a system that has allowed these judges to do what they've done?
When judges lie, we all lose.
It would be easy to resort to name calling and demand that these pathetically small people wearing black robes be held accountable. But the system attracted them and is allowing them to do what they’ve done. They wouldn’t do what they have done if they didn’t think they would get away with it. The culture and environment in Colorado’s appellate courts is not conducive to dispensing justice. We must change the system.
Michael Sanchez is injured and out of a job. He has intentionally been harmed by an unconstitutional system. He’s simply the latest victim of a failed judicial system.
As for the judges, they’re back on the bench earning a salary eerily similar to the Denver Water doctor who was paid handsomely for reducing workers’ compensation costs. And those judges will continue to do what they did in Michael Sanchez’s case. Because they can.
They continue to get away with it because people don’t speak up.
Silence is a corrupt judiciary’s best friend.
Lawyers for a death row inmate sue employees of the state court administrator's office because the office removed a judge from their case. But look at the conflicts of interest here. The suit is in Denver District Court, which the state court administrator's office helps oversee. And maybe the judge on the case will want to someday be hired back into service as a "retired" judge.
The Supreme Court had previously denied a petition on the case.
There's a lot to think about as this case proceeds. One is the irony that apparently the death row inmate wants the "retired," unaccountable judge ruling on his case. The concern is that the judge was about to make a ruling in favor of the inmate and that's why the judge was fired. So there is the potential for a ruling in the case that helps the death row inmate but bolsters an unaccountable judiciary.
Let's hope more people begin to watch cases like this, and the legal community as a whole starts to take a more responsible and aggressive approach toward our judicial branch. And let's hope our new general assembly will be collectively bright enough and sufficiently responsible to realize that one of its most important functions is keeping checks and balances on the judicial branch. The branch that is supposed to be the fairest of all should not be the darkest of all.