Colorado Supreme Court
Office of Attorney Regulation Counsel
Promoting Professionalism. Protecting the Public.
Confidentiality of Judicial Disciplinary Proceedings Explained
By WILLIAM J. CAMPBELL
A recent disciplinary action that resulted in the public censure and resignation of a county court judge brought the Colorado Commission on Judicial Discipline into the public eye. The Commission had commenced formal proceedings to address extensive allegations of judicial misconduct. The history and jurisdiction of the Commission provides perspective on the Commission’s role in the judiciary and the confidentiality of its proceedings.
The Commission’s structure and operations are not widely known. Established in 1967 by an amendment to Article VI of the Colorado Constitution that accompanied the adoption of the merit selection process for state judges, the Commission monitors the conduct of judges and, if necessary, applies disciplinary measures to address a judge’s failure to comply with the judicial ethics principles set forth in the Colorado Code of Judicial Conduct.
The Commission is comprised of ten members -- two attorneys and four laypersons are appointed by the Governor, and two district court judges and two county court judges are appointed by the Supreme Court. Its office is managed by an executive director and an administrative assistant. Funding is provided by a portion of the annual registration fees paid by Colorado attorneys and judges. It shares infrastructure with other offices that handle judicial branch administrative functions, including the Office of Attorney Regulation Counsel and Attorney Registration.
The transparency of the Commission’s responsibilities and procedures was improved by the implementation of its website in March 2010 -- www.coloradojudicialdiscipline.com. The Commission’s annual reports to the Supreme Court for the past several years are available on the website. Public contacts with the Commission now include approximately 200 web hits per month and about 400 phone inquiries per year. These contacts with the Commission resulted in the filing of 189 complaints in 2013. The executive director meets periodically with judges in each judicial district to update the bench on the Code and the Commission’s disciplinary procedures.
The Constitution and the Colorado Rules of Judicial Discipline (Colo.RJD), as amended by the Supreme Court in 2012, describe the grounds for judicial disciplinary measures, which, generally, are violations of the Code. Colo. RJD provides the procedures for investigating and evaluating complaints and applying disciplinary measures. Complainants often mistake the Commission for an appellate court; however, its jurisdiction is limited to monitoring and disciplining a judge’s compliance with the Code, either on the bench or in extrajudicial activities, rather resolving a dispute about a judge’s rulings on evidence, procedure, or applicable law.
Article VI, Section 23(3)(e) of the Constitution authorizes the Commission to investigate allegations of judicial misconduct and apply discipline “informally,” which the Commission accomplishes through diversion programs or privately-administered dispositions. For example, the Commission can adopt a diversion program to improve a judge’s timely disposition of pending cases; privately admonish, reprimand, or censure a judge for unreasonable delays in ruling, commenting publicly on a pending case, engaging in ex parte communications, being discourteous to litigants and court staff, or using court resources for personal business; or it can address a medical condition that may be affecting the judge’s performance, with due regard for patient privacy.
The Commission also is authorized to request the Supreme Court, under Colo.RJD 34, to suspend a judge temporarily, during disciplinary proceedings, if the circumstances warrant such an order. And where the nature of the alleged misconduct cannot be effectively addressed through privately-administered disciplinary measures, the Commission may commence a formal proceeding by authorizing special counsel – provided by Attorney Regulation Counsel – to file a statement of charges that will be tried before a panel of three special masters, who are appointed by the Supreme Court from the ranks of active or retired judges.
If the charges are proven, the result of formal proceedings could be removal, public censure, suspension, or other sanctions deemed appropriate by the Court; at the point in time when the Commission files a recommendation for such sanctions, based on findings of the special masters or a stipulated resolution of the charges, the record of proceedings becomes public. Until then, Article VI, Section 23(3)(g) provides that “all papers filed with and proceedings before the commission on judicial discipline or masters appointed by the supreme court . . .shall be confidential.”
Confidentiality encourages litigants, attorneys, and others to file disciplinary grievances and assures judges that, if they should violate the Canons, the matter will be handled discretely, professionally, and without public speculation or political pressure that could affect the proceedings. The drafters of Article VI, Section 23(c) apparently felt that these steps can be done more effectively, if they can be accomplished without public disclosure, while reserving formal proceedings for misconduct of a nature may warrant public sanction.
The meaning of the term “confidential” is defined by Colo. RJD 6.5. The importance of confidentiality to the investigation and evaluation of allegations is maintained in the context of the Commission’s constitutional mandate to discipline or remove a judge, while preventing public speculation or political pressure from affecting disciplinary proceedings.
The duties of the Commission could not be undertaken and the objectives of Article VI, Section 23(c) could not be achieved if confidentiality was required in the strictest sense. For example, the interview of a witness or other investigative steps would be needlessly handicapped if the investigator could not disclose the identity of the judge and the nature of the allegations. If law enforcement or Attorney Regulation Counsel staff members also were involved in a given case, strict confidentiality by the Commission could obstruct their duties. And, if a judge is nominated for another judicial position, e.g., a county judge being considered for district court or a retired judge being considered for the senior judge program, the nominating commission or the Supreme Court would benefit from disclosure of previous disciplinary action before the nomination or appointment is made. It is important to note that the mere filing of a complaint does not create a disciplinary record; complaints that are dismissed by the Commission are not disclosed to the nominating commission or the Court.
The media, public officials, and the general public were frustrated by the confidentiality of the recent formal proceedings. Pending formal proceedings, the Supreme Court had suspended the judge at the request of the Commission, leading to speculation about the reason for the judge’s absence. The time necessary to prepare and prosecute the charges and for the judge to defend the charges was not unusual compared with other types of litigation, but the judge, the courts, and the Commission could not disclose the reason for the judge’s absence. Due process considerations for the rights of the judge also were a factor. Given the rarity of formal proceedings, the public was understandably concerned about what may have been occurring.
In light of its experience with this case, the Commission is determined to make its rules and procedures more effective. The proceedings leading to the stipulated public censure and resignation of the judge highlighted several areas where the process can be improved, while maintaining confidentiality and due process. The Commission is currently developing a proposal to the Supreme Court for amendments to Colo.RJD. For example, a reasonable but firm deadline for various steps in the litigation could result in an earlier resolution of the charges.
While the Constitution limits the transparency of its proceedings, the Commission is committed to improving the process and the public’s perception of judicial discipline.
William J. Campbell is the Executive Director of the Colorado Commission on Judicial Discipline.