Opinion: Amendment H is a misleading step backward that would further erode the public’s trust in Colorado courts
Colorado Sun
The scales of justice would be weighted heavily in favor of troubled judges under Amendment H. Its hallmark is a secret appeal process focused on helping judges remain unaccountable. You see, Amendment H would allow judges to privately appeal discipline, but complainants whose complaints are initially dismissed (97.2% of all complaints filed by the public) wouldn’t get an appeal.
Colorado desperately needs judicial reform. I, and many others, sincerely wish Amendment H would do what proponents allege. Unfortunately, it makes a flawed system even worse.
Using figures provided in the annual reports of the Colorado Commission on Judicial Discipline for the last 40 years helps frame the analysis of Amendment H. The commission is responsible for prosecuting judges for violations of the Code of Judicial Conduct.
Here’s what happens if H passes:
1. The current discipline commission would remain in place. The commission handled 99.8% of complaints filed by the public in private (7,145 of 7,157). Cases were dismissed in private, and discipline was handed out in private. Nothing in Amendment H changes this privacy.
The commission dismissed 97.2% of complaints filed by the public (6,963 of 7,157). Nothing in this amendment changes the dismissal process.
The commission issued private discipline in 2.5% of complaints (182). What does Amendment H change most? The private discipline process. A judge cannot currently appeal a finding of private discipline. The discipline commission can privately discipline a judge without interference. The amendment would change that by providing judges with multiple private appeals to help them avoid private discipline.
2. The Supreme Court’s influence over judicial discipline would increase. At present, the Supreme Court is not involved in private discipline unless requested by the commission. Amendment H provides that a judge can privately appeal private discipline to an adjudicatory panel and then to the Supreme Court.
As long as a judge appeals, the Supreme Court would be involved in every case before discipline issues. This is a significant increase in power. Amendment H would also give the Supreme Court the power to appoint members to a rulemaking committee and to an adjudicatory board.
3. Transparency and accountability would decrease. Amendment H provides for more actions to happen out of public view — confidential appeals of private discipline. At present, any Supreme Court opinions regarding judicial discipline are public. The amendment would change that by mandating that the Supreme Court hear appeals regarding private discipline confidentially.
The sole purpose of the appeal process would be to decrease accountability. Only judges could appeal the discipline commission’s determination regarding discipline. Complainants whose complaints are dismissed by the discipline commission would not have access to the appeal process created by Amendment H.
4. An adjudicative board would become an additional step in the discipline process. The amendment would create a 12-member adjudicatory board of judges, lawyers, and citizens — similar to the discipline commission. From this board, the state court administrator, who is hired by and reports to the Supreme Court, would select a three-member panel to hear a discipline case.
In cases where the discipline commission issues private discipline, a panel would serve an intermediate appellate function. The panel would privately review the commission’s decision. If either the commission or the judge don’t like the panel’s ruling, they could privately appeal to the Supreme Court.
In cases where the discipline commission wants public discipline, a panel of the adjudicative board would serve as a trial court. The commission would prosecute its case against the judge before the panel. Only 10 judges have been publicly disciplined in Colorado in the last 40 years. Only two cases involved a hearing. The rest involved a stipulation. A panel would hardly ever be used to try a case. But that would be public under Amendment H.
If a party appeals a panel’s ruling, the Supreme Court would review issues of law “de novo.” That means facts would not constitute a violation of the Code of Judicial Conduct unless the Supreme Court interprets the Code to say a violation exists. The Code is loosely worded. So interpretation is key.
The members of the adjudicatory board would be selected by the Supreme Court and the governor. The Supreme Court would also appoint members to a rulemaking committee that the panels would have to obey. That’s in addition to the state court administrator’s involvement related above and the fact that the Supreme Court already appoints members of the discipline commission.
5. Public confidence in the judicial system would decrease. Amendment H isn’t what proponents claim. It would make it more difficult to discipline judges, increase the Supreme Court’s involvement in judicial discipline, decrease transparency and decrease accountability.
The purpose of judicial discipline is to protect the public. Amendment H is not balanced. It is overly protective of judges, which would endanger the public. A secret appeal process to help judges avoid discipline is a bad idea. Please vote “no” on Amendment H.
Chris Forsyth, who lives in Wheat Ridge, has practiced law in Colorado for 30 years and is the executive director of The Judicial Integrity Project.
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