​Good news first: Elimination of the criminal penalty for revealing the proceedings of the judicial discipline commission has been amended into HB 23-1019.
 
We’ve been lobbying for this change for eleven years. So, this is wonderful. Other measures are flawed, however, and we need you to contact legislators and let them know. For a more thorough detail of the flaws in this proposal, this is a link to an initial letter we sent to legislators. After House Judiciary amended the measure, this is a link to the letter we sent.
 
One would think that legislators would understand that the criminal penalty has intimidated a lot of people from coming forward about the problems with judicial discipline. You’d think they would remove the crime and then ask people to step forward about problems with the system. But unfortunately not.
 
The legislature is still going forward with its proposed constitutional amendment (HCR 23-1001) to reward the judicial branch for its scandal. Who's behind this proposed amendment? The current judicial discipline commission.
 
The amendment would give the state court administrator more power. It would allow the administrator to select what judges, lawyers, and citizens would be on an unnecessary adjudicatory panel to hear a discipline case.
 
The administrator would make his selection from a pool of lawyers, judges, and citizens who were appointed by the Supreme Court and the governor. When the administrator’s boss -- a Supreme Court justice -- is at issue, the administrator would pick the panel members from all Court of Appeals and district court judges. No citizens would be on that panel.
 
The amendment would insert a lot more conflicts of interest into the process. A complaint would have to go through even more judges for a judge to be disciplined.
 
The amendment does take the power to make rules away from the Supreme Court. We’ve lobbied for that for eleven years. But unfortunately, the amendment gives the power to make the rules to a panel of thirteen members, all of whom can be judges.
 
So how do you think that’s going to work out? More judges not only judging judges, but more judges making the rules to judge judges. It’s not really a significant change from the current system other than making it worse.
 
The rulemaking panel even chooses the burden of proof in discipline proceedings. The legislature should place into the constitution that the burden of proof is a preponderance of the evidence as it is in the 10 most ethical states.
 
And because judges are better than the rest of us, judges who have any disciplinary history whatsoever cannot be on the adjudicatory boards that determine whether a judge is disciplined. Citizens go to court every day in this state without knowing whether the judge presiding over them has been disciplined.
 
Judges, however, won’t be treated like lowly citizens. So there’s a big dose of hypocrisy in this proposed amendment.
 
At the House Judiciary hearing where these two proposals were heard, House minority leader Rep. Mike Lynch (R-Larimer and Weld counties) substituted himself in on the committee in the place of Rep. Stephanie Luck (R-El Paso county). It was a power play. Why?
 
Lynch is a sponsor of these proposals. His brother happens to be a county court judge in Larimer county. These proposals change the system for disciplining Supreme Court justices, but they will have very little change regarding lower court judges.
 
Essentially, these proposals will affect less than 1% of all complaints before the discipline commission. So, it would be business as usual for 99% of complaints filed with the discipline commission.
 
So HCR 23-1001 proposes adding more than 1,300 words to the state constitution to treat judges better than normal citizens are treated in court.
 
Oh, and the current ineffective discipline commission would remain in place. It would just serve in the role of investigator and prosecutor. These “changes” are what the commission has been lobbying for. David Prince, a judge from El Paso county, has taken a leading role in pursuing the proposals. So he’s ensuring he won’t be treated differently than at present.
 
For more info, here’s a link to an initial letter we sent legislators. After the House Judiciary Committee hearing, we sent this letter to legislators.
 
Please contact your legislators ASAP to let them know that HCR 23-1001 should be rejected or seriously amended. Here is a link to the contact information for legislators.

​Why isn’t Colorado’s judicial branch being truthful with you? Because they want Amendment D to pass.
 
It’s a special interest measure that benefits 7 judges at the expense of constitutional rights. But you won’t hear that from Colorado’s judicial branch.
 
If passed, the amendment would temporarily suspend the constitutional rights of citizens living in the new 23rd Judicial District. They have the right to select their own judges through their nominating commission. But not if Amendment D passes. It would allow 7 leftover judges from the downsized 18th Judicial District to fill the new seats in the 23rd Judicial District.
 
A “no” vote preserves the constitutional right of the constituents in the 23rd Judicial District to select their own judges through their nominating commission. Amendment D would create a one-time exception to the constitution (Art. VI, Sec. 20) to allow 7 judges currently serving in the 18th Judicial District to transfer to the new 23rd Judicial District.
 
It’s said that Colorado’s judges aren’t involved in politics. This year’s Amendment D shows that’s not an accurate statement.
 
The worst thing is that the judicial branch is not being straightforward and truthful with voters. The amendment is a black eye on the judicial branch.
 
We should not alter the state constitution for a one-time issue. If there was really a problem with the state constitution, the amendment should create a general process for future instances when a district is divided into two districts. This amendment does not do that. That’s because there is no flaw in the state constitution.
 
The proposed amendment is an example of the improper influence the judicial branch has over Colorado’s General Assembly. Seven judges can get the General Assembly to adopt a referendum for a constitutional amendment that would allow them to keep their jobs.
 
Getting a measure on the ballot to hold judges accountable, however, is all but impossible because judges don’t want to be held accountable. Judges aren’t just deciding legal issues in Colorado. They have great influence over the policies the legislature adopts.
 
Although Colorado removed contested elections for judges in the 1960s, what was created is an incredibly powerful, publicly funded judicial lobby that lobbies for what judges want. What judges want is not always what is best for the people.
 
If judges continue having such an improper influence over the legislature, we need to know the political parties to which the judges belong when we vote to retain them. Although a return to contested elections is not a favorable approach, it may be necessary given the political activity of Colorado’s judicial branch.
 
This proposed amendment shows that Colorado’s legislators are compromised. The judicial branch has far too much direct contact with the members of the General Assembly. The judicial branch has a full-time lobbyist (legislative liaison) at the legislature. Furthermore, the state court administrator, who’s selected by the Supreme Court, also has great sway with legislators.
 
We need to limit the contact between the judicial branch and the legislative branch to reduce the inordinate amount of influence the judicial branch has over the policies adopted by the legislature. Should there be a constitutional amendment to specifically allow 7 judges to keep being judges?
 
If the amendment passes, it may result in significant litigation regarding whether the judges were appropriately selected. Citizens of the 23rd Judicial District may challenge the judges selected under Amendment D, arguing that they are treated differently than citizens in all other judicial districts. Is there a good reason to treat citizens in the 23rd Judicial District differently than citizens in all other judicial district?
 
At the very minimum, the judicial branch needs to be honest with the people of Colorado. There is no uncertainty regarding how the judges in the new 23rd Judicial District will be selected if the amendment does not pass. Article VI, Section 20 of the Colorado Constitution clearly states how all vacancies are filled – a judicial district’s nominating commission nominates candidates from which the governor selects judges.
 
It's not a good look for the judicial branch to be deceiving the people of Colorado with this amendment and its arguments for the amendment. It certainly does not inspire trust and confidence in the judiciary.

Dramatic testimony this week substantiated what we’ve been telling legislators for many years. Colorado’s judicial discipline commission is covering up misconduct and endangering the public.

The testimony related the harm the discipline commission caused a victim of sexual harassment by a judge. Perhaps legislators will listen now.

The legislative interim committee on judicial discipline, however, is being led down the wrong path by the current judicial discipline commission and judge-centric groups.

The person who controlled who the interim committee would hear from was its chair – Senator Sanford “Pete” Lee from Colorado Springs. He was indicted on a felony just before the August 10 hearing and was replaced on the committee.

The crime he was charged with involved claiming on voting records that he lived at an address where he did not live. He selected who could testify and the order in which they would testify.

So, the interim committee heard from the current discipline commission first and last. The commission received more time before the committee than any other group.

The commission hasn’t publicly disciplined a judge for anything related to a court case for more than 36 years. The commission has had a 97% dismissal rate of complaints against judges for almost 30 years.

But there wasn’t any focus on those statistics. The commission was successful in keeping the committee’s eyes and ears on the current judicial scandal and the judicial branch’s refusal to cooperate with its investigation. And of course there was no mention of the fact that the commission had no involvement in uncovering the current scandal.

So appearances are that the interim committee is actually going to allow the current discipline commission to remain in place. It seems likely the legislators will recommend a second tier above the commission that will perform the adjudicatory function in judicial discipline cases.

Although judges aren’t being prosecuted in Colorado, and although the judicial discipline commission rarely files a formal complaint, the commission and judge-centric groups have legislators thinking that judges need more due process.

The good thing is that legislators appear poised to allow the commission, through a new second tier, to be able to actually discipline a judge and remove the judge from the bench. This would be an improvement from the current system. But only if the commission actually filed formal complaints. History shows the commission has been reluctant to file formal complaints.

It also appears that more transparency will be recommended by legislators. But will it be enough? Why should any discipline, or any allegations of misconduct by judges, be hidden from public view? It appears legislators are going to recommend that some confidentiality remain in the system.

We believe public complaints regarding judicial misconduct should be public from the beginning. The investigation of the commission should be confidential just like a criminal action involving police work and a DA. But judge-centric groups have legislators believing that hiding information about judges inspires public trust.

Nonetheless, we are very grateful for the anonymous testimony that mirrors what we’ve been told over and over again over the years. Unfortunately, no one would testify publicly because they were still so scared of the discipline commission.

Let’s hope that judicial reform is actually on the way. But please understand, that a constitutional amendment regarding judicial discipline cannot appear on the ballot until 2024 and if passed won’t become law until 2025.
​
So judges still have years to be protected by a dark and troubled judicial discipline system.

Why do we need the interim committee? Because the legislators on the judiciary committees have completely failed to keep checks and balances on the judicial branch. That’s why the judicial scandal happened.
 
So now we’re expecting the legislators who have failed to keep checks and balances on the judicial branch, and who have continuously run bills at the request of the judicial branch, to create responsible and reasonable proposals to improve Colorado’s judicial discipline system?
 
And that’s not all.
 
Recently, we learned that the Denver DA alleges she could not bring criminal charges against the judicial branch employees involved in the judicial scandal because the judicial branch was withholding documents. She says the statute of limitations expired before she could get the necessary information.
 
Senators Lee, Gardner, and others were schmoozing with the Supreme Court earlier this year to try to see what the justices would accept regarding discipline reforms. 

Legislators asking judges about what laws to pass is not how government is supposed to function. ​
 
What the senators should have been doing was subpoenaing the documents needed by the DA for criminal prosecution. Instead, while the statute of limitations was running out, they were asking the justices to please support some sort of reform.
 
These legislators created the situation where the judicial scandal could happen, and they failed to help uncover information that would help those involved be held accountable. The legislators’ inaction literally helped the former judicial employees evade criminal prosecution.
 
So please forgive us for being skeptical that any responsible proposals are going to come out of this interim committee. The legislators are simply too deferential to the judges in the judicial branch.
 
Oh, did we mention that Representative Lynch’s brother is a district court judge?
 
We’ll do our best to advocate for responsible reforms. But the judiciary has these legislators in its pocket.
 
The first meeting of the interim committee is scheduled for June 14th at 10 a.m. The public can comment at that meeting.

​Supposedly the position was open for applicants from Oct 27, 2021 to Nov 12, 2021. But the quintessential insider was hired for the job. It is not known whether there were any other applicants.
 
The executive director is responsible for reviewing all the complaints that are filed with the office and, if he’s like the previous director, he’ll dismiss the vast majority of them and not even allow the commission to review them.
 
That’s one of the main functions of the executive director – to dismiss complaints against judges.
 
And the new executive director is Christopher Gregory. He’s an attorney who’s very familiar with the commission, but he was not reappointed by Gov. Polis in Jan. 2021. Why? At the time The Denver Post was breaking news about the judicial scandal involving a former chief justice and former state court administrator.
 
He’s never served as a prosecutor. He received his college degree from Western Colorado University in 2000. He received his law degree from Willamette University (Oregon) in 2003. He worked as a public defender and then opened his own firm in 2008. He also received a college degree in business administration and management in 2012.
 
We approached him for an interview, but he declined. We also approached the current Chair of the commission and she did not respond to our requests. We also approached the recently retired executive director, William Campbell, and he declined an interview.
 
Mr. Gregory applied to become a district court judge in the 3rd Judicial District (Huerfano and Las Animas counties) in 2018. He received a nomination for the position, but he was not selected.
 
Why the commission chose to hire the ultimate insider at a time when the judicial branch is under increased scrutiny is puzzling. But it shows the members of the judicial discipline commission do not want anything to change. And they think they’re above reproach.
 
We need change to improve Colorado’s justice system. Please contact Gov. Polis to let him know that you do not approve of the commission hiring Mr. Gregory as the executive director. You can email him at Governorpolis@state.co.us.
 
Please contact your legislators to let them know that you do not approve of the commission hiring Mr. Gregory. And please support our efforts for judicial reform.

​Your legislator knows his name very well.
 
To your legislator, he’s the face of Colorado’s judicial branch.
 
But you don’t know his name, do you?
 
He’s paid with your tax dollars to influence legislators.
 
But he’s not influencing the legislators on your behalf.
 
He’s representing the Colorado Judicial Branch at the legislature.
 
Colorado’s judges aren’t supposed to play politics.
 
But there he is, day in and day out, during the legislative session.
 
He follows the orders of the chief justice and the state court administrator.
 
He makes sure that legislators know their positions on potential legislation.
 
But Colorado’s judicial system is not supposed to be political.
 
And he’s not an elected official.
 
Yet his official job title says he “plans, develops, and coordinates legislative activities.”
 
His job title also says he “develops strategies to achieve legislative goals . . . .”
 
And he does it all for the Colorado Judicial Department.
 
The salary for his position is $7,065 to $9,775 per month.
 
He’s paid to help judges get what judges want.
 
So what do you think he tells legislators about any bills that would make the judicial branch more accountable?
 
Or more transparent?
 
He’s paid to “develop strategies” to make sure such bills don’t succeed.
 
He holds a lot of sway with legislators.
 
Some will even seek him out before they vote on legislation.
 
They’re on a first name basis with him.
 
He’s a powerful fellow.
 
But you most likely don’t know his name.
 
It’s rarely published in articles.
 
His job is to keep a high profile with legislators.
 
But to keep a low profile with the public.
 
And he’s good at his job.
 
He may be the most powerful lobbyist in Colorado.
 
His name is Terry Scanlon.
 
He’s the legislative liaison (lobbyist) for Colorado’s judicial branch – an entity with great political power.

​No judicial immunity?
 
Colorado state court judge Brian Flynn is facing civil liability in federal district court for the unlawful jailing of 2 different people.
 
They both lost their jobs. He still has his.
 
The first lawsuit already survived a motion to dismiss that was based, in part, on judicial immunity.
 
The case alleges that Flynn’s administrative work, as opposed to his judicial work, led to the wrongful incarceration. And so far, that tactic has been successful.
 
Flynn is chief judge of the 21st Judicial District (Mesa County). According to James Roberts, a Texas attorney representing Elson Foster, Flynn allowed outdated protection orders to remain in effect. The result was that Foster was unlawfully arrested and placed in jail – 7 times.
 
A protection order is an order by the court that a criminal defendant not have contact with the victim of a crime. State law provides that the order remains in effect “until final disposition of the action.” In other words, once a sentence is served, a protection order goes away.
 
But according to allegations in the suit, Flynn violated state law by maintaining a policy of not removing protection orders after a sentence was served. He required previous criminal defendants to come back to court to remove the protection orders. If they didn’t, they could be arrested.
 
That’s what happened to Foster. An outdated protection order remained in effect due to Flynn’s policy. Worse yet, Flynn required a cash bond, as opposed to a personal recognizance bond, and that kept Foster in jail. He lost his job, and he lost his housing.
 
Foster became homeless because of Flynn’s unlawful actions. The suit alleges Flynn was deliberately indifferent and seeks monetary damages.
 
The second lawsuit is similar in that it involves wrongful incarceration, but it occurred under different circumstances.
 
Michelle Reynolds was pulled over for speeding in Mesa County. The officer who pulled her over found a warrant out of Boulder County for her arrest. She was unaware of the warrant but was taken to jail.
 
She was not allowed to post bond due to an administrative order issued by Judge Flynn. His order stated that Mesa County judges would not set bonds on out-of-county warrants. According to ACLU attorney Mark Silverstein, who is representing Reynolds along with attorney John Culver, Flynn’s policy was directly contrary to the Colorado Rules of Criminal Procedure.
 
The rules, Silverstein said, require a judge in Mesa County to set bond. The result was that Reynolds waited in Mesa County jail to be transferred to Boulder County to appear before a judge there.
 
She requested transportation to Boulder County daily. But it took more than 2 weeks before she was transferred to Boulder County and released.
 
As soon as she appeared in Boulder County, she was let out of jail on a personal recognizance bond and the charges against her were dismissed. But thanks to Flynn’s unlawful order, she was wrongfully incarcerated for 15 days.
 
The result? She lost her job – as a hospice caregiver. She was also assaulted multiple times while in jail.
 
Reynolds’ suit is currently facing a motion to dismiss based in part on judicial immunity. But her lawyers hope her case will survive the motion like Foster’s did because the judge’s administrative acts are what is at issue.
 
As for Flynn, he’s still on the bench. He’s being represented by the attorney general. Your tax dollars at work.
 
Because judicial discipline proceedings are not public in Colorado, it is not known whether he is facing any discipline due to his actions.
 
It’s also not known whether the judicial discipline commission would take any action whatsoever against a judge who is found to be civilly liable for his actions. The discipline commission did not discipline Weld County district court judge Ryan Kamada until he was convicted of a federal offense – a felony.
 
Flynn was just retained as a judge in the 2020 election. The judicial performance commission for Mesa County recommended his retention even though the commission’s report stated the following:
 
“However, among attorneys, Judge Flynn scored below the survey average for other judges in Colorado in case management, application and knowledge of the law, and in diligence.” 
 
“Some attorneys expressed concerns with Judge Flynn’s judicial temperament, judicial consistency, and unpredictable rulings more generally. Commissioners had some concern about occasional instances of judicial decisions being impaired by bias against specific lawyers.” 
 
Even if Flynn is held accountable in federal district court, or if a settlement is reached, future judicial performance commissions will not know because Colorado’s judicial performance commissions don’t do background checks on judges.

Senate leadership decided the complaint had sufficient merit to proceed. An ethics committee was formed. The executive director of The Judicial Integrity Project alleged some members of the committee had conflicts of interest because they are on the Senate Judiciary committee with Gardner. The Senate President removed Senator Pete Lee who is on Senate Judiciary with Gardner and who has co-sponsored a bill with Gardner regarding the senior judge program.

The senior judge program is at the center of the complaint because the state court administrator places retired judges under contract to work in the judicial branch. The senior judges are assigned to specific cases by the state court administrator and the chief justice. So the state court administrator, a position that is currently under investigation by the state auditor and the legislature, selects the judges who are hired as senior judges and then is involved with determining what cases those judges will hear. The judge on Gardner's friend's case was a senior judge. Gardner called the state court administrator and the judge was removed from the case and a new judge was assigned.

It's unknown whether the other party in that case knew that Gardner was involved or why the judge on the case changed. In a interview with Colorado Politics, Gardner claimed the judge committed clear violation of professional standards for attorneys and judges. It is unknown, however, whether Gardner contacted the Colorado Commission on Judicial Discipline. But Gardner admitted on the legislative record that he helped his friend avoid a recusal motion by contacting the state court administrator. A recusal motion is a motion where a party in the case requests a new judge. Such motions are decided by the judge hearing the case.

In other words, Gardner admitted he helped his friend circumvent the normal procedure in a court case. And he admitted his position was important for getting it done.

The legislative ethics committee is proceeding under a Senate rule that allows the committee to review only the complaint, the answer, and any information the committee requests. The only information the committee has requested is information from the current state court administrator regarding how often legislators and the public reach out to the administrator for help.

The next meeting for the ethics committee will be on July 12. The committee may determine on that date whether there is probable cause that an ethics violation was committed by Gardner. If so, the matter may proceed to an evidentiary hearing. If not, the complaint may be dismissed. It's also possible the committee will determine it needs more information. Gardner has not revealed the name of the attorney who he assisted. At this point, the ethics committee has failed to request any information to ascertain whether Gardner's version of the facts is correct. The ethics committee has not tried to obtain any information from the parties in the case where Gardner intervened. 

The state senators on the ethics committee are: Julie Gonzales, Faith Winter, Chris Hansen, Paul Lundeen and John Cooke.

No matter the result of the ethics investigation, Gardner's admission exposes a judicial integrity issue in Colorado. Judges aren't always accountable to the people and may be specifically assigned to a case for reasons unknown to the parties. Everyone should have the right to a judge who is accountable to the people and who is randomly assigned. No one should be able to change the judge who is hearing a case by simply making a phone call. The situation shows the improper, unaccountable power that is given to Colorado's state court administrator. Gardner has shown that judges can be tinkered with in Colorado, And simply put, that's not fair. As the great Martin Luther King, Jr. said, "injustice anywhere is a threat to justice everywhere."