For 28 continuous years there was no public judicial discipline in Colorado
Now, we have 6 cases of public discipline in the last 8 years. Hmmm. We shouldn't be fooled by the recent cases. We still need to fix the system. Please help us remove conflicts of interest, increase transparency, and enhance accountability in Colorado's judicial system.
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He can assign a judge to your case. He holds the purse strings of Colorado’s judicial branch. Do you even know his name? He’s not an elected official. He’s hired by, and works for, the Colorado Supreme Court. The General Assembly just voted to increase his ability to hire judges after they retire. In other words, he has the power to select certain judges to allow them to keep ruling forever – essentially lifetime appointments. He can assign a particular judge – a senior judge – to any case in Colorado for any reason whatsoever. A disproportionate amount of senior judges work at the Court of Appeals where statewide public policy is made. His predecessor is under investigation for using his position’s power, along with a former chief justice, to award a lucrative contract to a former judicial branch employee to keep her from exposing judicial misconduct. The person who had his job before that? He testified before the legislature that no taxpayer dollars would be used to build the Supreme Court building in downtown Denver. Taxpayers, however, have already paid millions for the building and will eventually pay well over a hundred million dollars for the building. He learned under both of these individuals. After his predecessor resigned due to questionable conduct, more than 50 people applied for the position. But Colorado’s Supreme Court hired him because he’s an insider. He’s been working in Colorado’s judicial system since 1995. He makes $184,836 a year. He’s arguably the most powerful person in the judicial branch. Yet hardly anyone knows his name. And even though his two predecessors behaved badly in office, and one of them is currently under investigation, members of the General Assembly just presume he’ll do his job in an ethical and professional manner and insist on giving him massive powers. State Senator Bob Gardner, a lawyer, stated on the legislative record that he was able to help a colleague avoid a recusal motion by simply calling his predecessor. In other words, if you know him – you can get a new judge on your case with a simple phone call. Now that’s power. You should really get to know him. His name? Steven Vasconcellos. He’s Colorado’s state court administrator. 2021: We already have a problem. And State Senator Bob Gardner is it. Law Week Colorado interviewed Gardner regarding the state auditor’s troubling report about the State Court Administrator’s Office. Gardner said he “wouldn’t look for any legislation” in response to the office’s malfeasance because “we are pretty limited in what we can do.” The state court administrator, however, is a legislative creation. C.R.S. § 13-3-101. It was the legislature that decided to create an unelected state court administrator who’s responsible for millions and millions of dollars. And as the latest legislative audit found, the administrator did not manage the money well. More troubling, the audit found the administrator was doling out contracts based on favoritism as opposed to opening the contracts to a bidding process. It reeks of injustice. And it’s all happening at the heart of Colorado’s judicial branch. The legislature also allowed the state court administrator to pick what judges determine cases. So the same person who’s awarding contracts to favored individuals is the person deciding what judges determine important issues. How do you think that works out? And when problems are found and reported by an agency of the state, a state senator claims there’s not much he can do. It’s absurd. The state court administrator repeatedly sows the seeds of doubt in many judicial opinions. It’s usually noted in the opinion with an asterisk that explains that a judge or two were specifically assigned to hear the case. It’s hard to think of a more untrustworthy process to dispense justice. The legislature created the framework that enables everything the state court administrator does. Sen. Gardner is not being truthful when he claims the legislature can’t do much. The legislature is responsible for the entire mess. And Gardner knows it. But the system is working for him. So he incredulously claims there’s little the legislature can do. At a January 25, 2019, joint Judiciary hearing, Gardner explained how knowing the state court administrator benefitted him. He related how he was able to call the administrator to get a different judge assigned to one of his friend’s cases. Gardner used his power inappropriately. Irresponsible and self-serving legislators like Gardner are the reason why judicial reforms are so elusive in Colorado. More accountability, transparency and public oversight could be brought to the state court administrator’s office by making the administrator an elected position. The legislature has the power to make that change. The legislature could require the administrator to go through a bidding process before awarding contracts. The legislature could remove the state court administrator’s ability to assign certain judges to certain cases and insist that the cases be assigned randomly. There’s SO much the legislature could do to address the findings of the recent, damning audit done by the state auditor. After all, why was the audit even done if the legislature can’t do anything to solve the problems? Gardner doesn’t want anything to be done because the system works for him. He’s betraying his constituents and he’s betraying you. And unfortunately, legislators behave like they’re Wal-Mart clerks. You know how you have to get the Electronics clerk, and only the Electronics clerk, to unlock what you want? Well, that’s the way legislators treat the judiciary at the capitol. Gardner is the ranking Republican on the Senate Judiciary Committee. Gardner is an Electronics clerk who refuses to unlock the device so judicial reform can be had. Other legislators foolishly believe Gardner, and only Gardner, can unlock the judicial reform device. And he’s a bully. As the Law Week article quoted, Gardner said, “I wouldn’t look for any legislation, and I would expect any legislation that would somehow call for oversight of the judicial department to be resisted mightily.” Gardner didn’t clarify who would mightily resist the legislation, but most certainly it would be Gardner himself who leads the resistance. Bob Gardner is a menace to the American form of democracy. He believes the judiciary is so independent that it’s not subject to any checks and balances. He chooses to enable the state court administrator’s office to undermine the trust the public should have in the judicial branch. He chooses to support rogue judges who don’t comply with the Code of Judicial Conduct. And he makes those choices because they benefit him. Unfortunately, he’s not term-limited until 2024. And he’s going to do everything he can to ensure there is no judicial reform before he leaves. To think this is a party-line issue, however, is incorrect. Democrats are just as resistant to judicial reform as the Republicans under Gardner. Sen. Pete Lee (D), also from Colorado Springs, is in lock step with Sen. Gardner (R) in his resistance to a fair and accountable judicial branch. Lee is the chair of the Senate Judiciary Committee. Both Lee and Gardner are lawyers. As lawyers, they took an oath to use their knowledge to improve the legal system. As public servants, they are to use their power to help their constituents and not themselves. Yet they choose to use their power to maintain the status quo. It was encouraging that the state auditor called out the State Court Administrator’s Office for some of its failings. That is a big step in the right direction. Kudos to the state auditor. But with legislators like Gardner and Lee in power, nothing will come of it. They don’t give a damn about justice or you. Today, we’re very thankful for the judge who filed a complaint with the top lawyer in the Colorado Judicial Department instead of the Colorado Commission on Judicial Discipline. We’re also thankful to The Denver Post reporter who wrote this story. Together, they’ve put a spotlight on problems in Colorado’s judicial branch. And it ain’t pretty. Sexual harassment, false imprisonment and retaliation are just a part of the unseemly conduct surfacing out of Adams County. Judges in the county are actually afraid of other judges. Imagine that. Some judges are actually realizing that judicial power in the hands of the wrong individual(s) is frightening. And they’re realizing Colorado’s system protects bad judges. But unfortunately, the story has a troubling twist. This story is being reported because the complaint was filed with a lawyer in the judicial department and not with the Colorado Commission on Judicial Discipline. The judicial department doesn’t want that to happen again. As the story relates: “A department memo circulated among judges statewide in late October now requires all complaints by any judge regarding another judge be filed with the Colorado Commission on Judicial Discipline within the state Supreme Court.” The reason for the memo is because all proceedings before the discipline commission are confidential and not public. If the judge had filed her complaint with the discipline commission, we wouldn’t have this story because it would all be covered up. Colorado’s system protects bad judges. This case involves sexual harassment. Bill Cosby and Harvey Weinstein would never have been prosecuted if they were Colorado state court judges. So this story shows why Colorado must make judicial discipline proceedings public, like they are in 34 states. The American Bar Association recommends public judicial discipline proceedings, and this story shows us why such proceedings must be public. It undermines the public trust in the judiciary when the judicial branch covers up judicial misconduct. And today we’re thankful that we have the right of free speech and can be a voice for change. But as the story clearly relates, judges retaliate. Members of the legal community must come together and speak up for change. If you haven’t done so already, please sign our petition to support public judicial discipline proceedings in Colorado. Happy Thanksgiving! Give us dirty laundry! A Colorado attorney faces a complaint from attorney regulation due to a sexual relationship with a client. The lawyer has not been disciplined, but his name and the proceedings are public. It's in the Denver Post. Compare that with judges. We know a judge was actually disciplined for a sexual relationship with a staff member. It was in the most recent judicial discipline report. But that judge’s name and the proceedings were kept private. So a reporter can’t write a story about the judge. How does this make sense? Judges are public servants. Lawyers aren’t public servants. Yet it is the judges who are protected by an opaque system. Lawyers and judges in similar situations are treated very differently. Why the difference? Shouldn’t judicial discipline proceedings be at least as transparent as lawyer discipline proceedings? Wouldn’t the public’s trust of the judiciary be increased if the allegations against judges were public? Unfortunately, many lawyers don’t even understand the difference in attorney and judicial discipline proceedings. And if they do understand it, they’re afraid to speak up, fearing retaliation from judges. This story in the Denver Post is a prime example of the unfairness in Colorado’s legal system. A judge in the same position as the attorney in the story is protected from public view. A judge is protected from this sort of story being written about the judge. Even when the judge is disciplined, it is kept from public view. Again, it’s all documented (without any names or specific information) in the most recent report from the discipline commission. Colorado needs to stop covering up judicial misconduct. If you haven’t already, please sign our petition. We have more than 800 signatures, but we need more. Legislators are reluctant to make judicial discipline proceedings public. Why? Because under the dome, legislators like to give the judicial lobbyists what they want, even when it’s at the expense of their constituents. Your signature can make a difference. It really can. The nominees for the vacant seat on the Colorado Supreme Court have been named. One of the 3 nominees will replace Justice Coates who retires in January. A county court judge job in Arapahoe County is also being filled. We don’t know how many applicants applied, or who those applicants were, because the judicial nomination process is not transparent. If you know any of the nominees, or have an opinion, you’re encouraged to email the governor at gov_judicialappointments@state.co.us using the subject line “Colorado Supreme Court vacancy” or “Arapahoe County Court vacancy.” The nominees for the Colorado Supreme Court are: Maria Berkenkotter – currently a professional mediator, or arbiter, with Judicial Arbiter Group in Denver. She’s also a “judicial coach” for the Colorado Judicial Department, whatever that means. Previously, she was a district court judge for the 20th Judicial District (Boulder County). She was also an assistant attorney general in Colorado and worked as a lawyer at a law firm, Holmes and Starr, P.C. She received her college degree from Western Michigan University in 1984 and her law degree from DU in 1987. Timothy Macdonald – currently a lawyer at Arnold & Porter, an international law firm. He specializes in civil litigation. Previously, he was a law clerk for Judge Emilio Garza on the 5th Circuit U.S. Court of Appeals. He received his college degree from Miami University in 1992 and his law degree from the University of Michigan in 1996. Andrea Wang – currently an assistant U.S. attorney in Colorado where she focuses on civil litigation where the government is the plaintiff. Previously, she worked as a lawyer for Davis, Graham & Stubbs, a large Denver law firm with international connections. She also clerked for former Chief Justice Mary Mullarkey on the Colorado Supreme Court. She received her college degree from McGill University (Canada) in 1994 and her law degree from CU in 2001. The nominees for the Arapahoe County Court position are: Melina Hernandez – currently a part-time magistrate in Denver Juvenile Court and a bilingual family court facilitator in Denver District Court. Previously, she was a domestic law clerk for Judge William Hood in Denver before he was appointed to the Colorado Supreme Court. She also was a research fellow for Judge Christopher Cross in the 18th Judicial District (Arapahoe, Elbert, Lincoln and Douglas counties). She was also a fellow for the DU group Institute for the Advancement of the American Legal System. She received her college degree from CU in 2007 and her law degree from DU in 2011. Phelicia Kossie-Butler – currently a county court magistrate in the 17th Judicial District (Adams and Broomfield counties). Previously, she worked as a lawyer for Bayer & Carey, an insurance defense firm in Denver, and her own firm. She worked as a public defender from 2003 to 2011. She received her college degree from Southern Methodist University (Texas) in 2000 and her law degree form St. Mary’s University (Texas) in 2003. Joseph Whitfield – currently a deputy district attorney in the 18th Judicial District (Arapahoe, Elbert, Lincoln and Douglas counties). He received his college degree from Occidental College (California) in 1998 and his law degree from Washington University (St. Louis, Missouri) in 2010. Did you vote to retain the judge who had sex with a staff member at the courthouse? Well, we don’t know exactly who the judge is. But we do know it happened. It’s in the annual report from Colorado’s judicial discipline commission. Here’s the paragraph from the annual report that details the facts: A private censure was issued to a judge who promoted extensive drinking at a conference hotel among court staff which led to a consensual sexual relationship with a staff member that continued at the courthouse. After the intimate relationship ended, the judge and the employee had an increasingly stressful employment relationship which ultimately resulted in the employee reporting the situation to the Commission and being reassigned to different duties. The judge's conduct violated Canon Rule 1.2, creating an appearance of impropriety among court staff; Canon Rule 3.1(A), interfering with proper performance of judicial duties as a delegate to the conference; Canon Rule 3.1(C), conduct undermining the integrity of a judge at the conference; and Canon Rule 3.1(E), improper use of court facilities. The impact on the work environment was addressed by the private censure of the judge’s conduct and an order for the judge to seek counselling about his behavior. In the private sector, the judge could be terminated for his conduct. But in Colorado’s judicial branch, the judge gets to keep his job and it’s all covered up because judicial discipline proceedings are confidential in Colorado. We don’t know if the judge is on this year’s ballot. But no matter when the judge is up for retention, Colorado’s judicial system will keep the public from knowing what the judge did. Harvey Weinstein and Bill Cosby sure wish they were judges in Colorado. Their fates would be so different. The annual report also details on pages 13-15 other acts that were disciplined in private. Among other things, judges were privately disciplined for arbitrary rulings, inappropriate remarks to lawyers and litigants, unprofessional terminology, intemperance, and sexual harassment. So you’re left to imagine what all those judges on the ballot did. Colorado sweeps the bad acts of judges under the rug. You don’t know your judge. Really. You don’t. Please sign our petition to support making judicial discipline proceedings public in Colorado. Colorado's judicial branch hides so much information from you. Why? Possibly because you’re predisposed to vote to retain all those judges on the ballot. At least that’s what research shows. Most voters give judges the benefit of the doubt and vote to retain judges. Unsuspecting voters think if they haven’t heard anything bad about a judge, the judge must be OK. That assumption is incorrect. You're being deceived. Complaints against judges and the discipline history of judges in Colorado are hidden from voters. Even more surprising, the information is also hidden from the performance commissions that review judges. Your election Blue Book is filled with reviews and recommendations about judges. The recommendations come from volunteer government “commissions on judicial performance” in the judicial branch. But those commissions don’t know whether any of the judges they’re evaluating have been disciplined. The commissions don’t know how many complaints have been filed against the judges they’re evaluating. The commissions don’t know the contents of the complaints filed. Why? Because unlike most states, Colorado has confidential – not public – judicial discipline proceedings. We can go on and on about what the judicial performance commissions don’t know about judges. Worse yet, Colorado’s state commission on judicial performance has consistently and repeatedly fought against obtaining more information about judges. All of those reviews in your Blue Book about judges are the product of a system that has actively opposed giving you thorough, responsible and credible reviews. The Judicial Integrity Project has sought legislation requiring the performance commissions to receive more information about judges. But the state performance commission has consistently fought those measures and persuaded gullible legislators that the performance commissions don’t need discipline information or background checks or public comment regarding judges. Really. And all of this is in addition to the fact that Colorado’s Open Records Act doesn’t apply to judges. At least that’s what judges ruled about 20 years ago. So, there’s hardly any information about judges that is publicly available. It’s impossible to objectively review a judge when so much is hidden from view. Colorado has one of the darkest judicial branches in the country. Even worse, we recently learned that the performance commissions are, yet again, violating Colorado law. In a recent Denver Post article it was revealed that the executive director of the performance commissions, Kent Wagner, supervised the performance plan of a judge. Wagner is not a judge. Yet he was supervising a judge. There is no provision in Colorado law that allows a non-judge to supervise a judge. Judges are supposed to independent and trustworthy. But Colorado’s judicial performance system has turned Colorado’s judicial branch into puppet theatre. And if the judge doesn’t do what the performance commissions want the judge to do? The judge might get a nasty, unfavorable recommendation from the commission. That’s because the commissions don’t have an articulable standard by which to determine whether a judge is a good judge or a bad judge. The reviews in the Blue Book tell you a judge meets or does not meet a performance standard. But no standard exists in Colorado. In 2018, a judge claimed he was unfairly targeted by a performance commission when he received an unfavorable review. Indeed, his scores showed that he was rated as one of the better judges in the state. Yet he received an unfavorable recommendation that he did not meet performance standards and was not retained. Phillip Douglass is the former judge’s name. This year, another judge has claimed she’s been unfairly targeted by a performance commission. Her scores are higher than other judges who received favorable recommendations. Yet Judge Tommee Crespin received an unfavorable recommendation claiming she does not meet performance standards. She’s Hispanic and claims racial bias. Because there is no articulable performance standard, her claims of bias could have merit. And she’s the judge Kent Wagner was supervising. Colorado’s judicial performance system is not only misleading voters, it is undermining the integrity of the judiciary. But if a judge here or there receives an unfavorable recommendation, then the state commission claims the whole system works. And unsuspecting voters and legislators believe it. When you vote to retain a judge in Colorado, you’re voting to retain an antiquated, dark, unethical and broken system that much too often protects bad judges at the expense of a good judge or two. You don’t know your judge. But because you’re predisposed to vote to retain judges, the system will continue. Please sign our petition to support a more transparent judiciary, and to support a judicial performance process that is responsible, credible and trustworthy. The Colorado Supreme Court thinks judicial retention elections are a joke. The justices know there’s no chance they’ll be voted out. As this story explains, when current Chief Justice Nathan Coates retires in January, the Court will start setting a specific term length for the role of chief justice. And the court has revealed the next two justices to succeed Coates in the role of chief justice. The first will be Brian Boatright. The second will be Monica Marquez. Both Boatright’s and Marquez’s 10-year judicial terms expire in January 2025. Boatright will be in office when Coates retires in January. But, depending on the term length the justices choose for chief justice, the question should be whether Marquez will be in office when she is to succeed Boatright. The chief justice has been a role held until the justice retires. So, it’s usually been held for many years. Unless the justices select a term that is 4 years or less, it should be questionable whether Marquez is still on the court when it’s her turn to be the chief administrative judge of Colorado’s judicial branch. But the justices obviously aren’t concerned in the slightest that Marquez will still be on the Court when it’s her turn. Why would they be concerned? No appellate court judge has ever lost a retention election in Colorado. Colorado is the only state where a separate judicial performance commission reviews appellate court judges. That means that the district performance commissions – the local commissions – don’t review Colorado’s Supreme Court or Court of Appeals judges. The state commission on judicial performance makes it look like the district commissions review the appellate judges, but the district commissions do not do so. With an insular commission reviewing them – a commission that’s never given an appellate court judge an unfavorable recommendation – the justices on Colorado’s Supreme Court have nothing to worry about. And with all the controversy at the U.S. Supreme Court at present, we should note that when Coates is replaced in January, a Democrat governor will have selected all of Colorado’s Supreme Court justices. |
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