​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 According to James Roberts, a Texas attorney representing Elson Foster, Flynn allowed outdated protection orders to remain in effect.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 An outdated protection order remained in effect due to Flynn’s policy.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.

A complaint against State Senator Bob Gardner is being considered by a legislative ethics committee. Gardner admitted on the legislative record that he called the state court administrator on behalf of a colleague who was having problems with a judge. The result? A new judge.

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."

​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.

​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 [email protected] 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.