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Disciplining judges in Colorado
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When a judge commits an act of willful misconduct on the
bench, our written law provides for three modes of punishment: civil,
criminal, and administrative. This page discusses processes
available under Colorado law for initiating criminal and administrative
complaints, which becomes necessary because you can take comfort in the knowledge that the public officials sworn to uphold and
defend your rights under law will do everything in their power to avoid
coming to your aid. In this arena, you have three options:
Complaint to the District Attorney: A
judge who willfully violates the law in the scope of his or her
duties commits official misconduct; if the act was done to benefit that
judge (or one of his friends), it is a class 2 misdemeanor punishable
by as much as 12 months' imprisonment. But while district
attorneys are loath to prosecute their fellow public servants, Colorado
law grants the victim the right to force the district attorney to
explain why he refuses to prosecute.
Complaint to the Colorado Commission on Judicial Discipline:
The Colorado Constitution created a Commission on Judicial Discipline,
tasked with the investigation of claims that judges have committed
"willful misconduct in office." But owing to the terms of their
enabling statute, they act in a state of almost total secrecy, which
makes it easy to avoid doing their job without getting noticed.
Roughly 200 complaints are filed in a typical year; over 90%
of them are summarily dismissed without even cursory investigation.
Complaint to the Colorado Commission on Judicial Performance: The Colorado legislature also created a Commission on Judicial Performance, tasked with
providing evaluations of judicial performance. They can hold public
hearings (but are not required to), but all they do is recommend to the general public whether a
given judge ought to be retained. Their grading curve is
remarkably lax: statewide, only thirteen judges have not been
recommended for retention in over forty years.
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C.R.S. § 18-8-404:
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(1)
A public servant commits first degree official misconduct if, with
intent to obtain a benefit for the public servant or another or
maliciously to cause harm to another, he or she knowingly:
(a) Commits an act relating to his office but constituting an unauthorized exercise of his official function; or
(b) Refrains from performing a duty imposed upon him by law; or
(c) Violates any statute or lawfully adopted rule or regulation relating to his office.
(2)
First degree official misconduct is a class 2 misdemeanor [and as
such, punishable by up to 12 months' imprisonment and/or a $1,000 fine
(C.R.S. § 18-1.3-501)].
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C.R.S. § 16-5-209:
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The
judge of a court having jurisdiction of the alleged offense, upon
affidavit filed with the judge alleging the commission of a crime and
the unjustified refusal of the prosecuting attorney to prosecute any
person for the crime, may require the prosecuting attorney to appear
before the judge and explain the refusal. If after that proceeding,
based on the competent evidence in the affidavit, the explanation of
the prosecuting attorney, and any argument of the parties, the judge
finds that the refusal of the prosecuting attorney to prosecute was
arbitrary or capricious and without reasonable excuse, the judge may
order the prosecuting attorney to file an information and prosecute the
case or may appoint a special prosecutor to do so. ....
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Colo Const. art. VI, § 22(3)(d) (excerpted):
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A
justice or judge of any court of record of this state ... may be
removed or disciplined for willful misconduct in office, willful or
persistent failure to perform his duties, intemperance, or violation of
any canon of the Colorado code of judicial conduct....
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C.R.S. § 24-72-401 (confidentiality):
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The
record of an investigation conducted by the commission on judicial
discipline or by masters appointed by the supreme court at the request
of the commission shall contain all papers filed with and all
proceedings before the commission or the masters. The record shall be
confidential and shall remain confidential after filing with the
supreme court. A recommendation of the commission for the removal or
retirement of a justice or judge shall not be confidential after it is
filed with the supreme court.
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C.R.S. § 24-72-402 (Violation - penalty):
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Any
member of the commission, any master appointed by the supreme court, or
anyone providing assistance to such commission or such masters who
willfully and knowingly discloses the contents of any paper filed with,
or any proceeding before, such commission or such masters, or willfully
and knowingly discloses the contents of any recommendation of the
commission before such recommendation is filed with the supreme court
is guilty of a misdemeanor and, upon conviction thereof, shall be
punished by a fine of not more than five hundred dollars. This section
shall not apply to any necessary communication between the members of
the commission or the masters appointed by the supreme court or anyone
employed to aid such commission or such masters in the filing or
documentation of any paper filed with, or any proceedings before, such
commission or such masters or the preparation of the recommendation of
such commission.
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The
fundamental question here is whether judges should be held personally
accountable for criminal actions committed on the bench ... and the
only rational answer anyone can give is a resounding "YES!"
Judges say that they must be
absolutely free to act without fear that they might suffer personal
consequences for even their criminal misconduct on the bench, or they
will be reluctant to exercise the discretion and judgment inherent in
their positions and vital to effective operation of the judiciary.
Honest Abe Lincoln offers an eminently practical response:
"Whenever I hear any
one arguing for slavery I feel a strong impulse to see it tried on him
personally." It is always easy to sacrifice another
man's rights on the altar of "the common good," but it is never morally
acceptable. If one man's rights can be extinguished by willful judicial
misconduct, everyone's rights are in grave jeopardy.
Rabbi Hillel famously taught: "Whatever
is hateful to you, do not do to your fellowman. That is the Torah."
Jesus taught this eternal truism in a more positive light: "In everything, do to
others what you would have them do to you, for this sums up the Law and
the Prophets." Abraham Lincoln said it this way: "Those who deny freedom to
others, deserve it not for themselves; and, under a just God, can not
long retain it." |
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Complaints to the District Attorney:
If the Denver district attorney's office was nothing else, it
was astonishingly prompt; my enquiries were consistently answered
within two weeks. That kind of efficiency is rare for a state
agency.
At their request, I sent a letter outlining the legal basis for criminal prosecution, and a draft complaint
alleging the facts they would need to prove for a conviction -- which
were already part of the public record and thus, amenable to judicial notice. Despite my effort, I was advised via e-mail that they "had no regulatory authority over the named principals or the actions," even though their own website stated, "The District Attorney is the chief law enforcement officer in the City
and County of Denver, and is responsible for prosecuting all of the
felonies, misdemeanors and serious traffic offenses committed in the
city."
As that claim was wrong and obviously so, I wrote another letter
to District Attorney Morrissey, hand-delivering both it and a large
cross-section of supporting documentation. Deputy District Attorney
Henry Reeve responded,
claiming that because the Justices had (erroneously) invoked one of the
state's canons of judicial ethics, no crime had occurred.
As his analysis was erroneous and quite obviously so, I was
forced to write a third letter and attach a second draft of my expected motion to the Court.
As that was an exercise in futility, I filed a motion for relief pursuant to C.R.S. § 16-5-209 in county court, along with an affidavit and a brief in support of criminal prosecution of the Justices. I also wrote a follow-up letter
to Morrissey, in the hope of moving matters along. But as you would
expect from an Alberto Gonzales-class political hack, the silence has
been deafening.
Once you get past murders, rapes, and robberies, virtually
every prosecution in Denver (or refusal to prosecute) is politically
motivated. And most DAs try hard not to prosecute judges: A
classic example is the married Michigan judge who propositioned an
undercover cop for anonymous gay sex in an airport men's room (he faced
judicial discipline -- but 'got off' because the DA refused to charge him). But even if you can force a prosecutor to do his job, you really can't compel him to do it competently. As another who has been through this system reports,
I too used the statutory quo warranto (R106 - CRS 16-5-209) to attempt to force
the Jeffco D.A. to prosecute a federal actor who was caught re-handed falsifying
documents to justify her illegal acts, and her accomplices, a division of the
Court of Appeals. The S.Ct. DID appoint a special prosecutor to hear the quo
warranto - a drooling, retired judge from horse-country at the ends of
Colorado. I have the transcript to the hearing I was allowed. The 120-year old
fart starts the hearing by saying "What's this about?" (indicating that he had
read NOTHING sent to him). I explained as slowly as I could that he needed
to apply / enforce the statutory remedy when a public offical reneges on their
duty. He said - but there's a court ruling in this case from the Court of
Appeals. I said, "correct -- the ruling came from the very judges who were
named defendants" and he said, "oh, I can't overturn a court decision." So I
said - you aren't being asked to overturn the decision - you're being asked to
order the prosecution of a crime. What's 16-5-209 for if not for this very
purpose? He said, "Please don't confuse me." (Really, that's what he said, I
have the transcript). He dismissed the case. The judges and federal actor were
safe from the likes of a "disgruntled litigant".
Complaints to the Commission on Judicial Discipline:
Unlike your local district attorney, who has to stand once
for re-election, the Colorado Commission on Judicial Discipline is not
accountable to anyone. Like the hated Star Chamber of the Tudors,
everything they do is cloaked in secrecy. Forty percent of the
Commission is
chosen by the state supreme court
,
which, like Bernard Cardinal Law, has a vested interest in keeping
the sins of its subordinate priests of their order out of the public
consciousness. As such, the only substantive information you can get
about the Commission's dereliction of duty is from citizen complaints.
The vast bulk of the nearly 200 complaints filed annually
are extinguished in the intake stage by Commission director Rick
Wehmhoefer, on grounds that the complainant is really just
complaining about an erroneous decision. That it had never
occurred to 'Dr. Rick' that willful judicial misconduct is frequently
evidenced by obviously erroneous judicial decisions would normally be
compelling evidence of his professional incompetence, but it is
generally understood by all that his primary job description is to
avoid doing his
job.
A poignant example of Dr. Rick's professional indolence
and sloth is demonstrated in an exchange with Sean Harrington, who
asked this pointed question (SH to RW, 3/31/06):
“If
the Commission is truly disallowed from reviewing the legal or factual
aspects of [any] case, including rulings, orders or decision, then how
is it possible for the Commission to enforce Canon 3A and the discharge
of the duties of a judge’s office (which primarily involves
making rulings, orders and decisions regarding the factual and legal
aspects of a given case)?”
In my February 6th letter, I explained that the gravamen
of my complaint was the fact that the judge had not issued any ruling
at all –a ruling on a procedurally special statutory matter that
requires a prompt peremptory ruling.
I have reviewed the Commission’s Annual Reports,
published in the Colorado Lawyer. I note that examples of private
letters of discipline issued to judges by the Commission included
letters to judges who [quoting official report], “Delayed issuing
rulings in cases pending before the judges, violations of Canon 3A(5),
Colorado Code of Judicial Conduct.”
Suffice it to say that Dr. Rick dodged Sean's question, as subsequent correspondence (RW, 4/12; SH, 7/3; RW, 7/12; SH, 1/4/07) plainly shows.
Knowing that I would get the same run-around if I played the game by Dr. Rick's rules, I sent my complaint directly to the Commissioners (not that it made that much difference, as I was soon to learn). Commission chairman Mike Norton -- the husband of former state Lt. Governor Jane Norton -- is a self-professing Christian, who recently earned not one but two advanced degrees from Denver Seminary.
Problem is, Mr. Norton immediately confirmed the axiom that the
short definition of a "Christian" is one whose word is meant for
preaching, as opposed to keeping, as this exchange of letters shows (KS, 2/1; MN, 2/1; KS, 2/2). The only salient difference between Mike Norton and Ted Haggard is that Haggard's sins finally found him out.
Complaints to the Commission on Judicial Performance:
The Commission on Judicial Performance is a tougher nut to
crack; it will be cracked here (and public reports given) in a separate
page when the cracking is finally attended to.
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While the good folks at KnowYourCourts.com are certainly free to err
on the side of caution, I am of the opinion that to the extent
that Article VI, §
23(3)(g)
of the Colorado Constitution purports to prohibit disclosure of the
contents of a judicial misconduct complaint by a complainant, it
would not survive a First Amendment challenge. As the United States Supreme Court wrote, "In a series of cases
raising the question of whether the contempt power could be used to
punish out-of-court comments concerning pending cases or grand jury
investigations, this Court has consistently rejected the
argument that such commentary constituted a clear and present danger to
the administration of justice." Landmark Communications v. Virginia, 435 U.S. 829, 844 (1978). As
James Madison
suggests, the right of the people to know what our government is or is
not doing consistently outweighs the government's interest in keeping
its scandals under wraps.
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(Remember: It is YOUR responsibility to verify the authenticity,
accuracy, applicability of statutes, rules, regulations, etc.)
*In
case you're wondering, I borrowed the format from KnowYourCourts.com,
so that it could be more easily integrated into that site, should this
material ever have to moved off-shore to frustrate governmental
attempts at censorship.
**
If you have information, corrections or
updates regarding this site, please contact 19ranger57@earthlink.net.
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