Colorado Judicial Discipline Commission Subpoenas Supreme Court Over Lack of Access to Evidence in Scandal Investigation | Content reserved for subscribers
Colorado’s Commission on Judicial Discipline has subpoenaed the state’s Judiciary Department – and by extension its Supreme Court – to coerce it into cooperating with its investigation into the alleged cover-up of misconduct by judges following concerns that the third branch of government did not provide information, The Denver Gazette has learned.
Legal experts say the unprecedented move sets up a critical constitutional showdown between the state’s highest judicial authority and the body investigating the judges who occupy it.
“The production of records did not otherwise occur voluntarily, and within the scope of its authority under the rules of judicial discipline, the Commission had to take steps to compel the production of information and records,” said the commission to The Gazette in a statement responding to the newspaper’s questions.
The commission would not directly say that it issued a subpoena, but its rules limit its powers to compel the production of evidence, documents or testimony to subpoenas. It is also unclear when the subpoena was issued.
The judicial department declined to comment on Monday.
The subpoena is the result of repeated requests by the commission since last summer for information about allegations in a two-page memo that implied years of judicial misconduct had been intentionally covered up. It is unclear whether the ministry ignored the commission’s requests or provided only parts of what it is asking for.
The memo is at the center of a year-long scandal in which a former senior Judiciary Department official was allegedly given a $2.5 million contract to silence a threatened sex discrimination lawsuit that would expose the wrongdoings of the department.
Additionally, members of the Disciplinary Committee appeared upset last week when they learned the Supreme Court said it had given ‘unfettered access’ to sensitive documents and information related to the two-firm scandal. of investigative attorneys that the Judiciary Department has hired to investigate the issues – but not at the commission.
“This is most certainly an epic clash that sets up a critical showdown of constitutional authority,” University of Colorado law professor Richard Collins told The Gazette. “The difficulty with all of this is that the Supreme Court should decide the extent of its own powers and rules. There is no path around.”
The Colorado Constitution directly establishes the judiciary as the third branch of government, but also separately creates the commission to investigate and discipline judges. But the Supreme Court, which sits at the top of the department, writes the rules that govern the commission’s work and controls its purse strings.
Chief Justice Brian Boatright told a joint meeting of the Colorado Senate and House Judiciary Committees on Jan. 26 that the Supreme Court is committed to transparency in its investigations surrounding the memo and “we let’s give them unfettered access,” he said of the two companies the department has hired to conduct these investigations.
But commission chairwoman Elizabeth Espinosa Krupa, a lawyer, later told lawmakers the commission was not so lucky. The commission reiterated the sentiment in its statement to The Gazette.
“As reported at the SMART hearing, the Colorado Commission on Judicial Discipline was not granted unrestricted access to Judiciary Department records,” the commission told The Gazette.
In a surprise ruling at the legislative hearing, the commission asked lawmakers to take it out of the Supreme Court’s financial control and create a new Office of Judicial Discipline.
The reason, according to documents the commission has filed with judicial committees, is to prevent the court from trying to influence what and how the commission is investigating – including the memo and its allegations.
Specifically, the commission said it was unable to pay a Denver law firm it hired last year to investigate the cover-up scandal, which it said have done because the information the commission requested from the judicial department was not easily obtained.
It’s unclear whether the commission has subpoenaed the Supreme Court in the past, but experts say it’s highly unlikely. More troubling, however, is how such a subpoena would be enforced, the equivalent of a contempt citation.
The commission’s own rules – most of which are drafted and approved by the Supreme Court – require the High Court to appoint a “special master” to oversee such contempt proceedings. The special master would make a decision which must go to the Supreme Court to confirm or reject.
The ambiguity of executing a subpoena against the judicial department, which includes the court, leaves much to interpretation, experts say.
“The Constitution of any state or country is not all-encompassing and impulsive and that’s why we have so many ambiguities,” said Tom Cronin, a professor of politics at Colorado College.
Collins said the Constitution had great authority.
“I would emphasize that the commission itself is a constitutional undertaking, it’s not like it’s an appointed body that can be ignored,” he said. “Does the commission have independent authority and is that a valid provision since the Constitution says there are only three branches of government?”
The Supreme Court is made up of seven justices, each appointed by the governor and later retained by voters for a renewable 10-year term. Judges must retire at age 72.
The Disciplinary Commission has 10 members: two district judges and two county judges appointed by the Chief Justice of the Supreme Court; two lawyers appointed by the governor; four citizens who are neither lawyers nor judges, also appointed by the governor.
The extent of the commission’s disciplinary reach is limited to one year after a judge leaves the seat. However, his authority renews if a judge returns to the state senior judge program, where retired lawyers remain on the bench in a limited capacity to help with caseloads.
The commission signed an agreement with the Judiciary Department in 2010 that stated that the department would turn over any records of alleged misconduct by judges, regardless of the outcome of their own internal investigations.
Judges, however, follow their own rules of professional conduct which require them to submit any records of allegations of misconduct directly to the commission when they have direct knowledge of it.
When the contents of the memo were leaked in February 2021, the commission wrote to Boatright to say its records over the past five years did not reflect any of the allegations it contained about the judges and wanted to know why not, according to reports. copies of correspondence. obtained by The Gazette.
Additionally, the commission said it was never made aware of the memo itself until newspaper reports uncovered it.
The December Gazette revealed how six of the Supreme Court’s sitting justices were generally aware of the memo in 2019 – two years before it was exposed. Until then, the judges had only said they first saw the memo in February 2021 following newspaper reports, but did not say whether they were aware of it.
At least six investigations have been launched into the memo and the circumstances surrounding it: two by the Judiciary Department, one by the Judicial Disciplinary Board, one by the state Office of Attorney Regulation Counsel which disciplines attorneys, one by the FBI and one by the state auditor. All are pending.
The firms hired by the Judiciary — Investigations Law Group and a firm headed by former U.S. Attorney Robert Troyer — were the result of a public bidding process overseen by a panel of state officials convened by the Governor, the Attorney General and the two Houses of the Legislative Body.
The memo was allegedly written by then-HR director Eric Brown in early 2019 and exposed a number of instances of judicial misconduct that former forensic department chief of staff Mindy Masias , was set to exhibit in a sex discrimination lawsuit.
Masias was fired at the time for financial irregularities and was prepared to take legal action because she was treated differently from a number of other, mostly male, ministry officials whose conduct was allegedly worse.
To prevent the tell-all lawsuit, former state court administrator Christopher Ryan said the department awarded Masias a $2.5 million court training contract for a company she started. Ryan alleged the decision was backed by then-Supreme Court Justice Nathan “Ben” Coats.
The department said the other judges also approved the contract award, but denied it was part of a quid pro quo agreement.
Ryan and Brown quit shortly after the contract was revealed, but the memo and its contents didn’t surface until February 2021.
Facing redundancy in October 2018, Masias took family medical leave before she could be fired. She quit just before signing the contract and received thousands of dollars in back pay. Following reports, the department canceled the contract in July 2019, technically because Masias failed to submit to a background investigation as the contract required.
She never spoke publicly about the contract or the memo.