In the months since it was revealed that a high-ranking former Colorado Justice Department employee allegedly threatened to expose years of hidden judicial misconduct in a lawsuit, the Colorado Supreme Court has thrown down barrage after barrage – sometimes even refusing categorically to pass on information – to efforts to investigate the scandal by the body that disciplines the judges.
In a series of letters with Chief Justice Brian Boatright last year, the Colorado Commission on Judicial Discipline repeatedly chastised the court for failing to release the information it needed to determine whether further investigation was necessary — a problem that apparently still exists — according to copies of correspondence obtained by The Denver Gazette via open records requests.
Despite Boatright’s public assurances of transparency and cooperation with investigations into alleged misconduct, the letters describe a broader confrontation between two constitutionally created entities, each pushing for control of what it considers to be its mandate.
At issue is the commission’s charge to investigate any form of judicial misconduct, whether or not the Judicial Department has already found it inconsequential, and the Supreme Court’s view that the justices have not need to report co-worker misconduct only if they have witnessed it firsthand.
Much of the commission’s annoyance appears rooted in concerns that it was learning the details of the scandal from news reports and not from the justice system itself. As each new allegation surfaced, the commission asked the court for information that corroborated or refuted what it read, according to the letters.
Rather than respond, Boatright – and by extension the forensic department – appeared to drag on, asking the commission for more details or for it to provide a “better understanding” of what it wanted.
For its part, the commission said it simply needed the court to report what it knew.
“Our preference … is to hear directly from your office and the Judiciary Department their knowledge and views on these matters rather than waiting for press reports,” Christopher Gregory, then committee chair, wrote Boatright. May 18, 2021. “We again ask you to please convert your assurances of disclosure and cooperation into concrete actions.
Gregory became the commission’s executive director in January after Governor Jared Polis chose not to reappoint him as a commissioner last year.
The fight culminated in January 2022 when the commission, in a highly unusual public airing of its frustration with the Supreme Court, told lawmakers it was not just getting the kind of unfettered access to information which Boatright had told other investigators, but that the high court had tried to manipulate the way the commission did its job.
The court controls the commission’s funding through the regulatory attorney’s office and for months has not approved additional dollars the commission must pay for a law firm it has hired for the to help investigate the scandal.
As a result, lawmakers are considering the creation of a new Office of Judicial Discipline which would be a more independent body that is not beholden to the purse strings of the Supreme Court.
The Gazette received 13 pages of correspondence that took place last year between the commission and the Supreme Court through a request to open cases to the Judiciary Department – and had to pay $460 for them. About half of the pages were blacked out. The department said the redactions were intended to protect information that the law allowed to be kept secret.
Information that has been released indicates that at least two other letters between the bodies have been fully withheld, one from Boatright and the other from State Court Administrator Steve Vasconcellos.
The department declined a request by The Gazette to generally describe what was redacted or withheld, a provision that is generally permitted under the Colorado Open Records Act but does not apply to the Judiciary Department.
The Forensic Department has its own open case policy – known as PAIRR2 – which is similar in some ways to CORA. The commission is not covered by any provision on open files.
The unredacted portions of the letters provided to The Gazette, however, paint a picture of two entities at odds with their handling of the scandal and the court’s reluctance to be candid.
Neither organization commented to The Gazette about the correspondence.
The commission is made up of 10 people: Two district court judges and two county court judges appointed by the Supreme Court; two attorneys with at least ten years of practice in Colorado and four citizens who are not attorneys or have served as judges, appointed by the Governor with the consent of the State Senate.
The dust started in February 2021 when the Denver Post revealed that former Justice Department chief of staff Mindy Masias was allegedly given a $2.5 million contract — approved at the highest level of the department — for the prevent you from filing a sex discrimination complaint. At its heart was a two-page memo purportedly written by the department’s former director of human resources, Eric Brown, which described all of the department’s misdeeds that Masias had seen over a 20-year career, including the actions of several high-ranking judges. as Chief Justice, all of this was hidden from the public.
The memo also described how the department created a culture that fostered misogyny and harassment.
The department’s former court administrator – his highest civilian position – insisted former Chief Justice Nathan “Ben” Coats approved Masias’ deal after hearing some of the details in the statement. memo in a private meeting in January 2019, then asked what could be done to prevent the information from becoming public.
The stories sparked a storm of reactions. In a public statement, Boatright took responsibility.
“The people of Colorado deserve a justice system that they know is held accountable for the highest standards of professionalism and ethical behavior, regardless of title or position,” he said in a statement. press of February 16, 2021. “As Chief Justice, I am personally committed to restoring this public trust.”
Additionally, Boatright had “directed that he be notified and receive weekly updates on all future conduct complaints across the department to ensure that each incident is thoroughly investigated and appropriate action is taken without delay,” according to the press release.
Within days, officials chosen by the governor, attorney general and leaders of both legislative houses were named to a panel that was to hire independent investigators to delve into the scandal.
Shortly after, the Judicial Disciplinary Committee told Boatright it was concerned about the way the investigation was being set up, particularly its connection to the work of the committee. Because it must operate independently of the Supreme Court, the commission was concerned that information gathered by independent investigators would be shared with it.
“The Commission would like to have a better understanding of the investigative entity you are creating … (and) is concerned that your April 26 letter suggests that your office and the Judiciary Department consider the plan for creating the new (investigative) entity ) as a substitute for the role of the Commission or as a basis for delaying the work of the Commission,” Gregory wrote on May 18. “The Commission does not agree with these views, if they stand.
The department declined to give The Gazette the April 26 letter Boatright wrote to the commission.
Boatright responded to the commission on June 11, 2021, saying she seemed to misunderstand when a judge is required to report allegations of misconduct by another judge. They only need to do this if they actually witnessed the event.
“Based on the tone and substance (of the commission’s letter), I am concerned that the duty of individual judicial officers to report known violations of the Colorado Code of Judicial Conduct (to the commission)…has been interpreted wrongly as encompassing the duty to report either unsubstantiated allegations of judicial misconduct brought indirectly by a third party long after the fact,” Boatright wrote on June 11, 2021.
“We must start with the same basic understanding…because ‘knowledge’…is limited to ‘actual knowledge,’” Boatright wrote.
Boatright added that “I recognize and of course take very seriously” the obligation “to report known violations” to the commission and would “promptly comply” when the court has “actual knowledge”.
The commission countered that Boatright was wrong and did little more than stall.
“The Commission disagrees with the suggestion…that your office and the department be exempt from disclosure and cooperation obligations if the information is outside the ‘actual knowledge’ of an individual judicial officer” , said El Paso County District Judge David Prince, Vice President. of the commission, wrote on July 23, 2021. “The Commission renews its prior requests to you for disclosure and active cooperation in the fulfillment by the Commission of its constitutional obligations.”
Prince added that Boatright’s responses are contrary to the Chief Justice’s public statements of cooperation and transparency.
“Effective implementation of these declarations will, in the long term, serve the best interests of our respective institutions as well as the interests of the people of Colorado,” Prince wrote.
Prince noted that Vasconcellos had written the commission – the letter was not provided to The Gazette – in response to a request for information and “invited him to speak with our attorney to pursue our claims further…”
The commission then subpoenaed the judicial department, and by extension the Supreme Court, in an unprecedented show of authority.
Days after the commission was revealed to have issued the subpoena, the 7-member Supreme Court jointly said in an internal department email that it had cooperated with the disciplinary body from the beginning, implying that allegations would otherwise be inaccurate.
The commission has publicly stated that it stands by its allegations.
The memo scandal has spawned at least six separate investigations. Last month, the state auditor referred four people linked to the scandal for criminal investigation after completing its investigation.
David Migoya can be reached at [email protected]