Colorado's Commission on Judicial Discipline 

(known here simply as The Commission for the Abolition of Judicial Discipline)

For those visitors who've navigated to this page with search terms, such as "Colorado discipline of judges" or "Colorado judicial discipline," we regret to inform you that there is no such regulation implemented in Colorado at this time.  (Read more below).

►► Publication Notice ◄◄

We have deduced that "Dr. Rick" Wehmhoefer would have had us believe that we are limited as to what we are permitted to post here. Wehmhoefer concluded nearly all of his correspondence to complainants with, "Please be reminded that this matter is strictly confidential pursuant to Article VI, Section 23(3)(g) , Colorado Constitution, and sections 24-72-401 and 402, Colorado Revised Statutes."  See also Wehmhoefer, Confidentiality of Judicial Disciplinary Proceedings, 17 Colo.Law. 1043 (1988). We are not so circumscribed.

June 01, 2009 - Colorado Comm'n for the Abolition of Judicial Discipline has released its 2008 Annual Report

Highlights:
  • pro se parties are all dumb-asses


  • 95% of all submitted complaints were dismissed out-of-hand. Only ten (10) of the 217 complaints were investigated


  • Of the 5% that were investigated, four complaints (including one of my complaints (here)) involved allegations of unreasonable delays in issuing rulings, two involved despotic, opprobrious courtroom demeanor, one concerned allegations of sexual harassment of staff (say it isn't so!), one concerned a traffic violation involving alcohol, one involved participation in extra-judicial activities (swinging, perhaps?), and one concerned a judge’s obligation to report an attorney’s misconduct.


  • Of the four (4) disciplinary actions (note the Commission would rather call them "corrective actions"), all were private: Three (3) private letters concerning violations of the Code were issued (one letter of admonition; one letter of reprimand; and one letter of censure) and one judge was directed to seek professional training in judicial demeanor and temperament. One judge voluntarily retired; two complaints were dismissed after further investigation indicated that there was no misconduct; and three complaints were carried over for the Commission’s consideration in 2009.
This is why it's called the Colorado Commission for the Abolition of Judicial Discipline.

Note also that longtime Commission member, John Holcomb, a professor of business ethics and legal studies at the University of Denver's Daniels School of Business, has always had nothing but praise for the former federal judge, Eddie Nottingham. (See my Feb. 29, 2009 post, infra). He's surreptitiously listed on the Commission's member roster as an innocuous non-lawyer "citizen" member and failed to recuse himself from consideration of my complaint (whereas Federico Alvarez and Judge Charles Hoppin did - click here). Is this a fellow who ought to be responsible for deciding which judges should or should not be disciplined?


Colorado Commission on Judicial Discipline
Annual Report
 

Background and Jurisdiction

The framework for the Colorado Commission on Judicial Discipline (Commission) is found in Colo. Const. art. VI, § 23. Under § 23(d), a justice or judge of any court of record may be removed or disciplined for willful misconduct in office, willful or persistent failure to perform his or her duties, intemperance, or a violation of the Colorado Code of Judicial Conduct (Code). A judge also may be retired for a disability that interferes with the performance of his or her duties, if the disability is likely to become permanent. Colo. Const. art. VI, § 23(e) provides for certain sanctions short of removal or retirement, where appropriate, including suspension, censure, reprimand, remedial action, or other discipline.

Colo. Const. art. VI, § 23(h) grants authority to the Colorado Supreme Court to provide by rule for the procedures to be followed by the Commission. Accordingly, the Supreme Court has established guidelines for the administration and activities of the Commission in the Colorado Rules of Judicial Discipline (Rules), which are applied in conjunction with the Code. The full text of the Rules and Code are published in Court Rules, Book 1, of the Colorado Revised Statutes.

For a fuller understanding of the scope of the Commission’s disciplinary authority, it is important to note the following:
 
> The Commission’s jurisdiction is limited to disciplinary matters concerning district judges, county judges, Colorado Court of Appeals judges, justices of the Colorado Supreme Court, senior judges, and appointed judges. Excluded from this jurisdiction are magistrates, municipal judges, and administrative law judges (ALJs).
> The Office of Attorney Regulation Counsel (ARC) is charged with disciplinary oversight of magistrates and ALJs, along with its jurisdiction over the conduct of lawyers generally, under the Colorado Rules of Professional Conduct.

> County Judges in the City and County of Denver are considered municipal judges; disciplinary matters for those judges are addressed by the Denver County Court Commission on Judicial Discipline. Certain other cities—for example, Lakewood—have established similar disciplinary bodies to oversee the conduct of their municipal judges.
 
Frequently, the Commission receives calls from individuals who (1) confuse the judicial disciplinary process with the appellate process; and (2) misconstrue a disappointing factual or legal ruling to be judicial misconduct and want to have the decision reversed on that basis. However, appeals of findings of fact and legal conclusions are reserved to courts of record under Colo. Const. art VI, §§ 1 and 2, and by provisions of Colorado Revised Statutes.

Other matters beyond the scope of the Commission’s jurisdiction include concerns about a judge’s overall performance and fitness for the position, rather than an incident or series of incidents of misconduct. Although there may be some overlap with the Commission’s disciplinary role, such concerns may be more appropriate for consideration by the Colorado Commission on Judicial Performance, which disseminates information regarding a judge’s performance prior to the judge’s retention election. The Colorado Commission on Judicial Performance is accessible online at www.cojudicialperformance.com/index.cfm.


Grounds for Judicial Discipline

The grounds for judicial discipline that may trigger the sanctions provided in Colo. Const. art. VI, § 23(d) are described in Rule 5(a). They include:
1) willful misconduct in office, including misconduct that, although not related to judicial duties, brings the judicial office into disrepute or is prejudicial to the administration of justice;
2) willful or persistent failure to perform judicial duties, including incompetent performance of judicial duties;
3) intemperance, including extreme or immoderate personal conduct, recurring loss of temper or control, abuse of alcohol, or the use of illegal narcotics or dangerous drugs;
4) any conduct that constitutes a violation of the Code; or
5) disability interfering with the performance of judicil [sic.] duties that is, or is likely to become, of a permanent character.
 
Because Rule 5(a)(4) incorporates the Code into the Rules, complaints filed with the Commission may involve allegations that a judge has not fulfilled his or her obligations under the nine Canons that are included in the Code. The Canons address the integrity and independence of the judiciary; impropriety or the appearance of impropriety; failure to perform duties promptly, impartially, and courteously; conduct off the Bench that is outside the boundaries of permitted quasi-judicial or extra-judicial activities; and inappropriate political activities. The Code is accessible online at www.deontologie-judiciaire.umontreal.ca/fr/codes%20enonces%20deonto/documents/Colorado_Code_of_Judicial_Conduct.pdf.


The Commission and Its Executive Director

The Commission is comprised of ten Colorado citizens who serve without compensation other than reimbursement for expenses reasonably incurred in the performance of their duties, such as travel to attend Commission meetings. The composition of the Commission is determined by Colo. Const. art. VI, § 23(3)(a) and (b). It includes two judges of district courts and two judges of county courts who are selected by the Supreme Court; two lawyers who have practiced in Colorado for ten years, neither of whom may be a justice or judge, and who are appointed by the Governor with the consent of the Senate; and four citizens who are not and have not been judges, who are not licensed to practice law in Colorado, and who are appointed by the Governor with the consent of the Senate.

Rule 3 provides for the organization and administration of the Commission, including the appointment of an Executive Director, whose duties include the operation of a permanent office; the screening and investigation of complaints; the maintenance of records and statistics; the employment of investigators, special counsel, and masters when necessary; the preparation and administration of the Commission’s operating budget; and the preparation of an annual report.


Complaints

Rules 12 through 14 provide for the filing, screening, and preliminary investigation of complaints. Any person may file a complaint alleging judicial misconduct or disability. A complaint form is provided by the Commission, which includes a brief summary of the grounds for judicial discipline under Rule 5(a) as a guide for the preparation of the complaint. However, complaints also may be made by a letter that describes the alleged misconduct and includes or references other information that may be relevant, such as key dates, case numbers, copies of exhibits and other documents, or transcripts of proceedings. The Commission will consider complaints in any format. Finally, the Commission, on its own motion, also may initiate a complaint.

The Executive Director screens all complaints. An example of a complaint that usually survives the initial screening would involve an inexplicable or unreasonable delay by the court in issuing a decision on an important motion or in rendering a final judgment.
However, Rule 13 provides that "complaints that are frivolous, unfounded, solely appellate in nature, or outside the jurisdiction of the Commission shall be dismissed." The most common example of a complaint that would be dismissed is a claim that a judge’s erroneous ruling should be equated with judicial misconduct. Even if such a ruling can be shown to be in error—for example, failure to adequately consider newly discovered evidence that might result in a new trial, an incorrect credit for time served, a miscalculation of overdue child support, an abuse of discretion in establishing child parenting arrangements, a misapplication of a statute, or an incorrect reading of established precedent—such a determination by the Commission would infringe on the jurisdiction of the appellate courts.

It can be difficult for a complainant, particularly a pro se litigant, to understand the respective functions of trial and appellate courts in the adjudicative process, and to distinguish potentially erroneous rulings from questions of judicial misconduct under the Rules and the Code.

Complaints that survive the initial screening by the Executive Director are reviewed further by the Commission. If the Commission deems there is sufficient cause to proceed on the complaint, it undertakes a preliminary investigation and, under Rule 14, gives notice to the judge of the investigation, the nature of the charge, and the name of the complainant (or that the Commission commenced the investigation on its own motion); and provides the judge an opportunity to respond or appear.

The investigation would include inquiries appropriate in the circumstances, such as an examination of court records and transcripts, interviews with potential witnesses, and requests for further information from the complainant. However, as provided in Colo. Const. art. VI, § 23(3)(g), "all papers filed with and proceedings before the Commission" are confidential, unless and until such time as the Commission recommends formal action to the Supreme Court.

The Commission schedules six meetings each year and holds special meetings when necessary. If circumstances warrant, meetings are held by conference call.


Review of Complaints Received in 2008

In addition to written complaints, the Commission receives telephone inquiries from potential complainants who are seeking information or who are requesting copies of the complaint form or the Rules. When appropriate, callers are redirected to the Commission on Judicial Performance, to ARC, or to municipal court judicial disciplinary commissions. The Commission also receives occasional questions from the judiciary regarding the application of the Rules and the Code. The Executive Director manages the intake of complaints and the interaction with callers.

Through December 31, 2008, the Commission received 217 written complaints. These 217 complaints concerned the conduct of judges and justices sitting in each of the twenty-two judicial districts, the Colorado Court of Appeals, and the Colorado Supreme Court. The 217 complaints represented an increase over the 179 complaints received in 2006 and the 211 complaints received in 2007.

Currently, the judiciary comprises 234 trial court judges (district, juvenile, probate, and county court); twenty-three appellate judges; and seventy senior judges. Of the 217 complaints:
> 163 were based on situations that arose in the criminal law docket
— 147 of which were filed by inmates in Colorado correctional facilities
> 30 involved litigation in the general civil docket
> 14 involved domestic relations cases
> 3 involved juvenile court matters
> 4 involved probate matters
> 3 involved off-the-Bench conduct.
 
In addition to inmates, the complainants included:
> 52 litigants, many of whom appeared in court pro se
> 7 attorneys, who alleged delay in docket management or judicial demeanor issues
> 9 people who were not parties
— family members or courtroom observers
> 1 judge who self-reported personal misconduct to the Commission
> 1 case initiated by the Commission on its own motion.
 
Subject Matter of Complaints

The subject matter of the complaints in 2008 included 207 instances where the complainant was dissatisfied with a judge’s factual or legal rulings. Because these were appellate matters, they were dismissed.
10 of the 217 complaints proceeded beyond the preliminary investigation to formal action by the Commission
  • 4 involved allegations of unreasonable delays in issuing rulings

  • 2 involved courtroom demeanor

  • 1 concerned allegations of sexual harassment of staff

  • 1 concerned a traffic violation involving alcohol

  • 1 involved participation in extra-judicial activities

  • 1 concerned a judge’s obligation to report an attorney’s misconduct.

 
Corrective Action

Corrective action was taken to address judicial misconduct in four instances. The corrective action taken in four cases compared with corrective action taken in two such cases in 2006 and one in 2007. There were two retirements while complaints were pending in 2006 and none in 2007. There was one retirement for medical disability in each of 2006 and 2007, but none in 2008.

The sanctions included:
3 private letters concerning violations of the Code
  • 1 letter of admonition
  • letter of reprimand
  • letter of censure.

One judge was directed to seek professional training in judicial demeanor and temperament; one judge voluntarily retired; two complaints were dismissed after further investigation indicated that there was no misconduct; and three complaints were carried over for the Commission’s consideration in 2009.


Private Disciplinary Letters

There are three types of private disciplinary letters: (1) a letter of admonition; (2) a letter of reprimand; and (3) a letter of censure.

Admonition. A letter of admonition warns a respondent–judge that his or her conduct suggests an appearance of impropriety falling outside the expected minimum standards of judicial conduct.

Reprimand and censure. Letters of reprimand or censure address violations of a more serious nature. These letters express the Commission’s determination that there has been a direct violation of the Code and that such conduct is unacceptable, but that the conduct does not merit a formal hearing or recommendation to the Supreme Court for public discipline or removal from office.
Private letters of discipline in recent years have been directed at the following misconduct:
> engaging in ex parte contact with litigants or attorneys
> delays in issuing decisions
> loss of temper or control of the courtroom
> inappropriate remarks to the media regarding the conduct of an attorney
> hearing a case, as a part-time judge, involving a client of the judge’s law firm
> intemperance and verbal abuse toward an employee and a customer of a business establishment
> driving while impaired or under the influence of alcohol
> sexual harassment of a court employee.
 
Proactive Measures

The Commission participates in judicial education programs to inform new and continuing judges of their ethical duties and responsibilities under the nine Canons of the Code and to explain the Commission’s responsibilities for oversight and discipline under the Rules. The Commission also takes steps to remind judges of their docket management obligations.

The Commission is undertaking a comprehensive review of its Rules, policies, and procedures, with a view to becoming more transparent in its operations, providing more public information about the Commission’s responsibilities, facilitating the complaint filing process, and providing more judicial education and rehabilitation options. Any changes will continue to respect the principles of confidentiality set forth in the Constitution and in CRS §§ 24-72-401 and -402.


Conclusion

As of December 31, 2008, the Commission’s membership comprised the following persons:
 
Member City Category of
Appointment
Federico C. Alvarez Denver Attorney
Stewart Bliss Denver Citizen
James H. Hiatt Ft. Collins District Judge
John M. Holcomb Denver Citizen
Charles T. Hoppin Golden County Judge
Kathleen Kelley Meeker Citizen
David Kenney Denver Citizen
Martha T. Minot Durango County Judge
James Spaanstra Lakewood Attorney
Douglas R. Vannoy Ft. Morgan District Judge

The Commission operates independently from the Supreme Court and other divisions of the Judicial Branch, but with their cooperation and support. The Commission performs a vital role in maintaining a fair and impartial judiciary. Because the judicial selection and retention system in Colorado is based on merit selection rather than on partisan judicial politics, it is important that the Commission operate effectively and with the public’s confidence.

The Commission recognizes the services of its longtime Executive Director, Rick Wehmhoefer, who retired on December 31, 2008. The Human Resources Division of the State Court Administrator’s Office assumed temporary responsibility for the operation of the Commission’s office until February 11, 2009, when William J. Campbell accepted the Commission’s appointment to serve as Interim Executive Director, following a thirty-seven-year career as a practicing attorney.

Correspondence with the Commission should be addressed to: William J. Campbell, 899 Logan St., Ste. 307, Denver, CO 80203. The Commission’s telephone number is (303) 894-2110.

Feb. 11, 2009 - Commission names William J. Campbell as interim executive director

Their press release is here.

Jan. 14, 2009 - "Dr. Rick" has [finally] left the building

It's about friggin' time!

According to a job posting by the Colorado Judicial Department, Rick Wehmhoefer was to abandon his post on January 1 after twenty-three years of disservice as Executive Director and General Counsel for the Commission for the Abolition of Judicial Discipline.

It comes no surprise to me that the voice mailbox of Wehmhoefer, the first male telephone operator in the Bell system, is currently full and cannot accept any new messages. He rarely answered or returned calls during the decades that he held the office, presumably because he was busy typing away at the go-pound-sand letters he routinely sent to all complainants.

Pay for the position is a paltry $128,598, plus benefits. Applicants must be:
  • licensed to practice law for the previous five years;
  • eligible to practice law in Colorado at the time of application;
  • be willing to abandon private practice of law for the duration of employment; and
  • be willing to rebuff complainants, stifle meritorious complaints and obstruct the revelation of or discipline of judicial misconduct unless otherwise provided with a directive from the judiciary to fulfill a sub silentio political agenda.


According to Mindy Masias, Wehmhoefer retired. Both she and Eric Brown are the interim directors until the position is filled.

This Web page is his legacy.

Further reading:

May 28, 2008 - Wash Park Prohet Blog: "Judicial Discipline in Colorado"

The Commission claims in its annual report that it " performs a vital role in maintaining a fair and impartial judiciary." The reality is rather more modest. Basically, the Commission appeals to the consciences of judges who behave badly to do the right thing of their own accord and is the designated messenger to tell judges that the time has come for them to retire due to disability. The Commission also gives uphappy litigants a futile place to vent . . . it is still largely ineffectual at addressing the problem of problem judges. The vast majority of judges in the past 41 years have been good ones, but the disciplinary numbers from the Commission vastly understate the problem.

What becomes of all the complaints against judges?

According to the "July 2006 Colorado Judicial Institute" newsletter, "Accountability is already built into the system, with regular retention elections when the public has the right to remove any judge with a simple majority of votes, performance reviews by the Judicial Performance Commission, and a Commission on Judicial Discipline that can remove judges for improper conduct." Id. at 2.


So, how many judges have been removed from office by the retention system that the Institute claims has served us so well? How many voters know anything at all about the judges on the ballot box that they are asked to retain with a Yes/No vote?  Before that can be answered: how could voters learn much at all about these judges, given that entire categories of cases are now sealed from public view (see our Public Access to Court Records page)?"

 

Ivan Moreno (The Rocky Mountain News) asked the same question in his June 18, 2007 article, Judges' conduct: A veil of secrecy.


A cursory examination of the complaints and responses, hereinbelow, provides the answer. Additionally, we encourage readers to review the (2005) Annual Report of the Commission on Judicial Discipline with the following question in mind: How many judges were removed from office for improper conduct? (Allow us save you some time. The answer is zero). In fact, out of the 179 unique matters allegedly reviewed by the Commission, only three (3) resulted in any discipline, which discipline was "private" (simply meaning that the public was prevented from learning about the offense[s] or the alleged discipline).

What Standard of Review is used in evaluating grievances by the Commission for the Abolition of Judicial Discipline?

In this complaint to Chief Justice Mullarkey on unrelated issues and, which was drafted by a KnowYourCOURTS.com contributor,[n.1] the complainant inadvertently revealed the Standard of Review that Rick Wehmhoefer used.


According to his account of the telephone call, Wehmhoefer debated him about the merits of the divorce case from which his complaint arose: He claims that Wehmhoefer asked him, “If I were [sic.] to talk to your wife, what would she say about you? . . . What do the blogs say about you? . . . Are[n’t] there two sides to every story? Just answer the question –Are[n’t] there?”


He also claims that Wehmhoefer advised him that he should not have dismissed his appeal (which appears to have been legal advice).

[n.1] The contributor has asked to remain anonymous because of fear of retaliation from the divorce court judge with respect to his parenting time.

Conflating collateral attacks on judgments with valid judicial misconduct complaints

Some have alleged that a common practice of judicial misconduct boards and agencies is to assert that the complainant has no valid misconduct complaint, because it is merits related and, therefore, is an impermissible collateral attack on a judicial decision.  Indeed, Wehmhoefer asserts in many or most of his responses that:

The Commission of Judicial Discipline reviews complaints about ethical Conduct by state judges. However, because it is not a[n appellate] court, it does not have the authority to review legal or factual aspects of a person's case. It also does not have the authority to review the rulings, orders or decisions that a judge may make [or refrain from making] when presiding over a person's case. All of those matters can be reviewed only through appellate process."

Some may interpret Wehmhoefer's boiler-plate statement as pretextual, specious and, perhaps, insulting to the intelligence of the complainant. If nothing else, it is predictable, as Elana Sassower explains in Without merit: The empty promise of judicial discipline, 4 Massachusetts School of Law, The Long Term View 1  at 90:

These [judicial discipline commissions] frequently dismiss, out-of-hand, complaints of on-the-bench misconduct, including abusive courtroom behavior and fabricated judicial decisions. They do this on the pretense that they have no authority to review "the merits of matters within a judge's discretion, such as the rulings and decisions in a particular case," which they assert can only be reviewed by an appeal to an appellate court.

Id. at 92

One take on the Separation of Powers Doctrine: defy the will of the General Assembly

Here is a memorandum signed by a division clerk to his district court judge, regarding a pro se litigant's efforts to unseal a domestic case. The clerk wrote, "if you ignore problems long enough, they often go away," and attached an order he had drafted for the judge to sign. The clerk scribbled on the memorandum,"I wrote an order -see if you like it."

Indeed, if you spend enough time looking through cases on this site (e.g., district court, El Paso County, # 01DR2408; Jefferson County combined court # 99DR3717, inter alia), you would discern a pattern of judges ignoring the good faith applications for relief by pro se parties, seemingly expecting that they will eventually go away. Ensuring that judges are in compliance with Canon 3(A) and C.R.S. § 13-5-135, we thought, falls to the Commission on Judicial Discipline.  However, it appears to us that the Commission does not act on such complaints, despite representations to the contrary in their Annual Report.

We know that citizens may not defy the will of the legislature (violate the statutes).1   We have been led to believe that public officials are not above the law (`though that assertion appears to have been placed in dispute by evidence found throughout this Web site).

What about State agencies?  Specifically, is Rick Wehmhoeffer and the Commission on Judicial Discipline free to disregard the law?  For example, may the Commission disregard or deny the substantiated and truthful complaints of a citizen-petitioner, which complaints contain allegations that a judge has failed to timely rule on a motion, pleading or matter before him, as required by Colo.R.Civ.P. 97, Colo.Rev.Stat. § 13-5-135 and Canon 3A)?

We know, according to the Commission's report, that it allegedly issued private letters of discipline for, "Delayed issuing decisions in cases pending before the judges, violations of Canon 3 A. (5), Colorado Code of Judicial Conduct" (Id. at 10) under it's stated responsibility and power to, "investigate and act upon allegations of a judge's . . . willful or persistent failure to perform judicial duties . . . [or] . . . Any conduct that constitutes a violation of the Colorado Code of Judicial Conduct." Id. at 2. 

We have learned that writing the Commission members will result either in no response from nine out of ten of the members and a hostile response from the Chair, Mike Norton, husband of the former lt. Governor (see infra).

Well, perhaps the other remedy is a law-suit for prospective, injunctive relief, alleging a "procedural injury," for the agency's failure to follow agency rules, state statutes and the applicable constitutional provisions? Wrong, again: the Colorado Supreme Court ruled in Higgins v. Wehmhoefer, 13 P.3d 837, 838 (Colo. App. 2000) that, "district courts do not have subject matter jurisdiction to compel the Commission or its Executive Director to investigate a complaint alleging judicial misconduct." 

Therefore, unless you conclude that a remedy may be available in the nature of mandamus (under Rule 21, original jurisdiction, Colorado Supreme Court), it does appear that, "Yes," the Commission on Judicial Discipline and Rick Wehmhoefer may defy the will of the General Assembly and there's very little that can be done about it. 

Conclusion:

 Sections 13-5-135 and 13-5-136 enacted by our General Assembly are meaningless and unenforceable.2

_____________________________
1 For the sake of this commentary, we assume that violations of civil statutes may result in injunctive relief; that violations of injunctions may result in fines or jail time under Rule 107 (contempt); and that violations of criminal statutes may result in any number of penalties, including jail time, fines and a panoply of other creative sentencing remedies.

2 If you become aware of any instance where 13-5-136 (forfeiture of salary for failure to timely rule) has been enforced in Colorado, please contact tipline@KnowYourCOURTS.com.  We are aware of none.

The Shroud of Secrecy Surrounding the Judicial Disciplinary Process

Is the public entitled to be informed as to whether the Commission accomplishes either or both of the two prongs of the concept of judicial discipline (i.e., (1) to take remedial action to enforce the Colorado Code of Judicial Conduct; and (2) to instruct Colorado state judges in aspects of proper judicial conduct and behavior)? Do Coloradoans have the right to be informed by some means other than the Commission's annual report published in the Colorado Lawyer?

I believe the answer, in part, is found in Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 831, 845-46 (1978), where the U.S. Supreme Court invalidated a sanction imposed for publication of an article identifying judges whose conduct was being investigated, despite the state's provision for confidentiality in judicial discipline proceedings.  The collective weight of the decisions of the Supreme Court teach that free discussion of public policy issues and criticism of public officials cannot be so circumscribed.  See Near v. Minnesota, 283 U.S. 697, 717, 722 (1931).

As noted above on this Web page, Rick Wehmhoefer published a treatise in 1988 entitled "Confidentiality of Judicial Disciplinary Proceedings," which appeared in The Colorado Lawyer, the official publication of the Colorado Bar Association. R. Wehmhoefer, Confidentiality of Judicial Disciplinary Proceedings, 17 Colo.Law. 1043 (1988). The treatise discusses Colo. Const. Art. VI § 23(g) and Colo.Rev.Stat. § 24-72-401.

The former provides:

Prior to the filing of a recommendation to the supreme court by the commission against any justice or judge, all papers filed with and proceedings before the commission on judicial discipline or masters appointed by the supreme court, pursuant to this subsection (3), shall be confidential, and the filing of papers with and the giving of testimony before the commission or the masters shall be privileged; but no other publication of such papers or proceedings shall be privileged in any action for defamation; except that the record filed by the commission in the supreme court continues privileged and a writing which was privileged prior to its filing with the commission or the masters does not lose such privilege by such filing.

The latter provides:

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.

Section 24-72-402 further provides that:

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.

According to Dr. Rick:

the parties to all disciplinary proceedings before the Colorado Commission are not allowed to discuss the nature of the complaint nor the outcome of a hearing with people outside of the proceeding except their attorneys. This confidentiality rule applies to members of the Commission, Commission staff, complainant, judge and any attorneys or witnesses involved in the proceedings.

I disagree. In fact, I think Dr. Rick missed a week or two of his Constitutional Law class (while the First Amendment was being covered). For this reason, he erroneously concluded all of his memoranda to complainants with the following statement:

Please be reminded that this matter is strictly confidential pursuant to Article VI, Section 23(3)(g), Colorado Constitution, and sections 24072-401 and 402, Colorado Revised Statutes.

Even if these provisions could pass constitutional muster, I also think that he missed one or more of his classes covering statutory construction. Significantly, the enforcement provision (the $500 fine) applies only to members of the commission or a master appointed by the Supreme Court or anyone providing assistance to the a Commission member or master. It doesn't apply to complainants or respondents or anyone else who has learned of the complaint or proceedings. (If it did, the General Assembly would have inserted this language into the statute). Additionally, both the Constitutional provision and the statute refer to "papers filed" (past tense). How could the statute prohibit discussion of a complaint or judicial misconduct that took place before the filing of the complaint.

I decided to do a cursory case law search in Colorado to confirm my conclusions. I found only one published case discussing this statute. The Colorado Supreme Court observed in In re inquiry concerning Lichtenstein, 865 P.2d 204, 208 (Colo. 1984) (en banc) that, “This statute also leaves unanswered several questions relating to the scope and duration of the confidentiality and privilege applicable to proceedings before the Commission.”

While the statute may leave unanswered questions as to the intent of the General Assembly, the U.S. Supreme Court has left little doubt as to the constitutionality of such restrictions: In Landmark Communications v. Virginia, 435 U.S. 829 (1978), the Court held that the First Amendment prohibits criminal punishment of a newspaper for publishing truthful information concerning the confidential proceedings of a judicial conduct commission. The Court further reasoned that "there is practically universal agreement that a major purpose of the First Amendment was to protect the free discussion of governmental affairs." Id. at 839. And see Roy Simon, Confidential Disciplinary Proceedings and the First Amendment (Part I & Part II).

Further reading: Moreno, Ivan, Judges Conduct: A veil of secrecy, The Rocky Mountain News (June 18, 2007); Secrecy and Judges: Shine Light on Misconduct, The Rocky Mountain News (editorial, June 24, 2007). And see Gag rules try to silence citizens who file complaints against judges, The Legal Reformer, Halt.org (spring 2008) at 5.

Elsewhere on this site, we have a page covering the unjustified sealing of court records from the public.

Did you know about . . .

 




 for cases, see:



and see Saturday, October 26, 2002 letter to the Editor of the Steamboat Pilot & Today (originally found here, describing "years of delays" attributable to the dilatoriness of one particular judge

Fun facts about "Dr." Rick

Dr. Rick has the "distinction" of being the first male telephone operator in the Bell system. (Read about it here).  However, `though Dr. Rick only rarely answers his own office phone these days and, while some may question what Dr. Rick has actually been doing these past 20+ years in his position as Executive Director of the Judicial Discipline Commission (other than mailing out pro forma denial letters), we understand that he is available for interviews to tell, "tales of stardom and seventies sexiness."

Other Web sites with information about our Commission for the Abolition of Judicial Discipline


See our June 19, 2007 ColoradoPols blog entry here.

Ken Smith has posted a comprehensive editorial Web page (modeled after KnowYourCOURTS.com) regarding alleged corruption within Colorado's judicial oversight mechanisms.

Another page, found here, hosted by Chuck Corry, lists various Colorado agencies and resources including the following:

"Judicial discipline commission - This is widely regarded as a joke."

At another location on the same page, there is the following entry:

Commission on Judicial Discipline - Complaints about judges. Mostly what the EJF hears are complaints about this useless and ineffective commission."

See also the 4-part series on the blog, The Colorado Index, (part I   part II  part III  part IV).

And see http://www.court-house.com/StewartPerjury.htm  (complainant alleges that he, "has tried to appeal to Mr. Wehmhoefer Executive Director and General Counsel for Commission, Colorado Commission on Judicial Discipline without success.  I guess charges against a Judge have to reach a few degrees below murder before this agency will react").

REFERENCES

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Complaints

What happens if the Commission ignores [a] complaint[s], disregards the statute[s] and the complainant redirects the complaint/concerns to the Chair of the Commission on Judicial Discipline?  Click here to find out. 

 

Complaints

Response (if any)

June 02, 2009 Complaint (in re Jack W. Berryhill)

April 21, 2009 Reply in support of complaint
February 27, 2009 Complaint

April 29, 2009 response from Wlm. J. Campbell

March 31, 2009 Decision from Commission on Judicial Discipline

June 02, 2009 Request for reconsideration

January 23, 2009 Complaint (in re Jane Tidball, First Judicial District judge)

March 31, 2009 Decision from Commission on Judicial Discipline

March 30, 2007 Complaint to all ten members  of the Commission of Judicial Discipline

 No Response

January 4, 2007 Complaint

 No Response

October 23rd, 2006 petition to the Commission on Judicial Discipline

 No Response

July 11, 2006 supplement to follow-up

July 3, 2006 follow-up

March 31, 2006 Reply in support of complaint

March 10, 2006 Reply in support of complaint

February 2, 2006 Complaint

July 12, 2006 Response
April 12, 2006 Response
February 10, 2006 Response

May 19, 2004 Complaint

March 24, 2004 Acknowledgment

May 5, 2004 Complaint

May 12, 2004 Response

unavailable at this time (we're working on it)

March 14, 2004 Response

March 11, 2004 Reply in support of complaint

March 3, 2004 Complaint

March 08, 2004 Response


August 18, 2003 Complaint

August 15, 2003 Complaint

August 15, 2003 Complaint

August 14, 2003 Complaint

August 12, 2003 Complaint

August 19, 2003 Response

March 22, 2003 Reply in support of complaints

 

Original two complaints unavailable

March 10, 2003 Response

January 9, 2003 Acknowledgment

December 30, 2002 Acknowledgment

March 27, 2001 Reply in support of complaint

Original complaint unavailable

April 2, 2001 Response

March 12, 2001 Response

June 6, 2000 Complaint

unavailable

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last updated: 06/03/2009

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