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.


Feb. 13, 2010 - former Colorado Judicial Performance Commission member opines "There has been a failure of real performance evaluation and a lack of analytical content in the write-ups for the voters." Ya think?

Perhaps, the real story here is why The Denver Post, which is currently leasing office space to the Colorado Supreme Court, published this editorial by William Banta in Saturday's print edition, but not on the Internet.

An electronic version, courtesy of ClearTheBenchColorado.org, appears below, and a scanned copy of the article is here. Compare to the 8/10/2008 op-ed by former justice Rebecca Love Kourlis, "The politics of choosing judges."

Evaluating the performance of justices

By William M. Banta

The opportunity for Colorado voters to decide whether a state Supreme Court justice is doing a good job doesn’t come around very often, only about once every 10 years. This year, four out of the seven justices who sit on the Colorado Supreme Court are up for retention.

Ten years is a long time for any public servant to go without a job review, and the 10-year election cycle is about the only accountability our Supreme Court justices have to the people of Colorado. The voter’s responsibility is determining whether or not to retain a justice is all the more important because this event occurs so infrequently.

Under our form of government, the function of the Colorado Supreme Court is to decide cases. When it comes to the job performance of individual justices, the written decisions of the court provide the key to their performance.

In the last few years, the Supreme Court (including all four members who are up for re-election) has weighed in heavily on important constitutional questions such as taxes, schools, and the proper role for courts (vis-ŕ-vis the legislative or executive branches of government).

The court has published controversial written decisions on these and other issues that impact Colorado citizens. Because the court’s recent rulings about taxes, schools and judicial authority are not straightforward in their reasoning, what voters are going to want for 2010 is some analysis of the decision-making.

In evaluating Supreme Court cases, the decisions should be reviewed for reasoning and clarity. The court’s conclusions should also be examined for adherence to the rule of law. For instance, when the language of the Colorado Constitution reads one way but a justice writes a decision or supports an opinion that interprets the constitution in the opposite way, there’s a legitimate question whether the justice colored outside the lines or adhered to fundamental principles. And that’s a job-performance issue that voters would want to consider.

In Colorado, there is a state commission on judicial performance that publishes its consensus of each justice’s performance. For each 10-year retention cycle, the commission is required to evaluate job performance, write up a narrative, and make a recommendation for the voters. In the past, the commission’s recommendation has always been that the voters should re-elect or retain a justice.

There has been a failure of real performance evaluation and a lack of analytical content in the write-ups for the voters. If narratives provide meaningful information about how a justice has decided cases, there will be accountability and the system will work as it is designed to do. Too often in the past, narratives have amounted to complimentary resumes instead of job performance evaluations. Some commentators and observers [e.g., KnowYourCourts.com]have denigrated the narratives as a “rubber stamp” exercise for retaining judges.

Now would be a good time for the commission to write up substantive performance evaluations for the justices who seek re-election. It would help the credibility of our judicial merit selection/ performance evaluation system.

The Colorado system for appointing, evaluating, and retaining or not retaining Supreme Court justices depends on voters receiving relevant, substantive and vigorous information about individual job performance. That’s what voters will need for the elections in November.


(William Banta was a State Judicial Performance Commission member in 2007 and 2008 and spent seven years on the 18th Judicial District Performance Commission before that.)

November, 2009 - article: "The 'New' Commission on Judicial Discipline" (pssst:  they must think we're all idiots)

Read The New Commission on Judicial Discipline (38 Colo. Law. 11).  For some preliminary insight, note that its author is Roxanne Bailin.

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


(move curser over scrolling text to pause or click on any hyperlinks) click here to view as html


 

 

 

 

Important Notice: regarding any and all materials sourced from or related to The Colorado Lawyer:

(reminder - it is site visitors' responsibility to verify authenticity, accuracy, applicability of statutes, rules, regulations, etc. - see Disclaimer)


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)

July 6, 2009 response from Wlm. J. Campbell

July 22, 2009 third reply in support of complaint
July 8, 2009 second Reply in support of complaint
April 21, 2009 first reply in support of complaint
February 27, 2009 Complaint

Aug. 3, 2009 response from Wlm. J. Campbell
July 16, 2009 response from Wlm. J. Campbell
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


** If you have information, corrections or updates regarding this site, please contact us: tipline@knowYourCourts.com

 

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Tags: Colorado, judge, judicial misconduct, judicial discipline, disability, retirement, retire, resign, resignation, William J. Campbell, William Campbell, Bill J. Campbell, Bill Campbell, Rick Wehmhoefer, Richard Wehmhoefer, Richard A. Wehmhoefer,John M. Holcomb, Cindy Hull Bruner, Wendy Evans, C. Suzanne Mencer, Martha Minot, Larry Naves, Michael J. Norton, Mike Norton, Joseph Samuel, James Spaanstra, Jim Spaanstra, Doug Vannoy, Judicial Discipline Commission, secrecy, confidential, confidentiality, 13-5-136, 13-5-135, 24-72-401, 24-72-402, 17 Colo.Law. 1043, C.R.S., Colo.Rev.Stat., Colorado Revised Statutes, accountability

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last updated: 01/03/2010

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