A recent op-ed in the Sentinel encourages a “no” vote on Amendment H. A no vote leaves in place a 60-year old system of judicial discipline that is out of sync with other states; that offers too little information to complainants and members of the public; and that was rightly called into question by years of reporting about allegations of impropriety in the Colorado judicial branch.
A no vote also rejects the testimony of survivors of judicial misconduct, attorneys who want a modern system of judicial discipline for the sake of their clients, and retired judges with the courage to speak out about issues they saw in their careers.
Voters should know both how Amendment H comes to the ballot and what it does to change existing, 60-year-old laws about judicial discipline.
Judicial discipline in Colorado is based on language in our state constitution, so it is necessary to amend the constitution to update disciplinary procedures. This is neither fast nor easy (and it shouldn’t be), and necessarily involves voters statewide (and it should).
In 2022, Democratic and Republican leaders of the judiciary committees in both the state House and the Senate worked together to pass legislation to begin to create more independent judicial oversight and to empower a bipartisan interim committee to work on constitutional change. That legislation passed with 94 out of 100 votes.
The interim committee met throughout the summer and fall of 2022. Notwithstanding significant Democratic majorities in the legislature, the interim committee was intentionally evenly bipartisan – 4 Democratic and 4 Republican members. The chair was a Democrat and the vice-chair was a Republican. Both measures advanced by the interim committee – one of which is now Amendment H – had unanimous bipartisan support and later earned the support of more than 95 out of 100 legislators in the 2023 full session of the legislature.
Amendment H proposes changes in three significant aspects of judicial discipline: independence from the judicial branch; public availability of information; and availability of information to a person who raised a complaint.
For decades, the Colorado constitution has put the Colorado Supreme Court largely in charge of judicial discipline, from appointing “special masters” to having wide latitude as to what sanctions to impose at the end of a disciplinary proceeding. The challenges of this kind of system were on display recently when a proceeding involved a former chief justice of the supreme court.
Amendment H reduces the role of the Colorado Supreme Court. Court-appointed “special masters” are eliminated, and a new “judicial discipline adjudicative board” is responsible for the later phases of any judicial discipline matter.
The board is composed of four judges, four attorneys, and four Coloradans who are neither judges nor attorneys. For each judicial discipline matter, a panel of one judge, one attorney, and one civilian is selected to determine the appropriate disciplinary response.
In both the full board and any panel, judges are a numerical minority – that is by design. The supreme court has a much reduced role compared to our decades-old system, limited to hearing appeals from panel decisions. Amendment H requires that in an appeal, the supreme court is required to give significant deference to the factual findings and the disciplinary decisions of the panel. In other words, the supreme court may not simply substitute its own conclusions in those matters.
Another critique of our existing system has been lack of access to information by the public and the press. This is because the state constitution requires confidentiality until a discipline matter reaches the supreme court — which is at the very end of the discipline process. Amendment H instead declares disciplinary proceedings open from the beginning of proceedings before the new adjudicative panels — earlier in the process than is presently the case.
Finally, years of bipartisan work identified that our decades-old system does not do a good job keeping people who have initiated a judicial discipline complaint informed about what is going on.
Many years ago, Colorado voters recognized the importance of “procedural justice” by passing the Victim Rights Amendment, which requires that crime survivors be notified about things like sentencing hearings. But these notification provisions don’t apply to judicial discipline, so survivors of judicial misconduct have too often found themselves in the dark, even in very serious matters.
Amendment H corrects these shortcomings by allowing release of otherwise confidential discipline information to complainants. Amendment H also allows the release of aggregated data about judicial discipline matters, so the public can track overall trends.
In our divided times, Democrats and Republicans often don’t agree on much. But by a nearly unanimous vote, legislators from Aurora to Yuma County agreed, after extensive deliberation, that Amendment H represents an important set of reforms to judicial discipline in Colorado. Please vote yes.
Rep. Mike Weissman represents House District 36 in Adams and Arapahoe Counties. He served on the 2022 legislative interim committee on judicial discipline and chaired that committee for part of its work. He is a candidate for state Senate District 28.