At least three Colorado Supreme Court justices, including Chief Justice Brian Boatright and his successor, Justice Monica Márquez, quietly but persistently have been lobbying lawyers and lawmakers about concerns they have with proposed legislation that aims to create an independent office of judicial discipline the court would not control.
In a highly unusual show of political pressure, the justices have been pressing members of the specialty bar associations — the Colorado Women’s Bar and the Sam Cary Bar Association among them — and a handful of legislators about their concerns with Senate Bill 22-201, which could ultimately remove the Colorado Commission on Judicial Discipline from under the Supreme Court’s oversight and form a new office free of its influence, according to several people familiar with the meetings and conversations.
Each one told The Denver Gazette that they were uncomfortable with visits from the justices and with discussing their problems with the proposed legislation.
“When those at the top of the system are telling you to have a certain opinion, I mean, holy Moses!” said one.
Another said they could not recall a time when a sitting Supreme Court justice made such an appeal, calling it “bizarre,” “very unusual” and “strange.”
“I’m concerned they are not remaining independent,” said another.
One legislator who agreed to speak publicly — Sen. Julie Gonzales, vice chair of the Senate Judiciary Committee that on Thursday is scheduled to take up the bill — recalled a March meeting with Boatright and Márquez in which the two expressed a desire to see the bill, which had not been introduced yet, put off.
Gonzales said they also said they worried the Supreme Court would have to take up the constitutionality of any changes the legislature makes to how judicial discipline currently works.
The bill was introduced late Monday.
“Chief Justice Boatright stated that another concern was that they did not want to find themselves in the position of ruling that this bill was unconstitutional, and that he did not want to create a constitutional crisis,” according to notes Gonzales took of the meeting, copies of which The Denver Gazette acquired under an open-records request.
On Wednesday, Boatright took the additional step of emailing the state’s 400 judges to encourage them to let legislators know of their concerns with the bill.
“Our ability to advocate on behalf of the (Judicial) Department is strengthened when we speak with one voice and when we work together,” Boatright wrote in the email, a copy of which was acquired by The Denver Gazette.
“I know that you have concern about changes to the judicial discipline process,” Boatright wrote. “So do I. As a state, we need to be deliberate and thoughtful in considering changes to our existing constitutional process to ensure that any new proposals balance accountability, transparency and fairness.”
Boatright said he planned to testify before the Senate committee hearing, which Gonzales will chair because Sen. Pete Lee, who heads the committee, is the bill’s primary sponsor.
Boatright also told the jurists that Lee has not sought the chief justice’s input.
“We had hoped to have a more meaningful dialogue with the prime bill sponsor prior to introduction, but he has largely not engaged with us or sought our feedback in the process,” Boatright wrote.
The politicking comes just after public statements the court and Judicial Department have made supporting the legislation, saying it welcomed an independent body to investigate and discipline judges.
A Judicial Department spokesman said justices "routinely speak" with legislators when any proposed law "impacts the administration of the courts and probation," noting that the Colorado Code of Judicial Conduct makes an allowance for it.
"Department leadership has an obligation to transparently raise concerns with legislators early in the legislative process," spokesman Rob McCallum wrote in an email to The Gazette. "Sometimes this outreach comes through department staff or the State Court Administrator, and sometimes it comes through justices or judges."
Several people told The Gazette that the justices have privately said in meetings over the past several weeks that the legislature might be overstepping its bounds by meddling with an office that is created by the Colorado Constitution.
Several sources refused to be identified publicly because they feared reprisal, explaining they are attorneys who could appear before the justices and whose professional licensing is controlled by the Office of Attorney Regulation Counsel, which is overseen by the Supreme Court.
Gonzales, a paralegal, said the meeting was unsettling, with an “extraordinary power differential” sitting before the state’s top jurists.
“I think that evening I was really surprised by it,” she said in an interview with The Gazette. “In the days following, I mellowed out about it, because I do believe that people who are impacted by policy should have the opportunity to speak to said policies.
"However, what I struggle with is that it’s exceptionally rare that judges (personal) opinions are questioned, and I think that’s a bit of the tension that I felt.”
The Judicial Department normally sends its legislative liaison, Terry Scanlon, to speak with legislators about any proposed or upcoming bills.
The specialty bar associations each represent a specific group of attorneys. For example, the Sam Cary Bar Association represents Black lawyers and judges and the Asian Pacific American Bar Association of Colorado represents attorneys from that segment of the community.
The leaders of the specialty bar association groups collectively gather as the President’s Diversity Council through the Colorado Bar Association. That council was scheduled to meet Wednesday and hear a presentation from the judicial discipline commission about the bill, a meeting the council requested following approaches by the justices, people familiar with the meeting said.
At the root of the bill are several investigations into allegations of judicial misconduct that went unpunished over several years. Those allegations came from a former Judicial Department official who was being fired and threatened a tell-all sex-discrimination lawsuit.
To prevent the lawsuit, the department allegedly gave the official, former chief of staff Mindy Masias, a $2.5 million contract for judicial training. The information Masias would allegedly reveal in a lawsuit was contained in a two-page memo that was read to then-Chief Justice Nathan “Ben” Coats in a January 2019 meeting in which it was decided to award the contract. The contract was subsequently canceled.
In his letter to the state’s judges, Boatright said he thought the legislation should be put off until the investigations are completed, a sentiment Sen. Gonzales said the chief justice expressed to her as well.
“Those investigations will provide important insight into issues that need to be addressed in the disciplinary process, and the reports are expected to include specific recommendations for change,” Boatright wrote. “It makes little sense to try to ‘fix’ perceived problems before the issues are actually identified.”
Judicial Department spokesman McCallum added: "An interim committee that receives input from a diverse group of stakeholders in a deliberate and transparent fashion is best positioned to make meaningful reform. So no, the Chief Justice and the court are not opposed to reform, including reform of our system of judicial discipline, as long as it is done thoughtfully and includes many important voices in the process."
Boatright explained in his email that an eight-person committee the Senate bill creates to look deeper into changing how judicial discipline occurs should be larger. The committee would consist of four state senators and four state representatives.
“And although I welcome the concept of an interim committee, I believe that committee should include representatives from everyone who has a stake in this process, including judges, the governor’s office, the CBA (Colorado Bar Association), the CWBA (Colorado Women’s Bar Association) and affinity bar organizations, and local and national experts on judicial branch operations,” Boatright wrote. “Currently, the bill contemplates a committee comprised solely of legislators.”
Any changes to the constitution would require a voter referendum. The judicial discipline commission sits beneath the Supreme Court and operates under rules created by the high court. Additionally, any discipline the commission metes out, except for private sanctions or other measures that are not public, must be approved by the Supreme Court.
The proposed legislation sets the stage for changing all of that, but first ensures the commission is funded by the legislature, not the Supreme Court as it is now.
Commission members in January took the unusual step of telling legislators the commission could not pay for lawyers hired to look into the Masias scandal, because the Supreme Court would not approve the additional funding.