Don’t Reward Judicial Misconduct in November

September 16, 2024 By Dennis Maes

from Complete ColoradoPage One

mail

In October, Colorado voters will be receiving their blue book, the guide to the 2024 statewide ballot issues. Included in the book will be a report on the justices and judges standing for retention. The reports are generated by commissions designed to provide information to the electorate about the judicial officer standing for retention. But voters will find that much is missing.

Judicial officers are evaluated on the following criteria: Integrity, legal knowledge, communication skills, judicial temperament, administrative performance, and service to the legal profession and the public designed to educate and improve the legal system

What will be missing from the report is any semblance of impartiality, displaying the commissions’ desire to protect the secrets judges keep as opposed to providing balanced and accurate reporting from which voters can make an informed decision. For example, Colorado voters will not receive any information on the 120 judges who failed to comply with the financial disclosure laws or the numerous scandals engaged in by the Colorado Supreme Court, and specifically by ex-Chief Justice Brian Boatright concerning the $2.5 million pay for silence scandal that rocked the judicial system at its core and its murky aftermath.

Supreme Court justices Brian Boatright, Monica Marquez and Maria Berkenkotter are asking the voters to permit them to continue to deceive the public for the next ten years. The unequivocal response should be NO for the reasons discussed below. Because the supreme court insists on protecting its own and is unwilling to fully and transparently address judicial misconduct it is necessary for the voters to assume that responsibility by removing these three justices.

The case against retention

The performance commission gave the three justices glowing recommendations with nary a hint of wrongdoing during their tenure. Because the state commission was derelict in providing a balanced report upon which the electorate could make an informed decision, certain behavior, particularly by Boatright must be addressed.

A bombshell report by David Migoya of the Denver Gazette in early 2021 disclosed the Colorado Supreme Court engaged, as early as 2019, in a “pay for silence” scandal that initially had then Chief Justice Ben Coats offering a $2.5 million contract to a high-ranking administrator in the State Court Administrator Office to keep her silent about various judicial officer complaints that were swept under the rug. The administrator at the time was also facing dismissal over alleged financial irregularities. The contract was withdrawn once the story broke.

The reporting originated from a memo alleging judicial misconduct that was was known by the justices 2 years before it became public in December 2022, although the Supreme Court previously told the public they first saw it on or about February 2021.

A subsequent investigation led to disciplinary action taken against Chief Justice Coats for his failure to properly administer the department and poor judgment. The first and only time a justice has been disciplined in the history of the Colorado Supreme Court.

So why is it suggested Boatright, Marquez and Berkenkotter should not be returned to the Supreme Court? Because they were aware of the scandal and failed in their responsibility to report judicial misconduct to the Colorado Commission on Judicial Discipline (CJD) as required. Subsequent reporting provided additional evidence of cover-ups by them in the aftermath of the Masias pay for silence debacle. Recall that the initial criterion in evaluating a judge is integrity, which includes avoiding impropriety or the appearance of impropriety. Failing to address and acknowledge judicial misconduct particularly when it concerns allegations of sexual harassment, emotional harassment and intemperance is unacceptable under any circumstances, but rises to the highest level when condoned by the leaders of the institution.

The report compliments Chief Justice Boatright on his contributions to the judicial system but failed to provide any information on the unprecedented turmoil which occurred during his time as Chief Justice.

In Boatright’s State of the Judiciary speech on February 18, 2021, addressing the scandal, he said, “Where there is wrongdoing, we will address it. Where there was an abuse of power, we will stop it. Where our policies are deficient, we will change them. We want to know the truth. We recognize the branch faces a crisis of confidence in the leadership.”

Here’s what occurred subsequent to Boatright’s promises.

A failure of leadership

Contrary to the requirement that judicial misconduct be reported to the CJD, Boatright promised to have misconduct reported directly to him. Yet, further investigation revealed that there were several other instances of judicial misconduct involving sexual harassment, employee harassment, harassing whistleblowers and alcohol concerns that were known by the leadership but were not acted upon until made public through newspaper reporting.

Not included in the narrative was that a bi-partisan committee of the Colorado legislature (Legislative Interim Committee on Judicial Discipline) was convened to further investigate the troubling reports which were exposing the extent of the scandal. It was the investigation that propelled Boatright to make changes. The committee recommended changes to the judicial discipline system which will be on the 2024 ballot.

Additionally, Boatright commissioned two “independent” investigations to look into judicial misconduct and workplace concerns at a cost of $350,000, paid for by the taxpayers. Upon inspection the reports could hardly be defined as “independent.” Several key witnesses were unable to provide critical testimony because financial settlements they entered with the judicial department required them to sign non-disclosure agreements prohibiting them from commenting.

Boatright was also instrumental in blocking two investigations. First, he withheld relevant files from the Denver District Attorney who was investigating potentially criminal behavior. The delay prohibited the DA from a full investigation in a timely manner, resulting in the termination of the investigation because the relevant statutes of limitation had expired. Second, he ignored requests from the judicial commission for information which was needed to get to the truth of the matter. Mind you, the two “independent” investigators had virtually unfettered access to information needed from the Supreme Court. The behavior violated the requirement that judicial officers have a duty to fulfill their administrative responsibilities by being attentive to, and exercising control, over judicial proceedings. It should have been obvious that the numerous allegations could potentially lead to criminal, civil, and/or disciplinary litigation.

Boatright also chose to comment on the veracity and character of certain individuals who chose to provide damaging information to the public surrounding the scandal. Additionally, Boatright professed the absence of wrong-doing by certain judicial employees including then Chief Justice Coats before a complete investigation had been conducted. Integrity includes an examination of the judicial officer’s ability to be fair and impartial. It appears Boatright’s evaluation should have at least minimally commented on that point.

In the interest of transparency, I filed a complaint with the CJD against Boatright alleging, among other violations, that he violated Canon Rule 2.10(A) which provides a judge “shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court, or make any nonpublic statement that might interfere with a fair trial or proceeding.”

The CJD responded to my complaint, which they had initially ruled worthy of investigation.  A letter to me dated June 11, 2024, reads as follows “Your allegation that Chief Justice Boatright violated Canon Rule 2.10(A) (regarding alleged inappropriate public comments) has also been dismissed, but with an expression of concern, per Colo. RJD 35(a). In short, the Commission has determined that the allegations in the complaint did not warrant discipline.”

There was no further explanation of the meaning of “with an expression of concern.”  Like the discipline commission, the Judicial Performance Commission skirted its responsibility to fully report on matters that were widely known concerning Boatright’s involvement in the scandal and ignored even a hint of addressing the misconduct in a thorough and professional manner.

Retaliation

Boatright and Jessica Yates, Executive Director of the  Office of Attorney Regulation Counsel (OARC), an arm of the Supreme Court, actively engaged in retaliatory actions against those who were most critical and vocal of the Supreme Court’s obstruction of the investigation into the scandal.

Judge David Prince was Vice-Chair and a vocal critic of the Boatright court’s obstruction of the judicial commission in the search for the truth concerning the scandal and other instances of judicial misconduct which were also ignored by Boatright. Prince served on the CJD at the pleasure of Chief Justice Boatright.  Boatright refused to re-appoint Prince to the CJD on June 30, 2023. A clear act of retaliation and one unbecoming a justice who is charged with being fair and impartial.

Christopher Gregory, the previous Executive Director of the CJD was relieved of his duties in early March 2023. His ouster occurred within days of informing legislators that the CJD was investigating more than 70 judges for allegedly violating laws requiring them to file financial disclosure statements with the secretary of state.

Senator Pete Lee, Chair of the Legislative Interim Committee on Judicial Discipline resigned as Chair because of unfounded allegations of voting fraud. Criminal charges were filed against Lee. The felony charges were dismissed shortly after Lee left the committee on the basis that the charges were filed as a result of false information provided to the prosecutor by OARC.

Jessica Yates, Executive Director of OARC, an arm of the supreme court, and whose office was responsible for providing the misleading information on Senator Lee, also penned a letter to the lawyers on the CJD and Judge Prince criticizing certain statements made to the interim committee. David Kaplan, attorney for the CJD, denied the allegations and characterized Yates’ statement as a threat to the CJD having a chilling effect on anyone asked to testify before the legislature. To date it is unknown if the people from OARC who leaked the false information were ever disciplined for the egregious action taken against a person with a history of public service to the State.

The OARC through Yates, a faithful ally to the supreme court, obstructed the CJD  investigation by threatening to withhold funds, resources, personnel and even evicting the commission from its quarters. The legislature subsequently removed the OARC from any management over the CJD in direct response to its interference in the investigation.

A rubber stamp

Further evidence that the commissions essentially rubber stamp their approval of judges is the fact that many judges up for retention did not comply with the law requiring them to file financial disclosures every January. Not a single commission commented on the failures of judges to file the disclosure statements, which is important for litigants to determine if a judge has a conflict of interest. In fact, one of the judges who has repeatedly failed to file the disclosure is a member of the CJD who would be responsible for investigating such a violation. While a judge might or should not necessarily be rejected only on the basis of non-filing, the commission should provide the information to the voters to allow them to make their own decision rather than hiding it from them.

It is arguable that the entities charged with ensuring that our judiciary adhere to and robustly support a sincere respect for the rule of law and equal treatment under the law can no longer be trusted. It is up to the electorate to demand that no one, including judges, are above the law. The first step is ridding the courts of  judges like Boatright, Marquez and Berkenkotter who do not believe the law applies to them.

For further information concerning judicial misconduct and discipline see ColoradoJudges.org

Dennis Maes previously served as chief judge for the 10th Judicial District in Pueblo, as well as a public defender and attorney in private practice. A version of this article originally appeared in the Denver Gazette.