State lawmakers heard a variety of requests from justice agencies on Tuesday, including a need for paralegals at the public defender’s office, a constitutional amendment to facilitate a new judicial district, and a funding stream for the state’s judicial discipline body that does not require Supreme Court approval.

Officials told legislators about pressing challenges, notably the difficulties of conducting business amid a pandemic, the need to invest in Internet technology infrastructure and salary hikes for employees. But it was the request from the Colorado Commission on Judicial Discipline that drew several logistical questions from members of the House and Senate judiciary committees.

“What does independence for the Commission on Judicial Discipline look like?” asked Sen. Bob Gardner, R-Colorado Springs.

Representatives from the commission responded they are seeking money to do their work without approval from the judiciary – which is the subject of their investigations. The top judicial branch official also declared that the Colorado Supreme Court backs the request.

“We absolutely support their ability to obtain separate funding,” Chief Justice Brian D. Boatright told legislators, adding that the judiciary should “not be looking at the expenditures of the judicial discipline commission.”

As part of their oversight hearings, the legislative panels also heard about the challenges of combating fentanyl distribution from Colorado’s top prosecutor, plus an overview of the hurdles that rural communities in particular face in navigating the state’s court system.

Judicial Department

Among the broad trends the Judicial Department noted in its annual report to the committees, there has been an increase in the percentage of judges leaving the bench, a significant drop in evictions case, and a rise in case filings for violent crimes.

Boatright praised the nearly 4,000 judicial employees for helping to keep the trial court and probation operations running as smoothly as possible during the COVID-19 pandemic. He also attempted to reassure lawmakers about the integrity of the multiple independent investigations currently taking place.

“We are giving them unfettered access to a number of documents through an access agreement,” Boatright said. “The entire report will not be produced, but any results the independent investigators come to will be provided publicly.”

The investigations pertain to workplace culture and a multimillion-dollar contract with a former senior employee. There is also a state auditor inquiry into fraud and spending abuse. Boatright clarified that the entirety of the investigations will not be public because of the liability to the state from releasing nondisclosure agreements and information subject to attorney-client privilege.

State Court Administrator Steven Vasconcellos said that 20 out of the state’s 22 judicial districts have suspended jury trials due to the spread of the omicron variant of the novel coronavirus. He added that Colorado has not returned to its pre-pandemic volume of jury trials, although there are 1,000 hours of court-related videoconferencing happening each day.

In the last fiscal year, there were a half million cases filed in state courts, with 68,000 adults on supervised probation. Although there are different levels of probation based on a person’s risk, Vasconcellos said the department aims for “just the right amount of supervision. No more, no less.”

Boatright indicated that state courts have relied on legislation enacted last year to postpone cases beyond the legal speedy trial deadline 102 times, owing to COVID-19. The current priorities of the judicial branch include investments in Internet technology infrastructure and pay increases for entry-level judicial assistants.

The chief justice also raised the need for a constitutional amendment to ensure that when a 23rd Judicial District forms in January 2025, there is an adequate pool of judges there and in the 18th Judicial District. The plan is for Arapahoe County to split off from Douglas, Elbert and Lincoln counties, which are all currently within the 18th Judicial District.

Arapahoe County Commissioner Nancy Jackson, chair of the Board of County Commissioners, testified at the oversight hearing about the transition, asking lawmakers to stay abreast of the progress in splitting the 18th Judicial District.

“Given the ongoing pandemic and other issues within the Judicial Department, it is understandable, although somewhat concerning, that the creation of a new judicial district has not been top of mind,” she said.

Justice Monica M. Márquez, who is next in line to become chief justice, also spoke about the various initiatives the Judicial Department has sponsored to increase diversity among state judges. While Colorado currently has more Black judges serving simultaneously than ever before, she noted there is still room for improvement.

“We don’t pull judges from off the street, we pull them from our attorney ranks. And our attorney ranks don’t reflect the diversity of the general population,” Márquez said.

Commission on Judicial Discipline

Established in 1966 and written into the state constitution, the Commission on Judicial Discipline investigates complaints of judges’ misconduct. The commission can privately reprimand a judge or require them to seek training, but may also recommend that the Colorado Supreme Court publicly censure or remove the judge.

The commission’s staff includes a director and a part-time assistant, and funding comes from fees levied on attorneys. However, any expenditure over $5,000 must receive Supreme Court review. The Gazette reported this week that the commission has been unable to pay a law firm to investigate allegations of judicial misconduct due to the lack of approved funds.

The commission’s chair, Elizabeth Espinosa Krupa, said the legislature should create a new method of funding the disciplinary body, in part to dispel perceptions that the Supreme Court is withholding money.

“To make sure that the public and our citizens are assured of the integrity of the commission and the independence of the commission, we cannot have funding controlled by judicial leadership,” she said.

Boatright agreed during his presentation, saying there “does need to be some type of oversight, but it shouldn’t be us because at the end of the day, their charge is to investigate judicial officers.” He added that he would prefer to have an agreement that would allow the Judicial Department’s human resources employees to ensure there is no danger, for example, to a worker complaining about sexual harassment. Then that employee would turn the matter over to the discipline commission.

Krupa also took a swipe at Boatright for his prior comment about allowing the independent investigators “unfettered access” to materials, saying the commission itself does not even receive such access. 

The commission’s proposal would translate to having a full-time administrative assistant and a staff attorney and investigator to conduct in-house investigations.

Chris Forsyth, an attorney and director of the advocacy organization the Judicial Integrity Project, spoke during public comment in favor of enabling the Commission on Judicial Discipline to be more proactive in disciplinary matters and more transparent.

Department of Law

Drug overdoses and the rising toll of fentanyl use were at the center of Attorney General Phil Weiser’s presentation to the judiciary committees.

“Our kids are vulnerable to being told, ‘Here, take this pill,’ and that can lead to their death,” said Weiser, who added that 1,838 residents have died of overdoses between May 2020 and 2021. “There are people who are struggling with addiction. The best place for them is drug treatment, not in jail. There are people who are pushing deadly substances knowingly, resulting in deaths. The best place for them is jail or prison.”

Pete Lee, D-Colorado Springs, who chairs the Senate Judiciary Committee, asked Weiser how the General Assembly should address users and purveyors of drugs differently.

“I haven’t seen where increasing penalties alters behavior, so what are some of the smart solutions?” he said.

Weiser responded that he is working on a bill to provide more resources to investigators. Under questioning from El Paso County lawmakers, the attorney general said that the threat from the powerful synthetic opioid fentanyl has escalated drastically. For example, two people had died in the county from fentanyl overdoses between May 2016 and 2017. That had risen to roughly 100 between May 2020 and 2021.

“We need to look at it. We need to find a right response,” said Rep. Terri Carver, R-Colorado Springs. “These people are dealing death.”

Rep. Rod Bockenfeld, R-Watkins, referenced a lawsuit from a handful of Republican state attorneys general seeking to force the Biden administration to resume construction of a wall along the country’s southern border.

“If we really want to get to the root causes of the cartels and the fentanyl that is impacting our citizenry, why aren’t we joining those other states?” he asked.

Weiser affirmed that he believes in securing the border with Mexico, but in his opinion the lawsuit does not have merit.

The attorney general also spoke about the need to support law enforcement officers in handling trauma and mental health, and being vigilant for COVID-19-related fraud schemes.

Public defender

State Public Defender Megan Ring indicated two priorities for her office: hiring more than 100 paralegals over the next two years and enhancing her office’s technological capabilities.

The two issues, she said, are intertwined. Cases are becoming more complex because of the proliferation of evidence, including police body-worn camera footage, cell phone contents and digital documents. Paralegals can help defense attorneys sort through the large volume of materials, and they cost less than a full-time lawyer.

Ring’s goal is to eventually have one paralegal for every six attorneys.

She also warned lawmakers that she would likely ask for more money for public defender salaries in the future to keep pay competitive with other similar government positions.

“We’re in a place where the Denver municipal public defender, Aurora municipal public defender pay significantly better than we do. That’s a problem because municipal cases are not as serious, it’s not as stressful a job,” Ring said.

Committee members asked about the drop in cases, from approximately 147,000 to 119,000, that the public defender’s office took on from 2020 to 2021. The COVID-19 pandemic was a key reason for the decrease, although Ring’s office indicated that cases are staying open longer due to the backlog in the trial courts.

Another difficulty has been the degree of access public defenders have had to their clients due to the pandemic.

“It’s been incredibly difficult to establish those relationships,” Ring said. 

Access to Justice Commission

This was the first time the Access to Justice Commission appeared at an oversight hearing, following the first year in which the commission – whose mission is to develop polices that increase access to the civil justice system – operated with a budget and a hired director.

“Civil litigation impacts the roof over one’s head, their family’s financial stability, their physical safety, the composition of their families, and their physical and mental health,” Elisa Overall, the commission’s executive director, told the committees. “In contrast to the criminal justice system, we do not have the right to court-appointed counsel when we cannot afford it. We’re left on our own.”

Overall and Justice Melissa Hart said they hosted 41 virtual meetings in 2021, two-thirds of which were based in rural areas of the state and they spoke to judges, mediators, legal aid attorneys and other service providers about barriers to accessing the court system. The common frustrations they heard were the cost of lawyers, the complexity of procedures and the lack of reliable, high-speed Internet access.

Overall mentioned how one legal aid lawyer declined to take a case because the judge refused to allow virtual hearings, meaning the attorney would have to drive for three hours one way to the rural courthouse. Once the case was reassigned to a different judge who welcomed remote participation, the lawyer was able to take the case after all – spending a total of 15 minutes in the virtual courtroom.

“In addition, court orders are in English. One provider told us how common it is for a young son or daughter to have to translate a court’s order explaining why one parent is more fit than the other to have custody,” Overall said. Aside from non-English-speaking communities, courts have also failed to adequately address barriers for people with disabilities, she said. 

“We literally heard stories of litigants having to be carried up stairs,” she said.

While the Access to Justice Commission did not make specific policy requests of the General Assembly, Overall asked lawmakers to give their attention to proposals that simplify legal procedures and to write laws in plain English as much as possible.

Lee indicated he hoped Overall would return annually to update the committees on the commission’s work.