Colorado’s Judicial Department for months has continued to drag its feet over an investigation by the state commission that disciplines judges despite public assurances otherwise, according to a document filed with state lawmakers this week.

The Commission on Judicial Discipline said in a filing it made Wednesday to a legislative committee considering changes to the process that it barely received a third of the documents the department freely provided to investigators the department hired last year to look into an alleged quid pro quo contract.

That investigator, Robert Troyer and his firm, RCT Ltd., ultimately determined there was no quid-pro-quo, but that the process that awarded the contract – a multi-million-dollar deal awarded to Mindy Masias, an employee who faced firing – was fraught with mismanagement and misconduct.

“Mr. Troyer testified that the Department produced approximately 12,000 documents related to the Masias contract within approximately one month of Mr. Troyer’s engagement in October 2021,” the commission wrote legislators. “Though the Department had the ready ability to produce those records to Mr. Troyer during the fall of 2021, the Department withheld all but about one dozen such records from the Judicial Discipline Commission over a 10-month period in 2021 that included the period in which the disclosures to Mr. Troyer occurred.”

What’s more, despite a law passed earlier this year that in part required the judiciary to cooperate with the discipline commission, “the Department continues to withhold most of these materials from the constitutional judicial discipline process,” the letter says. “The Department has never offered to provide the Judicial Discipline Commission with similar access to these records (in the form in which they are maintained by the Department).”

The commission letter addresses its positions on a number of changes it recommends to the discipline process that lawmakers consider. It says it filed the letter independent of a department response that was sent to lawmakers on Monday because it had assumed the two bodies would cooperatively send their recommendations jointly.

The commission recommends changes to the state Constitution, where its authority lies, in order to make it a more independent body. Currently, it largely answers to the Supreme Court, which for years controlled its funding and ultimately the decision whether a judge should be disciplined publicly.

Most disciplines are kept secret and rarely result in more than an admonishment or sanction. Oftentimes a judge will resign or retire before the discipline process goes too far, essentially burying the case from ever becoming public.

“The leadership of the Department has exercised its practical control over the process to withhold access to resources, personnel, funding, information, cases, and evidence,” the commission says in its letter.

For its part, the Judicial Department – and by extension its Supreme Court – says it should not give up its control over the disciplinary process to an independent commission and that its powers of oversight are embedded in the Constitution for a reason. It would, however, agree to changing how the commission’s rules are formulated by including it in the process.

“The Department is considering a more formal committee structure similar to that used for proposed amendments to other court rules,” it told lawmakers in its own letter. “Such a committee structure should include representation by the Commission. The Department nevertheless believes the Supreme Court remains the appropriate rulemaking authority.”

It added: “Unlike the Commission, the (Supreme) Court is accountable to the voters.”

The department and commission don’t disagree entirely on changes that should be made. For instance, they agree the commission should have subpoena authority during its inquiries, although they disagree at what stage that should occur – when an investigation begins or when formal charges are filed.

Additionally, both sides agree that the secrecy surrounding the discipline process – currently a judge can be formally charged and found liable but the findings never made public – should be diminished, allowing a way for the public to know about a case from the moment charges are filed.

But the two remain separated on several issues, such as how the commission members are appointed, the length of the terms they serve, and who ultimately decides whether a judge should be punished.

“In our current system, a small group of judges exercises ultimate and unreviewable control over final decisions on judicial discipline, as well as practical control over many aspects of the system preceding a final decision,” the commission tells lawmakers. “The events of the last few years have demonstrated the inherit conflicts and temptations of self-interest that have made this system unworkable and undermined its credibility.”

The commission adds that the “current system is an ‘all or nothing’ system in which a distinct group of judges (the Justices of the Supreme Court), who are not subject to practical oversight, have final and near complete control of the system that extends to even the foundational rulemaking functions.”

The crisis that created the legislative committee began with the Masias contract and assertions that it was a way to silence a potential lawsuit that would air much of the department’s dirty judicial laundry.

It included a number of misdeed by justices and other judges that were handled quietly or not at all. While RCT was hired to investigate the circumstance surrounding the contract award – including a two-page memo that contained the allegations of judicial misconduct –  the substance of the document was looked into by Investigative Law Group.

ILG determined there was no coverup of any judicial misdeeds, some of them years old, although it did find a general culture within the department where employees found it worrisome to file complaints.

The legislative committee was formed to look into possible changes to the discipline process, including a constitutional amendment that voters would have to approve.