Members of the General Assembly’s judiciary committees pressed the chief justice and his top administrator on Wednesday about planned reforms to improve workplace culture and access to justice for litigants, with specific questioning about a forthcoming directive on virtual hearings.

Representatives from the state’s commission on judicial discipline also spoke at length, alerting lawmakers to an increase in credible allegations of judicial misconduct. The vice chair of the commission, Fourth Judicial District Court Judge David Prince, disclosed the disciplinary body has initiated 10 times as many formal proceedings against judges in 2022 as compared to the historical average.

“The numbers are pretty small, still. So that percentage can end up looking very dramatic,” Prince cautioned. But “we have seen more serious allegations.”

In a joint hearing before members of the Senate and House of Representatives, Chief Justice Brian D. Boatright fielded questions and explained the judiciary’s proposals to the legislature in depth. Last month, he mentioned in his State of the Judiciary address that compensation for many of the branch’s 4,000 employees, including probation officers, is troublingly low.

One out of five employees would leave this year, Boatright said at the hearing, including for better-paying jobs at fast food restaurants.

“We are not paying a livable wage for a number of our people in several districts,” he warned. “We have more than one district where judges have set up a food pantry for probation officers.”

One of the initiatives to improve the workplace environment, however, generated some skepticism. The Judicial Department aims to create an “organizational ombuds” inside the branch. State Court Administrator Steven Vasconcellos described it as a “safe, neutral place” where judicial staff could go to understand their options for resolving workplace problems.

Lurking in the background was a history of revelations, first in the media and then through multiple investigations, of alleged judicial misconduct that went unreported. Investigators also discovered a large percentage of judicial employees feel uncomfortable reporting unethical behavior, with a higher percentage among women.

The controversy led to the creation in 2022 of an interim legislative committee, which generated two now-pending proposals that would update the process for disciplining judges.

Rep. Jennifer Bacon, D-Denver, was concerned by the move to pursue an ombudsman office inside the judiciary, given the unflattering portrait of life within the judicial branch. She hinted that she may introduce a bill to ensure any such office remains independent.

“We are in the ‘fool me twice’ space as a legislature,” Bacon said.

Vasconcellos pushed back, arguing the judiciary, as a separate branch of government, should receive the opportunity to demonstrate its “responsibility” to resolve staff-on-staff conflicts, not necessarily those rising to the level of judicial misconduct.

“I think what’s unique about this,” Bacon responded, “is that an issue from your department has made its way to a whole other branch.”

Boatright and Vasconcellos also forecast that there would be a forthcoming chief justice directive setting uniform guidance for virtual proceedings, which became necessary at the onset of the COVID-19 pandemic and have since made it easier for lawyers and litigants to appear in court for various procedural matters.

Boatright acknowledged that each of the more than 300 judges across Colorado acts independently, and “we can’t fire them if they don’t” follow the virtual hearing policy. But he believed judges would be more receptive to judicially-created rules fostering access to justice than a mandate from the legislature.

Rep. Elisabeth Epps, D-Denver, was interested in ensuring the policy governing remote appearances would not be delayed by planned guidance on the broadcasting of hearings online.

“Will you consider that those two policies might not need to roll out at the same time? One of them seems to me to be much more straightforward than the other,” she said.

Boatright and Vasconcellos promised there would not be a significant delay in issuing the guidance.

Commission on Judicial Discipline

Last year, lawmakers created an independent judicial discipline office with a new stream of funding that is independent of the judiciary. Boatright portrayed the transition as largely positive, saying the “information flow is going well.”

Prince, the vice chair of the judicial discipline commission, disputed that the judicial branch had taken the transition well, alleging non-cooperation in turning over documents. Prince also revealed the commission discovered serious allegations of a judge’s misconduct the department knew about, but failed to report.

“One of the most important reforms that’s already been adopted is the creation of this duty of disclosure that actually requires the judiciary in Colorado to report to the commission allegations of judicial misconduct,” he said. “As far as we can tell, Colorado is a leader in the country on that.”

Although the vast majority of reports to the disciplinary body do not merit an investigation because they pertain to judges’ rulings and other unrelated matters, Prince said the volume of credible misconduct allegations had increased, with three such cases in the last calendar year. Disciplinary proceedings could lead to a judge’s removal from the bench.

Pursuant to the 2022 legislation that created the independent disciplinary office, the commission has hired an internal counsel, made its part-time administrative assistant full time and intends to hire an investigator. Prince mentioned that the commission also supports an independent ombudsman office for the judicial branch.

In response to questioning, Prince said such an entity, with a focus on workplace conflicts, could be located in the new, independent judicial discipline office. But he was unsure about the wisdom of such a move.

“It’s like housing the victim advocate with the police. That can work, but sometimes they may be seen as part of the police and someone might be nervous about it,” he said.

Department of Law

The House and Senate judiciary committees held other oversight hearings last month for the various justice agencies.

Previously, Attorney General Phil Weiser outlined his priorities, including efforts to prevent opioid and fentanyl deaths, address suicides by law enforcement officers, and curb excessive amounts owed for medical bills. He floated the idea of capping interest on medical debt.

At the same time he talked about recruiting and retaining police officers, Weiser acknowledged the need to act against police misconduct.

“We’ve decertified several officers because of their demonstrated untruthfulness, and that’s all part of building trust in the profession, as well,” he said.

Weiser also disclosed that he was “terrified” about the future of Colorado’s water resources, urging lawmakers to invest in water storage and reuse. During this current term of the U.S. Supreme Court, Weiser has submitted a brief asking the justices to avoid compromising the government’s ability to regulate water quality under the Clean Water Act.

Sen. Rhonda Fields, D-Aurora, asked Weiser about the state’s recently-enacted “red flag” law, which enables the temporary confiscation of guns from those deemed a threat to themselves or others. Republicans have generally opposed the gun safety measure, with some counties declaring themselves “Second Amendment sanctuaries.”

“If you have sheriffs publicly having press conferences and say, ‘We’re not gonna (enforce) it,’ what is the role of the AG’s office to say, ‘You don’t get to pick and choose’?” Fields asked.

“I’m firmly convinced our red flag law is constitutional,” Weiser replied. “We’ve won every case defending the constitutionality of the law.”

Public Defender

The Office of the Colorado State Public Defender, which represents indigent criminal defendants, warned that increased attrition rates among its staff are attributable to high caseloads, the COVID-19 pandemic and low salaries.

Megan Ring, the leader of the office, told lawmakers that her attorneys feel connected to their work, but attrition “creates the risk that the OSPD will be unable to fulfill its obligations to clients.”

Ring added that her office has been able to use paralegals effectively, as their salaries are less than lawyers’ and they can help with the large amounts of evidence received for cases, including cell phone videos and body-worn camera footage.

She warned against increasing criminal punishments for people suffering from drug addiction, calling out the legislature’s 2022 enactment of harsher penalties for possessing fentanyl, a potentially deadly synthetic opioid.

“I want less people to die. I also want less people in cages,” Ring said.

Alternate Defense Counsel

The Office of the Alternate Defense Counsel represents the criminally accused when the public defender’s office has a conflict. The bulk of its $57.4 million budget request, said office director Lindy Frolich, is to pay lawyers working as contractors.

“We do almost all of the ineffective assistance of counsel cases” originally handled by the public defender’s office, Frolich said. “We’re constantly tearing our hair out trying to find lawyers to take them because unless you’re trained to do them, they’re very difficult.” 

Her office is attempting to create a unit of approximately 10 employees to focus on those cases.

Access to Justice Commission

This was the second year lawmakers heard from the Colorado Access to Justice Commission, which works on reducing barriers to people in the state’s civil justice system for matters ranging from evictions and debt collection to child custody.

Elisa Overall, the commission’s director, said 71% of court cases in Colorado last year were civil. In domestic relations cases, 73% of people appeared without an attorney. 

She requested that the legislature increase funding for legal aid, focus on simplifying procedures for self-represented litigants and write laws in simple enough language, such that “a middle schooler could determine what it means.”

In December, the commission released a report recommending the Judicial Department clarify which proceedings would allow litigants to participate remotely by default, encourage judges to allow virtual participation and publish each judge’s policy on remote hearings.

“If the recommendations aren’t met,” asked Epps, “would a natural next step be for the legislature to take action?”

“As an advocate for access to justice, I would say yes,” Overall responded.