Weeks before an Arapahoe County judge admitted he failed to disclose his affair with an employee when he was applying to be a judge, the Colorado Supreme Court dropped a question from the state’s judicial application form that asked candidates to disclose problematic information from their pasts – and provided grounds for discipline if they were untruthful.

Applicants for judgeships must answer a range of questions about their sources of income, their employment and any criminal history. The questionnaire is meant to assist the citizen-led nominating commissions, which screen candidates, and the governor, who appoints nearly all trial and appellate judges across the state.

Until December, the application included Question #47, which asked: “Is there any circumstance or event in your personal or professional life which, if brought to the attention of the Commission, might tend to affect adversely your qualifications to serve on the court for which you have applied?”

That month, the Judicial Department released a new version of the application with some modifications. Among the changes, Question #47 was no longer included.

Seven weeks after the update, the Supreme Court received a judicial misconduct case from the Colorado Commission on Judicial Discipline. Arapahoe County District Court Judge John E. Scipione was under investigation for having an intimidate, undisclosed relationship with a subordinate, among other workplace misbehavior. His extramarital relationship happened when Scipione was a magistrate, prior to his appointments as a county court, then a district court judge.

On each application, under Question #47, Scipione indicated “no,” there was nothing that would adversely affect his qualifications to serve.

The commission informed the Supreme Court that Scipione, who has since resigned, admitted he engaged in misconduct “by failing to disclose, on his judicial applications, an unreported intimate personal relationship with (an employee) while serving as a 18th Judicial District Court Magistrate.”

In an email to Colorado Politics, Justice Melissa Hart explained the Supreme Court voted to adopt the revised application before Scipione’s paperwork arrived. Asked if the court’s members knew at the time they dropped Question #47 that Scipione was facing discipline for his failure to answer the question candidly, Hart said “absolutely not.”

“The revisions to the form were designed to streamline the questionnaire, including by consolidating repetitive questions and omitting questions that did not provide the Nominating Commissions with pertinent information,” she said. “The catch-all question in the prior application did not generate any information, as applicants consistently replied to it with some version of ‘no’ or an ‘N/A’.”

However, the consequence of removing Question #47 is that, unlike Scipione, a failure by future judges to disclose potentially disqualifying information might not be grounds for discipline.

Former Sen. Pete Lee, D-Colorado Springs, helped lead recent efforts to provide independent funding to the judicial discipline commission and increase the disclosure of information about judicial misconduct. The Supreme Court’s elimination of Question #47, he said, is an impediment to the goals of greater transparency and accountability.

“I feel pretty strongly about it that we really need to know what sort of conduct these guys engaged in in the past,” Lee said. He noted the governor’s office asks applicants who are seeking a seat on boards and commissions if there is anything in their past “that might be an embarrassment to the Governor or you if it were to become public.”

One person familiar with the judicial discipline process, speaking on condition of anonymity in order to be candid, saw the elimination of Question #47 as indicative of a larger problem with the lack of information-sharing about judges. For example, The Gazette reported last year that judicial performance commissions, which evaluate judges in advance of retention elections, do not automatically consider a judge’s disciplinary history when offering recommendations to voters.

“What’s interesting about this question thing is it’s kind of a ‘don’t ask, don’t tell’,” the person said.

Hart emphasized the revised judicial application still asks candidates about their involvement in disciplinary proceedings, criminal conduct or being held in contempt of court – none of which affected Scipione’s discipline.

The application “does not include a catch-all question about circumstances that might adversely affect a judge’s qualifications,” she acknowledged.