Much has been written about the 2019 Pay for Silence scandal which involved the highest level offices of the Colorado judicial branch including the Colorado Supreme Court. Reporting by David Migoya from the Denver Gazette disclosed then-Chief Justice Nathan Coats was prepared to offer a multi-million dollar contract to Mindy Masias who was then-Chief of Staff of the State Court Administrator Office. This despite the fact Masias was facing disciplinary action for certain irregularities. It was reported Masias was prepared to offer up ”dirt” she had concerning the favorable treatment of certain judges who were accused of judicial misconduct unless she was otherwise compensated. Thus, the offer of the multi-million dollar consulting contract. Once the story broke the offer was rescinded.

The judicial branch under the leadership of Chief Justice Brian Boatright was called to task for its lack of transparency in disclosing the scandal including permitting the judicial disciplinary process to be compromised by avoiding the constitutional requirement all judicial disciplinary matters should be directed to the Colorado Commission on Judicial Discipline (CCJD). The gravity of the scandal resulted in the formation of a bipartisan legislative committee to delve into the myriad concerns and the enactment of certain legislation to address the issues.

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The Supreme Court commissioned two reports, one of which was prepared by the Robert Troyer firm, RCT Ltd., which cost taxpayers roughly $500,000 to investigate the specific contract allegations and also do a deep dive into the culture surrounding the entire judicial branch. True to the loyalty expected of a hired-gun, RCT parroted what Boatright wanted the public to believe.

Boatright was quick to protect the behavior of certain judicial officers and staff and publicly attack those whom he felt untrustworthy. As a result of his public comments, I filed a Request for Evaluation (RFE) with the CCJD alleging Boatright was in violation of certain rules resulting in judicial misconduct, which I will later address more specifically. An RFE is essentially a complaint.

As is standard when a government institution is exposed for wrongdoing, promises of change abound. In response to the Troyer Report, Boatright stated, “Our judges and their staff, probation departments, the broader legal community, elected officials, regulators and Coloradoans who rely on our system of justice must know — or be able to know — how the Judicial Branch ensures accountability to its mission and deals with misconduct. This is a critical priority going forward.”

Permit me the opportunity to share my experience in the processing of my RFE. The reader can reach their own conclusion whether the promised “accountability” was fulfilled.

Rule 2.10(A) 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 hearing.”  It was distinctly possible the Supreme Court might be called upon to review matters concerning the Masias contract through litigation involving civil, criminal or judicial misconduct proceedings, thus violating Rule 2.10(A). As an aside, the potential for filing criminal charges against individuals involved in the scandal had to be dismissed because the statute of limitations was allowed to lapse despite the fact the Colorado Supreme Court, the State Attorney General and the Denver District Attorney were involved.

Boatright is alleged to have stated in a newspaper report the former chief justice, Nathan Coats, and his counsel would never authorize court resources to silence a blackmailer and any statement to the contrary was “simply false.” The denial was issued without a full investigation and failed to follow the constitutional requirement any allegation of judicial misconduct be referred to the CCJD for an independent investigation.

Boatright violated Rule 2.10(B) which provides a “judge shall not, in connection with any cases, controversies, or issues that are likely to come before the court, make pledges promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.” Yet, Boatright announced the court would be hiring private counsel to investigate the allegations and “clear those wrongly accused.” He further referred to Coats and his counsel as “dedicated public servants” and opined he and other justices had “full confidence” in a judge who was alleged to have committed acts of judicial misconduct. Does this behavior pass the test of acting impartially?

Rule 2.9(A) concerning ex parte communications provides, “A judge shall not initiate, permit, or consider ex parte communications made to the judge outside the presence of other parties or their lawyers concerning a pending or impending matter…” and Rule 2.9(C) prohibits a judge from investigating facts independently. Despite these prohibitions Boatright announced on Feb. 16, 2021 he would be briefed weekly on all “misconduct complaints across the department to ensure each incident is fully investigated and acted upon as appropriate without delay.” Once again violating the constitutional requirement that complaints of judicial misconduct be directed to the CCJD.

A history concerning the processing of RFE I filed is necessary to describe the lackadaisical approach by the CCJD into alleged serious judicial misconduct matters and calls into question how other complainants were or are treated.

I filed the RFE on Nov. 15, 2022 and confirmed it was received by the CCJD on Nov. 28, 2022.

Three months later, on Feb. 27, 2023, the CCJD determined the allegations were sufficient to proceed as a complaint and received my consent to release the complaint to the Colorado Supreme Court and identify me as the complainant.

Colorado Civil Rule 14 provides, “As soon as practicable after the members of the commission have concluded that the allegations are sufficient to be processed as a complaint, the commission shall provide written notice to the judge of the allegations and commence an investigation.” (Emphasis added)

The CCJD sent the Rule 14 notice letter and a copy of my RFE to Chief Justice Boatright on Dec. 14, 2023, approximately 10 months after approving the complaint for investigation. What was happening during that 10-month lapse is known only to the commission but certainly stretches the language “as soon as practicable,” under anyone’s definition.

Boatright submitted his response to the allegations on Jan. 15. I have not and will not receive his response and, obviously, not be given the opportunity to scrutinize it. Neither will I be afforded the opportunity to challenge the evidence he relied on to apprise the commission and, obviously, no opportunity to rebut what was proffered. I beg to differ such a process “ensures accountability,” as promised by Boatright.

I intermittently requested a report on the progress of my RFE and was told the investigation was continuing.

I received the following from the CCJD on June 11, 2024, approximately 19 months after the filing of the RFE, “Regarding your allegations against Chief Justice Boatright, your RFE claims that he violated (a) Canon Rule 2.9 related to ex parte communications; (b) Canon Rule 2.10(A) related to comments on pending or impending cases; (c) Canon Rule2.10(B) related to promises on the outcome of cases; (d) Canon Rule 2.11(A) related to judicial disqualification; and (e) Canon Rule 2.15(A) related to reporting known judicial misconduct.

“After a thorough review of this matter, including Chief Justice Boatright’s response to your RFE, the Commission has dismissed the allegations that Chief Justice Boatright violated Canon Rules 2.9, 2.10(B), 2.11(A), and 2.15(A).

“Your allegation that Chief Justice Boatright violated Canon Rule 2.10(A)(regarding 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.

“This matter is now closed, and pursuant to Colo. RJD 6.5, it must remain confidential.”

The letter does not provide an explanation of what “an expression of concern” means.

As a former judge who was required to explain what evidence I relied on to reach my judicial decisions, as is the standard for all judges (including those who sit on the CCJD), I am dismayed, dumbfounded and feeling extremely marginalized with the lack of substance and clarity concerning very serious allegations about the Chief Justice of the Colorado Supreme Court and the system which purports to address issues concerning judicial misconduct.

Though I was skeptical the outcome would be different, I did expect the matter to be addressed in a substantively professional manner through specific findings of fact relating to the allegations and Boatright’s response. Such a process would permit a reader to draw their own conclusion as to the credibility of the report. Instead, the results validate all the reasons others have given for failing or refusing to complain against those who are insulated by the powers in being — that being the protection of judges at all costs.

Boatright’s promise is merely a repetition of the same old worn-out response in the hopes the public will forget.

Until the Colorado Supreme Court is removed from oversight of judicial misconduct the stain of the damage caused by the Boatright court will live forever.

Dennis Maes served 24 years as a 10th Judicial District judge in Pueblo and was chief judge for 17 of those years. He previously served as director of Pueblo County Legal Services, Inc.; as a public defender and as an attorney in private practice.