Despite five years of searing reports by investigative reporter David Migoya into serious problems afflicting the Colorado Supreme Court, the commission that reviews judicial performance gave all the justices on the ballot this year glowing recommendations.

The two most senior members of the Supreme Court, Chief Justice Monica M. Márquez and Justice Brian D. Boatright, plus junior Justice Maria E. Berkenkotter, will be on the ballot for a retention vote. Now it’s up to voters to decide if their coverup and unethical handling of a pay-for-silence scandal, their stonewalling of investigations into that scandal, and their rule breaking and conflicts of interest uncovered by Migoya warrant a “NO” vote.

The three justices involved in this coverup will get a 10-year uncontested term if voters retain them, the longest of anyone on any ballot in our state, senators and presidents included.

Dennis Maes, a retired chief judge in Pueblo who previously served on the state’s commission for judicial discipline, the body that investigated the court over its handling of the scandal, said this during testimony to legislators:

“It is my belief that the Boatright court lost its way concerning this sad and embarrassing moment in the history of the Colorado Supreme Court when it disregarded and disrespected long established principles, rules, processes and ethical considerations that judges take an oath to obey.”

The findings of a legislative commission led directly to the ballot initiative also up for a vote this election that asks Coloradans to decide whether to create an independent board to oversee judicial discipline and put in place other reforms to increase the transparency and independence of the disciplinary process.

In other words, because of the lack of self-discipline by justices on our highest court, voters are being asked to take that discipline out of their hands.

There are some who say that former Chief Justice Boatright and the other current justices didn’t know enough about the scandal to lose their jobs over it.

What utter bunk.

The head of a legislative commission charged with investigating the scandal said the justices up for retention threw up roadblock after roadblock at efforts to investigate, at times refusing to outright hand over information and trying to manipulate the probes, Migoya reported.

“The bottom line is this: Members of the Colorado Supreme Court, directly and through its senior staff, made a series of decisions and took a series of actions throughout 2021 and 2022 that limited the ability of the commission … to do its constitutionally mandated work,” commission Executive Director Christopher Gregory wrote in a letter.

He also pointed to public comments made by several justices dismissing the scandal allegations when Migoya broke the news in February 2021 that then-Chief Justice Nathan “Ben” Coats allegedly approved a contract to former Chief of staff Mindy Masias to forestall her threats of going public with the misdeeds of judges in a sex-discrimination lawsuit.

Judicial canons prohibit judges from making public statements on the validity of such accusations being investigated, because the jurists might be asked to decide a related case.

Boatright also insisted the commission investigating allegations of judicial misconduct issue a subpoena for any information from the Supreme Court in order to prevent the media — and by extension the public — from getting access to details about the scandal inquiry, according to emails obtained by Migoya and The Gazette.

And at least six of Colorado’s Supreme Court justices — including Boatright and current Chief Justice Márquez — knew about conflicts of interest they allegedly had with ongoing disciplinary investigations into the conduct of at least two of their colleagues but did nothing about it, according to letters obtained by Migoya.

The state’s Commission on Judicial Discipline sent personalized letters to each of the justices outlining their conflicts and their obligation under judicial conduct rules to recuse themselves from the entire investigative process, according to a letter Boatright wrote the commission in reaction to the correspondence.

Yet despite those apparent conflicts, none of the justices ever stepped aside throughout the 20 months the inquiries were ongoing.

So why are these justices’ performance evaluations so damn glowing then?

Migoya’s reporting also uncovered the reasons for that:

“Colorado’s system of judicial discipline is so secret that the state’s nearly two dozen performance review commissions that evaluate judges have rarely known for sure whether a jurist they recommended voters keep on the bench had a record of misconduct or not,” he wrote last year. “One member of a performance commission who spoke to The  Gazette said they weren’t even aware they could request a judge’s discipline record. Others said it was unclear how they could use the information as part of their review process.”

The performance commission doesn’t look at prior discipline. That would be like me hiring an ax murderer to be a reporter, because I didn’t happen to look at his criminal record.

The performance commission is only tasked with looking at six things: integrity, legal knowledge, communication skills, judicial temperament, administrative performance and service to the legal profession and the public designed to educate and improve the legal system.

Migoya also did reporting that revealed 120 judges in Colorado failed to comply with financial disclosure laws.

But financial disclosure violations are not part of the six criteria, either, so voters did not receive any information on those 120 judicial scofflaws.

The critical concern among people who actually want a functioning justice system, Maes has said, “is that nobody really gives a crap.”

Most people in Colorado don’t feel as if they are getting impact when it comes to a scandal like this. None of the justices who handled this whole affair faced any discipline except Coats, who received a public censure after he retired from the bench. But that censure didn’t come from his former colleagues on the Supreme Court, who recused themselves in the matter. It came from a special tribunal of Court of Appeals judges. Coats had already retired in 2020, and was replaced by Berkenkotter when the scandal exploded.

When the justices are handling their own investigation, the justices are able to corral whatever it is that they need to stay corralled, and the probe doesn’t impact them. There’s a phrase for this practice. It’s called “protecting the robe.”

But that’s not really good enough, is it, for the people we entrust with deciding right and wrong?

If you are given the title of Supreme Court justice and a 10-year term, your resumé ought to be impeccable.

And we don’t have impeccable here.

The only person who can now bring justice to the justices, who has a say over their behavior at the end of the day, is you, the voter, when those justices are up for retention. Which is right now.

So what’s our final answer to Migoya after five years of dogged watchdogging: Do we really give a crap?