Seventy-three percent of the Colorado electorate overwhelmingly passed Amendment H, an amendment to the Colorado Constitution, ensuring discipline of judges accused of judicial misconduct would be transparent, honest and independent from influence by the Colorado Supreme Court. The supreme court is presently the final arbiter of judicial misconduct. Amendment H removes the Colorado Supreme Court from presiding over matters involving judicial misconduct

So, why and how was the public asked to implement Amendment H?

In 2019, David Migoya, investigative reporter for the Denver Gazette, uncovered an unprecedented scheme by then Colorado Supreme Court Chief Justice Ben Coats to enter into a $2.5 million contract with a high-ranking state court employee to keep her from exposing judicial misconduct previously swept under the rug. This occurred at a time when the employee was facing disciplinary action and possible termination for other wrongdoings. The contract was withdrawn after the scandal was made public.

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Coats was subsequently publicly censured by a special panel for undermining “the public’s confidence in the integrity of the judiciary.” He is the first and only justice of the Colorado Supreme Court to be so disciplined.

Coats had retired by the time of the disciplinary proceedings and was succeeded by Justice Brian Boatright with the understanding Justice Monica Marquez would succeed Boatright and be mentored by him along the way.

Boatright, Marquez and the other sitting justices at the time of the pay-for-silence contract were aware of the contract but did nothing to prevent it or report it to the appropriate authority. More specifically, Boatright was protective of his colleagues on the court and publicly ridiculed those whom he felt were willing to go public in exposing the toxic culture within the judicial branch.

The supreme court was required to report judicial misconduct to the Commission on Judicial Discipline (CJD) but further investigation and reporting disclosed the Colorado Supreme Court was selective in determining who would be referred to the CJD in violation of the law that required mandatory reporting.

Further reporting disclosed the supreme court and its allies, the Office of Attorney Regulation Counsel (OARC) and the (CJD) subsequently engaged in retaliatory action against one another and its own members who were critical of the court’s lack of integrity and transparency.

As a result of the disturbing news reported on a daily basis, a bipartisan committee of the legislature, the Interim Committee on Judicial Discipline, was convened to address the scandal and its aftermath, which included a threat by the OARC to use its financial administrative authority over the CJD to hamper the investigation. Included in the retaliatory behavior of the OARC was a threat to evict the CJD from its quarters and withholding funding to aid the investigation. In an unprecedented move, the interim committee intervened and stripped the OARC of any administrative authority over the CJD and provided the necessary funding for the CJD to proceed with the investigation.

At the time the scandal broke, Judge David Prince was serving as vice-chair of the CJD and was a vocal critic of both Boatright and the supreme court. Christopher Gregory was the executive director of the CJD and also a vocal critic of Boatright’s leadership. State Sen. Pete Lee was the chair of the interim committee and also a vocal critic. In short order the supreme court, the OARC and the CJD began a pattern of retaliation. Boatright refused to reappoint Prince to the CJD. The OARC leaked patently false information concerning Sen. Lee, which resulted in criminal charges against him. These were subsequently dismissed as false but at great financial and reputational harm to him. His resignation from the interim committee followed by the subsequent termination of Gregory as executive director of the CJD was somewhat akin to the Watergate Saturday Night Massacre.

As a result of the scandal and the breadth of its aftermath, the interim committee recommended legislation to remove the Colorado Supreme Court from further involvement in the discipline of judges, hence the introduction of Amendment H.

A couple of observations concerning the passage of Amendment H are noteworthy. Contrary to traditional political campaigns, there was no organized or paid effort to campaign on behalf of H. Rather, the public was educated on Amendment H through traditional media sources including newspapers, radio, television, social media and word of mouth. Numerous media outlets endorsed the passage of H because the Supreme Court was derelict in addressing judicial misconduct and could no longer be trusted to be transparent or consistent in following the law. The verdict of the people was loud and clear by virtue of the more than 2 million people who voted a change was necessary.

A further observation is the skewed reporting by the Colorado Supreme Court Judicial Performance Commission which provided the public with the information on which to make an informed decision as to whether to retain Justices Marquez, Boatright and Maria Berkenkotter. Not a single mention was made of the scandal and its aftermath and the participation of the three justices therein. The evaluations served as a whitewash.

Though almost 3 million voters weighed in on the decision, the performance commission provided its recommendations based on the surveys of 61, 63 and 54 individuals respectively with regard to Marquez, Boatright and Berkenkotter. It is for the reader to determine if that was adequate and scientifically reliable data. Clearly there is much that needs to be done to provide quality information to the public including, perhaps, public hearings.

Though H passed with a 72% vote, neither Marquez nor Boatright exceeded 65%. In fact, Marquez received 4% fewer votes than in 2014 and Boatright received 6% fewer votes than in 2014. Would the public have had different thoughts if it was provided with the information the justices were aware of and failed to act on regarding the pay-for-silence scandal, its aftermath and the other instances of judicial misconduct (including harassment both sexual and emotional, alcohol abuse, failure to submit financial disclosures and failure to comply with audit requirements)?

The judicial department was just recently called to task in a report alleging it has failed to properly train judges in domestic violence and child custody cases. When will the leadership of the judicial department become proactive instead of reactive? Certainly not under Marquez.

Chief Justice Marquez recently mentioned she shed tears and vomited in her deliberations regarding the Trump election case. We can only hope she experiences the same emotions when deciding cases involving domestic violence and child abuse which make the Trump decision pale in comparison.

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.