In late April, the director of the Federal Bureau of Investigation posted a picture to social media of handcuffed Milwaukee County Circuit Court Judge Hannah C. Dugan, who authorities arrested at her courthouse for allegedly obstructing immigration agents.

The charging documents accused Dugan of confronting U.S. Immigration and Customs Enforcement personnel who were planning to arrest a defendant on a non-judicial warrant outside her courtroom. She also allegedly directed the defendant to leave through a side door. ICE agents apprehended the man and prosecutors indicted Dugan criminally for her actions.

Last month, a group of 138 retired judges filed an “amicus” brief advocating for the dismissal of charges. They argued Dugan was shielded by judicial immunity for her actions as a judge, that the government’s conduct infringed on states’ sovereignty, and that such prosecutions could generate a perception that state judges must make decisions with the executive branch in mind. 

Two Coloradans joined the brief: Retired Chief Justice Michael L. Bender and retired District Court Judge John P. Leopold, who served from 1987-2006 in suburban Denver’s 18th Judicial District, eventually becoming its chief judge. Leopold is now a mediator and arbitrator with JAMS in Denver.

Leopold spoke to Colorado Politics about why Dugan’s arrest moved him to sign the brief.

Colorado Politics: What was your understanding as a judge — and your understanding now — for when it’s appropriate to criminally charge and prosecute judges for actions they take as a judge? For example, if a judge takes a bag of cash in exchange for dismissing a case, that’s obviously not lawful, right?

John Leopold: I never really had to think about that. We have, in Colorado, had the unhappy occasion from time to time of untoward activity. But otherwise, everyone, no matter who she or they may be, is subject to the rule of law.

CP: So, there is legal accountability for judges who break the law, but there’s also professional ramifications if they maybe act unethically or unprofessionally. And that’s separate from the criminal system, is that right?

Leopold: That’s it. You got it.

CP: I’d like to have you give some context from your time as a state trial judge about the interaction a typical judge has with the federal immigration system. When you were on the bench, how often would you be interacting with either immigration authorities or have to address some aspect of immigration law, and what did that look like?

Leopold: Zero. Never did. And to a large degree, I think that’s because I’m a state judge and a lot of that is in federal court.

CP: With that background, how did you come to sign your name on the amicus brief with the 137 other retired state and federal judges in support of Judge Dugan?

Leopold: I started law school in 1968. There was a four-year interruption for me to do my Air Force time, and then I came back and went straight through at Denver Law and have been thoroughly involved in the law all that time. The way I look at things is that the law is one of the three things that is engraved on my soul.

When I see this type of thing — and I want to be very clear, I am not getting into the political arena — when I saw that, my reaction was very agitated, angst. We (my wife and I) happened to be in London at the time this went down. One piece that really upset me: Do you have to arrest a judicial officer, and do what I guess would be called a “perp walk,” as opposed to allowing the person to appear voluntarily on the equivalent of a summons? That got to me.

I have various networks that we all have through professional organizations. And it came to my attention that there was going to be the filing of a brief. There was an outreach just to see if people were interested. And when I learned of that I said, “Yes, I am.” I did not go out of my way; once it was made apparent to me, I became interested in joining.

CP: So, the basis for the criminal charges is obviously that immigration agents showed up to the courthouse, wanted to arrest a defendant and Judge Dugan allegedly interfered with that. When you were chief judge, was there a policy informing the court of what to do in that situation if ICE came to the courthouse or into the courthouse to apprehend anyone?

Leopold: Nothing ever came to my attention. I can’t say with certainty that it never happened, but I was unaware of it.

CP: Do you think there should be a policy for how judges and court administrators can best handle that scenario to balance the competing concerns?

Leopold: I’m sure there should be one. I don’t think it is the best approach for there to be an individual policy to address these things. There is a role for a chief judge, and for that matter for the state. Ideally, in my mind, the best way is to have a state policy upon which all judicial officers can rely. You do have the state court administrator, who I presume would have some input, at least, and I presume would work hand-in-hand with the chief justice and the courts as a whole.

There is a chief judges’ council — it would occur to me that a logical approach would be for there to be discussion amongst the chief judges. And, we have to remember, we’re not just dealing with district judges.

CP: Right, even if you take the state system on one hand, there’s still municipal courts in a lot of corners of the state.

Leopold: Absolutely. There is no authority for the state judges to have any control over those city judges. So, it’s not an easy task that we’re talking about.

CP: I don’t know if you had a chance to see the federal government response to the amicus brief, but earlier this week the government filed a document in opposition and said, “Rather than bringing a unique perspective, the proposed amicus group simply appears to have strong opinions about the decision to present this case to a grand jury.” Do you have a reaction to that?

Leopold: Well, that isn’t the kind of argument I would have expected, but I’m not in a position to consider the approach here. There are, as I understand, retired judges from all over the country who were involved in this.

There are three separate, coequal branches of government and each of them has a responsibility. The judiciary could not on its own bring a charge against the executive branch or the legislative branch. So, the question then arises — and I think there’s subtext on this — does the filing authority respect the separation of powers in these circumstances? It’s a very narrow issue that I’m looking at, but I’m not convinced there is a respect for the separation of powers when this type of activity occurs. Let alone the essential requirement that judicial officers must perform their duties without outside interference.

That one really got to me. I had occasional disagreements with district attorneys during my time on the bench. That’s to be expected. I never disrespected that office. I think the problem here is: How do judicial officers do their jobs in the face of this type of activity?

CP: I agree that the case is fairly narrow, but we’re talking in the middle of a nationwide pushback in several major cities against specific tactics that ICE is using to apprehend and deport people. And the Trump administration’s response to that is to deploy the military to put down these protests. So, you do have a similar issue of federal authority versus state authority, and are you concerned to this day that judges in Colorado may still be subject to arrest if immigration authorities take issue with their conduct? Or do you think Judge Dugan’s case may be unique for now?

Leopold: It is unique for now and we can hope it stays unique, but we don’t know that.

I went to Colby College in Maine. We had, back in the day, a “vacation cut.” If you cut your last class before vacation, you were fined a lot of money in those days — $25. So, Thanksgiving vacation comes. I live in Pennsylvania and vacation was very short. It made no sense to have to take that kind of a trip back home. So, I stayed on campus. But right after Thanksgiving, I went down to Boston and visited a friend who was a student at a certain law school in Cambridge, Mass., which is obviously becoming the subject of a lot of notoriety —

CP: Harvard.

Leopold: Yes, and he got me very interested in the law. So, that’s where things developed. And since then, the law has been — along with Terry, my wife, and Colby, those are the three things that are engraved on my soul. So, when I see this happen, you have a direct piercing of the soul.

CP: When you were reading over the amicus brief and there was talk about what master the judge is serving — if they know that they have this obligation to do justice and manage their courtroom but they also might face consequences for not behaving in a way that this other branch and other level of government wants them to — when you were reading that, could you envision what a truly worst-case scenario would be for a trial judge? If they were, for example, not making decisions based on the facts before them and were really just having this presence of the federal government in the back of their minds in everything they do?

Leopold: In 1993, 10 days before Christmas, a disgruntled former employee at a Chuck E. Cheese pizzeria, having been fired, went back to take out his revenge. He ended up murdering three teenagers and an assistant manager —

CP: Nathan Dunlap.

Leopold: Yes. That was my case. Now, I try to picture the notion of what it would have been like had I been subjected to any kind of outside pressure in dealing with that case. So, to answer your question, my larger concern on all of this is what happens if a case comes along — and I don’t see it on the state level — but what happens if a case comes along and a government official, executive branch official, tries to invade the province of the court? That is a concern.

We’re talking about a (presidential) term, I understand, but things do change for the long term. I have friends who are supporters of the president and I have on one or two occasions asked them, “Well, if you’re comfortable with what the president is doing, will you be comfortable when a Democratic president does the same thing?”

CP: What do they say?

Leopold: They have no response to that.

We all have to respect judicial officers, no matter what station they have. We need to respect people who have been duly installed in an office. And one of the big concerns I have right now is the decline in that type of respect. It is outrageous that a judge was arrested. One can debate the merits of the charge — I’m not here to suggest anything else. But to do that to a judicial officer is beyond the pale.