Q&A | A conversation about judicial discipline, transparency and culture in the wake of Colorado revelations

Colorado’s judicial branch is facing calls for investigations and reform following a series of reports that top leaders approved a multimillion-dollar contract to a former employee in exchange for her silence on allegations of misconduct.

The revelations have raised awareness of the judicial discipline system, in which an independent commission receives and investigates reports of misconduct against judges. The state constitution mandates the proceedings be confidential until and unless the Supreme Court publicly sanctions a judge. According to a memo the department released earlier this month, several incidents of judges' misbehavior never resulted in an investigation or discipline. The Colorado Commission on Judicial Discipline indicated it had no record of the alleged acts.

In 2018, the Institute for the Advancement of the American Legal System at the University of Denver convened a forum of 21 legal practitioners and scholars to discuss judicial discipline systems across the United States. The result was a report with more than one dozen recommendations for judicial discipline at the state level, authored by Rebecca Love Kourlis, Keith Swisher and Russell Wheeler.

This week, Kourlis, who is a former Colorado Supreme Court justice, and Wheeler, a visiting fellow at the Brookings Institution, talked with Colorado Politics about their preference for more transparent judicial discipline proceedings, and the possibility that workplace culture, not just discipline, is lacking.

"Whether this whole circumstance reflects poorly on the whole judicial discipline system in Colorado, I don’t think that’s a leap we can make yet. I think it’s too early to say the system failed," said Kourlis. But she also cautioned: "A very functional judicial discipline system is necessary but not sufficient."

NOTE: This article has been edited for brevity and clarity.

FAST FACTS:

• Rebecca Love Kourlis served as a justice on the Colorado Supreme Court from 1995 to 2006. Prior to her appointment, she was chief judge of the 14th Judicial District in northwestern Colorado.
• Kourlis is the founding executive director of the Institute for the Advancement of the American Legal System.
• Russell Wheeler is a visiting fellow in the Brookings Institution’s Governance Studies Program. He is also the president of the nonpartisan Governance Institute think tank.
• Wheeler is an IAALS fellow and former member of the organization’s board of advisors.

Colorado Politics: When you hear people using the phrase, “losing confidence in the judiciary,” what does that mean to you? What would the judiciary have to do to lose people’s confidence?

Russell Wheeler: Most people don’t have a clue what the judiciary does. They care about the judiciary when they or their friends get in some sort of pickle that involves the courts or when there’s a headline case. I think that political scientists refer to “diffuse support": people don’t not like it, they just don’t think about it very much. It seems to me that in Colorado, from what I’ve read, now the headlines come along and they are persuaded that there is something rotten in Denmark.

CP: In your 2018 report you point out that there are different remedies for different kinds of behavior within the judiciary. The first is errors that occur in courtrooms, when judges are making decisions that affect a civil or criminal case. The second is what I will call human resources issues, where judges might be harassing people or inappropriately touching or getting into improper relationships. Then the third type of behavior is somewhere between the first two, but doesn't fall into either category. And I would call it behavior that reflects on them as a judicial officer — berating lawyers in the courtroom or running a chaotic courtroom or taking too long to issue orders.

In Colorado, we do have systems to address all three of those behaviors: the appellate process in the first case, the judicial discipline commission, and the judicial performance commissions in the third instance. Becky, in your experience, are those systems working to catch the things they were designed to catch, or should we be acknowledging that incidents are slipping through?

Rebecca Love Kourlis: The appellate process does catch errors at the lower levels and can be largely trusted. As we turn to the judicial discipline commission, a significant number of the complaints made in the judicial discipline process are in fact somebody's effort to call attention to a case that turned out in a way they didn’t agree with. Those cases have to be winnowed out.

I would actually argue with you that there are four systems: one is a personnel system that operates within the State Court Administrator's Office and the human resources component. Judicial performance evaluations are largely designed to reflect judges’ external conduct, the actual work that they’re doing.

If a judge were to harass a staff person, in theory he or she could turn to human resources within the SCAO or could file a judicial discipline complaint. So that human resources component should be an additional protection. 

CP: Earlier this month, The Denver Post and The Gazette reported that a high-ranking administrative employee in the Judicial Department had a series of misconduct allegations against judges and other personnel that received no investigation or consequence. And the former chief justice of the Supreme Court, according to the reporting, approved giving this employee a multimillion dollar contract to avoid having her disclose those allegations. I have talked to people within our Judicial Department both before and after this news came to light, and I have heard them describe similar misbehavior independent of this episode that they have witnessed and that also went unaddressed. In looking to the judicial branches of other states, do you have a sense of why the judiciary might seek to suppress or conceal misconduct complaints?

Wheeler: When I read the story, the first thing I asked myself was: to whom did these allegations go? Were these things swimming around in the ether, or did this person file complaints with anybody? If they hadn't done either of those, it seems to be a different story than if they were swept under the rug.

CP: Why might someone go to the personnel system — the administrative office of the court system — with an allegation of misconduct, instead of going to a judicial discipline commission? What are the motivations there?

Wheeler: Two things to ask oneself: What do I want to accomplish in this? Do I want to get somebody off my back who's bothering me? Do I want to bring to light that there's behavior going on that ought to stop? Then you have the question of whether the human resources department is so close to the judges that they're not going to take action.

Kourlis: I agree. It goes to the kind of conduct that is at issue. How egregious it is, how targeted it is and what the complainant is trying to accomplish. If it is a relatively low-level instance of misconduct that makes somebody uncomfortable and the complainant wants the other person to know that it makes him or her uncomfortable and wants it to change going forward, that's one thing, versus conduct that is reprehensible and which leads the complainant to want to see that person disciplined or taken off the bench.

Wheeler: Also, what impact is filing a complaint with A or B going to have on my job prospects? There's also the less formal route: you have no idea how much informal discipline actually goes on. A clerk goes to the chief judge and says, "my judge is hitting on me. He may have no idea what he's doing, he might think he's being friendly." The chief judge goes to the other judge and says, "look, I don't know what's going on here but the clerk is really upset here. Cut it out."

If you've got an oafish but naïve judge who's misbehaving, and you've got a chief judge who has confidence, maybe that's the best solution.

CP: The National Center for State Courts published a chart that showed, as of 2020, the stage of the judicial discipline process where confidentiality ceases. Thirty-five states disclose information about judicial misconduct complaints either when there are formal charges against the judge or by the time of a hearing. Colorado is one of 15 states that requires confidentiality until and unless the state Supreme Court decides to issue a public sanction against a judge. Who is doing it right: Colorado? The other 34 states? Someone else?

Wheeler: My general view is that openness is better. The states are way ahead of the federal courts. Even the most secretive states do it differently than the federal system.

Kourlis: I'm with Russell. If I were designing a system from the ground up, I would design it more similarly to proceedings being public when formal charges are filed. Colorado's system is constitutional. The question becomes whether it is wise to run a constitutional amendment to change the confidentiality provision. I have some concerns about what might be swept into that.

The legislature did a lot to clean up their own process. I think ideally the judiciary would do the same.

CP: In talking with people within the Colorado Judicial Department, I have heard two common complaints: one is that some people perceive that HR rules don't apply. And the other is that the judicial branch is still a good old boys' club. Those two things are related I suppose in that if there is a certain amount of clubbiness, folks believe they can handle things informally. And rather than push back against that attitude, people have told me that I would just rather minimize my interaction with the other person, do my job, run my courtroom, and not file a complaint and put a target on myself. Is that a sign that the judicial discipline process is running poorly, or does that speak to factors outside of judicial discipline?

Kourlis: For the judges themselves, the question of whether they are subject to the human resources department’s edicts and oversight is a legitimate question. The answer is yes, in part. In terms of the way they treat their employees, yes. In the way they handle their courtrooms, no. Human resources is not going to come to a judge’s courtroom and tell them how to behave.

Whether this whole circumstance reflects poorly on the whole judicial discipline system in Colorado, I don’t think that’s a leap we can make yet. I think it’s too early to say the system failed.

Wheeler: There is a perception that it’s an old boy network. You hear that a lot. You’ve got to tell people, well, it’s not. Things are different. If you have that perception, you're wrong. And if you’re right, we’re gonna fix it. And that doesn’t take a constitutional amendment. That just takes some gumption on the part of judicial leadership.

CP: One of the concepts you warn of in the report is avoiding a judicial veto over judicial discipline proceedings. In the reporting about Colorado's Judicial Department, it was alleged that the chief judges of the judicial districts barred misconduct investigations by the administrator's office without their approval. Do I take it you both feel that to be a bad practice? 

Kourlis: If it happened as it was reported, it's a problem. I was the chief judge of a district and if a judge was misbehaving, I would want to know. I also would understand there are circumstances in which I couldn't be told.

Wheeler: Courts are organizations that have their own dynamics. Some courts perform better than others and it goes back to the organizational culture. That's no consolation to some deputy clerk who's just been harassed by a judge, but it's part of a broader thing the courts have to deal with.

CP: In the forum that led to the 2018 report, you noted that someone asked, "why would you censure someone privately?" because it doesn't necessarily deter the misconduct of the judge in question or put other judges on notice about the behavior. And more broadly, in Colorado we vote to retain judges, so their job performance is germane to the choices we make on the ballot every two years. At one point does a human resources or personnel issue involving a judge become something that's in the public interest?

Wheeler: If it's more pervasive, a public reprimand will not only have a deterrent effect on the judge but it will have a deterrent effect on other judges. You can certainly see some judge has served honorably for 20 years and slips up, you don't want to ruin a judge's reputation by going public. On the other hand, you can see circumstances where that wouldn't apply.

CP: The Washington Post performed an investigation of a now-retired judge in the District of Columbia. And he gave this advice to other judges that I want to read to you: "Somehow, many judges have grown reflexively suspicious and fearful of reporters. Unsurprisingly, therefore, local reporters have little contact with us. It is no wonder that many reporters seem to lack understanding of any depth as to just what we judges are about when we issue rulings. Additionally, in Washington, the press is seldom in need of news stories. Perhaps partly for that reason, we mostly get a free pass and work under the radar."

Do you feel there is an attitude that the media, and by extension the public, doesn't understand the work of the courts in normal times, and so that fuels a need to keep an even tighter grip on judicial discipline because there is that mistrust?

Kourlis: Judges do have an obligation to try to help the public understand what they do. And they, for example, often speak at Rotary Clubs or speak at schools or bring the classrooms into their courtrooms in an effort to understand how the courts work. They cannot comment on pending cases or cases that are likely to come before them, which is hugely frustrating to reporters. "What I'm going to do in that circumstance is explain how the process works." And you're going to be thinking, "I don't care how the process works. I want to know what's happening here."

I not only believe this is the responsibility of the courts but I believe it's eminently possible for the courts to be much more forthcoming about how things work.

A very functional judicial discipline system is necessary but not sufficient. If there is a culture where people are being disrespectful of other people, that has to stop. And as Russell said, it has to start with leadership from the top and high standards. A kid knows that they can get kicked out of school if they really misbehave, but that's not what encourages them to get A's or do their best. The failsafe of a judicial discipline system that functions well is fine. But clearly that would not have addressed all of the problems that are purported to have arisen.