Usually, the annual State of the Judiciary speech doesn't gets a lot of attention, either from the legislature or from the media.
This year is a different story.
"We as a branch are in crisis," Chief Justice Brian Boatright told a joint session of the legislature Thursday.
The judicial branch has been rocked recently by allegations of sexual harassment and gender discrimination, and of claims that a training services contract was awarded improperly to a former senior administrator.
Boatright, his voice sometimes breaking, talked about the harm the allegations have done to the trust the people of Colorado have placed in its judicial branch. He also told the story of a 20-year employee in the branch who said, for the first time in her career, that she was not proud to say she worked for the judicial branch. It broke his heart, Boatright said.
He said it also "steeled my desire for answers. I'm here to tell the legislature, the governor, the citizens of the state of Colorado and that employee that we will get this right. Where there is wrongdoing we will address it. Where there is abuse of power, we will stop it. Where policies are deficient, we will change them. We want to know the truth."
Boatright had announced Tuesday that an independent investigation will touch on allegations of sexual harassment, sex discrimination and a $2.75 million contract awarded to the former chief of staff of the State Court Administrator's Office, Mindy Masias, reportedly with the approval of then-Chief Justice Nathan B. Coats. Masias had threatened to file a sexual harassment lawsuit that would expose misconduct within the judicial branch. Following an audit by the State Auditor that said the contract had an appearance of impropriety, the department canceled the contract.
Boatright said he had asked the governor, attorney general and legislature to convene a panel that will select an independent counsel to investigate the allegations. That investigation will result in cultural change, the Chief Justice pledged.
Boatright also spoke of a memo released Monday that went into detail on the allegations, which he called "unacceptable and cannot and will not be tolerated." He said he has requested a full investigation on the contract and every incident listed in the document.
The Chief Justice elaborated on what he hopes will happen in the coming weeks. The panel appointed by the legislature, Attorney General and governor could select a firm that will act as a special counsel and that will conduct the investigation, Boatright said.
"We will do this by the book," he pledged, adding that every justice on the high Court is committed to reform.
Boatright's address also touched on what he called two other crises within the justice system: racial inequality and a backlog of jury trials, due to the pandemic, that could take years to process.
The Court has stepped up efforts to diversify the bench, based on the work of what Boatright called a "dream team" that helped recruit people of color, as well as help them through the process of applying to become a judge.
Those results are having an early payoff: between July 2019 and August 2020, five Black women have been appointed to the bench, more than in the previous 25 years combined, he said.
In that same time period, 59% of the judges appointed by Polis have been women, a 13% increase in the last four years.
But the protests for racial justice that took place last summer "remind us more work remains to be done," Boatright said. That includes training in the judicial branch around racial equality, an inclusivity committee tasked with combating systemic racism and discussions with students at law schools on these issues.
The other crisis, and one that will take help from the General Assembly to resolve, is on the jury trial backlog.
On average, about 2,700 jury trials, mostly criminal, are held each year. But because of the pandemic, which has slowed the system to nearly a halt, as of Jan. 19 there were 14,635 jury trials scheduled statewide, with more than 10,000 for criminal charges. "Crime has not stopped," Boatright said.
"I recognize that many of you are angry at the branch and the attention it has brought to government," the Chief Justice said, but pleaded with lawmakers to not take their anger out on courts or the probation department. "If you're going to be mad, be mad at me," he said.
Boatright asked that the legislature consider three requests. The first is for more options on the length of service for a judge. He noted that some of the state's most experienced retired jurists are unwilling to sign 60- or 90-day contracts, and that the judicial branch needs more flexibility, either to allow those judges to do jury trials or to take other roles that would allow other judges to conduct those trials.
That will also take more money, the second request. The judicial branch cut almost 200 positions with 110 layoffs last year as part of the budget-cutting by the General Assembly. He asked for a restoration of those funds for trial court and probation staff to help deal with the backlog.
The third, and one that may produce heartburn for the lawmakers who are also lawyers, is an extension of the statutory deadline for holding trials, currently at six months. "Just knowing that jury trials can be held will encourage resolution," Boatright said.
When those trials will resume will be up to the courts in individual districts, as one size does not fit all, the Chief Justice explained.
"We are committed to lifting the clouds over the branch and making it a rightful point of pride. I commit to you, I promise to you we will get this right," he concluded.
Willingness to work together
Minority Leader Sen. Chris Holbert, R-Parker, told Colorado Politics he had been on a Webex call Wednesday with Boatright, Justice Monica Marquez and several lawmakers.
"I appreciate how transparent the Chief Justice and future Chief Justice are being and welcoming of advice," Holbert said. He said he shared with the justices the sexual harassment experience that the General Assembly went through in 2018, including forming the workplace harassment policy. It was a surprise to him in 2018, Holbert said, that while people were overwhelmingly positive about working for the legislature, they were equally overwhelming in their lack of trust for the process of handling sexual harassment issues.
Holbert said he encouraged the justices to "not solve this top-down." Get third-party or entry-level employees involved, and be ready for surprises, Holbert said he told the justices. "They have a tough road ahead of them," he said, adding that 2021 will be for the judicial branch what 2018 was for the General Assembly.
Rep. Leslie Herod, D-Denver, an advocate for promoting racial equality within the criminal justice system, was a member of the "Dream Team" mentioned by Boatright. She said she appreciated Boatright's focus on diversity, that people get fair access to justice, along with advocating for more justices of color. "That is strong, demonstrable progress. But you overlay that with the allegations of the past. That's a fog that will reign over judicial until we get this problem fixed and the wrongs righted."
Herod said it will be hard to have that conversation. She also said there isn't enough transparency in the judicial branch, which Boatright alluded to. More steps will be taken, Herod said.
The Colorado judicial system, including its nomination, evaluation and discipline processes, are viewed as a "gold standard" across the country, said Sen. Pete Lee, D-Colorado Springs, but it's been substantially tarnished by the allegations. "As a 40-year lawyer, I'm shocked and devastated by what I've heard. I've always had great respect for judges and viewed them as the pinnacle of their profession. To hear what has gone on, a lack of accountability and transparency is really disturbing. It has undercut the faith of people in the judicial system. When people don't have faith in the integrity of systems, they don't follow the systems, defer or respect them."
Lee said he was glad Boatright accepted accountability for the judicial branch, which he called necessary for moving forward.
"It will take an independent, detailed investigation of the contract and allegations, as well as policies and procedures that allowed that conduct to take place," he said. "Ultimately, I suspect there may be some recommendations for systemic change." Lee said those changes could be constitutional or legislative, although he wouldn't forecast what they could be.
This article has been updated.