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Eric Sondermann

Eric Sondermann

Here is a question: Is the Colorado judiciary a co-equal branch of government, subject to similar principles of openness and transparency as those imposed on the legislature and the executive?

Or is the judicial department a fiefdom unto itself with absolute prerogative, even gall, to set its own rules and hide from public inspection behind a cloak of black robes?

The recent record would indicate the latter. With a heavy ration of arrogance thrown into the mix.

In a state that has long placed premium value on governmental sunshine, an overdue pushback is brewing. The reports are accelerating — and going from bad to worse. Within 12 hours of writing this column, a revision was necessary due to the release of a years-old memo detailing conduct that can only be described as lewd and gross.

Before getting into the meat of the abuses, credit is due a number of local journalists who have done much of this hard, dogged work over several years. That list is topped by David Migoya at the Denver Post and Susan Greene, formerly editor of the Colorado Independent.

The piece de resistance du jour (who says we’re not bilingual around here?) is the reported $2.5 million contract (yes, you read that amount correctly) given to an about-to-be-fired judicial department employee who had threatened a tell-all lawsuit.

When it comes to corrupt means of purchasing silence, there are Mafia dons out there taking notes. Along with Catholic Church bureaucrats.

“Oh, so you have documented evidence of serious misbehavior on the part of more than 20 judges and department executives? How about a little contract for ‘judicial training.’ Will two-and-a-half million smackeroos be sufficient?”

As a sidebar, just how much so-called judicial training does one get for $2.5 million? Even if this employee on the verge of being canned is a supremely talented trainer and warranted $250 per hour for her refined expertise, that comes to an unimaginable 10,000 hours.

Of course, this reeks of bad faith, reckless spending and a cover-up. So much so that the State Auditor’s Office is now involved, fresh on the heels of an already damning review of the department that called out the lack of any “culture of accountability.”

The internal department memo released under pressure this past week documents a disgusting swamp of sexual discrimination, harassment, e-mail pornography and all manner of conduct beneath a run-of-the-mill office, much less the state’s highest courts.

Both the State House and Senate are threatening action. Where once the judiciary floated above and free of such Capitol oversight, the department is now squarely in the legislature’s sights. Might a special prosecutor be not all that far behind?

It is important to distinguish between administrative matters and the deliberative process leading to judicial decisions in civil and criminal cases. But even in that second category, the recent track record is not a stellar one.

In 2018, the State Supreme Court rejected the Colorado Independent’s attempt to gain access to records in a capital murder case rife with credible allegations of prosecutorial misconduct. In her very first decision on the bench, Justice Melissa Hart tried dancing on the head of a pin in obtusely distinguishing between public access to judicial proceedings and to court records. Thumbs-up to the former; thumbs-down to the latter.

How disappointing that the granddaughter of Archibald Cox, hero of Watergate’s “Saturday Night Massacre” in championing ultimate accountability and insisting that legitimate scrutiny of public materials extended to the highest office in the land, would rule in such an opposite manner.

Thanks to Justice Hart and her circle-the-wagons colleagues, Colorado is an exception to the trend among courts in other states and federal appellate courts in recognizing the public’s right to view relevant court documents.

The legislature and the executive deal with consequential matters of policy and administration. But it is our courts that settle the most important disputes arising within families and broader society; and that hold the precious keys to liberty through the power of imprisonment for criminal transgressions.

Given such muscular authority, should our judiciary not be among the most crystal clear and unclouded of our institutions, highly open to public inquiry? What in the world is the counter-argument in favor of secrecy, opaqueness and imperial unaccountability?

Then there are the separate but still related issues of judicial discipline and judicial retention. To be sure, many complaints against judges are of little merit and stem from an adverse ruling. Dispose of them forthwith. But each year, dozen of Colorado judges are disciplined for ethical breaches or serious misbehavior, almost always behind a veil of secrecy.

When elected officials are found to have engaged in such misdeeds, it is regularly reported on the front pages. Why is there a separate standard and a presumptive right of privacy for those with gavels and robes?

As to Colorado’s system of judicial selection and retention, I have generally been a supporter of this process. But it, too, has its flaws and is due for a sober evaluation, especially the rather pro forma retention exercise.

In no way is this a case for electing judges. That is a cure far worse than any ailment. But neither should we regard our system as somehow perfect or sacrosanct, or beyond criticism and improvement.

When north of 99 percent of judges are retained in office, invariably by huge margins, that voting process has lost utility and meaning. That is most often even the case for those few judges who receive a negative review and recommendation.

Most members of Colorado’s judiciary render honorable, informed, conscientious service. But there are exceptions. As in any business, there are low performers. And as we are learning, some low characters.

Further, it is a system that exhibits little appetite for basic precepts expected and required of other branches of government. We now have vivid evidence of how it protects its own at all costs.

Colorado is finally taking notice that its overly insular court system includes some rotten pieces. Which are starting to smell.

Eric Sondermann is a Colorado-based independent political commentator. His weekly column appears every Sunday in ColoradoPolitics. Reach him at EWS@EricSondermann.com; follow him at @EricSondermann on Twitter

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