SUPREME-COURT-10262021-KS-234

ARVADA, CO - OCTOBER 26: Chief Justice Brian D. Boatright of the Colorado Supreme Court addresses an auditorium full of students at Pomona High School before he and the other six members of the court hear two cases at the high school on October 26, 2021 in Arvada, Colorado. The visit is part of the Colorado judicial branch’s Courts in the Community outreach program. (Photo By Kathryn Scott)

Colorado Supreme Court Chief Justice Brian Boatright last year insisted the commission investigating allegations of judicial misconduct issue a subpoena for any information in order to prevent the media – and by extension the public – from getting access to details about the scandal inquiry, according to emails obtained by The Denver Gazette.

The push to thwart press coverage came amid what members of the Colorado Commission on Judicial Discipline had described as a methodical effort by the Judicial Department to prevent or stall the commission's work in investigating the scandal since it erupted in February 2021.

Boatright said “very emphatically” during a parking garage encounter with William Campbell, then the executive director of the Colorado Commission on Judicial Discipline, that a subpoena from the commission would take away any argument the media would have to access the information it had requested, as well as stop any possible leak that “might disrupt the process.”

“He doesn’t want to give (the information) easily,” Campbell wrote in an email disclosing to the commission members his conversation with Boatright on July 29, 2021, “lest the press will ask for it and there won’t be any credible way to decline providing it.”

Campbell’s email did not describe any legal basis for why Boatright thought a subpoena was otherwise necessary.

The Judicial Department on Monday said through a spokesman that "the department and the chief justice did not take any action for the purpose of keeping information from the media or the public."

In his email, Campbell also said Boatright told him he was personally “encouraging” the attorney general “to find a way to represent” the commission in its investigation, bypassing the need for an outside special counsel the commission was looking to hire because of conflicts of interest. A second email the same day by Campbell to the commission members described a discussion he had had with the Attorney General's office about how it frequently sits on both sides of a legal fight and was seriously considering simultaneously representing the discipline commission on one side and the Supreme Court on the other.

The emails were only partially disclosed last August in a letter the commission wrote to a legislative panel conducting hearings on potential reform to the state’s judicial discipline process. They give a more complete assessment for why the commission issued a subpoena in late 2021 – the first time it had ever done so.

The department, through a spokesman, on Monday said the garage meeting "was a sincere attempt to explain to the Commission how it could access documents and information. Any characterization of the meeting as something else is an attempt to sensationalize a good-faith discussion."

The Denver Gazette requested the emails in September from the Judicial Department under its open-records rules and, despite having to pay a fee of more than $300, received only redacted copies of the correspondence. The department had earlier obtained the emails from the commission because of the commission’s August letter to the legislative committee. The commission is not subject to open records laws and nearly all its work is done in secret.

The department said it had redacted the emails it provided to The Denver Gazette because they contained privileged or confidential information, but would not generally describe what that was.

On Monday, it said in an email that it "did not release the emails in unredacted form because it is the Department’s position that the redacted information pertains to proceedings of the Commission and a specific investigation, and as such is confidential under the Constitution, statute, and court rules."

The newspaper appealed to the commission directly, asking for it to release the emails it had already furnished the Judicial Department because they were not considered confidential. The commission provided the emails to the newspaper on Friday.

Campbell wrote that Boatright “seemed very sincere” in the garage discussion, which appears to have occurred as Boatright was “getting ready to drive away.”

“That’s why they are suggesting a subpoena since they could grant that to us and deny it to others,” Campbell wrote.

Campbell retired in December 2021 and was replaced by Christopher Gregory the following month.

The commission issued a subpoena in January 2022, saying the production of records it requested from the department wasn’t being done voluntarily. It did not say the subpoena appears to have actually been the department’s desire all along, according to the emails.

In its statement Monday, the department said it "has repeatedly stated a subpoena was necessary to comply with the Department’s contractual obligations, and an agreement on the treatment of privileged records was necessary to avoid waiving any privileges."

The commission for months had complained, sometimes openly, about difficulties it was having in obtaining information from the department in its inquiry into alleged judicial misconduct.

The inquiry hinges on a February 2021 newspaper report that disclosed allegations of a quid-pro-quo scheme in which the department granted a multi-million-dollar contract to a former high-ranking department official who threatened a tell-all sex-discrimination lawsuit.

Subsequent investigations by firms hired by the department rebutted those assertions and determined no quid-pro-quo contract existed, though the probes found that misconduct and mismanagement was prevalent throughout the contract process.

When news of the contract scheme broke, the discipline commission quickly launched into a fact-finding effort to determine whether any of the allegations of misconduct were true.

The court also made public statements that the accusations could not be true, a move that concerned some legal experts who noted the court could eventually be called on to render an opinion on any disciplinary outcome.

The commission’s August letter to the legislative committee described a methodical effort by the department to prevent or stall the commission’s work in investigating the scandal.

It laid out nearly a step-by-step process in which the department intentionally stalled the commission at every turn, from a delay in producing documents to arguing the commission had no right to them in the first place.

The department at the time said the assertions were misstatements and misquotes that wrongly implied ill-intent by its leadership.

The legislative committee last month issued a pair of recommendations – including a voter referendum to amend the Colorado Constitution – for how the discipline process for judges should change.

If approved, the referendum would remove the state Supreme Court from its oversight authority of the commission, make the now-secret process a public one when formal charges are filed, and create a three-person panel to hear cases and render discipline.

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