May 25, 2019

Colorado Supreme Court: Proper Sanction for Judge’s Improper Communications Is Acceptance of Resignation, Censure, and Payment of Costs

The Colorado Supreme Court issued its opinion in In the Matter of Laurie A. Booras on Monday, March 11, 2019.

Judicial Discipline—Sanctions.

In this judicial disciplinary proceeding, the supreme court considered the exceptions of a now-former Colorado Court of Appeals judge to the Colorado Commission on Judicial Discipline’s (Commission’s) recommendation that the judge be removed from office and ordered to pay the costs the Commission incurred in this matter.

The Commission’s recommendation was based on factual findings and conclusions of law determining that the judge had violated Canon 1, Rule 1.2, Canon 3, Rule 3.1, and Canon 3, Rule 3.5 of the Colorado Code of Judicial Conduct by (1) disclosing confidential information belonging to the court of appeals (namely, the vote of a court of appeals division on a case prior to the issuance of the decision in that case) to an intimate, non-spousal partner, and (2) using inappropriate racial epithets in communications with that intimate partner, including a racially derogatory reference to a court of appeals colleague.

The supreme court concluded that the Commission properly found that the judge’s communications with the judge’s then-intimate partner were not protected by the First Amendment. The court further concluded that, given the judge’s resignation, which the judge tendered and which became effective after the Commission made its recommendation, the court need not decide whether the judge’s removal from office was an appropriate sanction. Rather, the court concluded that the appropriate sanction in this case is the acceptance of the judge’s resignation, the imposition of a public censure, and an order requiring the judge to pay the Commission’s costs in this matter.

Summary provided courtesy of Colorado Lawyer.

UPDATED: Colorado Supreme Court Amends Several Rules of Judicial Discipline

Editor’s Note: On June 20, 2012, the Colorado Supreme Court announced that a different rule change will be categorized as Rule Change 2012(06). This rule change will now be categorized as 2012(07). Click here to review the redline changes (still labeled as 2012(06)) and click here to review a clean copy of the finalized Rules of Judicial Conduct (labeled as 2012(07)) .

The Colorado Supreme Court has amended several Rules of Judicial Discipline. Many changes were made to the rules, including some renumbering. Affected rules include:

  • Rule 4. Jurisdiction and Powers
  • Rule 5. Grounds for Discipline
  • Rule 18.5. Special Masters [formerly Rule 24]
  • Rule 21.5. Discovery
  • Rule 33. Record of Proceedings
  • Rule 33.5.  Disability Proceedings
  • Rule 36.5. Conviction of a Crime
  • Rule 37. Recommendation and Notice
  • Rule 40. Decision

These amendments were adopted on March 22, 2012 and are effective immediately.

Click here to review the red line changes to the Rules of Judicial Discipline, outlined as Rule Change 2012(06).

Governor Hickenlooper Makes Appointment to the Commission on Judicial Discipline

On Friday, October 21, 2011, Governor John Hickenlooper announced numerous appointments to several Boards and Commissions. Among them was an appointment made to the Commission on Judicial Discipline.

David Lee Dill was appointed to the Commission to serve as a non-attorney. Dill is from Pueblo and his appointment was occasioned by the resignation of Judy Weaver, also from Pueblo. His term will expire on June 30, 2015.

The Commission on Judicial Discipline monitors and disciplines misconduct of judges and justices of the state courts of Colorado and provides education programs to judges on their ethical obligations under the Colorado Code of Judicial Conduct. The appointment must be confirmed by the Colorado Senate.

Tenth Circuit: Attorney Fees Awarded as Preliminary Injunction Made Petitioners ‘Prevailing Parties’ in Dispute that was Later Dismissed as Moot

The Tenth Circuit Court of Appeals issued its opinion in Kansas Judicial Watch v. Stout on Tuesday, August 9, 2011.

The Tenth Circuit reversed and remanded the district court’s decision. The case arises out of a challenge to Judicial Rules of Conduct. Kansas provides for the popular election of judges in almost half of its judicial districts, and from 1995 to 2009, the Kansas Code of Judicial Conduct prohibited judicial candidates from making certain kinds of pledges and commitments and from personally soliciting support for their campaigns. In 2006, these restrictions were challenged as being unconstitutional, violating the First and Fourteenth Amendments by infringing the rights of free speech and association. When the Rules were ultimately altered as this case was proceeding, the petitioners’ preliminary injunction was vacated and the case was dismissed as moot.

However, Petitioners claim they are entitled to attorney fees; “[t]hey argued that they qualified as ‘prevailing parties’ entitled to a fee award under 42 U.S.C. § 1988 because the preliminary injunction constituted a ‘judicially enforceable judgment that materially alter[ed] the legal relationship between the parties.'” The Court agreed. Petitioners “obtained a preliminary injunction that provided some of the relief sought in the complaint, represented an unambiguous indication of probable success on the merits, and was dissolved only after the actions of third parties mooted the case. Under these circumstances, [the Court] that [Petitioners] are ‘prevailing parties’ within the meaning of 42 U.S.C. § 1988.”

Judge Robert E. Blackburn Appointed as Member of the U.S. District Court for Colorado’s Disciplinary Panel

On Wednesday, August 3, 2011, the Chief Judge of the United States District Court for the District of Colorado appointed Judge Robert E. Blackburn as the third and final member of the court’s Disciplinary Panel. Blackburn fills the vacancy on the Panel that occurred with the resignation of Judge Walker D. Miller.

The Disciplinary Panel is the judicial body with jurisdiction over and responsibility for discipline of members of the court’s bar. The Panel is composed of three district judges; Chief Judge Wiley Y. Daniel and Judge Philip A. Brimmer also sit on the Panel.

Governor Hickenlooper Announces Several More Board and Commission Appointments

On Friday, July 22, 2011, Governor John Hickenlooper announced his appointments to several more Boards and Commissions. The appointments were made to the Commission on Judicial Discipline, the State Board of Licensure for Architects, Professional Engineers and Professional Land Surveyors, the Emergency Planning Commission, and the Securities Board.

The Commission on Judicial Discipline monitors and disciplines misconduct of judges and justices of the state courts of Colorado and provides education programs to judges on their ethical obligations under the Colorado Code of Judicial Conduct. The members appointed, with terms to expire June 30, 2015, are:

  • Albus Brooks, of Denver, to serve as a non-attorney.
  • Judy P. Weaver, of Pueblo, to serve as a non-attorney.
  • David Kenney, of Denver, reappointed to serve as a non-attorney.
  • Federico C. Alvarez, of Denver, reappointed to serve as an attorney.

The State Board of Licensure for Architects, Professional Engineers and Professional Land Surveyors regulates the practice for those professions. Its responsibilities encompass the evaluation of whether applicants are minimally qualified for licensure, the examination of such applicants, licensing, license renewal, setting policy with regard to the practice of the profession, consideration of complaints against licensees and those who may have practiced without a license, and disciplining those who have not complied with the law. The members appointed, with terms to expire July 1, 2015, are:

  • Lawrence T. Connolly, of Durango, reappointed to serve as a professional land surveyor.
  • Earl Fletcher Henderson, of Boulder, to serve as a professional land surveyor.
  • Daniel Joseph Swallow, of Greeley, to serve as a member of the public.

The Emergency Planning Commission conducts assessments of available resources and identifies methods to utilize the available resources at the federal, state, and local levels to react in emergency situations. The members appointed, with terms to expire July 1, 2012, and July 1, 2013, are:

  • Rosemary Margaret Lynch, of Cherry Hills Village, to serve as a representative of a public interest group/community group.
  • The Honorable Wallace L. White, of Durango, reappointed to serve as a representative of local government.
  • Donald F. Sherman, of Golden, reappointed to serve as a representative of the affected industry.
  • Roy V. Rudisill of Greeley, to serve, as a representative of a local emergency planning committee.
  • Stephen D. Riner, of Pueblo, to serve as a representative of the affected industry.
  • Patricia Gail Williams, of Castle Rock, to serve as a representative of a community group.
  • The Honorable Steven A. Boand, of Castle Rock, reappointed to serve as a representative of local government.

The Securities Board aids and advises the securities commissioner in the promulgation of rules, issuance of orders, formulation of policies, the setting of fees, and with other issues affecting the division of securities and securities regulation in the state. The members appointed, with terms to expire July 1, 2014, are:

  • Paul E. Washington, of Boulder, reappointed as a member of the public at large.
  • Mashenka Lundberg, of Golden, as a member who is licensed by the state Supreme Court to practice law in Colorado and who is conversant in securities law.

The full press release from the Governor’s Office concerning these board and commission appointments can be found here.

Colorado Supreme Court Proposes Changes to Rules of Judicial Discipline and Requests Comment

After months of study and debate, the Commission on Judicial Discipline recently proposed a number of revisions to the Colorado Rules of Judicial Discipline (RJD). The Colorado Supreme Court approved these changes in June, and the new rules will take effect in January 2012. The Supreme Court now requests written public comments by any interested person on the proposed revisions made to the Rules.

The changes to the RJD were prompted by the Commission’s experience that certain rules didn’t adequately address the manner in which the Commission should fulfill its responsibilities under the Colorado Constitution. “In particular, concerns had been raised regarding the lack of procedural detail in some aspects of the rules; the scope of the confidentiality provisions; the absence of guidelines as to how to treat cases involving a judge’s mental or physical disability; the authority and responsibility of Commission staff; procedures around a judge’s temporary suspension; and the extent of the Commission’s jurisdiction over a judge who has resigned or retired.”

Revisions to the Colorado rules were informed greatly by the ABA Model Rules for Judicial Disciplinary Enforcement. The Model Rules were promulgated with the goals of ensuring prompt and fair discipline for judges; enhancing public confidence in the judiciary and judicial discipline system; protecting the public and judiciary; and safeguarding the independence of the judiciary. The Commission also turned to the Office of Attorney regulation for guidance regarding the rule-making process and its experience with attorney disciplinary and disability proceedings. Consequently, the proposed changes include several model rule provisions as well as adaptation of certain model rules to reflect the unique needs and requirements of Colorado’s judicial discipline system.

Although some of the revisions merely update terminology and format, others contain important substantive changes. Among the most significant modifications are the following:

New RJD 33.5 provides guidelines as to how the Commission should handle cases involving physical or mental disabilities. Previously, the rules only referred to disabilities in the context of sanctions available in disciplinary proceedings. The new provisions, however, detail the manner in which proceedings can be commenced, distinguish disability from disciplinary proceedings, and provide for various procedures and outcomes if a judge is found to be or stipulates to a disability. The new rule is an amalgam of the ABA Model Rules, practices and procedures of the Office of Attorney Regulation, and the Commission’s view of measures that would be fair and practical.

A substantial amendment of the confidentiality and privilege provisions (RJD 6.5). The Colorado Constitution provides that “papers” and “proceedings” of the Commission are confidential until a recommendation is filed with the Supreme Court regarding discipline of a judge or justice. This provision was intended to safeguard the disciplinary process – shielding the complainant from public embarrassment and fear of reprisal from the judicial officer accused, protecting the reputation of a judge from false accusations while investigations into the complaint are conducted, and promoting confidence in the judiciary by preventing the premature disclosure of unfounded complaints. The previous version of the rule, however, was sometimes read to shield from disclosure in circumstances where the public, attorney discipline agencies, or law enforcement should know about the discipline; the new rule establishes somewhat broader and more clearly defined exceptions to the confidentiality requirement. The new rule would also authorize the Commission to publish summaries of its privately-administered disciplinary dispositions and the Supreme Court’s sanctions.

A clarification of the Commission’s jurisdiction over a judge who resigns, retires, or does not seek retention (RJD 4). The rule provides that the Commission’s jurisdiction includes misconduct or a disability that occurred while the judge was an active or senior judge if the complaint is filed (or commenced by the Commission on its own motion) while the judge is still serving or within one year following the end of the judge’s term of office, date of retirement or resignation, or the end of the judge’s service as a senior judge. The Commission’s jurisdiction continues until a disposition or sanction is determined.

Click here to read more from Summary of Revisions and read the revised Rules in their entirety.

An original plus eight copies of written comments concerning the Colorado Rules of Judicial Discipline should be submitted to the Clerk of the Colorado Supreme Court, Christopher T. Ryan, at 101 W. Colfax Avenue, Suite 800, Denver, CO 80202, no later than Friday, September 30, 2011, by 5 pm.