Without clarity, state Supreme Court marginalizes misconduct allegations | MAES | Opinion

Much has been written about the 2019 Pay for Silence scandal, which involved the highest levels of Colorado’s judiciary, including the Colorado Supreme Court. A report by David Migoya of the Denver Gazette revealed that then-Chief Justice Nathan Coats was willing to offer a multimillion-dollar contract to Mindy Masias, then chief of staff for the state court administrator’s office. This was despite the fact that Masias was facing disciplinary action for some of the irregularities. It was reported that Masias was willing to dish out her “dirt” regarding the favorable treatment of certain judges accused of judicial misconduct unless she was otherwise compensated. Thus, the offer of the multimillion-dollar consulting contract. Once the story broke, the offer was rescinded.

The judiciary, under Chief Justice Brian Boatright, has been criticized for its lack of transparency in disclosing the scandal, including allowing the judicial disciplinary process to be compromised by avoiding the constitutional requirement that all judicial disciplinary matters be referred to the Colorado Commission on Judicial Discipline (CCJD). The seriousness of the scandal led to the formation of a bipartisan legislative committee to examine the myriad concerns and the passage of some legislation to address these issues.

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The Supreme Court commissioned two reports, one prepared by Robert Troyer's firm, RCT Ltd., which cost taxpayers about $500,000 to investigate the specific contract allegations and also to delve deeper into the culture surrounding the entire judiciary. True to the loyalty expected of a mercenary, RCT repeated what Boatright wanted the public to believe.

Boatright was quick to protect the behavior of some officers and court staff and publicly attack those he deemed untrustworthy. Following his public comments, I filed a Request for Evaluation (RFE) with the CCJD alleging that Boatright violated certain rules resulting in judicial misconduct, which I will address in more detail later. An RFE is essentially a complaint.

As is usual when a government institution is exposed to wrongdoing, promises of change abound. In response to the Troyer report, Boatright said: “Our judges and their staff, probation departments, the broader legal community, elected officials, regulators and the Coloradans who rely on our justice system need to know – or be able to to know – how the judicial system The Directorate ensures responsibility for its mission and deals with professional misconduct. This is a key priority for the future.

Let me share my experience in handling my RFE. The reader can draw his own conclusion as to whether the promised “accountability” was fulfilled.

Rule 2.10(A) states that a judge “shall not make any public statement that could reasonably be expected to affect the outcome or prejudice the fairness of any pending or imminent matter before a court, nor shall he make any nonpublic statement that might interfere with a fair trial or hearing.” It was entirely possible that the Supreme Court would be called upon to consider issues concerning the Masias contract in a dispute involving civil, criminal, or judicial misconduct proceedings, thereby violating Rule 2.10(A). Incidentally, the possibility of bringing criminal charges against individuals implicated in the scandal had to be ruled out because the statute of limitations was allowed to expire despite the fact that the Colorado Supreme Court, the state attorney general, and the Denver district attorney were involved.

Boatright reportedly said in a newspaper article that former Chief Justice Nathan Coats and his attorney would never allow judicial resources to silence a blackmailer and that any statements to the contrary were “simply false.” The denial was issued without a thorough investigation and failed to comply with the constitutional requirement that any allegations of judicial misconduct be referred to the CCJD for an independent investigation.

Boatright violated Rule 2.10(B), which provides that a “judge shall not, in connection with any case, controversy, or question that may come before the court, make any promise or undertaking that is inconsistent with the impartial execution of judgment.” duties of the judicial office. Yet Boatright announced that the court would hire private counsel to investigate the allegations and “exonerate those who are wrongly accused.” He further called Coats and his counsel “dedicated public servants” and said that he and other judges had “full confidence” in a judge who allegedly committed acts of judicial misconduct. Does this behavior pass the test of impartiality?

Rule 2.9(A) regarding ex parte communications states: “A judge shall not initiate, authorize, or review ex parte communications made to the judge outside the presence of other parties or their counsel regarding a pending or threatened matter…” and Rule 2.9(C) prohibits a judge from independently investigating the facts. Despite these prohibitions, Boatright announced on February 16, 2021, that he would be notified weekly of all “complaints of misconduct throughout the department to ensure that each incident is thoroughly investigated and appropriately acted upon without delay.” Again, this violates the constitutional requirement that complaints of judicial misconduct be directed to the CCJD.

A history of the handling of the asylum applications I filed is necessary to describe the CCJD's lackadaisical approach to cases of alleged serious judicial misconduct and calls into question the way in which other complainants have been or are being treated.

I filed the RFE on November 15, 2022 and confirmed that it was received by the CCJD on November 28, 2022.

Three months later, on February 27, 2023, the CCJD determined that the allegations were sufficient to proceed as a complaint and received my consent to transmit the complaint to the Colorado Supreme Court and identify me as the plaintiff.

Colorado Civil Rule 14 provides: “As soon as possible after the members of the commission have concluded that the allegations are sufficient to be treated as a complaintThe commission must provide written notice to the judge of the allegations and begin an investigation.” (emphasis added)

The CCJD sent the Rule 14 notification letter and a copy of my inquiry to Chief Justice Boatright on December 14, 2023, approximately 10 months after approving the complaint for investigation. What happened during that 10-month time frame is known only to the Commission, but it certainly stretches the “as soon as practicable” language, depending on one’s definition.

Boatright submitted his response to the allegations on January 15. I have not received and will not receive his response and, obviously, I will not have the opportunity to examine it closely. Nor will I have the opportunity to challenge the evidence on which he relied to inform the commission and, of course, I will not have the opportunity to refute what has been put forward. I disagree with this statement, because such a process “ensures accountability,” as Boatright promised.

I have intermittently requested a progress report on my RFE and have been told that the investigation is continuing.

I received the following from the CCJD on June 11, 2024, approximately 19 months after filing the RFE: “Regarding your allegations against Chief Justice Boatright, your RFE asserts that he violated (a) Canon Rule 2.9 relating to ex parte communications; (b) Canon 2.10(A) regarding comments on pending or threatened cases; (c) Canon Rule 2.10(B) relating to promises about the outcome of cases; (d) Canon Rule 2.11(A) relating to judicial challenge; and (e) Canon Rule 2.15(A) relating to reporting known judicial misconduct.

“After a thorough review of this matter, including Chief Justice Boatright's response to your RFE, the Commission has rejected the allegations that Chief Justice Boatright violated Canon Rules 2.9, 2.10(B), 2.11(A). ) and 2.15(A).

“Your allegation that Chief Judge Boatright violated Canon Rule 2.10(A) (regarding inappropriate public comments) was also dismissed, but with an expression of concern, pursuant to Colo. RJD Rule 35(a). In short, the Commission determined that the allegations contained in the complaint did not warrant disciplinary action.

“This matter is now closed and, pursuant to Colo. RJD 6.5, it must remain confidential.”

The letter does not provide an explanation of what “an expression of concern” means.

As a former judge who has had to explain to me the evidence I relied on to make my judicial decisions, as is the norm for all judges (including those who serve on the CCJD), I am appalled, stunned, and feel extremely marginalized by the lack of substance and clarity regarding very serious allegations about the Chief Justice of the Colorado Supreme Court and the system that is supposed to address issues of judicial misconduct.

While I was skeptical of the different outcome, I expected the case to be handled in an essentially professional manner through specific findings of fact relating to the allegations and Boatright's response. Such a process would allow the reader to draw his or her own conclusion about the credibility of the report. Instead, the results validate all the reasons given by others for not bringing charges against those isolated by the powers that be – namely, the protection of judges at all costs.

Boatright's promise is just a repetition of the same old hackneyed answer in the hopes that the public will forget.

Until the Colorado Supreme Court is removed from the scrutiny of judicial misconduct, the stain of the Boatright court's damage will remain eternal.

Dennis Maes served as a judge in the 10th Judicial District of Pueblo for 24 years and was chief judge for 17 of those years. He previously served as director of Pueblo County Legal Services, Inc.; as a public defender and as an attorney in private practice.