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It has been five years since the Colorado Supreme Court under the then- leadership of Chief Justice Nathan Coats was rocked by a pay-for-silence scandal that would pay a high-ranking member of the State Court
Administrator Office $2.5 million to remain silent about judicial
misconduct that took place during her watch. The administrator was facing discipline for allegations of financial misconduct.
The unraveling of the scandal through the reporting of David Migoya, investigative reporter for The Gazette, subsequently brought to light many instances of subpar performance and ethical concerns surrounding the
Supreme Court Nominating Commission, The Judicial Performance Commission
and the Colorado Commission on Judicial Discipline. The three commissions
are essential to the meaningful public oversight of the Colorado
judiciary.
The scandal resulted in the first and only public discipline of a chief
justice of the Colorado Supreme Court, Coats. While Coats� discipline was pending, I submitted a Request for Evaluation concerning the judicial
conduct of the other justices. The Commission of Judicial Discipline
recognized my request as a valid complaint pursuant to the judicial code.
And acknowledged there was a reasonable basis to suspect that Coats�
successor, Chief Justice Brian Boatright, and the other justices violated
the code for commenting on pending or impending cases, namely judicial discipline proceedings against Coats and the other justices themselves. Ultimately, the allegations were arbitrarily dismissed by the Commission
of Judicial Discipline �with an expression of concern.� More on that topic later.
After the bombshell report, Coats� successor, Boatright, authorized the expenditure of $350,000 of taxpayer money to conduct what he called an �independent investigation � into the workplace culture within the
judicial department. The results of the self-serving investigation
predictably downplayed the Supreme Court�s obvious misdeeds.
It was recently disclosed that the judicial department paid $155,000 to
settle cases against two now-retired judges, John Scipione, a former
Arapahoe County district judge, and Robert Kiesnowski, a former Adams
County district judge, who had been disciplined for judicial misconduct occurring during Boatright�s tenure as chief justice. Both judges received their full monthly salaries prior to their retirements
The justices ordered Scipione to pay the Commission of Judicial Discipline $51,189.50 in attorney fees and Kiesnowski to pay $4,966.95 in attorney
fees. The Commission of Judicial Discipline�s 2024 annual report does not disclose whether 21 judges who failed to file financial disclosures in violation of the code and statutory law were required to pay attorney fees including 15 judges who received a dismissal with �an expression of
concern.� It is obvious the Supreme Court justices feel free to fritter
away the taxpayers� money in violation of the fiduciary responsibility it
has to the taxpayers.
New chief, same game
Chief Justice Monica Marquez was selected to succeed Boatright upon the completion of his term and was mentored by him during that time. She was
aware of the circumstances surrounding the pay-for-silence scandal but
like the other justices failed to report it to the Commission of Judicial Discipline as required. Marquez frequently praised Boatright�s service and committed that she would be following his lead in lockstep.
In yet another exhibition of fiscal irresponsibility, Marquez recently presented her annual budget request to the Legislature, requesting an additional 29 judges who claim to be overworked. One of the members of the Joint Budget Committee took the judicial department to task for requesting increases in a tight budget year but not offering suggestions where cuts
might be made.
Not to be dissuaded, Marquez is requesting an additional appropriation of upwards of $52 million. The executive director of the judicial performance commission and the judicial discipline commission testified on behalf of
the excessive budget request in a show of fealty to their master.
During the 2024 general election, the judicial performance commissions
which are charged with providing accurate and substantive information to
the voters concerning judges who are up for retention were heavily
criticized for favoring judges and neglecting to report negative behavior. Included were the vast number of judges who failed to file compulsory
financial information as required by law. A violation of the law is a misdemeanor and punishable by a fine up to $5,000.
Nevertheless, Marquez recently granted senior judge status to a retired
judge despite the state�s appellate court overturning convictions and
sentences in numerous cases the judge handled due to her errors.
The cases involved the following: allowing prosecutors to give a false impression to jurors about DNA evidence in a sex assault case; permitting multiple defendants to represent themselves without ensuring they had
validly given up their right to counsel; blocking a defendant from telling
the jury his alibi; allowing a defendant�s lawyer to withdraw without
informing the defendant of her rights; subjecting a defendant to lifetime
sex offender registration without explaining why; allowed a biased juror
to serve in a drunk driving case; declining to correct a prosecutor who misstated the law to jurors; barring crucial testimony for a vehicular
homicide case which enabled the prosecutors to misrepresent the facts to
the jury, and twice failing to require defendants to pay restitution
within the required period including one judge commenting that she �recharacterized history� by including language in an order that was not supported by the evidence.
Additionally, the same retired judge was one of the judges who failed to
file financial disclosures for several years in violation of judicial
ethics and state law.
The retired judge�s history was easily verifiable by Marquez. However, consistent with the dereliction of the judicial performance commissions,
it was seemingly ignored. When Marquez was asked why she believed the
judge was fit to serve despite her appellate record, she declined to
comment.
As with any scandal, Watergate comes to mind. The cover-up that ensues is
as damaging as the scandal if not worse. What is inexplicable during the
number of years the scandal has breathed life is the failure of the
Supreme Court leadership and the previously mentioned commissions to
embrace transparency and full disclosure of judicial misconduct.
The recent passage of Amendment H � restructuring the judicial discipline process � by an overwhelming majority of voters is evidence that the
public does not trust the judicial department to monitor the behavior of
judges through the Colorado Supreme Court. Amendment H resulted in
removing that authority from the Supreme Court.
Playing favorites?
A major discovery uncovered by the scandal was that the Colorado Supreme
Court had departed in some instances from the requirement that complaints
of judicial misconduct must be reported to the Commission of Judicial Discipline. There were repeated instances where complaints were handled directly by the Supreme Court amidst allegations that preferential
treatment was provided to certain judges. It remains extremely concerning
that the highest court in the state would intentionally ignore the law pertaining to judicial discipline.
Indeed, instead of requiring compliance with the law Boatright required
that he be kept abreast of judicial discipline matters on an ongoing
basis. This was and is contrary to the law. Confidentiality of proceedings before the Commission of Judicial Discipline is required to protect the integrity of the investigation. Chief Justice Marquez is apparently
following the same path contrary to the law and in violation of the
requirement that preliminary proceedings before the Commission of Judicial Discipline are confidential. The Supreme Court and the justices are not
exempt from the confidentiality requirement.
The Commission of Judicial Discipline recently released its 2024 annual
report which raises serious concerns surrounding its methodology when
examining and determining appropriate disciplinary action once a Request
for Evaluation is deemed meritorious to conduct further investigation.
Of interest was the explanation of the process the commission used in
examining the numerous complaints of judges who failed to comply with the
law requiring judges to file personal financial disclosures. While it was enlightening that the commission would provide such transparency �
especially in light of the public reporting of the many failures � it begs
the question why more thorough explanations of the commission�s
undertakings are not subject to public examination.
Instead, theCommission of Judicial Discipline hides behind the broad and largely self-defined concept of �confidentiality� (but for the exceptions carved out by Boatright and Marquez) which is the department�s way of protecting its robed servants.
For example, the report went through great lengths to explain why the commission did not adopt a one-size-fits-all in its response to the
individual judges� responses as to why they failed to follow the law. Yet,
it ignored addressing a judge who was a member of the commission and who ignored the reporting requirements.
The same commission member was also reported to have recused herself from certain commission deliberations without a public explanation of the
reason for her recusal. Judges should be required to explain why they are recusing to assure the public they are not presiding over a matter that presents an appearance of impropriety. I am unaware of any law that
prohibits a judge from providing reason(s) for recusal.
The Commission of Judicial Discipline annual report provided a report of
the commissioner recusals but does not address Supreme Court justices�
recusals as required by CRJD Rule 41 (a) (b) (1). It has been reported
that an extensively detailed anonymous request against the justices of the Supreme Court was filed in October requesting the disqualification of the Commission of Judicial Discipline and Supreme Court justices. The filing
and request should have triggered Rule 41 and the required reporting of
the Commission of Judicial Discipline�s disqualifications in the 2024
annual report. Neither the anonymous RFE nor the Commission of Judicial Discipline�s response were included. Consistent with this apparent nondisqualification and efforts to suppress the anonymous RFE I, also, was never provided with notice of recusals in the RFE I filed against
Boatright and the justices, contrary to the rule and the Commission of
Judicial Discipline�s statutory notification requirements.
Ducking discipline
An additional area of concern is the commission�s use of dismissing a substantiated complaint �with a statement of concern.� The Commission of Judicial Discipline issued 18 dismissals with concern in 2024, one of
which involved my RFE and the Commission of Judicial Discipline�s
recognition of a complaint against Justice Boatright.
The commission�s claims it typically issues a �dismissal with concern�
where it believes discipline is not necessary or appropriate believing
�that personalized communication with a judge regarding their ethical obligations would be illuminating or helpful� and offering suggestions to assist the judge.
Previous annual reports explained the conduct addressed that resulted in
the �statement of concern� without identifying the judge. The most recent report lacks transparency by neglecting to define the behavior or
circumstances involved.
A dismissal �with a statement of concern� apparently does not provide the gravitas that would statutorily disqualify an individual from entrance
into the senior judge program pursuant to statute. If it were otherwise,
judges who failed to file financial disclosure statements would be
prohibited from serving.
Because the complainant and the public were not provided with the
Commission of Judicial Discipline�s determination, they are unaware
whether the allegation(s) were sustained or not. The complainant should be entitled to know but isn�t because of the commission�s arbitrary confidentiality shield.
The Colorado Supreme Court is not serious about providing a comprehensive
and transparent method for informing the public about judicial misconduct.
It continues to take a dismissive attitude toward the subject in spite of
the shame it has brought upon the judiciary.
Amendment H should be the beginning of providing public insight into the disciplinary process involving judges. Further reform would endorse the
belief that no one, including judges, is above the law.
Dennis Maes served 24 years as a 10th Judicial District judge in Pueblo
and was chief judge for 17 of those years. He served as director of Pueblo County Legal Services as a public defender and as an attorney in private practice.
Dennis Maes served 24 years as a 10th Judicial District judge in Pueblo
and was chief judge for 17 of those years. He previously served as
director of Pueblo County Legal Services as a public defender and as an attorney in private practice.
https://gazette.com/opinion/perspective-colorado-s-unaccountable- judges/article_f3d35206-ef95-11ef-9c4c-ffa9e6de4393.html
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