The Commission on Judicial Discipline-Part 3

We doubt that very many Coloradan's understand that complaints against judges are secret, well sort of secret anyway.  This is the third Post in a Series of four.  Article IV of the Colorado Constitution provides:

Section 23 (3) (f) Following receipt of a recommendation from the commission, the supreme court shall review the record of the proceedings on the law and facts and in its discretion may permit the introduction of additional evidence and shall order removal, retirement, suspension, censure, reprimand, or discipline, as it finds just and proper, or wholly reject the recommendation. Upon an order for retirement, the justice or judge shall thereby be retired with the same rights and privileges as if he retired pursuant to statute. Upon an order for removal, the justice or judge shall thereby be removed from office, and his salary shall cease from the date of such order. On the entry of an order for retirement or for removal of a judge, his office shall be deemed vacant.

As stated in the previous post, the Commission is powerless.  Even if the four non-lawyer members prevailed or two lawyers to join them in recommending a punishment, the Supreme Court can reject the recommendation.  Our favorite mantra applies:  Lawyers protect judges, judges protect lawyers and no one protects the public. 

(g) Prior to the filing of a recommendation to the supreme court by the commission against any justice or judge, all papers filed with and proceedings before the commission on judicial discipline or masters appointed by the supreme court, pursuant to this subsection (3), shall be confidential, and the filing of papers with and the giving of testimony before the commission or the masters shall be privileged; but no other publication of such papers or proceedings shall be privileged in any action for defamation; except that the record filed by the commission in the supreme court continues privileged and a writing which was privileged prior to its filing with the commission or the masters does not lose such privilege by such filing.

This is our favorite paragraph of all.  It deserves, and will get a post all to itself, but for those too time constrained to go there:  This paragraph not only allows the Supreme Court to keep judicial discipline a secret, it requires it to do so.  While citizens who want to make a complaint are required to keep the complaint secret in all cases, the papers can be opened to allow a judge to sue for defamation.  Further, judges are not required to keep the fact that they were complained against secret from their colleagues, which very likely contributed to the DA Carol Chambers situation just before the election.  Other than the Campaign Finance Reform amendment, this is very likely the most anti-citizen's rights paragraph in the Colorado Constitution.

(h) The supreme court shall by rule provide for procedures before the commission on judicial discipline, the masters, and the supreme court. The rules shall also provide the standards and degree of proof to be applied by the commission in its proceedings. A justice or judge who is a member of the commission or supreme court shall not participate in any proceedings involving his own removal or retirement.

One of the rules that the Supreme Court has implemented makes it impossible to discipline a judge while a trial is still active.  We know of one judge who brought both the trial and the disciplinary proceedings to a permanent halt simply by refusing for more than two years to rule on a recusal motion (recall that state law requires a ruling within 90 days).  The commission claimed that it couldn't act on a complaint about the two year delay because the trial was still technically active.  Catch 22 is alive and well. 

Comments

[PeteSmith]

Here's my question: If the statute appears to provide for the possibility for the judge to undertake a defamation action (an increasing phenomenon - see http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1182416757114), how would the allegedly injured judge[s] be able to overcome Colorado's SLAPP statute and/or the Sovereign Witness Immunity Doctrine?

Colorado's SLAPP statute, best memorialized in Protect Our Mountain Env't, Inc. v. District Court, 677 P.2d 1361 (Colo. 1984) and Scott v. Hern, 216 F.3d 897 (10th Cir. 2000) immunizes any petitioning activity (such as filing a grievance with Wehmhoefer's Commission for the Abolition on Judicial Discipline), unless said filing falls in the narrow crack known as the sham exception (petitioning devoid of any basis in either fact or law). See also Columbia v. Omni Outdoor Advertising, Inc., 499 US 365 (1991); Pring, SLAPPs: Lawsuits Against Public Participation, 7 Pace Envtl. L. Rev. 3 (1989).

Further, isn't a complainant considered a complaining witness (under Briscoe v. LaHue, 460 U.S. 325 (1983)) for any and all statements made in the course of petitioning (affidavits, in court testimony, pleadings, etc.)? See Hoffler v. Colo. Dept. of Corrections, 27 P.3d 371, 373-74 (colo. 2001) (collecting cases concerning privileges and immunities of parties, witnesses and others involved in litigation). See also Burns v. Reed, 500 U.S. 478 (1991) (Justice Scalia concurring in part, dissenting in part); J. Townshend, Slander and Libel 347-367 (2d ed. 1872).

So, exactly how would a judge be in a position to sue a complainant?