The Commission on Judicial Discipline-Part 4

The secrecy provisions in the Constitution are designed to protect judges from public criticism.  However, the secrecy goes only one way.  While citizens who make complaints against judges are unable to tell anyone but their lawyer about the complaint, judges whose performance draws complaints are free to tell anyone.  They can even get the complaint, itself, released so that they can sue the citizen making the complaint for defamation. 

Let's examine how this one way mirror works in practice by going back to Carol Chambers, the DA who was tried by another arm of the Supreme Court  two weeks before the 2006 election.  At least one blog accused the authorities of running a show trial on weak charges as a means of embarrassing Republicans.  They later observed that timing of the release of the results, the day after Christmas, made the motives and justification for the trial even more suspect.

The purpose of this essay is to examine whether the judges are required to keep secret complaints against them.  They are, but the rule is unenforceable.  The Rocky Mountain News reported that "In December 2005, Chambers accused an Arapahoe County judge of retaliating against her office for complaints it filed against some judges.

One writer to the blog covering the issue who claimed to know a witness wrote:  "I know for a fact that many judges seem to be siding against Mrs. Chambers which raises a red flag indeed since it would seem they should, like anyone else, wait to hear ALL the facts prior to making a judgment."

The problem with this one way secrecy is that it allows judges to retaliate (or encourage other judges to retaliate) for complaints without any possibility that the public can ever know that there is a motive for retaliation.  If the retaliating judge is sufficiently careful, he can make the retaliation seem like routine judicial actions.  That is why there is a climate of legal fear abroad.

Less than four months after this "trial," the news came out that the court administrator appeared to be trying to steer the case of the laptop judge away from a prosecutor and toward the commission (where the maximum penalty would have been a secret, from the public, reprimand.   We wrote about the issue in the hopes that there would be an investigation of those involved for obstruction of justice.  The system, including the Republican Attorney General, closed ranks and refused to investigate.  There would never have been an attempt to derail the prosecution if the participants couldn't count on their being able to act in secret.

If anyone cares to defend the secrecy provisions in the Colorado Constitution as "protecting the public," we would like to hear the argument.  We don't believe one can be made.