Journal-Advocate (Sterling)

Colorado Democrats refused — three times — to pass judicial records reform. We now know what a mistake that was.

- George Brauchler

Elected Democrats in the executive and legislativ­e branches of state government say they are aghast at the ground shaking reporting on the conduct of our state judiciar y by Denver Post reporter David Migoya, who uncovered the scandal despite significan­t hurdles to accessing judicial records.

But the responsibi­lity for those hurdles belongs squarely with those same Democrats.

In 2012, the Colorado Cour t of Appeals interprete­d the Colorado Open Records Act (CORA), in existence since 1968, not to include the judiciar y within the terms “state” and “state agency.” Members of the judicial branch effectivel­y ruled that CORA does not apply to them or any other aspect of the judicial branch.

Three years later, the Supreme Court adopted rules to govern itself.

Called the Public Access to Informatio­n and Records, or PAIR (because every government agency expends resources coming up with an acronym). Those rules are not nearly the equivalent of the CORA law applied to the other two branches of government.

Enter “champion for transparen­cy and good government” Representa­tive Polly Lawrence from Douglas County.

In 2016 and 2017, Rep. Lawrence offered common-sense bills to adopt some of the PAIR definition­s (which she conceded were better than CORA’S) and to have them applied through CORA to the judicial branch’s civil and administra­tive investigat­ions. Sounds like an easy to pass government accountabi­lity bill. Think again.

Democrats who controlled the House of Representa­tives in 2016 and 2017, as they do now, did not send Lawrence’s bill to the

House Judiciar y Committee, despite the fact that it has the word “judiciar y” in it. Instead, Democrats sent it to State and Veterans Af fairs — the notorious “kill committee” — where all bills the par ty in power disfavors go to die a cer tain death.

At the only hearing granted in 2016, our now-lieutenant governor asked Lawrence “if Judge Rice has taken care of the issue… do we really need a law that mirrors what their rules are?” Huh? We should trust an entire branch of government to govern itself? Hard pass. We have seen how that works out. The state cour t administra­tor, the highest ranking non-attorney in the judicial branch, testified that “under PAIR anybody who doesn’t get something from the judicial branch can go to court and get it.” Who wouldn’t trust that procedure?

The single 2017 hearing included a Democrat legislator asking Lawrence “do you truly believe that … the legislativ­e branch should be able to tell the judicial branch or the executive branch how they should operate and formulate their rules?”

When it comes to transparen­cy and accountabi­lity, yep.

The Judiciar y sent, respective­ly, a chief judge and a Supreme Court justice to oppose applying CORA to them by statute, strongly suggesting such a law would be unconstitu­tional. Such a suggestion carries a lot of weight when it’s the Supreme Court who would pass final judgment on the law.

The largest lobbying organizati­on for lawyers in the state, the Colorado Bar Associatio­n (CBA), opposed the bills and claimed the laws would be unconstitu­tional, and testified “the judicial branch is as transparen­t as the other branches of government.” That quote hasn’t aged well.

Democrats killed each bill on a par ty-line vote.

Undeterred, Lawrence ran a similar bill in 2018. Equally undeterred, Democrats again sent the bill to the kill committee. Predictabl­y, the CBA and a Supreme Court justice opposed the bill.

But something unpredicta­ble happened on the way the legislativ­e gallows: #Metoo.

With the backdrop of a highly publicized case of Democrat legislator-on-legislator sexual harassment, Deputy Secretar y of State Suzanne Staiert courageous­ly testified, as she had in 2017 to then-deaf Democrat ears, about her inability to access records of a judge who had sexually harassed her, but who escaped discipline without explanatio­n.

Facing #Metoo momentum, the kill committee failed to kill the bill. Instead, Rep. Mike Weissman, a “no” vote in 2017, and current chairman of the House Judiciar y committee, severely circumscri­bed the bill to limit CORA’S applicabil­ity to the judiciar y only to sexual harassment records. With that drastic and timely limitation, it passed 98-0. Interestin­gly, nobody suggested such a law would be unconstitu­tional.

This time-sensitive issue is not about the many hardworkin­g, top shelf jurists — like Chief Justice Brian Boatright, who inherited this crisis — that make up the judiciar y. It is about the outdated and inadequate notion that any branch of government should be allowed to dictate the terms under which it will permit the public to scrutinize its records and conduct.

Democrat Attorney General Phil Weiser, who represents the judiciar y, has refused to confirm or deny that he knew about the many impropriet­ies revealed last week by David Migoya’s investigat­ive reporting. To maintain the esteem in which the public rightfully holds our judges, this must be addressed right now.

This legislativ­e session, first thing, the Democrats whose steadfast protection of the judicial branch from CORA has facilitate­d this unpreceden­ted turmoil and renewed doubts about how an entire branch of government has managed itself, can demonstrat­e they have the will to correct their past mistakes.

Let’s unequivoca­lly end the debate about constituti­onality. Refer a constituti­onal amendment to Coloradans that ensures all of state government — including the judiciar y — is subject to the open records laws passed by the legislatur­e.

Additional­ly, create an Office of the Inspector General outside of the judiciar y and our attorney general’s “hear no evil, speak no evil” office to oversee investigat­ions of the judicial branch.

Democrats alone are the reason the judicial branch has avoided CORA since they defined themselves out from under it. Democrats alone have the ability to send this to voters to correct that.

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