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