It was a sad day at the capitol In Denver Colorado on Thursday February 3, 2017. A bill aimed at making Colorado’s Open Records Act (CORA) apply to the judicial branch was assigned to a “kill” committee where it died on a party-line vote. Big loss for Colorado Citizens!

February 5, 2017 by Lulu

Shame on them.

It was a sad day at the capitol on Thursday. A bill aimed at making Colorado’s Open Records Act (CORA) apply to the judicial branch was 1) assigned to a “kill” committee where it 2) died on a party-line vote.

The Denver Post inaccurately refers to a 2012 Court of Appeals case as the genesis of the judicial branch’s open records issue. The problem actually began in 1999 in a Supreme Court case: Office of the State Ct. Adm’r V. Background Info. Serv., 994 P.2d 420 (Colo. 1999). There are links to the case on our website. Former Supreme Court Justice Rebecca Kourlis, who now heads the Institute for the Advancement of the American Legal System, wrote the opinion.

In that opinion, she wrote that CORA did not, “define the courts as an agency of the state for purposes of the Public Records Act.” And interestingly enough, the opinion admits that if the legislature wants to change that fact the legislature can do so.

So the opinion directly refutes Rep. Foote’s arguments where he questioned the constitutionality of the legislature addressing the issue. But we must note that the bill actually did not directly address the language at issue in the Supreme Court opinion.

The opinion paved the way for the Supreme Court to adopt a rule that states that judicial branch records won’t be disclosed if “inspections could compromise the safety or security of a Judicial Branch employee.” CORA correctly focuses on the public interest. The rule, however, is speculative and focuses on the judicial branch employee instead of the public interest. And it was troublesome that the Supreme Court justice responsible for drafting the selfish rule testified Thursday.

According to the Code of Judicial Conduct, judges aren’t supposed to use their power to help themselves. But that’s exactly what the Colorado Supreme Court did with the rule. And they’ve actually done it before. A responsible legislature would be convening impeachment proceedings. After all, our constitution states a judge can be removed for any violation of the Code of Judicial Conduct. Is it not malfeasance to violate the Code of Judicial Conduct?

But because the Code of Judicial Conduct is not enforced in Colorado, and because the proceedings are kept confidential, the legislature has no idea what a violation of the Code of Judicial Conduct even looks like. We suggest that it looks a lot like Justice Monica Marquez testifying to protect a rule she drafted, with others, that benefits herself and gives no consideration to the public interest. There’s no judicial integrity in such actions.

Neither Marquez nor the legislators who voted against the bill are taking heed of the warnings of the great minds that formed this country. Our founders were very concerned with the power of the judiciary. Our founders were inspired by Charles de Montesquieu who wrote the “Spirit of the Laws” in 1748. Essentially, Montesquieu warned, “There is no liberty, if the judiciary power not be separated from the legislative and the executive.”

Yet the “kill” committee voted to allow the judicial branch to legislate on a party-line vote. Such action is another in a line of actions that are pushing Colorado back to contested elections for judges.

We’re supposed to have a commission-based justice system that takes politics out of the judiciary. Yet former Pueblo Judge Dennis Maes was all over television last fall cashing in on his judicial status to urge voters to oppose Amendment 72. Tobacco companies certainly thought his judicial status would help persuade voters. And they were right.

And former Chief Justice Michael Bender was barely off the bench before he was appearing at a fundraiser as “former Chief Justice” to help Rep. Daniel Kagan (now Senator Kagan) get elected. The party-line votes by the legislature last year on a non-partisan bill that would have revised our judicial performance commissions, and again on the open records issue, are additional proof that Colorado still has an incredibly political judicial system. If judges can’t leave politics alone, and they use their power to legislate, they should be subjected to contested elections.

We’d like to keep contested judicial elections out of Colorado. But most states still have contested elections for judges for a reason. When the legislature is lining up based on party lines to assist judicial legislation, the individuals involved are showing us the reasons why many states still have contested elections for judges.

Why are the justices and judges employed in our judicial branch, and the legislators responsible for keeping checks and balances on those justices and judges, so intent on destroying our justice system?

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