Colorado Amends Code of Judicial Conduct in Effort to Restore Public Trust

In June 2021, the Colorado Supreme Court amended its Code of Judicial Conduct to expressly prohibit harassment, retaliation, and other inappropriate workplace behavior.

The amendments are part of a more significant effort to restore public trust and confidence in the state’s judicial department after a series of misconduct allegations against judges and other judicial employees. The investigation into the former Colorado Supreme Court Chief Justice—including his knowledge of all allegations—is ongoing, and no decisions or conclusions have been made. However, several other matters of recent judicial misconduct have not only shaken the judiciary’s reputation but its ability to uphold the rule of law.

Despite this, the Colorado Judiciary moved swiftly to make rule changes to the Code of Judicial Conduct, add a Chief Justice Directive specifying the complaint process for certain types of misconduct allegations, and directly addressing the breach in public trust and confidence during the 2021 State of the Judiciary from new Chief Justice Boatright in February.

Judicial Conduct in the Workplace and Promoting Confidence

The Code of Judicial Conduct Rule 1.2, aimed at promoting confidence, already mandates that a judge shall act—at all times—in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and that a judge shall avoid impropriety. This conduct applies to professional and personal behavior. The revised comment to Rule 1.2 now specifies that judicial conduct includes harassment and other inappropriate workplace behavior.

The Code of Judicial Conduct Rules that reflect impartiality, competence, and diligence have also been amended. Initially enacted in 2010, Rule 2.3 regarding bias, prejudice, and harassment states that a judge shall perform their duties of the judicial office without bias or prejudice. The amended rule now expressly prohibits a judge from retaliation based on reported misconduct, including a prohibition on retaliation against current and former judicial branch personnel, attorneys, and the public.

Supervisory Duties in the Workplace and Impartiality, Competence, and Diligence

Initially, Rule 2.12 concerning a judge’s supervisory duties required a judge to ensure that staff, court officials, and others under a judge’s control acted consistently with the code. Rule amendments now specify that a judge should:

• Practice civility, patience, respect, dignity, and courtesy, in the context of interactions with court personnel and chambers’ staff;
• Not engage in any harassment of court personnel;
• Not engage in retaliation for reporting allegations of such misconduct; and
• Seek to hold court personnel who are subject to the judge’s control to similar standards in their own dealings with other court personnel.

The comment to amended Rule 2.12 distinguishes retaliation from judicial actions related to performance management, including giving instructions, counseling, corrective criticisms, evaluations, and discipline.

Obligation to Report Other Judges and Lawyers

Rule 2.15 of the Judicial Code now includes a comment emphasizing the importance of a judge’s obligation to report other judges or lawyers’ misconduct: “Public confidence in the integrity and impartiality of the judiciary is promoted when a judge takes appropriate action based upon reliable evidence of misconduct.” The goal is to prevent harm and recurrence of the misconduct.

Public Trust and Confidence in the Courts

IAALS’ Public Perspectives on Trust & Confidence in the Courts provides valuable insights into what the public believes is ideal judicial behavior, as well as public perceptions of the courts and legal systems.

The report’s findings suggest that, although participant perceptions on judges in their community were mixed, many participants broadly trusted their local judges. On this front, participants who trusted their community judges occasionally reported experience in the system or interaction with judges in personal or professional settings. However, many based their trust on impressions from media or word-of-mouth in the community.

Participants described their thoughts on ideal judicial behavior using words like fair, just, unbiased, professional, moral, and ethical. Some of these discussions highlighted a tension between whether judges should be held to a higher standard of behavior or that of an average person.

The justice system does not operate in a vacuum. To work effectively, the courts rely on the trust and confidence of the public.

The recent allegations of misconduct in the Colorado judiciary crushed this confidence and compromised its integrity. Yet, we commend the Colorado Judiciary for taking action and directly addressing this crisis of confidence. During his State of Judiciary, Chief Justice Boatright said, “We are going to get this right: where there was wrongdoing we will address it. Where there was an abuse of power, we will stop it.” The judiciary’s continued actions will hopefully restore faith in the court system—and serve as a valuable lesson for the judiciary nationwide.