Creating visibility into the Colorado courts
At the outset, I recommend you read the excellent Denver Post column by investigative reporter David Migoya titled:
“Shrouded justice: Thousands of Colorado court cases hidden from public view on judges’ orders”
That column can be found at:
https://www.denverpost.com/tag/special-report-shrouded-justice/
Mr. Migoya is the only journalist I am aware of who takes an interest in the proper functioning of the Colorado judiciary. If you have information that might be of use to reforming the Colorado judicial system, particularly if you worked inside the system as a judge, a judge’s clerk or an administrator, I encourage you to contact me or Mr. Migoya.
Attorneys are a threat to the judicial branch because they know the law and they know when judges blatantly refuse to follow the law. Judges have two powerful tools to keep attorneys in line. First, make it too expensive. Judges know that a litigant cannot afford to hire attorneys when time after time the judge arbitrarily rules against the litigant. Second, damage the attorney's reputation. Attorneys know that their track record is what concerns most new clients, so a track record of trail court losses destroys the attorney's business, even if the losses were due to judges blatantly refusing to follow the law.
Other than a civil rights attorney, the one type of attorney who can fight against this systemic judicial misconduct is the attorney who represents himself, since he doesn't have to pay for legal help, his reputation cannot be as easily be damaged, and he is typically litigating something that is in an area of law different from where he practices.
The established practice the Colorado courts use to deter the self-represented attorney is to use the Colorado Court of Appeals as the forum which affirms the trial court judge's misconduct. When the trial court judge refuses to follow the law, the attorney files an appeal, since the purpose of the Court of Appeals is to correct legal errors made by the trial court judge. Unlike the Colorado Supreme Court, the Court of Appeals is required to write an opinion on each and every appeal.
Until recently, when the Court of Appeals wanted to look the other way on an erroneous trial court ruling, the three judge panel wrote an opinion and then designated it "Not for Publication." This meant that no one, especially another attorney, was able to easily find how a separate body of arbitrary trial court rulings was being protected by the Court of Appeals. An attorney can appeal an "unpublished" opinion to the Colorado Supreme Court, but, since that court is not required to address the appeal, the Colorado Supreme Court routinely writes a one sentence order denying review of the appeal, without expressing any reasoning for the denial.
The "Not for Publication" or ”unpublished" opinion strategy of the Court of Appeals unraveled a couple of years ago when Westlaw started including unpublished opinions from the Colorado Court of Appeals in its research service. Now, an attorney can easily use Westlaw to search all appellate opinions, even unpublished opinions, on a particular statute or subject. If there is a Court of Appeals unpublished opinion that is affirms a trial court ruling that is manifestly contrary to Colorado law, the attorney can now use the analysis in that opinion, since the mere existence of the unpublished opinion gives the attorney a defense against being sanctioned by the court for advancing a frivolous legal argument. By upholding arbitrary and incorrect trial court rulings, the Court of Appeals has created a possible exception to every law consequently encouraged even more litigation, since every litigant now has a possibility of winning no matter what the law says.
The Court of Appeals, on recognizing that their judicial misconduct through the mechanism of labeling a blatantly incorrect opinion as "Not for Publication" was being exposed to the public and Colorado attorneys through the simple inclusion of such opinions on Westlaw, has now shifted to another strategy. In addition to continuing to designate the entire erroneous opinion as "Not for Publication," the judges now carefully write the portion of their opinions that affirm the blatantly incorrect applications of Colorado law. They are careful not to even type the number of the statute (e.g. 14-14-106) or to use terminology that is typically associated with the statute. With that approach, the judges have a high level of confidence that attorneys performing "key word" Westlaw searches and attorneys at Westlaw who identify portions of an opinion with "Westlaw headnotes" will not be able to get search results that include the case containing the blatantly incorrect law.
Any attorney who files complaints against judges on the Court of Appeals or against judges on the Boulder County bench is almost certain to see each and every future appeal denied and each and every future Boulder County trial court ruling made arbitrarily unfavorable. Judges are people. They take these complaints as a personal affront. That is the primary reason more attorneys don't speak up when there is a blatant disregard of Colorado law in a trial court ruling followed by an unpublished Court of Appeals opinion.
Recently the California legislature empaneled a commission to investigate the process by which the California judiciary resolved complaints against judges. The legislature was concerned since in excess of 90% of the complaints found no misconduct by the judges. Before the commission could get started, the California Judicial Branch sued the legislature in the California courts to stop the work of the commission, essentially arguing that its decision making process related to complaints against judges was "judicial in nature" and thereby entitled to be done in secret in order to safeguard the decision making process political influence. I expect a similar attitude and approach from the Colorado judicial branch.