Introducing The Judicial Accountability Act of 2008

Some questions

The word "willful" bothers me, seems open ended.

Do we have a probem? Can you give us examples of problem judges? Call them Judge A, B, C, etc.

I'm not a lawyer and don't know anything about individual judges. Just vote against all of them as a matter of principle.

If anyone knows why the judiciary is under attack, please fill us in. There has to be a political agenda behind this.

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by: Another skeptic @ Wed May 09, 2007 at 14:22:12 PM CDT

Do we have a problem . . .

I have to run to a meeting right now and can respond more later but, there's voluminous data in the literature on this subject that I can point you to.  However, for now, check out the news&comment page here: http://www.knowyourc...

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by: tiltawhirl @ Wed May 09, 2007 at 14:59:32 PM CDT

[ Parent ]

"Houston, we have a problem...."

Would you be alarmed if a judge decided a case in which he had a significant personal financial interest?  What if he was a proper defendant in the case, and stood to lose his house if he ruled in a particular way?  Do you have confidence that the judge could be trusted to not place his finger on the scales of justice for his own personal benefit?  If you said no, you are in good company; the Colorado Supreme Court put it this way a century ago:

The first ideal in the administration of justice is that the judge must be free from bias and partiality.  Men are so agreed on this principle that any departure therefrom shocks their sense of justice. … We are equally certain that when … a judge is prejudiced or otherwise incompetent to hear or try a cause, but nevertheless, proceeds in that regard, the issues are not likely to be determined and the rights of the parties properly protected and enforced in a court over which he presides.

People ex rel. Burke v. District Court, 60 Colo. 1, 4, 152 P. 149 (1915) (internal citation omitted).

This very scenario actually happened in Colorado, and also in a looser sense in Bush v. Gore.  This is a non-partisan assault on the rule of law, waged by those entrusted with its protection.  Whether you are a Democrat or a Republican (as a matter of full disclosure, I am a practicing Republican), your fundamental liberties are menaced by a judiciary that has declared itself to be above the law.

The fundamental problem is that the mechanisms we set up to control judicial misconduct are largely inert.  Colorado judges commit felonies on an industrial scale because they can, and the Rocky's editors candidly explained why: "Judges run our courts … [and] have their little ways of bringing prosecutors to heel."  While in theory, judges are as accountable to the law as the rest of us, there isn't a single prosecutor in the state who has the courage and character to prosecute, because they know that retaliation by the judges' guild will be swift and terrible.  Our Commission on Judicial Discipline is equally feckless.  A former judge can even be caught red-handed stealing a laptop computer; the State invariably turns a blind eye to black-robed crime.

What this Amendment would do is hold judges personally accountable -- not for mere innocent mistakes, but for willful misconduct on the bench.  As for the word "willful," it has been defined by courts to the point where there is little doubt as to what is intended: "An act or omission is 'willfully' done, if done voluntarily and intentionally and with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done." Screws v. United States, 325 U.S. 91, 101 (1945).

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by: riogrande @ Thu May 10, 2007 at 07:44:54 AM CDT

[ Parent ]

there is a problem and no accountability

As evidenced by the below unanswered letter to the Chief Justice, there is a problem and no accountability.
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Dear Chief Justice,

I received your letter stating that you would not be able to assist in my complaint against two judges.  I have one simple question:

If I could prove as I have alleged that Judge xxx harmed my two year old son because he was pissed off at me, in fact causing him to develop an avoidant attachment style, could I get the judicial administration to remove that judge from my case?

If the answer is `yes' then obviously I want the opportunity to prove that in the appropriate format.

If the answer is `no' then I will share that revelation with my legislators and governor as clear evidence that a safety valve needs to be installed in Colorado family law to protect children from angry and arrogant judges.

ps:  I don't know how transparent you are willing to be, but do you have a supervisory capacity over the Judicial Discipline Commission?  Does their apparent 99% rejection rate of complaints concern you?  Does what the executive director there said to me concern you?
-----------------------------------

Note: The allegations I made against this judge include: he yelled at me in court that my son didn't get to decide how much time he spent with me, interrupted me when I tried to explain that my son was daily begging to spend more time with me, threatened to terminate my parenting and put me jail for taking my two-yr old son late to preschool, restricted my parenting to 5hrs/wk as punishment, lied in his response to a motion to recuse, told me the petitioner's perjury was irrelevant, and ordered a continuance of parenting restriction simply because me and the mother had done an exchange of my son in the parking lot rather than inside the building of the parenting transfer center.  He is also ranked below average in almost every category in the 2004 judicial performance survey among attorneys polled, and is identified in two websites as the worst family court judge in Boulder; arrogant, yells at litigants, fails to pay attention, a family court burn-out case, his courtroom is a chamber of horrors.

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by: whitter22 @ Fri May 11, 2007 at 11:11:25 AM CDT

[ Parent ]

We also need more accountability for CFI's

We also need more accountability for Child and Family Investigators.  Below are two proposed ammendments to the Chief Justice directives, and below that are some transcripts of a CFI.  I encourage readers to promote these two ammendments to the Chief Justice as the new directives are currently in the works.
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COST LIMIT FOR CHILD FAMILY INVESTIGATOR (CFI) ANALYSIS

CFI analysis will be completed at a maximum cost of $1500 and concentrate on the most direct and reliable measures to assess parenting issues, with the bulk of the focus on itemizing the parenting issues correlated to the 13 criteria listed in the best interest of the child statute 14-10-124 and relating those to the specific focus of the CFI 14-10-116.5 court order.

Comment:  Putting a limit on the cost of CFI analysis recognizes the inherently speculative nature of determining the best long term parenting plan by any third party, the potential abuse of opportunity by professionals given this assignment, and the public policy objective to mitigate harm to parents and children in the already painful process of divorce.  Itemizing the parenting issues correlated to the 13 criteria listed in the best interest of the child statute 14-10-124 insures that the legislative intent is not lost in the process, and is also an effective and concise way to present the relevant parenting issues to the court.  A cost limit would naturally also limit the length of CFI reports, causing a concentration of the most relevant information and requiring less court and attorney time in review.

WEBSITE LINK FOR REVIEW OF CFI RECOMMENDATIONS AND
TESTIMONY

Within the state judicial website a link will be created where CFI parenting time recommendations will be posted by the court, and parties to the action can post CFI testimony, names redacted to accomodate the confidentiallity clause of 14-10-126(2).

Comment:  It is valuable for interested parties to be able to review the performance of CFI's in previous cases. Creating a web-link where final parenting time recommendations of the CFI and select portions of transcripts are posted allows judges, lawyers, and parents to make an educated choice for choosing a CFI. The court posting of parenting time recommendations can help identify CFI gender bias.  The party-to-the-action choice of concise portions of transcripts helps establish credibility of testimony. Likewise making CFI performance public record would increase the necessary accountability in a position of such a pivotal control over the welfare of children.

TRANSCRIPTS

(F=Father, C=$5000 CFI, J=Judge, M=Mother's attorney)

F: So let me ask again, has my wife expressed violence in the presence of my child?

C:  It depends on the definition of violence.  I did go over the incident with the mother and she did offer me her understanding of what had happened.  I don't know that I would necessarily label all of these as violent.

F:  Let me ask you this.  Throwing a plastic cup holder and missing the child's head by inches, is that an act of violence in your opinion in the presence of the child?

C: I don't know that I would label that as violence,  There is another explanation for an act such as that.  I think violence overstates it.

F:  You think throwing something and missing as infant's head by inches...

M:  Objection Your Honor, he is continuiing to testify here.

J:  I'll sustain the objection.

F:  How about this, grabbing a plastic bottle out of the crib and throwing it across the room and breaking it while the child is in the crib, is that an act of violence in the presence of the child.

C:  The legal definition of that might be very different from my understanding of it.  My work is more focused on the interpersonal interactions and the precipitants for these kids of behavior.  It wasn't part of my role here to determine what meets the standard for an act of violence and what doesn't.  I did investigate these incidents.  I got your perspective as well as the mothers, and i certainly don't think that these acts are appropriate or advisable even.  They are unfortunate, but I think there is a context for them.  As far as I coutld determine the child was not injured.  She did not direct the harm towards the child.  She was not acting in anyway so as to harm the child directly.  This was more an outgrowth of frustration in your marital relationship.

F:  How about this, grabbing my infant son, shoving him into my arms, and shoving us both out of the door, is that an act of violence?

J:  She has stated that she doesn't believe it is.  Thank you.

F:  Can I address one or two more incidents that are in the police report that maybe the CFI would admit are violence?

J:  All right.

F:  How about this?  I am sitting on the couch next to my infant son.  The mother runs across the room, jumps on me, starts hitting me, kicking me, bites me, swinging her fist next to the infant child in his basket.  Is that an act of violence in the presence of the child?

C:  It certainly is an outburst in the presence of the child.  When I inquired of the mother what had happened for her, what was her experience during these incidents...

F:  Actually my only question was, is that an act of violence in the presence of the child?

C:  I can't really answer that.  No, I don't think that is an act of violence in the presence of the child.
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F:  These are your results on the Rorschach test?

C:  They appear to be.

F:  And the Rorschach test is an inkblot test, is that correct?

C: Yes.

F:  And essentially the way this test works is, you show me an inkblot, I say I see two bears climbing a pine tree, and you interpret that I have a limited ability to form a close attachment to other people or something to that effect?

C:  No. No.  That isn't the way that it works.  You do show evaluatees the cards, but its not that I make an interpretation from your response.  I follow up with an inquiry, which is in accordance with the stardardized procedure.  And I scored the test based upo the data from the scores as well as from the interpretation of your responses.  I came to the conclusions that I did based upon this one test.

F:  All right, so what exactly did I say in the Rorschach test that allowed you to conclude, has limited capacity to form close attachments to other people?  Precisely, did I say...

J:  I'm not going to permit her to answer that question.  I'm not concerned about what her training is to interpret Rorscach tests.  She gave you the Rorscach test.  These are her interpretations.  Ask her questions if you have got them.

F:  I did ask a quesion.

J:  Don't push me much further please.
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J:  How about imposing all the restrictions, but allowing some unsupervised parenting time as long as it is very, very strictly enforced by the minute; so that pick-ups and deliveries happen precisely on time.  And if they don't and I find that he has violated the order because of that, I have the sanction of putting him in jail so he can ponder what he needs to do with regard to obeying the courts orders.  What do you think the court was supposed to have discovered or believed by watching that first video?

F:  The first video?  That my son wants more time with me than the court currently allows, I mean he's...

J:  I don't know how to get through to you.  That was an awful scene, an awful scene.
------------------------------------

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by: whitter22 @ Fri May 11, 2007 at 16:48:28 PM CDT

[ Parent ]

First thoughts

A) It's nearly impossible to enforce.
B) It doesn't belong in the Constitution.

To the first point, proving "wilfull intent" will be next to impossible. The attempt will only create more frivolous lawsuits that will bog down the court system.

To the second point, even if this were a good idea (and it is not), it can be and should be handled in the statutes, not the Constitution.

Want my vote? Put in some time with your party first!

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by: Dan Willis @ Wed May 09, 2007 at 18:16:49 PM CDT

Judges

Throw people in jail every day for willful intent-so it must not be that hard to prove. 

Never put both feet in your mouth at the same time, because then you won't have a leg to stand on

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by: theduke @ Wed May 09, 2007 at 19:55:01 PM CDT

[ Parent ]

Was it willful

when a judge had an illicit affair with a prosecuter and then did not recuse himself from cases that she tried in his court-That seems as willful as you can get.

Never put both feet in your mouth at the same time, because then you won't have a leg to stand on

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by: theduke @ Thu May 10, 2007 at 10:35:38 AM CDT

[ Parent ]

Another example

  I have an ongoing case right now, where I've sued a CFI in federal court alleging that the CFI and the state judge conspired to fix fees against me.  I didn't sue the judge (doctrine of absolute immunity) but, instead, identified her as the "civil equivalent of a unindicted co-conspirator). http://www.knowyourc... Both the CFI and the judge are on the Board of governors of a self-described lobbying group (Id.), which may explain why she has bent over backwards to permit the CFI to breach our contract and attempt to extort fees, even after the Court of Appeals reversed her order (i.e., she has ignored the mandated).  It also explains why the CFI, Bill J. Fyfe, gets appointed and reappointed over and over again, despite the legion allegations against him by numerous parties. See http://www.knowyourc...

Despite all this, and despite the fact that I've also sued the judge's division clerk (unrelated claims), she continues to preside over the case and issue rulings, which could have a direct effect (preclusion doctrines) over the collateral cases, where she has a direct interest in the outcome. http://www.knowyourc...

As previously acknowledged, I don't expect any of the ColoradoPols readers to take any particular interest in my drama (or to bother verifying the provided citations) but, yes, there certainly are ongoing situations where judges preside over cases where they have a personal or pecuniary interest and all the lofty platitudes (read: case law) about the utmost importantance of avoiding the appearance of impartiality is, quite simply, a bunch of specious lip-service.

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by: tiltawhirl @ Thu May 10, 2007 at 12:20:32 PM CDT

[ Parent ]

Reply to Another Skeptic and Question to riogrande

I can provide you with an example of judicial corruption.  I was arrested in Colorado Springs in 2001, following an uncontested final orders divorce hearing, by a court guard operating on a verbal-mitimus by the presiding magistrate.  I was held in jail for nine-days over Christmas without explanation. No warrant could even be produced at my arraignment on my ninth day of incarceration as none had ever been issued for my arrest. I was instructed to appear in court a month and a half later on charges and warrant unspecified. I was denied my right to habeous corpus and due process like the detainees at Guantanamo Bay. Oh, and good luck finding an attorney much less a regulatory agency like the Attorney Regulation Counsel to defend your civil rights.  You can read a detailed account of my ordeal at:

http://www.knowyourc...

To riogrande I would ask, would the Judicial Accountability Act be retroactive or would prior willfull misconduct be protected under a grandfather clause?

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by: Condor @ Wed May 09, 2007 at 21:05:18 PM CDT

I'm afraid it wouldn't or couldn't be, Condor.

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by: riogrande @ Fri May 11, 2007 at 07:20:12 AM CDT

[ Parent ]

Doesn't belong in the Constitution

Doesn't belong in the Constitution.

Doesn't belong in the Constitution.

Doesn't belong in the Constitution.

This should be the mantra for anything going on the ballot in '07. I don't care how worthy your cause or how grevious the wrong, it doesn't belong in the Constitution.

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by: Car 31 @ Thu May 10, 2007 at 13:13:14 PM CDT

Where else would it go?

As demonstrated in People ex rel. Salazar v. Davidson, Mary Mullarkey has never met a law she wouldn't ignore, and the legislature is uniquely feckless in this matter on account of the separation of powers issue.

CAR, are you saying that we should permit manifest injustice just to keep your precious Constitution clean?  What good is a constitution if it doesn't protect our fundamental rights as human beings?

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by: riogrande @ Fri May 11, 2007 at 07:19:48 AM CDT

[ Parent ]

First of all

it is our precious Constitution.

Second, our Constitution does protect our fundamental rights. I know this makes me a subversive lawyer loving, criminal justice system sympathizer. 

Your definition and my definition of "manifest injustice" vary. So why don't you keep fighting for justice in the court system, I'll keep fighting for justice in the political arena and let's keep the laws where they belong, in the statutes.

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by: Car 31 @ Fri May 11, 2007 at 11:23:03 AM CDT

[ Parent ]

I agree. Besides, inclusion in constitution . . .

  . . . seems irrelevant relative to enforcement.  Again using my own experience as an example (I apologize but, it's the most knowledgable position from which to opine), a judge in my case (http://www.knowyourc..._(printedVersion).pdf) sat on a recusal motion for over two years because she knew that it would suspend the case (under Colo.R.Civ.P. 97) for that entire time, thereby putting me out of court.  Her dilatoriness not only violated Rule 97 but, also Colo.Rev.Stat. 13-5-135. More importantly, her inaction was in violation of the Colo. Constitution Equality of Justice provision (Art. II, § 6 - "Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial or delay").
  The fact that the Constitution provided me with this "guarantee" didn't mean a damn thing.  If I wanted it enforced, I would have had to file for a special writ of mandamus or file in federal court against the judge under 42. U.S.C. § 1983, as in Olson v. Hart, 965 F.2d 940, 942 (10th Cir. 1992).  As I always say, you don't have any "rights" unless you're able to afford to and willing to assert your purported rights.

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by: tiltawhirl @ Fri May 11, 2007 at 12:32:47 PM CDT

[ Parent ]

It's not that I don't sympathize, CAR....

however, the Colorado constitution is a relatively odd duck in this regard.  The separation of powers between the branches is so extreme and explicit that the only way meaningful judicial accountability can be imposed is through an amendment.

There are several ways to discipline a judge for misconduct.  In those cases where the misconduct also constitutes a crime, the local district attorney can prosecute.  Problem is, as we see in the Carol Chambers situation, judges have little ways of 'getting back' at cheeky DAs; most would sooner gnaw their arms off than go after a judge.  Second, there is the filing of a complaint with the Commission on Judicial Discipline -- which is completely feckless and almost as toothless.  Third is to seek the judge's disbarment in the Tenth Circuit, which will go over about as well as a fart in an elevator.  Judges don't fear the threat of discipline because it is, as Thomas Jefferson put it, a "mere scarecrow."  This must change.

The ultimate problem is that the decision is not in the hands of the person who is injured, and therefore, highly motivated to do something.  What the JAA does is put power in the hands of the people who were wronged.

If judges are for the most part honest, successful filings under the JAA would be rare.  But the mere specter of there being a punishment out there that would hit the judge where he lives would make him think twice before he broke the law, that would be of immense value.

While too little judicial independence is a threat to our liberties, too much is equally perilous.  Judges must fear the law, and cannot be allowed to be above it.  As Justice Potter Stewart put it, in response to a lawsuit emanating from one of the most barbaric judicial acts in American history, 

The petitioners' brief speaks of "an aura of deism which surrounds the bench . . . essential to the maintenance of respect for the judicial institution." Though the rhetoric may be overblown, I do not quarrel with it. But if aura there be, it is hardly protected by exonerating from liability such lawless conduct as took place here. And if intimidation would serve to deter its recurrence, that would surely be in the public interest.

We want our judges to follow the law, even when they deem it to be inconvenient.

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by: riogrande @ Fri May 11, 2007 at 16:31:02 PM CDT

[ Parent ]

Family Court Recusal Board to hold family court judge accountable

I encourage readers to write to legislators and the chief justice in favor of the below accountability ammendment to Colorado family law:

FAMILY COURT RECUSAL BOARD (FCRB)

To increase checks and balances and peer review, a state Family Court Recusal Board will be formed with the goal to promptly appoint a new judge and set a new hearing when a child is at risk from a judge displaying anger, bias, or unfairness in parenting hearings.  Parents may directly motion the FCRB for a new judge.  Recusals made by the FCRB will be made public record.

Comment: Under the present system a judge must agree to recuse him/herself.  This system is flawed by lack of accountability and allows children to become the victim of judicial anger and misconduct.  The appeals process is lengthy and costly and unlikely to overturn a parenting decision.  The Commission on Judicial Discipline is likewise unlikely to intervene and does not have a focus on family court. The FCRB would largely accomplish the Standing Committee on Family Issues goal of: "Implement a system to remove ill-suited or burned-out judges from family court assignments."  In a nutshell, there needs to be a quick way for parents to get away from a judge who makes children the victim.

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by: whitter22 @ Fri May 11, 2007 at 11:15:09 AM CDT

BAFI

In the corporate world I come from we used to have BAFI (Bitch And Fix It) meeetings where we went to an off-site location to consider a variety of issues.  If you had a complaint, it was OK to bitch about it so long as you could propose a realistic solution for the group to consider.  If you had no solution to propose, then the "problem" was considered an environmental "constraint" within which the organization functioned and could not change.  Complaints about things the organization could not fix were simply ignored (e.g. complaining about the time the sun comes up is pointless).

So, what's the fix?

As an ex-cop who went to countless family fights; I learned that the end of the conflict was often a question "So, what do you want me (the cop) to do about this?" Typical answer:  "uhhh...."

With all due respect, if you don't have a solution to offer, then it's pointless to "raise awareness."

What do you propose be done to fix your complaint?
 

My reading of history convinces me that most bad government results from too much government.  Thomas Jefferson

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by: bpilgram @ Fri May 11, 2007 at 23:33:40 PM CDT

The Judicial Accountability Act may do exactly that

By holding not just judges but special masters they appoint liable in tort for willful misconduct, a damper will be put on the most egregious abuses of the family court system.  After all, we all tend to act more carefully in situations where we might be sued professionally for misconduct.  While it may not fix everything, it is certainly a move in the right direction.

While I don't want to present the JAA as a panacea, even the specter of ruinous litigation would probably motivate special advocates to establish professional standards of conduct.  It won't be foolproof -- after all, well-established standards of conduct didn't stop Arthur Andersen -- but if that had gotten done a long time ago, many of the incidents chronicled at http://www.knowyourc... would never have happened.

I agree with you in principle: If you don't have a solution to bring to the table, you probably shouldn't be at the table in the first place.

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by: riogrande @ Sat May 12, 2007 at 07:21:13 AM CDT

[ Parent ]

Nonsense

  BPilgram, pardon my candor, by your consistent mantra (in this as in other threads) of, "If you don't like it, go fix it and quit whining on some forum") is really misguided bluster and rhetoric:
  If there's a problem, yes, we can (and should) raise awareness and "no," it's not pointless.  I may have the insight to recognize and articulate the problem, whereas someone else (in this case, Rio) may (I said "may") have the expertise to propose a solution, as he is now doing.  In fact, maybe you have the expertise to propose a solution, once a problem has been called to your attention?
  There's an old saying that, "You don't have to be a chef to know (say) that the food sucks."  Likewise, if you recognize that the food sucks, you don't necessarily know what wrong ingredient[s] had been added or, which should have been added, or what other technique or process (baking time, whatever) needs to be amended to improve it.  You just know that the food sucks and that we've been ill-served.
  One D.A. here in Colorado, in an email to me a few months back wrote, "They certainly don't like having their power challenged," referring to our Web site (KnowYourCOURTS.com) exposing the antics of the Office of Attorney Regulation Counsel.  Her sentiment was echoed by Jack Tanner and Ben Aisenberg.  I guarantee you that their opinions are just the tip of the iceberg, given that their missives were almost inadvertently sent my way in passing.
  The facts are, we know that these agencies are illusory; we know that they despise citizen complainants; we know that they don't like having their power-base challenged ;and, they are, as the evidence demonstrates, not serving the public in the manner that is prescribed by law or even in the manner that they claim to aspire to.
  I don't know about you, BPilgram but, I don't like being lied to.  It's really just that simple.

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by: tiltawhirl @ Sat May 12, 2007 at 11:13:05 AM CDT

[ Parent ]

The insult to the injury is

Your being lied to by someone who gets their income from the taxpayer-YOU!
I want a job where I do not have to be an expert in my field-where I do not have to do the job if I do not choose to-where I have no-one to answer to-and I have all the power to ignore anyone elses opinion about how I do my job-and nobody can do anything about it!  I guess I just need to get a job within the Colorado Judiciary or with one of the regulatory agencies!

Never put both feet in your mouth at the same time, because then you won't have a leg to stand on

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by: theduke @ Sat May 12, 2007 at 17:04:37 PM CDT

[ Parent ]