There are a lot of conflicting explanations for why judges wear black robes: A custom started to mourn the death of Queen Mary in 1694. A compromise between Thomas Jefferson, who wanted to reject British traditions of black robes and white wigs, and John Adams who wanted to keep both. A practice started by Chief Justice John Marshall because a black robe reinforces the idea that justice is blind.
All those theories are incorrect.
Colorado judges wear black robes to symbolize the absolute lack of transparency in their operations.
Colorado’s judicial branch is the “black ops” of government.
While our legislative and executive branches must adhere to some minimal amount of transparency under the Colorado Open Records Act and open meetings laws, those in black robes have largely exempted themselves.
Even when a judge breaks the rules, we can’t know about it — even though they supposedly work for us in an open government.
Such was the case with Denver District Judge Ross Buchanan. He presided over a case against a private not-for-profit college, College America. Closing arguments were finished by mid-November 2017. Nearly three years later the good judge still hadn’t issued a ruling. Three years!
So much for a right to a speedy trial.
Imagine trying to run any company for three years not knowing if a crippling court judgment is coming to destroy you or not. It’s little wonder the private college stopped operating in Colorado, depriving students of a valued education and opportunities for employment.
The college, with little left to lose, filed a complaint against Buchanan and his foot-dragging with the Colorado Commission on Judicial Discipline, the group set up by the Colorado Supreme Court to police their own court system.
It obviously got Buchanan’s attention and ire. He finally issued his ruling — an out-of-proportion, vindictive and decimating multimillion-dollar judgment against the private college.
His ruling came the same day the Commission on Judicial Discipline issued an official reprimand against Buchanan, presumably for his inexcusable three-year procrastination in ruling.
Why do I say “presumably”? Because the commission issued a “private” reprimand. We can’t see it. We don’t and can’t know the details.
We, the people for whom Buchanan works and will vote on his retention to office, can’t see the details of his record.
This is not only convenient for the judge, but also convenient for the commission that issued the reprimand. We the people can’t evaluate either of them.
As symbolized by their black robes, they operate in total darkness.
One news source reports that Colorado judges were privately “disciplined” 51 times from 2010 to 2019 for everything from failing to issue timely rulings to having sex with members of the court staff.
You might remember a couple of years back when a state representative, Steve Lebsock, was removed from office by his own peers for alleged sexual harassment. It was a wide-open televised mega event with gavel-to-gavel coverage and all evidence open to the public.
And yet judges are actually diddling their staff members and that is kept “private”?
And I was taught the branches of government were equal, and that the same rules apply to all public officials. Some, it seems, are more equal than others.
And what of those black robes that get no discipline at all?
When Suzanne Staiert was working for the City of Littleton in 2011, she filed a sexual harassment complaint against a municipal judge. So damning was the evidence against him that the case was immediately bumped up to a higher level of investigation, a “trial team.”
When the case was mysteriously dropped, Staiert filed an open records request to find out why. The request was denied because the Colorado Supreme Court ruled that their branch of government doesn’t have to comply with our open records law.
So, when state Rep. Polly Lawrence in 2018 helped pass a bill to force the judicial branch to make their records available for sexual harassment cases alone, Staiert again filed an open records request for the case file. The black robe branch responded that the file had since been destroyed.
It is time for massive reform in Colorado’s judiciary.
The very first tiny step is to require that the third branch of Colorado’s government fully adhere to the Colorado Open Records act just like the other two branches.
Jon Caldara is president of the Independence Institute, a free market think tank in Denver.
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