2023 Colorado Revised Statutes › Title 13 - COURTS AND COURT PROCEDURE (§§ 13-1-101 — 13-100-104) › COURTS OF RECORD (§§ 13-1-101 — 13-9-124) › Article 5.3 - COMMISSION ON JUDICIAL DISCIPLINE (§§ 13-5.3-101 — 13-5.3-113) › Section 13-5.3-106 - Information-sharing within the judicial department - legislative declaration

(1)
The general assembly finds and declares that:
(a)
Offices or personnel within the department are often the first to receive complaints;
(b)
The department often holds evidentiary materials relating to potential misconduct and often develops evidence, through investigations or otherwise, relating to such potential misconduct;
(c)
The commission cannot fully pursue its constitutional mandate unless all information relevant to a complaint available to the department is freely and promptly shared with the commission; and
(d)
The credibility of the judiciary and judicial discipline are best served by the department promptly sharing with the commission all information and materials available to the department relevant to a complaint or potential misconduct.
(2)
The department shall ensure that if any member of the department, including members of the office of the state court administrator, the office of the chief justice, chief judges, district administrators, the human resources department, administrative personnel, judicial districts, clerks of court, and others, receives a complaint from an employee, volunteer, or contractor for the department, the department shall:
(a)
Document both the receipt of the complaint and the department's handling of the complaint, including any investigation that may be conducted, and maintain such documentation for as long as the subject of the complaint is a judge, plus three calendar years;
(b)
Within not more than thirty-five days after receipt of the complaint, notify the office of the complaint and provide the office with all information within the custody or control of the department related to the complaint, including:
(I)
Identification of potential witnesses;
(II)
A list of any evidence held or known;
(III)
Access to all evidence, including administrative files, digital data, digital or paper case files, recordings and transcripts, communications, and metadata, without charge; and
(IV)
Any department investigative materials that may exist, including any investigative or action plans; and
(c)
Notify any person supplying any information concerning a complaint, and any witness interviewed, of the following:
(I)
The existence, role, independence from the department, and process of communicating with the commission;
(II)
That information given to the commission is confidential unless and until a recommendation is made to the supreme court;
(III)
Rule 2.16 (B) of the code prohibiting retaliation against any person assisting the commission;
(IV)
That the department has a duty to disclose all information related to potential judicial misconduct to the commission; and
(V)
That the department is prohibited from discouraging a person from sharing information with the commission, including entering into a nondisclosure agreement that would have that effect.
(3)
The department's duties of disclosure arise when the department receives a complaint.
(4)
If the department receives a complaint alleging judicial misconduct from an individual or entity that is not an employee, volunteer, or contractor for the department, the department shall notify the complainant of the role of the commission and provide the complainant with the commission's contact information. If the complainant submits written or electronic materials in connection with a complaint, the department shall forward those materials to the commission. Each judicial district, the appellate courts, and the state court administrator's office shall adopt a written policy to implement this provision.
(5)
The duties to document and disclose potential judicial misconduct and related information continue when the department receives additional information.
(6)
(a)
The department shall:
(I)
Adopt procedures and policies to implement the duties stated in this section and to educate department personnel about these duties; and
(II)
Cooperate with any request from the commission for information related to evaluating a complaint and supply requested information or materials within a reasonable time of not more than thirty-five days after the date of request.
(b)
The department shall not:
(I)
Adopt any policy or enter into any contract that purports to impede disclosure of information related to potential judicial misconduct to the commission. The department shall not discourage any person or entity from cooperating with the commission or disclosing information to the commission.
(II)
Withhold from the commission disclosure of materials or information for any of the following reasons:
(A)
A claim of privilege held by the department, including attorney-client, attorney work product, judicial deliberation, or other claim of privilege;
(B)
A claim of confidentiality;
(C)
A claim of contractual right or obligation arising after May 20, 2022, not to disclose information, including a nondisclosure agreement; or
(D)
A claim that any records are part of a state auditor fraud hotline investigation or report; and
(III)
Retaliate, directly or indirectly, against any person communicating with the commission regarding potential judicial misconduct or its examination, any person seeking to comply with the documentation and disclosure obligations of this section, or any person otherwise assisting or suspected of assisting the commission to fulfill its constitutional mandate or its role in judicial oversight.
(c)
The department and the office of attorney regulation counsel will respect the confidentiality of the commission's communications and records.
(d)
Notwithstanding subsection (6)(b)(II) of this section, the department may withhold from disclosure to the commission materials and information whose disclosure is prohibited by federal law, information covered by judicial deliberation privilege, and materials and information in the department's custody or control through an established and confidentiality-based mental health or professional development program. For any materials or information withheld by the department under this subsection (6)(d), the department shall disclose to the commission the nature of the materials withheld, the reason the items are withheld, and, if requested by the commission, a privilege or confidentiality log compliant with the standards governing civil litigation discovery.
(e)
The timely disclosure to the commission of information or materials pursuant to this section by the department does not, by itself, waive any otherwise valid claim of privilege or confidentiality held by the department. When the department discloses materials or information it asserts is privileged or confidential, the department and the commission shall enter an agreement under Rule 502 of the Colorado rules of evidence implementing this subsection (6)(e), in which the department and the commission agree that the disclosure does not waive, by itself, any otherwise valid claim of privilege or confidentiality held by the department, and that the commission shall hold the materials and information as confidential under the commission's procedures and not disclose privileged or confidential information to a third party except as may be required through the investigative and disciplinary process. The department and the commission may add further terms to address the individual circumstances of the matter if they agree.
Added by 2022 Ch. 201,§2, eff. 5/20/2022.