The Case For Judicial Impeachment by Robert Muchnick

This article was originally published in Colorado Family Magazine

and is used with permission of the author.

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If a person commits but one crime and is convicted, the perpetrator will likely go to jail. If an attorney commits one illegal or unethical act, his license to practice can be suspended or revoked. One act of malpractice by a doctor or nurse resulting in serious injury to a patient can cause the practitioner to lose the right to practice.

If a judge breaks the law in court and injures another person, he or she gets to keep on breaking it. Recidivist criminals are removed from society. Recidivist judges are rewarded with good performance ratings in their biennial reviews. What's wrong with this picture?

In the family law courts of Colorado, judges routinely ignore fundamental statutory and constitutional rights of parents, the mandates of law and rule, and the declared public policy of the state with regard to children, with the typical result that the children of divorce lose any meaningful contact with one parent.

In one typical post-decree custody proceeding in Arapahoe County last year, the newly assigned judge stated to one parent that, “We will proceed to permanent orders with or without a custody evaluation.” On the record. In a public hearing. And despite the fact that state law compels a judge to order a custody evaluation if it is not improperly requested, which in that case it was not. Permanent orders were ultimately entered without the required custody evaluation.

Who protects the vulnerable public from such judicial misconduct? In 1988 the legislature enacted into law the Commissions on Judicial Performance. The declared purpose of the law was to “establish a system of evaluating judicial performance to provide persons voting on retention of justices and judges with fair, responsible, and constructive information about judicial performance...” and to provide judges feedback on their own performance, in the unstated but obvious hope that feedback would have some effect on their appalling conduct.

This year the Arapahoe County Judicial Performance Commission, in response to a published call for input from the public, received a report about the very judge mentioned above. The report contained descriptions of 14 profoundly consequential violations, all independently corroborated by the public record, of statutory and constitutional rights and flagrant bias in just one custody case alone. The judge is not up for a retention vote this year and there has been no money appropriated to the Commissions for profiles on judges who are not facing a vote. So the family carnage in that judge's courtroom continues.

In Boulder County another judge, who is facing a retention vote, and whose handling of domestic relations cases has left a bloody trail of decimated families, ruined parents and devastated children stretching back over 10 years, is still sitting – and judging. The Boulder Commission issued a recommendation to retain this judge released September 19, 1999.

The consensus among litigant-victims of judicial bias, prejudice and outrageous abuse of discretion in domestic relations courts – who in many cases have all but lost their children due to fraud by the opposition and corruption of the judges – is that the secret judicial grievance procedures established by our Supreme Court are worse than useless. Filing a grievance takes time, and raises false hope that “something will be done.” Practically speaking, nothing ever is. The “brethren” simply don't punish their own.

The statistics in the 1990 Colorado Supreme Court Task Force report on gender bias in the courts, “Gender and Justice in the Colorado Courts” – which includes judges' own responses to questionnaires – starkly demonstrate the pervasiveness of bias and prejudice on the bench in custody and visitation issues. Although the narrative portion of the report attempts to whitewash the numerical compilations, the numbers are blood-chilling. And in the family courts, especially, the children continue to be the ultimate victims.

If the voters – who theoretically have the power to dump corrupt judges – are misled or ill-served by the very Commissions created to protect and inform the public interest, if grievance is vain and futile, and if the judiciary itself admits the problem but fails to correct it, who, then, is protecting the virtually defenseless parents and children in family law courts against the worst rogue judges?

The answer, sadly, is no one.

There is one mechanism available for the citizenry to protect itself, however, and it requires only the rational cooperation of their elected lawmakers. That mechanism is impeachment.

The Colorado Constitution provides that judicial officers found guilty of malfeasance may be removed from office upon conviction by two-thirds of the State Senate after a majority of the House votes to indict. Impeachment further guarantees that the truly derelict judge may never again hold public office in this state, insuring that the scoundrel will not turn up in another arena of public trust to again violate it.

Impeachment can start with the simple, accessible procedure of filing a petition with a state Representative or all 65 Representatives at once. If the factual allegations are meritorious – i.e., the petition alleges serious misconduct, such as an irrefutable violation of law, and is corroborated by independent evidence – the accusation can be referred by House Resolution to the Judiciary Committee for investigation, commencing the impeachment process, and hopefully the speedy elimination of the miscreant civil servant. Representatives have an incentive to do the right thing: they themselves are vulnerable every two years.

The power of impeachment is available to the people through our elected representatives. If your family has been attacked and torn apart by a corrupt or biased judge, write a petition to impeach and use it.

Robert Muchnick was the executive director of the Center for Children's Justice, Inc., in Denver. After years of fighting Colorado's corrupt courts he is now deceased.

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