Lawyers representing the Colorado Independent are bringing a troubling gap in Colorado jurisprudence to the attention of the U.S. Supreme Court.
Today, the Independent — a statewide online news organization — will formally ask the nation's highest court to review an unprecedented ruling by the Colorado Supreme Court, which recently held that the public has no First Amendment right to inspect or copy judicial records on file in Colorado's courts of law.
The state Supreme Court's decision in June made Colorado the only state in the nation without a presumed constitutional right for the public to access pleadings, hearing transcripts and court orders in criminal cases.
Colorado's sunshine laws clearly state that the public has a right of access to government meetings and public records. But access to court records is another matter. The Criminal Justice Records Act is more ambiguous, allowing discretion by records custodians — often judges — who can bar access to records if disclosing them can be deemed contrary to the public interest. That creates a lot of latitude to keep the public in the dark.
The Independent, represented by First Amendment attorney Steve Zansberg, argues that freedom of the press requires a strong presumption of public access to judicial records and without such access, informed public oversight of the judicial branch is impossible.
The Denver Post's David Migoya put the implications in perspective in his July investigative report, "Shrouded justice," which showed that thousands of cases in Colorado had been restricted from public access since 2013.
"Someone could be arrested, charged, convicted and sent to prison in Colorado without anyone seeing why, how or where, and whether the process was fair," he wrote.
The Independent hit this roadblock trying to look into the case of a Colorado death-row inmate, Sir Mario Owens. The Independent requested access to four court documents that addressed Owens' request to disqualify the 18th Judicial District Attorney's Office and appoint a special prosecutor. The judge largely denied the request, citing "countervailing considerations." The Independent filed an emergency petition with the Colorado Supreme Court, which issued the ruling the Independent is asking the U.S. Supreme Court to review.
The state' Supreme Courts decision "sets a dangerous precedent in Colorado, making it much easier for the news media and the public to be barred from scrutinizing any court filing and judicial opinions in any court across the state," the Independent said in press release. "How can Colorado assess judicial decisions when information about those decisions is shrouded in secrecy?"
Hopefully the U.S. Supreme Court will see fit to answer the broader question: "... whether sealing judicial records without making findings that such sealing is necessary to protect a governmental interest of the highest order violates the First Amendment right to a free and informed discussion of government conduct."
Our state's judicial branch has operated outside the tight parameters for transparency required of other the other branches of government. Regardless of the U.S. Supreme Court's action on the Independent's petition, lawmakers should be prepared to insist that the public has a presumed right of qualified access to court records.