Nominees to fill a pair of vacancies on Colorado’s appellate court bench include an attorney with ties to a four-year judiciary scandal that led to the unprecedented sanction of the state’s former Supreme Court chief justice and a district judge whose decisions are among the most overturned.

Both names – Grant Sullivan and Christopher Zenisek – are part of a half dozen sent last week to Gov. Jared Polis by the Supreme Court Nominating Commission as recommendations to fill vacancies that occurred when two members of the Court of Appeals announced their retirements.

Judiciary watchdogs said including Sullivan and Zenisek among the nominees is “further proof of a system that’s a closed circle that simply gets tighter and tighter.”

“What the heck is wrong with these people?” said retired Pueblo County Chief District Court Judge Dennis Maes, a frequent critic of the Supreme Court since the scandal broke in 2019. “Just the whole appearance of it all is so bad on so many fronts. It’s incomprehensible and seems to only get worse and worse.”

The nominating commission is made of up 17 people – 8 attorneys and 9 non-attorneys – and provides the governor with three names from which to fill each vacancy. The ex-officio chair of the commission is Chief Justice Brian Boatright. Their work is, by law, secret, as is the list of anyone who applies for a judgeship. Only the list of nominees sent to the governor is public.

Sullivan is the attorney general’s assistant solicitor general and Zenisek is a Jefferson County district court judge in the state’s fourth judicial district.

Both men have figured heavily in media reports the past few years. Neither responded to Denver Gazette requests for comment.

Sullivan was one of two lawyers in the AG’s office who were aware of the contents of a memo that contained allegations of judicial and official misconduct two years before it became public. The memo was at the center of allegations of a contract-for-silence scandal that rocked the Supreme Court and judicial department.

It’s unclear if Sullivan ever reported the allegations to authorities or his boss, but the state’s former court administrator, Christopher Ryan, has said Sullivan was aware of its contents when Ryan handed over his copy of the two-page document when he resigned from his job in 2019.

The memo contained a number of allegations of judicial misconduct that were either handled leniently or not at all over several years. Authored by then-Human Resources Director Eric Brown, it was a list of items former Judicial Department Chief of Staff Mindy Masias would reveal in a sex-discrimination lawsuit if she was fired for financial irregularities the department had uncovered months earlier. Masias resigned and received a multi-year multi-million-dollar contract for judicial training.

The memo and its contents, however, remained secret until February 2021 when media reports exposed its existence. The Supreme Court initially refused efforts to obtain a copy of the memo through open records requests, then made it public after the justices – including Chief Justice Boatright – said they saw it for the first time.

Ryan at the time said he knew of no investigation into the allegations contained in the memo – several were launched after the media reports exposing it.

Though a widely criticized investigation ultimately concluded there was no quid pro quo deal, former Supreme Court Chief Justice Nathan “Ben” Coats, who reportedly approved the Masias contract with the agreement of his Supreme Court colleagues, was formally sanctioned by the state’s judicial discipline authority.

Sullivan was Coats’ appellate law clerk from September 2010 through August 2011, when he joined the AG’s office. Coats was named chief justice in 2018 and retired in December 2020.

Sullivan was also part of the battles between the Judicial Department and the Colorado Commission on Judicial Discipline over the latter’s difficulty in investigating the scandal.

The commission has previously said its records did not reflect whether any of the memo’s allegations had been reported to it.

The memo and ensuing inquiries led to widespread pushes for reform to the judicial discipline process, which culminates next year with a voter referendum to amend the Colorado Constitution.

The discipline commission in May called for Coats to be censured, the first time a Colorado Supreme Court justice had ever been disciplined.

“What’s going on with these nominating commissions?” asked George Brauchler, former district attorney for the 18th Judicial District. “It simply makes no sense. The appearance of impropriety ought to be enough.”

Zenisek was named in a Gazette investigation in April that found more than 50 judges were reversed at least a third of the time for errors they made on the bench. Until the newspaper’s review, there had been no meaningful analysis of Colorado’s appellate system.

On the bench since 2011, The Gazette found Zenisek was one of only eight judges who were reversed at least 40% of the time, according to the newspaper’s review of more than 15,700 appellate decisions from the past decade.

At least one retired Colorado jurist consulted by The Gazette, while reviewing the newspaper’s findings, several times muttered softly: “Oh my dear God.”

The newspaper found that none of the state’s performance commissions that evaluate whether voters should retain a judge considers their appellate record despite a requirement to consider a jurist’s legal knowledge.

The Gazette reviewed appeals that included when a judge was reversed for having made an error, which include the times a judge simply got the law wrong, mangled a case so badly it required a retrial, or goofed on some other aspect of legal procedure or process that it needed to be corrected. The review also included the times a judge got it right.

Zenisek’s reversals included a first-degree murder conviction in which the Court of Appeals in 2019 said he wrongly allowed the defendant’s involuntary statements to police to be admitted as evidence.

Instead of a new trial, as the appellate court had ordered, the woman pleaded guilty to reckless manslaughter and was sentenced to five years’ probation.

Between September 2017 and August 2020, the analysis found Zenisek was reversed 15 times by the Court of Appeals, all for judicial error, and affirmed 22 times for a reversal rate of 40%.

Since his retention in November 2020, Zenisek was affirmed 11 times by the Court of Appeals, the analysis shows. He’s been reversed six other times, all because of judicial error, the analysis found.

“Forty-percent of the time? I’d say that’s significant,” Maes said. “There just seems to be such a cavalier attitude to all of this, just rubbing the jalapeño in your eye.”

Among several factors, the nominating commission is to consider a candidate’s “legal ability and experience.” It’s unclear if that includes their appellate record. The commission’s work is confidential except for the names it forwards to the governor.

“I want to know who is on the list that didn’t go to the governor?” Brauchler asked. “And are these the best we have that don’t have the baggage those other ones have? How bad is that list?”

The appellate court vacancies occurred when judges John Dailey and David Furman announced they would retire Jan. 1, 2024. There are 22 appeals court judges in Colorado. Each is paid $201,312 annually.

The other names sent to Polis are Weld County District Judge Priscilla Loew, Colorado Supreme Court staff attorney Melissa Meirink, Denver District Juvenile Court Judge Pax Moultrie, and Arapahoe County District Court Judge Don Toussaint.

The governor has 15 days from Oct. 25 in which to make his appointments, otherwise it falls to Boatright to make them.

Each judge sits for a provisional two years before facing voter retention, which thereafter occurs every eight years if retained. Colorado judges are required to retire by age 72.

GOLDEN, CO – MAY 3: First Judicial District Court Judge Christopher Zenisek speaks during a hearing in Jefferson County Court on Wednesday, May 3, 2023. Three men are accused of throwing landscaping rocks from an overpass onto oncoming cars in Westminster that resulted in the death of 20-year-old Alexa Bartell. (Photo by AAron Ontiveroz/The Denver Post)

AAron Ontiveroz

Former 10th Judicial District Chief Judge Dennis Maes

George Brauchler

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