January 2008

FAMILY LAW SECTION EXECUTIVE COUNCIL MEETING – JANUARY 17, 2008

The meeting was called to order by the Chair, Kathryn Beck, at 10:10  am. 

The following members and/or past chairs, attended in person:  Kathryn Beck (Chair), Marie Moses (Secretary), Richard Zuber (Treasurer), David Johnson (Immediate Past Chair), Marc Chapleau, Denise Cook, Meredith Cord, Mary Jane Cox, Michael DiManna, John Eckelberry, Jennifer Feingold, Terri Harrington, Beth Henson, Joan McWilliams, Leslie Monahan, Dick Rotole, Kevin Sidel, Ellen Squires, Jackie St. Joan and Brenda Storey.   

Members present by telephone:  Katie Hays.

These members had excused absences:  David Littman.   

Melissa Nicoletti was present from the CBA.  Robin Lutz was present as a guest.  

A motion was made to approve the minutes of the November 16, 2007 meeting.  The motion was seconded and was approved without opposition.  A motion was made to approve the Treasurer’s Report.  The motion was seconded and was approved without opposition. 

OFFICER’S REPORTS

CHAIR’S REPORT BY KATHRYN BECK: 

New Chief Justice Directives:  Melissa Nicoletti circulated new CFI directive.  They are not up on the Court website, only CBA right now.

Updates on ABA Recommendation regarding dual jurisdiction youth: This initiative was started by Karen Mathis, former ABA president.  Her task force is still working on the issue.  ABA wants a policy on this issue so that they can have a juvenile law standing committee to address issues of Social Services issues.  This will not really do anything other than giving ABA authority to address social services issues when they arise.  They want the FLS to get behind this recommendation. 

There are often kids in foster care that go into the delinquency system.  This may not be as much of an issue in Colorado as other states.  The D&N cases often get closed when the Delinquency cases are filed—and then the kids lose the services from the D&N.  Open to discussion from council, no concerns were expressed.  If anyone has suggestions before February, talk with Kathryn Beck or Karen Mathis. 

VICE CHAIR’S REPORT – Report given by Brenda Storey in David Littman’s absence:

Family Law Institute:  State Judicial and Juvenile Law Section are participating in presenting the conference.  There will be topics of interest to the Juvenile Law practitioners.  The agenda is almost set.  They have speakers assigned to each topic, but too many topics, so they just need to narrow those and confirm with speakers.  They still have Hot Topic openings.  Many of the topics are from last year’s suggestions, and suggestions from the other members of the committee—Les Katz and Yvonne Zuber.  Trying to make a big effort to get the mental health professionals involved again.  The 2008 Family Law Institute will be held August 8 -10, 2008 at Beaver Run in Breckenridge. 

SECRETARY’S REPORT- MARIE MOSES

The Report of the Legislative Committee was presented by Marie Moses and Dick Rotole. 

HB 08-1176: Concerning the Modification of the Allocation of Parental Rights and Responsibilities of Certain Deployed Service Members.  This bill would allow interim modifications of parenting time and decision-making authority during the period that a service member is deployed.  The presumption would be that the parenting time and decision-making orders revert to the prior orders once the service member returns from deployment.  Members of the Legislative Committee met with Rep. LaBuda (bill sponsor) to make sure that this bill would continue to grant the court discretion to make decisions concerning children that are consistent with the child’s best interests.  The revised bill appears to accomplish that goal.  Marc Chapleau expressed concern that this bill actually overturns DePalma which says the service member can delegate authority to care for the children to a stepparent.  This bill says that interim orders can be entered.  The primary parent shouldn’t have to prove endangerment on return.  The Legislative Committee did not have a chance to review the introduced bill prior to the Executive Council meeting—but will make a recommendation and get an email vote of the Executive Council prior to the bill coming up for testimony. 

SB 08-054: Concerning Judicial Performance Evaluations:  As discussed by Dave Johnson (see below), the Family Law Section will try to “gain a seat at the table” to address the importance of domestic relations cases when considering judicial performance. 

TREASURER’S REPORT BY RICHARD ZUBER

The treasurer’s report was approved. 

Common Law Marriage Task Force:  CBA Report was written by Denise Mills and Steve Lass.  A Common Law Marriage task force from the FLS Executive Council participated in the CBA efforts to reach a consensus regarding the existence of common law marriage.  The CBA committee was tasked with making a recommendation about whether common law marriage should be abolished, and if so or if not, what do we do about it.  Many bar associations appointed representatives to the CBA committee.  If the Legislature proposes legislation to abolish common law, the CBA should take the position to retain common law marriage.  Highly emotional issue.  Many minority bar associations felt eliminating common law would be a grave injustice for minorities.  A cultural institution—necessary to protect disadvantaged women—who would have no other avenue to get government benefits.  Our thanks to Denise Mills for the hard work she put into this.  Great job summarizing the positions of the sections.  Our Section summary reflected that we received a 28% response rate to our survey.  44% voted to abolish common law; 49% voted to keep common law.  A pretty close vote.  Of the respondents in favor of keeping common law marriage, 39% said it should be more clearly defined by statute.  Thanks to Richard Zuber for participating.  The AAML also voted to retain common law marriage.  Haven’t heard any move to abolish in the legislature this year. 

PAST CHAIR:  DAVE JOHNSON
 
Judicial Term Limits:  There may be an issue on the November general election ballot.  It would apply to all sitting judges and would limit them to 3 four-year terms plus the provisional term of 2 years.  CBA will carry ball on fighting this.  They are worried about financial aspect.  It was so expensive last time.  Do as much grassroots work as we can.  Discuss it with colleagues, neighbors and friends.  This is an attack on the independence of the judiciary.  The next step is to make the judges elected—a political process.  We will be asked to contribute to the war chest.  The last time we got it defeated because it would have required the immediate retirement of judges. This bill would not impose immediate retirement requirements for current sitting judges, but would limit them to three terms after their retention election after 2010. The CBA is working with ABA to try to get in touch with funding sources.  ABA won’t write checks, but they may have a list of people that might give $$.  The CBA will be looking to out of state funding sources to lessen the financial burden on Colorado.  Look for people gathering petitions—listen to them to see what they are telling people about the legislation—report back to Melissa at CBA so that we know.  Write letters to the editors of local papers.  Term limits are a popular concept with voters—until the consequences are explained.  Can we raise money within the section—can we do a fundraiser?  Can we take up a collection from the members?  The CBA will probably form another nonprofit that members can give checks to. 

Judicial Performance Evaluations:  The CBA Board of Governors will be addressing how to beef up the process.  The FLS officers have met 2 times with 18th JD to address their concerns about Case Management.  We addressed Judge Arkin’s deployment to boonies.  But, she is back now in Douglas.  Chief Judge Sylvester feels they are under tremendous pressure to meet their numbers in terms of closed cases.  We need to find a voice in the process.  The result of this perceived pressure was the enactment of the draconian Douglas County case management order.  Pursuant to this order, cases are subject to dismissal if not proceeding with sufficient speed.  They were trying to justify that by the CJD 8109—85% closed within 1 year.  Rest within 18 months.  But that standard was ignored by most districts.  SCAO seemed to say they would enforce that in the course of getting more judges.  There is a new CJD that will be issued later. Under this new CJD, there will be two sets of Case Management Standards for all type of cases.  There will be “Case Management Organizational Goals” (which evaluate how a district is doing) and “Benchmarks for Individual Judges” (which will be reported to the judicial performance commissions).  In Domestic Relations Cases, the “organizational goals” will require a district to have not more than 5% open for more than a year.  The benchmark for individual judges:  not more than 10% open more than 18 months. 
 
Judicial Performance Evaluations:  Currently, lawyers that have appeared in front of a judge can go to the commission and comment—but not representatives of various groups—like have a FLS representative talk to the commission.  If we fail in getting legislation that will allow that, we need to try to monitor the retention elections, and let FLS members know when judges are up for retention so that individually people can comment on the judges.  Need to be clear that people are speaking as individuals, not representatives of the bar.  Mike DiManna will go speak to Terrance Carroll about whether it is possible to get permission for a FLS representative to speak to the commission as a group.  This representative would educate the commissions about the importance of family law cases—and emphasize that any judge up for retention needs to be good at family law—and that family law cases are important.  We don’t think that we will be able to comment on individual judges.  Legislative Committee to monitor legislation. 

Nominating Committee:  The nominating committee is comprised of the FLS Officers, Jennifer Feingold and Meredith Cord; February 15th, notices go out to members for applications, nominations due March 15, April 15th ballots are confirmed; Ballots must go out between May 1st and May 15th.  Ballots must be returned by June 1st.  Call people that you think would be good members to Exec Council.  Call at least one person to get them to run as a candidate.  Need candidates from out of the Denver Metro area.

OLD BUSINESS

1. Family Court Task Force:  Started one year ago, quarterly meetings.  Lesleigh Monahan.  The Conference in Baltimore last year was a good way to get a sense of court models and ideas under discussion.  Beth Henson and Dave Johnson also attended.  From the information gathered at the conference in Baltimore, it appears Colorado is doing a good job already of creating a family court.  The Task Force is trying to report on resources in Colorado that could be helpful in unifying family courts and should be creating a report that identifies what we have got here.  A survey has been conducted of different judicial districts.  Survey results:  Need for additional training for family court facilitators, magistrates and judges.  Education to litigants in family court—domestic or juvenile.  Must educate judges.  Availability of pro se services and education.  Family Court Facilitators didn’t know about access to information services available to judicial officers—Online access to other cases that are going on concerning the members of that family.  Alicia Davis is going to advise districts about these available programs.  In October the Task Force divided into three subcommittees—1) Personnel Issues—Dave Johnson, Dick Rotole, Magistrate Leith, Judge Montgomery, and Kent Olsen; 2) Judicial Selection and Training; 3) Consolidation Issues—information and access to information—Alicia Davis and Melinda Taylor from Adams Co—making lots of progress. Fran Fontana is doing a memorandum on the information subcommittee.  She is seeking information about what is important from the lawyer’s perspective.  How do you handle situations when a judge has access to information that the attorney does not have?  If we make that info available to a judge, shouldn’t the lawyers have that information?  This issue raises due process and ethical considerations.  If you have ideas on this subject, contact Lesleigh Monahan or Fran Fontana to discuss your concerns.  Judge needs to give notice about what they are looking at—is a continuance needed.  Service Issue subcommittee—Beth Henson, Kathryn Beck and Dana Cogan.  Providing services to litigants-early neutral evaluation, mediation services, daycare services.  Global task force meeting on Friday—trying to get subcommittee reports in March—Pull it all together this summer.  Fran Fontana on the phone.  Her memo is geared to talking to the committee setting up the technology system.  She is seeking antidotes of technologies gone astray. 

2. Scheduling 1st JD Brown Bag is in the works. 

3. Mentoring:  John Eckelberry:  having a Mentoring Dinner at DU.  February 21st.  We are trying to invite CU students—DU will hold a dinner with 50-60 people—Juvenile Section may want to come.  Still talking to CU.  The cost was prohibitive previously.  Now we think we can do it for $600.  DU will pay the other $600.  4 mentors; 4 mentees per table.  Try to seat people with similar interests at same table.  Will not have mingling before dinner—maybe after dinner.  Don’t have to go to dinner to be a mentor/ee.  This is to be a kick-off dinner for the program.  Need mentors to come.  Will send an email to the section members to invite them to be mentors and attend the dinner.  Must send back the bio to attend the dinner.  Motion for $600 for Dinner. Second.  Passed unanimously. 

4. Barristers’ Ball Table:  Brenda suggested that we say, if you want to go to Ball and you took a MVL case, contact Brenda Storey.  If we have more than 5 people, need to draw name from hat.  Brenda to follow up to make sure table has been paid for by February 1st. 

NEW BUSINESS:

1. Joan McWilliam’s Brochure: Joan is working with Donna Hinds on developing the concept of “whole child parenting”—to make our system more child inclusive—Australian term.  They want to conduct a survey of Colorado lawyers—how have their practices changed in past 20 years.  Wanting to send out survey to FLS lawyers.  How has landscape changed.  Giving children right to design parenting time schedule when they turn 16; are things changing that lawyers are not aware of.  Kids are participating in process.  Wants permission to send out via FLS.  Results will be used for presentations and publications and maybe a book.  Motion for her to send out survey. Passed unanimously. 

2. February 19, 2008 Social Event—Nuggets v. Celtics: Only 13 tickets left to Social Event:  Dinner 2 drinks, tickets:  February 19th: 

3. Brown Bag Lunches:  Should we open up Brown Bag to have a lunch with SCAO officials and those that are nominating judges?  Discussion was deferred to next meeting.  Think about whether it is a good idea and who we need to meet with. 

4. February Executive Council Meeting:  Don’t know yet whether we need a February meeting—depends on Legislative issues.  Look for an email for scheduling.

ADJOURNMENT:

A motion to adjourn was made and seconded.  The meeting was adjourned at 11:55 a.m.