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September 12, 2009

CBA LITIGATION COUNCIL
SEPTEMBER 12, 2009 MEETING MINUTES
LOCATION: CBA offices, Denver

COUNCIL MEMBERS PRESENT:

In Person:

Chair: Peter Black

Vice Chair: Alden Hill

Secretary: Lorraine Parker

Steve Abrams

Brad Breslau

Mickey Smith

Katayoun Donnelly

Larry Schoenwald

Andy Toft

Peter Goldstein

Via Phone: Kathie Riley; Mike Chapman

CBA Personnel: Michael Valdez; Brock Woods

OTHERS PRESENT: Chief Justice Mary Mullarkey

1. CALL TO ORDER: 9:04 AM

2. APPROVAL OF MINUTES: The May 2, 2009 Meeting Minutes were approved by acclamation email prior to the meeting due to the lengthy agenda.

3. GUEST: CHIEF JUSTICE MARY MULLARKEY. Civil filings are up, 15% in County Courts (mostly in the past two years), 22% in District Court over past 5 years. As the state’s population grows, the case load increases. Six weeks ago closed on the funding for the new State Judicial building, funded in part by federal stimulus funds. Financing was achieved at an effective rate of 4.2% due to high demand for the bonds. The Colorado History Museum has broken groundone block south of their current location. The appellate courts will vacate the  building by March 2010 and are negotiating with the Denver News Agency for temporary quarters. SCAO is already there on the 5th floor. The courtroom will be on the first floor in vacant retail space. 2013 is the target completion date for the new building. There will be  complex – a 10-story office building on the south side of the block (bringing together  state judicial functions, SCAO, attorney regulation) and the court building. They are attempting to build a 100-year building, so the expansion space in the office building will have tenants such as the AG’s office, Public Defender’s appellate staff. The architect and general contractor have been selected. There has been a hiring freeze in place since last September, which has helped State Judicial achieve the required 5.2% reduction in spending due to current budgetary problems without having to implement layoffs. State Judicial would like to look into creation of a rainy day fund to help alleviate the recurring budget problems. Turnover in court staff heaviest in the 17th Judicial District. There will be more court closures over lunchtime and at 4:00 to give reduced staff time to do paperwork. There is also an increased emphasis on going to paperless systems. The Supreme Court’s docket is about the same; approximately 1400 cases referred to the Court, approximately 90 opinions written each year. Several litigation council members voiced concerns about the increasing tendency of trial judges to limit voir dire. Justice Mullarkey stated she would bring the issue up at next week’s “non-conference” of judges. The number of jury trials is going down, so the impetus for limiting voir dire cannot be too many trials. Apparently the trial judges perceive limited value in voir dire. Regarding electronic filing, State Judicial is  hoping to take it over and do it inhouse. They believe Lexis-Nexis is making a profit of 10-15 million dollars a year. The biggest savings to the state will be in criminal because it pays for both sides. The JBC is very much in favor of State Judicial taking over electronic filing, but a big lobbying effort was mounted by Lexis-Nexis. Justice Mullarkey believes State Judicial’s IT department is talented. In fact, State Judicial’s website just won an international award. The cost for computer programming is estimated at $1M. Justice Mullarkey is concerned about public perception concerning the court complex; the public should know that the need for a new building is due to serious structural and maintenance problems and inadequate space. The state has not built a new office building in 30 years, thus they are spending money renting space all over town. There are also significant security concerns given the design of the current building.

4. DISCUSSION OF PROPOSED COMMENT TO CODE OF JUDICIAL CONDUCT RULE 2.6. The proposal pertains to accommodations a judge may make for pro se litigants. The comment would present a change from the traditional rule that pro se litigants be treated no differently than represented litigants.

A. PRO SIDE – JUDGE DAN TAUBMAN (COURT OF APPEALS) & JUDGE ANGIE ARKIN (DOUGLAS COUNTY DISTRICT COURT) Judge Taubman does not believe that the proposed change would authorize trial courts to impose different substantive and procedural rules for pro se litigants. The comment would be helpful to trial court judges who are currently bound to treat pro se litigants the same as represented litigants, which can result in protracted proceedings. Judge Arkin’s background is as a GAL and in family law; she discussed a judge’s need with pro se litigants to keep them focused on the issue at bar and to present evidence within the evidentiary framework. Judges seek greater latitude in explaining court processes and making accommodations to lead to better and more efficient resolutions. The line over what assistance is appropriate will vary depending upon the type of docket (probate, family law, criminal, civil).

B. CON SIDE – JUDGE JOHN WEBB (COURT OF APPEALS) Judge Webb is here on behalf of 15 judges of the Court of Appeals (of a total of 22) who signed a letter, urging three changes to Comment 2. The letter is contained in the agenda packet, as well as Judge Webb’s outline for his opposition to the proposed comment. “Liberally construing pleadings” creates a problem given rules governing pleadings, and the potential for additional appeals based upon the language in the comment. The remaining items are informational, which no case prevents a judge from doing. Judge Webb et al. are concerned that the “notwithstanding case law” language will put a cloud over certain cases which have been decided against pro se, that a litigant will be treated differently and more favorably simply because they have not retained an attorney. Judge Webb presented proposed solutions to the perceived  problems with the proposed comment.

C. REBUTTAL Judge Webb’s opposition does not address the problem the proposed revision attempts to address – that trial judges need guidance on dealing with the increasing number of pro se cases. There is a national movement called Principles of Neutral Engagement to guide pro se litigants without advocating or acting as a surrogate attorney for the pro se litigant. Regarding meritless appeals, the opposition ignores the fact that there may be appeals with merit. They are not currently training judges on how to deal with pro se litigants because there are currently no guidelines for how to handle them.
OTHERS PRESENT: MAGISTRATE SIMON MOLE (17th Judicial District), JUDGE BETTY STROBLE (WELD COUNTY DISTRICT COURT), JUDGE GALE MILLER (COURT OF APPEALS), all in favor of the proposed amendment. DISCUSSION: Peter Goldstein argued that a one-size-fits-all comment to a rule is inappropriate; there should be rules specific to each type of docket. A conference call Wednesday 9/17/09 at 4:30 p.m. will be conducted for further discussion on the issue and motions. Michael Valdez reminded the Council October 1st is the deadline to inform the Supreme Court that we wish to be heard on October 22nd at the rules hearing.

5. PRESENTATION TO JOHN PURVIS. The Council thanks John Purvis for his 18 years of service on the Council. Alden Hill presented him with a truly beautiful green and gold CSU blanket.

6. CONFIRMATION OF NEW OFFICERS FOR 2009-2010. Deferred.

7. INTRODUCTION OF NEW COUNCIL MEMBERS AND NEWSLETTER EDITOR. Deferred.

8. PROPOSED REVISION TO C.R.C.P. 47 RE VOIR DIRE. Deferred

9. FUTURE DATES AND SPEAKERS: Deferred.

10. FINANCIAL REPORT. Deferred.

11. COMMITTEE AND SUB-COMMITTEE REPORTS: Deferred.

12. ADJOURNED at 12:07 p.m. Next meeting to be October 3, 2009 at CBA offices, at 9:00 AM.

Prepared by:

/s/ Lorraine Parker

Lorraine Parker, Secretary

Approved: _________________________

(date)