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TCL > February 1999 Issue > Court Business

February 1999       Vol. 28, No. 2       Page  99
From the Courts
Court Business

Court Business

Chapter 32. Colorado Appellate Rules
Original Jurisdiction
Certification of Questions of Law
Rule 21. Procedure in Original Actions

The entire existing C.A.R. Rule 21 is repealed and readopted as follows. This repeal and readoption is adopted November 19, 1998, effective January 1, 1999.

C.A.R. 21. Procedure in Original Actions.

(a) Original Jurisdiction Under the Constitution.

(1) This rule applies only to the original jurisdiction of the Supreme Court to issue writs as provided in Section 3 of Article VI of the Colorado Constitution and to the exercise of the Supreme Court’s general superintending authority over all courts as provided in Section 2 of Article VI of the Colorado Constitution. Relief under this rule is extraordinary in nature and is a matter wholly within the discretion of the Supreme Court. Such relief shall be granted only when no other adequate remedy, including relief available by appeal or under C.R.C.P. 106, is available.

(2) Petitions to the Supreme Court in the nature of mandamus, certiorari, habeas corpus, quo warranto, injunction, prohibition and other forms of writs cognizable under the common law are subject to this rule. The petitioner need not designate a specific form of writ when seeking relief under this rule.

(b) How Sought; Proposed Respondents. Petitioner shall file a petition for a rule to show cause specifying the relief sought and shall request the court to issue to one or more proposed respondents a rule to show cause why the relief requested should not be granted. The proposed respondent should be the real party in interest.

(c) Docketing of Petition and Fees; Form of Pleadings; Briefs. Upon the filing of a petition for a rule to show cause, petitioner shall pay to the clerk of the Supreme Court a docket fee in the amount prescribed by law for proceedings on appeal. All papers filed under this rule shall comply with C.A.R. 32.

(d) Number of Copies to be Filed and Served. An original and ten copies of each petition, motion, brief or other paper shall be filed. One set of supporting documents shall be filed.

(e) Content of Pleadings and Service.

(1) The petition shall be titled, "In Re [Caption of Underlying Proceeding]." If there is no underlying proceeding, the petition shall be titled, "In Re [Petitioner v. Proposed Respondent]."

(2) Petitioner shall have the burden to show that a rule to show cause should be issued. To enable the court to determine whether a rule to show case should be issued, the petition shall disclose in sufficient detail the following:

(A) The identity of the petitioner and of the proposed respondent, together with their party status in the proceeding below (e.g., plaintiff, defendant, etc.);

(B) The identity of the court or other tribunal below, the case name and case number or other identification of the proceeding below, if any, and identification of any other related proceeding;

(C) The identity of the persons or entities against whom relief is sought;

(D) The ruling, action, or failure to act complained of and the relief being sought;

(E) The reasons why no other adequate remedy is available;

(F) The issues presented;

(G) The facts necessary to understand the issues presented;

(H) Argument and points of authority explaining why a rule to show cause should be issued and why relief requested should be granted; and

(I) A list of supporting documents, or an explanation of why supporting documents are not available.

(3) The petition shall include the names, addresses, and telephone and fax numbers, if any, of all parties to the proceeding below; or, if a party is represented by counsel, the attorney’s name, address, and telephone and fax number.

(4) The petition shall be served upon each party and proposed respondent and the court or tribunal below.

(f) Supporting Documents. A petition shall be accompanied by a separate, indexed set of available supporting documents adequate to permit review. Some or all of the following documents may be necessary:

(1) The order or judgment from which relief is sought;

(2) Documents and exhibits submitted in the proceeding below that are necessary for a complete understanding of the issues presented;

(3) A transcript of the proceeding leading to the order or judgment below.

(g) Stay; Jurisdiction.

(1) The filing of a petition under this rule does not stay any proceeding below or the running of any applicable time limit. If the petitioner seeks a temporary stay in connection with the petition pending the court’s determination whether to issue a rule to show cause, a stay ordinarily shall be sought in the first instance from the court or tribunal. If a request for stay below is impracticable or not promptly ruled upon or is denied, the petitioner may file a separate motion for a temporary stay in the Supreme Court supported by accompanying materials justifying the requested stay.

(2) Issuance of a rule to show cause by the Supreme Court automatically stays all proceedings below until final determination of the original proceeding in the Supreme Court unless the court, sua sponte, or upon motion, lifts such stay in whole or in part.

(h) No Initial Responsive Pleading to Petition Allowed. Unless requested by the Supreme Court, no responsive pleading to the petition shall be filed prior to the court’s determination of whether to issue a rule to show cause.

(i) Denial; Rule to Show Cause.

(1) The court in its discretion may issue a rule to show cause or deny the petition without explanation and without an answer by any respondent.

(2) The clerk, by first class mail, shall serve the rule to show cause on all persons ordered or invited by the court to respond and shall provide copies to the judge or other officer in the proceeding below.

(j) Response to Rule to Show Cause.

(1) The court in its discretion may invite or order any person in the proceeding below to respond to the rule to show cause within a fixed time, and may invite amicus curiae participation. Any person in the proceedings below may request permission to respond to the rule to show cause but may not respond unless invited or ordered to do so by the court. Those ordered by the court to respond are the respondent.

(2) The response to any order of the court shall conform to section (c) and (d) of this rule.

(3) Two or more respondents may answer jointly.

(k) Reply to Response to Rule to Show Cause. Petitioner may submit a reply brief within the time fixed by the court.

(l) No Oral Argument. There shall be no oral argument unless ordered by the court.

(m) Opinion Discretionary. The court, upon review, in its discretion may discharge the rule or make it absolute, in whole or in part, with or without opinion.

(n) Petition for Rehearing. In all proceedings under this Rule 21, where the Supreme Court has issued an opinion discharging a rule or making a rule absolute, a petition for rehearing may be filed in accordance with the provisions of C.A.R. 40.

Adopted November 19, 1998, effective January 1, 1999.


Chapter 32. Colorado Appellate Rules
General Provisions
Rule 41. Issuance of Mandate
Jurisdiction on Writ of Certiorari
Rule 52. Review on Certiorari—Time for Petitioning
Amended and Adopted

C.A.R. 41. Issuance of Mandate.

The mandate of the court shall issue fifteen days after the entry of judgment unless the time is shortened or enlarged by order. A certified copy of the judgment and a copy of the opinion of the court, if any, and any direction as to costs shall constitute the mandate, unless the court directs that a formal mandate issue. The timely filing of a petition for rehearing will stay the mandate until disposition of the petition unless otherwise ordered by the court. If the petition is denied, the mandate of the supreme court shall issue on the second day thereafter and the mandate of the court of appeals shall issue on the thirty-second day thereafter, exclusive, in either case, of the day of entry of the order denying the petition, unless the time is enlarged by order for a stay.

(a) FORM. A CERTIFIED COPY OF THE JUDGMENT AND A COPY OF THE OPINION OF THE COURT, IF ANY, AND ANY DIRECTION AS TO COSTS SHALL CONSTITUTE THE MANDATE, UNLESS THE COURT DIRECTS THAT A FORMAL MANDATE ISSUE.

(b) TIME. UNLESS THE COURT GRANTS OR REMOVES A STAY, OR OTHERWISE CHANGES THE TIME BY ORDER, THE MANDATE SHALL ISSUE AS FOLLOWS:

(1) THE MANDATE OF THE COURT OF APPEALS SHALL ISSUE FORTY-SIX DAYS AFTER ENTRY OF THE JUDGMENT. IN WORKERS’ COMPENSATION AND UNEMPLOYMENT INSURANCE CASES, THE MANDATE OF THE COURT OF APPEALS SHALL ISSUE THIRTY-ONE DAYS AFTER ENTRY OF THE JUDGMENT. THE TIMELY FILING OF A PETITION FOR REHEARING WILL STAY THE MANDATE UNTIL THE COURT HAS RULED ON THE PETITION.

(2) IF A PETITION FOR REHEARING IS DENIED, THE MANDATE SHALL ISSUE THIRTY-TWO DAYS AFTER ENTRY OF THE ORDER DENYING THE PETITION. IN WORKERS’ COMPENSATION AND UNEMPLOYMENT INSURANCE CASES, THE MANDATE OF THE COURT OF APPEALS SHALL ISSUE SEVENTEEN DAYS AFTER ENTRY OF THE ORDER DENYING A PETITION FOR REHEARING.

(3) THE MANDATE OF THE SUPREME COURT SHALL ISSUE FIFTEEN DAYS AFTER THE ENTRY OF JUDGMENT. THE TIMELY FILING OF A PETITION FOR REHEARING WILL STAY THE MANDATE UNTIL THE COURT HAS RULED ON THE PETITION. IF THE PETITION FOR REHEARING IS DENIED, THE MANDATE SHALL ISSUE TWO DAYS AFTER ENTRY OF THE ORDER DENYING THE PETITION.

C.A.R. 52. Review on Certiorari—Time for Petitioning.

(a) To Review a District Court Judgment. [No change.]

(b) To Review Court of Appeals Judgment. No writ of certiorari to the Supreme Court shall issue unless a petition for rehearing has been filed in the Court of Appeals. A petition for writ of certiorari to review a judgment of the Court of Appeals shall be filed not later than thirty days from the date rehearing is denied in the Court of Appeals, except that in workers’ compensation and unemployment insurance cases the time for filing a petition for writ of certiorari to the Supreme Court is reduced to fifteen days.

(1) FILING A PETITION FOR REHEARING IN THE COURT OF APPEALS, BEFORE SEEKING CERTIORARI REVIEW IN THE SUPREME COURT, IS OPTIONAL.

(2) NO PETITION FOR ISSUANCE OF A WRIT OF CERTIORARI MAY BE SUBMITTED TO THE SUPREME COURT UNTIL THE TIME FOR FILING A PETITION FOR REHEARING IN THE COURT OF APPEALS HAS EXPIRED.

(3) ANY PETITION FOR WRIT OF CERTIORARI TO REVIEW A JUDGMENT OF THE COURT OF APPEALS SHALL BE FILED IN THE SUPREME COURT WITHIN THIRTY DAYS AFTER THE EXPIRATION OF THE TIME FOR FILING A PETITION FOR REHEARING IN THE COURT OF APPEALS, IF NO PETITION FOR REHEARING IS FILED, OR WITHIN THIRTY DAYS AFTER THE DENIAL OF A PETITION FOR REHEARING BY THE COURT OF APPEALS. IN WORKERS’ COMPENSATION AND UNEMPLOYMENT INSURANCE CASES, THE TIME FOR FILING A PETITION FOR CERTIORARI IN THE SUPREME COURT IS REDUCED TO FIFTEEN DAYS.

C.A.R. 41 and C.A.R. 52 are Amended and Adopted by the Court, En Banc, November 20, 1998, effective January 1, 1999.

Justices Scott and Martinez would not amend the rules.


Chapter 33. Colorado Rules of Evidence
Article VII. Hearsay
Rule 801. Definitions
Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial
Rule 804. Hearsay Exceptions: Declarant Unavailable Rule
Rule 807. Residual Exception
Amended and Adopted

Rule 801. Definitions

(a) through (c) [No change]

(d) Statements which are not hearsay.

(1) [No change]

(2) Admission by party-opponent. The statement is offered against a party and is (A) THE PARTY’S own statement in either AN individual or a representative capacity or (B) a statement of which THE PARTY has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by THE PARTY to make a statement concerning the subject, or (D) a statement by THE PARTY’S agent or servant concerning a matter within the scope of THE agency or employment, made during the existence of the relationship, or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. THE CONTENTS OF THE STATEMENT SHALL BE CONSIDERED BUT ARE NOT ALONE SUFFICIENT TO ESTABLISH THE DECLARANT’S AUTHORITY UNDER SUBDIVISION (C), THE AGENCY OR EMPLOYMENT RELATIONSHIP AND SCOPE THEREOF UNDER SUBDIVISION (D), OR THE EXISTENCE OF THE CONSPIRACY AND THE PARTICIPATION THEREIN OF THE DECLARANT AND THE PARTY AGAINST WHOM THE STATEMENT IS OFFERED UNDER SUBDIVISION (E).

COMMITTEE COMMENT

The last sentence of this Rule was added to track a corresponding change in F.R.E. 801(d)(2).

Rule 803. Hearsay Exceptions; Availability
Of Declarant Material

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) through (23) [No change]

(24) [Transferred to Rule 807]

COMMITTEE COMMENT

The contents of Rule 803(24) and Rule 804(b)(5) have been combined and transferred to Rule 807. This was done to facilitate additions to Rules 803 and 804. No change in meaning is intended.

Rule 804. Hearsay Exceptions; Declarant Unavailable

(a) [No change]

(b) Hearsay exceptions.

(1) through (4) [No change]

(5) [Transferred to Rule 807]

COMMITTEE COMMENT

The contents of Rule 803(24) and Rule 804(b)(5) have been combined and transferred to Rule 807. This was done to facilitate additions to Rules 803 and 804. No change in meaning is intended.

Rule 807. RESIDUAL EXCEPTION

A statement not specifically covered by RULE 803 OR 804 but having equivalent circumstantial guarantees of trustworthiness, IS NOT EXCLUDED BY THE HEARSAY RULE, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.

C.R.E. 801, 803, 804, and 807 are Amended and Adopted by the Court, En Banc, November 25, 1998, effective January 1, 1999.

By the Court:

Gregory J. Hobbs, Jr.
Justice, Colorado Supreme Court


In the United States District Court
For the District of Colorado
In the Matter of the Local Rules of Practice

Order Amending Certain Collateral Forfeiture
Pursuant to Fed. R. Crim. P. 58(d)(1) and D.C. Colo.LR 72.5

THIS MATTER comes before the Court on application of the United States of America to amend this Court’s previous schedule of collateral for possible forfeiture in lieu of appearance for violations under Title 41, Code of Federal Regulations, Subpart 101-20.3, occurring on property under the charge and control of the United States General Services Administration ("GSA").

HAVING considered the application and with the approval of the active judges of the Court, the Court finds that an increase in the scheduled collateral for forfeiture in lieu of appearance for such violations in the amounts proposed in the government’s application would better assist in the enforcement of the rules and regulations for property under the charge and control of the GSA in this District. Accordingly,

IT IS THEREFORE ORDERED, pursuant to Rule 58(d)(1) of the Federal Rules of Criminal Procedure and rule 72.5 of this Court’s Local Rules of Practice, that the Schedule of Collateral for Possible Forfeiture for use in violations under Title 41, Code of Federal Regulations, Subpart 101-20.3, occurring on property under the charge and control of the GSA, which is currently in effect REPEALED, effect December 19, 1998, and substituted in place thereof, effective that same date, the following:

SCHEDULE OF COLLATERAL
FOR POSSIBLE FORFEITURE
FOR THE USE BY THE
U.S. GENERAL SERVICES ADMINISTRATION

For violations occurring on all federal property under the charge and control of the U.S. General Services Administration and to all persons entering in or on such property charged under cited Sections of Title 41, Code of Federal Regulations 101-20.3

301 Inspections Mandatory Appearance
302 Admissions of Property $100
303 Preservation of Property $250
304 Conformity with Signs and Directions $ 50
305 Disturbance $250
306 Gambling Mandatory Appearance
307 Alcoholic Beverages and Narcotics Mandatory Appearance
308 Soliciting, Vending, and Debt Collection $ 50
309 Posting and Distributing Materials $ 50
310 Photographs for News, Advertising or Comm. Purposes Mandatory Appearance
311 Dogs and Other Animals $ 25
312 Vehicular and Pedestrian Traffic
(a) Careless and Unsafe Driving $ 50
(b) Blocking of Entrances $ 25
(c) Parking without Authority $ 25
(d) Handicapped Parking without Authority $ 50
313 Explosives Mandatory Appearance
314 Nondiscrimination Mandatory Appearance


Dated at Denver, Colorado, this 11th day of December 1998.

By the Court:

Richard P. Matsch
Chief Judge

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