Vol. 27, No. 12
From the Courts
In the United States District Court
For the District of Colorado
In the Matter of Local Rules of Practice
Order Adopting Local Rule 72.6
Pursuant to 28 U.S.C. 2071 and Rule 83(a) of the Federal Rules of Civil Procedure and after publication and an opportunity for comment, it is now ORDERED that the following new local rule, designated D.C.COLO.LR 72.6, will become effective on February 1, 1999:
CONSENT JURISDICTION OF MAGISTRATE JUDGES
1. Pursuant to 28 U.S.C. 636(c)(1) and subject to the provisions of this Rule, all full-time magistrate judges in the District of Colorado are specially designated to conduct any or all proceedings in any jury or nonjury civil matter and order the entry of judgment in the case. This rule, implementing 28 U.S.C. 636(c) consent jurisdiction in the District of Colorado, does not affect assignments to magistrate judges under other court rules and orders of reference.
2. No judge or magistrate judge, court official or court employee may attempt to influence the granting or withholding of consent to the reference of any civil matter to a magistrate judge under this rule. The form of notice of right to consent to disposition by a magistrate judge shall make reference to this prohibition and shall identify the rights being waived.
3. Upon the filing of any civil case, the Clerk shall deliver to the plaintiff(s) written notice of the right of the parties to consent to disposition of the case by a United States Magistrate Judge pursuant to 28 U.S.C. 636(c) and the provisions of this rule. The written notice shall be in such form as the district judges shall direct. The Clerk shall also provide copies of such notice to be attached to the summons and thereafter served upon the defendant(s) in the manner provided by Fed. R. Civ. P. 4. A failure to serve a copy of such notice upon any defendant shall not affect the validity of the service of process or personal jurisdiction over the defendant(s).
4. Assignment of cases to district judges and magistrate judges shall be by random selection as provided in D.C.COLO. LR 40.1.
5. Except as provided in paragraph 7 of this rule concerning joinder of additional parties, written consent to proceed before a magistrate judge must be filed not less than five days before the Fed. R. Civ. P. 16(b) conference. In cases exempted from scheduling conferences under D.C.COLO.LR 26.1, the parties shall have 40 days from the defendant's filing of the first responsive pleading to file such consent. All Fed. R. Civ. P. 16(b) scheduling orders required by D.C.COLO.LR 16.2 shall include a statement whether all parties have consented to proceed before a magistrate judge under this rule. When there is such consent, the magistrate judge entering the Rule 16 scheduling order shall forthwith notify the assigned district judge of the unanimous consent who will then determine whether to enter an order of reference pursuant to 636(c).
6. Upon entry of an order of reference pursuant to 636(c), the civil action will be reassigned to a magistrate judge selected by random draw, excluding the magistrate judge previously assigned.
7. Any party added to the action after reference to a magistrate judge under this rule shall be notified by the Clerk of the right to consent to the exercise of jurisdiction by the magistrate judge pursuant to 636(c). If an added party does not file a consent to proceed before magistrate judge within twenty days from the date of mailing of the notice, the action shall be returned to the assigned district judge for further proceedings.
8. The district judge, for good cause shown on the judge's own initiative, or under extraordinary circumstances shown by a party, may vacate a reference of a civil matter to a magistrate judge under this rule.
9. Upon entry of a judgment in any civil action on consent of the parties under 636(c) authority, the appeal shall be directly to the United States Court of Appeals for the Tenth Circuit in the same manner as an appeal from any other judgment of this court.
DATED this 7th day of October, 1998.
BY THE COURT:
Richard P. Matsch, Chief Judge
John L. Kane, Jr. Judge
Zita L. Weinshienk, Judge
Lewis T. Babcock, Judge
Edward W. Nottingham, Judge
Daniel B. Sparr, Judge
Wiley Y. Daniel, Judge
Walker D. Miller, Judge
Colorado Judicial Department
Chief Justice of the Supreme Court Directives
Notice of Availability
A full set of the Chief Justice Directives may be purchased from the Colorado Judicial Department for $15, which includes copying, handling, and postage costs. Checks should be made payable to Colorado Judicial Department and should be mailed to: Court Services Division, Office of the State Court Administrator, 1301 Pennsylvania St., Suite 300, Denver, CO 80203. Individual Chief Justice Directives will be assessed a $5 charge, pursuant to Chief Justice Directive 96-01, concerning standard research fees. Chief Justice Directives also are available from the Colorado Supreme Court homepage at: www.courts.state.co.us/supct/cjdirect/cjdirectives.htm.
Publication in The Colorado Lawyer
Chief Justice Directives will be published on a space available basis in this "Court Business" section of The Colorado Lawyer. Some attachments may be omitted. To obtain a copy of attachments, contact the Court Services Division, Office of the State Court Administrator, 1301 Pennsylvania St., #300, Denver, CO 80203.
REVISED CHIEF JUSTICE DIRECTIVE 98-01
Supreme Court of Colorado
Office of the Chief Justice
Revised June 1, 1998
Costs for Indigent Persons in Civil Matters
I. Statutory Authority
Section 13-16-103, 5 C.R.S. (1997) provides for an indigent person to prosecute or to defend in a court proceeding without the payment of costs, at the discretion of the judge. In the event that the indigent person successfully prosecutes or defends an action or proceeding, a judgment shall be entered in favor of the indigent person for court costs. If these costs are collected by the indigent person, that person shall pay the court in the amount of court costs which were waived.
II. Indigency Determination
A petitioner or a respondent in a civil case must be indigent to proceed in a court action without the payment of costs. Indigency should be determined by using the attached procedures for the determination of indigency.
III. Costs That May Not Be Waived
Any obligation for payment to a person or entity other than the State of Colorado, which arises in the course of "prosecuting or defending" a civil action or special proceeding is not one which can be waived on the basis of a party's indigency. Waiver of costs is limited to those fees and expenses owed to the state and does not apply to fees and expenses owed to other persons or entities. Therefore, transcript fees, witness fees, and process server fees cannot be waived by the court. As set forth in Section 13-16-124 5 C.R.S. (1997), if the party delivers the documents for service of process to the sheriff, the court cannot waive the sheriff's fee. The sheriff must make that determination.
IV. Costs That May Be Waived
If the court determines the person to be indigent, any costs owed to the state may be waived. Such costs would include filing fees, reasonable copy fees, jury fees, and research fees. If the court delivers the documents for service of process to the sheriff, the court can waive the sheriff's fee and pay the sheriff fees from mandated costs.
Date: May 27, 1998
Anthony F. Vollack, Chief Justice
Procedures for the Waiver of Court Costs in
Civil Cases on the Basis of Indigency
As set forth in CJD 98-01, Section II., all persons requesting waiver of court costs in civil actions or proceedings on the basis of indigency must follow the following procedures:
Procedures for the Determination of Indigency
The following procedures are used for applicants in cases addressed in CJD 98-01.
- Completion of Form FSD 98-01 by Applicant
Persons requesting waiver of court costs must complete, or have completed on their behalf, the Application for Waiver of Court Costs in Civil Cases, form FSD 98-01, and submit it to the court.
- Review of Financial Information by Court Staff
Court staff review the applicant's information on form FSD 98-01 to determine whether or not the applicant is indigent on the basis of three factors:
Criteria for Indigency
An applicant qualifies for waiver of court costs in civil cases if his or her financial circumstances meet either set of criteria described below.
A. Income is at or below guidelines / Liquid assets equal $0 to $1,500
If the applicant's income is at or below the income eligibility guidelines and he or she has liquid assets of $1,500 or less, as determined on form FSD 98-01, the applicant is indigent and eligible for waiver of court costs in civil cases.
B. Income is up to 25% above guidelines / Liquid assets equal $0 to $1,500 / Monthly expenses equal or exceed monthly income
If the applicant's income is up to 25% above the income eligibility guidelines; the applicant has assets of $1,500 or less; and the applicant's monthly expenses equal or exceed monthly income, as determined on form FSD 98-01, the applicant is indigent and eligible for waiver of court costs.
In addition to criteria A and B, an incarcerated applicant's "inmate trust fund account" statement shall be reviewed and considered as set forth in Section 13-17.5-103, C.R.S.
In cases in which the criteria above are not met and extraordinary circumstances exist, the court may find the applicant indigent. In such cases, the court shall enter a written order setting forth the reasons for the finding of indigency.
* Income is gross income from all members of the household who contribute monetarily to the common support of the household. Income categories include wages, salary, commissions, profits, interest/investment earnings, social security supplemental income or disability, alimony, pension, workers' compensation, unemployment benefits. NOTE: Income from roommates should not be considered if such income is not commingled in accounts or otherwise combined with the applicant's income in a fashion which would allow the applicant proprietary rights to the roommate's income.
**Liquid assets include cash on hand (e.g., cash the applicant is carrying, cash stored at home, etc.), monies in accounts, stocks, bonds, certificates of deposit, equity, and personal property or investments which could readily be converted into cash without jeopardizing the applicant's ability to maintain home and employment. An allowance shall be made for a vehicle which serves as the applicant's primary mode of transportation with a value not to exceed $10,000, and for a vehicle directly used in the applicant's primary occupation (e.g., tow truck owned for towing business, etc.).
***Expenses for nonessential items such as cable television, club memberships, entertainment, dining out, alcohol, cigarettes, etc., shall not be included. Allowable expense categories are listed on form FSD 98-01.
INCOME ELIGIBILITY GUIDELINES
(125% of Poverty Level)
||Monthly Income Guideline plus 25%
||Monthly Income Guideline
||Yearly Income Guideline plus 25%
||Yearly Income Guideline
For family units with more than eight members, add $292 per month for "monthly income," or $3,500 per year for "yearly income" for each additional family member.
Source: Federal Register, Volume 63, Feb. 17, 1998, page 9236.
BY THE COURT
Contact the court for copies of the Motion to File Without Payment and Supporting Financial Affidavit Form.
REVISED CHIEF JUSTICE DIRECTIVE 98-05
Supreme Court of Colorado
Office of the Chief Justice
Amended October 2, 1998
Access of the Public to Documents and Materials in the Courts
The purpose of this directive is to provide the public with reasonable access to Judicial Branch information while protecting the privacy interests of parties. In addition, this directive is intended to provide direction to Judicial Branch personnel in order to the validity of the information that is released to the public. A public access committee is hereby created that will, in the future, provide direction for the Judicial Branch regarding release of information. This directive temporarily defines procedures by which information is released to the public, pending the adoption of other procedures upon recommendation of the public access committee.
Materials associated with court files including all books, records, documents, indexes, calendars, orders, judgments, decrees, minutes, registers of actions, (whether or not printed from ICON) and any other additional information determined by the district, county, probate, juvenile courts, Court of Appeals, and Supreme Court to properly be a part of the court file, shall be available to the public at each court respectively. Other information resident in electronic format, used by the Judicial Branch, and known as ICON (Integrated Colorado On-Line Network) or any other electronic database managed by the Judicial Branch is not available at each respective court; however, information from this database shall be made available to the public subject to the limitations of statute, rule and this directive.
I. Public Access to Materials at Each Respective Court
A. Any materials associated with court files, as referenced above, that are not declared to be private or confidential by statute or specific order of court, shall be open to the public for reasonable inspections at reasonable times during normal business hours, subject to the following limitations:
1. A court, for good cause shown, may order that specific records in a specific case shall not be made available to the public.
2. A court, by blanket order, may declare that certain types of materials, including but not limited to materials or exhibits which are dangerous or contraband, drugs, items whose possession is illegal, financial affidavits of parties, income tax returns filed in the court, separation agreements, property division orders, presentence reports, custody investigation reports, child abuse investigation reports, and estate inventories and appraisals which the court finds are personal and confidential to the parties and which do not fulfill any requirement of necessity of public knowledge shall not be made available to the public.
3. A court may continue to suppress publication of certain documents or files for good cause shown for a specified period, as that court may order.
B. Requests to inspect or copy the publicly accessible materials associated with court files, as referenced above, shall be made pursuant to Section 24-72-201, et seq. (public records) and 24-72-301, et seq. (criminal justice records).
II. Public Access to Electronic Data of the Judicial Branch
A. Public Access Committee
A public access committee shall be established to provide direction for the development of a policy regarding the information to be released to the public from the ICON system. The Chief Justice of the Supreme Court, by order, shall create the committee. Requests to inspect or obtain copies of information of the Judicial Branch stored in any electronic form shall be made pursuant to the procedures described below. These procedures shall remain in effect unless or until the public access committee determines that different procedures would better serve the purpose of providing electronic data to the public while protecting the privacy interests of parties.
Except as otherwise provided in this directive, the State Court Administrator shall be the official custodian of the electronic database and shall release data subject to the direction of the committee. The committee shall develop policies and procedures as necessary to facilitate the release and provide for the accuracy of information from the electronic database while protecting the privacy interests of persons about whom information exists. The committee shall also develop policies and procedures for the cost recovery of making electronic data available to the public. The policy and procedures developed by the committee shall govern the completion of requests for information from the ICON database.
No Judicial Branch personnel shall allow a member of the public to use a computer or other machine associated with the ICON system unless it is designated as a public access terminal for access to registers of action, name index and summary financial information. The public access committee may develop policies and procedures for other public uses of such computers or machines.
B. Validity of Information Released to the Public
1. Court personnel will make reasonable efforts to use the standardized coding and input procedures established by the State Court Administrator's Office (SCAO).
2. Any information released in error to the public shall not be admissible into evidence in any court case.
3. If a Judicial Branch employee or the public access committee believes that information in the ICON system is inaccurate, the SCAO shall be immediately informed and such information shall not be released to the public.
C. Procedure for release of information from the ICON System.
The SCAO, as the official custodian of the electronic database, is charged with completing the following requests for information from the ICON system, consistent with the policies and procedures developed by the public access committee.
1. Bulk Requests. Requests for bulk data shall be considered those requests for information from the entire statewide trial court ICON database. The public access committee shall determine the policies and procedures for the release of bulk data pursuant to the following guidelines:
a. The release of such information shall not interfere with the regular discharge of the duties of the courts, probation or the state court administrator's office.
b. Information shall not be released if contrary to the public interest.
Until such time as the committee develops such procedures the custodian of the record may only release bulk data in the form in which the data is currently maintained if the release does not interfere with the duties of the courts, probation or the state court administrator's office; and if the data is accurate and complies with confidentiality requirements.
2. Individual Case Requests. Except for the release of registers of action, name index, and financial summaries which shall be released by the local court, requests for information from the electronic database on individual cases shall not be completed until such time as an approved program is developed, that allows for "public" information to be printed from the electronic database on an individual case. Any inquiries about such requests should be directed to the SCAO.
3. Requests for Composite Information. Requests for composite information shall be considered those requests for selected data elements from the ICON database, which involve the manipulation of five files or less. For purposes of this directive a file contains related pieces of data that are stored in a database file, and is typically referred to as a file. ICON maintains numerous files such as, an event file, a charge file, a party file, etc. Such requests shall be completed following an assessment of the feasibility of the specific request based on policies and procedures established by the public access committee. The report format shall be determined by the SCAO. The SCAO shall assess each request and determine the cost to be assessed for completion, and the time it will take to complete. The SCAO shall inform the requestor of the cost and time within seven working days of the request.
a. Any person or entity making a request for composite information from the ICON system shall submit such request on a prescribed form.
b. Prior to the release of any information, the requestor must sign a statement that any records pertaining to criminal justice matters will not be used for the direct solicitation of business for pecuniary gain.
c. Records may be sealed, expunged, or suppressed after the data is released. The requestor is responsible for checking the current status of data prior to re-releasing it to other parties.
4. Pre-existing aggregate reports. The public access committee shall determine which of the existing reports may be released at the local level.
III. Electronic Data Excluded from Release to the Public
In addition to any policies developed by the public access committee, the following information on the ICON system shall not be released to the public.
A. Probation ICON files;
B. Financial Files--everything except the financial summary screen;
C. Files/fields/codes related to running a computer program;
D. Files/fields/codes concerning the deliberative process;
E. Free text fields;
F. The following case types:
1. Juvenile (JA, JD, JN, JP)
2. Mental Health (MH)
G. Suppressed, sealed or confidential, files, data or information;
H. Social Security Numbers;
I. Codes and information related to victims of crime;
J. Any electronic information that is not on the ICON system;
K. Draft opinions, notes, or internal memos.
This directive supercedes directive 85-16.
Mary J. Mullarkey, Chief Justice
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