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TCL > January 2003 Issue > Court Business

January 2003       Vol. 32, No. 1       Page  105
From the Courts
Court Business

Court Business

 Colorado Supreme Court Jury System Committee
Proposed Amendments to
Colorado Rules of Civil Procedure 47(b)
Alternate Jurors

Proposed New Rules
Colorado Rules of Civil Procedure 47(u)
Colorado Rules of Criminal Procedure 24(g)
Juror Questioning in Civil and Criminal Trials
Public Hearing, Wednesday, February 12, 2003, 3:30 p.m.

NOTICE

 

The Supreme Court will conduct a public hearing on rule changes related to jury issues. C.R.C.P. 47(b) is a proposed amendment to the Colorado Rules of Civil Procedure allowing the trial court to retain alternate jurors through deliberations, if the court and the parties so choose. C.R.C.P. 47(u) is a rule that would allow jurors to provide questions for the judge to ask of witnesses in civil trials.

The other change is a new rule in the Colorado Rules of Criminal Procedure that permits jurors to submit written questions to the court to ask of witnesses during criminal trials, unless the court determines otherwise. The criminal rule is the result of an extensive pilot project conducted by the Jury System Committee to examine the procedural and substantive effects of juror questions. The results of that project appear in a report entitled "Should Jurors Ask Questions in Criminal Cases?—A Report Submitted to the Colorado Supreme Court’s Jury System Committee," authored by Mary Dodge, Ph.D. The Jury System Committee recommended adoption of the Rule, based in part on Dr. Dodge’s conclusions. A member of the Committee wrote a dissenting report, opposing the Rule change. These reports can be found at www.courts.state.co.us/supct/committees/juryreform. htm.

The public hearing will be held on Wednesday, February 12, 2002, at 3:30 p.m. in the Colorado Supreme Court Courtroom, 2 East 14th Ave., Denver, Colorado. An original and eight copies of written comments to the court concerning the proposals should be submitted to Mac V. Danford, Clerk of the Supreme Court, 2 East 14th Ave., Denver, Colorado 80203, no later than Friday, January 31, 2003. Persons wishing to participate in the hearing should so notify Mr.Danford no later than January 31, 2003.

 

 

Proposed C.R.C.P. 47(b)

(b) Alternate Jurors. The court may direct that one or two jurors in addition to the regular panel be called and impaneled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties. An alternate juror who does not replace a principal juror shall NOT be discharged afterUNTIL the jury retires to considerrRENDERS its verdict. OR UNTIL SUCH TIME AS DETERMINED BY THE COURT. IF THE COURT AND THE PARTIES AGREE, ALTERNATE JURORS MAY DELIBERATE AND PARTICIPATE FULLY WITH THE PRINCIPAL JURORS IN CONSIDERING AND RETURNING A VERDICT. If one or two alternate jurors are called each side is entitled to one peremptory challenge in addition to those otherwise allowed. The additional peremptory challenge may be used only against an alternateEXERCISED AS TO ANY PROSPECTIVE juror, and the other peremptory challenges allowed shall not be used against the alternates.

 

Proposed Rule C.R.C.P. 47(u)

(u) Juror Questions. Jurors shall be allowed to submit written questions to the court for the court to ask of witnesses during trial, in compliance with procedures established by the trial court. The trial court shall have the discretion to prohibit or limit questioning in a particular trial for good cause.

 

Proposed Rule Crim.P. 24(g)

(g) Juror Questions. Jurors shall be allowed to submit written questions to the court for the court to ask of witnesses during trial, in compliance with procedures established by the trial court. The trial court shall have the discretion to prohibit or limit questioning in a particular trial for reasons related to the severity of the charges, the presence of significant suppressed evidence or for other good cause.

 

In the United States Bankruptcy Court
For the District of Colorado

In the Matter of Procedures in Chapter 11 Cases
General Procedure Order Number 2002-6

Upon consideration of the need for efficient, consistent and uniform policies and procedures to better serve the public and the bar in Chapter 11 cases,

IT IS ORDERED that the following procedures shall apply in Chapter 11 cases filed in this District.

1. During the first 20 days following entry of the Order for Relief the Debtor may obtain expedited consideration for entry of orders as follows:

a. Debtor shall file the original and one copy of a Combined Motion for Expedited Entry of Order(s) and Notice of Impending Hearing Thereon in substantially the form attached as Exhibit A and shall attach to the Motion the Order or Orders requested. The proposed Order shall clearly state the relief requested, but shall not contain proposed findings of fact or conclusions of law. The Motion need not be accompanied by briefs or authorities, and the same are expressly discouraged except only as to novel issues of law presented by the Motion, in which case a brief of no more than five (5) pages without any factual recitations may be submitted. The Motion may be accompanied by one or more factual affidavits. The Motion shall contain counsel’s certification that the relief sought by the Motion is needed by the Debtor on an expedited basis.

b. A copy of the Motion with the requested Orders and all supporting affidavits shall be hand-delivered or e-mailed to the Office of the U.S. Trustee and to the counsel, if known to the Debtor, for the official unsecured creditors committee, if any, either before or within two (2) business hours after the Motion is filed.

c. Copies of the Motion with all attachments shall be served by hand-delivery or by over-night delivery service initiated on the day the Motion is filed, such service to be on the creditors shown on Debtor’s list of 20 largest unsecured creditors (or, if known, their attorneys) or, if appointed, on the members of the official unsecured creditors committee, on any other official committees (or their professionals, if engaged), on any indenture trustee, on the IRS and other relevant government entities, on all parties who have requested notice and on any other party in interest whose interest in property will be directly affected by any Order requested.

d. When Debtor has filed a Motion under this Order and chambers of the judge assigned the case has been provided with a copy thereof (by hand-delivery, fax or e-mail) the calendar and docket of the judge shall, if possible, be so arranged that a hearing can be conducted consistent with the Bankruptcy Code and Rules, including Rule 4001, as required by the circumstances, but not more than three (3) court days after the date of the filing of the Motion. If the docket and calendar of the responsible judge cannot be arranged to accommodate a hearing by the responsible judge as required by this Order, the judge’s staff shall notify the Clerk of the Court who shall refer the matter to any other available judge.

e. Chambers staff of the judge on whose calendar and docket the hearing is scheduled shall, as soon as possible, notify Debtor’s counsel by telephone of the date and time of the hearing. Debtor shall serve notice of the date and time of the hearing to the United States Trustee; to the counsel, if known to the Debtor, for the official unsecured creditors committee; and to those parties who have responded to the Debtor’s Combined Motion and Notice by requesting notice of the hearing substantially in the form of Exhibit B. Debtor shall notify each responder of the date, time and place of the hearing by e-mail or fax, as requested in such responder’s notice, within the later of: (i) four (4) hours after Debtor receives responder’s request for notice, or (ii) four (4) hours of being notified by the Court of the date and time of the hearing. To the extent that time and circumstances permit, Debtor shall also give notice of the date, time and place of the hearing to other parties in interest identified in subparagraph 1.c. above.

2. Debtor shall file an affidavit of compliance with the service requirements of this Order prior to the commencement of any hearing pursuant to this Order.

3. At any hearing set pursuant to this Order, Debtor shall present its Motion orally and the hearing shall proceed in accordance with the Rules of Bankruptcy Procedure and the Federal Rules of Evidence. The Debtor shall be prepared to present live testimony in support of its Motion; however, any requested Order as to which there is no opposition, in the Court’s discretion, may be granted on the basis of affidavits, arguments, or representations of counsel, as appropriate.

4. At the conclusion of any hearing set pursuant to this Order, the Court shall make such findings of fact only as are supported by the record and shall (i) enter or deny any or all of the Orders requested, (ii) enter any of the Orders requested as an interim Order pending such additional notice as the Court may direct, and/or (iii) continue the hearing with respect to any or all of the Orders requested. Only interim orders shall be entered pursuant to this Order respecting cash collateral or post-petition financing. In the absence of extraordinary circumstances, the Court shall not approve cash collateral or post-petition financing orders that include provisions that:

(a) contain clauses that secure prepetition debt by post-petition security agreements or grant cross-collateralization protection (other than replacement liens for adequate protection) to the prepetition secured creditor.

(b) contain findings of fact that purport to bind the estate or any parties in interest, other than the Debtor, with respect to the validity, priority, perfection or amount of the secured creditors’ prepetition lien or debt or that waive claims against the secured creditor.

(c) seek to waive rights the estate may have under the Bankruptcy Code.

(d) grant to the prepetition secured creditor liens on the Debtor’s claims and causes of action arising under Chapter 5 of the Bankruptcy Code.

(e) deem prepetition secured debt to be post-petition debt or that use post-petition loans from a prepetition secured creditor to pay part or all of that secured creditor’s prepetition debt, other than as provided in Bankruptcy Code § 552(b).

(f) provide disparate treatment for the professionals retained by a creditors committee from that provided for the professionals retained by the Debtor with respect to a professional fee carveout.

5. The availability of expedited considerations of motions under this Order shall not be construed to preclude ex parte relief or other emergency relief where appropriate.

FURTHER ORDERED that this Order shall become effective December 2, 2002.

Dated: November 18, 2002

By the Court:

Donald E. Cordova, Chief Judge
Sidney B. Brooks, Judge
A. Bruce Campbell, Judge
Elizabeth E. Brown, Judge

EXHIBIT A

In the United States Bankruptcy Court
For the District of Colorado

In Re. )
) Case No.
)
Debtor )

GPO-2002-6

COMBINED MOTION FOR EXPEDITED ENTRY OF ORDER(S)

AND NOTICE OF IMPENDING HEARING THEREON

MOTION

The Debtor in the above-captioned Chapter 11 filed on __________, 200_, requests the Court to enter the Orders listed below on an expedited basis, pursuant to General Procedure Order No. 2002-6 (GPO No. 2002-6). THE DEBTOR REQUESTS EXPEDITED ENTRY OF THE FOLLOWING ORDER(S):

___ Order authorizing payment of prepetition wages, salaries, expenses

___ Interim Order authorizing use of cash collateral

___ Interim approval of post petition secured and/or super-priority financing pursuant to section 364(c) of the Bankruptcy Code

___ Order authorizing payment of prepetition claims of certain critical vendors and suppliers

___ Order authorizing debtor to honor certain customer obligations, including warranty claims

___ Interim Order determining adequate assurance of payment for future utility services and restraining utility companies from discontinuing, altering, or refusing service

___ Order establishing interim notice procedures

___ Other Orders

 

NOTICE

 

GPO-2000-6 PROVIDES THAT A HEARING WILL BE HELD ON DEBTOR’S MOTION WITHIN THREE (3) DAYS. Debtor will give you fax or e-mail notice of the time and place of the hearing only if you respond to this Notice by fax or e-mail stating that you wish to be notified of the hearing. Your response may be in the form of GPO 2000 response form (Exhibit B), and must specify the fax or e-mail address at which you may wish to receive notice. If you specify more than one method of notice, Debtor will use the method most readily available to Debtor. You may also obtain information on the time and place of the hearing by checking the Court docket over the internet at ECF.Cob.USCourts.Gov.

REQUESTS FOR NOTICE OF THE HEARING SHALL BE FAXED OR E-MAILED TO COUNSEL FOR DEBTOR AT ________________________________ or ____________________________.

By executing this Motion and Notice, Debtor’s Counsel certifies to the court, after appropriate inquiry of the Debtor, the Debtor’s need of the relief sought herein on an expedited basis.

__________________________________________

Counsel to the Debtor

 

EXHIBIT B

In the United States Bankruptcy Court
For the District of Colorado

In Re. )
) Case No.
)
Debtor )

 

RESPONSE AND REQUEST FOR NOTICE OF HEARING

Attention: ____________________________________________________

(Counsel who signed GPO 2002-6 Combined Motion and Notice)

The undersigned requests that Notice of the date, time and place of the hearing on Debtor’s Motion for Expedited Entry of Orders be served as follows:

_____By e-mail to _________________________________________________________

_____By fax to ____________________________________________________________

_______________________________

Creditor/Other Interested Party
or Their Counsel

 

EXHIBIT C

In the United States Bankruptcy Court
For the District of Colorado

In Re. )
) Case No.
)
Debtor )

 

NOTICE OF TIME AND PLACE OF HEARING ON DEBTOR’S MOTION
FOR EXPEDITED ENTRY OF ORDERS

A hearing has been set on Debtor’s Request for Expedited Entry of the Orders, copies of which were attached to Debtor’s Combined Motion and Notice.

The date, time and place of the hearing are as follows:

Date: ___________________________________________

Time: ___________________________________________

Court: ___________________________________________

          ___________________________________________

__________________________________

Attorney for Debtor

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