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TCL > April 2004 Issue > Court Business

The Colorado Lawyer
April 2004
Vol. 33, No. 4 [Page  121]

© 2004 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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From the Courts
Court Business

Court Business

Colorado Supreme Court Rules Committee

Corrective Order to Rule Change 2003(19)
Colorado Rules of Civil Procedure
Chapter 2. Pleadings And Motions
Adopted

The Colorado Rules of Civil Procedure

Chapter 2.

(a)-(iii) [No Change]

(C) Document Disclosure. Documents and other evidentiary materials disclosed pursuant to C.R.C.P. 26(a)(1) and 16.1(k)(1)(B) shall be made immediately available for inspection and copying to the extent not privileged or protected from disclosure.

(2)-(9) [No Change]

(l)

No Other Changes.

This Corrective Order is Adopted on January 6, 2004, nunc pro tunc November 6, 2003, effective July 1, 2004.

Justice Rice would not adopt the rule.

By the Court:

Mary J. Mullarkey
Chief Justice, Colorado Supreme Court

____________________

Rule Change 2003(23)
Colorado Appellate Rules
Chapter 32
Corrective Order Correcting Typographical Error
Adopted

Rule 39.5. (New) Attorney Fees on Appeal

If attorney fees are otherwise recoverable for the particular appeal, the party claiming attorney fees shall specifically request them, and state the legal basis therefor, in the party's principal brief in the appellate court. Any opposition to a request for attorney fees shall be set forth, as pertinent, in either the answer or reply brief. The appellate court may determine entitlement to and the amount of any attorney fees for the appeal. In its discretion, the appellate court may remand to the trial court or tribunal below the determination of entitlement to or the amount of any attorney fees.

Corrective order correcting typographical error is adopted February 2, 2004, nunc pro tunc December 4, 2003, effective January 1, 2004.

By the Court:

 

Nancy E. Rice
Justice, Colorado Supreme Court

____________________

Rule Change 2004(1)
Appendix A to Chapter 27
The Colorado Rules of Probate Procedure
Adopted

The following Probate Forms are amended and adopted as of January 22, 2004, nunc pro tunc January 4, 2004.

CPC Form 34-CP (new)
Consent of Parent
CPC Form 35
Order Appointing Guardian for Minor

Adopted by the Court, En Banc, January 22, 2004, effective nunc pro tunc January 4, 2004.

By the Court:

 

Nancy E. Rice
Justice, Colorado Supreme Court

____________________

Rule Change 2004(2)
Chapter 29. Colorado Rules of Criminal Procedure
For All Courts of Record in Colorado
Amended and Adopted

The following rule is amended as of July 1, 2004:

Rule 35. Postconviction Remedies.

Amended and Adopted by the Court, En Banc, January 29, 2004, effective July 1, 2004.

Justices Martinez and Bender would have included an exception for actual innocence in sections 35(a)(2) and 35(c)(3)(VII).

By the Court:

Alex J. Martinez
Justice, Colorado Supreme Court

__________

Rule 35. Postconviction Remedies

(a) Correction of Illegal Sentence. The court may correct a sentence that was not authorized by law or that was imposed without jurisdiction at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.

(b) [No Change]

(c) Other Remedies.

(1) [No Change]

(2) [No Change]

(I) [No Change]

(II) [No Change]

(III) [No Change]

(IV) Repealed

(V) [No Change]

(VI) [No Change]

(VII) [No Change]

(3) One who is aggrieved and claiming either a right to be released or to have a judgment of conviction set aside on one or more of the grounds enumerated in section (c)(2) of this Rule may file a motion in the court which imposed the sentence to vacate, set aside, or correct the sentence, or to make such order as necessary to correct a violation of his constitutional rights. The following procedures shall apply to the filing and hearing of such motions:

(I) Any motion filed outside of the time limits set forth in § 16-5-402, 6 C.R.S., shall allege facts which, if true, would establish one of the exceptions listed in § 16-5-402(2), 6 C.R.S.

(II) Any motion filed also shall substantially comply with and contain the information detailed in Form 4, Petition for Postconviction Relief Pursuant to Crim. P. 35(c). See Appendix to Chapter 29.

(III) If a pro se motion substantially fails to comply with Form 4, Petition for Postconviction Relief Pursuant to Crim. P. 35(c), the court shall return to the defendant a copy of the document filed along with a blank copy of Form 4 and direct that a motion in substantial compliance with the form be filed within forty-five days.

(IV) The court shall promptly review all motions that substantially comply with Form 4, Petition for Postconviction Relief Pursuant to Crim. P. 35(c). In conducting this review, the court should consider, among other things, whether the motion is timely pursuant to § 16-5-402, whether it fails to state adequate factual or legal grounds for relief, whether it states legal grounds for relief that are not meritorious, whether it states factual grounds that, even if true, do not entitle the party to relief, and whether it states factual grounds that, if true, entitle the party to relief, but the files and records of the case show to the satisfaction of the court that the factual allegations are untrue. If the motion and the files and record of the case show to the satisfaction of the court that the prisoner is not entitled to relief, the court shall enter written findings of fact and conclusions of law in denying the motion. The court shall complete its review within sixty days of filing or provide the defendant a notice of reasons for delay.

(V) If the court does not deny the motion under (IV) above, the court shall cause a complete copy of said motion to be served on the prosecuting attorney if one has not yet been served by counsel for the defendant. If the defendant has requested counsel be appointed in the motion, the court shall cause a complete copy of said motion to be served on the Public Defender. Within forty-five days, the Public Defender shall respond as to whether the Public Defender's Office intends to enter on behalf of the defendant pursuant to § 21-1-104(1)(b), 6 C.R.S. In such response, the Public Defender shall identify whether any conflict exists, request any additional time needed to investigate, and add any claims the Public Defender finds to have arguable merit. Upon receipt of the response of the Public Defender, or immediately if no counsel was requested by the defendant or if the defendant already has counsel, the court shall direct the prosecution to respond to the defendant's claims or request additional time to respond within thirty days and the defendant to reply to the prosecution'­s response within twenty days. The prosecution has no duty to respond until so directed by the court. Thereafter, the court shall grant a prompt hearing on the motion unless, based on the pleadings, the court finds that it is appropriate to enter a ruling containing written findings of fact and conclusions of law. At the hearing, the court shall take whatever evidence is necessary for the disposition of the motion. The court shall enter written or oral findings either granting or denying relief within sixty days of the conclusion of the hearing or provide the parties a notice of the reason for delay and date by which the ruling will be issued.

If the court finds that defendant is entitled to postconviction relief, the court shall make such orders as may appear appropriate to restore a right which was violated, such as vacating and setting aside the judgment, imposing a new sentence, granting a new trial, or discharging the defendant. The court may stay its order for discharge of the defendant pending appellate court review of the order. If the court orders a new trial, and there are witnesses who have died or otherwise become unavailable, the transcript of testimony of such witnesses at the trial which resulted in the vacated sentence may be used at the new trial.

(VI) The court shall deny any claim that was raised and resolved in a prior appeal or postconviction proceeding on behalf of the same defendant, except the following:

(a) Any claim based on evidence that could not have been discovered previously through the exercise of due diligence;

(b) Any claim based on a new rule of constitutional law that was previously unavailable, if that rule has been applied retroactively by the United States Supreme Court or Colorado appellate courts.

(VII) The court shall deny any claim that could have been presented in an appeal previously brought or postconviction proceeding previously brought except the following:

(a) Any claim based on events that occurred after initiation of the defendant's prior appeal or postconviction proceeding;

(b) Any claim based on evidence that could not have been discovered previously through the exercise of due diligence;

(c) Any claim based on a new rule of constitutional law that was previously unavailable, if that rule should be applied retroactively to cases on collateral review;

(d) Any claim that the sentencing court lacked subject matter jurisdiction;

(e) Any claim where an objective factor, external to the defense and not attributable to the defendant, made raising the claim impracticable.

(VIII) Notwithstanding (VI)(b) above, the court shall not deny a postconviction claim of ineffective assistance of trial counsel on the ground that all or part of the claim could have been raised on direct appeal.

(IX) The order of the trial court granting or denying the motion is a final order reviewable on appeal.

____________________

Rule Change 2004(3)
Chapter 37. Rules Governing the Commissions on Judicial Performance
Rules 1 through 24
Amended and Adopted

Chapter 37. Rules Governing the Commissions on Judicial Performance, Rules 1 through 24, are Amended and Adopted by the Court, En Banc, February 5, 2004, effective immediately.

Justice Coats would not adopt the rule.

By the Court:

Mary J. Mullarkey
Chief Justice, Colorado Supreme Court

__________

Rule Change #2004(3)
Chapter 37. Rules Governing the Commissions
On Judicial Performance

Pursuant to section 13-5.5-103(1)(k), C.R.S., the State Commission on Judicial Performance (state commission) establishes the following rules. These rules have been approved by the Supreme Court and shall be applicable to the state and district commissions.

RULE 1. DUTIES OF COMMISSIONS

Commissions shall elect one member as a chair, or two members as co-chairs, to serve for two years, who will direct the business of the commissions, pursuant to statute, rule or guideline of the state commission.

Commissions on judicial performance evaluate the professional performance of justices, judges or magistrates and make recommendations to the electorate regarding the retention of individual justices or judges who stand for retention during any general election. In addition to other procedures and duties set forth in these rules, the commissions shall prepare and provide to the public a narrative profile and retention recommendation for each district, county and appellate justice or judge subject to retention. The state commission shall arrange to have the narrative profiles and recommendations of the state and district commissions printed in the ballot information booklet that is prepared pursuant to section 1-40-124.5, C.R.S.

RULE 2. SOURCES OF INFORMATION

Each commission, in evaluating the professional performance of any justice, judge or magistrate, shall rely on official sources of information, including:

(a) Questionnaires. The state commission shall develop a questionnaire that will be used by all commissions to survey attorneys (including district attorneys and public defenders), jurors, litigants, court personnel, probation officers, social services caseworkers, crime victims, guardians ad litem, court appointed special advocate volunteers and law enforcement personnel who have appeared before or have professional contacts with the judge or magistrate being evaluated. In addition, deputy sheriffs assigned to the courthouse will be surveyed. These persons will be randomly selected in numbers designed to achieve a random, statistically valid sample. These persons will be surveyed by direct mail questionnaires. The results of the surveys shall be provided to the commissions for use in evaluating the justices and judges.

(b) Interview with justices, judges or magistrates. Judicial district administrators will schedule interview sessions for judges and magistrates with district commissions. The state commission staff will schedule interview sessions for the appellate justices and judges with the state commission. All efforts to accommodate court dockets and calendars of commission members will be exercised.

(c) Statistics. Information concerning the caseload and case types of a judge or magistrate being evaluated will be gathered and provided to the chair of the district commission by the district administrator. Information concerning the caseload of a justice or judge being evaluated by the state commission will be gathered and provided to the chair of the state commission by the clerk of the Colorado Supreme Court and the clerk of the Colorado Court of Appeals.

If requested by the commission, the district administrator or state court administrator shall promptly provide information kept or collected by the district administrator or state court administrator on individual judges or magistrates, which may include the number of court trials and court trial days; the number of jury trials and jury trial days; and sentence modifications pursuant to section 16-11-309, C.R.S.

Effective for the 2006 judicial performance evaluation and performance evaluations thereafter, the district administrator shall also provide open case reports and case aging reports if requested by the commission.

(d) Oral Interviews. The state and district commissions may conduct interviews with other persons who have appeared before the judge or magistrate on a regular basis. The district commissions shall ensure that the persons interviewed have had professional contact with the judge or magistrate. Such oral interviews shall be completed no later than fifteen (15) days prior to the scheduled interview between the commission and the judge or magistrate. The judge or magistrate shall be provided with a written summary of the interview that preserves the anonymity of the interviewee but informs the judge or magistrate of the substance of the interview no later than ten (10) days prior to the scheduled interview with the commission.

(e) Documentation from interested parties. Written information concerning a judge or magistrate received from an interested party may be considered by the state and district commissions provided it contains the author'­s name and address and is received no later than fifteen (15) days prior to the scheduled interview with the justice, judge or magistrate. The commissions may make the determination whether to include the author's name and address in the copy of the document that is forwarded to the justice, judge or magistrate.

(f) Public hearings. The state and district commissions may conduct public hearings to solicit public comment on justices, judges or magistrates being evaluated. Commissions are encouraged to conduct public hearings. Public hearings shall be completed no later than fifteen (15) days prior to the scheduled interview with the justice, judge or magistrate. The district commission shall give notice of the hearing not less than ten (10) days prior to such hearing. Public notice shall be given by the posting of a sign in a conspicuous place in each courthouse within the judicial district, and by notifying local news media in each county within the judicial district. The state and district commissions shall conduct public hearings pursuant to the Colorado Open Meetings Law, section 24-6-401, et seq., C.R.S.

(g) Self-evaluations. The state commission shall develop self-evaluation forms that shall be completed by each justice, judge or magistrate being evaluated. The selfevaluation requirements may include, but are not limited to a self assessment of the justice'­s, judge'­s or magistrate'­s strengths and weaknesses, goals for development and reputation in the legal community in the following areas: legal ability; integrity; communication skills; judicial temperament; administrative skills; settlement activities; judicial philosophy; community reputation; overall performance; and community service. The self-evaluation information is for the purposes of requiring the judge to conduct an appraisal of his or her performance and to provide information to the commission that may be useful for the interview or during the course of the evaluation. The self-evaluation information shall not be quoted, unless otherwise agreed to by the judge, in the narrative profile.

(h) Courtroom observation. In order to become knowledgeable of the responsibilities and duties of the judges and to enable commissions to conduct more accurate evaluations, each commission member shall make at least one unannounced onsite visit to the courtroom to observe at least one of the justices, judges or magistrates he or she is evaluating.

(i) Additional information. Information resulting from the justice'­s, judge'­s or magistrate'­s interview may be considered and included in the evaluation if deemed appropriate by the majority of the commission members. Summaries of this new information shall be sent to the judge no later than ten (10) days following the scheduled interview.

RULE 3. ROLE OF CHIEF JUSTICE OF SUPREME COURT AND CHIEF JUDGE OF THE COURT OF APPEALS

(a) The state commission shall request a meeting with the Chief Justice of the Supreme Court and the Chief Judge of the Court of Appeals to be held prior to beginning the evaluation process and receiving any sources of evaluation information listed in Rule 2 for any supreme court justice or court of appeals judge being evaluated. The purpose of the meeting is to allow the Chief Justice or Chief Judge of the Court of Appeals the opportunity to provide information and an overview of the appellate courts to the state commission. The meeting shall not constitute an evaluation of any justice's or judge'­s performance but shall be for informational purposes only, unless a justice or judge presently being evaluated was identified in the course of a prior judicial evaluation as having one or more particular weaknesses pursuant to Rule 3(c).

(b) After the state commission has completed its evaluation and approved the final version of the narrative profile and recommendation for a justice or judge, it shall provide the Chief Justice or the Chief Judge of the Court of Appeals with the independent survey analysis report specified in Rule 5, which shall include the verbatim comments, and the narrative profile and recommendation for each justice or court of appeals judge evaluated.

(c) After the state commission has completed its evaluation and approved the final version of the narrative profile and recommendation for a justice or judge, if the state commission has identified one or more particular weaknesses of the justice or judge under review, it may forward recommendations for improvement to the Chief Justice or Chief Judge of the Court of Appeals together with the report specified in Rule 3(b). The state commission shall also provide a copy of the recommendation for improvement to the justice or judge who is the subject of the recommendation.

RULE 4. ROLE OF CHIEF JUDGE OF EACH JUDICIAL DISTRICT

(a) The district commissions shall request a meeting with the Chief Judge of their judicial district to be held prior to beginning the evaluation process and receiving any sources of evaluation information listed in Rule 2. The purpose of the meeting is to allow the Chief Judge the opportunity to provide to the commission members an overview of the judicial district including information such as caseloads, case types and the role of judges in the courts. The meeting shall not constitute an evaluation of any judge's performance but shall be for informational purposes only, unless the judge presently being evaluated was identified in the course of a prior judicial evaluation as having one or more particular weaknesses pursuant to Rule 3(c).

(b) After the commission has completed its evaluation and approved the final version of the narrative profile and recommendation for a judge, it shall provide the Chief Judge of the commission's judicial district with the independent survey analysis reports, specified in Rule 5, which shall include the verbatim comments, and the narrative profile and recommendation prepared for each judge evaluated.

(c) After the commission has completed its evaluation and approved the final version of the narrative profile and recommendation for a judge, if the commission has identified one or more particular weaknesses of the judge or magistrate under review, it may forward recommendations for improvement to the Chief Judge together with the report specified in Rule 3(b). The commission shall also provide a copy of the recommendation for improvement to the judge or magistrate who is the subject of the recommendation.

RULE 5. COMMISSION ADMINISTRATIVE PROCEDURES

(a) Evaluation and meeting procedures. At the beginning of each performance evaluation process, the commission shall outline the evaluation procedures they will follow for the evaluations. Such procedures shall be consistent with these rules and state statute. Such procedures shall:

      • Establish the right of the majority to rule;
      • Establish a quorum as a majority of members;
      • Provide for motions to be made, seconded, amended, discussed, voted on
      • and recorded accurately in the minutes;
      • Protect the right of individuals to be heard, unless discussion is closed
      • by a two-thirds vote;
      • Protect the body from disruptive persons;
      • Permit an agenda which may be approved by a majority;
      • Require written minutes which shall be approved by a majority; and
      • Permit the members to overrule the chair by a two-thirds vote.

(b) Confidentiality of meetings and attendance of non-commission members. Consistent with Rule (7), all interviews or deliberations directly concerning the retention of any justice or judge are confidential and shall be closed to the public. For the purposes of this Rule 5(b), public shall include other district commission members who are not a member of said commission and commission staff, which include the district administrator and his or her staff.

(c) Commission staff. The function of commission staff is to enable and assist the commission in the performance of its duties. Staff shall not participate in interviews or deliberations conducted by the commission concerning the evaluation of any justice or judge. Further, staff shall not draft the narrative profiles for a justice or judge.

RULE 6. COMMISSION TRAINING RESPONSIBILITIES

In addition to all other duties set forth in these rules, all commission members shall attend at least one training session per term, or the equivalent thereof as determined by the State Commission, such as reviewing a training video provided by the State Commission. To the extent possible, the State Commission shall endeavor to provide training on an annual basis that is reasonably accessible and convenient to all commission members.

A commission member who did not attend a training session as required under this rule (6), may not vote on a commission's recommendation for retention unless authorized to do so by a majority vote of the commission members who did fulfill the training requirements.

RULE 7. COMPILATION OF RETENTION EVALUATION DATA

All completed surveys will be collected and statistically analyzed by the independent firm conducting the survey as authorized and approved by the state commission. For the survey results regarding retention in both the non-attorney and attorney survey questionnaires, the percentage of responses to the "Undecided or don't know enough to make recommendation," shall not be included in or factored into the final results and as such shall not be counted against or for retention. Demographic information shall be separated from standard questions and comments to ensure the anonymity of the respondent. Commissions shall not receive the original questionnaires. All evaluation reports generated from the questionnaires shall be based on aggregate data. The information shall be supplied only as a composite report. Commissions shall not receive demographic information, unless the analysis of such information by the state commission or its agent proves to be statistically significant and affects evaluation of the overall professional performance of the justice, judge or magistrate being evaluated. Commissions will not receive questionnaire responses concerning any justice, judge or magistrate being evaluated if a statistically valid sample has not been collected, as determined by the state commission or its agent.

All written comments from the survey shall be reproduced verbatim, unless confidentiality cannot be assured. If confidentiality cannot be preserved, the commission may summarize the substance of the comment in order to provide it to the justice, judge or magistrate. All comments shall also be forwarded to the justice, judge or magistrate whom each comment concerns.

RULE 8. DISCLOSURE OF RETENTION EVALUATION DATA TO COMMISSION MEMBERS AND JUSTICE, JUDGE OR MAGISTRATE BEING EVALUATED

The final report prepared by the independent firm that conducts the evaluation survey is public but shall not be released until such time as the retention recommendation is made public; except that the comments included in the report are not public and shall not be released to the public. Any comments included with questionnaires and written information received by the commission are not public and will be made available only to commission members and the justice, judge or magistrate being evaluated. Comments are solicited in an effort to provide feedback to the justice, judge or magistrate and to assist the justice, judge or magistrate in a self-evaluation process. Commission members have access to comments in order to assist the commission in the interview of the justice, judge or magistrate. Commission members shall not reveal the contents of any comment concerning a justice, judge or magistrate being evaluated to anyone other than other commission members, and the justice, judge or magistrate during an interview.

Any justice, judge or magistrate being evaluated will be provided with the same information that is provided to commission members concerning that justice, judge or magistrate. The justice, judge or magistrate will receive the information no later than ten (10) days prior to any scheduled interview.

RULE 9. INFORMATION OTHERWISE ENTITLED TO PROTECTION

Sensitive, personal information otherwise entitled to protection under the personnel files exemption of the Public Records Act, section 24-72-204(3)(a)(II), C.R.S., shall remain confidential.

Members of commissions and staff shall maintain confidentiality with regard to those materials and communications so designated as confidential.

ALL INTERVIEWS OR DELIBERATIONS DIRECTLY CONCERNING THE RETENTION OF ANY JUSTICE OR JUDGE ARE CONFIDENTIAL AND SHALL BE CLOSED TO THE PUBLIC.

RULE 10. DISCLOSURE OF RETENTION EVALUATION DATA TO THIRD PARTIES

In addition to the disclosures authorized under Rule 8, upon a two-thirds majority vote of approval of the members of the state commission, the state and district commissions may release confidential information concerning a justice, judge or magistrate to:

(a) A newsgathering organization that initiates an inquiry about a matter that has become the subject of widespread concern and the release of information would benefit the justice, judge or magistrate and the public, and the justice, judge or magistrate signs a waiver for this purpose;

(b) A government agency or nominating commission that requests information concerning the appointment of a justice, judge or magistrate or former justice, judge or magistrate to another judicial position, and the justice, judge or magistrate signs a waiver for this purpose;

(c) An agency authorized to investigate the qualifications of persons for admission to practice law that requests information in order to evaluate a justice'­s, judge'­s or magistrate'­s application for admission to the bar of another state, and the justice, judge or magistrate signs a waiver for this purpose;

(d) The Chief Justice of the Supreme Court, if such information is requested with respect to the appointment or assignment of a retired justice or judge to judicial duties, and the justice, judge or magistrate signs a waiver for this purpose;

(e) The Supreme Court Attorney Regulation Committee, if an allegation is made against a justice, judge or magistrate in the course of the evaluation process which, if true, would constitute a violation of the code of professional responsibility; or

(f) The Commission on Judicial Discipline, if an allegation is made against a justice, judge, or magistrate in the course of the evaluation process, which, if true, would constitute a violation of the code of judicial conduct, or which would constitute extra-judicial conduct that reflects adversely on the judiciary.

(g) Confidential information is the information listed in Rules 2 and 9 and includes current and past data collected for the evaluation of justices, judges and magistrates, except for sensitive, personal information subject to protection pursuant to section 24-72-204(3)(a)(II), C.R.S.

RULE 11. INTERVIEW

Commissions are required to schedule and conduct an interview with each justice, judge or magistrate being evaluated after the commission's initial review of information is complete. Neither the commission, nor the justice, judge or magistrate may waive the initial interview process.

(a) Commissions must follow all guidelines provided by the state commission regarding the personal interview of justices, judges or magistrates being evaluated.

(b) The interview shall be conducted for such a period of time as is necessary to address the concerns of the commission members and the justice, judge or magistrate being evaluated. Prior to the interview, the justice, judge or magistrate may submit written information to the commission if he or she so desires.

RULE 12. PREPARATION OF NARRATIVE PROFILE

Within ten (10) days following an interview with a justice, judge or magistrate, and in any event no later than seventy-five (75) days prior to the last date available for the justice or judge to declare such justice'­s or judge's intent to stand for retention, the chair of the commission shall provide the justice, judge or magistrate a complete written draft of the narrative profile. The narrative profile shall conform to the format designed by the state commission. Preparation of the narrative profile may not be delegated to any court employee or judicial officer. It is recommended that all commission members be involved and participate in the drafting of the narrative profile. A draft of the narrative profile is not to be released to any person other than the justice, judge or magistrate whom it concerns.

RULE 13. RECOMMENDATION

(a) In addition to the information published as a narrative profile, the commission shall make a recommendation regarding the retention of each justice or judge who has declared intent to stand for retention. The recommendation shall be "Retain," "Do Not Retain," or "No Opinion." The recommendation of "No Opinion" shall not be counted against or for retention.

(b) In order to concentrate its resources on the determination of which judges are not performing their jobs as they should, the commission shall strongly consider a recommendation of "Retain" for any judge who receives an average of 2.0 or more in response to questions 1 through 5 of both the attorney and non-attorney survey questionnaires. If a judge receives less than an average of 2.0 in response to the questions 1 through 5 in either the attorney or non-attorney survey questionnaires, the Commission shall strongly consider a "Do Not Retain," unless one or more of the following applies:

(I) The nature or high number of cases of a judge's docket or caseload is such that the judge cannot appropriately manage his or her cases in a timely manner. This may be particularly true for provisional judges, who when appointed to the bench may inherit a significantly high number of cases that cannot be managed quickly.

(II) The commission believes that with additional experience on the bench and a commitment to improve his or her judicial skills, the judge should be given more time to develop his or her judicial skills and be retained for another term. The judge must agree to the recommendations contained in a performance plan that identifies areas of weaknesses in the judge's performance and makes specific recommendations for improvement.

(III) The judge'­s survey sample was either so small or lacking in appropriate respondent categories as to render the survey results inaccurate. If a commission believes that the results of the survey are inaccurate, it shall so notify the state commission. The state commission shall review the statistics, which review may include consultation with the independent firm that conducted the survey, and make a finding concerning the validity and use of the statistics. The decision by the State Commission concerning the accuracy and applicability of the survey results shall be forwarded to the District Commission making the request. If the state commission finds the survey inaccurate, that determination shall be binding upon the commission.

(IV) Any evaluation information obtained by the commission under Rule 2 that the commission believes justifies a "Do Retain" recommendation.

(c) A recommendation of "No Opinion" shall be given only when the commission concludes that the results of information gathered are not sufficiently clear to make a firm recommendation, and as such shall be accompanied by a detailed explanation.

(d) A commission member who did not participate in the judge's scheduled interview or perform the minimum required courtroom observation, may not vote on the commission'­s recommendation for retention unless authorized to do so by a majority vote of the commission members who were present at the scheduled interview and performed the required minimum courtroom observation.

RULE 14. NARRATIVE PROFILE REQUIREMENTS

Narrative profiles shall be reports of three to four short paragraphs describing the justice, judge or magistrate, judicial assignment, number of years on the bench and the retention recommendation. Narrative profiles shall provide the vote count recorded for each justice, judge or magistrate'­s recommendation and shall include comments explaining the reasons for such vote count. Narrative profiles should include information specific to the work of the justice, judge or magistrate. Narrative profiles may contain information concerning the justice'­s, judge's or magistrate's professional association activities, recent awards and honors, and volunteer or other community work. Narrative profiles of those judges who are not licensed to practice law in Colorado shall reflect such. Narrative profiles need not contain biographical data, such as undergraduate school information, educational degrees, or other historical information not directly related to the practice of law. Narrative profiles for justices or judges standing for retention may include a statement of the groups of respondents surveyed, the percentage of responses received from each group who recommend that a justice or judge be retained, the percentage of responses received from each group who have no opinion as to the retention of the justice or judge, and the percentage of responses received from each group who recommend that a justice or judge should not be retained. The commission may also include the following information in the narrative profiles: the justice's or judge's contribution to the community, strengths and weaknesses, which may include emphasizing areas of exemplary or distinguishing performance or describing areas of significantly poor performance, and any additional information that the commission believes may be of assistance to the public in making an informed voting decision on the justice or judge.

District commissions shall prepare and provide the narrative profiles to the state commission no later than one hundred and twenty (120) days prior to the general election.

In addition to the information published as a narrative profile, the commission shall make a recommendation regarding the retention of each justice or judge who has declared intent to stand for retention. The recommendation shall be "Retain," "Do Not Retain," or "No Opinion." A "No Opinion" shall be given only when the commission concludes that the results of information gathered are not sufficiently clear to make a firm recommendation, and such shall be accompanied by a detailed explanation. A commission member who did not participate in the judge'­s scheduled interview may not vote on the commission's recommendation for retention unless authorized to do so by a majority vote of the commission members who were present at such interview.

RULE 15. RESPONSE TO NARRATIVE PROFILE

(a) Any judge or magistrate being evaluated pursuant to section 13-5.5-106(3)(a), C.R.S., may respond to a draft of a narrative profile, in writing, within ten (10) days of receipt of the draft. Such a response must be directed to the chair of the commission.

(b) Any justice or judge being evaluated pursuant to section 13-5.5-106 (1)(a) or (2)(a), C.R.S., may respond to a draft of the narrative profile, in writing, within ten (10) days of receipt of the draft. If the responding justice or judge requests an additional interview with the commission, the justice or judge shall be given an opportunity to meet with the commission to address the contents of the narrative profile. Any additional interview shall be held within ten (10) days of the request. The commission may, after such a meeting with the justice or judge being evaluated, revise its evaluation. Additionally, any commission issuing a "Do Not Retain" recommendation shall, at the justice or judge'­s request, include language in the narrative profile stating the justice's or judge'­s position. The justice or judge may, upon review of the statement, elect to withdraw the statement from inclusion in the narrative profile. The chair of the commission shall provide the justice or judge with any redraft of the narrative profile, in writing, within ten (10) days following the additional interview, or, absent an additional interview, within ten (10) days of the receipt of the justice'­s or judge'­s response.

RULE 16. RELEASE OF INTERIM EVALUATIONS

The district commission shall release the narrative profile and any other relevant information developed pursuant to section 13-5.5-106(3), C.R.S., to the chief judge of the court and to the judge or magistrate no later than September 1 of the year in which the evaluation is performed. By September 1 of the year in which the evaluation is performed, the narrative profile and any other relevant information developed under this section shall also be available to the public, except that narrative profiles prepared pursuant to this section shall not be mailed to registered voters.

RULE 17. RELEASE OF THE NARRATIVE PROFILE AND RECOMMENDATION

When possible, the state commission shall release the narrative profile and the recommendation on retention prepared by the commissions to the public on the first day following the deadline for judges to declare their intent to stand for retention but no later than forty-five (45) days prior to the retention election.

RULE 18. REMOVAL FOR CAUSE

(a) Any member of any judicial performance commission may be removed for cause by the appointing authority pursuant to section 13-5.5-104, C.R.S. The state commission may recommend to the appointing authority that a member of a judicial performance commission be removed for cause. "Cause" means any malfeasance or nonfeasance in carrying out the duties and responsibilities of any judicial performance commission.

(b) A commission member shall disclose to the commission any professional or personal relationship with the judge that may affect an unbiased evaluation of that judge, including any litigation involving the judge and the commission member, the commission member'­s family or commission member'­s business and any past or current application to fill a judge vacancy in the judicial district. Failure to disclose such information may be cause for removal by the appointing authority or as recommended by the state commission.

RULE 19. COMPLAINTS

When a member of any district judicial performance commission or justice, judge or magistrate under evaluation believes that the judicial performance commission is operating in violation of these rules or the statute governing judicial performance commissions, such member, justice, judge, or magistrate shall notify the state commission. The state commission shall notify the chair of the particular district commission and request a written response regarding the complaint. Upon receipt of such a response, the state commission shall make an independent review and determine whether a violation of rule or statute has occurred. Findings of the state commission will be communicated to the district commission along with any instructions that are necessary to ensure that the district commission operates within these rules and the statute governing judicial performance commissions. In no event may the state commission overrule a recommendation regarding retention of any judge, but the state commission may provide a rebuttal recommendation to the district commission'­s recommendation regarding retention of any judge when the district commission fails to comply with any instructions issued by the state commission pursuant to this Rule.

RULE 20. PARTICIPATION BY COMMISSION MEMBERS IN ACTIVITIES SUBSEQUENT TO DISSEMINATION OF NARRATIVE PROFILES AND RECOMMENDATIONS ON RETENTION

A commission member or the commission may publicly discuss only the narrative profile, the retention recommendation, the numerical data, information from public hearings, and such information as has been made public under Rule 10.

RULE 21. RECUSAL

An attorney who is serving as a commission member for a district or state judicial performance commission shall not, during the term of such service, request that a justice, judge or magistrate being evaluated by the commission be recused from hearing a case in which the attorney appears as counsel of record, or request permission to withdraw from the case pending before a justice, judge or magistrate being evaluated, solely on the basis that the attorney is serving on such performance commission.

Any attorney who appears in a matter where opposing counsel of record serves as a member of the judicial performance commission which is evaluating the justice, judge or magistrate before whom the matter is set, may not request that the attorney be required to withdraw from the matter, or that the justice, judge or magistrate be recused from the matter on the basis that opposing counsel is serving on such performance commission.

A justice, judge or magistrate being evaluated by a judicial performance commission may not recuse himself or herself from a case in which an attorney member of a state or district judicial performance commission is counsel of record, nor should a justice, judge or magistrate grant a request to withdraw from a case by an attorney commission member, solely on the basis that the attorney is serving on the judicial performance commission conducting the evaluation.

A commission member shall disclose to the state'­s and member'­s commission, any professional or personal relationship with the justice, judge or magistrate that may affect an unbiased evaluation of that justice, judge or magistrate.

A member may abstain from voting on the recommendation of the commission.

RULE 22. NOTICE

(a) The district administrator shall cause to be published and posted at all times in a conspicuous location in each county courthouse of each judicial district affected by such commission, the names of members of the district judicial performance commission and a name, address, telephone number and e-mail address (if available) as a public contact.

(b) The state commission shall cause to be published and posted at all times in a conspicuous location in the Colorado State Judicial Building the names of members of the state commission and a name, address, telephone number and e-mail address of the state commission director for public contact.

RULE 23. DISSEMINATION OF INFORMATION

The following shall apply to the dissemination of narrative profiles and recommendations on retention of justices or judges standing for retention in office:

(a) General Distribution. Commissions may prepare and may make available, narrative profiles at the county courthouse, local libraries, major grocery outlets, and other practical public outlets.

(b) Newspaper. Narrative profiles may be provided for publication in the local newspapers.

(c) Radio/T.V. Commissions may contract for public service announcement airtime on local radio/ T.V. Public service announcements will direct the listener to the publication of retention recommendations. (Sample: 15 second PSA announcing that the results and recommendations concerning the election of judges standing for retention in the judicial district will be available in the [publication] on [date]. Narrative profiles are included in the ballot analysis distributed to all registered voters.)

RULE 24. RECORDS

The program director shall create a set of guidelines in cooperation with the district administrators for the purpose of the collection and retention of a summary of each state and district commission review process, data collected and appropriate notes for each review cycle. The information shall be provided to the commissions in subsequent judicial performance evaluation review cycles.

 

Attention Readers: For complete text of rule changes, including forms and versions showing highlighted revisions, please visit the Court'­s website: http://www.courts.state.co.us.

© 2004 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2004.


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