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TCL > November 2004 Issue > Court Business

November 2004       Vol. 33, No. 11       Page  147
From the Courts
Court Business

Court Business

 Colorado Supreme Court Rules Committee

Notice of Written Public Comments
Regarding Proposed Changes to Colorado Rules of Civil Procedure
Comments Due November 19, 2004

The Colorado Supreme Court will entertain written comments only on the proposed changes to C.R.C.P. 251.2—Attorney Regulation Committee. Anyone wishing to comment on this proposed rule change may do so in writing by submitting an original and eight copies to: Clerk, Colorado Supreme Court, 2 E. 14th Ave., Denver, CO 80203. Comments are due no later than 5:00 p.m., Friday, November 19, 2004. If adopted by the Court, this rule would become effective January 1, 2005.


Colorado Rules of Civil Procedure
Chapter 20

Colorado Rules of Procedure Regarding Attorney Discipline and Disability Proceedings, Colorado Attorneys’ Fund for Client Protection, and Mandatory Continuing Legal Education and Judicial Education
Rule 251.2. Attorney Regulation Committee

(a) [No Change]

(1) MembersCommittee. The Committee shall be composed of nineseven members, a Chair and Vice-Chair.six of whom shall be members of the Bar of Colorado and three of whom shall be public members. Diversity shall be a consideration in making the appointment.

The Supreme Court, with the assistance of the Advisory Committee, shall appoint the members of the committee to serve terms of two years. The terms of the members of the committee shall be staggered to provide, so far as possible, for the expiration each year of the terms of an equal number of Committee members. Members of the committee shall be eligible to serve no more than three consecutive terms.

The members of the Committee shall serve at the pleasure of the Supreme Court and may be dismissed from the Committee at any time by order of the Supreme Court. A member of the Committee may resign at any time.

(2) VacancyMembers. The members shall be composed of four members of the Bar of Colorado and three public members. Diversity shall be a consideration in making the appointment. The Supreme Court, with the assistance of the Advisory Committee, shall appoint the members. The members shall serve one term of seven years but may be dismissed from the Committee at any time by order of the Supreme Court. The terms of the members of the Committee shall be staggered to provide, so far as possible, for the expiration each year of the term of one member. Members of the Committee may resign at any time. In the event of a vacancy on the Committee, the Supreme Court shall appoint a successor to serve the remainder of the unexpired term.

(3) Chair and Vice-Chair. The members of the Committee shall elect from among themselves one Chair, who shall appoint one Vice-Chair.The Chair and Vice-Chair shall be members of the Bar of Colorado. The Supreme Court, with the assistance of the Advisory Committee, shall appoint the chair and Vice-Chair. The Chair and Vice-Chair shall serve and unspecified term at the pleasure of the Supreme Court. The Chair and Vice-Chair of the Committee may resign at any time. The Chair shall exercise overall supervisory control of the Ccommittee. The Vice-Chair shall assist the Chair and shall serve as Chair in the Chair’s absence.

(4) [No Change]

(b) [No Change]

(c) [No Change]

(d) [No Change]

 

 Change 2004(16)
Colorado Rules of Criminal Procedure:
Chapter 29. Rule 4.2. Arrest Warrant Without Information, Felony Complaint, or Complaint Rule
Amended and Adopted

If a warrant for arrest is sought prior to the filing of an information, felony complaint, or complaint, such warrant shall issue only on affidavit sworn to or affirmed before the judge or a notary public and determined by a judge to relate facts sufficient to establish probable cause that an offense has been committed and probable cause that a particular person committed that offense. A warrant may be obtained by facsimile transmission (FAX) pursuant to the procedure set forth in Rule 41, in which event the procedure in Rule 41 shall be followed. The court shall issue a warrant for the arrest of such person commanding any peace officer to arrest the person so named and to take the person without unnecessary delay before the nearest judge of a court of record.

Amended and Adopted by the Court, En Banc, September 9, 2004, effective immediately.

By the Court:

Alex J. Martinez
Justice, Colorado Supreme Court


 

Rule Change 2004(17)
The Colorado Appellate Rules. Chapter 32
Amended and Adopted

Rule 3.3. (New) Appeals of Grant or Denial of Class Certification

An appeal from an order granting or denying class certification under C.R.C.P. 23(f) may be allowed pursuant to the procedures set forth in that rule and C.R.S. § 13-20-910.

Rule 4. Appeal as of Right—When Taken

(a) Appeals in Civil Cases (Other than Appeals or Appellate Review Within C.A.R. 3.1, 3.2, and 3.3). Except as provided in Rule 4(e), in a civil case in which an appeal is permitted by law as of right from a trial court to the appellate court, the notice of appeal required by C.A.R. 3 shall be filed with the appellate court with an advisory copy served on the clerk of the trial court within forty-five days of the date of the entry of the judgment, decree, or order from which the party appeals. In appeals from district court review of agency actions, such notice of appeal shall be in addition to the statutory forty-five-day notice of intent to seek appellate review filed with the district court required by C.R.S. 24-4-106(9). If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within fourteen days of the date on which the first notice of appeal is filed, or within the time otherwise prescribed by this section (a), whichever period last expires.

The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the trial court by any party pursuant to the Colorado Rules of Civil Procedure hereafter enumerated in this sentence, and the full time for appeal fixed by this section (a) commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: (1) Granting or denying a motion under C.R.C.P. 59 for judgment notwithstanding verdict; (2) granting or denying a motion under C.R.C.P. 59, to amend findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) granting or denying a motion under C.R.C.P. 59, to alter or amend the judgment; (4) denying a motion for a new trial under C.R.C.P. 59; (5) expiration of a court granted extension of time to file motion(s) for post-trial relief under C.R.C.P. 59, where no motion is filed. The trial court shall continue to have jurisdiction to hear and decide a motion under C.R.C.P. 59 regardless of the filing of a notice of appeal, provided the C.R.C.P. 59 motion is timely filed under C.R.C.P. 59(a) and determined within the time specified in C.R.C.P. 59(j). During such time, all proceedings in the appellate court shall be stayed. A judgment or order is entered within the meaning of this section (a) when it is entered pursuant to C.R.C.P. 58. If notice of the entry of judgment, decree, or order is transmitted to the parties by mail, the time for the filing of the notice of appeal shall commence from the date of the mailing of the notice.

Upon a showing of excusable neglect, the appellate court may extend the time for filing the notice of appeal by a party for a period not to exceed thirty days from the expiration of the time otherwise prescribed by this section (a). Such an extension may be granted before or after the time otherwise prescribed by this section (a) has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate.

Rule 34. Oral Argument

(a) [No Change]

(b) [No Change]

(1) [No Change]

(2) In the Court of Appeals. Oral argument in the Court of Appeals will be allowed upon the written request of a party or upon the court's own motion, unless the court, in its discretion, dispenses with oral argument. A request for oral argument shall be made in a separate, appropriately titled document filed no later than ten days after the briefs are closed. Unless otherwise ordered, argument shall not exceed fifteen minutes for the appellants and fifteen minutes for the appellees. The court may terminate the argument whenever in its judgment further argument is unnecessary.

(c)–(h) [No Change]

Amended and Adopted by the Court, En Banc, September 9, 2004, effective immediately.

By the Court:

Nancy E. Rice
Justice, Colorado Supreme Court


Rule Change 2004(18)
Colorado Rules of Civil Procedure
Chapter 20

Colorado Rules of Procedure Regarding
Attorney Discipline and Disability Proceedings,
Colorado Attorneys’ Fund for Client Protection, and
Mandatory Continuing Legal Education and Judicial Education
Amended and Adopted
Rule 251.15. Answer—Filing, Failure to Answer, Default

(a) [No Change]

(b) Failure to Answer, and Default.

If the respondent fails to file an answer within the period provided by subsection (a) of this Rule, the Regulation Counsel shall file a motion for default with the Presiding Disciplinary Judge. Thereafter, the Presiding Disciplinary Judge shall enter a default and the complaint shall be deemed admitted; provided, however, that a respondent who fails to file a timely answer may, upon a showing that the failure to answer was the result of mistake, inadvertence, surprise, or excusable neglect, obtain leave of the Presiding Disciplinary Judge to file an answer.

Notwithstanding the entry of a default, the Regulation Counsel shall give the respondent notice of the final hearing, at which the respondent may appear and present arguments to the Hearing Board regarding the form of discipline to be imposed.

Thereafter, the Hearing Board shall review all pleadings, arguments, and the report of investigation and shall prepare a report setting forth its findings of fact and its decision as provided in C.R.C.P. 251.19.

If, however, after the entry of default neither the respondent nor Regulation Counsel timely requests a hearing before the Hearing Board, then the sanctions hearing shall be held solely before the Presiding Disciplinary Judge.

 

Rule 251.16. Presiding Disciplinary Judge

(a) and (b) [No Change]

(c) Powers and Duties of the Presiding Disciplinary Judge. The Presiding Disciplinary Judge shall be authorized and empowered to act in accordance with these Rules and to:

(1) through (8) [No Change]

(9) Preside over sanctions hearings pursuant to C.R.C.P. 251.15(b) and C.R.C.P. 251.19(c).

(d) and (e) [No Change]

 

 Rule 251.18. Hearings Before the Hearing Board

(a) [No Change]

(b) Designation of a Hearing Board.

(1) All hearings on complaints seeking disciplinary action against a respondent shall be conducted by a Hearing Board except as provided in subsection(b)(3). A Hearing Board shall consist of the Presiding Disciplinary Judge and two other members, one of whom shall be an attorney, who are to be selected at random from the pool of Hearing Board Members by the clerk for the Presiding Disciplinary Judge. If the Presiding Disciplinary Judge has been disqualified, then a presiding officer shall be selected at random from among the attorneys on the list of Hearing Board members. The presiding officer shall, in all respects, act in accordance with these Rules.

(2) The Presiding Disciplinary Judge or the presiding officer shall rule on all motions, objections, and other matters presented after a complaint is filed and in the course of a hearing.

(3) Once a default has been entered against a respondent, the respondent or Regulation Counsel has thirty (30) days after notice of the default order to request a sanctions hearing before a three-person Hearing Board. The party requesting this hearing shall send notice of such request, in writing, to the Presiding Disciplinary Judge and the opposing party. If neither party requests a sanctions hearing before a three-person Hearing Board, the sanction shall be decided by the Presiding Disciplinary Judge.

(c) through (e) [No Change]

(f) Procurement of Evidence During Hearing.

(1) through (4)(D)(v) [No Change]

(vi) Presentation of Testimony. If the testimony of any witness is to be presented by deposition or through any other acceptable means in lieu of live testimony, a copy shall be submitted to the Hearing Board or the Presiding Disciplinary Judge if there is no Hearing Board and include the proponent’s and opponent’s anticipated designations of the pertinent portions of such testimony or a statement why designation is not feasible prior to trial. If any party wishes to object to the admissibility of the testimony or to any tendered question or answer therein, it shall be noted, setting forth the grounds therefor.

(4)(D)(vii) through (G) [No Change]


Rule 251.19. Findings of Fact and Decision

(a) and (b) [No Change]

(c) Decision of the Presiding Disciplinary Judge. When the Presiding Disciplinary Judge renders a decision without a Hearing Board as provided in these rules, the Presiding Disciplinary Judge shall:

(1) Enter an order imposing private admonition, public censure, a definite period of suspension, or disbarment; or

(2) Enter an order conditioned on the agreement of the attorney diverting the case to the alternatives to discipline program.

The Presiding Disciplinary Judge may also enter other appropriate orders including, without limitation, probation, and orders requiring the respondent to pay the costs of the disciplinary proceeding, to make restitution, or to refund money paid to the respondent.

(3) Within fifteen (15) days of entry of an order as provided in this Rule or such greater time as the Presiding Disciplinary Judge may allow, a party may move for post-hearing relief as provided in C.R.C.P. 59.

(4) For purposes of this Rule, the decision of the Presiding Disciplinary Judge shall be final and time for filing notice of appeal shall commence as set forth in C.R.C.P. 251.26.

 

Rule 251.21. Discipline Imposed by Foreign Jurisdiction

(a) through (d) [No Change]

(e) If Regulation Counsel does not seek substantially different discipline and if the respondent does not challenge the order based on any of the grounds set forth in (d)(1)(4) above, then the Presiding Disciplinary Judge may, without a hearing or a Hearing Board, issue a decision imposing the same discipline as imposed by the foreign jurisdiction

 

Rule 251.34. Advisory Committee

(a) Advisory Committee. The Supreme Court Advisory Committee is hereby established. The Advisory Committee shall serve as a permanent committee of the Supreme Court.

(1) Members. The Advisory Committee shall be composed of the Chair and Vice-Chair of the Attorney Regulation Committee. Two Supreme Court justices who serve as liaison to the attorney regulation system, eight members of the Bar, and a member of the public shall also serve as members of the Advisory Committee. The membership shall include one member from the Colorado Bar Association’s Ethics Committee, one Respondent Bar member of the Colorado Bar Association’s Attorney Regulation Policy Committee, and one member of the Hearing Board pool. Diversity shall be a consideration in making the appointments.

The members of the Advisory Committee shall serve at the pleasure of the Supreme Court and may be dismissed from the Advisory Committee at any time by order of the Supreme Court. A member of the Advisory Committee may resign at any time.

(a)(2) through (b) [No Change]

Amended and Adopted by the Court, En Banc, September 30, 2004, effective January 1, 2005.

By the Court:

Justice Michael L. Bender
Justice Nathan B. Coats
Colorado Supreme Court

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., #300, Denver, CO 80203. Individual Chief Justice Directives will be assissed 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: http://www.colorado. gov/dpa/doah/.

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, including forms, may be omitted due to space restrictions. To obtain a copy of attachments, contact: Court Services Division, Office of the State Court Administrator, 1301 Pennsylvania St., #300, Denver, CO 80203.

Chief Justice Directive 94-03: Repealed

I hereby repeal Chief Justice Directive 94-03, dated November 17, 1994, concerning Support Payment Processing Fees and declare it to be no longer in force or effect.

Dated at Denver, Colorado this 17th day of September 2004.

By the Court:

Mary J. Mullarkey, Chief Justice

 

United States District Court for the District of Colorado

Notice of Proposed New Local Rules
D.C.COLO.LCivR 5.6 and D.C.COLO.LCrR 49.4
Deadline for Comments: November 19, 2004, 5:00 p.m.

The United States District Court for the District of Colorado has proposed the following new local rules D.C.COLO.LCivR 5.6 and D.C.COLO.LCrR 49.4 to be added to the Local Rules of Practice pursuant to Rule 83 of the Federal Rules of Civil Procedure, and Rule 57 of the Federal Rules of Criminal Procedure.

Comments are invited and should be in writing. They should be directed to the Clerk, U.S. District Court, Alfred A. Arraj U.S. Courthouse, 901 19th St., Denver, CO 80294, and must be received no later than the close of business November 19, 2004.

Dated at Denver, Colorado, October 5, 2004.

By the Court:

Lewis T. Babcock, Chief Judge


 

PROPOSED NEW RULE:
D.C.COLO.LCivR 5.6: ELECTRONIC CASE FILING

A. ELECTRONIC FILING: Pursuant to Fed. R. Civ. P. 5(e), the court will permit papers to be filed, signed, and verified by electronic means. Electronic case filing shall be governed by standards and procedures set forth in a manual entitled "Electronic Case Filing Procedures for the District of Colorado." The current version of that manual shall be available in the clerk’s office, and shall be posted on the court’s website.

B. TIME: Nothing in the electronic case filing procedures for the District of Colorado alters the rules governing the computation of the deadlines for filing and service of documents that are set forth at Fed. R. Civ. P. 6.

C. SERVICE: Parties are authorized to make service under Fed. R. Civ. P. 5(b)(2)(D) through the court’s transmission facilities.


 

PROPOSED NEW RULE:
D.C.COLO.LCrR 49.4: ELECTRONIC CASE FILING

A. ELECTRONIC FILING: Pursuant to Fed. R. Crim. P. 49, the court will permit papers to be filed, signed and verified by electronic means. Electronic case filing shall be governed by standards and procedures set forth in a manual entitled "Electronic Case Filing Procedures for the District of Colorado." The current version of that manual shall be available in the clerk’s office and shall be posted on the court’s web site.

B. TIME: Nothing in the electronic case filing procedures for the District of Colorado alters the rules governing the computation of deadlines for filing and service of documents that are set forth at Fed. R. Crim. P. 45.

C. SERVICE: Pursuant to Fed. R. Crim. P. 49, parties are authorized to make service through the court’s transmission facilities.


 

Colorado Supreme Court Rules Committee

Rule Change 2004(10)
The Colorado Rules of Probate Procedure
Colorado Probate Forms
CPC Form 11. Application For Informal Probate of Will
And Informal Appointment of Personal Representative
Notice of Clerical Error

A clerical error appears on the second page of the document entitled: Application for Informal Probate of Will and Informal Appointment of Personal Representative. The correction to the error will be found in the last paragraph, first sentence titled "INSTRUCTIONS FOR PARAGRAPH 12."

Notice by the Court dated September 22, 2004.


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