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TCL > January 2005 Issue > Court Business

January 2005       Vol. 34, No. 1       Page  133
From the Courts
Court Business

Court Business

Notice of Public Written Comment Regarding
Chapter 32. Colorado Appellate Rules

The Colorado Supreme Court proposes to amend the Colorado Appellate Rules, Rule 27(d); Rule 28(g); Rule 32(a) through (d); Rule 40(b); and Rule 53(a) through (d). An original and eight copies of the written comments on the proposed Rules should be filed with the Clerk of the Colorado Supreme Court, Susan J. Festag, at 2 E. 14th Ave., Denver, CO 80203, no later than 5:00 p.m., Tuesday, February 8, 2005. [Note: The complete proposed rules, including corresponding illustrations and forms, are available online at: http://www.courts.state.co."us/""supct/"rules.]

By the Court:

Nancy E. Rice, Justice
Colorado Supreme Court

Chapter 32. Colorado Appellate Rules

Rule 27. Motions

(a)–(c) [No Change.]

(d) Form of Papers—Number of Copies. All papers relating to motions shall comply with C.A.R. 32. The original and ten copies shall be filed in the Supreme Court and the original and five copies in the Court of Appeals. Only the original of a motion for enlargement of time need be filed. The courts may require that additional copies be furnished.

(e) [No Change.]

__________

Rule 28. Briefs

(a)–(f)[No Change.]

(g) Length of Briefs. Except by permission of the court, principal briefs shall not exceed thirty pages, and reply briefs shall not exceed eighteen pages, unless they comply with the word limits set forth below. Principal briefs are opening brief, answer brief, opening-answer brief, and answer-reply brief. A principal brief is acceptable if it contains no more than 9,500 words. A reply brief is acceptable if it contains no more than 5,700 words. Headings, footnotes, and quotations count toward the word limitations. The caption, table of contents, table of authorities, certificate of compliance with the word limit, certificate of service, and any addendum containing statutes, rules, regulations, etc. do not count toward the page limits or word limits.

(h)–(i) [No Change.]

__________

Rule 32. Form of Briefs and Appellate Documents

(a) Standards for Non-Typewriter-Produced Briefs and Other Appellate Papers. Briefs and other appellate papers, except for those produced through the use of a typewriter, must comply with following standards:

(1) The typeface must be 14-point or larger, except that the caption may be in 12-point if necessary to fit on one page.

(2) The typeface must be a plain, roman style, although italics or boldface may be used for emphasis.

(3) If a brief or other appellate paper is subject to a word limit, it must include a certificate by the attorney, or by an unrepresented party, that the paper complies with the applicable word limit. The person preparing the certificate may rely on the word count of the word-processing system used to prepare the paper. The certificate must state the number of words in the paper.

(b) Standards for All Briefs and Other Appellate Papers. All briefs and other appellate papers, including those produced through the use of a typewriter, must comply with the following standards.

(1) Only 8½ by 11 inch paper shall be used.

(2) Text shall be double-spaced, except that quotations more than two lines long may be indented and single-spaced, and headings and footnotes may be single-spaced.

(3) Margins shall be no less than 1½ inches at the top and 1 inch at the left, right, and bottom, excluding page numbering, which shall be required.

(4) Text shall appear only on the face side of each page.

(c) Binding and Duplication. Briefs and other appellate papers shall be produced by any duplicating or copying process which produces a clear black image on white paper. Carbon copies may not be submitted without permission of the court, except by parties allowed to proceed in forma pauperis. Consecutive sheets shall be attached at the top left margin.

(d) Basic Document Information. Each brief or other appellate document shall contain basic document information on the first page of the document. The information in the case caption shall be arranged in the following order and shall be in the forms illustrated in subsection (1) or (2) below, except that documents issued by the court or clerk of court should omit the attorney section as illustrated in subsection (1)(II) and (2)(II):

On the left side:

Court name and mailing address.
Name of lower court(s), lower court judge(s), and case number(s).
Names of parties.
Name, address, and telephone number of attorney or pro se party filing the document. Fax number and e-mail address are optional.
Attorney registration number.
Document title.

On the right side:

An area for "Court Use Only" that is at least 2½ inches in width and 1¾ inches in length (located opposite the court information).

Case number.

[Note: Illustrations of the following forms are available online at http://www.courts.state.co.us/supct/rules.]

(1) Illustration of Preferred Case Caption Format:

(I) Preferred Caption for documents initiated by a party:

and

(II) Preferred Caption for documents issued by the court or clerk of court:

and

(2) Illustration of Optional Case Caption:

(I) Optional Caption for documents initiated by a party:

and

(II) Optional Caption for documents issued by the court or clerk of court:

(e) Improper Form of Briefs and Other Papers. In the event the clerk determines that a brief or other paper does not comply with the Colorado Appellate Rules or is not sufficiently legible, the clerk shall accept the document for filing but may require that a conforming document be filed.

__________

Rule 40. Petition for Rehearing

(a) No Change.

(b) Form of Petition; Length. The petition shall comply with C.A.R. 32, and on the front cover there shall be the number and title of the case, the court from which the appeal was taken, the name of the trial judge, the name of the justice or judge who wrote the opinion, and, if in the Supreme Court, shall state whether the decision was en banc; and, if a departmental decision of the Supreme Court, or of a division of the Court of Appeals, the names of the justices or judges participating. Copies of the petition shall be served and filed as prescribed by C.A.R. 31 for the service and filing of briefs. Except by permission of court a petition for rehearing shall not exceed six pages, unless it contains no more than 1,900 words.

__________

Rule 53. Petition for Certiorari and Cross-Petition for Certiorari

(a) The Petition. The petition for certiorari shall be succinct and shall not exceed twelve pages, unless it contains no more than 3,800 words, exclusive of appendix. The petition shall comply with C.A.R. 32. The petition shall contain in the order here indicated:

(1)–(7) [No Change.]

(b) The Cross-Petition. Within ten days after service of the petition for certiorari, a respondent may file and serve a cross-petition. A cross-petition shall be succinct and shall not exceed twelve pages, unless it contains no more than 3,800 words, exclusive of appendix. The cross-petition shall comply with C.A.R. 32. A cross- petition shall have the same contents, in the same order, as the petition.

(c) Opposition Brief. Within ten days after service of the petition, respondent may file and serve an opposition brief, a cross-petition or both. The petitioner may file an opposition brief within ten days after service of a cross- petition. An opposition brief shall be succinct and shall not exceed twelve pages, unless it contains no more than 3,800 words. The opposition brief shall comply with C.A.R. 32.

(d) Reply Brief. Within five days after service of an opposition brief, a petitioner or cross-petitioner may file and serve a reply brief. A reply brief shall be succinct and shall not exceed ten pages, unless it contains no more than 3,150 words. The reply brief shall comply with C.A.R. 32.

(e)–(f) No Change.

Rule Change 2004(22)
Uniform Local Rules for All State Water Court Divisions
Chapter 36. Appendix 1 to Chapter 36
Colorado Water Court Forms
Adopted

Rule 11. (Repealed and Replaced) Pre-Trial Procedure, Case Management, Disclosure and Simplification of Issues

Form 1. (Repealed and Replaced) Sample Modified Case Management Order

Adopted by the Court, En Banc, November 18, 2004, effective January 1, 2005.

[Note: The complete proposed rules, including Exhibit, are available online at: http://www.courts.state.co.us/supct/supct waterctindex.htm.]

By the Court:

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

Rule Change 2004(22)
Uniform Local Rules for All State Water Court Divisions
Chapter 36. Appendix 1 to Chapter 36
Colorado Water Court Forms

Rule 11. (Repealed and Replaced) Pre-Trial Procedure, Case Management, Disclosure and Simplification of Issues

The provisions of C.R.C.P. Rules 16 and 26 through 37 shall apply except that they shall be modified as follows:

(a) C.R.C.P. 16(b)-(e) shall be modified as follows:

(b) Presumptive Case Management Order. Except as provided in section (c) of this Rule, the parties shall not file a Case Management Order and subsections (1)–(10) of this section shall constitute the Case Management Order and shall control the course of the action from the time the case is at issue, unless the water court orders otherwise for good cause shown. The time periods specified in this case management order are provided to take into account protested or re-referred cases that involve computer modeling or detailed technical analysis. Parties and counsel are encouraged to request a modified case management order, pursuant to section (c), to shorten time periods whenever possible, unless the water court orders otherwise for good cause shown.

(1) At Issue Date. Water matters shall be considered to be at issue for purposes of C.R.C.P. Rules 16 and 26 forty five (45) days after the earlier of either of the following: entry of an order of re-referral or the filing of a protest to the ruling of the referee, unless the Water Court directs otherwise. Unless the Water Court directs otherwise, the time period for filing a Certificate of Compliance under subsection (b)(7) of this Rule shall be no later than 75 days after a case is at issue.

(2) Responsible Attorney. For purposes of Rule 16, as modified herein, the responsible attorney shall mean applicant’s counsel, if the applicant is represented by counsel, or, if not, a counsel chosen by opposers, or the water court may choose the responsible attorney. The responsible attorney shall schedule conferences among the parties, prepare and file the Certificate of Compliance, and prepare and submit the proposed trial management order.

(3) Confer and Exchange Information. No later than 15 days after the case is at issue, the lead counsel for each party and any party who is not represented by counsel shall confer with each other about the nature and basis of the claims and defenses, the matters to be disclosed pursuant to C.R.C.P. 26(a)(1), the development of a Certificate of Compliance, and the issues that are in dispute.

(4) Trial Setting. No later than 60 days after the case is at issue, the responsible attorney shall set the case for trial pursuant to C.R.C.P. 121, section 1-6, unless otherwise ordered by the water court.

(5) Disclosures.

(A)The time for providing mandatory disclosures pursuant to C.R.C.P. 26(a)(1) shall be as follows:

(I)Applicant’s disclosure shall be made 30 days after the case is at issue;

(II) An opposing party’s disclosure shall be made 30 days after applicant’s disclosures are made.

(B) The time periods for disclosure of expert testimony pursuant to C.R.C.P. 26(a)(2) shall be as follows:

(I) The applicant’s expert disclosure shall be made at least 240 days before trial;

(II) An opposer’s expert disclosure shall be made at least 120 days before trial;

(III) If the evidence is intended to contradict or rebut evidence on the same subject matter identified by another party under paragraph 5(B)(II) of the Rule, such disclosure shall be made at least 90 days before trial, and any rebuttal expert disclosure shall be made at least 90 days before trial.

In circumstances where, as a result of identification of witnesses and documents within the time frame for such identification set forth in this Presumptive Case Management Order but with insufficient time to allow responsive discovery or supplementation by an opposing party, then modification of this Presumptive Case Management Order shall be freely granted.

(6) Settlement Discussions. No later than 35 days after the case is at issue, the parties shall explore possibilities of a prompt settlement or resolution of the case.

(7) Certificate of Compliance. No later than 75 days after the case is at issue, the responsible attorney shall file a Certificate of Compliance. The Certificate of Compliance shall state that the parties have complied with all requirements of subsections (b)(3)–(7) (except (b)(5)(B)), inclusive, of this Rule or, if they have not complied with each requirement, shall identify the requirements which have not been fulfilled and set forth any reasons for the failure to comply. A request for a Case Management Conference shall be made at the time for filing the Certificate of Compliance.

(8) Time to Join Additional Parties and Amend Pleadings. The time to join additional parties and amend pleadings shall be in accordance with C.R.C.P. 16(b).

(9) Pretrial Motions. Unless otherwise ordered by the court, the time for filing pretrial motions shall be no later than 35 days before the trial date, except that motions pursuant to C.R.C.P. 56 shall be filed at least 90 days before the trial date.

(10) Discovery Schedule. Until a case is at issue, formal discovery pursuant to C.R.C.P. Rules 26 through 37 shall not be allowed. Informal discovery, including discussions among the parties, disclosure of facts, documents, witnesses, and other material information, field inspections and other reviews, is encouraged prior to the time a water case is at issue. Unless otherwise directed by the water court or agreed to by the parties, the schedule and scope of discovery shall be as set forth in C.R.C.P. 26(b). The date for completion of all discovery shall be 50 days before the trial date.

(c) Modified Case Management Order. Any of the provisions of section (b) of this Rule may be modified by the entry of a Modified Case Management Order pursuant to this section.

(1) Stipulated Modified Case Management Order. No later than 45 days after the case is at issue, the parties may file a Stipulated Proposed Modified Case Management Order, supported by a specific showing of good cause for each modification sought including, where applicable, the grounds for good cause pursuant to C.R.C.P. 26(b)(2). Such proposed order need only set forth the proposed provisions which would be changed from the Presumptive Case Management Order set forth in section (b) of this Rule. The Court may approve and enter the Stipulated Modified Case Management Order, or may set a Case Management Conference.

(2) Disputed Motions for Modified Case Management Orders. C.R.C.P. 16(d) shall apply to any disputes concerning a Proposed Modified Case Management Order. If any party wishes to move for a Modified Case Management Order, lead counsel and any unrepresented parties shall confer and cooperate in the development of a Proposed Modified Case Management Order. A motion for a Modified Case Management Order and one form of the proposed Order shall be filed no later than 45 days after the case is at issue. To the extent possible, counsel and any unrepresented parties shall agree to the contents of the Proposed Modified Case Management Order but any matter upon which all parties cannot agree shall be designated as "disputed" in the Proposed Order. The proposed Order shall contain specific alternate provisions upon which agreement could not be reached and shall be supported by specific showing of good cause for each modification sought including, where applicable, the grounds for good cause pursuant to C.R.C.P. 26(b)(2). Such motion need only set forth the proposed provisions which would be changed from the Presumptive Case Management Order set forth in section (b) of this Rule. The motion for a Modified Case Management Order shall be signed by lead counsel and any unrepresented parties, or shall contain a statement as to why it is not so signed.

(3) Court Ordered Modified Case Management Order. The Water Court may order implementation of a Modified Case Management Order if the Court determines that the Presumptive Case Management Order is not appropriate for the specific case. The Court shall not enter a Court Ordered Modified Case Management Order without first holding a Case Management Conference pursuant to C.R.C.P. 16(d).

(d) C.R.C.P. 16(c), C.R.C.P. 16(f)(3)(VI)(C), and C.R.C.P. 16(g) shall not apply to water court proceedings.

 

[Note: The complete proposed rules, including Exhibit, are available online at: http://www.courts.state.co.us/supct/"supctwaterctindex.htm.]

 

Rule Change 2004(21)

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
Amended and Adopted

(a) [No Change]

(1) Committee. The Committee shall be composed of seven members, a Chair and Vice-Chair.

(2) Members. 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 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 an 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 Committee. 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]

__________

Rule 251.17. Hearing Board

(a) [No Change]

(1) Members. The Supreme Court shall appoint a diverse pool of members of the Bar of Colorado and members of the public to serve as members of Hearing Boards. Persons appointed shall serve terms of two years. Terms shall be staggered to provide, so far as possible, for the expiration each year of the terms of an equal number of persons.

Persons appointed shall serve at the pleasure of the Supreme Court and may be dismissed from service at any time by order of the Supreme Court. Persons appointed may resign at any time.

(2) [No Change]

(3) [No Change]

(b) [No Change]

(c) [No Change]

Amended and Adopted by the Court, En Banc, November 24, 2004, effective January 1, 2005.

By the Court:

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

 

Rule Change 2004(20)

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
Adopted

Rule 260.8. (New) Direct Representation and
Mentoring in Pro Bono Civil Legal Matters

Form 8—Application for CLE Credit for Pro Bono Representation or Mentoring

[Note: Form 8 is available online at http://www.courts.state.co. us/supct/rules.]

Adopted by the Court, En Banc, November 10, 2004, effective January 1, 2005.

By the Court:

Nancy E. Rice, Justice
Colorado Supreme Court

 

Rule Change 2004(20)

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 260.8. (New) Direct Representation and Mentoring
In Pro Bono Civil Legal Matters

(1) A lawyer may be awarded a maximum of nine (9) units of general credit during each three-year compliance period for providing uncompensated pro bono legal representation to an indigent or near-indigent client or clients in a civil legal matter, or mentoring another lawyer or a law student providing such representation.

(2) To be eligible for units of general credit, the civil pro bono legal matter in which a lawyer provides representation must have been assigned to the lawyer by: a court; a bar association or Access to Justice Committee-sponsored program; an organized non-profit entity, such as Colorado Legal Services, Metro Volunteer Lawyers, or Colorado Lawyers Committee whose purpose is or includes the provision of pro bono representation to indigent or near-indigent persons in civil legal matters; or a law school. Prior to assigning the matter, the assigning court, program, entity, or law school shall determine that the client is financially eligible for pro bono legal representation because (a) the client qualifies for participation in programs funded by the Legal Services Corporation, or (b) the client’s income and financial resources are slightly above the guidelines utilized by such programs, but the client nevertheless cannot afford counsel.

(3) Subject to the reporting and review requirements specified herein, (a) a lawyer providing uncompensated, pro bono legal representation shall receive one (1) unit of general credit for every five (5) billable-equivalent hours of representation provided to the indigent client; (b) a lawyer who acts as a mentor to another lawyer as specified in this Rule shall be awarded one (1) unit of general credit per completed matter; and (c) a lawyer who acts as a mentor to a law student shall be awarded two (2) units of general credit per completed matter. A lawyer will not be eligible to receive more than nine (9) units of general credit during any three-year compliance period via any combination of pro bono representation and mentoring.

(4) A lawyer wishing to receive general credit units under this Rule shall submit to the assigning court, program, or law school a completed Form 8. As to mentoring, the lawyer shall submit Form 8 only once, when the matter is fully completed. As to pro bono representation, if the representation will be concluded during a single three-year compliance period, then the lawyer shall complete and submit Form 8 only once, when the representation is fully completed. If the representation will continue into another three-year compliance period, then the applying lawyer may submit an interim Form 8 seeking such credit as the lawyer may be eligible to receive during the three-year compliance period that is coming to an end. Upon receipt of an interim or final Form 8, the assigning court, program, entity, or law school shall in turn report to the Board the number of general CLE units that it recommends be awarded to the reporting lawyer under the provisions of this Rule. It shall recommend an award of the full number of units for which the lawyer is eligible under the provisions of this Rule, unless it determines after review that such an award is not appropriate due to the lawyer’s lack of diligence or competence, in which case it shall recommend awarding less than the full number of units or no units. An outcome in the matter adverse to the client’s objectives or interests shall not result in any presumption that the lawyer’s representation or mentoring was not diligent or competent. The Board shall have final authority to issue or decline to issue units of credit to the lawyer providing representation or mentoring, subject to the other provisions of these Rules and Regulations, including without limitation the hearing provisions of Regulation 108.

(5) A lawyer who acts as a mentor to another lawyer providing representation shall be available to the lawyer providing representation for information and advice on all aspects of the legal matter, but will not be required to file or otherwise enter an appearance on behalf of the indigent client in any court. Mentors shall not be members of the same firm or in association with the lawyer providing representation to the indigent client.

(6) A lawyer who acts as a mentor to a law student who is eligible to practice law under C.R.S. §§ 12-5-116 to -116.5 shall be assigned to the law student at the time of the assignment of the legal matter with the consent of the mentor, the law student, and the law school. The matter shall be assigned to the law student by a court, a program or entity as described in Rule 260.8(2), or an organized student law office program administered by his or her law school, after such court, program, entity, or student law office determines that the client is eligible for pro bono representation in accordance Rule 260.8(2). The mentor shall be available to the law student for information and advice on all aspects of the matter, and shall directly and actively supervise the law student while allowing the law student to provide representation to the client. The mentor shall file or enter an appearance along with the law student in any legal matter pursued or defended for the client in any court. Mentors may be acting as full-time or adjunct professors at the law student’s law school at the same time they serve as mentors, so long as it is not a primary, paid responsibility of that professor to administer the student law office and supervise its law-student participants.

[Note: Form 8 is available online at http://www.courts.state."co."us/"supct/rules.]

 

United States Bankruptcy Court for the District of Colorado

In the Matter of Establishment of a Telecommuting Policy
General Procedure Order Number 2004-2

THIS MATTER arises sua sponte upon Congressional directive to establish a uniform telecommuting policy that in limited, appropriate circumstances, authorizes the work of the court to be performed at alternative locations away from the Custom House. This policy is promulgated pursuant to authority established in the Guide to Judiciary Policies and Procedures, Volume 1, Chapter X, Subchapter 1610.1, and as required by Pub. L. 108-99, which provides that "[t]he Judiciary . . . shall establish a policy under which eligible employees may participate in telecommuting to the maximum extent possible without diminished employee performance. . . ." The Court recognizes that in limited, appropriate circumstances, the work of the court may be performed at remote locations away from the court without diminished performance, and that such alternative work location arrangements may be in the mutual best interests of the court and the employee. Accordingly, it is

ORDERED that, effective forthwith, the bankruptcy judges, as the appointing authority for members of their own confidential staff, and the clerk, as the appointing authority for employees of the Office of the Clerk and with the approval of the Chief Bankruptcy Judge on behalf of the bankruptcy judges, shall be authorized to approve alternative work location arrangements for individual members of their staffs on a case-by-case basis under the following provisions:

1. Telecommuting Defined: Telecommuting is defined as an alternative work location arrangement approved in advance by an employee’s appointing authority that allows employees to perform official duties and responsibilities from home or at some location other than their official duty station. Telecommuting is a work location alternative when an employee is unable to work at the Custom House that benefits employees by giving them flexibility in the performance of official duties. Telecommuting is not an entitlement and does not change the terms and conditions of employment. It is a privilege and may be withdrawn at any time. Participation in the telecommuting program does not change the employee’s official duty station. The United States Bankruptcy Court for the District of Colorado located at 721 19th Street Denver, Colorado 80202, shall remain the official duty station for telecommuting employees.

2. Extenuating Circumstances: An employee’s participation in telecommuting will be determined on a case-by-case basis in situations involving extenuating circumstnaces when commuting to the court is not an option. The appointing authority of the employee making such a request will approve or disapprove the request. The cancellation of a telecommuting arrangement is at the discretion of the appointing authority. The appointing authority may create and use whatever forms and procedures the appointing authority deems appropriate to establish a fair, efficient and uniform process for employees to request and be considered for an alternative work location arrangement.

3. Equipment/Supplies: As a general rule, the employee shall bear all costs associated with establishing and maintaining the remote workstation to which the telecommuting arrangement applies, including purchase and installation of hardware, operating systems with minimum performance specifications as determined by the systems staff, high speed Internet connectivity, operating costs, home maintenance, additional telephone lines, work station furniture and furnishings, cabinets, and personal telephone. Nonetheless, to the extent permitted by law and judicial branch policy the appointing authority may, at their discretion, provide the employee with the necessary supplies and equipment to optimally perform their duties with the exception of providing a private telephone and/or Internet connection.

Dated: October 29, 2004.

By the Court:

Sidney B. Brooks, Chief Bankruptcy Judge
Howard R. Tallman, Bankrutpcy Judge
A. Bruce Campbell, Bankruptcy Judge
Michael E. Romero, Bankruptcy Judge
Elizabeth E. Brown, Bankruptcy Judge

 

In the Matter of Interim Amendment to Local Bankruptcy Rules and Forms
With Respect to Chapter 13 Requirements and Procedures
General Procedure Order Number 2004-3

The Court having assembled an advisory group of attorneys who specialize in the practice of chapter 13, said advisory group having met regularly over the past twelve months to discuss and develop comments and recommended changes to the chapter 13 practice and procedure, and the Court having considered those recommendations, does now determine that certain proposed changes submitted by said attorney advisory group have merit and should be referred to the Court’s Local Bankruptcy Rules and Forms Advisory Committee (Advisory Committee) for consideration and subsequent release for public notice and an opportunity to comment pursuant to Rule 83, Federal Rules of Civil Procedure. The Court further determines that until such time as proposed revisions to all other sections of the Local Bankruptcy Rules and Forms are ready to be released for public notice by the Advisory Committee, the chapter 13 practice could benefit substantially from the implementation of the recommendations of the chapter 13 advisory group on an interim basis, pending final approval of comprehensive revisions to the Local Bankruptcy Rules and Forms.

Accordingly, pursuant to the authority established in Rule 9029, Federal Rules of Bankruptcy Procedure, it is

ORDERED that effective February 1, 2005, the Local Bankruptcy Rules and Forms are revised as follows:

Rule 117: Rule 117 is new and establishes requirements for the filing and service of certain tax returns on the chapter 13 trustee by the debtor prior to the meeting of creditors (see Exhibit A);

Rule 202: Rule 202 is amended to add a new paragraph (b)(3)(C) to establish a reduced deadline for objecting to a motion to dismiss pursuant to new Rule 117(b) and reads as follows:

(b)(3)(C) Any motion to dismiss filed pursuant to L.B.R. 117(b) shall be filed with accompanying notice providing the debtor seven days in which to respond to the motion. Objections or responses to a motion filed pursuant to L.B.R. 117(b) shall be served on the Movant and Movant’s counsel. If service is effected by mail, three days shall be added to the prescribed period.

Rule 315: Rule 315 is amended to delete the requirement to serve a notice with the plan, strike subparagraph (b) requiring the filing of motions to avoid liens at the time of filing of the chapter 13 plan, and to rearrange the remaining paragraphs to more consistently align with the caption of the Rule (see Exhibit B);

Rule 320: Rule 320 is amended to add a title and second sentence to subparagraph (c)(4) to clarify the status of previously filed objections when the plan is thereafter amended as follows:

(c)(4) Effect of Amendment: If the plan is amended after the filing and service of a motion to confirm, a new motion to confirm, verified by the debtor and conforming to the amended plan, shall be filed and served by the debtor together with a copy of the amended plan and the notice required by L.B.R. 202. Upon the filing of an Amended Plan, Motion to Confirm the Amended Plan and L.B.R. 202 Notice, previously filed objections to confirmation are deemed withdrawn and new objections must be timely filed addressing the current plan and Motion.

Form 202.5, 13 Order: The form of order granting the motion to confirm and confirming the plan is amended to simplify preparation of the order by deleting the requirement to fill in blank lines for dollar amounts, dates, and payment intervals and inserting in lieu thereof reference to the terms of the plan (see Exhibit C);

Form 304, Notice: As provided in the amendment to Rule 320(c)(4), this notice is deleted due to obsolescence;

Form 315.1, 13 Plan: The form of chapter 13 plan is amended substantially to reorganize or clarify existing information, improve format and layout, eliminate obsolete sections, and require additional information in several areas to better document compliance with the statutes, improve disclosure of information to creditors and the Court, and to guide counsel through preparation of the plan so as to facilitate the process, eliminate deficiencies, and generally shorten the time required to reach confirmation (see Exhibit D).

Form 320.4, Motion: The form of motion to confirm chapter 13 plan is amended to enumerate the paragraph between subparagraphs (7)B and (7)C, to renumber the remaining subparagraphs, and to add a new subparagraph (7)F requiring the debtors to show the Court that they have complied with the new provisions of Rule 117 with respect to the filing of tax returns and service thereof upon the chapter 13 trustee (see Exhibit E).

Dated: November 10, 2004.

By the Court:

Sidney B. Brooks, Chief Bankruptcy Judge
Howard R. Tallman, Bankrutpcy Judge
A. Bruce Campbell, Bankruptcy Judge
Michael E. Romero, Bankruptcy Judge
Elizabeth E. Brown, Bankruptcy Judge

[Note: Corresponding Exhibits and Forms are available online at http://www.cob.uscourts.gov/bindex.htm.]

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 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 94-01: Amended
Creation of, and Procedural Rules for, the Colorado Judicial Ethics Advisory Board

I. Scope, Purpose and Title

A. The Colorado Judicial Ethics Advisory Board ("the board") provides advisory opinions to state justices, judges, magistrates, judicial employees, and members of the board seeking opinions concerning the compliance of intended, future conduct with the Colorado Code of Judicial Conduct. Promulgation of this Chief Justice Directive is not intended to prohibit justices, judges, magistrates, judicial employees or members of the board from seeking ethics advice from other sources, such as from the executive director and chief counsel of the Colorado Commission on Judicial Discipline or the legal counsel for the judicial branch, without contacting the board.

II. Composition

A. The board shall be composed of seven members, who shall be appointed by the Chief Justice.

B. Four members shall be state judges. When possible, at least one judge shall be from a rural area court. Judge members may be active or retired.

C. One member shall be a citizen, who is not an attorney or judge, now or in the past.

D. One member shall be an attorney, who is not a justice or judge, now or in the past. The attorney member shall have been admitted to the practice of law in the state of Colorado for at least ten years.

E. One member shall be a law professor, with an interest in ethics.

F. The board members shall elect a chair.

G. The Chief Justice may appoint one or more persons to provide staff assistance to the board.

III. Terms of Office

A. Board members shall serve for three year terms from their date of appointment.

IV. Vacancies

A. The Chief Justice shall fill vacancies on the board for an unexpired term for the remainder of the term.

V. Restrictions on Membership

A. No member shall serve simultaneously on the board and the Colorado Commission on Judicial Discipline.

VI. Meetings

A. Meetings for the transaction of any board business, including the issuance of any advisory opinion may be in person, by telephone conference, video conference, e-mail or by circulated writing.

VII. Expenses

A. Members of the board shall be reimbursed for their actual and necessary expenses incurred in the discharge of their official duties as board members.

VIII. Promulgation of Rules and Procedures

A. The board may promulgate additional rules of procedure not inconsistent with these rules subject to approval of the Colorado Supreme Court.

IX. Requests for Advisory Opinions

A. A request for a judicial ethics advisory opinion shall be directed to any board member. Requests may be received from:

1. Colorado state justices, judges or magistrates who are serving in active status or as members of the Colorado senior judge program, or

2. A district administrator or clerk of court, making a request on behalf of the judicial officers in the district or court served, or

3. The state court administrator or the legal counsel for the judicial branch, or

4. A member of the board.

B. The board on its own motion may adopt advisory opinions issued in other states and reissue them as advisory opinions from the board on issues of general interest without being asked for an opinion by an individual.

X. Contents of Requests for Advisory Opinions

A. Requests for judicial ethics advisory opinions shall relate to prospective conduct only and shall contain a complete statement of all facts pertaining to the intended course of conduct together with a clear, concise question of judicial ethics. The identity of the individual making the request shall be disclosed to the board members and the staff assisting the board. Board members and staff shall not disclose the identity of the person making the request to anyone outside the board unless the requesting person consents.

B. The requesting individual shall state that the opinion is not sought with respect to past or present conduct and that the request is not the subject of a past or pending disciplinary proceeding before the Colorado Commission on Judicial Discipline. Requests shall not be accepted by the board or referred for opinion unless accompanied by this supporting statement.

XI. Content of Advisory Opinions

A. Advisory opinions shall set forth the facts upon which the opinion is based. Unless the requesting person consents to be identified, an opinion shall not include the name of the requesting party or identifying information if such information can reasonably be deleted. Advisory opinions shall address only whether an intended, future course of conduct violates or does not violate the Colorado Code of Judicial Conduct and shall provide an interpretation of the Code only with regard to the factual situation presented. The opinion shall not address other issues of law nor shall it address the ethical propriety of present conduct or past conduct.

B. If the facts, circumstances or questions presented by the requesting individual are unclear, vague or insufficient in detail to enable the board to render an advisory opinion, the board may refuse to consider the matter or may request that the requesting individual provide supplementary information to the board.

C. If the supplementary information is still unclear, vague or insufficient in detail, or is not provided within a reasonable time, the board shall inform the requesting individual that it will not render an advisory opinion.

D. The board may respond to requests for an advisory opinion by referring the requesting individual to any prior advisory opinion and by so doing shall not publish a new advisory opinion.

XII. Distribution Of Advisory Opinions

A. The board shall provide a copy of each advisory opinion to the requesting individual, the Chief Justice, the Colorado Commission on Judicial Discipline, the Colorado Supreme Court law library, the University of Colorado law library, the University of Denver law library, the journal entitled The Colorado Lawyer, the Colorado judicial branch web site, and the American Judicature Society. The board shall retain the original opinion in a permanent file in the offices of the State Court Administrator.

B. The board may repeal an advisory opinion issued in the past, may issue a cautionary statement concerning a past advisory opinion, or may amend a past advisory opinion in consideration of an opinion from the Colorado Supreme Court, action by the Judicial Discipline Commission, or amendments to the Colorado Code of Judicial Conduct.

XIII. Binding Effect of Advisory Opinions

A. All opinions shall be advisory in nature only. No opinion shall be binding on the Colorado Commission on Judicial Discipline or the Colorado Supreme Court in the exercise of their judicial disciplinary or other responsibilities. However, compliance by the requesting individual with a written advisory opinion of the board shall be considered to be evidence of a good faith effort by the requesting individual to comply with the Colorado Code of Judicial Conduct.

B. An opinion given to a requesting individual in an oral conversation is neither binding on the board nor evidence of a good faith effort to comply with the Colorado Code of Judicial Conduct.

Amended this 5th Day of October 2004, amendments effective the first day of November 2004.

 

Mary J. Mullarkey, Chief Justice
Colorado Supreme Court

 

Colorado Judicial Department
Colorado Supreme Court
Judicial Ethics Advisory Board Opinions

Background Information

Effective November 1, 2004, the Colorado Supreme Court amended Chief Justice Directive 94-01, which governs the Colorado Judicial Ethics Advisory Board ("CJEAB"). The CJEAB consists of judges and non-judges who provide advice on ethical issues to judicial officers who request an opinion on prospective conduct. There are seven board members: four judges, one non-lawyer citizen, one attorney, and one law professor with an interest in ethics.

CJEAB Opinions

Any judge, justice, magistrate, or district administrator (asking on behalf of judicial officers) in Colorado is welcome to request an advisory opinion from the CJEAB. Requests are made to any CJEAB member or to the person providing staff support to the CJEAB—Eileen Kiernan-Johnson, Legal Counsel to the Chief Justice of the Colorado Supreme Court.

Once a request is received, the CJEAB will research the question and issue a public opinion regarding the ethical considerations presented. the opinions will be posted online at http://www.courts.state.co.us/supct/committees/judicialethicsadvisoryboard/judethics. htm. The opinions will be published on a space available basis in the "Court Business" section of The Colorado Lawyer. Some attachments, including forms and exhibits, may be omitted due to space restrictions. Opinions also are available at Colorado’s two law schools, the Office of the State Court Administrator, and the Supreme Court Law Library. The opinions also will be provided to the American Judicature Society, which is an organization dedicated to judicial issues and ethics.

The CJEAB opinions are advisory in nature and do not bind the Commission on Judicial Discipline. For complete information about the CJEAB, contact Eileen Kiernan-Johnson, (303) 837-3759; eileen.kiernan-johnson@judicial.state.co.us.

 

Colorado Supreme Court
Judicial Ethics Advisory Board (C.J.E.A.B.)
C.J.E.A.B. Advisory Opinion 2004-01
(Finalized and Effective October 20, 2004)

Issues Presented

A judge presiding over a case determines that an attorney representing one of the parties has committed a violation of the Colorado Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer. The judge reports the lawyers misconduct to the appropriate disciplinary body. The grieved attorney does not file a motion to disqualify the judge from hearing the case. Must the judge now disqualify himself or herself in the case in which the grieved attorney is appearing? What action must the judge take in other cases in which the grieved attorney is appearing before the reporting judge?

Conclusions

A judges report of an attorney’s misconduct in a case pending before the judge does require that the judge disqualify himself or herself in the case. The judge’s report of the attorney’s misconduct alone may not manifest an attitude of hostility, ill will, or personal bias against the attorney. However, both the actuality of fairness and the appearance of fairness are of concern. Would the judge’s report of misconduct cause that attorney’s client reasonably to question the judge’s impartiality? We believe that for most litigants the answer would be yes. The appearance of impartiality is an essential ingredient of a fair trial. Canon 2 requires that a judge avoid impropriety and the appearance of impropriety. The judge’s actions must promote public confidence in the integrity and impartiality of the judiciary .

The litigants in other cases might also reasonably question the judge’s impartiality if they knew of the report of misconduct. Therefore, the judge should disqualify himself or herself in all proceedings in which the grieved attorney is appearing. Thereafter, in any other proceeding in which the grieved attorney appears, the reporting judge should continue to consider whether he or she has any personal bias or prejudice concerning the attorney previously grieved.

Applicable Canons from the Colorado Code of Judicial Conduct

Three (3) Canons of the Colorado Code of Judicial Conduct (Code) apply to an analysis of the issues presented.

• Canon 3C( 1) of the Code ("A Judge Should Perform the Duties of His or Her Office Impartially and Diligently") states:

"C. Disqualification. (1) A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, . . ."

• Canon 1 of the Code ("A Judge Should Uphold the Integrity and Independence of the Judiciary") states:

"An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved."

• Canon 2A of the Code ("A Judge Should A void Impropriety and Appearance of Impropriety in All the Judge’s Activities") states:

"A judge should respect and comply with the law and should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

• Canon 3B(3) of the Code ("A Judge Should Perform the Duties of His or Her Office Impartially and Diligently") states:

"B. Administrative Responsibilities. (3) A judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware."

• The Commentary to Canon 3(8)3 states: "Disciplinary measures may include reporting a lawyer’s misconduct to an appropriate disciplinary body."

Discussion

A litigant is entitled to a proceeding before a judge who does not have a bent of mind. Johnson v. District Court, 674 P.2d 952, 956 (Colo. 1984). "While a judge may be convinced of his own impartiality, he nonetheless may so act as to lead a party to reasonably conclude that he is biased or prejudiced in the pending litigation. It is this appearance of bias or prejudice which undermines not only a litigant’s confidence in the fairness of the proceeding but also public confidence in the integrity and impartiality of the judicial system." S.S. v. Wakefield, 764 P.2d 70, 73 (citing Johnson, 674 P.2d at 956).

The decision to grieve an attorney appearing before a judge in a case will necessarily have serious consequences for the attorney, for the reporting judge as a prospective witness in the grievance proceeding, and, most importantly, for the parties represented by the grieved attorney. That such clients might thereafter question the impartiality of the reporting judge in their case should be expected. The appearance of fairness and impartiality is critical to maintaining the integrity of the judicial process.

Resolution and Opinion

Disqualification is required when a judge reports a lawyer’s misconduct to an appropriate disciplinary body.

FORMALLY FINALIZED AND EFFECTIVE this 20th day of October 2004, by the Colorado Judicial Ethics Advisory Board.

Eric Jorgenson, Esq. (Chairperson and attorney member)
Professor James E. Wallace
(Vice-Chairperson and law professor member)
Barbara Crowfoot (citizen member)
Hon. Joseph R. Quinn (urban judge member)
Hon. Pattie P. Swift (rural judge member)
Research assistance and support provided by:
Richard A. Wehmhoefer, Esq. (Reporter for the Board)

Colorado Supreme Court
Colorado Judicial Ethics Advisory Board (C.J.E.A.B.)
C.J.E.A.B. Advisory Opinion 2004-02
(Finalized and Effective October 20, 2004)

Issue Presented

"Is it appropriate for a mentee judge to discuss ‘pending or impending matters’ with a mentor judge, whether or not the two judges are from the same, or a different, judicial district within the state of Colorado?"

Conclusion

While a mentee judge may consult with his or her mentor judge (or any other judge) on "pending or impending matters," the extent of those consultations should be limited to aiding the mentee judge in reaching a final decision on that matter. The consultation should not in any way actually influence, or appear to influence, the decision the mentee judge is responsible for making in a pending matter. The final adjudicative responsibility for any decision resides solely with the mentee-judge.

Pursuant to Canon 3 A.(4) of the Colorado Code of Judicial Conduct (Code), in the event the mentee judge believes that the advice obtained from the mentor judge has gone beyond such "aid," the mentee judge shall give notice to the parties of the person consulted, the substance of the advice, and afford the parties reasonable opportunity to respond.

Facts

In 2001, the Colorado Supreme Court created a "Mentor Judge Program" for newly-appointed judges in Colorado. The purposes of this program were to provide new judges in Colorado "with an experienced colleague who can be a source of information, assist with trouble-shooting and someone who can serve as a role model during the stressful time of transition to the Bench." (Colorado Judicial Department, "Mentor Judge Manual," 2001, page 1).

The requesting judge presented a question to the Colorado Judicial Ethics Advisory Board as to whether or not a mentor judge and that judge’s mentee are permitted to discuss "pending or impending" matters that the mentee judge might be facing in the mentee judge’s court regardless of whether or not the mentor judge and the mentee judge are from the same, or a different, judicial district within the state of Colorado. The requesting judge states that "Although the Mentor Judge Program does not specifically contemplate this activity, it obviously can occur."

Applicable Canons from the Colorado Code of Judicial Conduct

Three (3) Canons of the Colorado Code of Judicial Conduct (Code) apply to an analysis of this issue.

• Canon I of the Code ("A Judge Should Uphold the Integrity and Independence of the Judiciary") states:

"An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved."

• Canon 2 A. of the Code ("A Judge Should Avoid Impropriety and the Appearance of Impropriety in All the Judge’s Activities") states:

"A judge should respect and comply with the law and should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

• Canon 2 B. of the Code states:

"A judge should not allow family, social, or other relationships to influence the judge’s conduct or judgment."

• Canon 3 A.(4) of the Code ("A Judge Should Perform the Duties of His or Her Office Impartially and Diligently") states:

"A judge should accord to very person who is legally interested in a proceeding, or his or her lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate or consider ex parte or other communications concerning a pending or impending proceeding. A judge, however, may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond."

• The Commentary to Canon 3 A.(4) of the Code states:

"The proscription against communications concerning a proceeding includes communications from lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted. It does not preclude a judge from consulting with other judges, or with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities."

Discussion

While advisory opinions from jurisdictions around the United States have addressed the issue of judges making public comments about "pending or impending" matters or cases, an opinion from Florida states that a judge "shall not make any public comment that might reasonably be expected to effect its outcome or impair its fairness or make any non-public comment that might substantially interfere with a fair trial or hearing." (Florida Committee on Standards Governing Judges, "Opinion 96-18," September 4, 1996). In addition, an advisory opinion issued by Illinois holds that "a judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding." (Illinois Judicial Ethics Committee, "Opinion No.93-2," September 21, 1993 ).

As noted above, in Colorado, the Commentary to Canon 3 A.(4) "does not preclude a judge from consulting with other judges, or with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities." With regard to the issue set forth above, the purposes of such "consultations" are only to "aid" the mentee judge in making a final decision, not to actually influence, or appear to influence, the decision the mentee judge is responsible for making. That responsibility remains solely with the mentee-judge.

Therefore, a mentor judge, or any other judge for that matter, should be very careful to avoid providing any advice or guidance to a mentee-judge, or other judicial colleague, that might in any way actually influence, or appear to influence, the decision that the mentee-judge, or any other judge, may be about to make.

Pursuant to Canon 3 A.(4) of the Code, in the event the mentee judge believes that the advice obtained from the mentor judge has gone beyond such "aid," the mentee judge shall give notice to the parties of the person consulted, the substance of the advice, and afford the parties reasonable opportunity to respond.

In this way, the mentee-judge also meets the standards set forth in Canons 1 and 2 of the Code. That is, by avoiding placing a mentee-judge in the position of either actually being influenced, or appearing to be influenced, in that judge’s decision-making capacity, both the mentor judge and the mentee judge meet the standards set forth by Canons 1 and 2. Canon 1 requires that a "judge should participate in establishing, maintaining, and enforcing, and should personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved." Canon 2 A. and Canon 2 B. require that a "judge should respect and comply with the law and should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary;" and, that a "judge should not allow family, social, or other relationships to influence the judge’s conduct or judgment."

Resolution and Opinion

Therefore, with regard to the issue: "Is it appropriate for a mentee judge to discuss, ‘pending or impending matters’ with a mentor judge, whether or not the two judges are from the same, or a different, judicial district within the state of Colorado?" while a mentee judge may consult with his or her mentor judge on "pending or impending matters," the extent of those consultations should be to "aid" the mentee judge in making a final decision, not to actually influence, or appear to influence, the decision the mentee judge is responsible for making. The final adjudicative responsibility for any decision resides solely with the mentee-judge.

Pursuant to Canon 3 A. (4) of the Code, in the event the mentee judge believes that the advice obtained from the mentor judge has gone beyond such "aid," the mentee judge shall give notice to the parties of the person consulted, the substance of the advice, and afford the parties reasonable opportunity to respond.

FORMALLY FINALIZED AND EFFECTIVE this 20th day of October 2004, by the Colorado Judicial Ethics Advisory Board.

 

Eric Jorgeson, Esq. (Chairperson and attorney member)
Professor James E. Wallace
(Vice-Chairperson and law professor member)
Barbara Crowfoot ( citizen member)
Hon. Joseph R. Quinn (urban judge member)
Hon. Pattie P. Swift (rural judge member)

Research assistance and support provided by:

Richard A. Wehmhoefer, Esq. (Reporter for the Board)

 

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