Vol. 34, No. 5
From the Courts
Colorado Supreme Court Rules Committee
Notice of Public Hearing
Colorado Rules of Civil Procedure
(New) Chapter 17B. (New) Appointed Judges
(New) Rule 122. Case Specific Appointment of Appointed Judges
Pursuant to C.R.S. § 13-3-111
Appendix to Chapter 24
Colorado Code of Judicial Conduct. (New) Canon 9
Hearing to be Held Thursday, June 16, 2005, at 3:00 p.m.
The Colorado Supreme Court will conduct a hearing Thursday, June 16, 2005, at 3:00 p.m., in the Colorado Supreme Court Courtroom, 2 E. 14th Ave., Denver, Colorado, on proposed new rule to Colorado Rules of Civil Procedure (new) Chapter 17B Appointed Judges Rule 122; Case Specific Appointment of Appointed Judges Pursuant to C.R.S. § 13-3-111; and Appendix to Chapter 24, Colorado Code of Judicial Conduct (New) Canon 9 Appointed Judges, under C.R.C.P. 122 and C.R.S. § 13-3-111. The Court also requests written public comments by any interested person on these proposed rule changes. An original and eight copies of the written comments concerning the proposals should be submitted to Susan J. Festag, Clerk of the Supreme Court, 2 E. 14th Ave., Denver, Colorado 80203, no later than June 9, 2005, 5:00 p.m. Persons wishing to participate in the hearing should so notify Ms. Festag no later than June 9, 2005.
[Note: The proposed new rule and new Canon are printed below.]
By the Court:
Gregory Hobbs, Jr.
Justice Colorado Supreme Court
Colorado Rules of Civil Procedure
(New) Chapter 17B. (New) Appointed Judges
(New) Rule 122. Case Specific Appointment
of Appointed Judges Pursuant to C.R.S. § 13-3-111
(a) Appointed Judges.
(1) At any time after a civil action, excluding juvenile delinquency proceedings, is filed in a trial court of record, upon agreement of all parties that a specific retired or resigned justice of the Supreme Court, or a retired or resigned judge of any other court of record within the state of Colorado be appointed to hear the action and upon agreement that one or more of the parties shall pay the agreed upon compensation of the selected justice or judge, together with all other compensation and expenses incurred, the Chief Justice may appoint such justice or judge who consents to perform judicial duties for such action.
(2) The decision as to whether such justice or judge shall be appointed to judicial duties, pursuant to subsection (1) of this section, shall be entirely within the discretion of the Chief Justice. The Chief Justice has the authority to reject or approve any deviations from these rules agreed to by the parties. The Chief Justice may require such undertakings as in his or her opinion may be necessary to ensure that proceedings held pursuant to this section shall be without expense to the state of Colorado.
(3) The compensation and expenses paid to an Appointed Judge shall be at the rate agreed upon by the parties and the Appointed Judge and rate of compensation must be approved by the Chief Justice at the time of making the appointment.
(4) The appointed judge shall have the same authority as a full-time sitting judge. Orders, decrees, verdicts and judgments entered by an Appointed Judge shall have the same force and effect and may be enforced or appealed in the same manner as any other order, decree, verdict, or judgment.
(b) Qualifications. To be eligible to serve as an Appointed Judge, a person must be a Senior Judge, a retired or resigned justice of the Supreme Court, or a retired or resigned judge of the court of appeals, a district court, probate court, juvenile court or county court, who has served as a judge in one or more of said courts for a total of at least six years. If a judge has served in the Colorado State Court System and as a judge in the Federal Court System, those years of service may be combined for the purpose of meeting the six year requirement. Such person must be currently licensed to practice law in Colorado.
(c) Motion for Appointment. A request for the appointment of an Appointed Judge shall be made by a joint motion filed by all parties to a case and shall be signed as approved by the Appointed Judge. The original of such motion shall be filed with the Supreme Court with a copy filed in the originating court—the court of record in which the case was originally filed. Such motion shall include:
(1) The name of the Appointed Judge;
(2) The rate of compensation agreed to be paid to the Appointed Judge;
(3) The Appointed Judge’s agreement to be bound by Canon 9 of the Colorado Code of Judicial Conduct;
(4) (a) A realistic estimate of all compensation and expenses for the Appointed Judge, any needed personnel, rental of an appropriate facility outside the courthouse, if needed, in which to hold the proceedings, payment for any requested jury, and all other anticipated compensation and expenses, including travel, lodging and meals, and provisions assuring that all such compensation and expenses will be paid by the parties; and
(b) An agreement as to who is responsible for initial payment of the compensation and expenses of the action, and who is responsible for payment of the compensation and expenses upon final judgment;
(5) The agreement of the parties and the Appointed Judge that none of the compensation and expenses shall be paid by the state of Colorado;
(6) A copy signed by the Appointed Judge of the following oath: "I, (name of Appointed Judge), do solemnly swear or affirm by the ever living God, that I will support the Constitution of the United States and of the State of Colorado, and faithfully perform the duties of the office upon which I am about to enter."
(7) Any other matters the parties desire to be considered by the Chief Justice in exercising his or her discretion.
(8) A form order approving the appointment.
(9) The Chief Justice may approve or reject the order or, upon the agreement of all the parties and of the Appointed Judge, may change any of the provisions of the order.
(10) The parties shall file the Chief Justice’s ruling on the motion in the case file in the originating court.
(d) Duration of Appointment. The appointment shall last for so long as the parties specify in the motion and order of appointment. In the absence of such specification, the appointment shall last until entry of a final, appealable judgment, order or decree or, in dissolution actions, until the entry of Final Orders.
(e) Compensation and Expenses. Upon the appointment of an Appointed Judge by the Chief Justice, the parties shall forthwith deposit in an agreed escrow or trust account to be administered by the Appointed Judge or some other person acceptable to the parties and the Appointed Judge, sufficient funds to pay the estimated compensation and expenses of the case for the duration of the appointment. If, at any time, the Appointed Judge determines that the funds on deposit are insufficient to cover all further compensation and expenses, the Appointed Judge may order the parties promptly to deposit sufficient additional funds to cover such amount. Within a reasonable time after the conclusion of the appointed judge’s duties on the case, the parties shall file in the record of the case in the originating court a report of the total compensation paid for the Appointed Judge’s services and the total expenses paid by the parties in the case.
(f) Rules Applicable to Proceedings. Proceedings before an Appointed Judge shall be conducted pursuant to Rules applicable to the originating court. All filings shall be open records available for public review and inspection unless sealed upon motion and order, and all proceedings shall be open to the public in the same manner and pursuant to the same law applicable to the originating court.
(1) The original of each filing in all proceedings before an Appointed Judge shall be filed with the clerk of the originating court and a copy shall be provided to the Appointed Judge.
(2) The parties and the Appointed Judge shall comply with all applicable rules and Chief Justice Directives relating to reporting, filing and maintaining the record.
(3) The originals of any reporter’s notes or recording medium, along with any exhibits tendered, shall be filed with the clerk of the originating court pursuant to C.R.C.P. 80(d). The parties shall pay the costs of a court reporter or for any recording equipment that is acceptable to all parties.
(h) Location of Proceedings.
(1) Unless consented to by the parties and ordered by the Appointed Judge for good cause, the location of evidentiary proceedings and trial of a matter subject to this rule shall be pursuant to C.R.C.P. 98.
(2) The parties and the Appointed Judge shall arrange for an appropriate facility in which proceedings shall be held. If available, a room in the courthouse may be used for one or more proceedings in the case.
(3) Whenever proceedings are scheduled in advance, the Appointed Judge shall timely file a Notice of Hearing with the clerk of the originating court giving notice of the date, time, nature and location of the proceedings.
(4) Except when proceedings are taking place in a courthouse, the parties shall arrange for or assure that there is sufficient premises liability insurance to assure that any injury to a party, other participant or spectator at the proceedings is covered without expense to the state of Colorado. Such insurance shall name the state of Colorado as an additional insured.
(i) Jury Trials.
(1) The Colorado Uniform Jury Selection and Service Act applies to jury trials conducted pursuant to this rule.
(2) When a trial by jury has been properly demanded, before setting the case for trial the Appointed Judge shall coordinate the start of the trial with the jury commissioner and the district administrator for the originating court so that jurors are selected and voir dire is held in the courthouse to which the prospective jurors are summoned.
(3) If the trial is held outside the courthouse, the parties shall be responsible for offering transportation from the courthouse to the location of the trial for the duration of the trial. Such transportation shall be at no cost to the jurors or the state of Colorado. The parties shall arrange for or assure that there is sufficient liability insurance to assure that any injury to a juror related to such transportation is covered without expense to the state of Colorado. Such insurance shall name the state of Colorado as an additional insured.
(4) Not later than 3 days following the conclusion of their service as jurors, the parties shall pay the jurors at the statutory rate pursuant to the Colorado Uniform Jury Selection and Service Act. The parties also shall pay all related expenses such as meals for the jurors and the costs of a bailiff. Payments made pursuant to this section should not be made through the court.
(5) If the trial is held outside the courthouse, jurors shall be instructed to the effect that such fact does not affect their responsibility and the importance of their service.
(6) In the event the jury is cancelled, postponed or a jury is waived, the Appointed Judge shall notify the jury commissioner as soon as possible.
(j) Removal. An Appointed Judge shall preside over all matters throughout the duration of the appointment unless the Appointed Judge recuses, is removed pursuant to C.R.C.P. 97, dies or becomes incapacitated. In any such circumstance, the case proceedings shall immediately revert to the originating court.
(k) Immunity. An Appointed Judge shall have immunity in the same manner and to the same extent as any other judge in the state of Colorado.
Appendix to Chapter 24
Colorado Code of Judicial Conduct
(New) Canon 9. Appointed Judges
Under C.R.C.P. 122 and Section 13-3-111, C.R.S.
A. Certain retired or resigned state judges or justices may be eligible for appointment to perform judicial duties on a case-specific basis pursuant to court rule and statute, and subject to the Chief Justice’s discretion whether or not to appoint them. All of the parties to the case must consent to the appointment and pay all associated compensation and expenses. The appointed judges have the same authority as a full-time sitting judge, and the cases are subject to appeal. Hence, on the one hand, the appointed judge may handle only one or a few cases per year and be engaged in many other professional activities simultaneously; and, on the other hand, the appointed judge has the authority and mantle of the state judicial system for purposes of that case. Accordingly, the ethical considerations for appointed judges are different from those for other judicial officers, and this Canon 9 embodies the code of conduct applicable to appointed judges.
B. These provisions apply to the appointed judge for the period of the appointment, and in his or her capacity as appointed judge:
(1) The judge shall respect and comply with the law and conduct himself or herself in a manner that promotes public confidence in the integrity and impartiality of the judiciary. The judge should not be swayed by partisan interest, public clamor or fear of criticism.
(2) The judge should be faithful to the law applicable to the case before him or her, and maintain professional competence in it. The judge should maintain order and decorum in all proceedings. The judge should be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in his or her official capacity, and should require similar conduct of lawyers and of staff, and others subject to the judge’s direction and control.
(3) The judge should perform judicial duties without bias or prejudice. The judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to, bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status.
(4) The judge shall attempt, to the extent practicable, to make certain that lawyers in proceedings before the judge abide by their duties under the Colorado Rules of Professional Conduct, and in particular, refrain from manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation, or socioeconomic status, against parties, witnesses, counsel, or others. This section 4. does not preclude legitimate advocacy when race, gender, religion, national origin, disability, age, sexual orientation, socioeconomic status, or other similar factors are issues in the proceeding.
(5) The judge should disclose to parties seeking his or her appointment in a particular case all matters that might actually affect or be perceived to affect his or her impartiality as to that case such that the parties may make a fully informed choice. The judge shall decline the appointment in any case in which he or she believes there is a conflict of interest that would cause disqualification pursuant to C.R.C.P. 97.
(6) The judge shall not personally solicit funds for a political organization, act as a leader or hold any office in a political organization or make speeches for or publicly endorse a candidate for political office.
(7) The judge shall not use or disclose information acquired in the judge’s judicial capacity in financial dealings or for any other purpose not related to the judge’s judicial duties.
(8) The judge should abstain from public comment about a proceeding or impending proceeding coming before the judge.
(9) The judge may utilize the provisions of Canon 3(7) and (8) regarding electronic, photographic, and expanded media coverage.
Third Corrective Order to Rule Change 1998(10)
Colorado Rules of Civil Procedure.
Chapter 32. Rules Governing Admission to the Bar.
Rule 201.12. Reapplication for Admission
Amended and Adopted
Rule 201.12. Reapplication for Admission.
(1) [No Change]
(2) An applicant for readmission to the Bar after disbarment will be considered a Class B applicant under Rule 201.3(5) and shall satisfy all requirements of Rule 251.29(a).
Amended and Adopted by the Court, En Banc, March 21, 2005, nunc pro tunc June 25, 1998, effective July 1, 1998.
By the Court:
Nancy E. Rice
Colorado Supreme Court Justice
[Note: This is a corrected version and replaces item printed in May 2005 "Court Business" on page 129.]
Colorado Judicial Department
Colorado Supreme Court
Judicial Ethics Advisory Board Opinions
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.
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; email@example.com.
Colorado Supreme Court
Judicial Ethics Advisory Board (C.J.E.A.B.)
C.J.E.A.B. Advisory Opinion 2005-01
(Finalized and Effective March 31, 2005)
A judge’s spouse is an officer employed by a Fire Protection District. The spouse’s duties include investigating fires to determine if they have been set accidentally or intentionally. The Fire Protection District has entered an intergovernmental agreement with the local Sheriff’s Department. The local Sheriff’s Department provides training to the fire investigators so they can be certified as peace officers. In exchange, the fire investigators assist the Sheriff’s Department with arson investigations. The judge’s spouse is not compensated by the Sheriff’s Department and does not report to any Sheriff’s Department personnel. The judge presides over a mixed docket, including criminal cases. The judge intends to disqualify from any criminal case in which the judge’s spouse, or officers he or she supervises, performed investigation. Is the judge required to disqualify from other cases investigated and filed by the Sheriff’s Department?
A judge must disqualify in any case in which the judge’s spouse, or those he or she supervises, participated in the investigation of the case. Nothing in the Code of Judicial Conduct, however, requires a judge to disqualify from all cases involving a law enforcement agency for which the judge’s spouse occasionally performs arson investigations.
Applicable Canons from the Colorado Code of Judicial Conduct
• Canon 3C(1) generally requires a judge to "disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. . . ."
• Canon 3C(1)(d)(IV) specifically requires a judge to disqualify when the judge’s spouse is "likely to be a material witness in the proceeding."
• Canon 2A requires a judge to conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
• Canon 2B requires that a judge "not allow family, social or other relationships to influence the judge’s judicial conduct or judgment."
Canon 3C generally requires a judge to disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. Canon 3C also lists specific situations in which the judge must disqualify. As the requesting judge has already recognized, Canon 3C(1)(d)(IV) requires the judge to disqualify when the judge’s spouse participated in the investigation of a case before the judge. Similarly, the judge must disqualify when an investigator working under the direction of the judge’s spouse participated in the investigation of a case before the judge. No provision of the Code of Judicial Conduct, however, requires the judge to disqualify from all cases involving the law enforcement agency for which the judge’s spouse occasionally performs arson investigations.
The Board believes that the facts of the current request do not require an automatic disqualification from cases investigated by the local Sheriff’s Department. In reaching this conclusion, the Board has considered the court of appeals decision in Smith v. Beckman, 683 P.2d 1214 (Colo. App. 1984), which found that the marriage relationship between a judge and a deputy district attorney in the same county created an appearance of impropriety if the judge presided over cases prosecuted by the district attorney’s office, even when the spouse had no involvement with a case. The facts of the request before the Board are different because the spouse of the requesting judge is employed in a non-advocate role rather than as an attorney. Also the spouse is not employed by the local Sheriff’s department but rather works with the Sheriff’s Department under the terms of an intergovernmental agreement. There is no appearance of impropriety under these facts because the spouse’s employer is an entity separate from the Sheriff’s Department and because the spouse is not an advocate.
Resolution and Opinion
The judge should disqualify from any case in which the judge’s spouse or those he or she supervises have performed investigations. The judge should disclose the spouse’s employment in any case in which an employee of the Fire Protection District, who is not supervised by the judge’s spouse, is involved. In all other cases that involve the local Sheriff’s Department, the judge should make a case-by-case determination as to whether there are facts that would cause a reasonable person to question the judge’s impartiality. Under the specific facts of this request, the judge in not required to automatically disqualify from all cases that involve the local Sheriff’s Department.
FORMALLY FINALIZED AND EFFECTIVE this 31st day of March, 2005, by the Colorado Judicial Ethics Advisory Board.
Barbara Crowfoot (citizen member)
Hon. Martin Foster Egelhoff (judge member)
Daniel S. Hoffman, Esq. (attorney member)
Hon. Morris W. Sandstead, Jr. (judge member)
Hon. Pattie P. Swift (judge member/board chair)
Prof. Emeritus James E. Wallace (law professor member)
Hon. John R. Webb (judge member)
Eileen M. Kiernan-Johnson. Esq. (staff to the board)
U.S. District Court, District of Colorado
Mandatory Electronic Case Filing on Civil Cases
Effective June 1, 2005
Electronic case filing on civil cases in the U.S. District Court for the District of Colorado begins June 20, 2005. Use of the system will be mandatory. Attorneys should begin registering immediately. For more information, visit http://www.co.uscourts.gov/forms/cm_flyer.pdf.
© 2005 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=2005