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TCL > February 2009 Issue > Court Business

February 2009       Vol. 38, No. 2       Page  101
From the Courts
Court Business

Court Business

Visit the related court’s website for complete text of rule changes or proposed rule changes issued by the court. Each court’s website includes corresponding forms, which are not printed in Court Business, and versions with highlights of revisions (deletions and additions). Material printed in Court Business appears as submitted by the court and has not been edited by the staff of The Colorado Lawyer.


Colorado Court of Appeals

Interim Policy Regarding Electronic Records and Briefs Version 1.0
Effective March 1, 2009

This policy will govern references to electronic records in briefs subject to C.A.R. 28, submission of briefs subject to C.A.R. 28 in electronic form, and submission of electronic appendices.

A. Citation to Electronic Records

In all cases where the Court has received the record in electronic form, the clerk will prepare a CD-ROM containing the record bookmarked in a manner that delineates pleadings and orders from the transmitting court or agency and provide it to each party. Each page of the record on the CD-ROM will be numbered sequentially.

1. In all briefs in such cases, counsel for the parties and amici shall cite to the record by the name of the bookmarked document, and pinpoint citation to the unique CD-ROM page number. For example, Plaintiff’s Motion for Summary Judgment, CD page 7. This policy is not satisfied by a party’s citation to the LexisNexis transaction numbers pertaining to the record.

2. Pro se parties are encouraged, but not required, to comply with the citation requirement set forth in paragraph A (1) of this Policy.

B. Electronic Briefs

Counsel in all appeals shall file all briefs on the merits in electronic form. This policy applies to all counsel for parties and amici.

1. Counsel shall file all briefs on the merits in electronic form by submission of the brief on a CD-ROM delivered to the Clerk of the Court of Appeals accompanied by the signed original in paper form. The additional copies of the brief as set forth in C.A.R. 31(c) are no longer required.

2. Pro se parties are encouraged, but not required, to comply with the electronic filing requirement set forth in paragraph B (1) of this Policy.

3. All electronic filings must be free of viruses, worms, "Trojan horses," and any other defect that would be deleterious to the Court’s computer systems.

4. The electronic brief shall be submitted in text searchable Portable Document Format (PDF), that exactly duplicates the appearance of the paper original, including the order and pagination of all the brief’s components.

5. Hyperlinks in briefs to the authorities cited therein, to the record, if in electronic form, and to any electronic appendices, are not required, but are highly desirable and strongly encouraged. In order for the hyperlinks to function properly, the record (or the cited portions of the record) and authorities should be included on the same CD-ROM as the brief.

6. Counsel are reminded that pursuant to the Court of Appeals Policies on Public Record Access and The Use of Names of Children and Sexual Assault Victims, the following information must not be included in any brief filed with this Court: Social Security numbers, dates of birth, financial account numbers, home addresses, names of minor children, and names of sex assault victims.

7. Items filed under seal in the trial court or agency record shall not be included in the electronic brief.

8. Portions of briefs filed under seal shall be included as a separate PDF file on the CD-ROM, and shall be identified as "FILED UNDER SEAL," within the name of the file.

C. Electronic Appendix

Any party may submit, along with any electronic brief, an electronic appendix to the record containing copies, certified as authentic by the trial court or administrative agency, of any document already part of the trial court or agency record that does not appear in the electronic record. As an example, the appendix may contain a certified copy of any minute order or other paper record that does not appear in the electronic record.

D. Service of Briefs

Copies of all briefs filed with the Court pursuant to this policy shall continue to be served on all parties in accordance with the provisions of C.A.R. 25.

By the Court:

Janice B. Davidson,
Chief Judge, Colorado Court of Appeals


Colorado Judicial Department
Colorado Supreme Court
Judicial Ethics Advisory Board Opinions

Colorado Supreme Court
Judicial Ethics Advisory Board (C.J.E.A.B.)
C.J.E.A.B. Advisory Opinion 2008-06
(Finalized and Effective December 19, 2008)

ISSUE PRESENTED

The requesting district court judge seeks guidance on the question of whether his belonging to the Colorado District Judges’ Association creates an ethical problem. More specifically, he asks what problem, if any, arises if the Judges’ Association’s annual dues are used, in part, to pay a lobbyist? The Board understands that the purpose of the Judges’ Association is to advance the interests of Colorado judges with respect to working conditions, salary, methods of judicial selection and retention and other similar matters.

CONCLUSIONS

Colorado judges may be members of the Colorado District Judges’ Association and they may pay dues to the Association knowing that those dues will be used to hire a lobbyist to advance the member judges’ interests as judges. Further, judges may solicit membership dues from other judges over whom they do not have supervisory or appellate authority.

APPLICABLE CANONS OF THE CODE OF
JUDICIAL CONDUCT

Canon 4 encourages judges to participate in quasi-judicial activities to improve the law, the legal system, and the administration of justice, subject to the proper performance of judicial duties. Canon 4A allows a judge to appear before an executive or legislative body on matters concerning the law, the legal system, the administration of justice or the role of the judiciary as an independent branch. Canon 4C encourages a judge to serve as a member, officer, or director of an organization devoted to the improvement of the law, the legal system, the judicial branch or the administration of justice. Further, under Canon 4C, a judge may assist such an organization in its fund-raising efforts, but the judge may not personally solicit funds for such an organization.

Canon 7A(1)(c) instructs that, in general, a judge shall not solicit funds for or make a contribution to a political organization. Canon 7A(1)(d) specifies that a judge shall not engage in any other political activity except on behalf of measures to improve the law, the legal system, the administration of justice, or the role of the judiciary as an independent branch of government.

DISCUSSION

Canon 4 encourages judges to engage in quasi-judicial activities and to be involved in organizations devoted to the improvement of the law, the legal system, the judicial branch or the administration of justice. The District Judges’ Association, which exists to advance the interests of district court judges with respect to working conditions, salary, methods of selection and retention of judges and other similar issues, is such an organization. See CJEAB Ad. Op. No. 2006-07 (activities in support of or against an initiative concerning changing the tenure of appellate judges are activities that concern the legal system and the administration of justice); Tennessee Ad. Op. No. 99-7 (judges’ communications with legislators concerning appropriation of funds necessary to operate and finance the court system, including judicial salary increases, are matters that concern the administration of justice.); Alabama Judicial Inquiry Comm’n Op. 91-436 (issues concerning the compensation of judges and court personnel are matters that concern the administration of justice.). Thus, Colorado judges are not just permitted, but, in fact, are encouraged to be members of the Colorado District Judges’ Association.

The real question, as the requesting judge noted, however, is whether the fact that the Judges’ Association uses the judges’ dues to hire a lobbyist, and thus to engage in political activity, causes a judge’s membership in, and contribution to, the Judges’ Association to violate Canon 7. The Board considers our opinion 2006-07 dispositive of this question. There we determined it was ethically proper for a judge to make a monetary contribution to a non-partisan group advocating for or against passage of legislation that concerned the tenure of appellate judges. In that opinion we concluded that a judge was permitted to make such a donation under Canon 7A(1)(d)’s exception to the prohibition against political activity by judges because the political activity concerned the law, the legal system or the administration of justice. The only restriction on such contributions was that they could not be made to a partisan political organization. Similarly here, although the District Judges’ Association’s hiring of a "professional lobbyist"—defined in Art. XXIX of the Colorado Constitution as any individual engaged for pay or any consideration for lobbying—is political activity, it falls within Canon 7A(1)(d)’s exception to the prohibition against political activity by judges because the subject matter of the activity directly concerns the legal system and the administration of justice. Also, the District Judges’ Association clearly is a non-partisan organization. Therefore, a district judge may ethically be a member of and make dues contributions to the Colorado District Judges’ Association so the Association may hire a lobbyist to advocate on behalf of judges’ interests.

Finally, even though Canon 4C prohibits judges from personally soliciting funds for an organization such as the District Judges’ Association, this prohibition does not extend to district judges soliciting other district judges for such contributions. See Tennessee Ad. Op. No. 99-7; Texas Committee on Judicial Ethics Op. No. 201 (1996). Generally, judges may not personally solicit donations because of the concern that "the person solicited will feel obligated to respond favorably to the solicitor if the solicitor is in a position of influence or control." Commentary to Canon 4C(3)(b), 1990 Annotated ABA Model Code of Judicial Conduct. This concern is obviated when the solicitor is a judge on the same level court (or a lower level court) as the judge being solicited because such a judge has no supervisory or appellate authority over the solicitee judge. The 1990 ABA Model Code made this explicit in Canon 4C(3)(b)(i): " . . . a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority." Even though Colorado’s Code of Judicial Conduct does not explicitly allow such solicitations among judges on the same level court, the Board sees nothing in the Code that requires that such solicitations be prohibited. Therefore, Colorado district judges may solicit other Colorado district judges to pay membership dues to the Colorado District Judges’ Association.

FINALIZED AND EFFECTIVE by the Colorado Judicial Ethics Advisory Board this 19th day of December 2008.

The Hon. Dennis Graham (judge member)
The Hon. Christina Habas (judge member)
Prof. Melissa Hart (law professor member)
Daniel S. Hoffman, Esq. (attorney member)
The Hon. Morris W. Sandstead, Jr. (judge member)
The Hon. Pattie P. Swift (judge member/board chair)
Dottie Wham (citizen member)
Eileen M. Kiernan-Johnson, Esq. (staff to the board)
Daniel Cordova, Esq. (staff to the board)


Colorado Supreme Court
Judicial Ethics Advisory Board (C.J.E.A.B.)
C.J.E.A.B. Advisory Opinion 2008-07
(Finalized and Effective December 19, 2008)

ISSUE PRESENTED

The board has been asked whether, consistent with the Code of Judicial Conduct, a judge may approve a donation to a charitable organization in the context of a deferred sentence agreement. The requester notes that there is statutory authority allowing judges to approve such a donation in this context, but is concerned that if judges do so, they may fall afoul of Canons 2 and 5, which prohibit a judge from lending the prestige of his or her office to advance the private interests of others and from permitting the use of the prestige of the judge’s office for the purpose of soliciting funds for any educational, religious, charitable, fraternal, social, or civic organization. She asks whether the statutory authority in section 18-1.3-102(2), C.R.S., permits a judge to approve a deferred sentence agreement in which the defendant agrees to pay a sum certain to a designated charity. She further queries whether the answer would be different if the charitable donation is made to an organization from a list available to the defendant, or to a charity of the defendant’s choice. Alternatively, would it be permissible for the court to designate a charity, or to use a list from which it could choose a charity to designate?

CONCLUSION

A judge may approve a deferred-sentence agreement that requires a defendant to make a donation to a specific charity, as long as the charity specified in the agreement is neither chosen nor suggested by the court.

APPLICABLE CANONS OF THE CODE OF JUDICIAL CONDUCT

Canon 1 sets forth that a judge should uphold the integrity and independence of the judiciary.

Canon 2 provides that a judge should avoid impropriety and the appearance of impropriety in all of the judge’s activities. Canon 2B specifies that a judge should not lend the prestige of his or her office to advance the private interests of others, nor should a judge convey or permit others to convey the impression that they are in a special position to influence him or her.

Canon 5(B)(2) states that a judge shall not personally solicit funds for any educational, religious, charitable, fraternal, social, or civic organization, or use or permit the use of the prestige of the judge’s office for that purpose.

DISCUSSION

Section 18-1.3-102(2), C.R.S., allows a judge to approve a stipulation entered into by the district attorney and the defendant whereby the defendant pleads guilty, agrees to adhere to certain conditions and, if he or she complies with those conditions, the guilty plea is withdrawn and the case is dismissed. The statute provides that "the stipulation may require the defendant to perform community or charitable work service projects, or make donations thereto." It does not specify, however, who should decide to which organization the defendant would be required to provide service or donations.

As the requester points out, it would be problematic under Colorado’s Code of Judicial Conduct for a judge to select the recipient charity. If a judge were to choose which organization would benefit from the defendant’s time or money, then the judge might be seen as using the prestige of his or her office to advance the private interests of others, in violation of Canon 2. The judiciary also might be seen as an advocate or fundraiser for the special interest, in violation of Canon 5. Thus, we conclude that a judge cannot designate a particular charity to which the defendant must contribute. See Md. Ad. Ops. 2002-18, 1999-08, 1999-10; Ks. JE 108.

Because a court-maintained list of charities from which a defendant could choose might be seen as bearing the court’s imprimatur and would raise similar concerns under Canons 2 and 5, we further conclude that a court should not maintain such a list.

Nevertheless, we do conclude that it is permissible for a judge to approve a deferred-sentence agreement that requires a defendant to make a donation to a specific charity, as long as the charity specified in the agreement is neither chosen nor suggested by the court. By so doing, the court would neither be advancing the private interests of others nor engaging in what amounts to fundraising for the organization. Instead, the court would be advancing the public policies animating section 18-1.3-102(2), C.R.S., regarding rehabilitation of a certain category of defendants, and it would be doing so by merely acquiescing in the choice of either or both the DA and the defendant. See also Mich. Ad. Op. JI-64

We note that our conclusion here is limited to the deferred-sentencing context. There may be other circumstances in which judicial approval of such a contract term, in the absence of the express statutory authorization found here, might conflict with the Code of Judicial Conduct. This opinion is therefore not intended to extend a court’s authority to set conditions of probation. There is no statutory authority similar to section 18-1.3-102(2), C.R.S., in the probation context that allows a sentencing court to require a defendant to make a charitable contribution as a condition of probation. In addition, the probation context itself differs from the deferred-sentencing context in ways that may affect the analysis under the Code of Judicial Conduct and that fall outside the scope of this opinion.1

FINALIZED AND EFFECTIVE by the Colorado Judicial Ethics Advisory Board this 19th day of December 2008.

_______________

1. We recognize People v. Burleigh’s apparent approval of a judge ordering a charitable donation as part of a sentence to probation. 727 P.2d 873 (Colo.App. 1996). Burleigh, however, differed from the usual sentencing situation because the court there made specific findings that the donation the defendant was ordered to make was reasonably related to the defendant’s rehabilitation. Perhaps more importantly, Burleigh is inapposite here because it did not involve analysis under the Code of Judicial Conduct.

The Hon. Dennis Graham (judge member)
The Hon. Christina Habas (judge member)
Prof. Melissa Hart (law professor member)
Daniel S. Hoffman, Esq. (attorney member)
The Hon. Morris W. Sandstead, Jr. (judge member)
The Hon. Pattie P. Swift (judge member/board chair)
Dottie Wham (citizen member)
Eileen M. Kiernan-Johnson, Esq. (staff to the board)
Daniel Cordova, Esq. (staff to the board)


United States Bankruptcy Court for the District of Colorado

Notice
Draft Local Bankruptcy Rules and Appendix and
Draft Local Bankruptcy Forms
Released for Public Comment
Public Comments Due March 31, 2009

The bankruptcy judges for the U. S. Bankruptcy Court for the District of Colorado are pleased to release Draft Local Bankruptcy Rules and Appendix, and Draft Local Bankruptcy Forms for public comment. Precipitated by the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, and with the grateful assistance of a rules revision committee comprised of bankruptcy practitioners, more than three years of study have gone into the creation of these draft rules and forms. The draft rules and forms can be found on the Bankruptcy Court’s website at www.cob.uscourts/gov/draftrules.asp.

Pursuant to Fed.R.Civ.P 83, interested persons are encouraged to submit comments on these draft rules and forms to the court. Comments should be directed to the clerk via e-mail at: draft_rules_comments@cob.uscourts.gov. Comments also may be mailed or delivered to the Clerk, U. S. Bankruptcy Court, Attn. Draft Local Rules/Forms Comments, District of Colorado, 721 19th St., Denver, CO 80202. The last day to submit comments is March 31, 2009.

For the Court:

Howard R. Tallman, Chief Bankruptcy Judge
Bradford L. Bolton, Clerk

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