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TCL > September 2009 Issue > Court Business

The Colorado Lawyer
September 2009
Vol. 38, No. 9 [Page  137]

© 2009 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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From the Courts

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 Supreme Court Judicial Code Committee

Notice of Public Hearing and Request for Comments

Colorado Code of Judicial Conduct

Hearing to be held on Thursday, October 22, 2009, at 1:30 p.m.
Deadline for Comments: Thursday, October 1, 2009, 5:00 p.m.

The Colorado Supreme Court will conduct a hearing on a proposed new version of the Colorado Code of Judicial Conduct. The hearing will occur on Thursday, October 22, 2009, at 1:30 p.m., in the Colorado Supreme Court Courtroom, 2 E. 14th Ave., Denver, Colorado.

The Court also requests written public comments by any interested person on the proposed Code. An original and eight copies of the written comments should be submitted to Susan J. Festag, Clerk of the Supreme Court, 2 E.14th Ave., Denver, CO 80203, no later than 5:00 p.m. on Thursday, October 1, 2009. Persons wishing to participate at the hearing should notify Ms. Festag no later than Thursday, October 1, 2009. The Clerk will post written comments, as they are received, on the Colorado Supreme Court’s website.

The proposed new Code of Judicial Conduct is available on the Court’s website at www.courts.state.co.us/Courts/Supreme_Court/Rule_Changes.cfm. The proposed new Code is modeled on the ABA Model Code of Judicial Conduct, approved by the House of Delegates in 2007. A redlined version reflecting changes to and differences from the ABA Model Code is available on the Court’s website at www.courts.state.co.us/Courts/Supreme_Court/Committees/Committee.cfm/Committee_ID/31.

By the Court:

Michael L. Bender
Justice, Colorado Supreme Court


Colorado Judicial Department
Chief Justice of the Supreme Court Directives

Notice of Availability

Chief Justice Directives (CJDs) are available online at www.courts.state.co.us/Courts/Supreme_Court/Directives/Index.cfm. The website lists CJDs by date and allows users to search by topic. Hard copies of the CJDs are available for $.25 per page (approximately $125 for a full set) and may be obtained by contacting the Colorado Office of the State Court Administrator, 1301 Pennsylvania St., Ste. 300, Denver, CO 80203.

Publication in The Colorado Lawyer

CJDs will be published on a space-available basis in this "Court Business" section of The Colorado Lawyer. Attachments may be omitted for space reasons. To obtain a copy of attachments, contact: Court Services Division, Colorado Office of the State Court Administrator, 1301 Pennsylvania St., Ste. 300, Denver, CO 80203; or visit www.courts.state.co.us/Courts/Supreme_Court/Directives/Index.cfm.


CJD 04-04
Appointment of State-Funded Counsel in
Criminal and Juvenile Delinquency Cases
and for Contempt of Court

I. Statutory Authority

A. The federal and state constitutions provide that an accused person has the right to be represented by counsel in criminal prosecutions. This constitutional right has been interpreted to mean that counsel will be provided at state expense for indigent persons in all cases in which actual incarceration is a likely penalty, unless incarceration is specifically waived as a sentencing option pursuant to § 16-5-501, C.R.S., or Alabama v. Shelton, 535 U.S. 654 (2002), or there is a waiver of the right to counsel at the advisement.

B. State funds are appropriated to the Office of the Public Defender to provide for the representation of indigent persons in criminal and juvenile delinquency cases pursuant to § 21-1-103, C.R.S.

C. State funds are appropriated to the Office of Alternate Defense Counsel to provide for the representation of indigent persons in criminal and juvenile delinquency cases in which the Public Defender declares a conflict of interest pursuant to § 21-2-101, C.R.S.

D. Section 19-2-706(2), C.R.S., provides for the representation of juveniles in delinquency cases in which (1) the parent or legal guardian refuses to retain counsel for the juvenile, or (2) the court finds such representation is necessary to protect the interest of the juvenile or other parties involved in the case. When such an appointment is necessary and the juvenile does not qualify for representation by the Public Defender or the Office of Alternate Defense Counsel, the Judicial Department will pay for the costs of counsel and investigator services. However, reimbursement to the state may be ordered, as outlined in this directive.

E. Colorado Rules of Civil Procedure 107 and 407 provide for the appointment of counsel to an indigent person cited for contempt where a jail sentence is contemplated. If the court appoints private counsel to prosecute a contempt action or to represent an indigent party for contempt charges, the Judicial Department will pay for counsel, as there is no statutory authority for the Public Defender or the Alternate Defense Counsel to represent clients for the sole purpose of addressing contempt charges.

II. Indigency Determination

A. A defendant in a criminal case or a juvenile’s parent or legal guardian in a delinquency case must be indigent to be represented by the Public Defender or by Alternate Defense Counsel, in cases of Public Defender conflict, at state expense. Such person(s) must also be indigent or otherwise qualify for court-appointed counsel as described in Section III for the court to authorize the payment of certain costs/expenses. Any defendant in a criminal case, or the juvenile’s parent, guardian, or legal custodian in a delinquency case, requesting court-appointed representation on the basis of indigency must complete Form JDF208, Application for Public Defender, Court-Appointed Counsel or Guardian ad Litem, signed under oath.

B. An indigent person is one whose financial circumstances prevent the person from having equal access to the legal process (Attachments A, B, and C).

C. Pursuant to § 21-1-103 (3), C.R.S., the initial determination of indigency shall be made by the Public Defender subject to review by the court. Therefore, all persons seeking court-appointed representation shall complete form JDF208 and shall first apply with the Office of the Public Defender. The Public Defender will determine if the defendant, or a juvenile’s parent or legal guardian in a delinquency case, is eligible for representation in accordance with the fiscal standards.

D. In all cases, the court retains jurisdiction to determine whether the person is indigent based on all the information available. Upon receipt of the finding by the Public Defender on the issue of eligibility for representation in accordance with the fiscal standards, the court shall review the person’s application for Public Defender, including any requests for exception to the determination of the Public Defender. Based on a review of all information available, the court shall enter an order either granting or denying the person’s request for appointment of the public defender. The court may use the judicial district’s Collections Investigator(s) to provide a recommendation to the court relative to the above determinations, if additional analysis is needed.

E. If the court finds the person indigent and appoints the Public Defender, or in the case of a conflict, the Alternate Defense Counsel, the court may consider ordering the person to make reimbursement in whole or in part to the State of Colorado pursuant to law using the process described in Section V. of this CJD.

F. An attorney or other person appointed by the court on the basis of one or more party’s inability to pay the costs of the appointment shall provide timely notice to the court in the event financial related information is discovered that would reasonably call in to question the party’s inability to pay such costs.  The court shall have the discretion to reassess indigence, and for purposes of possible reimbursement to the state, the provisions of Section V. of this Chief Justice Directive shall apply.  Based upon a reassessment of a party’s financial circumstances, the court may terminate a state-paid appointment, require reimbursement to the State of Colorado of all or part of the costs incurred or to be incurred, or continue the appointment in its current pay status.

III. Guidelines for Appointment of Counsel

A. Appointment of Public Defender

1. Appointments on the Basis of Indigency: To be eligible for representation by the Public Defender (PD), a defendant, or a juvenile’s parent or legal guardian in a delinquency case, must be indigent, as defined above and determined by the PD, subject to review by the court. If such person is indigent, the court shall appoint the PD, except as otherwise provided in paragraph III.B.

2. Appointments To Assist in Motions Under Rule 35 of the Colorado Rules of Criminal Procedure: An indigent defendant may be entitled to representation by the PD to assist in motions under Rule 35 if the court does not deny the motion under Crim. P. 35(c)(3)(IV). If another attorney represents the defendant and withdraws, the PD may be appointed if the defendant is indigent and there is no conflict with such representation.

3. Appointments for Appeals:

a) The court or the PD shall reassess the indigency status of a defendant who requests court-appointed counsel, as described in Section II.A., for purposes of appeal.

b) When an indigent person has an Alternate Defense Counsel attorney for the trial of a criminal or delinquency case, the PD shall be appointed to represent the defendant on appeal unless the court determines that the PD has a conflict of interest.

B. Appointment of Alternate Defense Counsel

The Office of Alternate Defense Counsel (OADC) shall maintain a list of qualified attorneys for use by the courts in making appointments. Upon appointment of an Alternate Defense Counsel attorney, the clerk shall notify the OADC’s designee. No more than one attorney may be appointed as counsel for an indigent person except in specific exceptional circumstances. Accordingly, upon specific written request by counsel for appointment of an additional attorney to assist in the defense of an indigent person, the OADC may approve appointment of an additional attorney for good cause shown. Such requests should be made in writing and directed to the OADC. Alternate Defense Counsel shall be appointed under the following circumstances:

1. Conflict-of-Interest Appointments: The PD shall file a motion or otherwise notify the court to withdraw in all cases in which a conflict of interest exists. The court shall appoint an Alternate Defense Counsel attorney to represent indigent persons in cases in which the court determines that the PD has a conflict of interest and removes the PD from the case. The OADC is responsible by statute to handle all PD conflict cases. Therefore, the OADC shall establish policies and procedures to cover instances when Alternate Defense Counsel has a conflict.

2. Appointments To Assist in Motions Under Rule 35 of the Colorado Rules of Criminal Procedure: An indigent defendant may be entitled to conflict-free counsel to assist in motions under Rule 35 if the court does not deny the motion under Crim. P. 35(c)(3)(IV) and if the PD notifies the court that a conflict of interest exists. The provisions of III.B.1. above shall be followed in appointing an Alternate Defense Counsel attorney.

4. Appointments for Appeals: If the court determines that the PD has a conflict of interest, it shall set forth in a written order the reason for the conflict of interest and the court shall appoint an Alternate Defense Counsel attorney to represent the defendant.

C. Appointment of Other Counsel

The Clerk of Court or the District Administrator shall maintain a list of qualified private attorneys from which appointments shall be made under this section. Private counsel appointed under the following circumstances will be paid by the Judicial Department as established in this directive:

1. Exceptional Circumstances: Counsel in Juvenile Delinquency Cases if Parties are Not Indigent: Under normal circumstances, the parents/legal guardians of juveniles are expected to retain and pay for their own private counsel. Upon any request that the State of Colorado/Judicial Department pay counsel fees and costs, the initial determination shall be whether the party(ies) are indigent, and if so, the Public Defender or ADC shall be appointed, as described above. If the juvenile and parents/guardians are not indigent, the court may appoint counsel in a juvenile delinquency case with consideration for the following:

a. Counsel may be appointed if the court deems representation by counsel is necessary to protect the interests of the juvenile or of other parties or if the parent or guardian refuses to retain counsel, pursuant to § 19-2-706(2), C.R.S.

b. If such appointment is made by the court and the juvenile and parents/guardians are not indigent (and therefore not eligible for representation by the Public Defender or ADC), the court shall order the parent or guardian to reimburse the court for the costs of counsel and if applicable, investigator appointment.

c. The court may waive the requirement that the parent/guardian reimburse the costs of representation if the court finds good cause for the refusal to retain counsel, such as when a family member is alleged to be the victim of the juvenile’s actions.

2. Appointments of Advisory Counsel: There is no constitutional right to the appointment of advisory counsel to assist a pro se defendant. However, pursuant to case law, the court may appoint private advisory counsel either 1) at the request of an indigent pro se defendant, or 2) over the objections of an indigent pro se defendant to ensure orderly proceedings and to provide assistance to the defendant. If the court appoints private advisory counsel for an indigent pro se defendant in a criminal case, the Judicial Department will pay for counsel, as there is no statutory authority for the Public Defender or the Alternate Defense Counsel to advise pro se defendants.

3. Appointments of Contempt Counsel: Private counsel may be appointed as a special prosecutor or as counsel for an indigent person facing contempt charges when punitive sanctions may be imposed, in accordance with Rule 107(d) and 407(d) of the Colorado Rules of Civil Procedure. Costs and reasonable attorney’s fees in connection with the contempt proceeding may be assessed at the discretion of the court.

4. Appointments of Counsel for Grand Jury Witnesses: A witness subpoenaed to appear and testify before a grand jury is entitled to assistance of counsel pursuant to § 16-5-204, C.R.S. For any person financially unable to obtain adequate assistance, counsel may be appointed at state expense. Pursuant to case law, no attorney who provides counsel in the grand jury room may represent more than one witness in a single investigation without grand jury permission. If the court appoints counsel for an indigent witness before a grand jury, the Judicial Department will pay for counsel, as there is no statutory authority for the Public Defender or the Alternate Defense Counsel to represent grand jury witnesses.

4. Appointments of Counsel for Witnesses: An indigent witness subpoenaed to appear and testify in a court hearing may be appointed counsel if the witness requests counsel and the judge determines the appointment of counsel is necessary to assist the witness in asserting his or her privilege against self-incrimination. If the court appoints counsel for an indigent witness for this purpose, the Judicial Department will pay for counsel, as there is no statutory authority for the Public Defender or the Alternate Defense Counsel to represent a witness.

IV. Guidelines for Payment

A. Public Defender Costs

The Public Defender’s Office has attorneys on staff (Deputy Public Defenders) to accept appointments. Court costs and other expenses incurred by the Public Defender shall be billed to the Public Defender’s Office in accordance with that office’s policies and procedures.

B. Office of Alternate Defense Counsel Costs

Claims for payment of counsel and investigator fees and expenses shall be filed with the OADC. A schedule of maximum hourly rates and maximum total fees for OADC state-funded counsel and investigators is shown in Attachment D (1). Court costs incurred by Alternate Defense Counsel attorneys and investigators shall be billed to the OADC in accordance with that office’s policies and procedures.

C. Other Court-Appointee’s Costs

The fees and costs associated with appointments described under section III.C. shall be paid by the Judicial Department as follows:

1. Fees and Expenses: Appointments may be made by the courts on an non-contract hourly fee basis or contract basis as set forth by the State Court Administrator’s Office. A schedule of maximum hourly rates and maximum total fees for state-funded counsel and investigators is shown in Attachment D (2). Upon appointment of counsel or other appointee, court staff shall enter the appointment in the ICON/Eclipse computer system and complete the appointment on the CAC system for payment and tracking purposes. Claims for payment on hourly appointments shall be entered in the Department’s web-based payment system (CACS); or, if the Financial Services Division of the State Court Administrator’s Office has granted the appointee an exception to the requirement to invoice using CACS, claims for payment shall be filed with the District Administrator in the respective judicial district on the Request and Authorization for Payment of Fees (form JDF207). Claims for payment on flat-fee, contract appointments shall be entered in the Department’s web-based payment system (CACS); or, if the Financial Services Division of the State Court Administrator’s Office has granted the appointee an exception to the requirement to invoice using CACS, such claims for payment shall be filed with the State Court Administrator’s Office using the process and format required by that office. All requests for hourly payment must be in compliance with Guidelines for Payment of Court-Appointed Counsel and Investigators Paid by the Judicial Department for Itemized Fees and Expenses on an Hourly Basis (Attachment E) and shall follow the Court-Appointed Counsel and Investigators Procedures for Payment of Fees and Expenses (Attachment F). All hourly payment requests shall be reviewed by the District Administrator or his/her designee to ensure that all charges are appropriate and in compliance with this directive and applicable fiscal policies and procedures, before authorizing the request. The Office of the State Court Administrator may review, verify, and revise, when appropriate, authorizations for payment. All incomplete or erroneous claims will be returned to the attorney or investigator with an explanation concerning the issue(s) identified.

2. Court Costs, Expert Witness Fees, and Related Expenses: Costs incurred by counsel shall be pre-approved, billed to and paid by the appointing court. Court costs include such items as: expert and standard witness fees and expenses, service of process, language interpreter fees, mental health examinations, transcripts, and discovery costs. Payment of all court costs shall be in accordance with applicable statutes, Chief Justice Directives, and other policies and procedures of the Judicial Department, including the Mandated Costs chapter of the Judicial Department’s Fiscal Policies and Procedures manual. Out-of-state investigation travel expenses incurred by the appointee must be accompanied by appropriate travel receipts.

3. Investigator Appointments: If a court appointed attorney paid by the Judicial Department requires the services of an investigator, he or she shall submit a motion to the court requesting authority to hire an investigator. The court shall authorize such appointments as the judge or magistrate deems necessary, and shall issue an order authorizing the amount of investigator fees and expenses that may be incurred, not to exceed the maximum fees set forth in Attachment D (2). The Judicial Department shall pay for investigator services under these circumstances.

4. Online Appointee Billing: Appointees shall invoice the Judicial Department using the Department’s web-based system (CACS) according to the policies and procedures set forth by the State Court Administrator’s Office. An appointee may request an exception to this requirement by contacting the Financial Services Division at the State Court Administrator’s Office. In the request, the appointee shall describe the extenuating circumstances preventing the use of CACS for invoicing. The Director of Financial Services or his/her designee shall review such requests and shall have final decision authority concerning the granting or denial of the request. Failure of an appointee to learn or avail him/herself of training on the use of CACS is not sufficient cause to warrant an exception.

5. To maintain the security and integrity of CACS, appointees shall immediately notify the Director of Financial Services, or his/her designee, in writing, of any changes in appointee’s staffing or practice that may require cancellation or other changes in the CACS login authority or credentials of appointee or appointee’s staff.

6. Failure of appointee to appropriately use CACS shall be sufficient grounds for denial of payment and may result in removal from consideration for future appointments.

D. Court Costs, Expert Witness Fees and Investigator Fees of an Indigent Party who is Not Appointed Counsel

In certain circumstances, a defendant’s court costs, expert witness fees, and/or investigator fees may be paid by the Judicial Department even though the defendant is not being represented by state-funded counsel (i.e., Public Defender; Alternate Defense Counsel; Judicial-paid counsel). Payment by the local court is appropriate if any of the following statements apply:

a) The defendant is indigent and proceeding pro se;

b) The defendant is indigent and receiving pro bono, private counsel;

c) The defendant is receiving private counsel but becomes indigent during the course of the case, and the court has determined that the defendant lacks sufficient funds to pay for court costs, and that it would be too disruptive to the proceedings to assign the Public Defender or Alternate Defense Counsel to the case.

Court costs include such items as: expert and standard witness fees and expenses, service of process, language interpreter fees, mental health examinations, transcripts, and discovery costs. An investigator appointed by the court under this section shall be paid in accordance with the rates and maximum fees established in Attachment D (2). A motion requesting authorization to hire an investigator, to pay court costs, or for expert witness fees shall be submitted to the court. The Court shall authorize such appointments or payments as the judge or magistrate deems necessary, and shall issue an order authorizing the amount of the costs, fees and expenses that may be incurred under this section. For maximum rates for payment of expert witnesses, see CJD 87-01, as amended.

E. In instances in which fees for activity such as travel time, waiting time, and mileage expenses were incurred simultaneously for more than one court appointment, appointees shall apportion the fees or expenses across cases, as applicable. (For example, traveling to court would be billed 50% on the client A appointment and 50% on the client B appointment if the appointee made one trip to cover both clients’ hearings.).

V. Reimbursement to the State

If the court determines, at any time before, during the course of the appointment (at the court’s discretion if questions concerning indigence arise), or after the appointment of state-funded counsel, that the person has the ability to pay all or a part of the expenses for representation including related, ancillary costs, the court shall enter a written order that the person reimburse all or a part of said expenses and inform the responsible party of this obligation. Such order shall constitute a final judgment including costs of collection, and may be collected by the state in any manner authorized by law. The court’s financial review concerning ability to pay counsel fees and costs may be accomplished with the use of the judicial district’s Collections Investigator. If the defendant is placed on probation, the court may require payment for the costs of representation as one of the conditions of probation.

If the court appoints counsel for a juvenile in a delinquency case because of the refusal of a non-indigent parent, guardian, or other legal custodian to retain counsel for the juvenile, the court shall order the responsible party(ies) (unless the county department of social services or the Department of Human Services is the responsible party) to reimburse the state for the costs of counsel unless the court finds there is good cause for the refusal to retain counsel pursuant to § 19-2-706(2)(b), C.R.S.

Collection of fees and costs related to court-appointed representation may be referred to the Collections Investigator or a private collector that has an agreement for such collection services with the State Court Administrator’s Office.

Costs for representation provided may be assessed against the responsible party(ies) at the fixed hourly rate for state-funded private counsel, at the state-funded counsel flat fee rate, or at the hourly cost of providing legal representation by the Public Defender or Alternate Defense Counsel for the number of hours reported by counsel to the court. Other costs incurred for the purposes of prosecution of the case may also be assessed, including, for example, costs for transcripts, witness fees and expenses, language interpreter fees, and costs for service of process. In addition, the responsible party(ies) may be required to pay costs of collection. Costs incurred for accommodations required under the Americans with Disabilities Act, such as hearing interpreter fees, may not be assessed.

VI. Complaints

A. All written complaints and documentation of verbal complaints regarding the performance of any state-paid counsel shall be submitted to the District Administrator.

B. All complaints shall be referred by the District Administrator to the appropriate agency or person. Public Defender complaints shall be submitted to the Public Defender’s Office. Complaints against an Alternate Defense Counsel attorney shall be submitted to the Alternate Defense Counsel Office. The District Administrator will forward all other complaints to the presiding judge or, if appropriate, the Chief Judge of the district unless a conflict exists due to the judge’s involvement in a pending case. If a conflict exists, the District Administrator will forward the complaint to another judge designated for that purpose.

C. If the complaint involves an attorney and the reviewing judge or District Administrator determines that the person may have violated the Colorado Rules of Professional Conduct, the information shall be filed with the Colorado Supreme Court Office of Attorney Regulation Counsel. The Regulation Counsel shall advise the reporting judge or District Administrator and the State Court Administrator of the final outcome of the investigation.

D. Copies of all written complaints and documentation of verbal complaints regarding state-paid counsel shall be forwarded by the District Administrator to the State Court Administrator’s Office. The State Court Administrator may investigate a complaint and take action he/she believes is necessary to resolve any concerns or issues raised by the complaint. Such action may include, but is not limited to, terminating the contract with the attorney.

VII. Sanctions

A. All contracts with the Judicial Department for appointments addressed in this Chief Justice Directive shall include a provision requiring compliance with this Chief Justice Directive. Failure to comply with this Directive may result in termination of the contract and/or removal from the appointment list.

B. Judges and Magistrates shall notify appointees that acceptance of the appointment requires compliance with this Directive, and that failure to comply may result in termination of the current appointment and/or removal from the appointment list.

CJD 04-04 is amended and adopted effective July 1, 2009.

Done at Denver, Colorado this 24th day of June 2009.

By the Court:

Mary J. Mullarkey
Chief Justice, Colorado Supreme Court


CJD 04-05
Appointment and Payment Procedures for Court Appointed Counsel
Pursuant to Titles 12, 13, 14, 15, 19 (Dependency and Neglect Only),
22, 25, 27, and Guardians ad Litem, Child and Family Investigators and
Court Visitors Paid by the State Court Administrator’s Office

The following policy is adopted to assist the administration of justice through

  • the appointment of counsel for children and adults under Titles 12, 13, 15, 19 (dependency and neglect only), 22, 25, and 27;
  • the appointment and training of guardians ad Litem and court visitors appointed on behalf of wards or impaired adults in all cases;
  • the appointment of non-attorney child and family investigators in the best interest of children pursuant to § 14-10-116.5, C.R.S.

This policy does not cover appointments made pursuant to Titles 16 and 18, nor appointments of counsel in juvenile delinquency matters pursuant to Title 19, nor appointments of guardians ad litem for minors, attorney child and family investigators and child’s legal representatives (Office of the Child’s Representative (OCR) appointments). For information concerning criminal and juvenile delinquency appointments refer to Chief Justice Directive 04-04, and for state paid attorneys appointed in the best interest of children and paid by the OCR, refer to Chief Justice Directive 04-06.

I. Statutory Authority

A. The federal and state constitutions and various Colorado statutes provide authority for the appointment of counsel, guardians ad litem (GAL), child and family investigators, and court visitors in certain legal actions.

B. State funds are appropriated to the Judicial Department to provide for representation in dependency and neglect cases and in certain other cases in which the party represented, or the party’s parent or legal guardian, is determined to be indigent.

II. Eligibility Determination

A. The person for whom representation is requested or, in the case of children, the responsible party, must be indigent to qualify for court-appointed representation at state expense pursuant to Titles 14, 22, 25, and 27 and for representation of respondents in a dependency and neglect action under Title 19. Such person(s) must also be indigent for the court to authorize payment of certain costs and expenses.

B. An indigent person is one whose financial circumstances fall within the fiscal standards set forth in Attachment A.

C. All persons requesting court-appointed representation to be paid by the state on the basis of indigency must complete, or have completed on their behalf, application form JDF208 ("Application for Public Defender, Court-Appointed Counsel or Guardian ad litem") signed under oath, before an appointment of counsel at state expense may be considered. Form JDF208 must be completed for the appointment of counsel at state expense in all cases except mental health cases under Title 27, guardianship and protective proceeding cases under Title 15 in which the respondent refuses to or is unable to supply the necessary information, cases in which a minor is requesting counsel for judicial bypass proceedings pursuant to § 12-37.5-107(2)(b), C.R.S. Pursuant to § 13-90-208, C.R.S. a person who is deaf or hard of hearing may have access to counsel for advice on whether to execute a waiver of state funded interpreter services.

D. For appointments under Title 15 and some appointments under Title 25 where the court believes that the person needs the assistance of counsel and is unable to obtain counsel, the person for whom representation is requested or, in the case of children, the responsible party, need not be indigent to qualify for court-appointed representation at state expense.

E. If, in the best interests of justice, a tentative appointment of legal counsel or a guardian ad litem for the party is necessary, such appointment may be made pending a final decision regarding indigency. If a review of a person’s application shows that the person is not indigent and the person is not qualified to have court-appointed representation at state expense, the court may order the person to reimburse the state for any justifiable fees and expenses as a result of representation provided from a tentative appointment of legal counsel or a guardian ad litem.

F. An attorney or other person appointed by the court on the basis of one or more party’s inability to pay the costs of the appointment shall provide timely notice to the court in the event financial related information is discovered that would reasonably call in to question the party’s inability to pay such costs. The court shall have the discretion to reassess indigence, and for purposes of possible reimbursement to the state, the provisions of Section V. of this Chief Justice Directive shall apply. Based upon a reassessment of a party’s financial circumstances, the court may terminate a state-paid appointment, require reimbursement to the State of Colorado of all or part of the costs incurred or to be incurred, or continue the appointment in its current pay status.

III. Guidelines for Appointment of Counsel, GAL (for Adults), Non-Attorney Child and Family Investigators and Court Visitors:

The Clerk of Court or the District Administrator shall maintain a list of qualified persons from which appointments will be made under this section. The order of appointment shall specify the:

1. Authority under which the appointment is made;

2. Reason(s) for the appointment;

3. Scope of the duties to be performed; and

4. Terms and method of compensation (including indigency status).

See Attachments B (form JDF209), and C (form JDF210).

A. Appointments of Counsel

Appointments may be made under flat fee or hourly contracts developed by the Judicial Department, or if necessary to meet the jurisdiction’s needs, on a non-contract hourly fee basis. Any attorney not under contract with the Department who requests appointments must submit to the Chief Judge a request with an affidavit of qualifications for such appointments. The Chief Judge, in his or her discretion, may approve additions to the list of non-contract attorneys at any time. An attorney not under contract with the Judicial Department must submit an updated affidavit every three years to ensure that he or she is maintaining his or her qualifications for such appointments. The judge or magistrate shall consider the number of an attorney’s active cases, the qualifications of the attorney, and the needs of the party to be represented when making appointments.

1. Appointment of Counsel for Respondent in Dependency and Neglect Proceedings: Counsel shall be appointed for an indigent parent or guardian in dependency and neglect proceedings as provided under Title 19, as amended. If the court determines that due process calls for the appointment of counsel for indigent parents in stepparent adoption proceedings, the court shall make findings of fact in the order of appointment. In re C.A.O. for adoption of G.M.R, 192 P.3d 508 (Colo. App. 2008).

2. Appointment of Counsel for Involuntary or Emergency Alcohol/Drug Commitment Proceedings: Counsel appointments to provide legal representation to eligible persons shall be in accordance with the provisions under Title 25, Article 1, as amended.

3. Appointment of Counsel for Care and Treatment of Mentally Ill: Counsel appointments to provide legal representation to eligible persons shall be in accordance with the provisions under Title 27, Article 10, as amended.

4. Appointment of Counsel for Probate, Trusts, and Fiduciaries: Counsel appointments to provide legal representation to eligible persons shall be in accordance with provisions under Title 15, Article 14, as amended.

5. Appointment of Counsel for a Juvenile:

a. Counsel may be appointed for a child in a truancy matter under Title 22 if adjudication is previously entered and the child is served with a contempt citation or if the court deems representation by counsel necessary to protect the interests of the child or other parties. Parties requesting counsel must complete form JDF208 and a finding of indigence is required for the appointment of counsel at state expense. If the party is not qualified to have court-appointed representation at state expense, the court may order the responsible party(ies) to reimburse the state for any justifiable fees and expenses as a result of representation provided from a tentative appointment of legal counsel.

b. Counsel may be appointed for a minor under the judicial bypass provisions of the Colorado Parental Notification Act pursuant to § 12-37.5-107(2)(b), C.R.S. and Chapter 23.5 of the Colorado Rules of Civil Procedure ("Rules of Procedure for Judicial Bypass of Parental Notification Requirements").

6. Appointment of Counsel for Appeals: The trial court shall determine the need and statutory requirement for appointment of counsel on appeal. The court shall be under no obligation to appoint counsel in appeals where the sole issue for determination is the individual allocation of parental responsibilities between and among two parents. Where applicable, determinations of indigency should be in accordance with the procedure described in section II. The maximum total fee allowable on an appeal shall be in accordance with the maximum fees outlined in section IV. D. Requests for payment shall be filed on Form JDF207 (Colorado Judicial Department Request and Authorization For Payment of Fees) with the appellate court and must contain a copy of the order appointing counsel to represent the indigent person on appeal. An appellate court judge, or designee, shall carefully review all requests for payment submitted to the court for approval.

7. Appointment of Counsel for a Person who is Deaf or Hard of Hearing: Pursuant to § 13-90-208, C.R.S., the right of a person who is deaf or hard of hearing to a qualified interpreter or auxiliary service may not be waived except in writing by the person who is deaf or hard of hearing. Prior to executing such a waiver, a person who is deaf or hard of hearing may have access to counsel for advice.

B. Appointments of Guardians ad litem (for Adults), Non-Attorney Child and Family Investigators and Court Visitors.

The court may appoint a qualified person other than an attorney as a child and family investigator or court visitor when the appointment of an attorney is not mandated by statute. The court shall maintain a list of qualified persons to accept appointments as Guardians ad litem, court visitors and non-attorney child and family investigators from which the court will make appointments.

1. Appointment of GAL in Dependency and Neglect Case: A guardian ad litem may be appointed for a parent or guardian in dependency and neglect proceedings who has been determined to be mentally ill or developmentally disabled, unless a conservator has been appointed, pursuant to Title 19.

2. Appointment of GAL in Trusts or Estates: In formal proceedings involving trusts or estates of decedents, protected persons, and in judicially supervised settlements pursuant to Title 15, a guardian ad litem may be appointed for an incapacitated person, unascertained person, or a person whose identity or address is unknown, if the court determines that a need for such representation exists.

3. Appointment of GAL in a Civil Suit: A guardian ad litem may be appointed for an incompetent person who does not have a representative and who is a party to a civil suit.

4. Appointment of GAL for Emergency or Involuntary Commitment of Alcoholics or Drug Abusers: Upon the filing of a petition for involuntary commitment of alcoholics or drug abusers, a guardian ad litem may be appointed for the person if the court deems the person’s presence in court may be injurious to him or her pursuant to Title 25.

5. Appointment of Non-Attorney Child and Family Investigator: A non-attorney child and family investigator may be appointed in a domestic relations case pursuant to § 14-10-116.5, C.R.S. For appointment of an attorney child and family investigator, see applicable guidelines implemented through the Office of the Child’s Representative. Pursuant to § 14-10-116.5(b), C.R.S., in cases where the appointment is made prior to the entry of a decree of dissolution or legal separation, the court shall consider the combined income and assets of both parties for purposes of determining indigence and whether the state shall bear the costs, fees, or disbursements related to the appointment of a child and family investigator. The court shall enter an order for costs, fees, and disbursements against any or all of the parties and, as provided in § 14-10-116.5(c), C.R.S., shall make every reasonable effort to apportion costs between the parties in a manner that will minimize the costs, fees, and disbursements that shall be borne by the state. When a responsible party is indigent, the state will pay the non-attorney child and family investigator at the rates established in section IV.C. and IV.D. for the portion of authorized fees and expenses for which the indigent party is responsible.

6. Appointment of Court Visitor: A court visitor shall be appointed for a respondent pursuant to Title 15.

IV. Guidelines for Payment of Counsel, Guardians ad Litem, Non-Attorney Child and Family Investigators, and Court Visitors

A.  The fees and costs associated with appointments described under this directive shall be paid by the Judicial Department as follows:

1. Fees and Expenses: Appointments may be made under contracts developed by the Judicial Department or on a non-contract hourly fee basis. Upon appointment of counsel or other appointee, court staff shall enter the appointment in the ICON/Eclipse computer system and complete the appointment on the CAC system for payment and tracking purposes. Claims for payment on hourly appointments shall be entered in the Department’s web-based payment system (CACS); or, if the Financial Services Division of the State Court Administrator’s Office has granted the appointee an exception to the requirement to invoice using CACS, claims for payment shall be filed with the District Administrator in the respective judicial district on the Request and Authorization for Payment of Fees (form JDF207). Claims for payment on flat-fee, contract appointments shall be entered in the Department’s web-based payment system (CACS); or, if the Financial Services Division of the State Court Administrator’s Office has granted the appointee an exception to the requirement to invoice using CACS, such claims for payment shall be filed with the State Court Administrator’s Office using the process and format required by that office. All requests for hourly payment must be in compliance with Guidelines for Payment of Court-Appointed Counsel, Guardians ad litem, Non-Attorney Child and Family Investigators and Court Visitors Paid by the Judicial Department for Itemized Fees and Expenses on an Hourly Basis (Attachment D) and shall follow the Court Appointees and Investigators Procedures for Payment of Fees and Expenses (Attachment E). All hourly payment requests shall be reviewed by the District Administrator or his/her designee to ensure that all charges are appropriate and in compliance with this directive and applicable fiscal policies and procedures, before authorizing the request. The Office of the State Court Administrator may review, verify, and revise, when appropriate, authorizations for payment. All incomplete or erroneous claims will be returned to the attorney or other appointee with an explanation concerning the issue(s) identified.

2. Court Costs, Expert Witness Fees, and Related Expenses: Costs incurred by counsel shall be pre-approved and paid by the appointing court. Court costs include such items as: expert and standard witness fees and expenses, service of process, language interpreter fees, mental health examinations, transcripts, and discovery costs. Payment of all court costs shall be in accordance with applicable statutes, Chief Justice Directives/Orders, and other policies and procedures of the Judicial Department, including the Mandated Costs chapter of the Judicial Department’s Fiscal Policies and Procedures manual. A motion requesting authorization to hire an investigator, to pay court costs, or for expert witness fees shall be submitted to the court. The court shall authorize such appointments or payments as the judge or magistrate deems necessary, and shall issue an order authorizing the amount of the costs, fees and expenses that may be incurred under this section. For maximum rates for payment of expert witnesses, see CJD 87-01, as amended.

3. Online Appointee Billing: Appointees shall invoice the Judicial Department using the Department’s web-based system (CACS) according to the policies and procedures set forth by the State Court Administrator’s Office. An appointee may request an exception to this requirement by contacting the Financial Services Division at the State Court Administrator’s Office. In the request, the appointee shall describe the extenuating circumstances preventing the use of CACS for invoicing. The Director of Financial Services or his/her designee shall review such requests and shall have final decision authority concerning the granting or denial of the request. Failure of an appointee to learn or avail him/herself of training on the use of CACS is not sufficient cause to warrant an exception.

4. To maintain the security and integrity of CACS, appointees shall immediately notify the Director of Financial Services, or his/her designee, in writing, of any changes in appointee’s staffing or practice that may require cancellation or other changes in appointee’s or appointee’s staff’s CACS login authority and credentials.

4. Failure of appointee to appropriately use CACS shall be sufficient grounds for denial of payment and may result in removal from consideration for future appointments.

B. A flat fee contract system is available to the Judicial Districts to use in appointing and compensating attorneys for certain appointment types. The Department contracts with individual attorneys for this purpose on a state fiscal-year basis (July 1 through June 30) at rates established by the Department. Claims for payment by attorneys for appointments made under flat fee contracts shall be submitted by appointees in compliance with the procedures specified in the contract and set forth by the State Court Administrator’s Office. Claims for payment not covered by flat fee contracts with the Department shall be submitted in accordance with the procedures described in this Section IV and Attachment E. Judicial districts shall make every effort to appoint flat fee contractors on the appointment list if that compensation method is selected by the district.

C. The following maximum hourly rates are established for any hourly invoicing: (No payment shall be authorized for hourly rates that exceed the "maximum hourly rates".)

MAXIMUM HOURLY RATES

In court & Out of court

Court-appointed Counsel and
Guardian ad litem 
$57.00 per hour (07/01/06)*
$60.00 per hour (07/01/07)*
$65.00 per hour (07/01/08)*
Non-Attorney Child and Family
Investigator 
$20 per hour
$25 per hour (07/01/08)*
Paralegal, Legal Assistant, or
Law Clerk Time
$25 per hour (07/01/06)*
Court-authorized Investigator $33 per hour (07/01/06)*
Court Visitor $25 per hour
*For work performed on or after date indicated

D. Maximum total fees, established July 1, 2008, that may be paid by the Department for court-appointed counsel, guardians ad litem, non-attorney child and family investigators, or court visitors are as follows:

MAXIMUM TOTAL FEE PER APPOINTMENT

Title 19—Dependency and Neglect Matters
Respondent Parent Counsel

 $2,870

Non-Attorney Child and Family Investigator

 $1,250

Title 19—Other Matters (i.e. delinquency GAL, support,
adoption, paternity, etc.)
Non-Attorney Child and Family Investigator

$   625

Titles 14 and 15

Counsel (probate only)

$2,870

Guardian ad litem (for adult)

$2,870

Non-Attorney Child and Family Investigator

$1,250

Court Visitor

$   500

Titles 22, 25, and 27
Counsel

$   750

Guardian ad litem (for adult)

$   750

Appeals
Counsel and Guardian ad litem (for adult)
$2,870

Non-Attorney Child and Family Investigato

$1,250

E. Under no circumstances shall the total fees exceed the maximums outlined without a detailed written motion and detailed written order showing the specific special circumstances that justify fees in excess of the maximum (see guidelines in Attachment D, paragraph B). If a court-appointed attorney chooses to use the support of a paralegal, legal assistant, investigator, or law clerk, the combined fees, inclusive of expenses, of the attorney or non-attorney appointee and other support staff shall not exceed the total maximum outlined.

F. To maintain effective representation by court-appointed counsel and to provide basic fairness to attorneys and others so appointed, the State Court Administrator is directed by the Chief Justice to periodically review and make recommendations concerning the fee schedule established in this CJD and/or Chief justice Order for court-appointed counsel. More than three years shall not pass without such a review.

G. Appointees shall maintain records of all work performed relating to court appointments and make all such records available to the Judicial Department for inspection, audit, and evaluation in such form and manner as the Department in its discretion may require, subject to any applicable attorney/client privilege.

H. In instances in which fees for activity such as travel time, waiting time, and mileage expenses were incurred simultaneously for more than one court appointment, appointees shall apportion the fees or expenses across cases, as applicable. (For example, traveling to court would be billed 50% on the client A appointment and 50% on the client B appointment if the appointee made one trip to cover both clients’ hearings.)

V. Reimbursement to the State for Court-Appointed Costs

For all appointments requiring a finding of indigence, the court shall review the indigency status of the responsible party(ies) or estate at the time of appointment, during the course of the appointment (at the court’s discretion if questions concerning indigence arise), and, if feasible, at the time of case closure. In the case of a court visitor appointment, the petitioner and/or the respondent may be ordered to pay all or a portion of the visitor’s fees and expenses if they are not determined to be indigent. If the court determines, at any time before or after appointment of counsel, guardian ad litem, non-attorney child and family investigator or court visitor, that the responsible party(ies) or estate has the ability to pay all or part of the costs for representation or other costs, the court shall enter a written order that the person(s) or estate reimburse all or part of said costs. Such order shall constitute a final judgment including costs of collection and may be collected by the state in any manner authorized by law.

Collection of fees and costs related to court-appointed representation and other costs may be referred to the Collections Investigator or a private collector with whom the Judicial Department has contracted.

Costs for representation provided may be assessed against the responsible party(ies) at the fixed hourly rate for state-funded private counsel, at the state-funded counsel contract rate, or at the hourly cost of providing legal representation for the number of hours reported by counsel to the court. Other costs incurred may also be assessed, including, for example, costs for transcripts, witness fees and expenses, language interpreter fees, and costs for service of process. In addition, the responsible party(ies) may be required to pay costs of collection. Costs incurred for accommodations required under the Americans with Disabilities Act, such as sign language interpreter fees, may not be assessed.

SECTIONS VI and VII APPLY ONLY TO GUARDIANS
AD LITEM AND COURT VISITORS APPOINTED ON BEHALF
OF WARDS OR IMPAIRED ADULTS, AND DO NOT APPLY TO
APPOINTMENT OF LEGAL COUNSEL.

VI. Training of Guardians ad Litem and Court Visitors Appointed on Behalf of Wards or Impaired Adults

A. Attorneys appointed as a guardian ad litem shall possess the knowledge, expertise, and training necessary to perform the court appointment, and shall be subject to all of the rules and standards of the legal profession.

B. In addition, the guardian ad litem shall obtain 10 hours of continuing legal education, or other courses relevant to an appointment that enhance the attorney’s knowledge of the issues in representation, per legal education reporting period. The court shall require that proof of such education, expertise, or experience be on file with the court at the time of appointment.

C. In those cases in which a non-attorney is appointed as a court visitor, the non-attorney shall also demonstrate the knowledge, expertise, and training necessary to fulfill the terms of the appointment. The court may determine whether the person’s knowledge, expertise, and training are adequate for an appointment, and may require the person to demonstrate his or her qualifications.

VII. Duties of Guardians ad Litem and Court Visitors Appointed on Behalf of Wards or Impaired Adults:

A. The person appointed shall diligently take steps that he or she deems necessary to protect the interest of the person for whom he or she was appointed, under the terms and conditions of the order of appointment, including any specific duties set forth in that or any subsequent order. If the appointee finds it necessary and in the best interests of the ward or impaired adult, the appointee may request that the court expand the terms of the appointment and scope of the duties.

B. Persons appointed shall perform all duties as directed by the court, which may include some or all of the duties described below:

1. Attend all court hearings and provide accurate and current information directly to the court. (Although another qualified attorney may substitute for some hearings, this should be the exception.)

2. At the court’s direction and in compliance with applicable statutes, file written or oral report(s) with the court and all other parties.

3. Conduct an independent investigation in a timely manner, which shall include, at a minimum:

a) Personally meeting with and observing the client, as well as proposed custodians, when appropriate;

b) Reviewing court files and relevant records, reports, and documents;

In cases in which the ward or impaired person is living or placed more than 100 miles outside of the jurisdiction of the court, the requirements to personally meet with and interview the person are waived unless extraordinary circumstances warrant the expenditure of state funds required for such visits. However, the appointee shall endeavor to meet the person if and when that person is within 100 miles of the jurisdiction of the court.

VIII. Duties of Judges and Magistrates

A. The appointing judge or magistrate shall monitor the actions of the appointee to ensure compliance with the duties and scope specified in the order of appointment.

B. Judges and magistrates shall ensure that guardians ad litem and court visitors involved with cases under their jurisdiction are representing the best interests of adult wards or impaired adults and performing the duties specified in this order. In providing this oversight, judges and magistrates shall:

1. Routinely monitor compliance with this directive;

2. Encourage local bar associations to develop and implement mentor programs which will enable prospective guardians ad litem and court visitors to learn these areas of the law;

3. Meet with guardians ad litem and court visitors at the first appointment to provide guidance and clarify the expectations of the court;

4. Hold periodic meetings with all practicing guardians ad litem and court visitors as the court deems necessary to ensure adequate representation of wards or impaired adults.

IX. Complaints

A. Colorado’s "Practice Guidelines for Respondent Parents’ Counsel in Dependency and Neglect Cases" (Attachment F to this directive) may provide helpful guidance in the Court’s investigation of the complaint regarding court-appointed Respondent Parents’ Counsel. All written complaints and documentation of verbal complaints regarding the performance of any state paid counsel, guardian ad litem, non-attorney child and family investigator or court visitors appointed pursuant to this directive shall be submitted to the District Administrator. The District Administrator shall forward the complaint to the presiding judge or, if appropriate, the chief judge of the district unless a conflict exists due to the judge’s involvement in a pending case. If a conflict exists, the District Administrator will forward the complaint to another judge designated for that purpose.

B. If the complaint involves an attorney and the reviewing judge or District Administrator determines that the person may have violated the Colorado Rules of Professional Conduct, the information shall be filed with the Colorado Supreme Court Office of Attorney Regulation Counsel. The Regulation Counsel shall advise the reporting judge or District Administrator and the State Court Administrator of the final outcome of the investigation.

C. Copies of all written complaints and documentation of verbal complaints, and the results of the investigation including any action taken with regard to Judicial paid counsel, guardians ad litem, non-attorney child and family investigators, and court visitors shall be forwarded by the District Administrator to the State Court Administrator’s Office. The State Court Administrator may conduct an additional investigation and take action he believes is necessary to resolve any concerns or issues raised by the complaint. Such action may include, but is not limited to, terminating the contract with the attorney, GAL, non-attorney child and family investigator or court visitor.

X. Sanctions

A. All contracts with the Judicial Department for appointments addressed in this Chief Justice Directive shall include a provision requiring compliance with this Chief Justice Directive. Failure to comply with this Directive may result in termination of the contract and/or removal from the appointment list.

B. Judges and magistrates shall notify appointees that acceptance of the appointment requires compliance with this Directive, and that failure to comply may result in termination of the current appointment and/or removal from the appointment list.

CJD 04-05 is amended and adopted effective July 1, 2009.

Done at Denver, Colorado this 24th day of June 2009.

By the Court:

Mary J. Mullarkey
Chief Justice, Colorado Supreme Court


CJD 05-03
Management Plan for Court Reporting and Recording Services

Background

An accurate record of all court proceedings is an essential requirement of due process of law and is required by Article VI and Article II, Section 25 of the Colorado Constitution.

This plan is adopted to promote the effective use of court reporters and electronic record operators (ERO) in the Colorado Judicial Branch and is applicable to all official court reporters, all personnel, and contract court reporters or transcribers employed by the Judicial Branch or under contract with the Judicial Branch.

The preferred method of making an accurate record of court proceedings is with the assistance of a Realtime certified court reporter; therefore all proceedings conducted before a district court judge may be reported by a court reporter using a stenotype machine on a "Realtime" basis. Proceedings can be recorded by an electronic record operator using digital electronic sound recording equipment. This provision shall in no way prohibit a judge or magistrate from operating the equipment needed to make an accurate record of any proceeding. Realtime court reporting is the standard in Colorado courts.

The Office of the State Court Administrator (SCAO), as funding allows, shall examine the expansion of the state case management system to allow for information sharing and transfer of information between the automated case management system and the various court reporter reporting systems. The SCAO also shall consider attaching electronic text files directly to court cases stored in the automated case management system.

Pursuant to this directive, the chief judge of each judicial district shall determine which methods of recording court proceedings are to be used based upon current economic issues, availability of reporters, and other relevant factors.

I. Responsibilities of Chief Judge

A. Prioritization of Reported vs. Recorded Cases

Each district shall establish a case-type priority that shall be reported, if district resources permit, by court reporters except as otherwise noted below. For example, such a priority listing would allow for electronic recording of uncontested domestic hearings, some probate matters or other case types that are unlikely to be appealed. Under this scenario, a court reporter would be used for all felony matters, all district civil court (CV) and jury trials, termination of parental rights trials and water cases, if available or economically feasible within the district’s budget.

B. Prioritization of Felony Cases

When a judicial district assigns a court reporter to report a proceeding which requires the taking of testimony in a class one or two felony case, the court reporter shall be at a minimum a Registered Professional Reporter (RPR). Districts without RPR reporters should contact other districts for assistance.

C. Prioritization of Death Penalty Cases

In a death penalty case, Realtime reporting shall be used. If reasonable attempts to locate or appoint a Realtime reporter have been made without success, districts without Realtime reporting capability should contact other districts for assistance. A reporter reporting a death penalty case shall be, at a minimum, RPR certified. Should Realtime equipment failures or personnel emergencies occur, other court reporting methods may be used in extreme circumstances for the shortest amount of time possible.

D. Supervision of Court Reporters/Recorders

The chief judge is ultimately responsible for the administration of any court reporting services in her or his district as well as the timeliness of the production of transcripts whether on appeal or for other purposes. This responsibility may be delegated at the discretion of the chief judge.

1. All reporters (current and future) shall be employees under the direction and management of the chief judge of each district. Some of the functions assigned to the chief judge may be delegated, but the chief judge has the ultimate authority and responsibility for the supervision of court reporters and the implementation and enforcement of this plan.

2. All court reporters, except managing court reporters, shall be non-exempt from the Fair Labor Standards Act and shall provide on a monthly basis to their supervisors timesheets of hours worked each workweek.

3. The chief judge shall ensure that all judges provide court reporters regularly scheduled breaks during the work day.

4. The chief judge shall have the sole authority to assign or reassign court reporters and electronic recorder operators to courtrooms as necessary and appropriate in his or her discretion.

5. The chief judge shall have the authority to hire and designate court reporters and electronic recorder operators (including contract staff); however, each chief judge shall develop policies and procedures for hiring that include the district judges and any staff designated by the chief judge. In districts where court reporters or electronic recorder operators will be primarily assigned to a particular district judge, the chief judge shall include that district judge in the hiring process; however, the chief judge shall make the ultimate hiring decision.

6. The chief judge shall have the sole authority to reassign, correct, discipline or terminate court reporters and electronic recorder operators.

7. The chief judge shall be the ultimate supervisor of the district’s managing court reporter, if appointed. This duty to supervise the district’s managing court reporter may be delegated, in part, by the chief judge. The person supervising the managing court reporter shall have the following duties and may delegate these duties to the managing court reporter including but not limited to the following:

a. Investigate complaints of improper state-paid transcript billings. Take necessary measures to assure that authorized transcript rates are charged and in proper form. (See Appendix A for rates and Appendix C for information required to be included on all billings.)

b. Monitoring the timeliness of the transcription of the record, or such parts thereof, as a judge, party or attorney may request. This applies to the transcript being prepared by a court reporter, transcriber, or outside firm preparing transcripts on behalf of the court.

c. Monitoring transcripts produced by transcription services to assure compliance with the transcript format and fee requirements of this Chief Justice Directive (CJD) or applicable contract.

d. Preserving the audio (tape or digital or other electronic) records, court reporter transcripts or notes according to the current Colorado Judicial Department Retention and Disposition Schedules.

E. Managing Court Reporter

1. Each district with two or more court reporters shall have a managing court reporter selected in a manner designated by the chief judge, or the chief judge shall assign these duties to administrative staff.

2. Districts may elect to rotate the responsibilities of the managing court reporter among all reporters on a regular basis.

3. The managing court reporter shall be an exempt employee under the supervision of the chief judge or designee.

4. The managing court reporter shall be responsible to:

a. Assign and reassign court reporters and EROs within the district for the purpose of distributing fairly and equitably the workload and transcript preparation of all court reporting services and transcribers, with goals of minimizing travel and assuring the lowest overall cost to the Judicial Branch and State of Colorado.

b. Supervise the business relationship among attorneys, litigants, other parties, and court reporters/EROs/transcribers.

c. Develop a form to monitor and keep a record of transcript orders and requests and, if necessary, tape and/or digital recording orders and requests made in district court. In larger districts this portion of the workload may be distributed between the managing court reporter and other administrative staff.

d. Coordinate any transcript requests involving court reporters who no longer work for the Judicial Branch or work in another district.

e. Report to the chief judge on a monthly basis any late or deficient transcripts.

f. Maintain certification records for all court reporters within a district.

g. Hire substitute court reporters. Court reporters may not hire substitute reporters at their own expense. All substitutes must be hired by the district administrator or designee at the state’s expense. The district administrator and substitute court reporters shall execute contracts before performing services.

h. Generate the appellate query of late transcripts and provide a report to the chief judge or designee on a monthly basis.

F. Cross-Training and Backup

To assure that the needs of the judicial district are met, the chief judge or designee shall provide cross-training for the EROs and court reporters so that they can perform work for any division. EROs and court reporters may be assigned to cover other division work as may be necessary.

II. Court Reporter Responsibilities

A. RPR Certification

1. All court reporters hired shall be RPR certified unless the district is unable to hire an acceptable certified reporter within three months of posting the position. If the district hires a non-certified reporter, that reporter must become RPR certified within two years of hire. Non-certified reporters may be used on a per case basis if certified reporters are not available.

2. All certified court reporters must maintain certification by completing three continuing education units (CEUs) every three years and maintaining certification status with National Court Reporters Association (NCRA).

3. Current Colorado Certified Shorthand Reporters (CSRs) must obtain RPR certification within two years of the signing of this CJD as amended (June 2009).

4. Current court reporters that are uncertified upon signing of this CJD as amended (June 2009) shall have two years to obtain certification and will be placed on a two-year performance plan to assist the reporter in obtaining certification.

5. Failure to obtain or maintain RPR certification may be grounds for corrective or disciplinary action in accordance with the Colorado Judicial System Personnel Rules.

B. Realtime Certification

Realtime reporting can help to alleviate the problems of late transcripts; assist trial judges in deciding issues faster by seeing and keeping the Realtime notes for review and having text files for their use for the preparation of their orders; allow reporters to get the bulk of transcript work done as they are reporting; and enable all reporting staff to be at the same or similar level of skill. Therefore:

1. All current RPR certified court reporters shall become Realtime certified by July 1, 2011.

2. All current non-certified court reporters shall become Realtime certified by July 1, 2012.

3. RPR certified court reporters hired after the effective date of this CJD as amended shall become Realtime certified within four years of their date of hire by the Judicial Branch.

4. Non-certified court reporters hired after the effective date of this CJD as amended shall become Realtime certified within five years of their date of hire by the Judicial Branch.

5. Court reporters who are able to perform Realtime services may attain official status as a Colorado Certified Realtime Reporter by meeting one of the three following requirements:

a. Pass the NCRA Certified Realtime Reporter (CRR) test, which among other things, requires completion at 96 percent accuracy or

b. Take the NCRA CRR test and complete it at 94 percent accuracy (the Colorado standard) or

c. Pass the Federal Certified Realtime Reporter (FCRR) test.

A court reporter who fails to meet these requirements within the time limits provided, who is otherwise an exemplary court reporter and has made significant efforts to become Realtime certified may petition the State Court Administrator for extraordinary relief.

C. Conduct of Court Reporter

1. The court reporter shall present himself or herself to the judge in charge of the proceedings in accordance with the assignment made by the chief judge or designee.

2. The reporter shall observe, comply with, and be bound by all of the assigned judge’s instructions in matters affecting the composition of the record, the marking of exhibits and maintenance of the evidence, the public or private nature of the proceeding, the adjournment of the proceeding to other times or places, the appropriate demeanor of the reporter, and other like matters.

3. The court reporter shall report by appropriate equipment all of the proceedings that he or she attends.

4. The court reporter shall take all the testimony, rulings, exceptions, oral instructions, and other proceedings during the trial of any cause, and in such causes as the court may designate.

D. Records to be Maintained by Court Reporters

1. In order to permit the routine audit and inspection of records, court reporters shall maintain accurate, legible, and up-to-date records of their transcript orders, invoices, and transcript payments.

2. Extension of time for transcripts must be obtained from the court pursuant to the appropriate rule. The chief judge or designee shall be advised in writing by the reporter or transcriber at any time the reporter or transcriber requests an extension of time on any transcript. These written records shall be maintained at the direction of the chief judge. Court reporters shall provide the chief judge and designee a copy of any request for an extension to provide an appellate record prior to submitting the affidavit to the appellate court.

III. Electronic Recording Operators Responsibilities

A. Conduct of Electronic Record Operator

1. The ERO shall present himself or herself to the judge in charge of the proceedings in accordance with the assignment made by the chief judge or designee.

2. The ERO shall observe, comply with, and be bound by all of the assigned judge’s instructions in matters affecting the composition of the record, the marking of exhibits and maintenance of the evidence, the public or private nature of the proceeding, the adjournment of the proceeding to other times or places, the appropriate demeanor of the ERO(s), and other like matters.

3. The ERO shall record with appropriate equipment all of the proceedings that he or she attends.

4. The ERO shall record all the testimony, rulings, exceptions, oral instructions, and other proceedings during the trial of any cause, and in such causes as the court may designate.

B. Records to be Maintained by EROs

1. In order to permit the routine audit and inspection of records, EROs shall maintain accurate, legible, and up-to-date records of their transcript orders, invoices, transcript payments, expenses and attendance in court.

2. Extension of time for transcripts must be obtained from the court pursuant to the appropriate rule. The chief judge or designee shall be advised in writing by the transcriber at any time the transcriber requests an extension of time on any transcript. These written records shall be maintained at the direction of the chief judge. Transcribers shall provide the chief judge and designee a copy of any request for an extension to provide an appellate record prior to submitting the affidavit to the appellate court.

IV. Transcripts

A. Persons Authorized to Prepare Transcripts from Electronic Recordings

1. Contract transcript service companies may prepare transcripts, as determined by each judicial district policy.

2. If a judicial district enters into an agreement with a transcript service company, such contract must be in the format prescribed by the State Court Administrator.

3. Non-court reporter Judicial Branch employees shall not be allowed to transcribe court transcripts outside working hours unless they are a member of an independent contracting firm that provides contract transcript services as a company that has been selected by the district to do transcripts. This is in compliance with the requirements of the Fair Labor Standards Act, PERA rules, and IRS regulations regarding the issuance of a 1099 and W-2 to the same employee.

4. If non-court reporter Judicial Branch employees prepare transcripts from electronic recordings during established working hours, this task shall be included in the individual’s normal work assignment and compensation and such individual shall not be paid the per-page rate. (§ 13-5-128, C.R.S.)

B. Compensation

1. The total compensation package offered to court reporters shall be established in accordance with the Colorado Judicial System Personnel Rules and Annual Compensation Plan. Base salary, benefits, paid time off, and paid time off prorated for part-time employees for continuing education required to maintain certification shall be provided to classified court reporters, as well as variable pay, such as per page rates. When determining the total compensation package of court reporters, consideration shall also be made for expenditures incurred by court reporters on equipment, software, employment of scopists and proofreaders used during the course of business conducted for the state. Appendix F of this CJD provides a more exhaustive list of items which should be taken into consideration in the determination of fair and equitable compensation for court reporters.

2. Transcripts requested by judges

a. Judicial Branch court reporters and other employees who prepare transcripts as part of their regular duties shall provide transcripts requested by and used only by the judge or magistrate who presided over the matter or the chief judge and shall not be paid the transcript page rate in addition to their regular salary. These employees shall be allowed to prepare transcripts requested by judicial officers during work hours.

b. Court reporters and transcribers who are not Judicial Branch employees shall be considered "substitutes" and shall be compensated the state-paid transcript rate to prepare a transcript requested by and used only by the judge or magistrate who presided over the matter or the chief judge. The judicial district shall be responsible for compensation of the "substitute" court reporter or transcriber.

2. State-Paid Transcripts

a. State-paid transcripts are all transcripts requested by judicial officers, the district attorney, public defender, Office of the Child’s Representative, pro se indigent or advisory counsel representing an indigent client, Alternate Defense Counsel and state-paid respondents’ attorneys in dependency and neglect cases.

b. Judicial Branch court reporters and other employees who prepare transcripts as a normal part of their job and compensation shall be allowed to prepare state-paid transcripts during work hours. Copy costs for state-paid transcripts are eliminated and the original per-page cost applies in accordance with Appendix A of this directive. The court reporter shall provide a state-purchased disk or may email a PDF or other word-searchable protected version of the transcript to an attorney or party requesting a copy of a transcript.

3. Private-Paid Transcripts

a. Private-paid transcripts are all transcripts requested by all parties, attorneys, media and entities not listed in 2 (a) above.

b. Judicial Branch court reporters and other employees who prepare transcripts shall not be allowed to use state time, equipment, supplies or copiers to prepare private-paid transcripts; except that a court reporter may prepare private-paid transcripts during regular working hours in the following circumstances:

1) Criminal transcripts requested by non-state paid attorneys

2) Juvenile court transcripts requested by non-state paid attorneys

3) Transcripts prepared for cases on appeal

4) Transcripts of an oral ruling of a trial court ordered for the preparation of the written order at the request of the trial court.

c. The original per page rate and copy rates are defined in Appendix A.

4. Non-Appellate Transcripts

The full price may be charged only if the transcript is delivered within the contract’s required time frame, including any extensions that have been authorized by the chief judge.

5. Appellate Transcripts

The full price may be charged only if the transcript is delivered within the time frame prescribed by the chief judge of the district court or the appellate court. A transcript delivered within the time allowed by a timely extension granted for good cause pursuant to CAR 11(a) and (d) is entitled to full payment. The appellate court may extend the due date for a transcript and order the reduced rate if the "good cause" requirement is not met. (See Appendix D for computation of transcript delivery dates and reductions in per page rates for late transcripts.)

C. Hourly or Daily Transcripts

Unless otherwise ordered by the trial judge assigned to the case, there shall be no hourly or daily transcripts delivered to any party or attorney. If any person desires such services, he or she must seek permission of the court to have a Realtime court reporter present for a hearing or trial.

D. Unedited Transcripts

The use of an unedited transcript as a working document shall be permitted if allowed and approved by the trial judge and the court reporter, or as permitted by rule such as CAR 3.4(e)(6). Such transcript shall not be the official record of the court unless so certified by the court reporter. The rate for the unedited transcript shall be applied according to Appendix A . Pursuant to CAR 3.4 the reporter may require a signed waiver of liability for any errors in the unedited transcript.

E. Ordering of Transcripts, Tapes or Digital Recording Disks

Each district shall determine and post on the Colorado Judicial Branch website a policy that outlines the procedures for that particular district for ordering of transcripts, tapes or digital recording disks.

1. Transcripts may be ordered from the court following the procedure below:

a. The requesting party should use the request forms for transcript of a hearing or trial approved by the State Court Administrator. Blank forms can be procured from the clerk of the court or district administrator as set forth by each district. The completed form should be sent to the address listed on the form for the appropriate district.

b. Persons ordering transcripts will be contacted directly by the court reporter or transcriber concerning payment of the appropriate fees. Transcripts will not be started and the time limits stated for delivery of transcripts will not commence until satisfactory arrangements are made with the transcriber for the payment of required fees.

c. It is the requestor’s responsibility to properly pay or obtain a court order approving waiver of the fees in ordering of the transcripts. The requestor also must obtain and the reporter or transcriber must produce a dated receipt for the payment. This is to avoid any dispute as to the date, manner of payment and whether payment has in fact been made.

2. Copies of all or part of tapes or digital records (CD-ROM) may be ordered in those districts that are able to provide this service. The court may, based upon each district’s policy, reproduce tapes or create CDs on its own duplicating equipment and may sell copies of electronic sound recording tapes made. The district may sell a whole or partial copy of the proceeding if available on CD, disk or tape to the public at the prevailing rate prescribed by this CJD. The rate shall be that rate in effect at the time of ordering.

a. Orders for copies should be submitted to the court on the request forms for tapes or CDs approved by the SCAO. Blank forms can be obtained from the clerk of the court or district administrator as set forth by each district. The completed form should be sent to the address that is listed on the form for the appropriate district.

b. Copies of tapes or CDs shall not be used as the official record for purposes of appeal, motions or other court proceedings. Only certified transcripts by reporters or authorized transcribers shall be used as the official records of court proceedings.

c. In those districts that do not provide this service, parties shall request a transcript using the procedure outlined in IV(E)(1) above.

3. Districts shall not accommodate requests to listen to recorded proceedings (tapes or CDs).

F. Standards for the Production of Transcripts

The following standards apply to the production of all transcripts for Colorado courts:

1. All transcripts shall be produced in the format required by this CJD. (Appendix B)

2. No court reporter/transcriber employed by the Judicial Branch shall charge fees for transcripts of official proceedings that exceed those set forth in this CJD, except as approved by the chief judge in writing for extraordinary circumstances.

3. Each court reporter/transcriber is required to certify on each invoice that the fees charged and page format used conform to this CJD.

4. If transcripts of proceedings are prepared by contract transcription services and paid for by the state:

a. All format, delivery time schedule, and fee requirements adopted by this CJD apply as if the transcript was produced by one of the court’s reporters or other judicial branch employee unless the contract entered into provides otherwise.

b. The transcriber designated to transcribe the proceedings recorded by electronic sound recording shall clearly specify on the billing or invoice and cover page "FTR Proceedings" as opposed to "Reporter’s Transcript" and must authenticate the original transcript and each copy with a certification on the last page. For example, "I (we) certify that the foregoing is a correct transcript from the electronic sound recording of the proceedings in the above-entitled matter."[Signature of transcriber and date]. Each transcriber may charge and collect fees for transcripts requested at rates prescribed by this CJD.

5. Appellate transcripts may be provided in electronic format as part of an electronic record submitted pursuant to CAR 10 and 11. In criminal cases, an electronic transcript may be provided as part of an electronic record where the record is due on or after September 1, 2007.

G. Time Limits for Delivery of Transcripts

1. Original transcripts ordered by judicial officers shall be provided to the judicial officer within the time prescribed by the order.

2. All transcripts of official proceedings prepared for the purpose of appeal shall be delivered to the ordering party, if a copy is requested, and the original filed with the clerk of court within the prescribed time limits of the Colorado Appellate Rules.

3. Extension of time for appellate transcripts must be sought from the court pursuant to the appropriate rule.

H. Distribution of Transcripts

1. At the request of the ordering party, a non-appellate transcript may be provided in electronic format, if the reporter or transcriber agrees.

2. For state-paid transcripts, the court reporter shall provide the one transcript on a state-purchased disk which is PDF or other word searchable protected format to the party requesting a copy of a transcript. Replacement or additional CD-ROM copies shall be made available in accordance with the fee structure below for both state-paid and private-paid requests. The intent of this provision is for only one state agency to pay for the transcript; therefore, copy costs for state-paid copy requests shall not apply. If the state agency requests the first copy, copy costs for private parties shall be in accordance with Appendix A.

4. Any requests by private parties for transcripts involving state agencies, as delineated in IV (B)(2)(a), including requests from the media, must be forwarded to the district administrator and chief judge who shall make the decision as to whether any other entity shall receive a copy prior to the court reporter agreeing to arrangements for the provision of a copy. No court reporter or transcriber shall create a distribution list for anyone other than parties or attorneys of record.

V. Ownership, Custory, Use, Retention, and Filing of the Notes and Electronic Recordings

1. The notes of all court reporters:

a. shall remain property of the Judicial Branch controlled by the chief judge or designee to ensure transcripts may be prepared by another reporter, if and when necessary;

b. shall be retained by the appropriate court for a period prescribed by the Colorado Judicial Department Retention and Disposition Schedules; AND

c. are not public records.

2. The work of all court reporters shall be readable and shall remain in the ultimate control of the chief judge or designee so that another reporter, if necessary, can read the notes of a court reporter.

3. Each court reporter shall be required to sign a statement (Appendix E) recognizing the ownership of the notes and recognition of the dictionary provision below.

a. When a court reporter leaves the employment of the Judicial Branch, the court reporter shall provide the chief judge with paper or electronic notes and a copy of their dictionary for the cases they have done while a state employee prior to the reporter’s last day of employment.

b. The court reporter leaving employment with the branch shall be given a first right of refusal regarding preparation of any outstanding transcripts on those cases so long as:

1. She or he provides the district with the reporter’s address, phone number and other contact information and keeps that information current with the district administrator and chief judge.

3. She or he does not have more than one outstanding appeal transcript beyond the 180 day allotted timeframe.

c. In the event that another court reporter must prepare any such outstanding transcripts, that court reporter shall not use the departing court reporter’s dictionary for any purpose other than preparation of the outstanding transcripts.

4. During the trial or the taking of other matters on the record, the paper or electronic notes shall be considered the property of the Judicial Branch, even though in custody of the reporter, judge or clerk.

5. After the trial and review or appeal period, the reporter shall list, date and index all of her or his notes and shall properly pack them for storage. Where no reporter is used, the clerk of the court or ERO, if one exists, shall perform this function.

6. The court shall provide storage containers and make arrangements for storing such records.

7. There shall be no additional charges for securing the record of a proceeding and for transporting the record to the clerk of court. The costs of these services are included in the schedule of rates for transcripts.

8. During the period of retention, paper or electronic notes shall be made available to the reporter of record, or to any other reporter or person the court may designate.

9. An electronic PDF or other word-searchable protected format version of any final transcripts prepared in all criminal and juvenile cases by any court reporter or transcriber shall be filed with the court.

10. Copies of these transcripts may be obtained from the court reporter at the customary rate.

11. The court may provide additional copies of these state-paid transcripts without any additional expense to the attorney general, district attorney, public defender, Office of the Child’s Representative, pro se indigent or advisory counsel representing an indigent client, Alternate Defense Counsel and state-paid respondents’ attorneys in dependency and neglect cases. If a court reporter is no longer a full-time, part-time or contract employee of the Judicial Branch, individuals may obtain copies of these transcripts at the rate set forth in the Colorado Judicial Department Fiscal Rules by contacting the district administrator of the district.

VI. Transcript Backlogs

The chief judge or designee is authorized to take necessary steps to reduce backlog transcript, tape, or disk copy production delays. Such steps may include, but are not necessarily limited to the following:

1. Adjusting the workload of the court reporter or transcriber to reduce backlogs.

2. Terminating a contract with an outside vendor of transcription services and/or adding contract vendors of transcription services.

VII. Appellate Transcripts

1. All transcripts in appellate cases shall be uploaded to the Court of Appeals or Supreme Court as read-only PDF documents.

2. Court reporters may charge the rates set out in Appendix A to parties for enhanced transcripts such as those formatted for viewing in a RealLegal E-transcript viewer or comparable software.

Chief Justice Directives 98-07 and 85-10 and the Chief Justice Order Public Access to Tapes of County Court Procedures (April 17, 1991) are hereby REPEALED and REPLACED by CJD 05-03.

CJD 05-03 is revised and adopted effective June 25, 2009.

Done at Denver, Colorado this 25th day of June 2009.

By the Court:

Mary J. Mullarkey
Chief Justice, Colorado Supreme Court

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