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TCL > February 2012 Issue > Court Business

The Colorado Lawyer
February 2012
Vol. 41, No. 2 [Page  89]

© 2012 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 Rules Committee

Rule Change 2011(17)
Chapter 37. Rules Governing the Commissions on Judicial Performance
Amended and Adopted

The State Commission on Judicial Performance with the approval of the Supreme Court Repeals and Readopts the following rules pursuant to CRS § 13-5.5-103(1)(o)(I):

Analysis by Rule

Rule 1 Appointments

Rule 2 Officers

Rule 3 Procedures

Rule 4 Meetings

Rule 5 Executive Sessions

Rule 6 Recusal

Rule 7 Staff

Rule 8 Chief Justice or Chief Judge

Rule 9 Training

Rule 10 Trial Judge Evaluations

Rule 11 Appellate Judge and Justice Evaluations

Rule 12 Recommendations

Rule 13 Narratives

Rule 14 Confidentiality

Rule 15 Records

Rule 16 Complaints

Rule 1. Appointments.

(a) State and district commissioners shall be appointed to four-year terms, expiring on November 30 in odd-numbered years. A commissioner who resigns or moves out of the district or state shall advise the chair of the commission, the appointing authority, and the state commission. The chair of a commission shall advise the appointing authority and the state commission of any vacancy, and the date of the vacancy, if known. The executive director of the Office of Judicial Performance Evaluation shall within five days, in writing, advise the appropriate appointing authority of the vacancy, whether the vacancy must be filled with an attorney or a non-attorney, and that if no appointment is made within forty-five days of the vacancy, the state commission shall make the appointment.

(b) The executive director of the Office of Judicial Performance Evaluation shall cause to be published and posted at all times on the office’s web site the names of the state and district commissioners and the name, address, telephone number, and e-mail address of the executive director of the Office of Judicial Performance Evaluation and each district administrator.

(c) The state commission may recommend to the appointing authority that a member of any commission be removed for cause pursuant to section 13-5.5-104, C.R.S. "Cause" means any malfeasance or nonfeasance in carrying out the commissioner’s official duties and responsibilities, including improper disclosure of confidential information, failure to disclose any basis for recusal or to recuse when appropriate, advocating for or against the retention of any particular justice or judge, and failure to participate in three consecutive meetings.

Rule 2. Officers.

Commissions shall elect a chair and a vice-chair, one of whom should be an attorney, and one of whom should not be an attorney, to serve two-year terms. The terms of the chairs and vice-chairs of the commissions shall expire on November 30 of each even-numbered year.

Rule 3. Procedures.

(a) A majority of the total number of appointed members of a commission shall constitute a quorum. The procedures adopted by the state commission shall be used for the conduct of all meetings, evaluations, and other business, except as otherwise provided by these rules or statute.

(b) The state commission shall, prior to final promulgation of any proposed rule, post a notice of the proposed rule, allow for a period of public comment, and give the public an opportunity to address the commission concerning the proposed rule at a public hearing.

Rule 4. Meetings.

(a) Although judicial performance commissions are not subject to the Colorado open meetings law, section 24-6-402, C.R.S., they should attempt to comply as fully as practicable with the spirit of that law.

(b) The state commission should post a notice on its web site, including specific agenda information where possible, not less than twenty-four hours prior to the holding of any meeting at which a quorum of the state commission is expected to be in attendance.

(c) The state commission shall conduct all business publicly, unless it has decided to proceed in executive session in accordance with these rules. No adoption of any proposed policy, position, resolution, rule, regulation, or formal action shall occur at any executive session.

Rule 5. Executive Sessions.

A motion to go into executive session must be approved by a two-thirds vote of the commissioners, and for only the following purposes:

(a) Consideration of confidential materials as part of an evaluation of a justice or judge, including deliberations. Members of other commissions and staff may not be present during such consideration;

(b) Conferences with an attorney representing the commission concerning disputes involving the commission;

(c) Investigation of charges or complaints against an employee or consideration of dismissal, discipline, promotion, demotion, or compensation of the employee;

(d) Specialized details of security arrangements or investigations, including where disclosure of the matters discussed might reveal information that could be used for the purpose of committing, or avoiding prosecution for, a violation of the law; or

(e) Any other matter required to be kept confidential by state or federal statutes or rules, including these rules.

Rule 6. Recusal.

(a) A commissioner shall:

(i) Disclose to the commission any professional or personal relationship or interest with respect to a justice or judge that may affect an unbiased evaluation of the justice or judge, including any litigation involving the justice or judge and the commissioner, the commissioner’s family, or the commissioner’s financial interest. A commission may require recusal of one of its members on account of such relationship upon a two-thirds vote of the other commissioners;

(ii) Recuse himself or herself from any evaluation of the person who appointed the commissioner;

(iii) Recuse himself or herself from participating in the consideration and vote on any matter involving the evaluation of a justice or judge for failure of a commissioner to meet the training, courtroom observation, interview, or opinion review responsibilities provided by these rules, unless excused by a two-thirds vote of the other commissioners;

(iv) Once recused, not be present during any part of the evaluation of the justice or judge.

(b) An attorney serving as a commissioner shall not request that a justice or judge being evaluated by the commission be recused from hearing a case in which the attorney appears as counsel of record, or request permission to withdraw from a case pending before a justice or judge being evaluated, solely on the basis that the attorney is serving as a judicial performance commissioner.

(c) An attorney who appears in a matter where opposing counsel or a witness serves as a member of a judicial performance commission which is evaluating the justice or judge before whom the matter is set, may not seek withdrawal of the attorney, exclusion of the witness, or recusal of the justice or judge solely on the basis that the opposing counsel or witness is serving as a judicial performance commissioner.

(d) A justice or judge being evaluated by a judicial performance commission may not recuse himself or herself from a case in which an attorney, party, or witness is a judicial performance commissioner, nor should a justice or judge grant an attorney’s request to withdraw from a case, solely on the basis that the attorney, party, or witness is serving as a judicial performance commissioner.

Rule 7. Staff.

The executive director of the Office of Judicial Performance Evaluation, district administrators, and their staffs shall assist their respective commissions in the performance of their duties, including meeting and interview arrangements, obtaining and distributing information, and posting notices. Staff shall not participate in interviews or deliberations conducted by the commission concerning the evaluation of any justice or judge nor the drafting of narratives.

Rule 8. Chief Justice or Chief Judge.

Prior to beginning any evaluations, each commission shall meet with the chief justice or chief judge of the court for which there is a justice or judge to be evaluated that year. The meeting is to allow the chief justice or chief judge to provide an overview of the court, and shall not concern the evaluation of any justice or judge’s performance, unless the commission had previously made a recommendation for improvement for a justice or judge being evaluated that year.

Rule 9. Training.

The state commission shall provide training bi-annually that is reasonably accessible and convenient to all commissioners. Each commissioner shall attend one training session, or an appropriate alternative as determined by the state commission, each year in which the commissioner is to evaluate a justice or judge.

Rule 10. Trial Judge Evaluations.

(a) The state commission shall develop three separate survey questionnaires: one shall be for appellate judges and justices concerning each district judge; one shall be for attorneys, including prosecutors, public defenders, and private attorneys, who have appeared before the trial judge; and one shall be for non-attorneys including jurors, litigants, law enforcement personnel, employees of the court, court interpreters, employees of probation offices, employees of local departments of social services and victims of crimes who have appeared before each trial judge being evaluated. Surveys shall be conducted on a continuing basis, and results provided to the district commission and the trial judge. To ensure the anonymity of respondents, a district commission shall not receive completed questionnaires, and all reports of the results shall be based on aggregate data, including the percentage responding as "undecided or don’t know enough to respond." Comments shall be separated from completed questionnaires before the comments are forwarded to the trial judge whom each comment concerns.

(b) Each district commissioner shall make unannounced visits to the courtroom to observe at least three of the trial judges being evaluated. The district commission shall ensure that each trial judge being evaluated receives adequate observation.

(c) The district administrator shall provide the district commission with information concerning the caseload, case types, open case reports and case aging reports, and sentence modifications pursuant to section 18-1.3-406, C.R.S. for each trial judge during the period of evaluation, to the extent possible.

(d) The state commission shall develop self-evaluation forms that shall be completed by each trial judge being evaluated.

(e) Each district judge shall submit to the district commission not less than three decisions he or she issued, one of which was reversed on appeal, together with the reversing opinion, if applicable. Each county judge shall submit to the district commission transcripts of three findings of fact, conclusions of law, and orders, one of which was reversed on appeal, together with the reversing decision, if applicable. Each district commission shall review the three decisions or transcripts and any others authored by the trial judge that the commission in its discretion may select for compliance with the statutory criteria for legal knowledge and for thoroughness of findings, clarity of expression, logical reasoning, and application of the law to the facts presented. All decisions and opinions submitted or reviewed shall have been issued during the judge’s current term.

(f) A district commission may interview district and county court judges and other persons and accept information and documentation from interested persons, if the person provides his or her name and address. The district commission shall provide the trial judge with a written summary of any oral information, and a copy of any written information, no later than ten days prior to the interview with the commission. The trial judge also may submit additional written information to the commission prior to or after the interview.

(g) The district commission shall interview each trial judge being evaluated following its initial review of information.

Rule 11. Appellate Judge and Justice Evaluations.

(a) The state commission shall develop four separate survey questionnaires: one shall be for trial judges concerning each appellate judge or justice being evaluated; one shall be for attorneys including prosecutors, public defenders, and private attorneys, who have appeared before the appellate judge or justice; one shall be for other appellate judges and justices, and staff attorneys; and one shall be for employees of the court. Surveys shall be conducted on a continuing basis, and results provided to the state commission and the appellate judge or justice. To ensure the anonymity of respondents, the state commission shall not receive completed questionnaires, and all reports of the results shall be based on aggregate data, including the percentage responding as "undecided or don’t know enough to respond." Comments shall be separated before the comments are forwarded to the appellate judge or justice whom each comment concerns.

(b) Each state commissioner shall make unannounced visits to the courtroom to observe at least three of the appellate judges or justices being evaluated. The state commission shall ensure that each appellate judge or justice being evaluated receives adequate observation.

(c) The clerks of the supreme court and the court of appeals shall provide the state commission with information concerning opinions authored including concurrences and dissents, and cases on desk reports excluding case names for each appellate judge or justice during the period of evaluation, to the extent possible.

(d) The state commission shall develop self-evaluation forms that shall be completed by each appellate judge or justice being evaluated.

(e) Each appellate judge or justice shall submit to the state commission five opinions he or she authored, including both civil and criminal cases, at least one of which is a separate concurrence or dissent, if applicable, and one of which was reversed on appeal, together with the reversing opinion, if applicable, and in the case of a judge of the court of appeals, at least one unpublished opinion. The state commission shall review the five opinions and any others authored by the appellate judge or justice that the commission in its discretion may select for compliance with the statutory criteria for legal knowledge and for adherence to the record, clarity of expression, logical reasoning, and application of the law to the facts presented. All opinions submitted or reviewed shall have been issued during the appellate judge or justice’s current term.

(f) The state commission may interview justices and appellate court judges and other persons and accept information and documentation from interested persons, if the person provides his or her name and address. The state commission shall provide the appellate judge or justice with a written summary of any oral information, and a copy of any written information, no later than ten days prior to the interview with the commission. The appellate judge or justice also may submit additional written information to the commission prior to or after the interview.

(g) The state commission shall interview each appellate judge or justice being evaluated following its initial review of information.

Rule 12. Recommendations.

(a) Following the evaluation based upon the survey data, courtroom observations, case information, self-evaluations, review of decisions, interviews, and any other written or oral information received, a commission shall prepare a recommendation regarding the retention of each justice or judge. The recommendation shall be "retain," "do not retain," or "no opinion." The recommendation of "no opinion" shall be given only when the commission is equally divided, and as such shall not be counted for or against retention. Individual commissioners may not vote "no opinion," but shall vote to retain, or to not retain, or shall recuse themselves.

(b) A commission shall consider a recommendation of "retain" for any justice or judge who receives an average of at least 3.0 on a 4.0 scale for the questionnaire responses, and issued no decision or opinion more than 180 days after a matter was briefed, argued, or otherwise submitted to the court for decision, whichever is latest, unless the other evaluation information indicates a significant performance problem, such as poor judicial temperament.

(c) A commission shall consider a recommendation of "do not retain" for any justice or judge who receives less than an average of 3.0 on a 4.0 scale for the questionnaire responses, unless:

(i) The nature or high number of cases of a justice or judge’s docket or caseload is such that it cannot appropriately be managed in a timely manner. This may be particularly true for a provisional justice or judge, who when appointed may inherit a significantly high number of cases that cannot be managed quickly; or

(ii) The commission believes that with additional experience on the bench and a commitment to improve his or her judicial skills, the justice or judge should be given more time to develop his or her judicial skills. The justice or judge must agree to the recommendations contained in a performance plan that identifies areas of significantly poor performance and makes specific recommendations for improvement.

Rule 13. Narratives.

(a) Within ten days following the interview, a commission shall provide the justice or judge a complete written draft of the narrative supporting the recommendation. A narrative shall consist of four short paragraphs totaling not more than 500 words, as follows:

(i) The retention recommendation, including the number of commissioners who voted for and against retention;

(ii) Undergraduate and law schools attended, previous substantial legal or public employment, relevant professional activities or awards, and volunteer or other community work;

(iii) A description of the performance of the justice or judge over the past term, including any areas of notably strong or weak performance, any deficiencies identified in the interim evaluation, and the extent to which such deficiency has been satisfactorily addressed, and any additional information that the commission believes may be of assistance to the public in making an informed voting decision;

(iv) A description of the groups of respondents surveyed, whether any of the groups surveyed had an insufficient response rate, the percentage of responses received from each group who recommend that a justice or judge be retained, the percentage received from each group who recommend that a justice or judge not be retained, and the percentage received from each group indicating "undecided or don’t know enough to make a recommendation."

(b) The justice or judge being evaluated may respond in writing to the draft narrative, and request an additional interview, within ten days of receipt of the draft. Any additional interview shall be held within ten days of the request. The commission may revise the draft narrative, and shall provide the justice or judge with the final narrative within ten days following the additional interview.

(c) Any commission issuing a "do not retain" or "no opinion" recommendation shall, at the justice or judge’s request, include a response from the justice or judge of not more than 100 words. The commission may then change its vote count or revise the draft narrative, and shall provide the justice or judge with the final narrative within ten days following the receipt of the response.

(d) If the commission has identified one or more areas of significantly poor performance, it may recommend to the chief justice or chief judge that the justice or judge be placed on an improvement plan.

Rule 14. Confidentiality.

(a) All comments in survey reports, self-evaluations, personal information protected under section 24-72-204(3)(a)(II), C.R.S., additional oral or written information under rules 10(f) and 11(f), content of improvement plans, any matter discussed in executive session under rule 5, and complaints, responses and decisions under rule 16, shall remain confidential except as otherwise specifically provided in these rules. Information from comments in survey reports, self-evaluations, and additional oral or written information under rules 10(f) and (g) and 11(f) and (g), may be summarized for use in a narrative. No commissioner may publicly discuss the substance of the evaluation of any particular justice or judge. Each commission may designate a sole or primary spokesperson to publicly discuss, between July 1 and December 31 of an election year, the process of evaluating the justices and judges.

(b) All recommendations, narratives, and survey reports are confidential until released to the public on the first day following the deadline for judges to declare their intent to stand for retention. Any comments included in the report shall be made available only to commissioners, the justice or judge being evaluated, and the chief justice or chief judge.

(c) Otherwise confidential information may be released only under the following circumstances:

(i) To the supreme court attorney regulation committee, if an allegation is made against a justice or judge in the course of the evaluation process which, if true, would constitute a violation of the Colorado rules of professional conduct, on the same basis as that body provides confidential information to the state commission;

(ii) To the commission on judicial discipline, if an allegation is made against a justice or judge in the course of the evaluation process, which, if true, would constitute a violation of the code of judicial conduct, or which would constitute extra-judicial conduct that reflects adversely on the judiciary, on the same basis as that body provides confidential information to the state commission; or

(iii) With the consent of the justice or judge. A justice or judge disclosing otherwise confidential information shall be deemed to have consented to the release of related confidential information.

Rule 15. Records.

Upon completing its required recommendations and narratives, each commission shall collect all documents and other information, including all copies, received regarding the justices or judges evaluated. Each commission shall forward the documents and other information, including all copies, to the state commission within 30 days following submission of their recommendations and narratives to the state commission. The state commission shall establish guidelines regarding retention of evaluation information, which shall be made available to commissions in subsequent judicial performance evaluation cycles.

Rule 16. Complaints.

(a) Any commissioner, justice or judge may file a written complaint with the state commission regarding any alleged violation of these rules or the statutes governing judicial performance commissions. The state commission shall provide a copy to the chair of the particular district commission, who shall provide a written response. The state commission shall make an independent review and provide its decision to the district commission along with any remedial instructions. The state commission may not reverse any retention recommendation, but may cause a rebuttal to be published with the district commission’s recommendation or direct a district commission to revise a narrative within ten days. Should the district commission fail to satisfactorily comply, the state commission may, in its discretion, rewrite the narrative.

(b) The state commission may, following the redaction of confidential information, publically disclose a complaint, response, and the state commission’s decision.

Amended and adopted by the Court, en banc, December 8, 2011, effective January 1, 2012.

By the Court:

Nancy E. Rice, Justice
Colorado Supreme Court

_____________________________________

Rule Change 2011(18)
Time Calculation Changes to Colorado Rules
Amended and Adopted

The time calculation changes to the Colorado Rules of Civil Procedure (C.R.C.P.) 1 to 122, C.R.C.P. 201 to 260, C.R.C.P. 303 to 411, miscellaneous civil rules, Colorado Appellate Rules, and Colorado Rules of Probate Procedure are available on the Supreme Court’s website at www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Rule_Changes/ 2011/2011_18_ redlined.pdf. Rule Change 2011(18) includes only sections where amendments to the rules have been made. Any sections of the rules not specifically included remain unchanged.

Amended and adopted by the Court, en banc, December 14, 2011, effective January 1, 2012.

By the Court:

Nancy E. Rice, Justice
Colorado Supreme Court

_____________________________________

Rule Change 2011(19)
Time Calculation Changes in the Colorado Rules of Procedure
Amended and Adopted

This rule change includes only sections where amendments to the rules have been made. Any sections of the rules not specifically included remain unchanged.

Amended and adopted by the Court, en banc, December 14, 2011, effective July 1, 2012.

By the Court:

Nancy E. Rice, Justice
Colorado Supreme Court

_____________________________________

Rule 103. Garnishment

SECTION 1

WRIT OF CONTINUING GARNISHMENT (ON EARNINGS OF A NATURAL PERSON)

(f) Effective Garnishment Period.

(1) A writ of continuing garnishment shall be a lien and continuing levy against the nonexempt earnings of the judgment debtor until such time as earnings are no longer due, the underlying judgment is vacated, modified or satisfied in full, the writ is dismissed, or for 91 days (13 weeks) following service of the writ, if the judgment was entered prior to August 8, 2001, and 182 days (26 weeks) following service of the writ if the judgment was entered on or after August 8, 2001, except when such writ is suspended pursuant to subsection (j) of this rule.

(k) Answer and Tender of Payment by Garnishee.

(1) The garnishee shall file the answer to the writ of continuing garnishment with the clerk of the court and send a copy to the judgment creditor no less than 7 nor more than 14 days following the time the judgment debtor receives earnings for the first pay period affected by such writ, or 42 days following the date such writ was served pursuant to section (1)(d) of this rule, whichever is less.

(2) The garnishee shall pay any nonexempt earnings and deliver a calculation of the amount of exempt earnings to the clerk of the court which issued such writ no less than 7 nor more than 14 days following the time the judgment debtor receives earnings affected by such writ. However, if the judgment creditor is represented by an attorney, or is a collection agency licensed pursuant to section 12-14-101, et seq., C.R.S., the garnishee may be directed to pay any nonexempt earnings and deliver a calculation of the amount of exempt earnings to the attorney or the licensed collection agency.

(l) Disbursement of Garnished Earnings.

(1) If no objection is filed by the judgment debtor within 7 days, the garnishee shall send the nonexempt earnings to the attorney, collection agency licensed pursuant to section 12-14-101, et seq., C.R.S., or court designated on the writ of continuing garnishment (C.R.C.P. Form 26, page 1, paragraph e). The judgment creditor shall refund to the judgment debtor any disbursement in excess of the amount necessary to satisfy the judgment.

SECTION 2

WRIT OF GARNISHMENT (ON PERSONAL PROPERTY OTHER THAN EARNINGS OF A NATURAL PERSON) WITH NOTICE OF EXEMPTION AND PENDING LEVY

(g) Court Order on Garnishment Answer.

(2) No such judgment and request shall enter until the judgment creditor has made a proper showing that: (A) a copy of the writ with notice was properly served upon the judgment debtor, and (B) no written claim of exemption was filed within 7 days after such service or a written claim of exemption was properly filed and the same was disallowed.

(4) No such order shall enter until the judgment creditor has made a proper showing that: (A) a copy of the writ with notice was properly served upon the judgment debtor, and (B) no written claim of exemption was filed within 7 days after such service or a written claim of exemption was properly filed with the court and the same was disallowed.

SECTION 3

WRIT OF GARNISHMENT FOR SUPPORT

(g) Answer and Tender of Payment by Garnishee.

(1) The garnishee shall answer the writ of garnishment for support no less than 7 nor more than 14 days following the time the judgment debtor receives earnings for the first pay period affected by such writ. If the judgment debtor is not employed by the garnishee at the time the writ is served, the garnishee shall answer the writ within 14 days from the service thereof.

(2) The garnishee shall pay any nonexempt earnings and deliver a calculation of the amount of exempt earnings, as directed in the writ of garnishment for support, to the family support registry, the clerk of the court which issued such writ, or to the judgment creditor no less than 7 nor more than 14 days following the time the judgment debtor receives earnings during the Effective Garnishment Period of such writ.

SECTION 6

JUDGMENT DEBTOR’S OBJECTION—WRITTEN CLAIM OF EXEMPTION—HEARING

(a) Judgment Debtor’s Objection to Calculation of Exempt Earnings Under Writ of Continuing Garnishment.

(1) If a judgment debtor objects to the initial or a subsequent calculation of the amount of exempt earnings, the judgment debtor shall have 7 days from the receipt of the copy of the writ of garnishment or calculation of the amount of exempt earnings for subsequent pay periods, within which to resolve the issue of such miscalculation by agreement with the garnishee.

(2) If the judgment debtor’s objection is not resolved with the garnishee within 7 days upon good faith effort, the judgment debtor may file a written objection setting forth, with reasonable detail, the grounds for such objection. Such objection must be filed within 14 days from receipt of the copy of writ of garnishment or calculation of the amount of exempt earnings for subsequent pay periods.

(b) Judgment Debtor’s Claim of Exemption Under a Writ With Notice.

(1) When a garnishee, pursuant to a writ with notice, holds any personal property of the judgment debtor, other than earnings, which the judgment debtor claims to be exempt, the judgment debtor, within 14 days after being served a copy of such writ as required by Section 2(d)(2) of this rule, shall make and file a written claim of exemption with the clerk of the court in which the judgment was entered.

(c) Hearing on Objection or Claim of Exemption.

(1) Upon the filing of an objection pursuant to Section 6(a) of this rule or the filing of a claim of exemption pursuant to Section 6(b) of this rule, the court in which the judgment was entered shall set a time for hearing of such objection or claim of exemption which hearing shall not be more than 14 days after the filing of such objection or claim of exemption.

SECTION 7

FAILURE OF GARNISHEE TO ANSWER (ALL FORMS OF GARNISHMENT)

(a) Default Entered by Clerk of Court.

(2) No default shall be entered in an attachment action against the garnishee until the expiration of 35 days after service of a writ of garnishment upon the garnishee.

SECTION 8

TRAVERSE OF ANSWER (ALL FORMS OF GARNISHMENT)

(a) Time for Filing of Traverse. The judgment creditor, plaintiff in attachment or intervenor in attachment, may file a traverse of an answer to any form of writ provided by this rule provided such traverse is filed within the greater time period of 21 days from the date such answer should have been filed with the court or 21 days after such answer was filed with the court. The failure to timely file a traverse shall be deemed an acceptance of the answer as true.

Rule 105.1. Spurious Lien or Document

(1) Direct any lien claimant and any person who recorded or filed the lien or document to appear as respondent before the court at a time and place certain not less than 14 days nor more than 21 days after service of the order to show cause why the lien or document should not be declared invalid and why such other relief provided for by statute should not be granted;

(b) Notice; Service. The petitioner shall issue a notice to respondent setting forth the time and place for the hearing on the show cause order, which hearing shall be set not less than 14 days nor more than 21 days from service of the show cause order, and shall advise respondent of the right to file and serve a response as provided in section (c), including a reference to the last day for filing a response and the addresses at which such response must be filed and served. The notice shall contain the return address of the petitioner or the petitioner’s attorney. The notice and a copy of the petition and order to show cause shall be served by the petitioner on the respondent not less than 14 days prior to the date set for the hearing, by (1) mailing a true copy thereof by first class mail to each respondent at the address or addresses stated in the lien or document and (2) filing a copy with the clerk of the district court and delivering a second copy to the clerk of the district court for posting in the clerk’s office, which shall be evidenced by the certificate of the petitioner or petitioner’s agent or attorney. Alternatively, the petitioner may serve the petition, notice, and show cause order upon each respondent in accordance with Rule 4, or, in the event the claim is brought as a counterclaim or cross-claim in a pending action in which the parties have appeared, in accordance with Rule 5.

(c) Response; Contents; Filing and Service. Not less than 7 days prior to the date set for the hearing, the respondent shall file and serve a verified response to the petition, setting forth the facts supporting the validity of the lien or document and attaching copies of all documents which support the validity of the lien or document. Service of such response shall be made in accordance with Rule 5(b).

Rule 403. Garnishment

SECTION 1

WRIT OF CONTINUING GARNISHMENT (ON EARNINGS OF A NATURAL PERSON)

(f) Effective Garnishment Period.

(1) A writ of continuing garnishment shall be a lien and continuing levy against the nonexempt earnings of the judgment debtor until such time as earnings are no longer due, the underlying judgment is vacated, modified or satisfied in full, the writ is dismissed, or for 91 days (13 weeks) following service of the writ, if the judgment was entered prior to August 8, 2001, and 182 days (26 weeks) following service of the writ if the judgment was entered on or after August 8, 2001, except when such writ is suspended pursuant to subsection (j) of this rule.

(k) Answer and Tender of Payment by Garnishee.

(1) The garnishee shall file the answer to the writ of continuing garnishment with the clerk of the court and send a copy to the judgment creditor no less than 7 nor more than 14 days following the time the judgment debtor receives earnings for the first pay period affected by such writ, or 42 days following the date such writ was served pursuant to section (1)(d) of this rule, whichever is less.

(2) The garnishee shall pay any nonexempt earnings and deliver a calculation of the amount of exempt earnings to the clerk of the court which issued such writ no less than 7 nor more than 14 days following the time the judgment debtor receives earnings affected by such writ. However, if the judgment creditor is represented by an attorney, or is a collection agency licensed pursuant to section 12-14-101, et seq., C.R.S., the garnishee may be directed to pay any nonexempt earnings and deliver a calculation of the amount of exempt earnings to the attorney or the licensed collection agency.

(l) Disbursement of Garnished Earnings.

(1) If no objection is filed by the judgment debtor within 7 days, the garnishee shall send the nonexempt earnings to the attorney, collection agency licensed pursuant to section 12-14-101, et seq., C.R.S., or court designated on the writ of continuing garnishment (C.R.C.P. Form 26, page 1, paragraph e). The judgment creditor shall refund to the judgment debtor any disbursement in excess of the amount necessary to satisfy the judgment.

SECTION 2

WRIT OF GARNISHMENT (ON PERSONAL PROPERTY OTHER THAN EARNINGS OF A NATURAL PERSON) WITH NOTICE OF EXEMPTION AND PENDING LEVY

(g) Court Order on Garnishment Answer.

(2) No such judgment and request shall enter until the judgment creditor has made a proper showing that: (A) a copy of the writ with notice was properly served upon the judgment debtor, and (B) no written claim of exemption was filed within 7 days after such service or a written claim of exemption was properly filed and the same was disallowed.

(4) No such order shall enter until the judgment creditor has made a proper showing that: (A) a copy of the writ with notice was properly served upon the judgment debtor, and (B) no written claim of exemption was filed within 7 days after such service or a written claim of exemption was properly filed with the court and the same was disallowed.

SECTION 3

WRIT OF GARNISHMENT FOR SUPPORT

(g) Answer and Tender of Payment by Garnishee.

(1) The garnishee shall answer the writ of garnishment for support no less than 7 nor more than 14 days following the time the judgment debtor receives earnings for the first pay period affected by such writ. If the judgment debtor is not employed by the garnishee at the time the writ is served, the garnishee shall answer the writ within 14 days from the service thereof.

(2) The garnishee shall pay any nonexempt earnings and deliver a calculation of the amount of exempt earnings, as directed in the writ of garnishment for support, to the family support registry, the clerk of the court which issued such writ, or to the judgment creditor no less than 7 nor more than 14 days following the time the judgment debtor receives earnings during the Effective Garnishment Period of such writ.

SECTION 6

JUDGMENT DEBTOR’S OBJECTION—WRITTEN CLAIM OF EXEMPTION—HEARING

(a) Judgment Debtor’s Objection to Calculation of Exempt Earnings Under Writ of Continuing Garnishment.

(1) If a judgment debtor objects to the initial or a subsequent calculation of the amount of exempt earnings, the judgment debtor shall have 7 days from the receipt of the copy of the writ of garnishment or calculation of the amount of exempt earnings for subsequent pay periods, within which to resolve the issue of such miscalculation by agreement with the garnishee.

(2) If the judgment debtor’s objection is not resolved with the garnishee within 7 days upon good faith effort, the judgment debtor may file a written objection setting forth, with reasonable detail, the grounds for such objection. Such objection must be filed within 14 days from receipt of the copy of writ of garnishment or calculation of the amount of exempt earnings for subsequent pay periods.

(b) Judgment Debtor’s Claim of Exemption Under a Writ With Notice.

(1) When a garnishee, pursuant to a writ with notice, holds any personal property of the judgment debtor, other than earnings, which the judgment debtor claims to be exempt, the judgment debtor, within 14 days after being served a copy of such writ as required by Section 2(d)(2) of this rule, shall make and file a written claim of exemption with the clerk of the court in which the judgment was entered.

(c) Hearing on Objection or Claim of Exemption.

(1) Upon the filing of an objection pursuant to Section 6(a) of this rule or the filing of a claim of exemption pursuant to Section 6(b) of this rule, the court in which the judgment was entered shall set a time for hearing of such objection or claim of exemption which hearing shall not be more than 14 days after the filing of such objection or claim of exemption.

SECTION 7

FAILURE OF GARNISHEE TO ANSWER (ALL FORMS OF GARNISHMENT)

(a) Default Entered by Clerk of Court.

(2) No default shall be entered in an attachment action against the garnishee until the expiration of 35 days after service of a writ of garnishment upon the garnishee.

SECTION 8

TRAVERSE OF ANSWER (ALL FORMS OF GARNISHMENT)

(a) Time for Filing of Traverse. The judgment creditor, plaintiff in attachment or intervenor in attachment, may file a traverse of an answer to any form of writ provided by this rule provided such traverse is filed within the greater time period of 21 days from the date such answer should have been filed with the court or 21 days after such answer was filed with the court. The failure to timely file a traverse shall be deemed an acceptance of the answer as true.

Rule 411. Appeals

(a) Notice of Appeal; Time for Filing; Bond. If either party in a civil action believes that the judgment of the county court is in error, that party may appeal to the district court by filing a notice of appeal in the county court within 14 days after the date of entry of judgment. The notice shall be in the form appearing in the Appendix to Chapter 25, Form 4, C.R.C.P. If the notice of the entry of judgment is transmitted to the parties by mail, the time for the filing of the notice of appeal shall commence from the date of the mailing of the notice. The appealing party shall also file within the said 14 days an appeal bond with the clerk of the county court. The bond shall be furnished by a corporate surety authorized and licensed to do business in this state as a surety, or one or more sufficient private sureties, or may be a cash deposit by the appellant and, if the appeal is taken by the plaintiff, shall be conditioned to pay the costs of the appeal and the counterclaim, if any, and, if the appeal be taken by the defendant, shall be conditioned to pay the costs and judgment if the appealing party fail. The bond shall be approved by the judge or the clerk. Upon filing of the notice of appeal, the posting and approval of the bond, and the deposit by the appellant of an estimated fee in advance for preparing the record, the county court shall discontinue all further proceedings and recall any execution issued. The appellant shall also, within 35 days after the filing of the notice of appeal, docket the case in the district court and pay the docket fee.

(b) Preparation of Record on Appeal. Upon the deposit of the estimated record fee, the clerk of the court shall prepare and issue as soon as may be possible a record of the proceedings in the county court, including the summons, the complaint, proof of service, and the judgment. The record shall also include a transcription of such part of the actual evidence and other proceedings as the parties may designate or, in lieu of transcription, to which they may stipulate. If a stenographic record has been maintained or the parties agree to stipulate, the party appealing shall lodge with the clerk of the court the reporter’s transcript of the designated evidence or proceedings, or a stipulation covering such items within 42 days after judgment. If the proceedings have been electrically recorded, the transcription of designated evidence and proceedings shall be prepared in the office of the clerk of the county court or under the supervision of the clerk, within 42 days after judgment. The clerk shall notify, in writing, the opposing parties of the completion of the record, and such parties shall have 14 days within which to file objections. If none are received, the record shall be certified forthwith by the judge. If objections are made, the parties shall be called for hearing and the objections settled by the county judge as soon as possible, and the record then certified.

(d) Briefs. A written brief shall contain a statement of the matters relied upon as constituting error and the arguments with respect thereto. It shall be filed in the district court by the appellant 21 days after filing of the record therein. A copy of such brief shall be served on the appellee. The appellee may file an answering brief within 21 days after such service. In the discretion of the district court, the time for filing of briefs and answers may be extended. When the briefs have been filed the matter shall stand at issue and shall be determined on the record and the briefs, with such oral argument as the court in its discretion may allow. No trial shall be held de novo in the district court unless the record of the proceedings in the county court have been lost or destroyed or for some other valid reason cannot be produced; or unless a party by proper proof to the court establishes that there is new and material evidence unknown and undiscoverable at the time of the trial in the county court which, if presented in a de novo trial in the district court, might affect the outcome.

COLORADO RULES OF JUVENILE PROCEDURE
(CH. 28)

Rule 6. Petition in Adoption

(b) At least 14 days prior to the hearing on the petition, petitioner(s) shall file with the court the following documentation:

COLORADO MUNICIPAL COURT
RULES OF PROCEDURE (CH. 30)

Rule 210. Arraignment

(a) In Court.

(4) (VI) To a trial by jury where such right is granted by statute or ordinance, together with the requirement that the defendant, if desiring a jury trial, demand such trial by jury in writing within 21 days after arraignment or entry of a plea; also the number of jurors allowed by law, and of the requirement that the defendant, if desiring a jury trial, tender to the court within 21 days after arraignment or entry of a plea a jury fee of $25 unless the fee be waived by the judge because of the indigence of the defendant.

Rule 223. Trial by Jury or by the Court

(a) Trial by Jury. Trial shall be to the court, unless the defendant is entitled to a jury trial under the constitution, ordinance, charter, or general laws of the state, in which case the defendant shall have a jury, if, within21 days after arraignment or entry of a plea, the defendant files with the court a written jury demand and at the same time tenders to that court a jury fee of $25, unless the fee is waived by the judge because of the indigence of the defendant. If the action is dismissed or the defendant is acquitted of the charge, or if the defendant, having paid the jury fee, files with the court at least 7 days before the scheduled trial date a written waiver of jury trial, the jury fee shall be refunded. A defendant who fails to file with the court the written jury demand as provided above waives the right to a jury trial.

Rule 229. Motion for Acquittal

(c) Motion after Verdict or Discharge of Jury. If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment or acquittal may be made or renewed within14 days after the jury is discharged or within such further time as the court may fix during the 14 day period. If a verdict of guilty is returned, the court may on such motion set aside the verdict and enter judgment of acquittal. If no verdict is returned, the court may enter judgment of acquittal. It shall not be necessary to the making of such a motion that such a similar motion has been made prior to the submission of the case to the jury.

Rule 241. Search and Seizure

(d) Execution and Return With Inventory. The search warrant may be executed and returned only within 14 days after its date. The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and receipt for any property taken or shall leave the copy and receipt at the place from which the property was taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one credible person other than the applicant for the warrant for the person from whose possession or premises the property was taken, and shall be verified by the officer. The judge upon request shall deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant.

Rule 245. Time

(a) Computation. In computing any period of time prescribed or allowed by these rules, the day of the event from which the designated period of time begins to run is not to be included. Thereafter, every day shall be counted including holidays, Saturdays, and Sundays. The last day of the period so computed is to be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. The "next day" is determined by continuing to count forward when the period is measured after an event and backward when measured before an event. As used in these Rules, "legal holiday" includes the first day of January, observed as New Year’s Day; the third Monday in January, observed as Martin Luther King Day; the third Monday in February, observed as Washington-Lincoln Day; the last Monday in May, observed as Memorial Day; the fourth day of July, observed as Independence Day; the first Monday in September, observed as Labor Day; the second Monday in October, observed as Columbus Day; the 11th day of November, observed as Veteran’s Day; the fourth Thursday in November, observed as Thanksgiving Day; the twenty-fifth day of December, observed as Christmas Day, and any other day except Saturday or Sunday when the court is closed.

(c) [Repealed].

(d) For Motions—Affidavits. A written motion, other than one which may be heard ex parte, and notice of the hearing thereon, shall be served not later than 7 days before the time specified for the hearing, unless a different period is fixed by rule or order of court. For cause shown, such an order may be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion, and opposing affidavits may be served not less than one day before the hearing, unless otherwise ordered by the court.

(e) [Repealed].

COLORADO APPELLATE RULES

Rule 4. Appeal as of Right—When Taken

(a) Appeals in Civil Cases (Other than Appeals or Appellate Review Within C.A.R. 3.1, 3.2, 3.3 and 3.4). Except as provided in Rule 4(e), in a civil case in which an appeal is permitted by law as of right from a trial court to the appellate court, the notice of appeal required by C.A.R. 3 shall be filed with the appellate court with an advisory copy served on the clerk of the trial court within 49 days of the date of the entry of the judgment, decree, or order from which the party appeals. In appeals from district court review of agency actions, such notice of appeal shall be in addition to the statutory 45-day notice of intent to seek appellate review filed with the district court required by C.R.S. 24-4-106(9). If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal is filed, or within the time otherwise prescribed by this section (a), whichever period last expires.

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

Upon a showing of excusable neglect, the appellate court may extend the time for filing the notice of appeal by a party for a period not to exceed 35 days from the expiration of the time otherwise prescribed by this section (a). Such an extension may be granted before or after the time otherwise prescribed by this section (a) has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate.

[Comment: C.A.R. 4(a) provides for the notice of appeal to be filed with the appellate court and a copy to be served upon the trial court. Time for filing the notice of appeal is increased to 49 days.]

(b) Appeals in Criminal Cases.

(1) Except as provided in Rule 4(e), in a criminal case the notice of appeal by a defendant shall be filed in the appellate court and an advisory copy served on the clerk of the trial court within 49 days after the entry of the judgment or order appealed from. A notice of appeal filed after the announcement of a decision, sentence, or order but before entry of the judgment or order shall be treated as filed on the date of such entry. If a timely motion in arrest of judgment or for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within 49 days after the entry of an order denying the motion. A motion for a new trial based on the ground of newly discovered evidence will similarly extend the time for appeal from a judgment of conviction if the motion is made within 14 days after entry of the judgment. A judgment or order is entered within the meaning of this section (b) when it is entered in the criminal docket. Upon a showing of excusable neglect the appellate court may, before or at any time after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 35 days from the expiration of the time otherwise prescribed by this section (b).

[Comment: C.A.R. 4(b) has been altered to make it conform more closely to C.A.R. 4(a).]

(2) Unless otherwise provided by statute or Colorado appellate rule, when an appeal by the state or the people is authorized by statute, the notice of appeal shall be filed in the Court of Appeals within 49 days after the entry of judgment or order appealed from. The Court of Appeals, after consideration of said appeal, shall issue a written decision answering the issues in the case and shall not dismiss the appeal as without precedential value. The final decision of the Court of Appeals is subject to petition for certiorari to the Supreme Court.

(c) Appellate Review of Felony Sentences.

(1) Availability of Review.

(II) (A) The notice of appeal must be filed within 49 days from the date of the imposition of sentence. The notice shall be filed with the appellate court with an advisory copy served on the clerk of the trial court which imposed the sentence. The time for filing the notice of appeal may be extended by the appellate court.

(d) Appeals of Cases in Which a Sentence of Death Has Been Imposed.

(2) Procedure and Conditions.

(I) The trial court, at the time of imposition of a sentence of death, shall enter an order staying execution of the judgment and sentence until further order of the Supreme Court, and shall direct the clerk of the trial court to mail to the Supreme Court, within 7 days of imposition of sentence, a copy of the judgment, sentence, and mittimus.

(II) The record, as described in subsection (3) of this Rule, shall be prepared in the same form as any other record to be presented to the Supreme Court and shall be transmitted by the clerk of the trial court within 42days of imposition of sentence, or such additional time as may be allowed by the Supreme Court.

COLORADO RULES OF CRIMINAL PROCEDURE

Rule 4. Warrant or Summons Upon Felony Complaint

(c) Execution or Service and Return.

(2) Summons.

(III) Manner. A summons issued pursuant to this Rule may be served in the same manner as the summons in a civil action or by mailing it to the defendant’s last known address, not less than 14 days prior to the time the defendant is required to appear, by registered mail with return receipt requested or certified mail with return receipt requested. Service by mail shall be complete upon the return of the receipt signed by the defendant or signed on behalf of the defendant by one authorized by law to do so. The summons for the appearance of a corporation may be served by a peace officer in the manner provided for service of summons upon a corporation in a civil action.

(IV) Return. At least one business day prior to the return day, the person to whom a summons has been delivered for service shall make return thereof to the county court before whom the summons is returnable. At the request of the prosecuting attorney, made while a complaint is pending, a summons returned unserved, or a duplicate thereof, may be delivered by the county judge to any peace officer or other authorized person for service.

Rule 4.1. County Court Procedure—Misdemeanor and Petty Offense—Warrant or Summons Upon Complaint

(c) Summons, Summons and Complaint.

(1) Summons. A summons issued by the county court in a prosecution for a misdemeanor or a class 1 petty offense may be served by giving a copy to the defendant personally, or by leaving a copy at the defendant’s usual place of abode with some person over the age of eighteen years residing therein, or by mailing a copy to the defendant’s last known address not less than 14 days prior to the time the defendant is required to appear by registered mail with return receipt requested or certified mail with return receipt requested. Service by mail shall be complete upon the return of the receipt signed by the defendant or signed on behalf of the defendant by one authorized by law to do so. Personal service shall be made by a peace officer or any disinterested party over the age of eighteen years.

Rule 5. Preliminary Proceedings

(a) Felony Proceedings.

(3) Appearance in the Court not Issuing the Warrant. If the defendant is taken before a court which did not issue the arrest warrant, the court shall inform the defendant of the matters set out in subsection (a)(2) of this Rule and, allowing time for travel, set bail returnable not less than 14 days thereafter before the court which issued the arrest warrant, and shall transmit forthwith all papers in the case to the court which issued the arrest warrant. In the event the defendant does not make bail within forty-eight hours, the sheriff of the county in which the arrest warrant was issued shall return the defendant to the court which issued the warrant.

(4) Preliminary Hearing—County Court Procedures.

(I) Within 7 days after the defendant is brought before the county court, either the prosecutor or the defendant may request a preliminary hearing. Upon such request, the court forthwith shall set the hearing. The hearing shall be held within 35 days of the day of setting, unless good cause for continuing the hearing beyond that time is shown to the court. The clerk of the court shall prepare and give notice of the hearing, or any continuance thereof, to all parties and their counsel.

(VII) If a felony complaint is dismissed prior to a preliminary hearing being held when one is required or, in other cases, prior to being bound over, the prosecution may thereafter file a direct information in the district court pursuant to Rule 7(c)(4) charging the same offense(s), file a felony complaint in the county court charging the same offense(s), or submit the matter to a grand jury. If the prosecution files a subsequent felony complaint charging the defendant with the same offense(s), the felony complaint shall be accompanied by a written statement from the prosecutor providing good cause for dismissing and refiling the charges. Within 21 days of defendant’s first appearance following the filing of the new felony complaint the defendant may request an evidentiary hearing at which the prosecutor shall establish the existence of such good cause.

(VIII) If the county court has bound over the defendant to the district court and the case is thereafter dismissed in the district court before jeopardy has attached, the prosecution may file a direct information in the district court pursuant to Rule 7(c)(5) charging the same offense(s), file a felony complaint in county court charging the same offense(s), or submit the matter to a grand jury, and the case shall then proceed as if the previous case had never been filed. The prosecution shall also file with the felony complaint or the direct information a statement showing good cause for dismissing and then refiling the case. Within 21 days of defendant’s first appearance following the filing of the new felony complaint or the direct filing of the new information the defendant may request an evidentiary hearing at which the prosecutor shall establish the existence of such good cause.

(5) Procedure Upon Failure to Request Preliminary Hearing. If the defendant or prosecutor fails to request a preliminary hearing within 7 days after the defendant has come before the court, the county court shall forthwith order the defendant bound over to the appropriate court of record for trial. In no case shall the defendant be bound over for trial to another court until the preliminary hearing has been held, or until the 7-day period for requesting a preliminary hearing has expired. In appropriate cases, the defendant may be admitted to, or continued upon bail by the county court, but bond shall be made returnable in the trial court at a day and time certain. All court records in the case, except the reporter’s transcript, notes, or recording shall be transferred forthwith by the clerk to the appropriate court of record.

(c) Misdemeanor and Petty Offense Proceedings.

(3) Appearance in the County Court not Issuing the Warrant. If the defendant is taken before a county court which did not issue the arrest warrant, the court shall inform the defendant of the matters set out in subsection (a)(2)(I through VII) of this Rule and, allowing time for travel, set bail returnable not less than 14 days thereafter before the court which issued the arrest warrant, and shall transmit forthwith a transcript of the proceedings and all papers in the case to the court which issued the arrest warrant. In the event the defendant does not make bail within forty-eight hours, the sheriff of the county in which the arrest warrant was issued shall return the defendant to the court which issued the warrant.

Rule 7. The Indictment and the Information

(c) Direct Information.

(2) A preliminary hearing was held either in the county court or in the district court and the court found probable cause did not exist as to one or more counts. If the prosecutor states an intention to proceed in this manner, the bond executed by the defendant shall be continued and returnable in the district court at a day and time certain. If a bond has not been continued, the defendant shall be summoned into court without the necessity of making a new bond. The information shall be accompanied by a written statement from the prosecutor alleging facts which establish that evidence exists which for good cause was not presented by the prosecutor at the preliminary hearing. Within 21 days of defendant’s first appearance following the direct filing the defendant may request an evidentiary hearing at which the prosecutor shall establish the existence of such good cause; or

(4) The case was dismissed before a preliminary hearing was held in the county court or in the district court, when one is required, or, in other cases, before the defendant was bound over to the trial court or otherwise set for arraignment or trial. The information shall be accompanied by a written statement from the prosecutor stating good cause for dismissing and then refiling the case. Within 21 days after defendant’s first appearance following the direct filing the defendant may request a hearing at which the prosecutor shall establish the existence of such good cause. The prosecution may also submit the matter to a grand jury.

(5) The case was dismissed after the district or county court found probable cause at the preliminary hearing if one was required or, in other cases, after the defendant was bound over to the trial court or otherwise set for arraignment or trial, and before jeopardy has attached. If such case was originally filed by direct information in the district court, the prosecution may not file the same offense(s) by a felony complaint in the county court, but the prosecution may charge the same offense(s) by filing a direct information in the district court or may submit the matter to a grand jury, and the case shall then proceed as if the previous case had never been filed. The prosecution shall also file with the direct information or with the felony complaint a statement showing good cause for dismissing and then refiling the case. Within 21 days of defendant’s first appearance following the filing of the new felony complaint or the direct filing of the new information the defendant may request an evidentiary hearing at which the prosecutor shall establish the existence of such good cause.

(g) Bill of Particulars. The court may direct the filing of a bill of particulars. A motion for a bill of particulars may be made only within 14 days after arraignment or at such other time before or after arraignment as may be prescribed by rule or order. A bill of particulars may be amended at any time subject to such conditions as justice requires.

(h) Preliminary Hearing—District Court Procedures.

(2) Upon the making of such a request, or if a dispositional hearing is required, the district court shall set the hearing which shall be held within 35 days of the day of the setting, unless good cause for continuing the hearing beyond that period is shown to the court. The clerk of the court shall prepare and give notice of the hearing, or any continuance thereof, to all parties and their counsel.

Rule 12. Pleadings, Motions Before Trial, Defenses, and Objections

(b) The Motion Raising Defenses and Objections.

(3) Time of Making Motion. The motion shall be made within 21 days following arraignment.

Rule 16. Discovery and Procedure Before Trial

Part I. Disclosure to the Defense

(b) Prosecutor’s Performance of Obligations.

(1) The prosecuting attorney shall perform his or her obligations under subsections (a)(1)(I), (IV), (VII), and with regard to written or recorded statements of the accused or a codefendant under (VIII) as soon as practicable but not later than 21 days after the defendant’s first appearance at the time of or following the filing of charges, except that portions of such reports claimed to be nondiscoverable may be withheld pending a determination and ruling of the court under Part III but the defense must be notified in writing that information has not been disclosed.

(2) The prosecuting attorney shall request court consent and provide the defense with all grand jury transcripts made in connection with the case as soon as practicable but not later than 35 days after indictment.

(3) The prosecuting attorney shall perform all other obligations under subsection (a)(1) as soon as practicable but not later than 35 days before trial.

Part II. Disclosure to Prosecution

(c) Nature of Defense.

Subject to constitutional limitations, the defense shall disclose to the prosecution the nature of any defense, other than alibi, which the defense intends to use at trial. The defense shall also disclose the names and addresses of persons whom the defense intends to call as witnesses at trial. At the entry of the not guilty plea, the court shall set a deadline for such disclosure. In no case shall such disclosure be less than 35 days before trial for a felony trial, or 7 days before trial for a non-felony trial, except for good cause shown. Upon receipt of the information required by this subsection (c), the prosecuting attorney shall notify the defense of any additional witnesses which the prosecution intends to call to rebut such defense within a reasonable time after their identity becomes known.

(d) Notice of Alibi.

The defense, if it intends to introduce evidence that the defendant was at a place other than the location of the offense, shall serve upon the prosecuting attorney as soon as practicable but not later than 35 days before trial a statement in writing specifying the place where he or she claims to have been and the names and addresses of the witnesses he or she will call to support the defense of alibi. Upon receiving this statement, the prosecuting attorney shall advise the defense of the names and addresses of any additional witnesses who may be called to refute such alibi as soon as practicable after their names become known. Neither the prosecuting attorney nor the defense shall be permitted at the trial to introduce evidence inconsistent with the specification, unless the court for good cause and upon just terms permits the specification to be amended. If the defense fails to make the specification required by this section, the court shall exclude evidence in his behalf that he or she was at a place other than that specified by the prosecuting attorney unless the court is satisfied upon good cause shown that such evidence should be admitted.

Part IV. Procedure

(b) Setting of Omnibus Hearing.

(3) The hearing shall be no later than 35 days after arraignment.

Part V. Time Schedules and Discovery Procedures

(b) Time Schedule.

(1) In the event the defendant enters a plea of not guilty or not guilty by reason of insanity, or asserts the defense of impaired mental condition, the court shall set a deadline for such disclosure to the prosecuting attorney of those items referred to in Parts II (b) (1) and (c) herein, subject to objections which may be raised by the defense within that period pursuant to Part III (d) of this rule. In no case shall such disclosure be less than 35 days before trial for a felony trial, or 7 days before trial for a non-felony trial, except for good cause shown.

Rule 21. Change of Venue or Judge

(a) Change of Venue.

(2) The Motion for Change of Venue.

(II) The written motion and the affidavits shall be served upon the opposing party 7 days before the hearing; the nonmoving party may submit a written brief or affidavit or both in opposition to the motion.

(5) Disposition of Confined Defendant. When the defendant is in custody, the court shall order the sheriff, or other officer having custody of the defendant, to remove him not less than 7 days before trial to the jail of the county to which the venue is changed and there deliver him together with the warrant under which he is held, to the jailer. The sheriff or other officers shall endorse on the warrant of commitment the reason for the change of custody, and deliver the warrant, with the prisoner, to the jailer of the proper county, who shall give the sheriff or other officer a receipt and keep the prisoner in the same manner as if he had originally been committed to his custody.

(b) Substitution of Judges.

(1) Within 14 days after a case has been assigned to a court, a motion, verified and supported by affidavits of at least two credible persons not related to the defendant, may be filed with the court and served on the opposing party to have a substitution of the judge. Said motion may be filed after the 14-day period only if good cause is shown to the court why it was not filed within the original 14-day period. The motion shall be based on the following grounds:

Rule 23. Trial by Jury or to the Court

(3) Every person accused of a class 1 or class 2 petty offense has the right to be tried by a jury of three, if he or she:

(I) Files a written jury demand within 21 days after entry of a plea;

(II) Tenders twenty-five dollars to the court within 21 days after entry of a plea, unless such fee is waived by the judge because of the indigence of the defendant. If the charge is dismissed or the defendant is acquitted of the charge, or if the defendant, having paid the jury fee, files with the court, at least 7 days before the scheduled trial date a written waiver of jury trial, the jury fee shall be returned to the defendant.

Rule 29. Motion for Acquittal

(c) Motion After Verdict or Discharge of Jury. If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within 14 days after the jury is discharged or within such further time as the court may fix during the 14-day period. If a verdict of guilty is returned, the court may on such motion set aside the verdict and enter judgment of acquittal. If no verdict is returned, the court may enter judgment of acquittal. It shall not be necessary to the making of such a motion that such a similar motion has been made prior to the submission of the case to the jury.

Rule 32. Sentence and Judgment

(f) Proceedings for Revocation of Probation.

(4) If the probationer is in custody, the hearing shall be held within 14 days after the filing of the complaint, unless delay or continuance is granted by the court at the instance or request of the probationer or for other good cause found by the court justifying further delay.

(5) If the court determines that a violation of a condition or conditions of probation has been committed, it shall within 7 days after the said hearing either revoke or continue the probation. In the event probation is revoked, the court may then impose any sentence, including probation which might originally have been imposed or granted.

Rule 32.1. Death Penalty Sentencing Hearing

(b) Statement of Intention to Seek Death Penalty. In any class 1 felony case in which the prosecution intends to seek the death penalty, the prosecuting attorney shall file a written statement of that intention with the trial court no later than 63 days (9 weeks) after arraignment and shall serve a copy of the statement on the defendant’s attorney of record or the defendant if appearing pro se.

(d) Discovery Procedures for Sentencing Hearing.

(1) Aggravating Factors. Not later than 21 days after the filing of the written statement of intention required in subsection (b) of this rule, the prosecuting attorney shall provide to the defendant, and file with the court a list of the aggravating factors enumerated at section 18-1.3-1201(5), 6 C.R.S., and that the prosecuting attorney intends to prove at the hearing.

(2) Prosecution Witnesses. Not later than 21 days after the filing of the written statement of intention required in subsection (b) of this rule, the prosecuting attorney shall provide to the defendant a list of the witnesses whom the prosecuting attorney may call at the sentencing hearing and shall promptly furnish the defendant with written notification of any such witnesses who subsequently become known or the materiality of whose testimony subsequently becomes known. Along with the name of the witness, the prosecuting attorney shall furnish the witness’ address and date of birth, the subject matter of the witness’ testimony, and any written or recorded statement of that witness, including notes.

(3) Prosecution Books, Papers, Documents. Not later than21 days after the filing of the written statement of intention required in subsection (b) of this rule, the prosecuting attorney shall provide to the defendant a list of the books, papers, documents, photographs, or tangible objects, and access thereto, that the prosecuting attorney may introduce at the sentencing hearing and shall promptly furnish the defendant written notification of additional such items as they become known.

(4) Prosecution Experts. As soon as practicable but not later than 63 days (9 weeks) before trial, the prosecuting attorney shall provide to the defendant any reports, recorded statements, and notes, including results of physical or mental examinations and scientific tests, experiments, or comparisons, of any experts whom the prosecuting attorney intends to call as a witness at the sentencing hearing and shall promptly furnish the defendant additional such items as they become available.

(5) Material Favorable to the Accused. Not later than 21 days after the filing of the written statement of intention required in subsection (b) of this rule, the prosecuting attorney shall make available to the defendant any material or information within the prosecuting attorney’s possession or control that would tend to mitigate or negate the finding of any of the aggravating factors the prosecuting attorney intends to prove at the sentencing hearing, and the prosecuting attorney shall promptly make available to the defendant any such material or information that subsequently comes into the prosecuting attorney’s possession or control.

(6) Prosecution’s Rebuttal Witnesses. Upon receipt of the information required by subsection (7), the prosecuting attorney shall notify the defendant as soon as practicable but not later than 14 days before trial of any additional witnesses whom the prosecuting attorney intends to call in response to the defendant’s disclosures.

(7) Defendant’s Disclosure.

(A) Subject to constitutional limitations, the defendant shall provide the prosecuting attorney with the following information and materials not later than 35 days before trial:

(B) Any material subject to this subsection (7) that the defendant believes contains self-incriminating information that is privileged from disclosure to the prosecution prior to the sentencing hearing shall be submitted by the defendant to the trial judge under seal no later than 49 days before trial. The trial judge shall review any material submitted under seal pursuant to this paragraph (B) to determine whether it is in fact privileged.

(II) If the trial judge finds any of the material submitted under seal pursuant to this paragraph (B) to be not privileged from disclosure to the prosecution prior to the sentencing hearing, the trial judge shall notify the defense of its findings and allow the defense 7 days after such notification in which to seek a modification, review or stay of the court’s order requiring disclosure.

Rule 32.2. Death Penalty Post-Trial Procedures

(b) Trial Court Procedure.

(2) Motions for New Trial. The defendant may file any post-trial motions, pursuant to Crim. P. 33, no later than 21 days after the imposition of sentence. The trial court, in its discretion, may rule on such motion before or after the sentencing hearing, but must rule no later than 91 days (13 weeks) after the imposition of sentence.

(3) Advisement and Order. Within 7 days after the imposition of a sentence of death, the court shall hold a hearing (advisement date) and shall advise the defendant pursuant to sections 16-12-204 and 205. On the advisement date, the court shall:

(III).Order the prosecuting attorney to deliver to counsel for the defendant within 7 days of the advisement date one copy of all material and information in the prosecuting attorney’s possession or control that is discoverable under Crim. P. 16 or pertains to punishment, unless such material and information has been previously provided to that counsel. Costs of copying and delivery of such material and information shall be paid by the prosecuting attorney;

(IV) If new counsel is appointed for the defendant, order defendant’s trial counsel, at his or her cost, to deliver a complete copy of trial counsel’s file to new counsel within 7 days of the advisement date;

(V) Direct that any post-conviction review motions be filed within 154 days (22 weeks) of the advisement date; and

(4) Resolution of Post-conviction Motions. The court, upon receipt of any motion raising post-conviction review issues, as described in section 16-12-206, shall promptly determine whether an evidentiary hearing is necessary, and if so, shall schedule the matter for hearing within 63 days (9 weeks) of the filing of such motions and enter its order on all motions within 35 days of the hearing. If no evidentiary hearing is required, the trial court shall rule within 35 days of the last day for filing the motions.

(c) Appellate Procedure.

(1) Unitary Notice of Appeal. The notice of appeal for the direct appeal and the notice of appeal for all post-conviction review shall be filed by unitary notice in the supreme court no later than 7 days after the trial court’s order on post-conviction review motions. The unitary notice of appeal need conform only to the requirements of sections (1), (2), (6) and (8) of C.A.R. 3(g).

(2) Briefs. Counsel for defendant shall file an opening brief no later than 182 days (26 weeks) after the filing of the notice of appeal. The prosecution shall file an answer brief no later than 126 days (18 weeks) after filing of the opening brief. Counsel for defendant may file a reply brief no later than 63 days (9 weeks) after filing of the answer brief. Extensions of time will not be granted except on a showing of extraordinary circumstances that could not have been foreseen and prevented. The opening brief may not exceed 250 pages or, in the alternative, 79, 250 words; the answer brief may not exceed 250 pages or, in the alternative, 79, 250 words; and the reply brief may not exceed 100 pages or, in the alternative, 31,700 words. The Supreme Court may approve extensions not to exceed 75 pages or, in the alternative, 23,775 words for the opening and answer briefs, and 50 pages or 15, 850 words for the reply brief upon a showing of compelling need.

(4) Further Proceedings.

(II) Any notice of appeal concerning a trial court decision entered pursuant to section 16-12-209 or concerning any second or subsequent request for relief filed by the defendant, shall be filed in the supreme court within 35 days of the entry of the trial court’s order. Such appeal shall be governed by the Colorado appellate rules as may be modified by the supreme court in case-specific orders designed to expedite the proceedings.

Rule 33. New Trial

(c) Motion; Contents; Time.

The court may grant a defendant a new trial if required in the interests of justice. The motion for a new trial shall be in writing and shall point out with particularity the defects and errors complained of. A motion based upon newly discovered evidence or jury misconduct shall be supported by affidavits. A motion for a new trial based upon newly discovered evidence shall be filed as soon after entry of judgment as the facts supporting it become known to the defendant, but if a review is pending the court may grant the motion only on remand of the case. A motion for a new trial other than on the ground of newly discovered evidence shall be filed within 14 days after verdict or finding of guilt or within such additional time as the court may fix during the 14-day period.

Rule 34. Arrest of Judgment

The court shall arrest judgment if the indictment or information, complaint, or summons and complaint does not charge an offense, or if the court was without jurisdiction of the offense charged. The motion in arrest of judgment shall be made within14 days after verdict or finding of guilt or within such further time as the court may fix during the 14-day period. A motion in arrest of judgment may be set forth alternatively as a part of a motion for a new trial.

Rule 35. Postconviction Remedies

(b) Reduction of Sentence. The court may reduce the sentence provided that a motion for reduction of sentence is filed (1) within 126 days (18 weeks) after the sentence is imposed, or (2) within 126 days (18 weeks) after receipt by the court of a remittitur issued upon affirmance of the judgment or sentence or dismissal of the appeal, or (3) within 126 days (18 weeks) after entry of any order or judgment of the appellate court denying review or having the effect of upholding a judgment of conviction or sentence. The court may, after considering the motion and supporting documents, if any, deny the motion without a hearing. The court may reduce a sentence on its own initiative within any of the above periods of time.

(c) Other Remedies.

(3)(III) If a motion fails to comply with Subsection (II) the court shall return to the defense a copy of the document filed along with a blank copy of Form 4 and direct that a motion in substantial compliance with the form be filed within 49 days.

(IV) The court shall promptly review all motions that substantially comply with Form 4, Petition for Postconviction Relief Pursuant to Crim. P. 35(c). In conducting this review, the court should consider, among other things, whether the motion is timely pursuant to § 16-5-402, whether it fails to state adequate factual or legal grounds for relief, whether it states legal grounds for relief that are not meritorious, whether it states factual grounds that, even if true, do not entitle the party to relief, and whether it states factual grounds that, if true, entitle the party to relief, but the files and records of the case show to the satisfaction of the court that the factual allegations are untrue. If the motion and the files and record of the case show to the satisfaction of the court that the defendant is not entitled to relief, the court shall enter written findings of fact and conclusions of law in denying the motion. The court shall complete its review within 63 days (9 weeks) of filing or set a new date for completing its review and notify the parties of that date.

(V) If the court does not deny the motion under (IV) above, the court shall cause a complete copy of said motion to be served on the prosecuting attorney if one has not yet been served by counsel for the defendant. If the defendant has requested counsel be appointed in the motion, the court shall cause a complete copy of said motion to be served on the Public Defender. Within 49 days, the Public Defender shall respond as to whether the Public Defender’s Office intends to enter on behalf of the defendant pursuant to § 21-1-104(1)(b), 6 C.R.S. In such response, the Public Defender shall identify whether any conflict exists, request any additional time needed to investigate, and add any claims the Public Defender finds to have arguable merit. Upon receipt of the response of the Public Defender, or immediately if no counsel was requested by the defendant or if the defendant already has counsel, the court shall direct the prosecution to respond to the defendant’s claims or request additional time to respond within 35 days and the defendant to reply to the prosecution’s response within 21 days. The prosecution has no duty to respond until so directed by the court. Thereafter, the court shall grant a prompt hearing on the motion unless, based on the pleadings, the court finds that it is appropriate to enter a ruling containing written findings of fact and conclusions of law. At the hearing, the court shall take whatever evidence is necessary for the disposition of the motion. The court shall enter written or oral findings either granting or denying relief within 63 days (9 weeks) of the conclusion of the hearing or provide the parties a notice of the date by which the ruling will be issued.

Rule 37. Appeals From County Court

(a) Filing Notice of Appeal and Docketing Appeal. The district attorney may appeal a question of law, and the defendant may appeal a judgment of the county court in a criminal action under simplified procedure to the district court of the county. To appeal the appellant shall, within 35 days after the date of entry of the judgment or the denial of posttrial motions, whichever is later, file notice of appeal in the county court, post such advance costs as may be required for the preparation of the record and serve a copy of the notice of appeal upon the appellee. He shall also, within such 35 days, docket the appeal in the district court and pay the docket fee. No motion for new trial or in arrest of judgment shall be required as a prerequisite to an appeal, but such motions if filed shall be pursuant to Rule 33(b) of these Rules.

(b) Contents of Notice of Appeal and Designation of Record. The notice of appeal shall state with particularity the alleged errors of the county court or other grounds relied upon for the appeal, and shall include a stipulation or designation of the evidence and other proceedings which the appellant desires to have included in the record certified to the district court. If the appellant intends to urge upon appeal that the judgment or a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion. The appellee shall have 14 days after service upon him of the notice of appeal to file with the clerk of the county court and serve upon the appellant a designation of any additional parts of the transcript or record which he deems necessary. The advance cost of preparing the additional record shall be posted by the appellant with the clerk of the county court within 7 days after service upon him of the appellee’s designation, or the appeal will be dismissed. If the district court finds that any part of the additional record designated by the appellee was unessential to a complete understanding of the questions raised by the appeal, it shall order the appellee to reimburse the appellant for the cost advanced for the preparation of such part without regard to the outcome of the appeal.

(c) Contents of Record on Appeal. Upon the filing of a notice of appeal and upon the posting of such advance costs by the appellant, as may be required for the preparation of a record, unless the appellant is granted leave to proceed as an indigent, the clerk of the county court shall prepare and issue as soon as may be possible a record of the proceedings in the county court, including the summons and complaint or warrant, the separate complaint if any has been issued, and the judgment. The record shall also include a transcription or a joint stipulation of such part of the actual evidence and other proceedings as the parties may designate. If the proceedings have been electrically recorded, the transcription of designated evidence and proceedings shall be prepared in the office of the clerk of the court, either by him or under his supervision, within 42 days after judgment or within such additional time as may be granted by the county court. The clerk shall notify in writing the opposing parties of the completion of the record, and such parties shall have 14 days within which to file objections. If none are received, the record shall be certified forthwith by the judge. If objections are made, the parties shall be called for hearing and the objections settled by the county judge and the record then certified.

(e) Briefs. A written brief setting out matters relied upon as constituting error and outlining any arguments to be made shall be filed in the district court by the appellant within 21 days after certification of the record. A copy of the appellant’s brief shall be served upon the appellee. The appellee may file an answering brief within 21 days after such service. A reply brief may be filed within 14 days after service of the answering brief. In the discretion of the district court, the time for filing briefs and answers may be extended.

Rule 37.1. Interlocutory Appeal From County Court

(b) Filing Notice of Appeal. The prosecuting attorney shall file the notice of appeal with the clerk of the district court and shall serve the defendant and the clerk of the trial court with a copy thereof. Such notice of appeal shall be filed within 14 days of the entry of the order being appealed and any docket fee shall be paid at the time of the filing.

(c) Contents of Record on Appeal. The record for an interlocutory appeal shall consist of the information or charging document, the motions filed by the defendant or defendants and the grounds stated in section (a) above, a transcript of all testimony taken at the hearing on said motions and such exhibits or reasonable copies, facsimiles, or photographs thereof as the parties may designate (subject to the provisions in C.A.R. 11(b) pertaining to exhibits of bulk), the order of court ruling on said motions and the date, if one has been fixed, that the case is set for trial or a certificate by the clerk that the case has not been set for trial. The record shall be filed within 14 days of the date of filing the notice of appeal, and may be supplemented by order of the district court.

(d) Briefs. Within 14 days after the record has been filed in the district court, the prosecuting attorney shall file an opening brief. Within 14 days after service of said opening brief, the defendant shall file an answer brief, and the prosecuting attorney shall have 7 days after service of said answer brief to file a reply brief.

rties, the decision of the court shall be by written opinion, copies of which shall be transmitted by the clerk of the court by mail to the trial judge and to all parties. No petition for rehearing shall be permitted. A certified copy of the judgment and directions to the county court, and a copy of the written opinion, if any, shall constitute the mandate of the district court, concluding the appeal and restoring jurisdiction to the county court. Such mandate shall issue and be transmitted by the clerk of the court by mail to the trial judge and all parties on the 44th day after the district court’s oral or written order, unless the district court is given notice by one of the parties that it has sought further review by the supreme court upon a writ of certiorari pursuant to the rules of that court, in which case the mandate shall issue upon notification that certiorari has been denied or upon receiving the remittitur of the supreme court.

Rule 41. Search, Seizure, and Confession

(d) Issuance, Contents, Execution, and Return of Warrant.

(5) Execution and Return.

(VI) A search warrant shall be executed within 14 days after its date. The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property or shall leave the copy and receipt at the place from which the property was taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one credible person other than the applicant for the warrant or the person from whose possession or premises the property was taken, and shall be verified by the officer. The judge upon request shall deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant.

Rule 41.1. Court Order for Nontestimonial Identification

(f) Execution and Return.

(2) The order may be executed and returned only within 14 days after its date.

Rule 45. Time

(a) Computation. In computing any period of time prescribed or allowed by these rules, the day of the event from which the designated period of time begins to run is not to be included. Thereafter, every day shall be counted including holidays, Saturdays, and Sundays. The last day of the period so computed is to be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. The "next day" is determined by continuing to count forward when the period is measured after an event and backward when measured before an event. As used in these Rules, "legal holiday" includes the first day of January, observed as New Year’s Day; the third Monday in January, observed as Martin Luther King Day; the third Monday in February, observed as Washington-Lincoln Day; the last Monday in May, observed as Memorial Day; the fourth day of July, observed as Independence Day; the first Monday in September, observed as Labor Day; the second Monday in October, observed as Columbus Day; the 11th day of November, observed as Veteran’s Day; the fourth Thursday in November, observed as Thanksgiving Day; the twenty-fifth day of December, observed as Christmas Day, and any other day except Saturday or Sunday when the court is closed.

(c) [Repealed].

(d) [Repealed].

(e) [Repealed].

Rule 47. Motions

(a) An application to the court for an order shall be by motion. A motion other than one made during a trial or hearing shall be in writing unless the court permits it to be made orally. It shall state the grounds upon which it is made and shall set forth the relief or order sought. It may be supported by affidavit.

(b) A written motion, other than one which may be heard ex parte, and notice of the hearing thereof, shall be served not later than 7 days before the time specified for the hearing unless a different period is fixed by rule or order of the court. For cause shown such an order may be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion, and opposing affidavits may be served not less than one day before the hearing unless the court permits them to be served at a later time.


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.

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

Amended and Adopted

This policy is adopted to assist the administration of justice with respect to the following appointments:

• Appointment of counsel for children and adults under Titles 12, 13, 15, 19 (dependency and neglect only), 22, and 27;

• Appointment and training of guardians ad litem and court visitors appointed on behalf of wards or impaired adults in all cases;

• Appointment of non-attorney child and family investigators in the best interest of children pursuant to §14-10-116.5, C.R.S. For additional policies addressing guidelines for payment, practice standards, guidelines for appointment, complaint process, eligibility, sanctions and the court’s authority, role, and responsibilities related to all child and family investigators (attorney, non-attorneys, private paid and state paid) refer to Chief Justice Directive 04-08 and Chief Justice Directive 04-06. This Chief Justice Directive 04-05 provides payment policies governing child and family investigators appointed for indigent parties and paid by the state.

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, 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 27 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 interest 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 into 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:

1. The 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). See Chief Justice Directive 04-08 guidelines for the appointment of child and family investigators.

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 to the chief judge 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.

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 27, Articles 81 and 82, 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 65, 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.

8. Appointment of Counsel in Other Cases: Indigent parties may request that the court appoint counsel in other cases for which there is not specific statutory authority. See, In re C.A.O. for the adoption of G.M.R., 192 P.3d. 508 (Colo. App. 2008). The Judicial Department does not budget for non-statutorily required appointments. In an instance where the court finds constitutional authority for the appointment of counsel for an indigent party, a written order of appointment stating the grounds for appointment, citing legal authority, and certifying payment of counsel at the state rate is required.

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 pursuant to Title 19 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.

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, pursuant to CRCP 17(c).

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 27.

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. Also see applicable guidelines pursuant to Chief Justice Directive 04-08. For appointment of an attorney child and family investigator, see applicable guidelines implemented through the Office of the Child’s Representative pursuant to Chief Justice Directive 04-06. 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 Internet-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 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 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 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 Internet-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.

5. 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. For each appointment type in which flat fee or hourly contracts with private counsel may be established, either a flat fee compensation method or an hourly compensation method should be adopted by the district for the given fiscal year, not both.

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 and Out of Court)

Court-appointed Counsel and Guardian ad litem (for adult) $65 per hour
Non-Attorney Child and Family Investigator $25 per hour
Paralegal, Legal Assistant, or Law Clerk Time $25 per hour
Court-authorized Investigator $33 per hour
Court Visitor $25 per hour

D. Maximum total fees 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 and 27  
Counsel $  750
Guardian ad litem (for adult)
 
$  750
Appeals  
Counsel and Guardian ad litem (for adult)
 
$2,870

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.

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/from 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

A. 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.

B. 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.

C. 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, 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.

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 is 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. For any type of court appointment under this Chief Justice Directive, the appointing judge or magistrate shall, to the extent practical and subject to attorney-client privilege, 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.

See Chief Justice Directive 04-08 for the court’s authority, role and responsibility related to child and family investigators.

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, 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, , 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.

See Chief Justice Directive 04-08 for the complaint process regarding the performance of child and family investigators.

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.

See Chief Justice Directive 04-08 for sanctions regarding child and family investigators.

XI. Grievances, Malpractice, and Liability

A. Attorneys appointed shall notify the State Court Administrator, in writing, within five (5) days of any malpractice suit or grievance brought against them.

B. Professional appointees shall maintain adequate professional liability insurance for all work performed. In addition, professional appointees shall notify the State Court Administrator, in writing, within five (5) days if they cease to be covered by said professional liability insurance and shall not accept court appointments until coverage is reinstated.

See Chief Justice Directive 04-08 for grievance, malpractice, and liability regarding child and family investigators.

Effective April, 2005. Amended to be made consistent with amendments to Chief Justice Directive 04-08 and made effective November, 2011 in Denver, Colorado.

Done at Denver, Colorado this 30th day of November 2011.

Michael L. Bender, Chief Justice
Colorado Supreme Court

_____________________________________

CJD 04-08
Directive Concerning Court Appointments of
Child and Family Investigators Pursuant to CRS § 14-10-116.5
Amended

I. Introduction

The following policy is adopted to assist the administration of justice through the appointment and training of child and family investigators ("CFIs") pursuant to section 14-10-116.5, C.R.S. It is intended to apply to all CFIs appointed pursuant to section 14-10-116.5, C.R.S., including those CFIs who are paid privately and those paid with state funds pursuant to either CJD 04-05 (non-attorney CFIs) or CJD 04-06 (attorney CFIs).

CFIs (formerly "Special Advocates") were created by statute in 1997 and are authorized to investigate, report, and make independent and informed recommendations to the court, following a court appointment by order which clearly sets forth the subject matter and scope of the CFI’s duties. The statute provides that a CFI may be an attorney, a mental health professional, or any other individual whom the court believes is able to fill this role.

The Commission on Families in the Colorado Courts recommended in its August 2002 Final Report that standards be drafted to clarify the role and the accountability of CFIs. The Supreme Court’s Standing Committee on Family Issues through its Other Professionals Subcommittee solicited comments from members of the public, judges, attorneys, and CFIs from around the state, and learned that a lack of clear standards has created problems in certain key areas. These are role clarification and avoidance of multiple roles, communication issues, payment issues, establishment of clear procedures for complaints, and consistency in court procedures. In response to questions, the Other Professionals Subcommittee made several amendments in 2007 to provide clarification on access to CFI reports and to the CFI’s role before the court.

The Supreme Court Standing Committee on Family Issues recommended in its November 2010 Final Report that the order of appointment of a CFI limit the fee to be charged for all CFI appointments in order to eliminate CFI investigations that are indistinguishable from parental responsibility evaluations. In response to this recommendation, a maximum CFI fee was established within this directive for privately paid CFIs. CJD 04-05 states the maximum fee for state paid non-attorney CFIs. CJD 04-06 states the maximum fee for state paid attorney CFIs.

CFI investigations are not, by definition, parental responsibility evaluations. The purpose of a CFI investigation is to provide a brief assessment that is non-intrusive, efficient, and cost effective. In the event that a CFI finds that a more comprehensive assessment is required, s/he can provide that recommendation to the court. The court may then choose to appoint a parental responsibility evaluator other than the appointed CFI or take other action deemed necessary.

The CFI standards, duties of the courts, and the model CFI appointment order set forth in this CJD have been drafted with recognition that the CFI’s role will be filled by people from different professions and backgrounds. These standards are intended to provide guidance to CFIs and to provide a structure for regulating CFI conduct in order to better serve the families of Colorado. The standards do not, however, exhaust the ethical and professional considerations that should inform a CFI in his or her duties. Violation of a standard should not in and of itself give rise to a cause of action nor should it create any presumption that a legal duty has been breached or that a professional ethical violation has occurred. They should be interpreted with reference to the purpose of a CFI as defined by the statute. The comments that accompany each standard explain and illustrate the standard’s meaning and purpose of the standard, and are intended to guide interpretation of the standard.

II. Statutory Authority and Existing Chief Justice Directives

A. This CJD sets forth a comprehensive set of standards for all CFIs appointed pursuant to section 14-10-116.5, C.R.S., irrespective of whether the CFI is an attorney or a non-attorney, privately paid or state paid. This CJD also sets forth the duties of the courts when appointing a CFI. Section 14-10-116.5, C.R.S., authorizes the courts to appoint CFIs in domestic relations cases. The CFI may be an attorney, a mental health professional, or any other individual with appropriate training, qualifications, and an independent perspective acceptable to the court. The role of the CFI, as defined by statute, is to investigate, report, and make recommendations to the court on issues that affect the best interests of the minor and dependent child/ren involved in a domestic relations case. The subject matter and scope of the CFI’s duties shall be clearly set forth in the court’s appointment order. A model CFI appointment order can be found at the end of this CJD.

B. CJD 04-05 addresses appointment and payment procedures for non-attorney CFIs appointed pursuant to Section 14-10-116.5, C.R.S. These non-attorney CFIs are reimbursed by the State Court Administrator’s Office ("SCAO") in matters where one or more of the parties have been found to be indigent. CJD 04-06 addresses court appointments of attorney CFIs through the Office of the Child’s Representative ("OCR") in matters where one or more of the parties have been found to be indigent.

III. Maximum Fees

A. Privately Paid CFIs.

1. Investigation and Report. A presumptive maximum fee of $2,000 per appointment shall be established for the investigative and reporting work of all privately paid CFIs. The total investigation and report fees of a privately paid CFI shall not exceed this presumptive $2,000 cap unless prior court approval is obtained in the form of a written order with specific findings concerning the extraordinary circumstances that justify the excess fees.

2. Testimony and Preparation Time. It is anticipated that, in some matters, the testimony of the privately paid CFI will be sought by the parties or deemed necessary by the court. In such matters, a presumptive maximum fee of $500 per appointment shall be established concerning such testimony, including any preparation or other work performed in association with giving such testimony. The total testimony and preparation time fees of a privately paid CFI shall not exceed this presumptive $500 cap unless prior court approval is obtained in the form of a written order with specific findings concerning the extraordinary circumstances that justify the excess fees.

3. Hourly Rate. Every order appointing a privately paid CFI shall state the CFI’s hourly rate. If the CFI charges one rate for investigative and reporting work and another rate for testimony and preparation time, the CFI appointment order shall state both hourly rates.

B. State Paid CFIs.

1. State Paid Non-Attorney CFIs. The maximum hourly rate and maximum total fee amount per appointment for state paid non-attorney CFIs is established by CJD 04-05. These non-attorney CFIs are paid by the SCAO in matters where one or more of the parties have been found to be indigent. State paid non-attorney CFIs seeking fees that exceed the maximum allowable amount must comply with the procedures for approval set forth in CJD 04-05. Claims for payment by state paid non-attorney CFIs shall be submitted by the CFI in accordance with the guidelines set forth in CJD 04-05.

2. State Paid Attorney CFIs. As set forth by CJD 04-06, the maximum fee amount per appointment for state paid attorney CFIs are set by the OCR. These attorney CFIs are paid by the OCR in matters where one or more of the parties has been found to be indigent. State paid attorney CFIs seeking fees in excess of the OCR’s maximum allowable amount must comply with the OCR’s procedures for approval of excess fees. Claims for payment by state paid attorney CFIs shall be submitted by the CFI in accordance with the guidelines set forth in the OCR Billing Procedures.

IV. Guidelines for Appointment

A. On or after March 1, 2012, prior to being eligible for appointment, all CFIs are required to submit to the SCAO a completed affidavit and disclosure document, titled "Affidavit of Mandatory Consent and Disclosure: For Eligibility of Appointment as a Child and Family Investigator and Placement on Statewide Eligibility Roster."

B. On or after March 1, 2012, prior to being eligible for appointment, all CFIs are required to undergo and successfully pass a criminal background check with the Colorado Bureau of Investigation through processes and guidelines established by the SCAO. The CFI is wholly responsible for completing this process and for paying the fees associated with the criminal background check. The CFI shall also obtain a CFI fingerprint card from the SCAO. CFIs should allow a minimum of four weeks for criminal background checks to be completed.

C. Placement on Eligibility Rosters.

1. All CFIs: Statewide Eligibility Roster. On or after March 1, 2012, to be eligible for appointment, all CFIs must be listed on the Statewide Eligibility Roster. Based on the information contained in a CFI’s completed affidavit and disclosure document, as well as the results of the CFI’s background check and fingerprinting, the SCAO will determine whether to place the CFI on the Statewide Eligibility Roster.

2. Privately Paid and State Paid Non-Attorney CFIs and the Judicial District Eligibility Rosters. On or after July 1, 2012, to be eligible for appointment, all privately paid CFIs and all state paid non-attorney CFIs must be listed on both the Statewide Eligibility Roster and the eligibility roster of one or more judicial districts. A privately paid CFI or a state paid non-attorney CFI will not be appointed in a judicial district unless s/he is listed on that judicial district’s eligibility roster. Each judicial district will compile and maintain its own eligibility roster, selecting its eligible privately paid and state paid non-attorney CFIs from the Statewide Eligibility Roster.

3. State Paid Attorney CFIs and the OCR District List. On or after July 1, 2012, to be eligible for appointment, all state paid attorney CFIs must be listed on both the Statewide Eligibility Roster and the District List maintained by the OCR for a particular judicial district. A state paid attorney CFI will not be appointed by a judicial district unless s/he is listed on both the Statewide Eligibility Roster and the OCR District List for that district. The OCR will compile and maintain the OCR’s District List for each judicial district selecting the eligible state paid attorney CFIs from the Statewide Eligibility Roster.

V. Complaints

A. Privately Paid CFIs and State Paid Non-Attorney CFIs.

1. Any complaint regarding the performance of a privately paid CFI or a state paid non-attorney CFI will be submitted electronically to the judicial district and to the SCAO via the "Child and Family Investigator Formal Complaint Procedures and Form" located on the SCAO website: www.courts.state.co.us/Administration/Section.cfm?Section=jp3domprog. A paper copy of the complaint form may also be printed from the SCAO’s website or obtained from the judicial district, and submitted to the judicial district’s District Administrator in person or by mail.

2. Within 10 days of receiving a "Child and Family Investigator Formal Complaint Procedures and Form," the judicial district’s District Administrator shall forward the complaint to the judge presiding over the matter in which the CFI was appointed to determine whether any immediate preventative or corrective action needs to be taken in the matter. If the complaint concerns the conduct of the presiding judge, the District Administrator will forward the complaint to another judge in the judicial district to determine whether any immediate preventative or corrective action needs to be taken in the matter.

3. The judicial district shall then begin an investigation to determine whether the complaint is founded or unfounded, and to determine whether to take any action necessary to resolve the concerns or issues raised by a founded complaint. A judicial district’s decisions as to whether a complaint is founded or unfounded and as to what, if any, action is necessary are final decisions and are not appealable.

4. If the complaint involves a privately paid attorney CFI and if it is determined after investigation that the complaint concerning the attorney CFI was founded, the District Administrator shall inform the Colorado Supreme Court Office of Attorney Regulation Counsel ("Attorney Regulation") and shall notify the complainant. The District Administrator shall also request that Attorney Regulation inform the judicial district and the SCAO of the final outcome of any professional conduct investigation.

5. If the complaint involves a mental health professional licensed by the Department of Regulatory Agencies ("DORA") acting as a CFI and if it is determined after investigation that the complaint concerning the CFI was founded, the District Administrator shall inform the DORA and shall notify the complainant. The District Administrator shall also request that DORA inform the judicial district and the SCAO of the final outcome of any professional conduct investigation.

6. No later than 60 days after receiving a "Child and Family Investigator Complaint Procedures and Form," the judicial district’s District Administrator shall ensure that a written response of some kind is provided to the complainant.

7. No later than10 days after a final decision is reached by a judicial district regarding a complaint, the judicial district’s District Administrator shall forward to the SCAO a copy of the complaint file, which shall include the "Child and Family Investigator Formal Complaint Procedures and Form," any documents or information obtained during the judicial district’s investigation, any documents or information reflecting the results of the investigation and any action taken by the judicial district, and any other relevant documents or information obtained by the judicial district.

8. If a judicial district fails to conduct an investigation pursuant to the procedures set forth in the SCAO’s "Child and Family Investigator Formal Complaint Procedures and Form" or this CJD, the SCAO may conduct its own investigation and may take any action necessary to resolve the concerns or issues raised by a founded complaint.

B. State Paid Attorney CFIs.

1. Any complaint involving a state paid attorney CFI will be made pursuant to the OCR’s complaint procedure as set forth in the "Office of the Child’s Representative Formal Complaint Procedures and Form," available on the OCR’s website: www.coloradochildrep.org/compliments_complaints/.

2. In the event a complaint regarding a state paid attorney CFI is submitted to a judicial district’s District Administrator rather than the OCR, the District Administrator shall forward the complaint to the OCR and shall notify the complainant.

VI. Sanctions

A. Failure of a CFI to comply with this CJD may result in removal of the CFI from the Statewide Eligibility Roster, from one or more of the judicial district eligibility rosters, or from the OCR District List.

B. Privately Paid CFIs and State Paid Non-Attorney CFIs.

1. If a judicial district, in consultation with the judicial district’s Chief Judge, determines a privately paid or state paid non-attorney CFI is no longer suitable for appointments in that judicial district and removes the CFI from the judicial district’s eligibility roster, the judicial district’s District Administrator shall inform the SCAO and the CFI will also be removed from the Statewide Eligibility Roster.

2. If the SCAO determines a privately paid or state paid non-attorney CFI is no longer suitable for appointments in any judicial district, the SCAO may remove the CFI from the Statewide Eligibility Roster or may impose any other sanction pertaining to the Statewide Eligibility Roster. A CFI who has been removed by the SCAO from the Statewide Eligibility Roster shall also be removed from all judicial district eligibility rosters.

C. State Paid Attorney CFIs.

1. The OCR maintains sole discretion to determine sanctions as they apply to state paid attorney CFIs. Neither the SCAO nor a judicial district may sanction a state paid attorney CFI.

2. If the OCR removes a state paid attorney CFI from the OCR District List, the OCR shall inform the SCAO and the CFI will also be removed from the Statewide Eligibility Roster and shall be ineligible for placement on the Statewide Eligibility Roster as either a privately paid CFI or a state paid non-attorney CFI.

VII. Liability, Malpractice, and Grievances

A. If a CFI is a professional and can obtain professional liability insurance for that profession, the CFI shall maintain professional liability insurance for all work performed as a CFI.

1. All privately paid and state paid non-attorney CFIs with professional liability insurance shall notify the SCAO, in writing within 5 days if they cease to be covered by such professional liability insurance and shall not accept court appointments until coverage is reinstated.

2. All state paid attorney CFIs shall notify the OCR in writing within 5 days if they cease to be covered by such professional liability insurance and shall not accept court appointments until coverage is reinstated.

B. All privately paid and state paid non-attorney CFIs, and anyone who has filed with the SCAO an "Affidavit of Mandatory Consent and Disclosure: For Eligibility of Appointment as a Child and Family Investigator and Placement on Statewide Eligibility Roster" shall notify the SCAO in writing within 5 days of any malpractice suit, grievance, formal complaint, disciplinary action, or criminal charge brought or filed against them.

C. All state paid attorney CFIs shall notify the OCR in writing within 5 days of any malpractice suit, grievance, formal complaint, disciplinary action, or criminal charge brought or filed against them.

VIII. Standards of Practice

A. General Principles

Standard 1. The CFI shall act professionally.

Standard 2. The CFI shall maintain objectivity.

B. Role of the Child and Family Investigator

Standard 3. The CFI serves as an investigative arm of the court.

Standard 4. The CFI shall not serve inconsistent dual roles.

Standard 5. The CFI may move to the role of parenting coordinator or decision-maker arbitrator.

C. Duties of the Child and Family Investigator

Standard 6. The CFI shall maintain competence through training.

Standard 7. The CFI shall acknowledge when an issue is beyond his or her competence.

Standard 8. The CFI shall collect data and conduct an investigation sufficient to allow the CFI to provide competent opinions.

Standard 9. The CFI shall have age-appropriate communication with the child/ren involved.

Standard 10. The CFI shall report child abuse to the proper agency and the court.

Standard 11. The CFI shall prepare a clear and timely report.

Standard 12. The CFI shall provide copies of his or her file.

Standard 13. The CFI shall not conduct psychological testing. The CFI shall not routinely conduct drug and alcohol or other evaluations.

Standard 14. The CFI shall maintain confidentiality.

Standard 15. The CFI appointment shall terminate no later than entry of permanent orders or the post decree order.

D. Communications

Standard 16. The CFI shall develop written policies for the parties.

Standard 17. The CFI shall develop written policies for counsel.

Standard 17. The CFI shall review the court’s order of appointment.

Standard 19. The CFI shall have no private or ex parte communications with the court.

Standard 20.

Standards of Practice

A. General Principles

Standard 1. The CFI shall act professionally.

CFIs shall provide their service in a manner consistent with the highest professional standards. They shall be accurate and honest in their work and in their communications with the parties and the court. While the best interests of the child/ren are paramount, CFIs shall respect the rights, the dignity, and the welfare of the parties and the child/ren with whom they work.

COMMENT

The CFI’s primary responsibility is to assure that the "best interests" of the child/ren s/he has been appointed to serve, as defined in section 14-10-124, C.R.S., are thoroughly explored, understood, and accurately conveyed to the court. In meeting this responsibility the CFI should understand that s/he is working with families at a difficult and stressful time. S/he should attempt to establish a positive and constructive professional working relationship with family members.

The CFI should be mindful of the diverse nature of families and respect cultural, individual, and role differences, including those based on age, gender, gender identity, race, ethnicity, culture, national origin, religion, sexual orientation, disability, language, and socioeconomic status, and should consider these factors when working with a family. S/he should be sensitive to the separate interests, rights, wishes, and concerns of the parents, child/ren, and other parties in a case. S/he must remember that s/he is in—and is viewed as being in—a position of influence over a family’s future.

During the course of his or her work, a CFI will be in communication with a variety of individuals and agencies. The means of communication may involve direct interviews, phone contact, faxes, e-mail, or written correspondence. There is no one right way to communicate, but a CFI should be aware of his or her position as an investigative arm of the court.

Standard 2. The CFI shall maintain objectivity.

The CFI shall maintain objectivity and independence. To avoid a conflict of interest or an appearance of impropriety, the CFI shall not see or accept an appointment if the CFI has or has had a financial, familial, or social relationship with the parents, child/ren, counsel, or other parties involved in the case. If the CFI becomes aware of an insurmountable bias or prejudice in dealing with a case, s/he shall ask the court to terminate the appointment with proper notice to the parties.

COMMENT

A CFI’s opinions are to be based on his or her independent fact finding investigation and review of a case as the court’s investigative arm. If a CFI is appointed to a case and the CFI has or has had a financial, familial, or social relationship with the parents, child/ren, counsel, or other parties involved in the case, the CFI shall immediately notify the court and ask the court to terminate the appointment with proper notice to the parties. The CFI shall not accept an appointment or seek an appointment to such a case. S/he should guard against being unduly influenced by the conclusions of other professionals who are working or who have worked on the case. S/he should guard against even the appearance of being aligned with one side over the other.

There are times when objectivity is difficult to maintain and the CFI, through no fault of his or her own, simply cannot set aside a bias or feelings that occasionally develop when working with challenging parties or high conflict families. When this occurs, the CFI should notify the court and request removal from the case.

B. Role of the Child and Family Investigator

Standard 3. The CFI serves as an investigative arm of the court.

A CFI is appointed to serve as an investigative arm of the court. The CFI shall be subject to direct and cross examination by both parties if called as a witness. He or she is to gather information, formulate recommendations, and report to the court concerning the child/ren’s best interests with regard to whatever issues were set forth in the court’s order of appointment.

COMMENT

The focus on investigation is not intended to prescribe a regimented set of investigative steps that a CFI must follow in his or her work, but rather to emphasize that the primary role is to provide information and make recommendations that will allow the parties, counsel, and the court to craft orders that best serve the child/ren. The issues in, or concerns about, different families will be unique. The type, scope, or extent of investigation needed in different families will be unique.

These standards are not intended to limit the flexibility available to the parties and the court when deciding that an investigation by a CFI would be helpful and when preparing the order of appointment. This flexibility means that within the scope of the order of appointment, a CFI may use the information s/he has gathered in ways that facilitate or encourage settlements if appropriate.

A CFI may participate in conferences with the parties and/or the court. When doing so, the CFI should act in ways consistent with the court’s order of appointment in the case.

Standard 4. The CFI shall not serve inconsistent dual roles.

The CFI shall not: (a) serve as a formal mediator in the case; (b) provide psychotherapy to any of the parties or children in the case; (c) provide legal advice to any party or otherwise act as an attorney in the case; (d) later accept an appointment as a child’s legal representative ("CLR") in the same case or in the same family; (e) accept the appointment if s/he has had a prior personal relationship or a prior professional role with the family, other than a prior appointment as a CFI; (f) serve as an arbitrator or special master in the case prior to termination of his or her role as a CFI; or (g) provide referrals for any other professionals.

COMMENT

(a) Mediation. Because CFIs investigate and make reports and recommendations they cannot, by definition, promise confidentiality to the parties involved. Mediation by contrast is confidential. Section 13-22-307, C.R.S. The CFI’s primary duty is advising the court on the child/ren’s best interests with regard to specific issues, and not resolving such issues for the parties.

(b) Psychotherapy. As with mediators, therapists have a duty of confidentiality to their clients that are at odds with a CFI’s duties. The roles, purposes, goals, responsibilities, approaches, and professional and ethical requirements of a treating therapist are in conflict with those of a CFI.

(c) Legal Advice. A CFI is charged with investigating and reporting pursuant to a court order and cannot provide legal advice to any party. An attorney CFI cannot perform a dual role as advisor and investigator. A non-attorney CFI cannot engage in the unauthorized practice of law.

(d) Child’s Legal Representative. The role requirements of the CFI and the CLR are in conflict with each other. Section 14-10-116.5 (1), C.R.S., specifically prohibits this dual role.

(e) Prior Contacts. A CFI should avoid multiple relationships which could reasonably be expected to impair objectivity, competence or effectiveness. Prior therapeutic relationships, for example, will be compromised and pre-existing alliances and loyalties that a therapist or attorney or other professional or friend has established will impair objectivity.

(f) Arbitrator or Special Master. A CFI should not serve in any role that would require him or her to arbitrate disputes between parties since this would require a CFI to take positions that would compromise his or her ability to serve as the information gathering investigative arm of the court.

(g) Referrals. A CFI is the investigative arm of the court. It is therefore inappropriate for the CFI to make referrals or recommendations to the parties or to the court for specific professionals to be involved in the case in any way, unless such referrals or recommendations are requested by the parties or the court.

Standard 5. The CFI may move to the role of parenting coordinator or decision-maker or arbitrator.

In some cases, a CFI may agree to move to the separate role of parenting coordinator ("PC") or decision-maker ("DM") or arbitrator after all of his or her duties as a CFI are completed and after the CFI appointment has been terminated by the court. This move should occur only with the written, informed consent of all the parties and the CFI. The CFI who accepts an appointment as a PC or DM or arbitrator shall not be appointed as a CFI in the same case in the future.

COMMENT

At the conclusion of the CFI’s investigation for the court, and upon entry of orders related to parental responsibility, the family may have ongoing needs for assistance from a third party, or may in the future require assistance related to parenting disputes. Some parties may find that the CFI’s prior investigation and familiarity with the family’s dynamics would assist them in resolving outstanding or new issues. If the parties and the CFI agree, it may be appropriate for the court to appoint the CFI to the role of PC or DM or arbitrator by a new appointment order clearly outlining the CFI’s new duties. PCs and DMs are being used with some frequency in Colorado to assist high conflict families who have ongoing disputes. The role of PC and DM is defined by statute. These CFI standards are not meant to apply to those serving as a PC or DM.

C. Duties of the Child and Family Investigator

Standard 6. The CFI shall maintain competence through training.

The CFI shall accept appointments only after attaining a level of competence that includes an understanding of both the legal and psychological/social issues that are typically present in dissolution or parenting cases, and shall maintain and regularly update his or her training in relevant areas.

New CFIs shall complete 40 hours of training in relevant areas prior to accepting appointments. Attorneys, mental health professionals, and other members of the community who are working as CFIs shall complete no less than 15 hours of continuing education in relevant areas every three years.

The SCAO shall devise a standardized 40-hour curriculum and shall promulgate policies governing the implementation of such curriculum no later than December 31, 2012. All CFIs shall comply with the policies promulgated by the SCAO.

COMMENT

A CFI achieves competence through some combination of education, specialized training, supervision, consultation, and professional experience. S/he has a responsibility to develop and maintain the necessary understanding of the applicable law and the professional standards that govern his or her duties and participation in legal proceedings. The "relevant areas" in which a CFI should demonstrate experience, education or skills include the following:

• The effects of divorce, single parenting, and remarriage in children, adults, and families;

• Dynamics of high conflict divorce;

• Child development, including cognitive, personality, emotional, and psychological development;

• Child and adult psychopathology;

• Family dynamics and dysfunction;

• Domestic violence;

• Substance abuse;

• Child abuse;

• Parenting capacity;

• Diversity issues;

• Available services and resources for the child/ren and parties including medical, mental health, educational, and special needs;

• The legal standards applicable in each case in which the CFI is appointed; and

• Interview techniques for interviewing children and others.

A CFI should maintain current, accurate records of training and on-going education and should be able to provide those records upon request.

Standard 7. The CFI shall acknowledge when an issue is beyond his or her competence.

A CFI has a duty to recognize and inform the parties and the court when an issue falls outside of his or her training or experience.

COMMENT

When the CFI recognizes that an issue falls outside his or her training or experience, the CFI shall inform the parties and the court with proper notice and request that the order of appointment be amended. In some instance a request for termination of the appointment may be appropriate. The CFI may inform the court of the professional qualifications that may be of benefit; however, the CFI shall under no circumstances make specific referrals for professionals or providers unless such referral is requested by the parties or the court pursuant to Standard 4.

Standard 8. The CFI shall collect data and conduct an investigation sufficient to allow the CFI to provide competent opinions.

A CFI shall complete a fact finding investigation consistent with the court order of appointment, the legal standard being addressed, and the complexity of the family and the family issues being investigated.

COMMENT

A CFI must be careful to assure both fairness and the appearance of fairness, allowing the parties relatively comparable opportunities to present their perspectives. Depending on the case, the CFI may need information from collateral sources such as teachers or therapists; may need to review school, medical, or other records; may need to check criminal histories or obtain results of drug testing; or may require other case-specific information. The flexibility of the role allows the court to set forth specific areas to investigate under the order of appointment.

A CFI should use methods of data collection that are consistent with accepted professional standards. S/he should indicate any limits to the data or information and how that may impact his or her ultimate opinions. S/he should document the investigation to ensure accountability. A CFI should recognize that his or her file may be discoverable by parties and counsel in the case, and therefore, should maintain clearly documented records.

Standard 9. The CFI shall have age-appropriate communication with the child/ren involved.

The CFI shall inform the child/ren of the purpose of the CFI’s involvement and the limits of confidentiality. S/he shall obtain information from the child/ren, including the wishes of the child/ren, through appropriate interview techniques.

COMMENT

The nature of the legal proceeding or issue should be explained to the child/ren in a developmentally appropriate manner. The CFI should ask non-suggestive questions. S/he should be aware that a child’s stated views may vary over time or may be the result of fear, intimidation, or manipulation. While the CFI must consider the wishes of the child/ren, s/he need not adopt them unless they serve the child/ren’s best interest.

Standard 10. The CFI shall report child abuse to the proper agency and the court.

In cases in which the CFI suspects or knows that the child/ren are being neglected or abused, the CFI shall take the steps required to ensure that law enforcement and/or the department of social services is informed, and shall take whatever additional steps are believed necessary to protect the child/ren.

COMMENT

In cases in which the CFI finds that the child/ren are not being optimally cared for, or finds that the parents’ conflict or interactions are harmful but not abusive or negligent, the CFI should develop plans to address the problem and should include them in any report or recommendation to the court.

Standard 11. The CFI shall prepare a clear, concise, and timely report.

The CFI’s conclusions and recommendations shall be presented in a timely manner to the parties and the court in a written report that is clear, concise and non-technical and based upon information and data obtained in the course of the fact finding investigation.

COMMENT

The report should be as concise as possible, recognizing that there are limitations on the specific issues to be addressed and the fee to be paid to the CFI. The CFI should write his or her report remembering that the recipients will be the parties, the court, and, if applicable, the parties’ counsel. The report should include information about the CFI’s investigation and data collection process, and should address the legal standard that applies to the case. The report should set forth the CFI’s conclusions and recommendations regarding the child/ren’s best interests. It should also set forth the child/ren’s wishes even if those wishes are not ultimately recommended. It should not include opinions and recommendations beyond the scope of the court’s original order of appointment without further authorization.

A CFI’s report should list all services performed by the CFI and should detail the time spent. The CFI should keep accurate, itemized records of the CFI’s fees and other charges and shall make his or her records available to the parties in accordance with Standard 12.

Standard 12. The CFI shall provide copies of his or her file.

The CFI shall, if requested by the parties or their counsel in the case for which the CFI was appointed, make his or her file, including any data or information underlying the CFI’s report, available prior to any scheduled hearing in the case, and only after the CFI report has been filed. This specifically includes disclosure of CFI notes, witness statements, and completed questionnaires. Such disclosure is limited pursuant to Standard 14’s confidentiality requirements.

COMMENT

A CFI has an obligation to document and be prepared to make available all data that form the basis for his or her opinions and recommendations. The data to be disclosed includes all underlying data in the CFI’s file including the names and addresses of all persons with whom the CFI has consulted.

However, if a CFI believes that the release of any particular information or test data would endanger any person’s welfare, s/he should inform counsel and the court of his or her concerns and await further order from the court before releasing the information in question. A court order is required for the release of the file, underlying data, report, testing, or evaluation completed by a professional other than the CFI. This directive is not intended to abridge or modify existing law. Where state or federal law governs the release of confidential records, those laws shall apply. Where secondary disclosure is prohibited by state or federal law, the information shall be transmitted under confidential cover.

Standard 13. The CFI shall not conduct psychological testing. The CFI shall not routinely conduct drug and alcohol or other evaluations.

Psychological testing shall not be performed by the CFI. Drug and alcohol or other evaluations should only be done if specifically ordered by the court and only when such evaluation is the sole issue for which the appointment of the CFI was made. If the CFI believes other evaluations, such as psychological testing or drug and alcohol evaluations, would be a benefit to the parties or the child/ren and would assist the court, the CFI should provide this information to the court and the parties as soon as possible and shall include this information in his or her report to the court.

COMMENT

Consistent with distinguishing the role of a CFI and a parental responsibility evaluator, the CFI investigation should be limited in time and scope. Psychological testing shall not be performed in connection with CFI investigations and reports. Substance abuse or other evaluations shall not routinely be performed in connection with CFI investigations and reports. In situations where the court specifically orders a drug and alcohol or other evaluation, such evaluations shall only be conducted by a qualified individual. If the CFI is qualified to conduct drug and alcohol or other evaluations s/he may do so but only if ordered to do so by the court and only when such evaluation is the sole issue for which the appointment of the CFI was made. If psychological testing is ordered by the court, such testing shall not be done by the CFI.

Standard 14. The CFI shall maintain confidentiality.

The CFI shall maintain the confidentiality of his or her file and report, and shall disclose either only to the parties and their counsel or by court order.

COMMENT

The CFI report and underlying investigative materials shall not be disclosed in any proceeding other than the proceeding before the appointing court absent a determination by the appointing court that the need for the information requested outweighs the need for privacy. A CFI’s report, and by implication a CFI’s underlying case file, "shall otherwise be considered confidential and shall be sealed and shall not be open to inspection, except by consent of the court." Section 14-10-126(2), C.R.S. Standard 12 provides additional guidance. Because a CFI’s report and file are court documents under seal, a CFI has no authority to produce these sealed court documents, nor may the CFI disclose their contents absent consent and an order from the appointing court.

Standard 15. The CFI appointment shall terminate no later than entry of permanent orders or the post decree order.

The court may terminate the appointment of the CFI earlier, but in no event shall the CFI appointment terminate any later than entry of permanent orders or the post decree order resolving the issue for which the appointment was made. The judicial officer shall clearly order when the CFI appointment ends consistent with this section.

COMMENT

Judicial officers are encouraged to terminate appointments when the report is filed in order to reduce the costs of CFI investigations. In any event, once permanent orders or the order resolving the post-decree motion for which the appointment was made are entered, a CFI’s appointment pursuant to section 14-10-116.5, C.R.S., terminates.

It is an abuse of the court’s discretion to continue the CFI appointment beyond permanent orders, or adjudication of post-decree parental responsibility issues. The role of the CFI is to determine and recommend alternatives in the best interests of the child. The parties’ inability to communicate is not a sufficient ground to continue the appointment of the CFI to act as a mediator or facilitator for the parties. See In re Marriage of Finer, 920 P.2d 325 (Colo. App. 1996). Additionally, the court cannot, in its order, delegate to a CFI the job of crafting or fine-tuning a parenting plan or of resolving other parenting issues. The court might consider and adopt a CFI’s recommendations, but the actual rulings must come from the court. It is an abuse of discretion for the court to transfer its ultimate decision-making power and authority to a CFI. In re the Marriage of McNamara, 962 P.2d 330 (Colo. App. 1998).

D. Communications

Standard 16. The CFI shall develop written policies for the parties.

The CFI shall develop written information about his or her policies and procedures. The information shall include the nature of the services provided, the CFI’s qualifications, where complaints should be directed, fees and billing procedures, how communication will be handled, how sensitive information will be handled, and the CFI’s reporting obligations.

COMMENT

When first appointed, a CFI should provide the parties with written information that clarifies, along with the court’s appointment order, the nature and scope of the services to be provided and the limits of confidentiality in court-appointed work. The initial information should describe the CFI’s policies, procedures, qualifications, and reporting obligations, as well as how a party can contact the professional’s applicable regulatory or disciplinary agency. If no applicable regulatory body for a particular CFI exists, then information should be included about how to contact the court and the State Court Administrator’s Office should a concern or complaint about the CFI arise.

It also is the responsibility of a CFI to provide specific information to the parties regarding fees, billing policies, and procedures used if there is non-payment of fees. A CFI’s billing statements should list all services performed and detail the time spent and the charges incurred.

Standard 17. The CFI shall develop written policies for counsel.

The CFI shall develop written information about how communications and sensitive information from counsel or parties not represented by counsel will be handled.

COMMENT

There are many reasons a CFI, when first appointed, might find it helpful to consult with counsel. They include, discussing timing issues, or raising problems or concerns which develop during the course of a CFI’s investigation.

There should be no non-disclosed conversations with one party’s counsel. A CFI must remain alert to avoid bias or the appearance of bias at all times regardless of the level of parties’ conflict in the case. If, however, the CFI, the parties, and counsel all agree to some different procedure concerning communication between the CFI and counsel, they should reduce the agreement to writing before the CFI begins work on the case.

Standard 18. The CFI shall review the court’s order of appointment.

Upon appointment, the CFI shall review the court’s order of appointment and ask for clarification or modification of the order when necessary.

COMMENT

In order to provide services, a CFI must have a specific and properly executed court order defining the role of the CFI in the court case. Such an order allows the CFI to act under the court’s power and authority.

If there is a conflict between the requirements of the order and the CFI’s professional ethical constraints or obligations, the CFI should take steps to ensure that the conflict is resolved. If, for example, the order requires the CFI to act beyond the scope of his or her competence, or to perform contradictory multiple roles, then the court and counsel should be informed. If the conflict cannot be resolved, then the CFI should request removal from the case.

If the order sets fees and retainer amounts that conflict with the CFI’s business practices, s/he should inform the court and request an amended order or withdraw from the case. These issues should be addressed immediately upon notice of appointment and before beginning any work on the case.

Standard 19. The CFI shall have no private or ex parte communications with the court.

The CFI shall have no private or ex parte communications with the court.

COMMENT

An ex parte communication is any communication in which at least one party does not have notice and an opportunity to participate in the communication.

For many reasons a CFI may need to communicate with the court during the course of his or her appointment. The reasons include obtaining information from the court concerning the order of appointment or applicable legal standards, informing the court of the refusal of a party to participate or to pay, or reporting harm or the potential for harm to the child/ren.

The court can be informed of such issues in several ways. Most common would be a short written report with copies to the parties and counsel. If the CFI attends a status conference or court hearing, issues could be raised there. If time were of the essence, a CFI may be able to arrange a conference call to the court including counsel or counsel and parties. Finally, a CFI might request an opportunity to address the court and then give the parties and counsel reasonable and proper notice of the date and time set.

An attorney CFI shall not communicate with the court by way of motions because the CFI is an investigator as opposed to a party or lawyer for a party authorized to file motions.

IX. The Court’s Authority, Role, and Responsibilities related to Child and Family Investigators Appointed Pursuant TO C.R.S. 14-10-116.5

Standard A. The court shall ensure compliance with the CFI standards.

Standard B. The court shall specifically define the scope and subject matter of the CFI’s role in the order of appointment.

Standard C. The court shall allocate the costs for CFI services and enforce its payment orders.

Standard D. The court shall terminate the CFI’s appointment no later than entry of permanent orders or the post decree order

Standard E. The court shall not appoint the CFI to inconsistent dual roles.

Standard F. The court shall ensure the confidentiality of CFI reports.

Duties and Responsibilities of the Court

Standard A. The court shall ensure compliance with thpe CFI standards.

The court shall appoint a qualified CFI and shall monitor any complaints concerning that person’s services.

COMMENT

Children deserve to have parental responsibility proceedings conducted in the manner least harmful to them, and most likely to provide judges and magistrates with the facts needed to decide the case. Because the CFI is the investigative arm of the court, it is the court’s responsibility to ensure that the CFI is qualified, and to monitor compliance with this Chief Justice Directive. A CFI is subject to cross and direct examination. If issues are raised concerning competency or any other concerns, the court should inquire and provide an opportunity to remedy any unethical or inappropriate conduct.

The court should hold periodic meetings with all practicing CFIs to clarify procedures and court expectations concerning CFI investigations.

Standard B. The court shall specifically define the scope and subject matter of the CFI’s role in the order of appointment.

The court shall define the subject matter and scope of the CFI’s role in an order of appointment that substantially complies with the model order of appointment found in this CJD.

COMMENT

The CFI is the court’s investigative arm and serves at the direction and behest of the court. Section 14-10-116.5, C.R.S., requires that the "subject matter and scope of the [CFI’s] duties shall be clearly set forth in the court’s order of appointment." Accordingly, the court shall provide guidance and specific expectations in the order of appointment. The court order shall set forth the scope of service and subject matter. In appointing a CFI, the court shall take into account the financial circumstances of the parties.

In setting forth the CFI’s duties, the court should provide for the least intrusive means of ascertaining the child/ren’s best interests. Psychological testing shall not be performed by the CFI. Drug and alcohol or other evaluations should only be done if specifically ordered by the court and only when such evaluation is the sole issue for which the appointment of the CFI was made. If the CFI believes psychological testing or drug and alcohol evaluation would be a benefit to the parties and/or the child/ren and would assist the court, the CFI should provide this information to the court and the parties as soon as possible and the CFI shall include this information in his or her report to the court.

Standard C. The court shall allocate the costs for CFI services and enforce its payment orders.

The court shall make clear to all parties in writing, how the CFI fees will be apportioned and paid. The court shall enforce its orders for payment. CFIs are entitled to receive adequate and predictable compensation consistent with the provisions of this CJD.

COMMENT

Section 14-10-116.5(3), C.R.S., requires the court to enter an order for costs, fees, and disbursements for the court-appointed CFI. Those costs shall be borne by the parties unless a party is found to be indigent in which case the state shall pay the costs. The SCAO pays non-attorney CFIs in accordance with the procedures set forth in CJD 04-05. The OCR pays attorney CFIs in accordance with the procedures set forth in CJD 04-06.

It is the responsibility of the court to enforce its order concerning payment of the CFI through its contempt power. When non-payment or partial payment issues arise, the CFI may notify the court regarding the non-payment issue and ask for guidance. The court, at its discretion, should determine what course of action is appropriate, including continuing court dates, finding parties in contempt, or reallocating the parties’ division of fees. Because the CFI is the investigative arm of the court and is performing valuable duties for the court under the court’s order, the court is responsible for ultimately overseeing and ensuring compliance with its appointment and fee order.

Standard D. The court shall enter an order of appointment that indicates a specific date on which the CFI’s investigative report is due and that terminates the appointment of the CFI no later than entry of permanent order or the post decree order.

The court’s order shall include a specific date on which the CFI’s investigative report is due. Further, it is the court’s responsibility to enter an order that indicates when the appointment of the CFI terminates. It is suggested that the appointment terminate as soon as reasonable to reduce the cost to the parties and/or the state, but in any event the appointment shall not continue beyond entry of permanent orders or the post decree order resolving the issue for which the appointment was made.

COMMENT

For guidance, see the comment to Standard 15.

Standard E. The court shall not appoint the CFI to inconsistent dual roles.

The court shall not appoint the CFI to serve in dual roles which are inconsistent, and create conflicts.

COMMENT

For guidance, see the comment to Standard 4.

Standard F. The court shall ensure confidentiality of CFI reports.

Because the report of a CFI often contains otherwise private medical, psychological, substance abuse, or educational information, the court shall ensure its confidentiality and maintain it under seal.

COMMENT

CFIs are appointed to gather information for the court’s use in making decisions in the child/ren’s best interest. It is unlikely to be in any child’s best interest to have the private lives, failures, and foibles of his or her family spread across the public record. This is recognized by statute, section 14-10-126(2), C.R.S. The court also is more likely to receive complete and candid information if confidentiality is assured. Finally, this aids CFIs when confronted by parties or lawyers outside the domestic case who attempt to subpoena the highly personal information contained in the CFIs’ files and reports. The court that appointed the CFI must perform an in camera review of the requested documentation to determine what may be released and/or copied.

In subsequent actions, the report should not be relied upon by the court or the parties unless the CFI is subject to direct and cross examination. For additional guidance, see the comment to Standard 14.

Effective September 1, 2004. Amended to reflect statutory amendments and effective November 18, 2005.

Modified corrected as to statutory references only on the 23rd day of January, 2006, in Denver, Colorado.

Amended to provide clarification on issues related to the nature of the CFI’s role and records access and effective January 2008, in Denver, Colorado.

Amended to provide clarification on issues related to the nature of the CFI’s role and fees and made effective April, 2011, in Denver, Colorado.

Amended to provide clarification on issues related to the nature of the CFI’s role, fees, guidelines for appointment, complaints, and sanctions and made effective November, 2011, in Denver, Colorado.

Done in Denver, Colorado this 30th day of November 2011.

Michael L. Bender, Chief Justice
Colorado Supreme Court

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