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TCL > March 2012 Issue > Court Business

The Colorado Lawyer
March 2012
Vol. 41, No. 3 [Page  109]

© 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 Judicial Department
Chief Justice of the Supreme Court Directives

Notice of Availability

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

Publication in The Colorado Lawyer

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

______________________________

CJD 04-06
Court Appointments Through the
Office of the Child’s Representative
Revised

The following policy is adopted to assist the administration of justice through the best interest appointment and training of Guardians ad Litem (GALs), attorney Child and Family Investigators and Child’s Representatives appointed on behalf of minors/children (under age 18). Non-attorney Child and Family Investigators, adult GAL appointments and any other juvenile attorney client appointments fall under the provisions of Chief Justice Directive 04-05.

I. Authorities

A. Article 91 of Title 13 established the Office of the Child’s Representative (OCR) and the various statutory requirements of the OCR.

B. The OCR shall be responsible for the following:

• Provision of (GAL) services in dependency and neglect proceedings under Title 19.

• Provision of GAL services for a respondent parent in dependency and neglect proceedings under Title 19 when that parent is a minor.

• Provision of GAL services in delinquency matters under Title 19.

• Provision of GAL services in adoption proceedings under Title 19 when one or more parties qualify as indigent.

• Provision of GAL services for a child charged or prosecuted as an adult pursuant to Section 19-2-517, C.R.S. or Section 19-2-518, C.R.S.

• Provision of GAL services in paternity and support matters brought under Title 19 when one or more parties qualify as indigent.

• Provision of GAL services to minors in alcohol or drug abuse proceedings under Title 25.

• Provision of GAL services to minors in mental health proceedings under Title 27.

• Provision of GAL services to minors in probate proceedings under Title 15 when the parties are indigent.

• Provision of GAL services to minors involved in truancy proceedings under Titles 19 and 22.

• Provision of Child’s Representative services or attorney Child and Family Investigator services in domestic relations cases under Title 14, when one or more parties qualify as indigent.

• Provision of services in any other GAL, Child’s Representative or attorney Child and Family Investigator appointments where authorized, by statute or inherent authority, to act in or in representation of the best interests of a minor.

C. State funds are appropriated to the OCR to fund all statutorily authorized appointments, costs associated therewith and the various responsibilities that fall under the purview of that office pursuant to Section 13-91-102(2), C.R.S.

II. OCR Authority and Responsibilities

A. The OCR’s authority and responsibilities include, but are not limited to: ensure and enhance competent representation of a child’s best interests in a cost effective manner, which includes training and monitoring of services rendered; the exclusive authority and discretion to select and contract with attorneys to provide state-paid GAL, Child’s Representative and attorney Child and Family Investigator services, including the authority to reject attorneys for any reason; the authority to terminate, at will, contracts and existing court appointments as determined by the OCR; and the responsibility to provide oversight of and accountability for state-paid GAL, Child’s Representative and attorney Child and Family Investigator services for the benefit of Colorado’s children, including investigation and resolution of complaints regarding attorneys who contract with the OCR.

B. The OCR shall maintain and provide to the courts, on an ongoing basis, a list of qualified attorneys to whom appointments may be given. The courts shall appoint from this list. It is within the OCR’s sole discretion to determine which attorneys are placed on the appointment list. A court is not required to use all attorneys on the list but only those it chooses to appoint. The OCR will not process payment for services of attorneys with whom the OCR does not have a contract and who are not on the OCR list. Should any unusual, exceptional or emergency circumstances present the need for the appointment of an attorney not listed as an OCR-qualified attorney, the court shall contact the OCR for approval prior to the appointment of that attorney. The OCR shall provide a prompt response to the court’s request.

III. Authority and Requirement for Appointments of GALs, Child’s Representatives and Attorney Child and Family Investigators through the OCR

A. A GAL shall be appointed for a child in a dependency and neglect action pursuant to Title 19. The GAL’s appointment shall continue until the entry of a final decree of adoption or until the jurisdiction of the juvenile court is terminated either by operation of law or by court order.

B. Pursuant to Title 19, a GAL may be appointed in a delinquency proceeding if: no parent, guardian or other adult set forth in Section 19-1-111(2)(a), C.R.S. appears at the first or subsequent hearing; the Court finds a conflict of interest between the child and the parent, guardian or other adult set forth in Section 19-1-111(2)(a), C.R.S.; or the court finds that a GAL appointment will serve the best interests of a child. Such appointment shall continue if a case is transferred to adult criminal court under Title 19.

C. Pursuant to Title 19, the court, in its discretion, may appoint a GAL in any direct file of charges against a juvenile in adult criminal court.

D. Pursuant to Title 19, a GAL may be appointed, unless the child is already represented by defense counsel, in truancy proceedings under Title 22. Pursuant to Title 19, a court may appoint both counsel and a GAL for the child if the court finds that such appointment is in the best interests of the child.

E. A Child’s Representative or attorney Child and Family Investigator may be appointed in a domestic relations case pursuant to Title 14.

F. A GAL may be appointed for a minor in formal proceedings involving guardianship or conservatorship of a minor; trusts or estates of decedents, minors and protected persons; and in judicially supervised settlements pursuant to Title 15 if the court determines that a need for such representation exists.

G. A GAL shall be appointed in a mental health proceeding pursuant to Title 27 for any child under age 15 who is a ward of the Department of Human Services or for any minor under 15 who objects to his or her hospitalization.

H. If necessary to serve a child’s best interests, a GAL may be appointed for an infant or other minor who does not have a representative and who is a party to a civil suit.

I. A GAL may be appointed for a child in a paternity action pursuant to Title 19.

J. A GAL may be appointed for a minor upon the filing of a petition for involuntary commitment of alcoholics or drug abusers if the court deems the minor’s presence in court may be injurious to him or her pursuant to Title 25.

K. Pursuant to Title 19, a GAL for a minor may be appointed in an adoption proceeding. Pursuant to Title 19, a GAL for a minor may also be appointed in a proceeding concerning the relinquishment of the minor if the court finds that there is a conflict of interest between the child and the parents, guardian or legal custodian; the court finds that such appointment would be in the best interests of the child; or the court determines that the child is twelve years of age or older and that the welfare of the child mandates the appointment.

L. Pursuant to Title 12, a GAL may be appointed for a minor under the judicial bypass provisions of the Colorado Parental Notification Act pursuant to Section 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").

IV. Allocation of Cost and Guidelines for Payment by the OCR

A. Allocation of Costs—Requirement of Indigency Finding

1. An indigency determination is not required for state payment of GAL services in matters other than these specific cases:

a. The State, through the OCR, shall bear the costs for the services of an attorney Child and Family Investigator or a Child’s Representative appointed pursuant to Section 14-10-116.5, C.R.S. or Section 14-10-116, C.R.S., respectively, only if one or more of the parties responsible for the costs are deemed to be indigent. The State is precluded from paying for services and any costs associated with services for non-indigent parties under either Section 14-10-116.5, C.R.S., or Section 14-10-116, C.R.S., respectively, which specify that the parties are responsible for all costs unless there is a specific finding of indigency.

b. The State, through the OCR, shall bear the costs for GAL services in paternity and support matters under Article 4 of Title 19 only if one or more of the parties responsible for the costs are deemed to be indigent. The State is precluded from paying for services and any costs associated with services for non-indigent parties under Section 19-4-117, C.R.S., which specifies that the court shall order reasonable fees of the GAL to be paid by the parties.

c. The State, through the OCR, shall bear the costs for GAL services in adoption and relinquishment proceedings only when the party(ies) responsible for the costs is deemed to be indigent. The State is precluded from paying for services and any costs associated with GAL services for non-indigent parties under Section 19-5-103, C.R.S., which specifies that the Court shall order reasonable fees to be paid by the relinquishing parent(s).

d. The State, through the OCR, shall bear the costs for GAL services provided to a minor under Title 15 (probate, guardianship and conservatorship) and other civil cases only when the parti(es) ordered to be responsible for the costs or the minor’s estate is deemed to be indigent.

2. When indigency is required for court-appointed representation at state expense, the responsible party(ies) must complete, or have completed on their behalf, application form JDF 208 ("Application for Public Defender, Court-Appointed Counsel, or Guardian ad Litem") signed under oath, before an appointment may be considered. An indigent person is one whose financial circumstances fall within the fiscal standards set forth by the Supreme Court through Chief Justice Directive (See Attachment A). A court shall not order representation to be at state expense absent the completion of form JDF 208, a finding of indigency and an order of the court. If one party is indigent, the State, through the OCR, will pay half of the state-set hourly rate.

B. Guidelines for Payment by the OCR

1. Claims for payment of appointee fees and expenses shall be submitted by the appointee directly to the OCR, not the appointing court, in accordance with the OCR’s policies and procedures.

2. The maximum total fees per appointment for all OCR appointments and the procedures for approval of excess fees shall be as set forth by the OCR.

3. Attorneys shall maintain records of all work performed relating to court appointments and shall make all such records available to the OCR and/or to the court for inspection, audit and evaluation in such form and manner as the OCR or court may require, subject to the attorney work product doctrine and any other applicable privileges.

V. Duties of Attorneys Appointed as GALs, Child’s Representatives, and Attorney Child and Family Investigators

A. Training

1. Attorneys appointed as GALs, Child’s Representatives or attorney Child and Family Investigators shall possess the knowledge, expertise and training necessary to perform the court appointment.

2. In addition, GALs, Child’s Representatives, and attorney Child and Family Investigators shall obtain 10 hours of the required continuing legal education courses or any other modified training requirements established by subsequent Chief Justice Directive practice standards, rule or statute, which are relevant to the appointment and that enhance the attorney’s knowledge of the issues in best interest representation. These requirements should be met prior to attorney’s first appointment and per legal education reporting period. The attorney shall provide the OCR with proof of compliance with this requirement with his/her application to provide attorney services or contract renewal for the OCR.

B. All attorneys appointed as GALs or Child’s Representatives shall be subject to all of the rules and standards of the legal profession. The unique statutory responsibilities of a GAL and a Child’s Representative do not set forth a traditional attorney-client relationship between the appointed attorney and the child; instead, the "client" of a GAL or a Child’s Representative is the best interests of the child. The ethical obligations of the GAL or Child’s Representative, under the Colorado Rules of Professional Conduct, flow from this unique definition of "client." Because of this unique relationship, an attorney’s obligation not to reveal confidential information provided by the child does not apply if the information must be revealed to ensure the child’s best interests. A determination by the GAL or the Child’s Representative of a child’s best interests must include consultation with the child in a developmentally appropriate manner and consideration of the child’s position regarding the disposition of the matter before the court. A GAL or a Child’s Representative must also explain to the child the limitations on confidentiality.

C. The attorney appointed as a GAL or a Child’s Representative shall diligently take steps that s/he deems necessary to represent and protect the best interests of the child, under the terms and conditions of the order of appointment, including any specific duties set forth in that the appointment order or in any subsequent order. If the appointee finds it necessary and in the best interests of the child, the appointee may request that the court expand the terms of the appointment and scope of the duties.

D. A GAL in a dependency and neglect case shall specifically:

1. Attend all court hearings and provide accurate and current information directly to the court. Commentary: In exceptional circumstances another qualified attorney who has sufficient knowledge of the issues and status of the case may substitute for some hearings, with permission of the court. This shall include a statement of the child’s position, when ascertainable based on the child’s developmental level, regarding the disposition of the matters addressed at the hearing. If a child informs the GAL that s/he does not want the GAL to report his or her position to the court at a specific hearing, the GAL may proceed without directly stating such position.

2. At the court’s direction and in compliance with Section 19-3-606(1), C.R.S., file written or oral report(s) with the court and all other parties.

3. Take actions within the scope of his or her statutory authority and follow the ethical obligations necessary to represent the best interests of the child.

Commentary: The GAL has the right to and should actively participate and be included in all aspects of litigation including but not limited to discovery, motions practice, settlement negotiations, court appearances, jury selection, presentation of evidence and appeals, except as limited by applicable law.

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

a. Personally interviewing the child (if appropriate to the child’s developmental level) and meeting with and observing the child in his or her placement as soon as is reasonable, but, in no event, later than 30 days following the GAL’s appointment;

b. Personally meeting with and observe the child’s interaction with the parents, proposed custodians or foster parents including kinship care providers;

Commentary: The GAL shall meet with the parents, proposed custodians, foster parents or kinship care providers who are providing ongoing care for the child and observe the child in that home. This requirement neither mandates nor is fulfilled by a GAL’s meeting with the care providers and observing the child in a temporary intake placement service, respite care or juvenile detention holding facility, unless that is the only opportunity to observe the child.

c. Reviewing court files and relevant records, reports and documents;

d. Interviewing the respondent parents, with the consent of counsel;

e. Interviewing other people involved in the child’s life, including: foster parents; caseworkers; CASA volunteers; relatives; and school personnel, therapists and any other persons or professionals necessary to assess and serve the child’s best interests.

f. Confirm that the county department’s investigation has included a search for any prospective kinship, placement and/or adoption or potential tribal affiliation, or personally conduct such investigation, in the event these attempts to reunify fail. This part of the investigation should be conducted during the initial stages of the case.

g. When appropriate, visiting the home from which the child was removed.

Additional Commentary: The GAL’s initial investigation sets the groundwork for the entire dependency and neglect case, and an effective initial investigation is critical to serving the child’s best interests and advancing permanency for the child. An effective initial investigation allows the GAL to make recommendations early on in a case which will: implement services that will advance the goals of the case and the best interests of the child with the least delay possible; reduce the risk of harm that involvement in the dependency and neglect system may present to the well being of the child; reduce the risk of disruption in the child’s placement and potential harm from the child from such disruption; and preserve relationships significant to the child, such as sibling relationships. Hence, it is expected that the initial duties described in this subsection shall be completed within 45 days of the GAL’s appointment, with the exception of the in-placement interview/observation, which shall occur within 30 days of the appointment. The duties described in sections V.D.4.e and V.D.4.f may be performed by a qualified person other than the appointee under the supervision of the appointed GAL.

5. Continue to perform an ongoing investigation as necessary to represent the best interests of the child for the duration of the case unless relieved of such duty by the court. The GAL’s ongoing investigation shall include, but shall not be limited to:

a. If the child’s placement is changed, the GAL shall personally meet with and observe the child in each new home or placement of the child, as soon as practicable after the child’s entry into the placement.

Commentary: Continuing contact and ongoing investigation constitute important components of the GAL’s role. Additionally, because each disruption in the child’s placement presents new risks of harm and is potentially detrimental to the child’s emotional and psychological well being, it is critical that the GAL meet with and observe the child in each new placement to assess the appropriateness, risks and potential permanency of that placement, as part of the GAL’s ongoing investigation. This in-placement meeting/observation shall ideally occur no later than 30 days after the child’s entry into the new placement. When circumstances make it impracticable for a GAL to visit a child within 30 days of a child’s entry into a new placement, the GAL may send a properly trained representative to visit the child in the placement within 30 days of the placement, but the GAL must follow up with his or her own visit within a reasonable time thereafter.

b. Maintaining contact and ongoing communication with the child, foster parents, caseworker, CASA and any other parties, persons or professionals necessary to ensure that the child’s best interests are continually met;

c. Other applicable duties listed above in section V.C.3.

6. In cases in which the parents or child are living or placed more than 100 miles outside of the jurisdiction of the court, the requirements to personally meet with and interview the person or child are waived. However, to the extent possible, the appointee shall endeavor to see the child in his or her extended placement and the OCR will pay reasonable costs associated with meeting these obligations.

7. All GALs in Dependency and Neglect proceedings shall submit a standard affidavit of compliance to the OCR by May 30 of each year for appointments made in the previous contract year. For any cases in which the GAL has not complied with the above requirements, a standard exception form shall be attached to the affidavit. The standard affidavit of compliance and exception form shall be developed by the OCR and made available to all GALs. The current form is shown in Attachment B.

E. An individual appointed as an attorney Child and Family Investigator pursuant to Section 14-10-116.5, C.R.S., is an investigative arm of the court and shall follow the specific terms of the order of appointment, which includes filing a written report with the court, but which does not include the duties described in section V.B. Attorney Child and Family Investigators are also subject to the Rules of Professional Conduct, the Child and Family Investigator standards set forth in Chief Justice Directive 04-08, as well as other existing or subsequent Chief Justice Directives or standards applicable to Child and Family Investigators.

F. An attorney appointed as a GAL or Child’s Representative in all other proceedings, including juvenile delinquency, parental responsibility, paternity, relinquishment, probate, mental health and truancy cases, shall perform all duties as directed by the court, as set forth by statute and as required by the Rules of Professional Conduct as described in section V.B.

VI. Duties of Judges and Magistrates

A. Judges and magistrates shall ensure that GALs, Child’s Representatives and attorney Child and Family Investigators involved with cases under their jurisdiction are representing the best interests of children/minors.

B. In providing this oversight, judges and magistrates shall:

1. Routinely monitor compliance with this directive and promptly notify the OCR of failures of GALs, Child’s Representatives and attorney Child and Family Investigators to comply with this Chief Justice Directive and other Chief Justice Directives in existence or subsequently adopted, including Chief Justice Directive 04-08, which sets forth the standards for Child and Family Investigator.;

Commentary: The complaint and notice procedure is set forth in section VII.B, footnote 1. A child whose best interests are being represented by counsel in dependency and neglect and other proceedings is in a particularly vulnerable position s/he will unlikely appear in court regularly and may find it difficult to express concerns or problems that s/he is experiencing with the attorney who has been appointed to represent his or her best interests. For these reasons, judges should take an active role in monitoring the attorneys who represent the best interests of children. Often the judge is the only individual in the position to become aware of less than adequate representation or non-compliance with this Chief Justice Directive. Judges should consider such practices as inquiring at each court date as to the last contact that the GAL or Child’s Representative has had with the child, as well as asking any other questions the judge believes is necessary and appropriate to ensure that the child’s best interests are receiving quality representation.

2. Provide guidance and clarify the expectations of the court concerning GALs, Child’s Representatives and attorney Child and Family Investigators upon their appointment, throughout the proceedings and through other appropriate mechanisms;

3. Hold periodic meetings with all practicing GALs, Child’s Representatives and attorney Child and Family Investigators the court deems necessary to ensure adequate representation of the best interests of children or minor wards; and

4. As explained in section V.B, hold GALs and Child’s Representatives to the same standards and expectations imposed by the Colorado Rules of Professional Conduct on every attorney who is licensed to practice law in Colorado and report any violations. Any report should also include notice to the OCR of such report or concern so that the OCR may use this information to protect existing or other children’s best interests from inadequate representation.

C. Implement procedures and practices that enable GALs and Child’s Representatives to comply with this Chief Justice Directive.

Commentary: Examples of such procedures and practices include entering orders authorizing GALs and Child’s Representatives to access to all relevant case information and checking the availability of the GAL or Child’s Representative when scheduling hearings.

VII. Procedures for Complaints against GAL, Child’s Representative, and Attorney Child and Family Investigator through Contracts with the Office of the Child’s Representative.

A. For all court-appointed GALs, attorney Child and Family Investigators and Child’s Representatives, complaints concerning alleged violations of the Colorado Rules of Professional Conduct shall be filed with the Colorado Supreme Court Office of Attorney Regulation Counsel and reported, if possible, to the OCR so that OCR may be able to consider this information when deciding whether to continue to contract with the attorney, either at the time of the complaint or in the future.

B. All complaints regarding the performance of any state-paid GAL, attorney Child and Family Investigator or Child’s Representative who contracts with the OCR shall be submitted to the OCR in writing, unless the complainant is a judicial officer or court staff.1 The OCR shall investigate the matter and take action necessary to resolve any concerns or issues raised by the complaint. Such action may include, but is not limited to: placing the attorney on probationary status with regard to his or her contract with the OCR; suspending or terminating the attorney’s contract with the OCR; terminating the attorney’s appointment on an active case2; and/or taking remedial action to improve the quality of the attorney’s work. At the conclusion of the investigation, the OCR shall issue a written report of its action to the attorney, the complainant and other parties determined by the OCR to be in need of the complaint information, and the OCR may redact the written report to protect the confidentiality of persons when the OCR deems such redaction advisable. This paragraph does not preclude OCR’s authority to terminate a contract at will.

C. The OCR is required to report any violations of the Colorado Rules of Professional Conduct that it becomes aware of during its investigation of a complaint to the Colorado Supreme Court Office of Attorney Regulation Counsel.

VIII. Sanctions

A. All contracts with the OCR for appointments addressed in this Chief Justice Directive shall include a provision requiring compliance with this Chief Justice Directive. Failure to comply with this Chief Justice Directive may result in OCR terminating the contract, removing the attorney from the OCR appointment list, and terminating the appointment.

B. Judges and magistrates shall notify appointees that acceptance of the appointment requires compliance with this Chief Justice Directive, and that failure to comply will result in timely notification to the OCR and may result in the OCR terminating the contract, removing the attorney from the OCR appointment list, and terminating the appointment as set forth in section VIII.A.

Effective May 1, 2004, CJD 97-02 is Repealed and replaced by this CJD 04-06 and CJD 04-05.* [*Chief Justice Directive 04-05 is titled "Appointing and Payment Procedures for Court Appointed Counsel for Children and Indigent Persons in Titles 14, 15, 19 (Dependency and Neglect Only), 22, 25, 27, and Guardians ad Litem, Non-Attorney Child and Family Investigators and Court Visitors Paid by the State Court Administrator’s Office."]

CJD 04-06 is revised and adopted effective July 1, 2006.

CJD 04-06 is revised and adopted effective January 1, 2012.

Done at Denver, Colorado this 20th day of December 2011.

Michael L. Bender, Chief Justice
Colorado Supreme Court

__________

1. If an issue arises concerning an attorney’s ability to competently or adequately represent a child’s best interest in any particular case, the court shall immediately contact the OCR. The OCR must respond forthwith, giving immediate consideration and resolution regarding the complaint, which may include termination of contract, removal from the case at issue, and/or removal from the OCR approved list. In addressing the complaint, the OCR will give serious consideration to the judicial officer’s recommendations as to how the termination of an appointment or any other action taken by the OCR may impact the best interests of the child in the course of a particular case. This complaint process in no way interferes with the court’s inherent powers to impose sanctions, exercise its powers of contempt, and/or report any violations of the Rules of Professional Conduct to the Supreme Court Attorney Regulation Office.

2. The OCR will remove an attorney from an open case only under extenuating circumstances. With input from the court and only if warranted under the most exceptional circumstances, will the OCR consider removing an attorney from an existing and ongoing appointment. The OCR fully understands and appreciates the serious consequences that may result from removing an attorney from an existing case. It can disrupt the continuity of the case, interrupt and delay the court process, extend the length of the case and ultimately may not be in the best interests of the child. As such, only after serious consideration will the OCR remove an attorney from a case.

______________________________

CJD 12-01
Public Domain Citation Format for
Colorado Supreme Court and Colorado Court of Appeals Cases
Established

Given the increasing amount of legal research being conducted via the Internet and other electronic resources and the desire to promote equal access to Colorado’s system of justice, this Chief Justice Directive establishes a public domain citation format that will support the use of Colorado case law in both book and electronic formats.

Legal practitioners and self-represented parties will be permitted—but not required—to use the public domain citation format instead of citing to the Pacific Reporter. Irrespective of which citation format is used, a parallel citation to the other format is also not required.

Beginning January 1, 2012, the Clerk of the Colorado Supreme Court and the Clerk of the Colorado Court of Appeals shall assign to all opinions announced for publication a citation that shall include:

1. The calendar year in which the opinion is announced;

2. Followed by the court designator "CO" for published opinions announced by the Colorado Supreme Court, or followed by the court designator "COA" for published opinions announced by the Court of Appeals; and

3. Followed by a consecutive Arabic numeral, beginning in each new calendar year with the number "1"; for example: "2012 CO 1" for the first published opinion announced by the Colorado Supreme Court in 2012, and "2012 COA 1" for the first published opinion announced by the Colorado Court of Appeals in 2012.

This public domain citation shall appear on the title page of each published opinion announced by the Supreme Court and by the Court of Appeals. All publishers of Colorado Supreme Court and Colorado Court of Appeals materials are requested to include this public domain citation within the heading of each Colorado opinion they publish on or after January 1, 2012. In addition:

Numbered paragraphs. Beginning with the first paragraph of text, each paragraph in every published opinion shall be numbered consecutively beginning with a "¶" symbol followed by an Arabic numeral—beginning with the number "1"—flush with the left margin, opposite the first word of the paragraph. Paragraph numbers shall continue consecutively throughout the text of the majority opinion and on through any concurrence or dissent. Footnotes and paragraphs within footnotes shall not be numbered, nor shall markers, captions, headings, or numerated titles that merely divide sections of opinions. Block-indented, single-spaced portions of a paragraph shall not be numbered as a separate paragraph. All publishers of Colorado Supreme Court and Colorado Court of Appeals materials are requested to include these paragraph numbers in each opinion they publish.

Unpublished opinions. Opinions that are not designated for official publication pursuant to C.A.R. 35(f) shall not be assigned a public domain citation.

Modification, revision, or other substantive amendment. In the case of opinions that are modified, revised, or otherwise substantively amended by subsequent order of the Supreme Court or of the Court of Appeals, the public domain citation of the modified, revised, or amended opinion shall be the same as the original public domain citation but followed by the letter "M"; for example, "2012 CO 1M" in the case of a modified Colorado Supreme Court opinion, and "2012 COA 1M" in the case of a modified Colorado Court of Appeals opinion. In the event an opinion is modified, revised, or otherwise substantively amended more than once, the public domain citation of any additional modified, revised, or amended opinion shall be the same as the original public domain citation but designated with the letter "M" followed by a hyphen and the appropriate Arabic numeral; for example: "2012 CO 1M-2" in the case of a Colorado Supreme Court opinion modified a second time, and "2012 CO 1M-3" in the case of a Colorado Supreme Court opinion modified a third time, and so on.

Withdrawn, vacated, and reissued opinions. In the case of opinions that are withdrawn or vacated by a subsequent order of the Supreme Court or of the Court of Appeals, the public domain citation of the withdrawing or vacating order shall be the same as the original public domain citation but followed by the letter "W"; for example, "2012 CO 1W" in the case of a withdrawn or vacated Colorado Supreme Court opinion, and "2012 COA 1W" in the case of a withdrawn or vacated Colorado Court of Appeals opinion. In addition, the withdrawn or vacated opinion shall be removed from the electronic database of opinions maintained by the Supreme Court, and all publishers of Colorado Supreme Court and Colorado Court of Appeals materials are requested to remove withdrawn or vacated opinions from their electronic databases. An opinion that is reissued in place of a withdrawn or vacated opinion shall be assigned the next consecutive number appropriate to the date on which the reissued opinion is announced.

Examples of proper public domain citation format. The public domain citation format applies to published opinions announced by the Colorado Supreme Court and the Colorado Court of Appeals on or after January 1, 2012. The following examples are not real cases and are used for illustrative purposes only:

Colorado Supreme Court:

Primary citation:

Smith v. Jones, 2012 CO 22.

Primary citation with pinpoint citation:

Smith v. Jones, 2012 CO 22, ¶¶ 13–14.

Subsequent citation with pinpoint citation:

Smith, ¶¶ 13–14.

Id. citation with pinpoint citation:

Id. at ¶¶ 13–14.

Colorado Court of Appeals:

Primary citation:

Jones v. Smith, 2012 COA 35.

Primary citation with pinpoint citation:

Jones v. Smith, 2012 COA 35, ¶¶ 44–45.

Subsequent citation with pinpoint citation:

Jones, ¶¶44–45.

Id. citation with pinpoint citation:

Id. at ¶¶44–45.

Done at Denver, Colorado this day 3rd day of January 2012

Michael L. Bender, Chief Justice
Colorado Supreme Court


Colorado Supreme Court
Judicial Ethics Advisory Board Opinion

Colorado Supreme Court
Colorado Judicial Ethics Advisory Board (C.J.E.A.B.)
C.J.E.A.B. Advisory Opinion 2012-01
Finalized and effective as modified1 January 25, 2012

ISSUE PRESENTED:

The requesting judge is the chairman of the board of directors of a local non-profit organization whose mission is to provide programs and projects that enhance the lives of senior citizens and promote independent living. The organization relies on federal, state, local, and private grants to fund many of its programs. The judge indicated that the chairman typically "signs off" on grant applications and any terms of the grant, and that some funding entities require that the chairman sign the grant application. The judge’s question is whether a judge may sign grant applications as the chairman of the board of a non-profit organization or whether doing so would violate Rule 3.7 of the Colorado Code of Judicial Conduct (Code). The judge noted that the grant applications and accompanying letter on the organization’s letterhead will not refer to the judge’s position as a judge.

CONCLUSIONS:

Although it is appropriate for the requesting judge to serve as the chairman of the organization’s board of directors, he may not sign grant applications on behalf of the organization, regardless of whether the judge is identified as a judge in the application materials.

APPLICABLE PROVISIONS OF THE COLORADO CODE OF JUDICIAL CONDUCT

Canon 3 of the Code provides that "A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office." Two Rules under this Canon are relevant to the requesting judge’s inquiry: Rules 3.1 and 3.7.

Rule 3.1 serves as a general list of restrictions on a judge’s extrajudicial activities and provides in pertinent part that:

A judge may engage in extrajudicial activities, except as prohibited by law or this Code. However, when engaging in extrajudicial activities, a judge shall not:

* * *

(C) participate in activities that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality; [or]

(D) engage in conduct that would appear to a reasonable person to be coercive . . . .

Rule 3.7 lists extrajudicial activities a judge is permitted to engage in on behalf of non-profit educational, religious, charitable, fraternal, or civic organizations. As pertinent here, Rule 3.7 provides:

(A) Subject to the requirements of Rule 3.1, a judge may participate in activities . . . sponsored by or on behalf of . . . charitable . . . or civic organizations not conducted for profit, including but not limited to the following activities:

* * *

(2) soliciting contributions for such an organization or entity, but only from members of the judge’s family, or from judges over whom the judge does not exercise supervisory or appellate authority; [and]

* * *

(6) serving as an officer, director, trustee, or nonlegal advisor of such an organization or entity, unless it is likely that the organization or entity:

(a) will be engaged in proceedings that would ordinarily come before the judge; or

(b) will frequently be engaged in adversary proceedings in the court of which the judge is a member, or in any court subject to the appellate jurisdiction of the court of which the judge is a member.

DISCUSSION:

There have been significant changes to the Colorado Code of Judicial Conduct since the Board last considered a judge’s service on the board of directors of a non-profit organization. On the issue of such service, however, the provisions of the new Code are very similar to the provisions of the old Code. Rule 3.1, cmt. 1, of the new Code and Canon 5B of the old Code both encourage a judge to participate in extrajudicial activities including educational, religious, charitable, fraternal and civic activities not conducted for profit. Furthermore, the new Code, like the old Code, specifically allows a judge to serve as an officer or director of such an organization. (Compare Canon 5(B)(1) of the pre-2010 Code and Rule 3.7(A)(6) of the new Code.) Thus, under the new Code it is appropriate for a judge to serve as the chairman of the board of directors of a non-profit organization.

That the judge may serve as chairman of the board of directors of the non-profit organization, however, does not answer the question whether he may sign grant applications on behalf of the organization. Although the Board has not previously considered this specific question, the Board has previously advised judges against any personal involvement in fundraising. See, e.g., CJEAB Adv. Op. 2008-07 (a judge may approve a deferred sentence agreement that requires a defendant to make a donation to a specific charity, as long as the charity specified in the agreement is neither chosen nor suggested by the court); CJEAB Adv. Op. 2007-03 (a judge may serve on a grant-making committee of a community foundation and participate "in the planning or organizing of fundraising events, so long as the prestige of his judicial office is not used for fundraising purposes," but "should not personally solicit funds on behalf of the organization"); CJEAB Adv. Op. 2007-02 (a judge may serve on the board of directors of a public charter school and the school may apply for grants from private foundations and seek private donations, but the judge’s service as a member of the board may not include any fundraising; the judge should "be listed on board materials by name only, with no reference to her title"). This advice was based on the old Code of conduct, particularly Canon 5B(2) which provided that "[a] judge shall not personally solicit funds for any educational, religious, charitable, fraternal, social or civic organization, or use or permit the use of the prestige of the judge’s office for that purpose." The new Code does not substantially change this prohibition. It provides that a judge may solicit contributions for a non-profit organization "but only from members of the judge’s family, or from judges over whom the judge does not exercise supervisory or appellate authority." Rule 3.7(A)(2). Accordingly, the new Code still prohibits judges from soliciting contributions or directly engaging in fund-raising for a non-profit organization.

With regard to the current request, the Board determines that a judge’s signing a grant application on behalf of a non-profit organization, even if the judge’s title or position is not mentioned on the application, is the equivalent of soliciting a contribution or fund-raising for the organization, and is therefore prohibited by the Code. The fact that the judge’s title and position would not be mentioned in the grant application makes this activity somewhat less objectionable since one of the reasons for the prohibition against judges soliciting contributions is the potentially coercive effect of a judge’s involvement in fundraising. C.J.C. Rule 3.1, cmt. 4, and Rule 3.7(a)(2). Nevertheless, the Board finds that the Code’s prohibition against a judge engaging in fund-raising and soliciting contributions is so clear that the Board must hew to a bright-line rule. Moreover, even if the judge’s title were not used on the grant application there would be no guarantee that the organization or person being solicited for funds would not be aware of the judge’s position.

Other state judicial advisory boards that have considered this question have reached the same conclusion.2 See Ariz. Jud’l Ethics Adv. Comm. Op. 97-09 (rule stating that judge may not solicit funds for any charitable or civic organization prohibited judge from signing grant application or being "contact person" regarding grant application on behalf of non-profit corporation of which judge was president); N.Y. Adv. Comm. on Jud’l. Ethics Op. 91-69 (1991) (rule prohibiting judges from using prestige of judicial office for fund-raising purposes prohibited judge who served as a trustee of a charitable organization from having "his or her name listed in any funding application by the organization unless a grant application requests the names of all trustees"); N.Y. Adv. Comm. on Jud’l Ethics Op. 88-121 (1988) (rules prohibiting judges from using prestige of judicial office for fund-raising purposes prohibited judge serving on board of directors of civic group from allowing his or her name to be used in connection with fundraising or grant applications; "all stationery and written material used in connection with any fundraising, and grant applications [must] exclude any reference to the judge’s membership on the board of directors"); Okla. Jud’l Ethics Adv. Comm. Op. 2009-2 (rule prohibiting judges from personally participating in solicitation of funds or other fund-raising activities on behalf of charitable or civic organizations prohibited judge who was president of non-profit charitable corporation from signing application for funding grant, and noting that "the Code makes no distinction as to whether the signatory is or is not identified on the application as a judge"). In addition, although it did not specifically address whether the inquiring judge may submit a grant application on behalf of the non-profit organization he served, another state advisory committee concluded that the judge "may write grants and plan fundraisers," but "may not participate in fundraising." (Emphasis added.) S.C. Adv. Comm. on Stds. of Jud’l Conduct Op. 10-2009. See also Jud’l Educ. Ctr. Adv. Comm. on Code of Jud’l Conduct Op. 99-03 (1999) (judge may serve as a member of the board, and judge’s name and judicial designation could properly appear with other board members to solicit funds, provided judge’s name and judicial office are not selectively emphasized, and judge’s signature is not the sole signature on fundraising correspondence).

We agree with those opinions and conclude, based on the specific fundraising restriction in Rule 3.7(A)(2) and the general provisions in Rules 3.1(C) and (D) prohibiting extrajudicial activities that may be perceived as coercive or as compromising a judge’s independence, integrity, and impartiality, that a judge may not sign grant applications on behalf of a non-profit organization, regardless of whether the judge is identified as a judge in the application materials.

FINALIZED AND EFFECTIVE AS MODIFIED this 25th day of January 2012.

__________

1. The last paragraph of the opinion issued on January 19, 2012 read: "We agree with those opinions and conclude, based on the specific fundraising restriction in Rule 3.7(A)(2) and the general provisions in Rules 3.1(C) and (D) prohibiting extrajudicial activities that may be perceived as coercive or as compromising a judge’s independence, integrity, and impartiality, that a judge may not sign grant applications on behalf of a non-profit organization to support programs that are not law-related, regardless of whether the judge is identified as a judge in the application materials." The opinion has been modified to delete the phrase "to support programs that are not law-related."

2. Based upon provisions of judicial ethics codes similar to C.J.C. Rule 3.7(A)(5) that permit a judge to make recommendations to private and public funding agencies on projects and programs concerning the law, the legal system or the administration of justice, some ethics advisory committees have approved judges writing letters in support of grant applications for law-related projects. See Fla. Jud’l Ethics Adv. Comm. Op. 93-1 (1993) (letter supporting high school’s grant application to fund a pre-law magnet program); Neb. Jud’l Ethics Comm. Op. 98-4 (1998) (judge permitted to provide a letter in support of grant proposals by county attorney’s victim assistance unit and court appointed special advocate program); N.Y. Adv. Comm. on Jud’l Ethics Op. 97-71 (1997) (judge may provide statement for use by organization seeking a state grant to create a legal advocacy program for victims of domestic violence).

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