Vol. 41, No. 10
From the Courts
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.
Authority and Responsibility of Chief Judges
Amended August 17, 2012
The chief judge is the administrative head of all district and county courts within a judicial district, unless otherwise noted in this directive, as delegated by the Chief Justice pursuant to Colorado Constitution, Article VI, Section 5(4). The chief judge of the Court of Appeals has the administrative authority and responsibility over the Court of Appeals and is covered by this directive. The chief judge of the Second Judicial District shall not have administrative authority over the Denver County Court. The presiding judges of the Denver Probate and Juvenile courts shall have the same authority as a chief judge for their respective courts. The chief judge of each court has the authority and responsibility to manage the court consistent with this directive.
1. Delegation of Authority
The chief judge may delegate authority to the district administrator (or judicial administrator, as appropriate), clerk(s) of court, chief probation officer, and other judges as deemed appropriate. The chief judge maintains ultimate authority and responsibility despite delegation pursuant to this directive. In this directive, where authority is assigned to the chief judge, that authority may be delegated pursuant to this paragraph. The chief judge may enter a written order designating an acting chief judge during any absence of the chief judge.
2. Administrative Relationships
To facilitate the administration of the district, the chief judge shall appoint a management team in each district. It is recommended that the management team include at a minimum, the chief judge, district administrator, clerk(s) of court, and chief probation officer and a presiding county court judge from within the district. The chief judge has the authority to appoint other members to the management team as appropriate considering the needs of the district and the issues to be determined.
The chief judge shall make every effort to develop a clear understanding of the role of the chief judge in relation to other district and county judges, the presiding county court judge, the district administrator, the chief probation officer, and the clerks of the various courts in the district. The chief judge shall schedule en banc meetings on a regular basis and require judges and appropriate court personnel to attend the en banc meetings. The chief judge shall meet with the management team on a regular basis to address problems and improve services within the district. The chief judge shall require regular staff meetings of court and probation personnel within the district as appropriate.
3. Assignment of Judges
a. The chief judge has authority to assign district and county court judges in accordance with the following guidelines.
i. District judges may be assigned to any district or county court within the district when necessary;
ii. Qualified county judges may be assigned to any court in the district when necessary, pursuant to §13-3-110, C.R.S.;
iii. A judge may be assigned by written order to a particular court, to a division within a court, to try a specific case, or hear or decide all or any part of a case.
b. The chief judge shall establish a date for the swearing in of new judges considering the court budget and needs of the judge-appointee.
4. Judicial Schedules and Court Hours
a. Chief judge:
i. The chief judge shall require that there is a judge available during all business hours and all business days of the court.
ii. The chief judge shall require that there is an on call and emergency schedule for judicial officers to be available and shall distribute that schedule as appropriate or make sure those that need to know have a clear procedure for emergency issues.
iii. The chief judge shall have the authority to require all part-time county court judges to submit their court schedules to the chief judge for review and approval on a daily, weekly, monthly or quarterly basis. Changes in the schedule may be made with the approval of the chief judge.
iv. The chief judge shall have the authority to appoint a presiding county court judge pursuant to §13-6-215, C.R.S.
b. Judges and magistrates:
i. Full-time judges are required to maintain a full-time schedule and are required to be available during the normal business hours of the court. Part-time judges shall maintain a schedule approved by the chief judge consistent with the statutory creation of the position, pay and class of county.
ii. All judges and magistrates shall arrange to have assigned matters handled by another judge or magistrate before leaving the courthouse or taking administrative, vacation or educational leave.
5. Case Assignment, Case Management, and Calendaring Procedures
a. In order to ensure that the chief judge has adequate time to discharge administrative duties, the chief judge may assume a reduced caseload consistent with the needs of the particular district.
b. The chief judge may assign and reassign cases to courts or divisions within the courts and may delegate the assignment power.
c. The chief judge may establish uniform case management, case processing, and calendaring procedures for all district and county courts in the district.
d. The chief judge shall enforce the use of open case and age of case reports for every judicial officer, including when a judge or magistrate rotates or announces an intention to resign or retire.
6. Requests for Judicial Assistance
a. Requests for judicial assistance from outside the district will be submitted by the chief judge to the state court administrator.
b. All requests from the state court administrator for judges to serve outside of their own jurisdiction shall be coordinated with the chief judge.
7. Authorization for Leave
a. Leave for Judges. All judges shall notify the chief judge of proposed vacation time in writing. The chief judge shall coordinate vacation time to satisfy local needs. The chief judge may approve leave in excess of vacation time, or for administrative and educational purposes.
b. The chief judge may approve leave or refuse to allow leave to be taken as may be necessary to ensure adequate staffing of the court and probation offices at all times.
8. Personnel Responsibilities
a. The chief judge may assign and reassign employees to meet the needs of the district.
b. The chief judge shall maintain personnel records for all employees.
c. The chief judge shall evaluate magistrate performance on an annual basis.
9. Budget and Fiscal Responsibilities
The chief judge is responsible for managing the budget within the district in accordance with fiscal policies and procedures established by the State Court Administrator’s Office.
10. Facilities and Equipment
a. The chief judge is responsible for the assignment and management of all district facilities, including, but not limited to, courtrooms, chambers, clerks’ offices, probation offices, jury rooms, and office space.
b. The chief judge is responsible for maintaining an inventory of all the furniture and equipment within the district and for reallocating equipment and furniture for more efficient use.
c. The chief judge is responsible for coordinating with county authorities those aspects of facility management that affect both county and state responsibilities, including the cleanliness, safety, security and adequacy of the court and probation facilities. Use of the court’s facilities for non-court functions by outside groups or agencies shall be approved by the chief judge in consultation with county authorities.
d. The chief judge must ensure that all purchases of IT equipment comply with the standards established by the technology division of the State Court Administrator’s Office.
11. Combined Courts
The chief judge may consolidate district and county court clerks’ offices at any location for operating or judicial efficiency.
12. Chief Judge Council
In recognition of the leadership role which Chief Judges play in their respective districts but also in the Colorado Judicial Branch, there shall be a Chief Judge Council consisting of the Chief Judges of each judicial district, the Chief Judge of the Court of Appeals, and the presiding judges of the Denver County Court, the Denver Juvenile Court, and the Denver Probate Court. The Chief Judge Council shall meet at least quarterly. The Chief Justice shall consult with and consider the recommendations of the Chief Judge Council in setting priorities for the branch and in developing policies and making and implementing administrative decisions. The Chief Judge Council may elect from among them a Chair and Co-Chair as necessary to improve and maintain effective communication with the Chief Justice and the State Court Administrator.
The chief judge has the authority to enter an administrative order requiring compliance with an administrative decision of the chief judge. Judges, court and probation employees have a duty to comply with all directives and administrative orders of the chief judge. The chief judge may mandate training, mediation or other appropriate measures for any judge. Noncompliance with a directive or an administrative order may result in a personnel action, a report to the performance commission, a report to the Commission on Judicial Discipline, or other remedy as appropriate.
14. Chief Judge Performance
Chief Judges are reappointed by the Chief Justice on an annual basis. Complaints concerning the chief judge’s administrative performance shall be addressed in writing to the Chief Justice.
Any disputes arising from the exercise of the authority described in this directive shall be resolved by the Chief Justice.
Done at Denver, Colorado this 17th day of August 2012.
By the Court:
Michael L. Bender, Chief Justice
Colorado Supreme Court
Colo. Const. Art. VI, § 5(4).
Colorado Judicial Department
Colorado Supreme Court
Judicial Ethics Advisory Board Opinions
Colorado Judicial Ethics Advisory Board (CJEAB)
Advisory Opinion 2012-04
Finalized and Effective August 9, 2012
The requesting judge is a district court judge who sometimes presides over C.R.C.P. 120 and other foreclosure-related proceedings. The judge requested an advisory opinion regarding whether "it is ethical for a judge to purchase real estate in the judge’s judicial district that has been the subject of a Rule 120 foreclosure proceeding." The judge indicated that the question "only concerns the purchase of real estate after the property has been sold at the public trustee’s sale and is being [re-]sold by the purchaser." In addition to this general question, the judge asked: (1) whether the "current foreclosure dominated market" is a factor; (2) whether "it matter[s] if the judge purchasing the real property presided over the Rule 120 proceeding"; and (3) whether it "makes a difference if the property is listed by a realtor and thereby available for sale to the general public."
A judge may purchase property that was the subject of a foreclosure proceeding in the judge’s judicial district at a subsequent sale, provided the purchase does not result or appear to result from the exploitation of the judicial office or the use of information acquired by the judge in his or her judicial capacity, the judge does not receive preferential treatment in the sale based on his or her position or affiliation with any person or entity involved in the foreclosure proceedings, and the purchase does not undermine the judge’s impartiality or give rise to the appearance of impropriety.
APPLICABLE PROVISIONS OF THE COLORADO CODE OF JUDICIAL CONDUCT
Canon 1: "A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety."
Rule 1.2: "A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety."
Rule 1.3: "A judge shall not use the prestige of judicial office to advance the personal or economic interests of the judge."
Canon 2: "A judge shall perform the duties of judicial office impartially, competently, and diligently."
Rule 2.2: "A judge shall . . . perform all duties of judicial office fairly and impartially."
Rule 2.4(B): "A judge shall not permit . . . financial . . . interests . . . to influence the judge’s judicial conduct or judgment."
Canon 3: "A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.
Rule 3.5: "A judge shall not intentionally . . . use nonpublic information acquired in a judicial capacity for any purpose unrelated to the judge’s judicial duties."
Rule 3.11(A): "A judge may hold and manage investments of the judge and members of the judge’s family."
Rule 3.11(C): "A judge shall not engage in financial activities permitted under paragraph (A) . . . if they will:
(1) interfere with the proper performance of judicial duties;
(2) lead to frequent disqualification of the judge;
(3) involve the judge in frequent transactions or continuing business relationships with lawyers or other persons likely to come before the court on which the judge serves; or
(4) result in violation of other provisions of this Code.
The requesting judge asks whether the Code prohibits a judge who presides over foreclosure proceedings from ever purchasing properties that had, at some previous time, been the subject of a Rule 120 foreclosure proceeding. Because the requesting judge did not provide any facts about a specific proceeding or proposed purchase, our opinion should not be read as reaching a definitive conclusion regarding whether any particular purchase would be ethical. This opinion, however, provides general guidance and an analytical framework for judges to use in determining whether a proposed purchase of real estate that previously was the subject of foreclosure proceedings in the judge’s judicial district would be consistent with the Code of Judicial Conduct.
The Code generally permits judges to engage in financial activities, including making and managing real estate investments, unless doing so would interfere with the judge’s ability to fulfill his or her judicial duties or would violate another provision of the Code. See C.J.C. Rule 3.11 and cmt. 1. Specifically, a judge may not engage in financial transactions that might influence his or her judicial conduct or judgment or otherwise interfere with the proper performance of judicial duties. See C.J.C. Rules 2.4(B), 3.11(C)(1). A judge should avoid financial transactions that would result in frequent disqualification or create potential conflicts of interest. See C.J.C. Rule 3.11(C)(2) and (3). A judge also may not engage in financial transactions that could undermine his or her impartiality or give rise to an appearance of impropriety. See C.J.C. Rules 1.2 and 2.2. Nor may a judge use the prestige of the judicial office to gain personal advantage or deferential treatment in a financial transaction, see C.J.C. Rule 1.3 and cmt. 1, or use non-public information acquired in the judge’s judicial capacity to advance his or her personal financial interests. See C.J.C. Rule 3.5.
Read together, these Rules do not prohibit a judge from purchasing property that had previously been the subject of a foreclosure proceeding in the judge’s judicial district so long as (1) the purchase does not result or appear to result from exploitation of the judicial office or the use of information acquired by the judge in his or her judicial capacity; (2) the judge does not receive preferential treatment in the sale or otherwise have an advantage over other potential purchasers based on his or her position as a judge or affiliation with any person or entity involved in the foreclosure proceedings or sale; and (3) the purchase does not undermine the judge’s impartiality or give rise to the appearance of impropriety.
Applying these rules to the current request, the fact that the foreclosure proceeding has been completed and the property is being sold by the foreclosure purchaser suggests sufficient distance from the foreclosure proceeding that there is no ethical violation for the judge to attempt to purchase the property. See e.g. Ala. Jud. Inquiry Comm’n Op. 02-800 (2002) (concluding that a judge may purchase real estate that was involved in a declaratory judgment action over which the judge presided several years earlier, but recognizing that "an adverse reflection on the judge’s impartiality might be created" if the purchase had been "made or planned in close proximity to the hearing of the case, and the judicial office would be exploited if the judge received any preferential treatment by the seller because he had served as the judge in the prior litigation").
The requesting judge asked whether it mattered if he or she had presided over the Rule 120 foreclosure proceeding that occurred prior to the current sale of the property. The answer to that question depends on whether the requesting judge acquired information during those proceedings that gave the judge an advantage in the subsequent purchase or if the judge was treated preferentially in the subsequent sale because of the judge’s previous involvement in the case. If the answer to either of those questions is "yes" the judge should not engage in the purchase. The requesting judge also asked whether it mattered if the property was listed by a realtor ‘and thereby available for sale to the general public.’ The Board thinks the relevant factor is whether the property is available for sale to the general public. If the real estate is available for sale to any purchaser on the same terms as to the judge, then the judge’s involvement in the transaction is likely ethical. Finally, the Board does not think the "current foreclosure dominated market" is a relevant factor in the analysis of whether the Code of Judicial Conduct allows a judge to purchase property that has previously been involved in a foreclosure proceeding.
Although the Board has concluded that in many circumstances it would not violate the Code for a judge to purchase real estate that had previously been involved in a foreclosure proceeding, it is important to note that the requesting judge should not attempt to purchase property that is the subject of a foreclosure proceeding over which the judge is currently presiding because the appearance that the judge is exploiting the judicial office, the appearance that the judge has an advantage over other purchasers and the appearance that the judge’s impartiality might be affected would all be so strong as to prohibit the judge from engaging in the transaction. See, e.g., In re Handy, 867 P.2d 341 (Kan. 1994) (publicly censuring a judge who demonstrated insensitivity to the appearance of impropriety by purchasing property that was involved in a probate case over which he presided and purchasing a home that was the subject of a foreclosure action pending before him, even where there was no evidence that the judge had obtained an unfair advantage); In re Yaccarino, 502 A.2d 3 (N.J. 1985) (judge’s attempt to purchase real estate that was an asset in a corporate dissolution action before the judge and his agreement to conduct the proceedings by meeting with the parties ex parte were improper, reflected adversely on his impartiality, and created an appearance that the judge was exploiting his position by seeking to obtain the property at an unreasonably low price); Kan. Jud. Ethics Adv. Panel Op. JE-124 (2004) (a judge should not buy assets from an estate that is pending in a court upon which the judge is sitting at either a private sale or public auction, directly or through an agent, because doing so might "reasonably be perceived to exploit the judge’s judicial position" and would "undermine public confidence in the integrity and impartiality of the judiciary").
Finalized and Effective August 9, 2012.
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