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TCL > May 2014 Issue > Court Business

The Colorado Lawyer
May 2014
Vol. 43, No. 5 [Page  121]

© 2014 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 2014(04)
Rules Governing the Commissions on Judicial Performance
Rule 10. Trial Judge Evaluations
Rule 11. Appellate Judge and Justice Evaluations
Rule 13. Narratives
Amended and Adopted

[Note: The changes occur only in the Rules outlined below. Omitted portions contain no changes.]

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 trial judge being evaluated; 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. Comments shall be separated from completed questionnaires before the comments are forwarded to the trial judge being evaluated.

(b) 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 for each trial judge during the current term, 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, including, if applicable, 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, 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 court judges, and county court judges, and other interested persons. The commission shall agree to meet with a representative of the District Attorney and a representative of the Public Defender when a request is made, provided that the request is made no later than the first day of April of the relevant retention year. The commission shall provide adequate notice and work with the representatives to schedule a convenient date and time for the meeting. In addition, the commission shall accept information and documentation from any interested person, provided the interested (i) submits his or her name and address, and (ii) submits the information and/or documentation to the commission by the first day of April of the relevant retention year. 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 three 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; and one shall be for other appellate judges and justices, and staff attorneys. 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. Comments shall be separated from completed questionnaires before the comments are forwarded to the appellate judge or justice.

(b) The state commission shall ensure that each appellate judge or justice being evaluated receives adequate observation through visits to the courtroom.

(c) The clerk 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 current term, 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. These opinions shall include, if applicable, at least one separate concurrence or dissent, at least one unpublished opinion, and at least one opinion which was reversed on appeal, together with the reversing 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, 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 other persons, including judges and justices 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 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) Evaluation methods used by the commission, whether any of the groups surveyed had an insufficient response rate, and the percentages of responses from each surveyed group recommending that a justice or judge be retained or not be retained, or making no recommendation that a justice or judge be retained; and

(iv) A description of the performance of the justice or judge over the past term, including any areas of notably strong or weak performance with respect to the judicial performance criteria contained in 13-5. 5-105. 5(1) and (2), any deficiencies reflected in the interim evaluation, 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;

(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.

Amended and Adopted by the Court, en banc, March 17, 2014, effective immediately.

By the Court:

Nancy E. Rice, Chief Justice
Colorado Supreme Court

_____________________________________

Rule Change 2014(05)
Colorado Rules of Professional Conduct
Rule 1.2. Scope of Representation and Allocation of Authority
Between Client and Lawyer
Amended and Adopted

Comment

[14] A lawyer may counsel a client regarding the validity, scope, and meaning of Colorado Constitution article XVIII, sections 14 and 16, and may assist a client in conduct that the lawyer reasonably believes is permitted by these constitutional provisions and the statutes, regulations, orders, and other state or local provisions implementing them. In these circumstances, the lawyer shall also advise the client regarding related federal law and policy.

Amended and Adopted by the Court, en banc, March 24, 2014, effective immediately.

Justice Coats and Justice Eid would not approve Comment [14].

By the Court:

Nancy E. Rice, Chief Justice
Colorado Supreme Court


U.S. Bankruptcy Court for the District of Colorado

General Procedure Order Number 2014-2
In the Matter of Chapter 7 Trustees’ Motions to Sell
Under 11 USC § 363(f) Requiring a Filing Fee

This matter comes before the Court to address the issue of the timing of payment of the filing fee for chapter 7 trustees’ motions to sell under 11 U.S.C. § 363(f). In order to facilitate the requirements for the collection of fees in connection with a chapter 7 trustee’s motion to sell property fee and clear of liens under Section 363(f), the court establishes the following procedure for payment of the filing fee.

As of December 1, 2013, a fee in the amount of $176 is assessed for Section 363(f) motions (Section 363(f) Fee). Unlike a number of other fees, neither the Fee Compendium nor 28 USC § 1930 states when the Section 363(f) Fee is due. Because no due date is specified, this court concludes that it has the discretion to establish a reasonable due date. Ordinarily, that date would be when a sale motion is filed. However, the Fee Compendium reflects a policy that chapter 7 case trustees should not have to pay a fee from personal assets when the bankruptcy estate does not have money to pay the fee. Therefore, upon a trustee’s certification that there are no liquid assets in the estate to pay the Section 363(f) Fee, the court concludes that the fee should not be due until the conclusion of the proposed sale.

IT IS ORDERED that the chapter 7 trustee shall pay the Section 363(f) Fee as soon as practicable after closing of the proposed Section 363(f) sale.

IT IS FURTHER ORDERED that any order approving a sale motion shall provide for the payment of the Section 363(f) Fee from the sale proceeds, to the extent not already paid.

Dated: March 12, 2014.

By the Court:

Howard R. Tallman, Chief Judge
Sidney B. Brooks, Judge
A. Bruce Campbell, Judge
Elizabeth E. Brown, Judge
Michael E. Romero, Judge

_____________________________________

General Procedure Order Number 2014-3
In the Matter of Suspending Notice Requirements
Under Local Bankruptcy Rule 5010-1
For Motions to Reopen to File Certification of
Completion of Financial Management Course

This matter comes before the Court to address suspension of the notice requirements under Local Bankruptcy Rule 5010-1 on motions to reopen when the sole purpose of the reopening is to file the certification of completion of the financial management course. Rule 5010-1(a) requires notice to the United States Trustee, the trustee previously assigned to the case and, in Chapter 11 cases, the twenty largest unsecured creditors. The Court finds that such notice is unnecessary. Accordingly, it is

ORDERED that the service requirements under Local Bankruptcy Rule 5010-1(a) are suspended when the sole purpose of the motion to reopen is to file the certification of completion of the financial management course.

Dated: March 24, 2014.

By the Court:

Howard R. Tallman, Chief Judge
Sidney B. Brooks, Judge
A. Bruce Campbell, Judge
Elizabeth E. Brown, Judge
Michael E. Romero, Judge


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 through the Colorado Office of the State Court Administrator, www.courts.state.co.us/Administration/Index.cfm.

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. To obtain a copy of attachments, contact: Court Services Division, Colorado Office of the State Court Administrator, visit www..courts.state.co.us/Courts/Supreme_Court/Directives/Index.cfm.

_____________________________________

CJD 04-04
Income Eligibility Guidelines
Attachment B
Revised March 2014

_____________________________________

CJD 04-05
Attachment A
Procedures for the Determination of Eligibility for
Court-Appointed Counsel and Guardian ad Litem Representation
On the Basis of Indigency
Revised March 2014

Indigency Determination

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 Court-Appointed Counsel or Guardian ad litem") signed under oath, before such an appointment may be considered by the court. Form JDF208 must be completed for the appointment of counsel at state expense in all cases except mental health cases under Title 27 in which the respondent refuses to or is unable to supply the necessary information and cases in which a minor is requesting counsel for judicial bypass proceedings pursuant to § 2-37.5-107(2)(b), C.R.S.

Procedures for the Determination of Indigency

Completion of Form JDF208 by Applicant

Persons applying for state paid counsel or guardian ad litem representation must complete, or have completed on their behalf, the Application for Court-Appointed Counsel, form JDF208, and submit it to the court.

Review of Financial Information by Court Personnel

Court personnel shall review the applicant’s information on form JDF208 to determine whether or not the applicant is indigent on the basis of three factors:

  • Income1
  • Liquid assets2
  • Expense3

Criteria for Indigency

An applicant qualifies for court appointed counsel or guardian ad litem on the basis of indigency if his or her financial circumstances meet either set of criteria described below.

1. Income is at or below guidelines / Liquid assets equal $0 to $1,500

• If the applicant’s income is at or below the income eligibility guidelines and he or she has liquid assets of $1,500 or less, as determined on form JDF208, the applicant is indigent and eligible for court appointed counsel or guardian ad litem representation at state expense.

2. Income is up to 25% above guidelines / Liquid assets equal $0 to $1,500 / Monthly expenses equal or exceed monthly income

• If the applicant’s income is up to 25% above the income eligibility guidelines; the applicant has assets of $1,500 or less; and the applicant’s monthly expenses equal or exceed monthly income, as determined on form JDF208, the applicant is indigent and eligible for court appointed counsel or guardian ad litem representation.

In cases where the criteria above are not met but extraordinary circumstances exist, the court may find the applicant indigent. In such cases, the court shall enter a written order setting forth the reasons for the finding of indigency.

__________

1. Income is gross income from all members of the household who contribute monetarily to the common support of the household. Income categories include wages, salary, commissions, profits, interest/investment earnings, social security benefits (including disability), Supplemental Security Income (SSI), maintenance (alimony), pension, workers’ compensation, and unemployment benefits. NOTE: Income from roommates should not be considered if such income is not commingled in accounts or otherwise combined with the applicant’s income in a fashion which would allow the applicant proprietary rights to the roommate’s income.

Gross income does not include TANF payments, food stamps, subsidized housing assistance, veteran’s benefits or child support.

2. Liquid assets include cash on hand or in accounts, stocks, bonds, certificates of deposit, equity, and personal property or investments which could readily be converted into cash without jeopardizing the applicant’s ability to maintain home and employment.

3. Expenses for nonessential items such as cable television, club memberships, entertainment, dining out, alcohol, cigarettes, etc., shall not be included. Allowable expense categories are listed on form JDF 205.

_____________________________________

CJD 04-06
Attachment A
Procedures for the Determination of Eligibility for
Court-Appointed Counsel and Guardian ad Litem Representation
on the Basis of Indigency
Revised March 2014

Indigency Determination

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 JDF 208 ("Application for Court-Appointed Counsel or Guardian ad Litem") signed under oath, before such an appointment may be considered by the court. Form JDF 208 must be completed for the appointment of counsel at state expense in all cases except mental health cases under Title 27 in which the respondent refuses to or is unable to supply the necessary information and where the court appoints a GAL for a judicial bypass proceeding pursuant to § 12-37.5-107(2)(b).

Procedures for the Determination of Indigency

The following procedures are used for applicants in cases addressed in CJD 04-06.

Completion of Form JDF 208 by Applicant

Persons applying for state-paid counsel or guardian ad litem representation must complete, or have completed on their behalf, the Application for Court-Appointed Counsel, form JDF 208, and submit it to the court.

Review of Financial Information by Court Personnel

Court personnel shall review the applicant’s information on form JDF 208 to determine whether or not the applicant is indigent on the basis of three factors:

  • Income1
  • Liquid assets2
  • Expense3

Criteria for Indigency

An applicant qualifies for court appointed counsel or guardian ad litem on the basis of indigency if his or her financial circumstances meet either set of criteria described below.

1. Income is at or below guidelines / Liquid assets equal $0 to $1,500

Gross income shall not include income from TANF payments, food stamps, subsidized housing assistance, veteran’ benefits earned from a disability, child support payments or other assistance programs.

• If the applicant’s income is at or below the income eligibility guidelines and he or she has liquid assets of $1,500 or less, as determined on form JDF 208, the applicant is indigent and eligible for court appointed counsel or guardian ad litem representation at state expense.

2. Income is up to 25% above guidelines / Liquid assets equal $0 to $1,500 / Monthly expenses equal or exceed monthly income

• If the applicant’s income is up to 25% above the income eligibility guidelines; the applicant has assets of $1,500 or less; and the applicant’s monthly expenses equal or exceed monthly income, as determined on form JDF 208, the applicant is indigent and eligible for court appointed counsel or guardian ad litem representation.

In cases where the criteria above are not met but extraordinary circumstances exist, the court may find the applicant indigent. In such cases, the court shall enter a written order setting forth the reasons for the finding of indigency.

__________
1. Income is gross income from all members of the household who contribute monetarily to the common support of the household. Income categories include: wages, including tips, salaries, commissions, payments received as an independent contractor for labor or services, bonuses, dividends, severance pay, pensions, retirement benefits, royalties, interest/investment earnings, trust income, annuities, capital gains, Social Security Disability (SSD), Social Security Supplemental Income (SSI), Workers’ Compensation Benefits, Unemployment Benefits, and alimony. NOTE: Income from roommates should not be considered if such income is not commingled in accounts  or otherwise combined with the applicant’s income in a fashion which would allow the applicant proprietary rights to the roommate’s income.

 2. Liquid assets include cash on hand or in accounts, stocks, bonds, certificates of deposit, equity, and personal property or investments which could readily be converted into cash without jeopardizing the applicant’s ability to maintain home and employment.

3. Expenses for nonessential items such as cable television, club memberships, entertainment, dining out, alcohol, cigarettes, etc., shall not be included. Allowable expense categories are listed on form JDF 208.

_____________________________________

CJD 98-01
Attachment A
Procedures for the Waiver of Court Costs in Civil Cases
on the Basis of Indigency
Revised March 2014

As set forth in CJD 98-01, Section II., all persons requesting waiver of court costs in civil actions or proceedings on the basis of indigency must follow the following procedures:

1. Procedures for the Determination of Indigency by Court Staff or Legal Service Provider

a. Process for Evaluating Indigency

The following procedures are used for applicants in cases addressed in CJD 98-01 where the applicant is not represented by an attorney or the applicant is represented by an attorney of or obtained through a legal service provider qualified to certify CLE hours for pro bono representation pursuant to C.R.C.P. 260.8 (Legal Service Provider).

i. Completion of JDF 205 form by Applicant: Filing Fee

Persons requesting waiver of court costs must complete, or have completed on their behalf, the Motion to File Without Payment and Supporting Financial Affidavit, form JDF 205, and submit it to the court or to the Legal Service Provider.

ii. Completion of JDF 211 form by Applicant: ODR fees

Persons requesting reduction of fees for ODR services must complete, or have completed on their behalf, the Request to Reduce Payment for Office of Dispute Resolution Services, form JDF 211, and submit it to the court, or ODR staff as directed; except that if an indigency Order has been made using JDF 206 within six (6) months of the ODR scheduled service, then such order shall determine indigency for ODR services and JDF 211 does not need to be completed.

iii. Review of Financial Information by Court Staff or Legal Service Provider

Court staff or Legal Service Provider reviews the applicant’s information on form JDF 205 and supporting documentation if requested to determine whether the applicant is indigent on the basis of three factors:

  • Income1
  • Liquid assets2
  • Expenses3

iv. Filing of Order for Indigent Persons Not Represented through a Legal Service Provider

Once indigency status is determined for a person not represented through a Legal Service Provider, court staff completes Finding and Order Concerning Payment of Costs, form JDF 206.

v. Filing of Notice for Indigent Persons Represented by an Attorney of or Obtained Through a Legal Service Provider

Once indigency status is determined by the Legal Service Provider, the Provider completes JDF Form 203, which the attorney representing the indigent person files in the case with the court by e-filing or other authorized filing method. Upon filing of form JDF 203, the waivable costs are waived. The Legal Service Provider shall maintain the completed JDF 205 form for a period of three years following conclusion of the case or representation of the client, whichever is the later date. The State Court Administrator’s Office may request to view any such records, and such request may not be refused.

b. Criteria for Indigency

An applicant qualifies for waiver of court costs in civil cases if his or her financial circumstances meet either set of criteria described below.

i. Income is at or below guidelines / Liquid assets equal $0 to $1,500

If the applicant’s income is at or below the income eligibility guidelines (see the "Monthly Income Guideline" and "Yearly Income Guideline" columns in the chart on the following page) and he or she has liquid assets of $1,500 or less, as determined on form JDF 205, the applicant is indigent and eligible for waiver of court costs in civil cases.

ii. Income is up to 25% above guidelines / Liquid assets equal $0 to $1,500 / Monthly expenses equal or exceed monthly income

If the applicant’s income is up to 25% above the income eligibility guidelines (see the "Monthly Income Guideline plus 25%" and "Yearly Income Guideline plus 25%" columns in the chart on the following page); the applicant has assets of $1,500 or less; and the applicant’s monthly expenses equal or exceed monthly income, as determined on form JDF 205, the applicant is indigent and eligible for waiver of court costs.

2. Procedures for the Determination of Indigency When Applicant is Represented by an Attorney of an agency funded by the Legal Services Corporation pursuant to 45 C.F.R., Chapter XVI.

Process for Evaluating Indigency

Legal Services Corporation is a federally funded program for representation of indigent persons. The Code of Federal Regulations determines how applications for representation by attorneys employed by the agencies funded by the Legal Services Corporation shall be filed, reviewed, maintained, and when an applicant is deemed indigent for the purposes of representation. Because that review already takes place in order to determine eligibility for representation, and because the Legal Services Corporation may not represent someone in court who has not been deemed indigent under the Code of Federal Regulations, a further application for indigency for the purpose of waiving the filing fee under §13-16-103, C.R.S. is not necessary.

An attorney employed by an agency funded by the Legal Services Corporation or obtained through such an agency may file form JDF 203 certified by that agency. That agency shall maintain its completed determination of indigency documentation for a period of three years following conclusion of the case or representation of the client, whichever is the later date, for which waiver of court costs is obtained under these provisions. The State Court Administrator’s Office may request to view any such records, and such request may not be refused.

3. Court procedures upon receipt of JDF 206 or JDF 203

a. When the court receives a JDF 206 form completed by court staff, the court enters an order concerning the applicant’s payment of fees.

i. In cases in which the criteria in 1.b. are not met but the court finds the applicant can pay in installments, the court may order a payment plan.

ii. In cases in which the criteria in 1.b. are not met and extraordinary circumstances exist, the court may find the applicant indigent and waive the payment of fees. In such cases, the court shall enter a written order setting forth the reasons for the finding of indigency.

b. Upon filing by an attorney for an indigent person of a JDF 203 form certified by a Legal Service Provider or an agency funded by the Legal Services Corporation, the clerk of the court in which the case is filed is authorized and directed to allow the applicant to proceed in forma pauperis in court proceedings without any additional court order. The clerk of the court may refer any notice filed by an attorney appointed by a Legal Service Provider or an agency funded by the Legal Services Corporation to a judge of the court in which the matter is pending if there is a question about the eligibility of the applicant.

4. Processing of JDF 211

a. Requests for reduced dispute resolution fees through the Office of Dispute Resolution shall be in made accordance with the instructions set forth at the website: www.coloradoODR.org

b. Requests for reduced dispute resolution fees processed through the local courts shall be made in accordance with that court’s procedures.

5. Appeals from Civil Cases

A standard application and motion to proceed in forma pauperis with verification of eligibility will be required to waive costs to file an appeal of a civil case.

_____________________________________

CJD 85-22
Rate of Interest on Judgments That are Appealed
Approved

Done at Denver, Colorado, March 11, 2014.

References:
CRS § 5-12-106(2)(a)
CRS § 13-21-101(3)

By the Court:

Nancy E. Rice, Chief Justice
Colorado Supreme Court

© 2014 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2014.


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