Colorado Supreme Court Rules Committee
Rule Change 2016(08)
Rule 39.1. Attorney Fees on Appeal
If attorney fees are recoverable for the appeal, the principal brief of the party claiming attorney fees must include a specific request, and explain the legal and factual basis, for an award of attorney fees. Any opposition to a request for attorney fees, and the legal and factual basis for the opposition, must be set forth in either the answer or reply brief, as appropriate. In its discretion, the appellate court may determine entitlement to and the amount of an award of attorney fees for the appeal, or may remand those determinations to the lower court or tribunal.
Rule 43. Substitution of Parties
(a) Death of a Party.
(1) After Notice of Appeal is Filed.If a party dies after a notice of appeal is filed or while a proceeding is otherwise pending in the appellate court, the personal representative of the deceased party may be substituted as a party on motion filed by the representative or any party. A death certificate or other official proof of death must be filed with the motion. A party’s motion must be served on the representative in accordance with C.R.C.P. 25. If the decedent has no representative, any party may suggest the death on the record, and the court may then direct appropriate proceedings.
(2) Before Notice of Appeal is Filed—Potential Appellant. If a party entitled to appeal dies before filing a notice of appeal, the decedent’s personal representative—or, if the decedent has no personal representative, the decedent’s attorney of record—may file a notice of appeal within the time prescribed by these rules. After the notice of appeal is filed, substitution must be in accordance with section (a)(1) of this rule.
(3) Before Notice of Appeal is Filed—Potential Appellee.If a party against whom an appeal may be taken dies after entry of a judgment or order in the underlying proceeding, but before a notice of appeal is filed, an appellant may proceed as if the death had not occurred. After the notice of appeal is filed, substitution must be in accordance with section (a)(1) of this rule.
(b) Substitution for Reasons Other Than Death.If substitution of a party is required for any reason other than death, the party seeking substitution must file a motion stating the grounds for substitution.
(c) Public Officers; Identification; Substitution.
(1) Identification of Party. A public officer who is a party to an appeal or other proceeding in an official capacity may be described as a party by the public officer’s official title rather than by name; but the court may require the public officer's name to be added.
(2) Automatic Substitution of Officeholder.When a public officer who is a party to an appeal or other proceedings in an official capacity dies, resigns, or otherwise ceases to hold office, the action does not abate. The public officer’s successor is automatically substituted as a party. Proceedings following the substitution must be in the name of the substituted party, but any misnomer that does not affect the substantial rights of the parties may be disregarded. The court may enter an order of substitution at any time, but failure to enter an order does not affect the substitution.
Rule 44. Cases Involving a Constitutional Question When the State of Colorado is Not a Party
If a party questions the constitutionality of any Colorado statute in an appellate proceeding in which the state, its agency, officer, or employee is not a party in an official capacity, the questioning party must notify the clerk of the supreme court in writing immediately upon the filing of the proceeding or as soon as the question is raised in the appellate court. The clerk must then certify that fact to the Attorney General.
The substance of prior subsections (b) and (c) has been relocated to C.A.R. 44.1.
Rule 44.1. Cases Involving Public Utilities Laws or the Public Utilities Commission When the Commission is Not a Party
(a) Challenge to Public Utilities Law or Act of Public Utilities Commission.If a party questions the validity, interpretation, or application of any section of the Public Utilities Law of the State of Colorado or of any rule, regulation, order, certificate, or permit issued by the Public Utilities Commission in a proceeding in which the Commission is not a party, the questioning party must notify the clerk of the appellate court in writing immediately upon the filing of the proceeding or as soon as the question is raised in the appellate court. The clerk must then certify that fact to the Secretary of the Public Utilities Commission.
(b) Other Proceedings Impacting the Public Utilities Commission. In an appellate proceeding involving a municipally owned utility in which the court’s decision may impact the powers and duties of the Public Utilities Commission or the interpretation of the Public Utilities Law of the State of Colorado, the clerk of the appellate court must notify the Secretary of the Public Utilities Commission of the pendency of the proceeding and invite the Commission to intervene or to enter an appearance as amicus curiae.
This new rule contains the substance of prior C.A.R. 44(b) and (c), pertaining to cases involving Public Utilities Law or proceedings impacting the Public Utilities Commission when the Commission is not a party.
Rule 45. Duties of Clerk of Appellate Court
(a) General Provisions.
(1) Qualifications.The clerk of the appellate court must take any oath required by law. Neither the clerk nor any deputy clerk may practice as an attorney or counselor in any court while in office.
(2) When Court is Open.The appellate courts are always open for filing any document, issuing and returning process, making a motion, and entering an order. The clerk’s office with the clerk or a deputy in attendance must be open during business hours on all days except Saturdays, Sundays, and legal holidays, as defined in C.A.R. 26(a), but the chief justice may order that the clerk’s office be open or closed during specified hours on other days.
(1) The Docket.The clerk must maintain a docket and an index of all docketed cases in the manner prescribed by the appellate court. The clerk must record all documents filed with the clerk and all process, orders, and judgments.
(2) Calendar. Under the court’s direction, the clerk must prepare a calendar of cases awaiting argument. In placing cases on the calendar for argument, the clerk must give preference to appeals and other proceedings entitled to preference by law.
(3) Other Records. The clerk must keep other records as required by the court.
(c) Service of Orders and Judgments.The clerk must serve all orders and judgments on each party and note the date of service on the docket. Service on a party represented by counsel must be made on counsel.
(d) Custody of Records and Documents. The clerk has custody of the court’s records and documents. Unless the court orders otherwise, the clerk must not permit an original record or document to be taken from the clerk’s custody. Upon disposition of the case, the clerk must return original documents containing the record on appeal or review to the court or agency from which they were received. The clerk must preserve a copy of any brief, appendix, or other document that has been filed.
Amended and Adopted by the Court, En Banc, _______, 2016, effective immediately.
By the Court:
Allison H. Eid, Justice