February 19, 2018

Colorado Judicial Ethics Advisory Board Opinion Issued Regarding Memorial Fundraiser for Judge’s Late Son

The Colorado Judicial Ethics Advisory Board issued C.J.E.A.B. Opinion 2018-01 on January 29, 2018. The opinion addresses whether a judge can help plan, play in, and invite others to play in a golf tournament designed to raise funds for an endowed scholarship honoring the judge’s late son if the judge’s name and title are not used to promote the tournament. The C.J.E.A.B. determined that the tournament may bear the name of the judge’s late son, and may invite family friends, lawyers, non-lawyers, and others to play in the tournament. The judge may also help plan the tournament, personally solicit family members and judges not under the judge’s supervision or appellate authority to participate in the tournament, and attend and play in the tournament.

For the complete text of C.J.E.A.B. Opinion 2018-01, click here. For all of the Colorado Judicial Ethics Advisory Board’s opinions, click here.

Colorado Judicial Ethics Advisory Board Releases Two New Opinions

On Monday, November 14, 2016, the Colorado Judicial Ethics Advisory Board released two new opinions.

CJEAB Opinion 2016-02 answers a judge’s question regarding whether Opinion 2007-07 remains effective in light of the repeal and reenactment of the Colorado Code of Judicial Conduct, and whether the judge may serve on the board of directors for the Joint Initiatives for Youth and Families of the Pikes Peak Region, since the operation of the board of directors has changed. The Judicial Ethics Advisory Board evaluated Opinion 2007-07 and determined it was no longer applicable, consequently withdrawing the opinion. The Judicial Ethics Advisory Board then concluded that a judge may serve on the board of directors of the Joint Initiatives for Youth and Families of the Pikes Peak Region, even if the board engages in legislative advocacy benefitting children and families, provided that doing so would not lead to his frequent disqualification or otherwise interfere with his ability to perform his judicial duties.  The judge must ensure that his activities as a board member do not undermine his impartiality, give rise to the appearance of impropriety, or violate other provisions of the Code.

CJEAB Opinion 2016-03 answers a judge’s question regarding whether it is permissible for him to sit on the Board of Trustees of the Colorado PERA. The Judicial Ethics Advisory Board determined that a judge elected to sit on the Board of Trustees of Colorado PERA should abstain from participating as a panelist in PERA’s administrative hearing process because such participation constitutes arbitration or another judicial function outside of a judge’s official duties and violates the Code of Judicial Conduct.

For all of the Colorado Judicial Ethics Advisory Board opinions, click here.

Colorado Judicial Ethics Advisory Opinion 2016-01 Released

On Wednesday, February 24, 2016, the Colorado Judicial Ethics Advisory Board issued C.J.E.A.B. Opinion 2016-01. This opinion addresses whether it is appropriate for a judge sitting on a nonprofit board to personally write or call donors to thank them for their contributions. The requesting judge asked the Advisory Board to consider if such communication would be considered fundraising in violation of the Colorado Code of Judicial Conduct.

The Advisory Board considered applicable provisions of the Code of Judicial Conduct and determined that, in cases where the judge is not soliciting further donations, implicitly or explicitly, it is acceptable for the judge to personally thank donors for their contributions in her role as board member of the nonprofit organization.

The Colorado Judicial Ethics Advisory Board is a committee of the Colorado Supreme Court consisting of judges and non-judges who provide ethical advice to judicial officers who request an opinion on prospective conduct. There are seven committee members: four judges, one lawyer, one non-lawyer citizen, and one law professor. Any Colorado judicial officer may request an opinion. Requests may be submitted to any member of the Advisory Board or to Christine Markman, staff attorney to the Colorado Supreme Court. Requests may be submitted on the Advisory Board’s form, JDF 2.

The full text of C.J.E.A.B. 2016-01 is available here. All of the C.J.E.A.B. opinions are available here.

Professional Conduct Rules Revised Regarding Impartiality and Ex Parte Communications

On Wednesday, July 11, 2012, the Colorado Supreme Court released amendments to two Colorado Rules of Professional Conduct. Amendments were made to the following rules:

  • CRPC 1.12 – “Former Judge, Arbitrator, Mediator or Other Third-Party Neutral”
    • References within Comment [1] were revised as well as language relating to the Colorado Code of Judicial Conduct requiring judges to disqualify themselves in certain proceedings with lawyer conflicts.
  • CRCP 3.5 – “Impartiality and Decorum of the Tribunal”
    • Subsection (b) was revised to read that an attorney shall not “communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order, or unless a judge initiates such a communication and the lawyer reasonably believes that the subject matter of the communication is within the scope of the judge’s authority under a rule of judicial conduct.
    • Comment [2] was also amended to clarify this revision about ex parte communications.

These amendments were adopted on July 11 and are effective immediately.

Click here to review the red line changes to these civil procedure rules, outlined as Rule Change 2012(12).

Colorado Supreme Court Makes Minor Change to Rule for Judicial Duty to Report Misconduct

The Colorado Supreme Court has amended Chapter 20 of the Colorado Rules of Civil Procedure, Rule 251.4 – Duty of Judge to Report Misconduct or Disability. The minor change updates a reference to the Colorado Code of Judicial Conduct. The updated rule now references RULE 2.15 instead of Canon 3(B)(3).

This amendment was adopted on April 12, 2012 and is effective immediately.

Click here to review the red line changes to Rule 251.4, outlined as Rule Change 2012(04).

HB 12-1016: Allowing Motion to Disqualify Public Utilities Commissioner for Failure to Be Impartial

On January 11, 2012, Rep. Balmer introduced HB 12-1016 – Concerning limiting ex parte communications by commissioners of the public utilities commission. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill allows a party to a proceeding before the public utilities commission (PUC) to file a motion seeking the disqualification of a public utilities commissioner or an administrative law judge for failure to be impartial. A district court may stay or suspend the proceedings of the PUC if the PUC fails to disqualify a commissioner from the proceedings. If the disqualification of a commissioner results in the loss of a quorum, the decision rendered by a commissioner designated as a hearing officer or by an administrative law judge is the final decision of the PUC. The rule of necessity, which states that under some circumstances an adjudicator must hear a case even if the adjudicator has an interest in the case, does not apply.

The bill specifies that the standards contained in the Colorado code of judicial conduct apply to commissioners and PUC administrative law judges. The bill requires the director to post memoranda regarding ex parte communications by commissioners and administrative law judges on the PUC’s web site within five business days. Discussions by commissioners or administrative law judges on pending legislative proposals will no longer be exempted from disclosure as an “adjudicatory proceeding”.

Summaries of other featured bills can be found here.

Governor Hickenlooper Makes Appointment to the Commission on Judicial Discipline

On Friday, October 21, 2011, Governor John Hickenlooper announced numerous appointments to several Boards and Commissions. Among them was an appointment made to the Commission on Judicial Discipline.

David Lee Dill was appointed to the Commission to serve as a non-attorney. Dill is from Pueblo and his appointment was occasioned by the resignation of Judy Weaver, also from Pueblo. His term will expire on June 30, 2015.

The Commission on Judicial Discipline monitors and disciplines misconduct of judges and justices of the state courts of Colorado and provides education programs to judges on their ethical obligations under the Colorado Code of Judicial Conduct. The appointment must be confirmed by the Colorado Senate.

Colorado Supreme Court: An Ineffective Assistance of Counsel Claim Premised on Failure to File Motion for Disqualification Must Have Allegation of Judicial Bias

The Colorado Supreme Court issued its opinion in People in the Interest of A.G., and Concerning C.M. on October 17, 2011.

Ineffective Assistance of Counsel—Judicial Disqualification—Appearance of Impropriety.

The Supreme Court reversed the court of appeals’ order requiring the trial court to determine on remand whether respondent received ineffective assistance of counsel because her attorney did not timely file a motion to disqualify the trial judge, whose clerk was related to a material witness in the case. The court also vacated the court of appeals’ directions to the chief judge to transfer the case to another judge.

Without deciding what is required to prevail on an ineffective assistance claim, the Court acknowledged that, at the least, an allegation of prejudice is necessary. Moreover, the Court held that when an ineffective assistance of counsel claim is premised on an attorney’s failure to file a motion for disqualification, the prejudice element cannot be satisfied without an allegation that the judge actually was biased. Because respondent’s motion for disqualification was based entirely on an appearance of impropriety, rather than a claim of actual bias, it failed to satisfy the prejudice element. Accordingly, the Court found it unnecessary to remand for additional findings on ineffective assistance.

Summary and full case available here.

Governor Hickenlooper Announces Several More Board and Commission Appointments

On Friday, July 22, 2011, Governor John Hickenlooper announced his appointments to several more Boards and Commissions. The appointments were made to the Commission on Judicial Discipline, the State Board of Licensure for Architects, Professional Engineers and Professional Land Surveyors, the Emergency Planning Commission, and the Securities Board.

The Commission on Judicial Discipline monitors and disciplines misconduct of judges and justices of the state courts of Colorado and provides education programs to judges on their ethical obligations under the Colorado Code of Judicial Conduct. The members appointed, with terms to expire June 30, 2015, are:

  • Albus Brooks, of Denver, to serve as a non-attorney.
  • Judy P. Weaver, of Pueblo, to serve as a non-attorney.
  • David Kenney, of Denver, reappointed to serve as a non-attorney.
  • Federico C. Alvarez, of Denver, reappointed to serve as an attorney.

The State Board of Licensure for Architects, Professional Engineers and Professional Land Surveyors regulates the practice for those professions. Its responsibilities encompass the evaluation of whether applicants are minimally qualified for licensure, the examination of such applicants, licensing, license renewal, setting policy with regard to the practice of the profession, consideration of complaints against licensees and those who may have practiced without a license, and disciplining those who have not complied with the law. The members appointed, with terms to expire July 1, 2015, are:

  • Lawrence T. Connolly, of Durango, reappointed to serve as a professional land surveyor.
  • Earl Fletcher Henderson, of Boulder, to serve as a professional land surveyor.
  • Daniel Joseph Swallow, of Greeley, to serve as a member of the public.

The Emergency Planning Commission conducts assessments of available resources and identifies methods to utilize the available resources at the federal, state, and local levels to react in emergency situations. The members appointed, with terms to expire July 1, 2012, and July 1, 2013, are:

  • Rosemary Margaret Lynch, of Cherry Hills Village, to serve as a representative of a public interest group/community group.
  • The Honorable Wallace L. White, of Durango, reappointed to serve as a representative of local government.
  • Donald F. Sherman, of Golden, reappointed to serve as a representative of the affected industry.
  • Roy V. Rudisill of Greeley, to serve, as a representative of a local emergency planning committee.
  • Stephen D. Riner, of Pueblo, to serve as a representative of the affected industry.
  • Patricia Gail Williams, of Castle Rock, to serve as a representative of a community group.
  • The Honorable Steven A. Boand, of Castle Rock, reappointed to serve as a representative of local government.

The Securities Board aids and advises the securities commissioner in the promulgation of rules, issuance of orders, formulation of policies, the setting of fees, and with other issues affecting the division of securities and securities regulation in the state. The members appointed, with terms to expire July 1, 2014, are:

  • Paul E. Washington, of Boulder, reappointed as a member of the public at large.
  • Mashenka Lundberg, of Golden, as a member who is licensed by the state Supreme Court to practice law in Colorado and who is conversant in securities law.

The full press release from the Governor’s Office concerning these board and commission appointments can be found here.

Colorado Supreme Court: Proper Inquiry in Motion to Suppress Is Whether Magistrate Manifested Neutrality Demanded by 4th Amendment

The Colorado Supreme Court issued its opinion in People v. Gallegos; People v. Lopez; People v. Gallegos; People v. Santistevan; People v. Perez on April 11, 2011.

Fourth Amendment—Neutral and Detached Magistrate—Wiretapping.

The Supreme Court consolidated five interlocutory appeals by the People, each concerning the suppression of evidence obtained through wiretap surveillance. The five defendant-appellees joined in a motion to suppress evidence derived from illegal wiretaps, claiming that the orders authorizing wiretap surveillance were invalid because the judge who issued the orders did so while his son worked for the District Attorney’s Office. The trial court granted the motion to suppress, citing statutory and ethical rules of judicial conduct for its determination that the wiretap orders were void for lack of a detached and neutral magistrate. The trial court also found a number of violations of the wiretap statute and wiretap orders.

Because the suppression of evidence is governed foremost by constitutional principles, the Supreme Court held that the proper inquiry in a motion to suppress is not whether a magistrate should have recused himself or herself under rules of judicial conduct, but whether a magistrate manifested the neutrality and detachment demanded by the Fourth Amendment. Accordingly, if a warrant or wiretap application is supported by probable cause, evidence should not be suppressed without proof of actual bias by the issuing magistrate. Actual bias is more than an appearance of impropriety; it is an actual conflict so substantial that the magistrate cannot be considered neutral and detached. Because the wiretap orders in this case were supported by probable cause, and because there was no evidence that the judge who issued the orders had an actual conflict, the Court held that the judge who issued the wiretap orders was a neutral and detached magistrate. Furthermore, the violations of the wiretap statute were not sufficient to warrant suppression. Therefore, the Court reversed the decision of the trial court.

Summary and full case available here.

Update: State Supremes Adopt Amendment to Colorado Code of Judicial Conduct

The Colorado Supreme Court adopted a Code of Judicial Conduct rule change concerning media coverage of court proceedings, effective July 1.

This amended Rule 2, “Media Coverage of Court Proceedings,” is in addition to other amendments adopted by the court earlier this summer.

(image source: State Judicial)

Modifications to Colorado Code of Judicial Conduct Effective July 1

As reported here last month, modifications to the Colorado Code of Judicial Conduct were under consideration by the Colorado Supreme Court. Those modifications were approved by the court and will go into effect on July 1.