December 15, 2017

Rule Change 2017(12) Issued, Amending Colorado Rules of Civil Procedure

On Thursday, December 7, 2017, the Colorado Supreme Court issued Rule Change 2017(12), amending the Colorado Rules of Civil Procedure.

Rule 16 was amended to reference new forms available to use when offering records of regularly conducted activity pursuant to CRE 902(11) and (12). The new forms, Form 37 and Form 38, were introduced, and Forms 10 and 11 were amended. These changes are effective immediately.

Rule 53, “Masters,” was introduced, effective January 1, 2018. The rule provides guidelines for the appointment of masters. Rule 121, § 1-15 was also amended effective January 1, 2018, to delete specific page requirements of briefs and instead refer to Rule 10(d), and also to add information about self-represented parties.

Finally, Rule 120, “Orders Authorizing Foreclosure Sale Under Power in a Deed of Trust to the Public Trustee,” was significantly amended. These changes are effective March 1, 2018.

A redline and clean copy of the rule change is available here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Colorado Court of Appeals: C.R.C.P. 106 Time Limit for Filing is Constitutional As Applied

The Colorado Court of Appeals issued its opinion in Adams v. Sagee on Thursday, October 19, 2017.

Citizen Right of Initiative—Filing Deadline.

Plaintiffs petitioned to present a ballot initiative to the residents of Sheridan. Sheridan’s City Clerk, Sagee, rejected some of the signatures plaintiffs had collected, leaving them short of the number required for the initiative to be considered. Plaintiffs contested the decision, and the City Clerk upheld it after a protest hearing. Plaintiffs filed a complaint in district court 35 days later pursuant to C.R.S. § 31-11-110(3). The district court dismissed the case for lack of subject matter jurisdiction because plaintiffs failed to file within the C.R.C.P. 106 28-day time limit.

On appeal, plaintiffs conceded that the 28-day jurisdictional bar applied and they filed 35 days after the relevant final decision. They argued that strict application of the time limit to them as pro se parties deprived them of their constitutional right of initiative. The Colorado Court of Appeals construed plaintiffs’ argument to be an as-applied challenge to the constitutionality of the statutory time bar. The court found plaintiffs pro se status irrelevant; pro se parties must comply with procedural rules to the same extent as parties represented by attorneys. The court concluded that applying C.R.C.P. 106(b)’s jurisdictional deadline to plaintiffs’ Rule 106(a)(4) petition does not deprive them of or unduly burden their constitutional right of initiative.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Rules of Civil Procedure and Rules for Magistrates Amended in Rule Change 2017(06)

On May 25, 2017, the Colorado Supreme Court adopted Rule Change 2017(06), which amends Rule 52 of the Colorado Rules of Civil Procedure and Rules 5 and 6 of the Colorado Rules for Magistrates. The changes are effective July 1, 2017.

Rule 52 was amended to change the last sentence, which now provides that “Findings of fact and conclusions of law are unnecessary on decisions on motions under Rule 12 or 56 or any other motion except as provided in these rules or other law.” Previously, it read “Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56 or any other motion except as provided in Rule 41(b).” A new 2017 comment explains the reason for the change:

The final sentence of the former version of the rule, “Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56 or any other motion except as provided in Rule 41(b),” was replaced because of requirements for findings and conclusions in rules other than Rule 41(b) and in some statutes. Regardless, judges are encouraged to include in decisions on motions sufficient explanation that would be helpful to the parties and a reviewing court. Thus, even where findings and conclusions are not required, the better practice is to explain in a decision on any contested, written motion the court’s reasons for granting or denying the motion.

C.R.M. 5 was amended to add a subsection (g) and renumber the prior subsection (g) as (h). Subsection (g) reads as follows:

(g) For any proceeding in which a district court magistrate may perform a function only with consent under C.R.M. 6, the notice — which must be written except to the extent given orally to parties who are present in court — shall state that all parties must consent to the function being performed by the magistrate.

(1) If the notice is given in open court, then all parties who are present and do not then object shall be deemed to have consented to the function being performed by the magistrate.

(2) Any party who is not present when the notice is given and who fails to file a written objection within 7 days of the date of written notice shall be deemed to have consented.

C.R.M. 6(a)(1)(I) was amended by changing statutory references within the subsection and changing the Act cited from the Uniform Act for Out-of-State Parolee Supervision to the Interstate Compact for Adult Offender Supervision. Additionally, a new subsection (f) was added to C.R.M. 6, which reads, “A district court magistrate shall not perform any function for which consent is required under any provision of this Rule unless the oral or written notice complied with Rule 5(g).”

For a redline of Rule Change 2017(06), click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Colorado Rules of Civil Procedure Amended in First Rule Change of 2017

On Monday, January 23, 2017, the Colorado State Judicial Branch announced Rule Change 2017(01), effective January 12, 2017. Rule Change 2017(01) amends several rules of the Colorado Rules of Civil Procedure. The changes to Rules 17, 40, 60, 122, 305.5, and 121 §§ 1-14, 1-19, 1-23, and 1-26, as well as the changes to JDF 1111, are effective immediately. The changes to Rules 33, 103, 403, Form 20, and forms accompanying 103 and 403, are effective March 1, 2017.

The changes to Rule 33 affect pattern interrogatories and responses. The changes are quite extensive. A comment was added to Rule 33 to explain

[1] Pattern interrogatories [Form 20, pursuant to C.R.C.P. 33(e)] have been modified to more appropriately conform to the 2015 amendments to C.R.C.P. 16, 26, and 33. A change to or deletion of a pre-2017 pattern interrogatory should not be construed as making that former interrogatory improper, but instead, only that the particular interrogatory is, as of the effective date of the 2017 rule change, modified as stated or no longer a “pattern interrogatory.”

[2] The change to C.R.C.P. 33(e) is made to conform to the holding of Leaffer v. Zarlengo, 44 P.3d 1072 (Colo. 2002).

Rules 103 and 403 were amended to conform dates to the “Rule of 7” and to provide clarification regarding garnishments. The changes to Rules 103 and 403 are substantially similar. Forms 26, 28, 29, 31, 32, and 33 were also amended. The jurat or Return of Service was removed from each form, and other changes were made to conform to the changes to Rules 103 and 403.

Rule 17 was amended to remove reference to “a married woman.” A citation was updated in Rule 41. Rule 60 was updated to conform to the “Rule of 7.” Section 1-14 of Rule 121 was amended to update the citation to the Servicemembers Civil Relief Act and update the date of the comment. A citation was also updated in Rule 121, § 1-19, and a date was added to the comment.

Rule 121, § 1-23 was amended to add a paragraph (7) regarding bonding over liens. The new paragraph reads:

7. Bonding over a Lien. If a money judgment has been made a lien upon real estate by the filing of a transcript of the judgment record by the judgment creditor, the lien shall be released upon the motion of the judgment debtor or other interested party if a bond for the money judgment has been approved and filed as provided in this section 1-23. The order of the court releasing the lien may be recorded with the clerk and recorder of the county where the property is located. Once the order is recorded, all proceedings by the judgment creditor to enforce the judgment lien shall be discontinued, unless a court orders otherwise.

The comment to § 1-23 was amended to add a date and paragraph numbering. The changes to § 1-26 of Rule 121 also add dates and numbers to the comment, and a new 2017 comment was added to § 1-26.

The amendments to Rule 305.5 also add dates and numbers to the comments, and a new 2017 comment was added regarding the name of the court-authorized e-filing service provider. Rule 122 was changed to update contact information requirements for appointed judges, and to remove language from the affirmation.

JDF 1111, the Sworn Financial Statement, was updated to remove language from the Certificate of Service regarding simultaneous filing of JDF 1104.

A redline of Rule Change 2017(01) is available here. For all the court’s adopted and proposed Rule Changes, click here.

Colorado Supreme Court: “Plausible on its Face” Standard Applies to Motions to Dismiss

The Colorado Supreme Court issued its opinion in Warne v. Hall on Monday, June 27, 2016.

Civil Procedure—Pleading.

Warne petitioned for review of the Colorado Court of Appeals’ judgment reversing the dismissal of Hall’s complaint, which asserted a claim of intentional interference with contract. Although invited to apply the standard for dismissal articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the district court dismissed for failure to state a claim upon which relief could be granted without addressing either Twombly or Iqbal in its written order. By contrast, the court of appeals expressly declined to apply the more recent U.S. Supreme Court jurisprudence governing F.R.C.P. 12(b)(6), finding itself instead bound by the Colorado Supreme Court’s existing precedent, which had heavily relied on the U.S. Supreme Court’s earlier opinion in Conley v. Gibson, 355 U.S. 41 (1957), and particularly its language to the effect that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove “no set of facts” in support of his claim. Declining, therefore, to be influenced by the U.S. Supreme Court’s more recent admonition to the federal courts that “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face,’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570), the court of appeals found the complaint sufficient to state a claim.

The supreme court reversed the judgment of the court of appeals. Because the court’s case law interpreting the Colorado Rules of Civil Procedure in general, and C.R.C.P. 8 and 12(b)(5) in particular, reflected first and foremost a preference to maintain uniformity in the interpretation of the federal and state rules of civil procedure and a willingness to be guided by the U.S. Supreme Court’s interpretation of corresponding federal rules whenever possible, rather than an intent to adhere to a particular federal interpretation prevalent at some fixed point in the past, the Colorado Supreme Court found that its precedent was interpreted too narrowly by the court of appeals. Because it also found that plaintiff’s complaint, when evaluated in light of the more recent and nuanced analysis of Twombly and Iqbal, failed to state a plausible claim for relief, the court found the complaint insufficient under the Colorado Rules of Civil Procedure.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court Adopts Changes to Colorado Rules of Professional Conduct, Colorado Appellate Rules

The Colorado Supreme Court adopted Rule Change 2016(04), 2016(05), and 2016(06) last week, approving changes to the Colorado Rules of Professional Conduct and the Colorado Appellate Rules.

Rule Change 2016(04), adopted and effective April 6, 2016, enacts substantial changes to the Colorado Rules of Professional Conduct. Many of the changes were to the Comments to the Rules, and language was added to many comments about lawyers contracting outside their own firms to provide legal assistance to the client. Additionally, a new model pro bono policy was added to the Comment to Rule 6.1. The changes are extensive; a redline and clean version is available here.

Rule Change 2016(05) amended Rules 35, 40, 41, 41.1, and 42 of the Colorado Appellate Rules, adopted and effective April 7, 2016. The changes to the affected rules were extensive, and the Comments to those rules generally explain the changes. Rule 41.1 was deleted and incorporated into Rule 41. A redline and clean version of the rule change is available here.

Rule Change 2016(06), adopted and effective April 7, 2016, amended the Preamble to the Rules Governing the Practice of Law, Chapters 18 to 20 of the Colorado Rules of Civil Procedure. The Preamble addresses the Colorado Supreme Court’s exclusive jurisdiction and its ability to appoint directors of certain legal programs to assist the court. The Preamble also sets forth the court’s objectives in regulating the practice of law. A clean version of the newly adopted Preamble is available here.

For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Rule Change 2016(02) Amends Rules Governing Commissions on Judicial Performance

The Colorado Supreme Court issued Rule Change 2016(02), which amends the Rules Governing the Commissions on Judicial Performance, effective March 17, 2016. All but three of the 16 rules were amended; some of the changes were relatively minor and some were more involved. Rule 12, “Recommendations,” was amended drastically to delete some of the specific criteria regarding retention recommendations. Rule 14, “Confidentiality,” also had several changes, including the deletion of certain criteria for the release of confidential information. Some of the changes, however, only affected the order of the wording.

A redline of the changes is available here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

 

Colorado Rules of Civil Procedure Amended in Rule Change 2016(01)

On Thursday, February 4, 2016, the Colorado Supreme Court posted Rule Change 2016(01), adopted January 29, 2016. The rule change affects several of the Colorado Rules of Civil Procedure, and there are various effective dates for the changes.

C.R.C.P. 10 was changed to specify that footnotes should be in 12 point font and motions should be double-spaced. The comment to § 1-12 of Rule 121 was changed to include oral discovery in its scope. Rule 121, § 1-15, was revised significantly, changing several of the specifications for word and page limits of motions and addressing when the court should rule on motions. The comment to § 1-15 was also changed to explain some of the revisions. The changes to Rule 10 and §§ 1-12 and 1-15 of Rule 121 apply to motions filed on or after April 1, 2016.

C.R.C.P. 23, “Class Actions,” was amended by the addition of a new subsection (g), dealing with residual funds left after class action settlements. The changes to Rule 23 are effective for all class settlements approved by the court on or after July 1, 2016.

Rules 103 and 403 dealing with garnishments in district and county court were amended to provide that for pro se judgment creditors, indebtedness must be paid into the registry of the court, whereas judgment creditors represented by attorneys and collection agencies may receive funds directly. The Writ of Garnishment form was amended accordingly. These changes are effective March 1, 2016.

The amendment to Rule 359, “New Trials; Amendment of Judgments,” changed the deadline for appeal from 21 days to 14 days. The change is effective April 1, 2016.

Finally, Form 35.1, “Mandatory Disclosure,” was changed significantly. Most of the changes clarified required disclosures when a decree has been filed, specifying that only documents filed or prepared since the entry of the decree need be disclosed. These changes are effective April 1, 2016.

For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Comment Period Open for Proposed Changes to Rule 120

The Colorado State Judicial Branch announced proposed changes to Rule 120 of the Colorado Rules of Civil Procedure, “Orders Authorizing Sales Under Powers.” The changes are extensive, and include changing the title of the rule to be “Orders Authorizing Foreclosure Sale Under Power in a Deed of Trust to the Public Trustee.”A redline of the proposed changes is available here.

The supreme court is now accepting comments on the proposed changes to Rule 120. Comments may be made in writing via email to Christopher Ryan, the Clerk of the Supreme Court, or via U.S. Mail at 2 E. 14th Ave., Denver, CO 80203. Comments must be received no later than 5 p.m. on April 6, 2016. Comments will be posted on the State Judicial website after the close of the comment period.

Rule Change 2015(08) Amends Chapter 38, “Public Access to Information and Records”

On Friday, October 30, 2015, the Colorado Supreme Court announced Rule Change 2015(08), amending Chapter 38 of the Colorado Rules of Civil Procedure, “Public Access to Information and Records.” The changes amended the title of the rules from “Public Access to Records and Information” and added an extensive new Rule 2, “Public Access to Administrative Records of the Judicial Branch.” The rule follows the Colorado Open Records Act (CORA) but is not identical, and the introductory paragraph to Rule 2 states, “Many of the rule’s deviations from CORA reflect simple changes to language and streamlined organization of the rule for clarity and to better serve the public. Other, substantive deviations from CORA reflect the unique nature of the records and operations of the Judicial Branch. These changes are addressed in comments throughout the rule. The rule pertains only to administrative records and does not contemplate or control access to court records.” The previously numbered Rule 2 was renumbered as Rule 3 but suffered no other amendments.

For the text of the new rule, click here. For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Rule Change 2015(07) Amends Pro Hac Vice Rules

On Friday, September 11, 2015, the Colorado State Judicial Branch announced Rule Change 2015(07), effective September 9, 2015. The rule change affects C.R.C.P. 121, §§ 1-2 and 1-26, and Rule 305.5 of the Colorado Rules of County Court Civil Procedure. The changes are minor, generally changing references to out-of-state or foreign attorneys and reflecting that foreign attorneys may be admitted under Rules 205.3 or 205.5 of the Rules Governing Admission to the Bar (C.R.C.P. Chapter 18). For a redline of the changes, click here.

Colorado Supreme Court: Partial Directed Verdict Allowed by C.R.C.P. 50

The Colorado Supreme Court issued its opinion in Board of County Commissioners of Summit County v. Rodgers on Tuesday, September 8, 2015.

Nature of Directed Verdict—Nature of Summary Judgment—Colorado Civil Procedure.

The Supreme Court held that Colorado’s directed verdict rule, CRCP 50, allows trial courts to issue partial directed verdicts. CRCP 50 should be read in tandem with Colorado’s summary judgment rule, CRCP 56, which allows partial summary judgment, as well as the federal directed verdict rule, which permits partial directed verdicts. In addition, the Court concluded that plaintiffs invited the trial court to consider their various allegations of discriminatory acts as separate acts rather than as a pattern. Therefore, the trial court did not err in directing verdicts on some, but not all, of plaintiffs’ multiple claims in their 42 USC § 1983 lawsuit. Accordingly, the Court reversed the court of appeals’ opinion in its entirety and remanded the case for further proceedings consistent with this opinion.

Summary and full case available here, courtesy of The Colorado Lawyer.