July 31, 2014

Comment Period Open for Changes to Federal Rules of Practice and Procedure

The United States Courts has opened the public comment period for several proposed changes to the Federal Rules of Practice and Procedure. Comments must be submitted in writing by February 15, 2013.

The changes affect the Federal Appellate, Bankruptcy, Criminal, and Evidence rules. They were approved for publication by the Judicial Conference Advisory Committees on the Appellate, Bankruptcy, Criminal, and Evidence Rules on June 11, 2012, and the public comment period opened August 15, 2012.

The following rules were affected by the proposed changes:

  • Federal Rules of Appellate Procedure, Rule 6;
  • Federal Rules of Bankruptcy Procedure, Rules 1014(b), 7004(e), 7008, 7012, 7016, 7054, 8001-8028, 9023, 9024, 9027, and 9033, and Offiical Forms 3A, 3B, 6I, 6J, 22A-1, 22A-2, 22B, 22C-1, and 22C-2;
  • Federal Rules of Criminal Procedure, Rules 5(d) and 58;  and
  • Federal Rules of Evidence, Rules 801(d)(1)(B) and 803(6), (7), and (8).

A PDF of the changes can be found here. Comments must be submitted to the Advisory Committees in writing, and will be reviewed then made part of the public record. All comments can be viewed through the U.S. Courts website by clicking the links to the Rules sets.

Tenth Circuit Proposes Changes to Local Rules for 2013 and Seeks Comment

On January 1, 2013, new local rules for the United States Court of Appeals for the Tenth Circuit will take effect. From August 14 through October 17, the court invites comment and feedback from all interested parties on this year’s proposed changes. Please take a moment to review the changes below.

Comments may be emailed to the Court. In addition, interested parties are invited to call the office of the Clerk at (303) 844-3157 with any questions they may have. A final version of the rules will be posted on the court’s website on or around November 26, 2012.

Additionally, changes to Federal Rules of Appellate Procedure will take effect on December 1, 2012. These changes are also outlined in the documents below.

Tenth Circuit Proposed Local Rules Changes for 2013

Every year the court reviews the rules to identify places where language can be updated for clarity and to reflect technical advances and requirements. This year several changes are proposed in this regard. In addition, practitioners should note proposed changes for this year include eliminating certain requirements regarding attaching materials to docketing statements. The proposed rules call for eliminating all attachments except the order(s) on appeal. In addition, the docketing statement form has been streamlined. Practitioners will see all of the proposed language and form changes in the redline version of the rules.

Additional changes include:

1)  10th Cir. R. 3.4 (exempting pro se litigants from filing docketing statements)

This proposal eliminates the rule requirement that pro se parties file docketing statements.

2)  10th Cir. R. 29.1 (time for filing amici briefs on rehearing)

This proposal clarifies procedures for filing amici briefs on rehearing. Specifically, the proposal makes clear when those briefs must be filed. The language of the proposed local rule tracks the language found in Fed. R. App. P. 29(e).

3)  10th Cir. R. 30.1(C) (reminder regarding large appendices)

This proposal adds language to clarify and remind parties that large appendices should be broken down into manageable volumes.

4)  10th Cir. R. 31.3(B) (statement of separate briefs)

This proposed change clarifies the language already found in the local rule and notes that where there are multiple parties on one side, and only one of those parties is a nongovernmental entity, that party need not include a “separate brief” statement (because governmental entities are exempt from this requirement).

5)  10th Cir. R. 39.1 (maximum rates for bills of cost)

This proposed change relates to the “per page” amount the court will allow, under Federal Rule of Appellate Procedure 39, in awarding costs to a prevailing party for copying charges. The current rule allows parties to seek up to 50 cents per-page in copying charges. The proposal is to change the amount to $0.20 per page. The change puts the 10th Circuit into closer alignment with the rest of the circuits’ local rules in this area.

Click here to review a memorandum from the Tenth Circuit regarding the changes.

Click here to read a complete draft of the rules.

Click here to read a complete draft of the rules including red line edits.

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 State Judicial Branch Revises Several Probate Forms

This is Part 1 of 4 posts about new forms from State Judicial. Check back soon for more updates.

The Colorado State Judicial Branch issued 15 revised forms in July 2012 for probate proceedings, including instructions and forms regarding guardianships and conservatorships, as well as publication and notice forms. Practitioners should begin using the new forms immediately.

These forms were amended by the Colorado Supreme Court on June 29, 2012, and outlined as Rule Change 2012(11).

Most forms are available in Adobe Acrobat (PDF) and Microsoft Word formats; many are also available as Word and Excel templates. Download the new forms from State Judicial’s individual forms pages, or below.

Probate

  • JDF 714 – “Affidavit Regarding Due Diligence and Proof of Publication” (revised 7/12)
  • JDF 716 – “Notice of Hearing By Publication” (revised 7/12)
  • JDF 785 – “Final Order Accepting Guardianship/Conservatorship in Colorado From Sending State” (revised 7/12)
  • JDF 807 – “Notice of Hearing to Respondent (Adult or Minor)” (revised 7/12)
  • JDF 821 – “Affidavit of Acceptance of Appointment By Written Instrument as Guardian for Minor” (revised 7/12)
  • JDF 823 – “Instructions for Appointment of Guardian – Minor” (revised 7/12)
  • JDF 840 – “Instructions for Appointment of Guardian – Adult” (revised 7/12)
  • JDF 844 – “Notice of Appointment of Emergency Guardian and Notice of Right to Hearing” (revised 7/12)
  • JDF 860 – “Instructions for Appointment of Conservator – Minor” (revised 7/12)
  • JDF 875 – “Instructions for Appointment of Conservator – Adult” (revised 7/12)
  • JDF 882 – “Conservator’s Inventory with Financial Plan and Motion for Approval” (revised 7/12)
  • JDF 887 – “Instructions to File a Petition to Terminate Conservatorship” (revised 7/12)
  • JDF 945 – “Notice of Disallowance of Claims” (revised 7/12)
  • JDF 949 – “Notice of Hearing to Interested Persons and Owners By Inheritance” (revised 7/12)
  • JDF 950 – “Notice of Hearing By Publication to Interested Persons and Owners By Inheritance” (revised 7/12)

For a complete list of probate forms from State Judicial, click here.

Service, Process, and Electronic Filing Rules Amended by Colorado Supreme Court

On July 2, 2012, the Colorado Supreme Court released numerous updates to the Colorado Rules of Civil Procedure and the Colorado Rules of County Court Civil Procedure dealing with process, service of process, and the filing of pleadings. Amendments were made to the following rules:

  • CRCP Rule 4 – “Process”
  • CRCP Rule 5 – “Service and Filing of Pleadings and Other Papers”
  • CRCP Rule 121, Section 1-26 – “Electronic Filing and Serving System”
  • CRCCCP Rule 304 – “Service of Process”
  • CRCCCP Rule 305.5 – “Electronic Filing and Serving”

These amendments were adopted on June 21 and are effective immediately.

Click here to review the red line changes to these civil procedure rules, outlined as Rule Change 2012(10).

Death Penalty Post-Trial Procedures Amended by Colorado Supreme Court

On June 27, 2012, the Colorado Supreme Court announced a change to Criminal Procedure Rule 32.2 – Death Penalty Post-Trial Procedures. Crim.P. 32.2(c)(1) is amended to read as follows:

Unitary Notice of Appeal. The notice of appeal for the direct appeal and the notice of appeal for all post-conviction review shall be filed by unitary notice in the supreme court within 7 days after the trial court’s order on post-conviction review motions, or within 7 days after the expiration of the deadline for filing post-conviction review motions if none have been filed. The unitary notice of appeal need conform only to the requirements of sections (1), (2), (6) and (8) of C.A.R. 3(g).

These amendments were adopted on June 21 and are effective July 1.

Click here to review the red line changes to Crim.P. 32.2, outlined as Rule Change 2012(09).

“Rule of Seven” Comment Added to Four Colorado Procedure Rules

On June 27, 2012, the Colorado Supreme Court announced four amendments to various Colorado procedure rules regarding the “rule of seven” for procedural time calculations. Colorado Civil Procedure Rules 6 and 306, Criminal Procedure Rule 45, and Colorado Appellate Rule 26 were all amended with the following Comment:

AFTER THE PARTICULAR EFFECTIVE DATE, TIME COMPUTATION IN MOST SITUATIONS IS INTENDED TO INCORPORATE THE RULE OF SEVEN. UNDER THE RULE OF SEVEN, A DAY IS A DAY, AND BECAUSE CALENDARS ARE DIVIDED INTO 7-DAY WEEK INTERVALS, GROUPINGS OF DAYS ARE IN 7-DAY OR MULTIPLES OF 7-DAY INTERVALS. GROUPINGS OF LESS THAN 7 DAYS HAVE BEEN LEFT AS THEY WERE BECAUSE SUCH SMALL NUMBERS DO NOT INTERFERE WITH THE UNDERLYING CONCEPT. DETAILS OF THE RULE OF SEVEN REFORM ARE SET FORTH IN AN ARTICLE BY RICHARD P. HOLME, 41 COLO. LAWYER, VOL. 1, P 33 (JANUARY 2012).

TIME COMPUTATION IS SOMETIMES “FORWARD,” MEANING STARTING THE COUNT AT A PARTICULAR STATED EVENT [SUCH AS DATE OF FILING] AND COUNTING FORWARD TO THE DEADLINE DATE. COUNTING “BACKWARD” MEANS COUNTING BACKWARD FROM THE EVENT TO REACH THE DEADLINE DATE [SUCH AS A STATED NUMBER OF DAYS BEING ALLOWED BEFORE THE COMMENCEMENT OF TRIAL]. IN DETERMINING THE EFFECTIVE DATE OF THE RULE OF SEVEN TIME COMPUTATION/TIME INTERVAL AMENDMENTS HAVING A STATUTORY BASIS, SAID AMENDMENTS TAKE EFFECT ON JULY 1, 2012 AND REGARDLESS OF WHETHER TIME INTERVALS ARE COUNTED FORWARD OR BACKWARD, BOTH THE TIME COMPUTATION START DATE AND DEADLINE DATE MUST BE AFTER JUNE 30, 2012. FURTHER, THE TIME COMPUTATION/TIME INTERVAL AMENDMENTS DO NOT APPLY TO MODIFY THE SETTINGS OF ANY DATES OR TIME INTERVALS SET BY AN ORDER OF A COURT ENTERED BEFORE JULY 1, 2012.

These amendments were adopted on June 21, 2012, and are effective July 1.

Click here to review the red line changes to these rules, outlined as Rule Change 2012(08).

Chief Justice Amends Court Compensation of Expert Witnesses and Professionals Conducting Mental Health Evaluations

In an effort to control expenditures of state funds in court cases, the Chief Justice of the Colorado Supreme Court has approved a new policy that applies to expert witnesses and mental health professionals conducting examinations or evaluations (with or without subsequent testimony) who are entitled to compensation paid by the Colorado Judicial Department.

Issued in June 2012, this new Chief Justice Directive, CJD 12-03, does not apply to other professionals that are appointed and compensated by the court as provided in other Chief Justice Directives, nor does it apply to employees and/or contractors paid by the Colorado Mental Health Institute at Pueblo or other government mental health agencies for work performed at their direction.

Certain types of evaluations are also excluded inasmuch as they are governed by other program-specific statutes, rules, or policies. If the Court finds that there is not an applicable statute, rule, directive, policy, or similar guidance that governs compensation for an evaluation permitted by statute, and that payment by the Judicial Department is appropriate, the Court will enter an order requiring the expert to comply with the fee and billing requirements and limitations set forth by CJD 12-03.

The Judicial Department may enter in to agreements to provide for evaluations or examinations when it is determined that said agreements are cost-effective and in the best interest of the Judicial Department.

This new Chief Justice Directive is applicable to all appointments made on or after July 1, 2012.

Chief Justice Directives 87-01 (Court compensation of experts in felony cases) and 93-03 (Compensation, mental condition examinations in criminal and civil cases) are repealed by CJD 12-03.

For all details about CJD 12-03, including Fees, Expenses, and Guidelines for Payment, click here.

Rejection List for E-Filed Documents Updated by the Chief Justice

Attachment A of Chief Justice Directive 11-01 was revised this week. CJD 11-01 concerns Statewide Electronic Filing Standards and Attachment A outlines the Rejection List for E-Filed Documents. Attachment A is the only portion of the CJD that was revised.

Attachment A was amended to add reason number 16 to the list of reasons to reject a document. Section 1-15 of Colorado Civil Procedure Rule 121 was amended by the Colorado Supreme Court in March (Rule Change 2012(03) to add a requirement that each motion filed must be accompanied by an order in editable format. The amendment to CJD 11-01 conforms Attachment A with that requirement.

The details are outlined in CJD 11-01 – “Directive Concerning Statewide Electronic Filing Standards”

Questions about this amendment can be directed to Carol Haller, Deputy State Court Administrator, Legal Counsel at (303) 837-3669 or carol.haller@judicial.state.co.us or Linda Bowers, Court Services Manager at (303) 837-3839 or linda.bowers@judicial.state.co.us.

Corrective Order Issued for New Procedural Time Calculation Rules that Become Effective in July

Back in 2011, the Colorado Supreme Court announced significant changes across the board for procedural time calculations. The changes conform the various court rules to the “rule of 7″ for procedural time periods, adopting multiples of a week. The rule changes were implemented in two phases: the contents of Rule Change 2011(18) were implemented on January 1, 2012, and the contents of Rule Change 2011(19) are set to become effective on July 1, 2012. This later date reflected the need for some rules changes to be approved and passed by the Colorado legislature.

On June 20, 2012, the Court released a Corrective Order to revise the procedural time calculations for some Colorado Rules of Procedure that become effective in July. Namely, time periods for filing certain documents with the court have been extended in the following rules:

  • Rule 103 and Rule 403 Garnishment (extension of certain deadlines from 7 to 14 days)
  • Rule 411 Appeals (extension of certain deadlines from 14 to 21 days)

The specific changes to the rules can be reviewed in the redlined document below.

Supreme Court Rule Change 2011(19) Corrective Order

Secretary of State Proposes Amendments to Election Rules

The Colorado Secretary of State is considering amendments to the election rules “in order to improve the administration and enforcement of Colorado elections law.” Specifically, the Secretary is considering rules necessary to implement amendments to the election laws made during the 2012 legislative session.

Additional rule revisions concern changes to an elector’ s voter registration status, permanent adoption of current temporary election rules, mail ballot elections, mail-in voting, procedures for processing changes to voter records in the statewide voter registration database, procedures for processing mail, mail-in, and provisional ballots, canvass board processes including the board’s role and duties, and technical corrections.

A hearing on the proposed rule changes will be held on Monday, July 23, 2012 at the Secretary of State’s Office, Aspen Conference Room – 3rd Floor, 1700 Broadway, Denver, Colorado 80290, beginning at 2:00 pm.

Full text of the proposed rule changes can be found here. Further information about the rule changes and hearing can be found here.

UPDATED: Colorado Supreme Court Amends Several Rules of Judicial Discipline

Editor’s Note: On June 20, 2012, the Colorado Supreme Court announced that a different rule change will be categorized as Rule Change 2012(06). This rule change will now be categorized as 2012(07). Click here to review the redline changes (still labeled as 2012(06)) and click here to review a clean copy of the finalized Rules of Judicial Conduct (labeled as 2012(07)) .

The Colorado Supreme Court has amended several Rules of Judicial Discipline. Many changes were made to the rules, including some renumbering. Affected rules include:

  • Rule 4. Jurisdiction and Powers
  • Rule 5. Grounds for Discipline
  • Rule 18.5. Special Masters [formerly Rule 24]
  • Rule 21.5. Discovery
  • Rule 33. Record of Proceedings
  • Rule 33.5.  Disability Proceedings
  • Rule 36.5. Conviction of a Crime
  • Rule 37. Recommendation and Notice
  • Rule 40. Decision

These amendments were adopted on March 22, 2012 and are effective immediately.

Click here to review the red line changes to the Rules of Judicial Discipline, outlined as Rule Change 2012(06).