October 21, 2014

New Across-the-Board Procedure Rules for Calculating Trial and Appellate Deadlines Proposed by the Colorado Supreme Court

The Colorado Supreme Court is requesting written public comments by any interested person on revisions to proposed new rules for calculating trial and appellate deadlines. Changes are being made to virtually every rule of procedure (civil, appellate, uniform water, probate, and criminal) – a daunting task undertaken by the Supreme Court to help simplify how one determines when pre- and post-trial actions must be taken. Most of the new rules will take effect at the start of 2012, with a few others kicking in July 2012  to allow for legislative review.

Public review and comment is seen as vital to these changes especially, as they are comprehensive; with such a vast number of rules to review, it is possible mistakes or inconsistencies escaped the notice of the Supreme Court’s rules committees. The Court asks that lawyers who appear in courts—civil, criminal, appellate, or other—review the applicable proposals and submit written comments to the Supreme Court by Friday, September 30, 2011 at 5:00 pm.

According to an advance article from The Colorado Lawyer, the changes again come as a response to revisions in the Federal Rules of Civil Procedure. The amended Colorado rules will adopt the federal rules’ multiples of 7 – or, multiples of a week. This change will virtually eliminate problems that arise when a deadline falls on a weekend; a response that is due in 21 days will always fall on the same weekday.

The revised Colorado rules, however, reject the federal standard of allowing an extra 3 days for mailing and e-service. The Colorado rules will adopt a 7-day standard for that as well.

As a result of these changes, most court deadlines were rounded up to closest 7-day period, with 10 days becoming 14 and 15 rounding up to 21. However, sometimes longer periods were shortened slightly when time frames were deemed important; 30 days before trial could now become 28 days before trial.

All trial and appellate lawyers are urged to review the new proposed rules to determine whether these new deadlines create unintended consequences that should be fixed before final action on the rules is taken.

An original plus eight copies of written comments concerning the proposed new rules should be submitted to the Clerk of the Colorado Supreme Court, Christopher T. Ryan, at 101 W. Colfax Avenue, Suite 800, Denver, Colorado 80202, no later than Friday, September 30, 2011 at 5:00 pm.

Click here to review The Colorado Lawyer article outlining the proposed changes to the rules. Click here to assist the Colorado Supreme Court and review the amended rules themselves.

Matthew Spengler: Review of the Colorado Supreme Court’s 2010-11 Term

The Colorado Supreme Court’s term 2010-2011 recently concluded.  The Court does not hear oral argument during the months of July and August and it generally refrains from issuing opinions during this time, although it does continue to rule on cert petitions and C.A.R. 21 petitions.

The most recent term was one of significant change to the Court.  After twelve years, the Court elected a new chief justice when Chief Justice Mary Mullarkey retired and Justice Michael Bender was elevated to the position.  On December 10th, Justice Monica Marquez was sworn in as a new associate justice.

The Court issued 86 opinions during this most recent term.  Looking at the composition of the Court’s docket: 52 (60%) of the opinions were appeals of judgments entered by Colo. Court of Appeals; 8 (9%) of the opinions were appeals from the water courts; 10 (11.5%) were appeals pursuant to C.A.R. 21; 13 (15%) were interlocutory appeals from the district court; 1 was an interlocutory appeal from a county court; and 2 opinions involved the Court’s oversight of the legal profession.

49 (57%) of the Court’s opinions were unanimous.  Historically, the Court has manifested an ideological split between four liberal justices — Mullarkey, Hobbs, Bender, and Martinez — and three conservative justices — Rice, Eid, and Coats.  Earlier this term, my co-blogger Peter Krumholz speculated as to how the retirement of Chief Justice Mullarkey, and the addition of Justice Marquez, might affect the Court’s ideological breakdown.

For this most recent term at least, the traditional pattern has held.  The Court issued fourteen opinions in which three justices dissented from at least part of the majority’s decision.  Of those fourteen opinions, Justices Rice, Eid, and Coats were together in dissent nine times.

Turning to individual voting patterns of certain justices, this year’s majoritarian award goes to my old boss, Justice Hobbs.  He voted with the majority in 85 of the 86 opinions issued (98.8%).  In a single case, he joined a concurring opinion written by Justice Martinez.

Former Chief Justice Mullarkey participated in 27 of the Court’s opinions this year (through the December 13, 2010 announcements).  She voted in the majority in 26 of those opinions and joined one dissent.

On the other end of the spectrum, Justice Eid voted in the majority in only 61 (71%) cases.  She wrote, or joined, 21 dissenting opinions and six concurring opinions.

Justice Marquez voted in 52 cases during this term.  She recused herself from seven cases that were decided after she joined the Court.  She voted in the majority in 47 cases (90%) and dissented in 5 cases.

Matthew Spengler is an associate at Hale Westfall who focuses his practice on real estate and eminent domain litigation, as well as general commercial litigation. He contributes to the firm’s Rocky Mountain Appellate Blog, where this post originally appeared on July 7, 2011.

Uniform Local Rules for All State Water Court Divisions Amended by the Colorado Supreme Court

The Colorado Supreme Court has adopted amendments to the Uniform Local Rules for All State Water Court Divisions. Rule 11, Pre-Trial Procedure, Case Management, Disclosure, and Simplification of Issues, has been changed to make the notes taken by experts during their meetings not discoverable, and none of the content of the meetings or the written statement prepared will be admissible at trial. Additionally, a Committee Comment was added to outline how such meetings should be conducted and how to prepare the written statement.

Uniform Local Rules for All State Water Court Divisions Rule 11(b)(5)(D)(III) was amended to read as follows:

The content of the meetings of the experts and the written statement prepared pursuant to Water Court Rule 11(b)(5)(D)(II) shall be considered as conduct or statements made in compromise negotiations within the ambit of CRE 408. For this reason, notes taken by the experts or other records of the discussion during these meetings shall not be discoverable, and none of the content of the meetings of the experts or the written statement prepared shall be admissible at trial. The meetings of the experts shall not include the attorneys for the parties or the parties themselves, unless they are the designated expert(s).

The new Committee Comment begins:

Effective July 1, 2011, Rule 11 is further amended in subsection (b)(5)(D)(III) to make explicit the non-discoverability and non-admissibility of the notes, records, content of discussions, and written statement prepared by the experts in accordance with the rule, and, further, to clarify that the meetings of the experts exclude attorneys for the parties or the parties themselves unless they are designated experts. These clarifying changes apply nunc pro tunc on and after July 1, 2009.

In addition, the following Suggested Guide is included in this Comment by way of example for conduct of the meetings of the experts and preparation of the joint written statement of the experts.

Then follows the “Suggested Guide for Conducting Meetings of the Experts in Water Court Proceedings and Preparing Written Statement.”

Click here to read the red line edits, the full Committee Comment and Suggested Guide, and the full release from State Judicial concerning these rules changes.

Colorado Supreme Court Proposes Changes to CRCP and Uniform Local Rules for All State Water Court Divisions

The Colorado Supreme Court has issued a notice of proposed rule changes and requests for public comment.  The Court proposes amendments to the Colorado Rules of Civil Procedure Rule 121, Section 1-1 and Chapter 36 of the Uniform Local Rules for All State Water Court Divisions.

The changes to CRCP 121, Section 1-1 involve the addition of a new paragraph 5 to read as follows:

In accordance with CRCP 11(b), an attorney may undertake to provide limited representation to a pro se party involved in a court proceeding. Upon the request of and with the consent of a pro se party, an attorney may make a limited appearance for the pro se party in one or more specified proceedings, if the attorney files and serves with the court and the other parties and attorneys (if any) a notice of the limited appearance prior to or simultaneous with the proceeding(s) for which the attorney appears. At the conclusion of such proceeding(s) the attorney’s role terminates without the necessity of leave of court, upon the attorney filing a notice of completion of limited appearance. Service on an attorney who makes a limited appearance for a party shall be valid only in connection with the specific proceeding(s) for which the attorney appears.

More information about the change to CRCP 121 and the rationale for the proposed change can be found here.

The changes to Chapter 36 of the Uniform Local Rules for All State Water Court Divisions are twofold. If the changes are adopted, the rule “would convert time periods contained in the current Water Court Rules to uniform increments of 7 in place of the various time periods currently specified in the rules. This would conform to the Civil Rules Committee’s suggestion that all Colorado court rules be converted to ‘the rule of 7′ as with Federal Rules.” Additionally, the changes would “accommodate multiple applicants in a single application for augmentation and exchange plans and non-tributary groundwater applications.”

More information about changes to the Water Rules, including line edits and the rationale for the proposed changes, can be found here.

Public comments on either change should be submitted with an original and seven copies no later than Friday, September 30, 2011, at 5:00 pm addressed to: Clerk of the Colorado Supreme Court, Christopher T. Ryan, 101 West Colfax, 8th Floor, Denver, Colorado 80202.

Colorado Supreme Court: Application for a Conditional Appropriative Right of Exchange is a Conditional Water Right

The Colorado Supreme Court issued its opinion in Concerning the Application for Water Rights of the City and County of Broomfield in Adams, Broomfield, Boulder and Weld Counties: Centennial Water and Sanitation District v. City and County of Broomfield on June 20, 2011.

The Supreme Court affirmed an order of the district court for Water Division No. 1, holding that an application for a conditional appropriative right of exchange is a conditional water right subject to the can-and-will test and the first-step requirement. The Court found that the City and County of Broomfield, as a government entity, need not own nor control all sources of substitute water supply at the time the decree is entered but must demonstrate that it has taken the first step toward acquiring the proposed sources and that it can and will acquire them. This analysis is to be applied source by source. The Court found that the water court properly concluded that Broomfield met its burden with regard to two of the eight proposed sources of substitute supply that it does not own or control. Accordingly, the water court’s decree was affirmed.

Summary and full case available here.

Colorado Supreme Court: Water Court’s Judgment and Decree Upheld Regarding Determination of Historical Consumption Use of Burlington-FRICO Water Rights

The Colorado Supreme Court issued its opinion in Burlington Ditch, Reservoir and Land Co. v. Metro Wastewater Reclamation Dist. on May 31, 2011.

Determination of Historical Consumptive Use of Water Rights—CRS § 37-92-305—Unlawful Enlargement of Water Rights—“One-Fill” Rule—Preclusive Effect of Prior Water Court Orders and Decrees—New Structures and Points of Diversion.

Appellants Burlington Ditch, Reservoir and Land Company (Burlington), Farmers Reservoir and Irrigation Company (FRICO), United Water and Sanitation District (United), Henrylyn Irrigation District (Henrylyn), and East Cherry Creek Valley Water and Sanitation District (ECCV) challenged the order and decree of the water court regarding its determination of historical consumptive use of water rights, the effect of prior decrees and new structures related to the Burlington Canal, the application of the “one-fill” rule, and the impact of these decisions on appellants’ senior rights to use the waters of the South Platte River.

This case arose from two applications seeking changes in points of diversion and storage of water rights, as well as changes from irrigation to municipal use for Burlington and FRICO water rights with 1885, 1908, and 1909 priority dates. These changes were precipitated by the United–ECCV Water Supply Project, aimed at providing a renewable source of water to replace Denver Basin groundwater on which ECCV previously relied.

To prevent an unlawful enlargement of the Burlington–FRICO water rights, the water court limited appellants’ 1885 Burlington direct flow water right to 200 cubic feet per second, historically diverted and used for irrigation above Barr Lake. Likewise, the 1885 Burlington storage right was limited to annual average reservoir releases of 5,456 acre-feet. The water court further determined that seepage gains into the Beebe Canal, water collected through the Barr Lake toe drains, and diversions at the Metro Pumps could not be given credit in the calculation of historical consumptive use. The court determined that historical releases from Barr Lake, rather than a pro rata share of the one-fill rule,constitute the proper measure of storage rights. The water court concluded that its system-wide analysis of historical consumptive use was not precluded by the orders and decrees issued in FRICO Case No. 54658 and Thornton Case No. 87CW107. The court imposed conditions to prevent injury to other water rights by the heretofore undecreed diversions via the Globeville Project. The Supreme Court upheld the water court‘s judgment and decree.

Summary and full case available here.

Weld County Conducting Court Service-Improvement Program This Week

This week, judges, magistrates, clerks, and other court employees will collect data to help improve the way the courts of Colorado’s Nineteenth Judicial District conduct their business. The program was first instituted in 2008, using public surveys to gather information and assess the functioning and accessibility of the courts in the district. In the last three years, the surveys have been used at least once in each of Colorado’s twenty-two judicial districts. Weld County was one of the first districts to participate in the initial survey.

On Wednesday, court employees will spend time talking to people about their experiences as jurors, parties to a case, or as recipients of other Judicial Branch services. Attorneys, law enforcement officers, and anyone who does business with the courts will be encouraged to participate. People exiting the buildings at the Weld County Court Complex will be asked whether they had business with the courts and are willing to fill out a brief anonymous survey. Survey forms will be available in English and Spanish.

The survey is designed to measure public opinion about access to and fairness of the courts. Questions include whether people felt safe in the building, whether they could easily understand the forms they needed, and whether they felt their case was handled in a fair manner. Participants also are asked whether they felt the judge or magistrate listened to them, whether they had all the necessary information before making a decision, and whether they felt they were treated with courtesy and given clear information about the next step in their case.

The new information will be used not only to check the progress of changes initiated since the first round of surveys, but also to support the possibility of further improvements. Two areas initially identified as needing attention were the website and setting performance goals. The website has been completely redesigned to improve access and usability. The district also now regularly monitors case processing, data integrity, and case closure rates to further help ensure the second area is being addressed.

In Fiscal Year 2010, more than 43,100 cases were filed in the Weld County Combined Courts, including 12,615 cases filed in District Court, 509 in the Water Court, and 30,039 in Weld County Court.

Colorado Supreme Court: State Engineer’s Orders Curtailing Well Owners’ Use of Water in Their Wells Is Not a Taking

The Colorado Supreme Court issued its opinion in Kobobel v. State of Colorado on March 28, 2011.

U.S. Const. amend. V and XIV—Colo. Const. art. II, sec. 15—Water Law—Inverse Condemnation—State’s Cease and Desist Orders Curtailing Tributary Groundwater Well Pumping—Water Court Jurisdiction

The supreme court affirms the water court’s dismissal of plaintiffs’ inverse condemnation claim. The court holds that the well owners’ claim is a water matter within the exclusive jurisdiction of the water court because it is predicated on the well owners’ right to use the water in their decreed wells. The court further holds that the state engineer’s orders curtailing the well owners’ use of the water in their wells did not constitute a taking in violation of article II, section 15 of the Colorado Constitution or the Fifth and Fourteenth Amendments to the U.S. Constitution. The cease and desist orders simply curtailed the well owners’ out-of-priority diversions consistent with Colorado’s prior appropriation doctrine. Because the well owners cannot show that the State infringed on a constitutionally protected property right, they are not entitled to just compensation for the “taking” of that alleged right.

Summary and full case available here.