By James S. Casebolt
Judge, Colorado Court of Appeals
Note: This article is an updated version of an article that was originally published in The Colorado Lawyer, Vol. 24, No. 9, Sept. 1995, pp. 2105-2110.
The Colorado Court of Appeals currently consists of twenty-two judges including the Chief Judge, each of whom has his or her own separate chambers located in the state judicial building.
Support staff for each judge consists of one secretary and one law clerk, although a judge may have two law clerks, one of which typically performs secretarial work. Each is a confidential employee and serves at the pleasure of the judge. Staff for the entire court includes the Reporter of Decisions and the clerk of the court and his eight employees. Further, there are nineteen full-time staff attorneys with a small support staff, whose activities and functions are described below. In all, there are about 105 employees, including judges.
Law clerks are typically hired for one year, usually beginning in August, although some judges request a two-year stint given the inevitable learning curve for clerks. Some judges retain law clerks indefinitely. An orientation and training session for clerks is given each year. Most beginning clerks are just out of law school, but many who currently serve are attorneys with private practice backgrounds who have chosen to return to clerkships for various reasons.
The court sits in Denver, but is authorized by statute to sit in the county seat of any county to hear cases. While panels of the court still occasionally travel to hear cases, budget restrictions have significantly reduced travel outside the Denver metropolitan area. To allow law students to observe and listen to appellate arguments firsthand, the court does send panels to the law schools at the Universities of Colorado and Denver at least once per year. Occasionally the court hears cases argued before students in the public secondary schools.
Filing and Termination Statistics
In the fiscal year ending June 30, 2009, 2809 cases were filed and 2994 cases were resolved, including written opinions issued and dismissals due to settlement or lack of jurisdiction. Of all terminations in the last fiscal year, 919 cases were eventually dismissed because of procedural defects, settlement, or lack of jurisdiction.
Initial Case Contact, Preargument Conferences, and Motions
Unless a preargument conference is requested or motions are filed in the case, typically no judge will see a case file until all the briefs are filed. Exceptions include per curiam cases, discussed below. While preargument conferences for settlement purposes have been little used in the past, the court now encourages their use. This is due to the availability of the court’s senior judges who have specialized training in alternative dispute resolution techniques. Moreover, those services are available without charge to litigants.
If motions are filed, they are reviewed by a staff attorney initially and thereafter determined by a panel of three judges who serve as a "motions division." The membership of this panel rotates every month.
Each case is screened for jurisdiction. If any issue concerning jurisdiction arises, typically an order to show cause will issue, directing the parties to address any jurisdictional concerns. The motions division usually considers and rules on responses to show cause orders.
Once a case becomes "at issue," i.e., after all briefs have been filed, the clerk's office circulates "at issue" sheets to all judges. These sheets contain the case number; the names of the parties and attorneys; and the court, agency, or lower tribunal from which the appeal emanates.
Each judge reviews the "at issue" sheets to determine recusals. Recusals are based on the Code of Judicial Conduct. Priority is given to review of these sheets; every attempt is made to complete the review within several hours after receipt.
Case and Panel Assignments
Once the "at issue" sheets are returned to the docketing clerk, cases are assigned randomly by the clerk's office to each division, i.e., a three-judge panel, avoiding assignment to panels that have a recused judge.
No attempt is made to match cases or File/S with any particular panel or judge, nor to assign cases based upon any areas of particular expertise of judges or panels. The variety of cases assigned helps attract qualified applicants for judicial vacancies and, because contact with lawyers and the public is limited, helps avoid burnout by engaging intellectual curiosity. The process of random selection also ensures that a diversity of ideas from the varied backgrounds of the judges will inform a panel's decision. The Chief Judge, or on occasion, a senior judge will fill in on a case in which only one panel member has been recused.
Panels are selected by the Chief Judge, with approval of the Chief Justice of the Colorado Supreme Court. Each panel serves four months. The most senior judge among the panel members serves as the division head and has power to make assignments within the panel, such as to direct authorship of opinions; however, authorship is typically assigned on a random basis.
The Chief Judge, in addition to significant administrative duties, substitutes for recused judges, heads panels containing senior judges, takes ill or vacationing judges' case assignments, and forms additional divisions to spread the workload evenly.
Divisional Nature of the Court
As noted above, the court is a "divisional" court, being so designated by statute (§13-4-106, C.R.S. 2007). As such, all divisions function independently from each other, similar to the way the federal circuits function in the federal system, although we are not authorized to sit en banc.
Each independent panel decides its cases in light of its own interpretation of binding and persuasive authority. Correspondingly, no existing decision by one division technically "binds" another division to follow the previous result. Thus, although the importance of deference to earlier decisions is recognized, there may be conflicting division decisions on similar issues because each panel may view the law differently.
Further, even though a majority of the twenty-two judges on the court may disagree with a division opinion, the division determines the final content of the opinion. Conflict between division decisions is one of the reasons certiorari may be granted by the supreme court. C.A.R. 49.
Each panel is assigned to "sit" every two weeks. Each such "sitting" consists of a combination of cases set for oral argument and cases in which oral argument is waived (called "waived cases"). Currently, each panel receives seven cases for each sitting, normally containing three or four cases set for oral argument, and the balance consisting of waived cases.
Each sitting is scheduled approximately five to six weeks in advance. The clerk's office notifies counsel for the parties of the date set for oral argument and indicates how conflicts in scheduling are to be handled. No notification of the scheduled sitting is given to counsel or parties if oral argument is waived, although counsel and parties may obtain information about scheduling of their cases for assignment to a sitting from the clerk's office upon request.
Assignments within Division
Upon receipt of the assignment sheet, an assignment of each case to one of the panel members is randomly made by the division head, which constitutes the tentative designation of that panel member as the author-judge. Each judge then receives the assignment sheet indicating his or her assignments for the scheduled sitting.
The assigned judge is responsible for preparation of a "predisposition memorandum" directed to the other two panel members. This document, known as a PDM, can take numerous forms, although it typically is written in draft opinion form and contains a proposed disposition of the case.
The PDM is drafted by each judge with the assistance of his or her law clerk after review of the briefs, trial court or administrative agency decision and relevant portions of the record. Although there are situations in which the entire record must be reviewed, as when the appellant alleges insufficient evidentiary support for the trial court disposition, typically the briefs, if well written, will direct the judges to the specific areas of the record that must be reviewed.
PDMs are circulated to the other panel members the Friday before the scheduled sitting, which is typically on a Monday or Tuesday. Each judge is responsible for at least two PDMs for each sitting, with the seventh case being rotated each sitting to a different judge of the panel. Thus, there are always two, and sometimes three PDMs prepared by each judge and his or her chambers every two weeks. This means that each judge, after completing his or her PDMs, will then be responsible for reading the briefs, pertinent law and, if necessary, portions of the record in four to five other cases prior to argument.
All PDMs are tentative, as is authorship. It is only after argument and review during conference, after each panel member has read all of the briefs and such parts of the record as each judge deems necessary and has conducted independent research, that a determination is made. When cases are scheduled for oral argument, the PDM serves to provide insight and focus questions for each panel member during argument. When oral argument is waived, the PDM serves a like function for discussion in conference.
The PDM may form the basis of the majority opinion. Occasionally, it may represent a dissenting view, in which case one of the remaining two panel members will write the majority opinion. It is also not uncommon for all panel members to disagree with at least part of the PDM after conference; hence, the initial author-judge may prepare one or more revised drafts before an acceptable draft is written.
On the day of the scheduled sitting, usually immediately after oral argument is complete, the panel convenes in conference to discuss all of the cases assigned for that sitting, including waived cases. At the conference, each case is discussed. Conferences can, and sometimes do, last all day. If a consensus is reached, authorship is confirmed. If no consensus can be reached at that time, the case may then be passed until a later division conference. Passed cases may require additional research, further record review or supplemental discussion before a determination is made.
Cases Proposed for Publication
During conference, if a determination of outcome is made, the panel discusses whether the draft opinion may merit publication. Publication criteria are set forth in C.A.R. 35(f), which generally provides for publication when the opinion: (1) lays down a new rule of law, alters or modifies an existing rule, or applies an established rule to a novel fact situation; (2) involves a legal issue of continuing public interest; (3) directs attention to the shortcomings of existing common law or statutes; or (4) resolves an apparent conflict of authority.
If the opinion may merit publication, the author will circulate a draft opinion to other panel members. Once the author creates a proposed opinion, that draft opinion is scheduled for discussion at the next division conference for that panel.
Every Wednesday, each panel meets in a division conference. It then discusses any previously passed cases, together with new opinion drafts. Before the division conference, each draft is reviewed and critiqued for style, form, language, punctuation, and general readability by the court's Reporter of Decisions. In addition to her other duties the Reporter, who is an attorney with excellent editorial skills, suggests modifications, substitutions and changes, all of which are reviewed by the panel during division conference.
After the division approves the draft, the division makes its final determination regarding proposed publication and the author then finalizes the draft opinion. If the division believes the final draft is publishable, it is circulated to members of the court. A cover sheet contains the criteria that the panel believes qualifies the opinion for publication.
Full Court Review and Conference
A majority of the twenty-two judges is charged with reviewing every draft opinion circulated for publication, conducting whatever research the reviewing judge deems necessary, determining whether the opinion qualifies for publication and suggesting any edits deemed appropriate. A reviewing judge returns to the author-judge a comment sheet on which the publication vote is recorded, together with comments. Votes on publication and comments are due by the Monday before full court conference, which is scheduled for alternate Thursdays.
The comments may be substantive or editorial. Each judge has the power to call the draft opinion "into conference." This means that the judge can request a full discussion of the opinion at the full court conference, because of its content, because it may be thought to conflict with prior decisions, or for any other reason.
Until approximately 1988, each case proposed for publication was individually discussed in the full court conference. Since then, however, because of time constraints and the sheer number of cases to be decided and announced, only those cases specifically identified are discussed in full court conference.
Before full court conference, any judge calling a case into conference typically discusses his or her concerns with the author-judge. At that time, proposed changes may be discussed which, after further review with the other panel members, may obviate the need for the full court to review the opinion.
Any opinion receiving a majority vote for publication will be published, unless it is withdrawn before or during full court conference for further work. The author-judge and the rest of the panel may, but need not, modify the opinion to take into account the suggestions of the reviewing judges and the Reporter of Decisions, and may recirculate the opinion to the full court for further review.
For those draft opinions that the division believes do not qualify for publication, the author-judge, after division conference and after revising the opinion to meet the directions and concerns of the panel members, issues the draft opinion.
Like other drafts, each draft opinion not proposed for publication is reviewed by the Reporter of Decisions for style, form, language, punctuation, and readability. Thereafter, final modifications are made by the author-judge in consultation with the other panel members. Each opinion is then circulated to judges on the court, who retain the ability to call it into full court conference. If the opinion is not called into full court conference, it is announced as an unpublished decision.
Announcements of the court are made each Thursday. An announcement sheet lists those cases which are published, those which are unpublished, states the disposition of each case and also contains determinations on motions for rehearing.
Announcement of the court's opinions consists of providing copies to all parties, the trial court or agency, the press, and the public. Those opinions selected for official publication are also provided to various publishers, including West, CCH, BNA, LEXIS/NEXIS, L.O.I.S. (a CD-ROM publisher), and The Colorado Lawyer.
The court's opinions selected for official publication (and all opinions of the supreme court) are also available on the Colorado Courts Web Page, located at http://www.courts.state.co.us. Anyone with a personal computer and Internet access may view the opinions.
Staff Attorney Cases
In addition to "sittings" on cases discussed above, each panel is assigned twelve cases per month, with three assigned per week, which are denominated as "staff attorney" cases. These cases are cases that have been assigned to, reviewed, digested by, and a draft resolution tentatively prepared by court staff attorneys. These staff attorneys are attorneys who have practiced law and have developed particular expertise in certain areas of appellate law. The process for these cases is as follows.
The chief staff attorney reviews all cases filed and recommends to the Chief Judge that certain cases be assigned to staff attorneys. The recommendation is based on such factors as the level of difficulty of the issues in the case, the expertise that each staff attorney possesses, and whether the case involves areas in which the law is well settled.
If approved by the Chief Judge, those cases are assigned to staff attorneys. Once an assignment is made, the staff attorney reviews the briefs and the record, conducts appropriate research and prepares a recommended disposition. Thereafter, the briefs, record and proposed disposition are given to a panel member for review.
The assigned judge reviews the briefs, record, and the staff attorney's proposed disposition, conducts research, makes changes or redrafts as he or she thinks appropriate, and tenders the now reviewed and revised draft to the panel for consideration. The panel essentially treats the staff attorney's proposed draft as a PDM, and proceeds to determine the case in the same manner as described above.
When no oral argument is requested on such cases, the staff attorney cases are distributed each Monday and are reviewed the following week by the panel at its division conference. If oral argument has been requested, the cases are added to the other cases assigned, heard in oral argument and determined in division conference.
Per Curiam cases
Because of increasing caseloads, the court has instituted a program to employ per curiam dispositions. A “per curiam” decision is an unsigned opinion. These cases are screened by a group of staff attorneys and are recommended for per curiam disposition because they involve well-settled law and do not present any previously undecided issues. A panel of three judges decides these cases in addition to their regular duties. Per curiam dispositions may be one or two pages long and sometimes may be issued before an answer brief is filed in the case, typically because the appellant is clearly not entitled to any relief. In the last fiscal year, the court issued over 200 per curiam dispositions.
Petitions for Rehearing and Certiorari
After an opinion is announced, the parties may petition for rehearing; however, rehearing petitions are no longer required before certiorari review may be requested from the Colorado Supreme Court under C.A.R. 52. Upon receipt, the petition is circulated to each division member, who reviews it and makes a recommendation. Opinions may be modified or withdrawn, or the petition may be denied.
It is estimated that approximately 10 to 15 percent of the cases decided by the court of appeals are ultimately reviewed by the supreme court. Consequently, the court of appeals is the court of last resort in approximately 85 percent of all cases before it.
Citation of Published and Unpublished Cases
In the fiscal year ending June 30, 2009, the court issued 2063 opinions, of which 269, or 13 percent, were published. Published opinions are to be followed as precedent by trial courts under C.A.R. 35(f). Although C.A.R. 35(e) authorizes affirmance without a written opinion, all cases not settled or dismissed for lack of jurisdiction are currently disposed of by means of a written opinion.
The court has adopted a policy that, with some exceptions, prohibits citation to unpublished opinions in briefs filed before it. Among the reasons for this policy are: (1) under C.A.R. 35, unpublished opinions are not binding precedent; (2) copies of these opinions are generally not accessible by anyone other than counsel and parties to the case itself because they are not in a published database or other compendium; (3) it is unfair to allow those who are able to maintain such a database (e.g. the State Public Defender or the Attorney General) to cite those opinions when they are not generally available to private practitioners, and opinions that are unpublished which could provide grounds for distinguishing the case at bar are likewise not available; and (4) since they are intended only for the parties to the case, many unpublished opinions recite few facts, thus making the rationale for the decision less universally applicable.
The caseload of each judge is significant. The court issues over 2000 written opinions each year, requiring each judge to author 85 to 95 opinions per year, the equivalent of two opinions per week. Senior judges account for approximately 180 opinions per year.
In addition to being responsible for his or her own "authored" opinions, each judge must review all of the briefs in each case in which he or she participates; conduct independent research; discuss the case; author dissenting or concurring opinions if necessary; read other panel members' opinions; and review all draft opinions proposed for publication.
Additionally, each judge strives to remain abreast of Colorado Supreme Court and United States Supreme Court opinions. Consequently, it is estimated that each judge reads about three thousand pages of material per month. Weekend reading is inevitable, and ten to twelve hour workdays are not uncommon.
In addition to his or her judicial duties, judges of the court participate in numerous outside activities related to the legal system. Some of these activities include: (1) service on standing and ad hoc committees of the supreme court including civil and criminal jury instructions, appellate rules, and gender bias; (2) serving on committees of the Colorado and Denver Bar Associations; (3) presiding as judges for moot court competitions on local, state and national levels; (4) serving as trial judges for NITA programs; (5) serving on committees for the State Court Administrator's Office; (6) serving on legislative advisory committees; (7) teaching and writing for various seminars and publications, including continuing legal education programs; and (8) speaking before civic groups and assisting in outreach programs for the public school system.
Each judge on the court operates independently, but within the confines of the structure noted above. The Chief Judge has noted that trying to deal with twenty-one other independent judges "is like trying to herd cats." Nevertheless, the court functions well in disposing of the significant work placed before it.