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Protocols of the Colorado Supreme Court

Protocols and Jurisdiction of the Colorado Supreme Court

by Gregory J Hobbs, Jr.
Justice, Colorado Supreme Court

Revised September 24, 2014

Note: A 1982 article by Justice William H. Erickson summarizes the Colorado Supreme Court's internal operating procedures as they then existed [see 11 The Colorado Lawyer 356 (Feb. 1982)]. A 1996 article by Justice Hobbs describes the workings of the Court from a new Justice’s perspective [see 25 The Colorado Lawyer 31 (Dec.1996)].

This article summarizes current protocols of the Court.

Membership of the Court

The Colorado Supreme Court is comprised of seven justices appointed by the Governor pursuant to Colorado’s merit selection process. Information about the judicial selection and retention process is available at:

http://www.courts.state.co.us/Courts/Supreme_Court/Nominating.cfm

The seven members of the Colorado Supreme Court are Chief Justice Nancy E. Rice; Justice Gregory J. Hobbs, Jr.; Justice Nathan "Ben" Coats; Justice Allison H. Eid; Justice Monica M. Márquez; Justice Brian D. Boatright; and Justice William W.  Hood, III.  Brief biographies of the Justices can be found at:

http://www.courts.state.co.us/Courts/Supreme_Court/Justices.cfm

The Supreme Court’s Jurisdiction and Caseload 

 

The Colorado Supreme Court is Colorado’s appellate court of last resort. The Court has both original and discretionary appellate jurisdiction. Most appeals are initially taken to the Colorado Court of Appeals, or a District Court sitting as an appellate court in a case initially filed in the County Court, with the Supreme Court retaining discretionary jurisdiction to review decisions of that court.  Supreme Court cases are filed with the Clerk of Court, Christopher T. Ryan, whose staff can be reached at 720-625-5150 to answer questions about filing procedures.  The Chief Deputy Clerk of Court is Cheryl L. Stevens.

 

In fiscal year 2014, a total of 1,465 cases were filed with the Supreme Court. Of those, 961 (about two-thirds) were certiorari petitions seeking review of intermediate appellate court (primarily Court of Appeals) decisions. The Supreme Court generally does not grant discretionary review simply to correct an erroneous decision that will affect only the parties to that case. Instead, because the Court’s primary role in reviewing such decisions is to set precedent that develops and clarifies the law on important issues of broad impact, it grants review in a small percentage of cases. The Court has no set number of certiorari petitions it will grant, but it typically grants less than ten percent of the petitions filed each year. In addition to certiorari jurisdiction, the Supreme Court has discretionary jurisdiction to consider original proceeding petitions under Colorado Appellate Rule 21; petitions for habeas corpus review; certified questions from the federal courts; and a number of other proceedings.

 

In addition to its discretionary jurisdiction, the court has direct appellate jurisdiction in certain types of cases, including water cases, Public Utility Commission cases, cases in which the trial court has declared a statute unconstitutional, death sentence cases, attorney discipline cases, interlocutory appeals by the prosecution from suppression orders in criminal cases; initiative ballot titles set by the Title Setting Board, election cases, and other cases that bypass the Court of Appeals by law. An appendix outlining sources of the Supreme Court’s discretionary and direct appeal jurisdiction appears at the bottom of these protocols.

 

The Supreme Court issued 88 written opinions in 2014; it resolved the rest of its caseload by order of the court issued through the Clerk of Court.

The Role of the Chief Justice, Committees, Supreme Court Staff

The Chief Justice, selected by the other justices, is the executive head of the Colorado Judicial Branch and is the leader in its administration. In this capacity, the Chief Justice manages a $380 million budget and oversees approximately 3,500 employees of the Supreme Court, Court of Appeals, State Court Administrator’s office, and twenty-two judicial districts.  Reporting directly to the Chief Justice are the Clerk of the Supreme Court and Court of Appeals, Christopher T. Ryan, and the State Court Administrator, Gerald A. Marroney.  Kristen C. Burke is the Counsel to the Chief Justice, and Sonya A. Stromberg serves as Judicial Assistant to the Chief Justice.

The Chief Justice has authority to issue Chief Justice Directives pertaining to matters of judicial administration.  The Chief Justice presides over quarterly meetings of the Chief Judges of the twenty-two judicial districts to discuss matters concerning the administration of justice. The Chief Justice also presides over all conferences, oral arguments, and hearings of the Court; assigns all opinions for authorship; and designates, in consultation with the Court, which justice or justices will serve as liaison to the various committees and special committees of the Court.

Supreme Court committees include the Attorney Regulation Advisory Committee; the Appellate Rules Committee; Board of Law Examiners; Civil Rules Committee; Criminal Rules Committee; Chief Justice Commission on Professional Development; Family Issues Committee; Judicial Advisory Council; Rules of Professional Conduct Standing Committee; Judicial Ethics Advisory Board; and Water Court Committee, among others.  A complete list of the committees of the Court can be found at:

http://www.courts.state.co.us/Courts/Supreme_Court/Committees/Index.cfm.

In addition, the Supreme Court and the Colorado Bar Association have jointly established the Access to Justice Commission.  The Court maintains a publically available pro bono legal services law firm commitment and recognition list at:

http://www.courts.state.co.us/Courts/Supreme_Court/Pro_Bono.cfm

Each justice has three full-time law clerks who provide legal and administrative support. The law clerk responsible for the administrative management of chambers is called the judicial assistant. Law clerks are typically recent law school graduates who serve one to two year terms.  The Court has two long-term staff attorneys, Christine A. Markman and Melissa C. Meirink, who provide legal research and guidance to the Court as a whole and, in particular, assist with research and analysis of certiorari, habeas corpus, and original proceeding petitions.  A third staff attorney, Andrew J. Field, works with Justice Coats and a blue-ribbon committee of judges revising Colorado’s criminal jury instructions.

The Court uses its homepage to post matters of interest to the public and the bar on the Internet, such as rule changes, Chief Justice Directives, certiorari grant or denial announcements, and opinions of the Court. On Friday mornings from September through June, the “Case Announcements” page lists the names of the cases for which opinions will be issued the following Monday morning.

http://www.courts.state.co.us/Courts/Supreme_Court/Index.cfm

Oral Argument, Case Assignment, and Decision-Making

The Supreme Court works collegially. During the typical week, there is much visitation and informal discussion among the justices on all matters pending for decision. The Court has a twelve-month work year. From September through June (except during a two-week Christmas break, one week spring break and during oral argument week) the justices meet each Thursday in conference to decide all pending matters that are ready for vote. During July and August, the Court does not hold weekly conferences or issue opinions. During this time, the justices write proposed opinions they have not yet presented to the Court for review; attend educational conferences; take their vacations; and vote electronically on pending certiorari petitions and original proceedings.

The Court typically schedules seven oral argument calendars between September and June, with each calendar lasting two or three days. All oral arguments are open for the public to attend. After oral argument, the justices deliberate and the Chief Justice makes opinion drafting assignments based on the preliminary vote in each case, which is taken after all the cases set on a calendar have been heard.  Oral arguments are electronically recorded and may be heard at:

http://www.courts.state.co.us/Courts/Supreme_Court/Oral_Arguments/Index.cfm

The Court also decides cases submitted on the briefs without oral argument, such as interlocutory appeals from suppression orders in criminal cases; review of constitutional or statutory citizen initiative ballot titles set by the Secretary of State's hearing board; original petitions when a Rule to Show Cause has been issued by the Court; and attorney discipline cases.

Generally, four affirmative votes of the seven justices are required to decide any matter coming before the Court, except for the grant of a certiorari petition, which requires only three votes.  However, one or more justices may decide not to participate in connection with a particular case.  If only an even number of justices is participating in a case, a tie vote of the justices results in the decision of the court being reviewed affirmed by operation of law, without opinion.

During one fall and one spring oral argument calendar, the Court convenes at a high school for oral argument in two cases. Volunteer attorneys meet with teachers to help prepare the students in advance for the arguments they will witness. Justices return after oral argument to answer questions, except questions concerning the merits of the cases just argued or other matters pending for decision before the Court.

Thursday Decisional Conference

The Court's weekly decisional conference is called to order at 9:00 a.m. each Thursday morning. Each justice is expected to attend or, if absent, must leave a vote sheet for all pending matters ready for decision. The Chief Justice presides and votes are taken, proceeding from junior to senior justice, with the Chief Justice voting last. When rendering the vote, each justice recites his or her reasons for the decision. Any justice may request a matter to be passed to the next conference for a vote, and, instead, the present conference may be used for discussion of the case instead. Passing a matter is a courtesy asked by one justice of the others; a justice's request to pass the case for vote at a future conference is always honored.

The order of business for vote at the Thursday conference is as follows: decision on proposed final opinions; petitions for rehearing on issued opinions; cases submitted on the briefs without oral argument, followed by assignment of the opinion by the Chief Justice to one of the justices; grant or denial of certiorari petitions; grant or denial of petitions in original proceedings for a Rule to Show Cause under C.A.R. 21 that have not otherwise been voted on during the week; and administrative matters, including rule changes and any other matter concerning governance of the Court or the Judicial Branch. Sometimes, the Court acts to dismiss a certiorari granted matter as "improvidently granted" because the Court, on reflection, determines that the lower court decision should remain without further review.

Decisions of the Court on cases and certiorari petitions are announced the Monday following the Thursday decisional conference by means of an electronic announcement sheet and issued opinions. While the full text of opinions is posted on the website on Mondays, the case numbers and case captions of opinions to be issued on Mondays are posted the preceding Friday. The newly issued announcements and opinions are available on the internet at the Supreme Court’s homepage at:

http://www.courts.state.co.us/Courts/Supreme_Court/Case_Announcements/Index.cfm

Original Petitions/Duty Judge

Original petitions under Colorado Appellate Rule 21 may be filed with the Clerk of the Court and decided by the court at any time. Granting review of an original petition, which results in the issuance of an order to show cause, is within the sole discretion of the Court, and rarely occurs. In fiscal year 2014, 250 original petitions were filed with the Court. The Court issued an order to show cause in only 8 of them.

At least four justices must agree to issue such an order, the effect of which is to stay all proceedings in the court below. When received, the clerk of the court assigns review of a petition filed by an attorney to one of the seven justices, in random rotation.  Petitions filed by persons not represented by counsel are first reviewed by a staff attorney who makes a grant or deny recommendation to the court. The assigned justice reports on the petition for vote, with his or her grant or deny recommendation, to the other justices by internal email communication, at an in-person ad hoc conference of the Court called by the assigned justice at any time, or at the Thursday conference. The assigned justice may but is not required to issue a short-term stay or other temporary order pending the Court’s decision on the petition, upon the petitioner’s motion.

There is a monthly Duty Judge assigned in rotation by the Chief Justice to rule on matters brought to that justice by a staff attorney or the Clerk of the Court, such as motions for amicus curiae appearance, extensions of time, or extended-page briefing.

Certiorari Petitions

Based on the briefs and issues raised and the guidelines set forth in Colorado Appellate Rule 49, the staff attorneys separate out approximately half of the certiorari petitions for circulation and decision without preparation of a certiorari memorandum (“non-memo Certs”). Each justice reviews the intermediate appellate court’s decision, together with the certiorari petition and any response thereto, and votes on whether to deny the petition or request preparation of a certiorari memorandum before a vote is taken.

The other certiorari petitions and those extracted from non-memo consideration by any justice are delivered in random rotation by the Clerk to the seven chambers. The assigned justice, in turn, then assigns a law clerk to prepare a certiorari memorandum on the case. The assigned justice reviews the certiorari petition, any response thereto, and the memorandum, makes any desired change to the memorandum, and circulates the memorandum along with the underlying appellate court’s opinion to the other six justices, noting on the face of the memorandum the recommendation of the assigned justice regarding which issues, if any, should be taken on certiorari.

Votes of three justices are required to accept a case on certiorari review. The order granting a petition will specify the issues taken for review and those issues for which review is denied. To be voted on at the weekly Thursday decisional conference, certiorari memoranda must be circulated to all the justices by the preceding Friday. During July and August, each justice’s vote is entered on an electronic vote sheet.

Proposed Opinions

Newly proposed majority opinions must be circulated by the authoring justice to the other six justices by 5:00 p.m. Thursday afternoon. Each justice may propose only one new opinion for the next Thursday conference. By noon on Tuesday, all seven justices make known to each other whether they intend to concur with or dissent from a proposed majority opinion that has been scheduled for vote at the Thursday conference. Any justice has until Tuesday at 5:00 p.m. to propose a written concurrence or dissent. The vote on the proposed majority opinion and concurring or dissenting opinions that are ready for vote occurs at the Thursday conference. Any justice, including the authoring justice, may request that the vote be passed to the following week’s conference in favor of a discussion of the matter at the pending conference, or because the justice needs more time to consider the matter or to write a concurring or dissenting opinion.

A majority opinion does not argue with a concurring or dissenting opinion; instead it is written to stand on its own. Each justice works to review the proposed opinions of the other justices as a first priority in dealing with pending work. When disagreement between justices occurs on any matter, they confer with each other concerning the disagreement, to the extent possible, before conference. This process results in changes to proposed opinions that are circulated to all of the justices. An opinion that has received a majority vote at the weekly decisional conference is prepared in final slip opinion form, together with any concurring or dissenting opinion, by noon on Friday. The authoring justice's law clerk or judicial assistant is responsible for copying and assembling the required copies for the Clerk’s Office by noon on Friday for distribution upon announcement Monday morning. Each issued opinion is accompanied by a cover page synopsis of the case prepared by the authoring justice.

A justice may determine not to participate in any decision upon considering the Canons of Judicial Conduct. An opinion or order of the Court will identify any justice who is not participating.  A non-participating justice need not explain the reason for not participating.

Judicial Nominating Commissions

 

The Chief Justice chairs, ex-officio, the statewide Judicial Nominating Commission that selects up to three candidates for each vacancy that occurs periodically on the Supreme Court and Court of Appeals. The other six justices take turns in chairing, ex officio, the twenty-two Judicial District Nominating Commissions that select up to three candidates for each vacancy that occurs periodically for district court and county court judgeships. In fiscal year 2014, the justices as a whole chaired twenty-two nominating commission sessions. These involved nineteen vacancies at the Judicial District level; two for the Court of Appeals; and one for the Supreme Court. More information regarding the judicial nominating process is available at:

 

http://www.courts.state.co.us/Courts/Supreme_Court/Nominating.cfm

 

Under the Colorado Constitution, the City and County of Denver has its own nominating commission process for Denver County Court judges.

Supreme Court Law Library and Learning Center

Led by Daniel B. Cordova, the Supreme Court Law Library serves judges, lawyers, staff, and members of the public.  It specializes in issue-specific legal research and the historical verification of facts, including legal developments and their publication in all formats. Additionally, it manages the Learning Center for the Court, which adds community-related civics education and museum curation to the library’s responsibilities.

 

The library is a team of eight persons, all with advanced professional degrees: six lawyers (five of whom also have a Master’s degree in Library Science); a librarian classically trained in Latin; and, most recently added, an appellate self-represented litigant coordinator certified in mediation and experienced in domestic and family law matters.  This coordinator assists by answering questions from unrepresented litigants from any jurisdiction; the majority of inquiries relate to appeals. The library staff is prohibited from giving legal advice.

 

The Learning Center’s interactive displays invite all our visitors to meet judges who are engaged in the daily work of the courts. Students and teachers can participate in a simulated trial and learn how turning injustice towards justice, an increment at a time, occurs within our constitutional form of government in all three branches of the United States (federal) and Colorado (state) systems. The link for making appointments to visit the Learning Center is:

 

https://www.colorado.gov/pacific/cjlc/book-tour

 

Conclusion

The Court’s work is multi-faceted. Each justice plays a direct role in all decisions of the Court, unless the justice has determined that he or she should not participate in any particular matter. Upon invitation, justices often participate in civic education programs.

Appendix:

 

Outline of Colorado Supreme Court’s Jurisdiction in Constitution, Statutes, and Rules

 

Colorado Supreme Court Jurisdiction, Colo. Const. Art. VI,

Secs. 1 & 2 (appellate jurisdiction); Secs. 1 & 3 (original jurisdiction)

 

Certiorari Review, Colo. Const. Art. VI, Secs.  1 & 3.

Court of Appeals: after judgment, C.A.R. 49(a)(2)-(4);

before judgment, C.A.R. 50

 

District Court Judgment on Review of County Court,

C.R.S. 13-4-102(1)(f); C.A.R. 49(a)(1)

 

Original Proceedings, Colo. Const. Art. VI, Secs. 1 & 3:

Habeas Corpus;

All Writs, C.A.R. 21;

Certification of Question of Colorado Law from Federal Court, C.A.R. 21.1;

Solemn Occasion Question by Governor or General Assembly

 

Direct Appeal, C.R.S. 13-4-102(1)(b)-(h); Colo. Const. Art. VI, Sec. 2.

Cases in which a statute, a municipal charter provision, or an ordinance have been declared unconstitutional, C.R.S. 13-4-102(1)(b);

Public Utilities Commission District Court Judgment Review, C.R.S. 13-4-102(1)(c);

Water Court Judgment Review, C.R.S. 13-4-102(1)(d);

Habeas Corpus Judgment Review, C.R.S. 13-4-102(1)(e)

Election Official Controversy Judgment Review, C.R.S. 13-4-102(1)(g); C.R.S. 1-1-113(1);

Municipal Election Contest Review, C.R.S. 31-10-1305;

Initiative Ballot Title Setting Review, C.R.S. 1-40-107((2);

Death Penalty Judgment Review, C.R.S. 13-4-102(1)(h);

State Reapportionment Commission Plan Review, Colo. Const. Art. V, Sec. 48(1)(e);

Congressional Reapportionment Judgment Review, C.R.S. 2-1-102 (by C.A.R. 50 transfer from Court of Appeals);

Attorney Discipline Judgment Review, C.R.C.P. 251.27:

Interlocutory Appeal, Suppression Order Criminal Cases,

C.A.R. 4.1

 

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