by Gregory J Hobbs, Jr.
Justice, Colorado Supreme Court
Revised January 26, 2012
Note: A 1982 article by Justice William H. Erickson summarizes the Supreme Court's internal operating procedures as they then existed [see 11 The Colorado Lawyer 356 (Feb. 1982)]. A 1996 article describes the workings of the Court from a new Justice’s perspective [see 25 The Colorado Lawyer 31 (Dec.1996)]. This article summarizes protocols of the current Court.
Membership of the Court
The current members of the Colorado Supreme Court are Chief Justice Michael L. Bender; Justice Gregory J. Hobbs, Jr.; Justice Nancy E. Rice; Justice Nathan "Ben" Coats; Justice Allison H. Eid; Justice Monica M. Márquez, and Justice Brian D. Boatright.
The Role of the Chief Justice and Staff to the Justices
The Chief Justice is the executive head of the Colorado Judicial Branch and is the leader in its administration. In this capacity, the Chief Justice oversees a staff of approximately 3500 judges, court and probation employees across the state of Colorado with an annual budget of $380 Million. The State Court Administrator, who is appointed by the Court, reports directly to the Chief Justice and oversees an administrative staff.
The Chief Justice is elected by the Justices and serves at the pleasure of the Court. In addition to administrative responsibility for the entire court system, the Chief Justice 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 shall serve as liaison to the various committees and special committees of the Court. These committees include the Civil Rules Committee, the Criminal Rules Committee, the Appellate Rules Committee, Attorney Regulation Advisory Committee, Board of Law Examiners, the Chief Justice Commission on the Legal Profession and the Judicial Advisory Council, among others. The Supreme Court and the Colorado Bar Association have jointly established the Access to Justice Commission.
The Chief Justice has authority, in consultation with the full Court, to issue Chief Justice Directives pertaining to matters of judicial administration. As part of the responsibility as the executive head of the judicial branch, the Chief Justice presides over quarterly meetings with the Chief Judges of all judicial district across the state to discuss matters concerning the administration of justice.
The Chief Justice is assisted by Sarah Clark who serves as Counsel to the Chief Justice. In this position, she serves as general counsel and is responsible for handling liaison, administrative, and legal functions for the Chief Justice.
The Court works collegially. During the typical week, there is much visitation and informal discussion among the Justices on all matters pending for decision. Each Justice has three full-time staff members who provide law clerk and administrative support.
The Court currently has two staff attorneys, Christine Markman who provides general legal research and guidance to the Court and Andrew Field who is working with Justice Coats and a blue-ribbon committee of judges to revise Colorado’s criminal jury instructions.
The Supreme Court Library is available to the judiciary, the legal profession, and the public for legal research. In addition, the judiciary has a master contract for electronic research.
The Court uses the Supreme Court Homepage, www.courts.state.co.us/Courts/Supreme_Court/Index.cfm, 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 Fridays from September through June, the web page contains an announcement of the names of the cases for which opinions will be issued the following Monday morning.
Case Decisions and Other Matters
Approximately 64 percent of the Court’s caseload represents appeals from the Colorado Court of Appeals. The Court receives and reviews over 900 certiorari petitions each year concerning decisions rendered by the Court of Appeals. The Court has no set number of certiorari petitions it will grant, but generally averages a grant on approximately one out of fourteen certiorari petitions. Under C.A.R. 50, the Court may grant certiorari in a case that is pending but has not gone to decision in the Court of Appeals. This power is rarely exercised.
The Court also reviews original proceeding petitions under C.A.R. 21; petitions for habeas corpus review; interlocutory appeals by the prosecution from suppression orders in criminal cases; ballot title submissions; attorney discipline cases; certified questions from the federal courts; and direct appeals, such as water cases, Public Utility Commission cases, cases in which the trial court has determined a statute to be unconstitutional, capital punishment and other cases that bypass the Court of Appeals by law. In FY 2011, the Court decided a total of 1,440 matters that included denial of certiorari and Rule 21 petitions. The court issued 98 published opinions.
Oral Argument and Case Assignment
The Court has a twelve-month work year. However, 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 by written vote sheet on pending certiorari petitions, and original proceedings. From September to 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.
Oral arguments are held approximately seven times a year for two or three days during the period of September through June. Oral arguments are open to the public. The Chief Justice makes opinion drafting assignments based on the preliminary vote in the case, which is taken after the oral arguments in the morning and, again, when the afternoon arguments have been concluded. Oral arguments are recorded and may be listened to at http://www.courts.state.co.us/Courts/Supreme_Court/Oral_Arguments/Index.cfm on the Colorado Judicial Branch webpage.
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.
The Court sits en banc. 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 three votes. However, one or more justices may decide not to participate in connection with a particular case.
Twice a year the Court convenes at a high school for oral argument in two cases. Members of the bar association 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 (September through June) 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 therefore. Any Justice may request a matter to be passed to the next conference for a vote, and 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; attorney discipline cases for assignment and preparation of an opinion; 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 to let the lower court decision stand.
Decisions of the Court on cases and certiorari petitions are announced the Monday following the Thursday decisional conference by means of an announcement sheet and issued opinions, all of which are made available at the Clerk’s Office in hard copy. 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 www.courts.state.co.us/Courts/Supreme_Court/Index.cfm and the Colorado Bar Association homepage www.cobar.org/ors.cfm.
Ad Hoc Conferences on Original Petitions/Duty Judge
Original petitions under C.A.R. 21 are assigned to each of the seven chambers in rotation by the Clerk of the Court, Christopher Ryan. The assigned Justice reports on the matter, with his or her recommendation, at the regular Thursday decisional conference, by internal e-mail communication to all of the other justices, or a Justice may call an in person ad hoc conference of the Court if the petition merits immediate action. At least four Justices must agree in order to issuance of a rule to show cause in an original proceeding under C.A.R. 21. An individual Justice may issue a short-term stay or other temporary order pending the Court’s decision on the petition.
There is a monthly Duty Judge assigned by the Chief Justice, in rotation, to rule on matters brought to that Justice by the Clerk of the Court, such as motions for amicus curiae appearance, extensions of time, or extended-page briefing. The Duty Judge may act on any matter requiring immediate attention when the other Justices are not available.
Based on the briefs and issues raised and the guidelines set forth in C.A.R. 49, the staff attorney to the Chief Justice separates out approximately half of the certiorari petitions for circulation and decision without preparation of a certiorari memorandum. Each Justice reviews the Court of Appeals decision (whether published or not published), together with the certiorari petition and any response thereto, and may request preparation of a certiorari memorandum before a vote is taken. The Justices vote on "non-memo cert." petitions by means of vote sheets maintained in the Clerk’s Office.
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 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 and the Court of Appeals 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 grant any issue by way of certiorari. When certiorari is granted on one or more issues in a case, the certiorari memorandum usually serves as the bench memorandum for oral argument. Pending certiorari petitions are decided at the weekly Thursday decisional conference, except during July and August when each Justice's vote is entered on a written vote sheet kept in the Clerk’s Office.
Proposed majority opinions must be circulated by the authoring Justice to the other six Justices by 5:00 p.m. Thursday. Any Justice has until the following Tuesday at 5:00 p.m. to propose a written concurrence or dissent. Generally, before a Justice presents a concurrence at a decisional vote conference, that Justice confers with the authoring Justice regarding potential revisions in the proposed majority opinion to accommodate the concurring view, if possible. A majority opinion does not argue with a concurrence or dissent; instead it is written to stand on its own.
The vote on the proposed majority opinion and concurring or dissenting opinions, if any, occurs on the following Thursday. Any Justice, including the authoring Justice, may request that the vote be passed to the next 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 justice may determine not to participate in an opinion, under the Code of Judicial Conduct. An opinion or order of the Court will identify any justice who is not participating.
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, it is becoming the practice that the Justices will confer concerning the disagreement, to the extent possible, before conference. Every change to a proposed opinion must be circulated to the other six chambers.
A majority opinion that has received at least four votes at the weekly decisional conference is prepared in final slip opinion form, together with any concurring or dissenting opinion, by Friday noon. The authoring Justice's law clerk or judicial assistant is responsible for copying and assembling the required copies for the Clerk’s Office by Friday noon for distribution upon announcement Monday morning. Each issued opinion is accompanied by a cover page synopsis of the case prepared by the authoring Justice.
Governance of the Judicial Department/ Community Outreach
The Court is responsible for governance of the Judicial Department, and each Justice is active, by assignment by the Court, on various committees and in bar association activities. The current committees and assigned justices are indicated below:
Committee Name Chair
Attorney Regulation Advisory Committee of the Supreme Court Justice Coats and Justice Márquez
Board of Continuing Legal Education Justice Coats
Board of Law Examiners Justice Coats
Chief Justice Commission on the Legal Profession Chief Justice Bender
Civil Rules Committee Justice Rice
Colorado Access to Justice Commission Justice Hobbs
Colorado Attorneys' Fund for Client Protection Justice Coats
Fairness and Diversity Committee Chief Justice Bender
JBITS Standing Committee Justice Márquez
Judicial Advisory Council Justice Hobbs
Judicial Discipline Commission Chief Justice Bender
Judicial Ethics Advisory Board Chief Justice Bender
Plain Language Jury Committee Justice Boatright
Model Criminal Jury Instructions Committee Justice Coats
Office of Dispute Resolution Advisory Committee Justice Eid
Our Courts Program Justice Rice
Pattern Civil Jury Instructions Committee Justice Rice
Planning and Analysis Standing Committee Justice Eid
Probation Advisory Committee Justice Márquez
Public Access Committee Justice Márquez
Rules of Appellate Procedure Committee Justice Rice
Rules of Evidence Committee Justice Coats
Rules of Professional Conduct Standing Committee Justice Coats and Justice Márquez
Standing Committee on Family Issues Justice Eid
Unauthorized Practice of Law Committee Justice Coats
Water Court Committee Justice Hobbs
In addition, each Justice engages in discretionary community activities subject to the Judicial Canons. All members of the Court are engaged in educational activities of their choosing.
Judicial Nominating Commissions
Each district judicial nominating commission is chaired by an associate justice of the Supreme Court, who is a non-voting member of the commission; the Chief Justice serves as the ex-officio chair of the state commission who selects candidates for vacancies on the Supreme Court and Court of Appeals. In Calendar Year 2011, associate justices chaired nominating commission meetings in 11 of the state’s 22 judicial districts to select nominees for 14 judicial vacancies; and the Chief Justice chaired the state commission to select the nominees to replace Justice Alex Martinez who retired in October of 2011.
The Court’s work lies not only in deciding cases, but also in the overall administration of justice and the judicial system in Colorado. 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 a proceeding because of the standards set forth in the Code of Judicial Conduct.
Colorado Supreme Court Jurisdiction, Colo. Const. Art. VI, Secs. 1 & 2 (appellate jurisdiction) Secs. 1 & 3 (original jurisdiction)
Outline by Justice Greg Hobbs
Certiorari, 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:
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