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Home Courts Court of Appeals Protocols
Protocols

This article provides an overview of the Colorado Court of Appeals: the people involved, how a case moves through the court, and other details about the court’s caseload and responsibilities.

Who We Are

Judges and Staff

The Colorado Court of Appeals currently consists of twenty-two judges including the Chief Judge.

When a judge position opens on the court, candidates apply. A judicial nominating commission selects three candidates and passes these names on to the governor. The governor appoints one of the three.

Approximately two years after a judge is appointed, a judicial performance commission reviews the judge’s work, interviews the judge, and suggests whether the judge’s performance meets the necessary standards. The people of Colorado vote on retention in the general election. After this first review, the performance commission reviews each judge every four years and makes a voter recommendation every eight years.

The Chief Justice of the Colorado Supreme Court selects one judge to serve as the Chief Judge. The Chief Judge develops court policies, works on budget issues, manages facilities, and supervises all staff. He or she is also involved in reviewing cases and writing opinions, often substituting for recused judges and sitting on panels with senior judges.

Each judge hires two support staff, who are usually law clerks, although a judge may hire one administrative assistant instead of a law clerk. Each law clerk is a confidential employee and serves at the pleasure of the judge. Law clerks usually work in these positions for one or two years, although some work for their judge indefinitely. These clerks take a number of classes each year to learn about writing, legal topics, and their administrative duties.

Nine senior judges currently work for the court. They sit on cases with the Chief Judge or substitute for other judges who are recused or otherwise unable to participate on a case.

Clerk of the Court

The clerk of the court has a combined staff of about thirteen employees. These employees make sure the court runs smoothly: receiving pleadings, issuing out orders, announcing cases, managing dockets, and organizing case files.

Staff Attorneys

The Reporter of Decisions and Assistant Reporter of Decisions are both attorneys with excellent editorial skills. They are responsible for editing all of the cases announced by the court.

The court employs nineteen full-time Staff Attorneys and a small support staff. These Staff Attorneys are individuals who have practiced law and have developed particular expertise in certain areas of appellate law. They draft PDMs for divisions, as more fully described below.

The court also employs three Motions and Jurisdiction Counsel. They review and rule on many routine motions, present more complex motions to one or three judges for resolution, and screen cases to ensure the court has jurisdiction under section 13-4-102, C.R.S. 2016. Motions and Jurisdiction Counsel may issue orders to “show cause” directing the parties to address potential jurisdictional issues. 

In all, the court employs about 102 staff, including judges.

Location

The court is located in the Ralph L. Carr Colorado Judicial Center, which opened in December of 2012.

Filing Statistics

Cases begin their life in the court when a party files a notice of appeal. Parties filed 2239 new cases in the fiscal year ending June 30, 2016, which included about 915 criminal cases, 882 civil cases, 205 agency cases, and 237 juvenile cases. The civil cases included domestic, probate and agency cases. The number of total filings is down about 8% from the previous fiscal year.

Jurisdiction and Motions

After a party files a notice of appeal, the case moves through a few preliminary stages.

As noted, the Motions and Jurisdiction Counsel screen new cases for jurisdictional issues.

Parties also may file motions. Again, the Motions and Jurisdiction Counsel review and process these motions for resolution.

A panel of three judges serves as a “motions division” and will decide any dispositive motions. The membership of this panel rotates every month.

After parties file briefs, the law clerks screen the briefs to ensure that they comply with the court’s formatting rules. The law clerks rotate these screening duties every month.

 

Recusal Review

Once a case is fully briefed, it becomes “at issue.”   The clerk’s office circulates at-issue sheets to all judges. These sheets contain the case number; the names of the parties, attorneys, and participating trial court judges; and the court, agency, or tribunal from which the appeal originates.  Each judge reviews the “at-issue” sheets to determine if he or she must recuse based on the Code of Judicial Conduct.

Divisional Nature of the Court

After a case has been checked to ensure the court has jurisdiction, any appropriate motions have been ruled on, and all of the briefs have been filed, the clerk’s office randomly assigns it to a “division.”

A “division” is a three-judge panel that serves together for four months. The Chief Judge assigns these divisions, with the approval of the Chief Justice. § 13-4-106, C.R.S. 2016. The goal is to rotate assignments so that each judge sits with every other judge within a two-and-a-half to three year period.

All the divisions function independently from each other, similar to the way the federal circuits function in the federal system; however, the court is not authorized to sit en banc.

Each division decides its cases in light of its own interpretation of binding and persuasive authority. But divisions are not bound by the decisions of another division. That is, although judges recognize the importance of deference to earlier decisions, each division may view the law differently and issue a conflicting decision.

Conflict between division decisions is one reason the Colorado Supreme Court may grant certiorari. C.A.R. 49(a)(3).

Case Assignments

As noted, the clerk’s office assigns cases randomly, not attempting to match cases with any particular division or judge. Because of this, judges see a wide variety of cases. This random assignment helps attract qualified applicants for judicial vacancies and, because contact with lawyers and the public is limited, helps avoid burnout by engaging judges’ intellectual curiosity. The process of random selection also ensures that a diversity of ideas from the varied backgrounds of the judges will inform a division’s decision.

The most senior judge among the division members serves as the presiding judge, and seniority is based on the length of time each judge has served on the court. After cases are assigned to the division, the presiding judge makes assignments within the division, and directs authorship of opinions; however, authorship is typically assigned on a random basis.

Staff Attorney Case Assignments

The Chief Staff Attorney reviews all cases filed and recommends to the Chief Judge that certain cases be assigned to Staff Attorneys. This 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 settled.

Once assigned a case, the Staff Attorney reviews the briefs and the record, conducts appropriate research, and prepares a “predisposition memorandum,” or PDM.  The case is then assigned to a division.

Sittings

Each division meets about every two weeks to decide orally argued and waived cases, which are assigned by the clerk’s office. The clerk’s office normally assigns seven cases for each sitting, including three or four cases set for oral argument.

The clerk’s office schedules these “sittings” approximately five to six weeks in advance. The clerk’s office notifies parties of the date set for oral argument and indicates how conflicts in scheduling are to be handled. The clerk’s office does not notify parties of the date waived cases will be set, although parties may request this information from the clerk’s office.

In addition to these sittings, the clerk’s office assigns to each division nine to twelve Staff Attorney cases per month, with three assigned per week. These are cases for which the Staff Attorneys draft tentative opinions. Each division normally decides these cases on Wednesday mornings in a separate sitting.

Case Adjudication

PDMs

Once a case arrives on the assigned judge’s desk, he or she prepares a “predisposition memorandum,” or PDM, directed to the other two panel members.

The judge, with the assistance of his or her law clerks, drafts the PDM after reviewing the briefs, pertinent law, and the record. Each chambers typically writes PDMs in draft opinion form with a proposed disposition of the case.

Each judge is responsible for drafting at least two PDMs for each sitting, and the authoring judge circulates the PDM to the other division members no later than the Friday before the scheduled sitting. Generally, a Staff Attorney also drafts one case that is assigned to this sitting, and the judges take turns editing and announcing this case. Thus, each judge and his or her chambers prepares two to three PDMs every two weeks. This means that each judge, after completing his or her PDMs, is also responsible for reading the briefs, pertinent law, and, if necessary, portions of the record in four to five other cases every two weeks. When the judges prepare for oral argument, the PDM serves to provide insight and to focus questions for each division member. When oral argument is waived, the PDM serves a similar function for discussion in conference.

Staff Attorney PDMs

The Staff Attorney drafts a PDM for the case that is assigned to the regular division, and to the cases set for a Wednesday division. The judge decides the case in the same manner described above: reading the briefs, pertinent law, and the record, conducting independent research, and then reviewing the Staff Attorney’s proposed draft. The judge then makes changes he or she thinks appropriate, and sends the revised draft to the other division members for consideration.

Oral Arguments

Judges look forward to oral argument; it is a chance to meet with attorneys and discuss the law.

Attorneys for either side may request oral argument. These requests are routinely granted, although the division may, in its discretion, deny such a request. The division also may order a case be orally argued, even though a party did not request oral argument.

Before oral argument, each judge usually formulates questions to ask the attorneys. In some cases, a division may send pre-argument questions to the attorneys.

The court consistently aims to make oral arguments more accessible to the public. The court now streams oral arguments live. The link to watch the arguments is accessible from the court’s homepage. The court also archives the arguments so the public may watch or listen to them later. Video files are available on the court’s website going back to December of 2014; audio files are available going back to 2005.

Conference

On the day of the scheduled sitting, usually immediately after oral arguments, the division meets in “conference” to discuss all of the cases assigned for that sitting, including waived cases. If the division reaches consensus on a case, they confirm authorship, and the case continues towards announcement. If they cannot reach consensus, the judges may decide to discuss it again at a later division conference. These cases may require additional research, further record review, or supplemental discussion before the panel reaches a decision.

All PDMs are tentative, as is authorship. The PDM may form the basis of the majority opinion. But it may represent a dissenting view, if the other two judges disagree with it, in which case one of the remaining two division members will author the majority opinion. It is not uncommon for all division members to disagree with at least part of the PDM; the initial author-judge may then prepare one or more revised drafts before a draft is acceptable to the other members of the division.

Division Conference

Nearly every Wednesday, each division will meet to discuss staff attorney cases, cases that were held over from prior division conferences, and any other outstanding issues.

Cases Proposed for Publication

Why Publish?

During conference, the division also discusses whether a draft opinion merits publication. Colorado Appellate Rule 35(e) provides that a case should be published when the opinion: (1) lays down a new rule of law, alters or modifies an existing rule, or applies an established rule to novel facts; (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 indicate possible publication and state the grounds for such when he or she circulates the PDM to the other division members. If the division agrees that the opinion merits publication, the opinion will be circulated to the full court for a majority vote.

Full Court Review and Conference

A majority of the twenty-two judges reviews every draft opinion circulated for publication. During this review, the judge may conduct additional research, determine whether the opinion merits publication, and offer suggested edits to the opinion. The authoring judge receives a comment sheet, which records the reviewing judge’s publication vote and comments. These comments may be substantive or editorial. Votes on publication and comments are circulated to the full court the Monday before the next full court conference, which is held on alternating Thursdays.

Each judge has the power to call any draft opinion “into conference.” This means that the judge can request a full discussion of the opinion at the full court conference based on the opinion’s content, based on the opinion’s apparent conflict with prior decisions, or for any other reason.

Before full court conference, any judge calling a case into conference typically discusses his or her concerns with the author judge. At that time, the judges may discuss proposed changes, which, after further discussion with the other division members, may obviate the need for discussion at full court conference.

Any opinion receiving a majority vote for publication will be published, unless it is withdrawn before or during full court conference. The author judge and the rest of the division 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.

Unpublished Cases

Draft opinions that do not meet the requirements for publication are announced as unpublished cases. For these cases, the authoring judge, incorporating the views of the other division members, submits the draft opinion to the Reporter and Assistant Reporter of Decisions. They review each opinion for style, form, language, punctuation, and general readability. The authoring judge then reviews suggested edits from the Reporter and Assistant Reporter of Decisions, and if they are substantive, the other division members will also review them. The authoring judge then finalizes the draft opinion.

Announcements

The court announces cases every Thursday, but only announces published cases every other week. An announcement sheet lists which cases are published and which are unpublished, states the disposition of each case, and lists determinations on motions for rehearing.

When the court announces opinions, it provides copies of the opinion to all parties, the trial court or agency, the press, and the public. Opinions selected for official publication also are provided to West Publishing and The Colorado Lawyer.

All opinions of the Colorado Court of Appeals are also available on the Colorado Courts Web Page, located at http://www.courts.state.co.us.

Petitions for Rehearing and Certiorari

After the court announces an opinion, the parties may petition for rehearing. Petitions for rehearing state whether the opinion misapprehended the law or facts of the case. The clerk’s office circulates a petition for rehearing to each division member, who reviews it and makes a recommendation. The division may grant the petition and withdraw the opinion deny the petition, or deny the petition with minor modifications to the opinion.

In approximately one third of the cases decided by the court, one of the parties petitions the Colorado Supreme Court to review the case. Historically, the supreme court only grants review in about 6% of these petitions. Petitions for rehearing are no longer required before a party seeks certiorari review in the supreme court. C.A.R. 52.

Workload

The workload of the court and of each judge is significant. In the fiscal year ending June 30, 2016, the court resolved 2466 cases (more than the number of cases filed), including written opinions issued and dismissals due to settlement or lack of jurisdiction. The judges of the court issued 1723 opinions, requiring each judge to author about 80 opinions per year.

In addition to being responsible for his or her own “authored” opinions, each judge must review all of the briefs, pertinent law, and record for each case in which he or she participates; conduct independent research; discuss the case; author dissenting or concurring opinions if necessary; read other division members’ opinions; and review all draft opinions proposed for publication.

Each judge also strives to be informed of recent Colorado Supreme Court and United States Supreme Court opinions.

Consequently, each judge reads an estimated three thousand pages of material per month. Weekend reading is inevitable, and ten-to-twelve-hour workdays are not uncommon.

Extra-Judicial Activities

In addition to his or her judicial duties, judges of the court participate in numerous outside activities related to the legal system. These activities include participation in bar associations and giving frequent CLE lectures. A court of appeals judge also serves as the chair for nearly every supreme court rules committee.

 

Colorado Court of Appeals Extended Community Outreach Program

In recent years, the court has made an effort to achieve greater transparency and engagement with Colorado communities. The vehicle for forming these connections is the extended outreach program. This program is made up of three initiatives: (1) district outreach, (2) Courts in the Community, and (3) Goldilocks trials.

District Outreach

There are both twenty-two judges and twenty-two judicial districts in Colorado. So each judge is assigned by the Chief Judge to one of these districts as a liaison. Each judge tries to visit his or her respective district at least once per year to meet with the local judges, bar, administrative staff, and community.

Courts in the Community

As part of the court in the community program, divisions hold oral arguments at high schools around the state and at the two law schools in Colorado. This affords students the opportunity to observe appellate arguments firsthand. In preparation for oral argument, judges meet with teachers and provide them with materials about the judicial system and the court. Local attorneys also meet with teachers to students with information about the cases that will be argued and to answer any questions. After the oral argument, students ask the judges and the attorneys general questions about their careers.

Three to four times per year, Courts in the Community is held in conjunction with a judge’s district outreach visit. The division may spend up to a week in a district, holding oral arguments and visiting with the bench, bar, and community.

People v. Goldilocks Mock Trial

To introduce the youngest amongst us to the law, the division may conduct “Goldilocks trials” at local elementary schools. In this trial, the State has charged the defendant, Sarah Goldilocks, with trespass and theft. The students play the roles of attorneys, parties, witnesses, and judge, and interact with judges from the division during this portion of a district outreach visit.

Conclusion

The court, in recognizing and valuing the importance of our judicial system, fosters a commitment to excellence, integrity, and collegiality. And through the hard work and dedication of every judge and staff member, the court has a long-standing reputation for implementing these principles.

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