An advisory committee to the Colorado Supreme Court will revive a panel that recently retooled statewide eviction protocols and paperwork, following complaints from lawmakers and others that the judicial branch’s newly-adopted rules are unsatisfactory.

One month after the Supreme Court adopted a revised, more tenant-friendly summons form for evictions and modified several procedures for evictions proceedings, Judge Michael H. Berger of the Court of Appeals has ordered further work on the issue. Berger, who chairs the Supreme Court’s Civil Rules Committee, noted the unusual situation in which four Democratic state legislators wrote to the members of the Supreme Court alleging that the new rules did not follow the law.

“That’s the first time I have seen individual legislators take issue with an action of the judicial branch. Whether that’s appropriate or not under the separation of powers doctrine, I’m not gonna get into that,” said Berger at a meeting of the committee on Friday.

Prior to this year’s legislative session, the judicial branch had been exploring ways to ensure tenants could more competently represent themselves in court when facing eviction – known legally as forcible entry and detainer (FED). However, the General Assembly in 2021 also passed two pieces of legislation with that goal in mind. It was this attempt to reconcile the judicial proposal with the newly-enacted laws that prompted legislators to lodge their objections.

“We are concerned,” indicated an Oct. 29 letter to the Supreme Court justices, “that the implementation of these new statutory provisions, and the recent approval of a modified, uniform FED court summons, has insufficiently fulfilled the General Assembly’s intent in passing this legislation and has failed to comply with the dictates included in the new statutory language.”

The signatories to the letter included Sens. Julie Gonzales of Denver and Dominick Moreno of Commerce City, and Reps. Serena Gonzales-Gutierrez of Denver and Yadira Caraveo of Thornton. All four Democrats had sponsored Senate Bill 173, a renters’ rights bill that also ordered changes to the summons paperwork that tenants receive after landlords initiate an eviction.

Justice Richard L. Gabriel, who is the Supreme Court’s liaison to the Civil Rules Committee, praised the eviction subcommittee’s prior work and acknowledged the pressure created by SB 173’s Oct. 1 effective date.

“We turned this around exceptionally quickly. These are important issues, but this is not any statement that the committee and subcommittee messed things up,” Gabriel said. The Supreme Court, he added, “would’ve had a formal public hearing on this if we had time to do it. That would’ve required two months.”

Denver District Court Judge Adam J. Espinosa will continue to chair the eviction subcommittee as it restarts its work and Berger has added to its roster a Denver County Court judge and a magistrate who handles evictions in the Fourth Judicial District of El Paso and Teller counties. Berger said he also received complaints and questions from within the judicial branch about the rule changes.

“FED proceedings are traumatic for many, many people and we need to make it as easy a process as possible,” he said. “It’s a really difficult task given all these specific requirements the legislature has required to be in the summons.”

The modifications to the eviction summons, based on the requirements of SB 173 and the eviction subcommittee’s work, were intended to allow tenants to more knowledgeably defend themselves after a landlord filed a formal complaint against them. Landlords have legal representation more often than not in evictions proceedings, while a review of select cases from Denver found that tenants had legal representation only 2% of the time.

The additions to the uniform summons form were as small as inserting the word “eviction” into the document, but also included a new list of legal resources and plain-English explanations for what to do.

Crucially, the lawmakers wanted the summons to note that a judge will enter an automatic judgment in favor of the landlord only if the tenant does not show up to court by the end of their scheduled appearance date. That requirement, however, conflicts with the other renter-friendly law from this year, House Bill 1121, which requires the summons to direct tenants to appear on a specific date and time.

It is the latter language that now appears in the revised summons.

Two members of the Civil Rules Committee acknowledged a need to revisit the policies the Supreme Court adopted.

“I’ve noticed a tremendous number of errors in the current rules as they were drafted and approved,” said attorney Ben Vinci, who was particularly concerned with the circumstances under which tenants should appear in person. “When I read these, I’m confused about what the heck somebody has to do.”

Lisa Hamilton-Fieldman, a former magistrate in Boulder County who served on the eviction subcommittee, said she did not believe the new eviction summons and rules fully captured what the legislation attempted to do.

“I respectfully suggest that we start from scratch instead of trying to tweak what we already did,” she said.

Gabriel and Berger indicated the subcommittee’s goal should be to complete its review “as quickly as possible but as well as possible.”

Jack Regenbogen of the Colorado Poverty Law Project, who sent the lawmakers’ letter to the Supreme Court in October, said he was pleased that the eviction subcommittee will take another look at the uniform summons in light of SB 173.

“My hope is that they will incorporate more public input and strive to revise the summons to comply with legislation passed this year, which was written to ensure that defendants have an opportunity to file an answer to an eviction at any time before close of business,” he said. “This is crucially important because employment obligations, challenges with public transportation and childcare issues can often prevent people from appearing in court during early hours.”

Currently, there are roughly one-third fewer evictions proceedings in Colorado compared to fall 2019. The Colorado Apartment Association described the pace of eviction lawsuits as “abnormally low throughout the pandemic.” Still, the number amounted to 2,498 eviction filings statewide in September alone.

This story has been updated to correct the spelling of Judge Espinosa’s name.