Colorado’s second-highest court on Thursday reminded trial judges their role in reviewing the decisions of magistrates requires them to take the final action, not to send an issue back to a magistrate for further work.

Magistrates are judicial employees who are not judges but who handle aspects of cases in the trial courts. Litigants may consent to magistrates being the final decision maker in certain proceedings, but judicial rules also permit magistrates to address matters without consent. In those circumstances, before there can be an appeal to the Court of Appeals, a litigant will need to seek review from a trial judge.

A three-judge panel of the appellate court, reviewing a domestic relations case out of El Paso County, concluded a trial judge did not follow the rules when he found fault with a magistrate’s decision yet also ordered the magistrate to perform further analysis. His only options, noted Judge Sueanna P. Johnson in the panel’s Aug. 1 opinion, were to “adopt, reject, or modify” the magistrate’s decision.

“Because the district court here rejected the magistrate’s finding, it recognized that additional proceedings needed to be conducted. The court’s error, though, was not recognizing that it — not the magistrate — was required to conduct those additional proceedings,” she explained.

Based on the flaw, the appellate court determined it could not even hear the appeal of Eric Michael Matheny’s contempt violation. The case illustrated the sometimes-confounding nature of the rules surrounding magistrates, which even Johnson acknowledged “continue to sow confusion among courts and litigants alike.”

A magistrate held a hearing on the allegation from Matheny’s ex-spouse that he violated court orders regarding contact with their children. The magistrate agreed Matheny was in violation, but there was a conflict with the allegations in the contempt citation. Upon review, District Court Judge Chad Miller rejected the magistrate’s decision not to hold Matheny in contempt.

However, Miller wrote that he “does not take any position” about whether Matheny had cured the violation or what sanctions were appropriate. He remanded the case to the magistrate “for further proceedings and findings.”

Matheny appealed to the Court of Appeals, arguing his situation was akin to double jeopardy because the magistrate acquitted him, only for a district judge to find him guilty. Preliminarily, the Court of Appeals flagged that it may not have authority to review Miller’s order because it was not final. After hearing Matheny’s response, a different three-judge panel — of which Johnson was also a member — green-lit the appeal in December for consideration.

Yet, seven months later, the Court of Appeals changed its mind. Miller’s order was not final, Johnson now wrote, because he was obligated to fully resolve the contempt issue himself.

Confusion over magistrates

Some appellate judges have begun to publicly call for reforms to the magistrate rules, especially the procedures for appealing a magistrate’s ruling. As far back as 2009, one member of the appeals court deemed the rules a “confusing appellate labyrinth” that most endanger self-represented litigants in domestic relations and juvenile matters who are unsure of the proper steps for challenging a magistrate’s order.

“This is a quintessential illustration of when things are in this much uncertainty under the rules, it’s time to fix the rule,” said Judge Timothy J. Schutz at a legal event earlier this year.

Currently, there is a proposal pending before the Colorado Supreme Court to revise the magistrate protocols, with an emphasis on clarifying the route to appeal. In a September 2021 memo to the court’s Civil Rules Committee, Jefferson County Magistrate Marianne Tims noted the approximately 95 magistrates in Colorado are used differently in each jurisdiction, but they generally handle domestic relations, juvenile, small claims and traffic matters.

“To be sure, cases have historically been referred to magistrates to alleviate the judges’ caseload and to allow the parties a quicker decision,” she wrote. “A magistrate’s authority is not and should not be the same as a judge’s. The importance of an elected judge making a final decision to be appealed to an elected panel at the Court of Appeals is paramount while still being mindful that being heard by an elected judge is a higher priority perhaps than a quicker turnaround.”

Some lawyers, however, have expressed concern about the scope of magistrates’ authority in the first place to hear matters without the parties’ consent.

“As a practical matter, this is a much larger concern for family law because courts are already heavily using magistrates to render many of the most important issues in family law,” attorney Ruth Moore wrote to the chair of the rules committee in late 2021.

Ideally, echoed attorney Paige Mackey Murray in written comments to the Supreme Court, “magistrates would only be used with the consent of the parties. Magistrates are not appointed, reviewed, or retained by the voters under the Colorado Constitution, and forcing their use deprives litigants of their right to be heard before a constitutionally appointed judge.”

The court will hold a public comment session on the proposed magistrate rule changes when it reconvenes in September.