Members of the Colorado Supreme Court took comments on Tuesday about proposed changes to the rules governing magistrates, where they heard that the attempt to streamline protocols still presents challenges for litigants and for the trial judges who review magistrate decisions.

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.

Court of Appeals Judge Jerry N. Jones, who chairs the civil rules committee, told the Supreme Court the desire for change began five years ago largely due to confusion over the diverging paths for appeals.

“What was occurring, of course, was that parties didn’t understand the difference between these paths,” he said. “They were being misinformed frequently by judges and magistrates as to their appellate rights.”

As far back as 2009, one member of the Court of Appeals 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. Jones added that the appellate court sometimes finds it lacks jurisdiction to hear appeals filed incorrectly. 

The resulting rule change, if enacted, would require all final decisions of magistrates to be appealed to a district judge first, then to the Court of Appeals. The proposal lays out the timelines for each step of the process as well as the lens district judges must use when evaluating a magistrate’s work.

However, lawyers who reacted to the proposal raised concerns at the granular and big-picture levels. Some attorneys criticized the notion that the approximately 95 magistrates working across the state should even be deciding matters without the parties’ consent in the first place.

“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,” attorney Paige Mackey Murray wrote to the Supreme Court. “This requirement means that critical and sensitive matters that are highly fact-based — especially in the area of domestic relations — are being delegated to non-constitutional judicial officers.”

Jones acknowledged the desire for a judge to render a decision, but pointed out that with the streamlined process, a district judge would see every appeal.

Trish Cooper, representing the Colorado Chapter of the American Academy of Matrimonial Lawyers, told the justices that in her experience, parties in domestic relations cases often cannot afford one level of appeal, much less two. She also worried that the upshot would be an increase in the workload of district judges.

“We are losing district court judges at an alarming rate,” said Cooper. “I have never seen such a high rate of retirements and folks leaving the district court bench.”

The court heard concerns about the burdens on trial judges from other sources. Chief Judge Michelle A. Amico of the 18th Judicial District in suburban Denver wrote that the proposed 63-day deadline for district judges to review magistrates’ decisions — after which the parties may turn to the Court of Appeals — will be “challenging to accommodate,” as domestic relations judges may be handling 300-400 cases at a given time.

A trio of district judges in Adams County — Kelley R. Southerland, Rayna Gokli and Teri L. Vasquez — also advocated for the appointment of more domestic relations judges to “absorb this additional caseload.”

Denver District Court Judge Michael W.V. Angel, a former magistrate, echoed the concern about workload and pointed to two recent appellate decisions on the subject: a Supreme Court opinion in March requiring district judges to hear appeals of magistrates’ probable cause rulings in certain criminal cases and an August Court of Appeals decision clarifying that district judges cannot direct magistrates to conduct further proceedings. Instead, they must make the final decision on appeal, even if it means holding additional proceedings themselves.

Angel also called attention to the difficulty litigants may encounter in assembling the necessary record within the envisioned appellate timeline.

“Having been in multiple jurisdictions and having practiced around the state prior to being appointed to the bench, I can tell you that the ability to get transcripts in a timely manner varies greatly,” he said.

Justice Carlos A. Samour Jr. asked Jones, the rules committee chair, if he saw any benefit to holding further discussions to address the commenters’ issues. Jones said the committee did examine some of the concerns, but simply felt differently. He added that while the committee forwarded the proposal to the Supreme Court on a 26-1 vote, there were several provisions of the existing rules the committee declined to modify due to lack of agreement.

“I think the most common concern that was expressed about the proposal are the tightness of the timelines that are proposed,” Jones said. But “we are hearing from judges and magistrates and from practitioners that things are taking too much time” under the existing framework.

If the Supreme Court wants the rules committee to perform further work, Jones continued, “it would be beneficial to have some specific instructions. That is, ‘Please look at these specific concerns.'”