The Colorado Supreme Court’s civil rules committee approved a set of revisions on Friday to the protocols governing magistrates, in response to the justices’ specific concerns about the attempt to streamline rules that court decisions have long called out as confusing.

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 district judge.

Following a September 2024 hearing on a set of revisions, the Supreme Court asked its Committee on the Rules of Civil Procedure to perform further work. Among the issues the court flagged: Is it really a good idea, as proposed, for magistrates’ final decisions to always go to a district judge first before they reach the Court of Appeals?

“Years of debate have transpired about this issue,” wrote Jefferson County Magistrate Marianne Tims, who led the subcommittee reviewing the rules, in a March 30 memo. “Lively debate continued in this group about whether there should be a single exit from the magistrate division or if we should keep the consent/no consent distinction.”

However, at the rules committee’s June 27 meeting, Tims announced the subcommittee had generated a new idea based on the Supreme Court’s concerns about the “extreme and untenable” workload for district judges in reviewing all magistrate appeals. The proposal would still require district judges to be the first stop.

“But if it was a matter that required consent,” Tims said, “what the judge would be doing is a cursory review — did it require consent? Did the parties give consent after they were advised? And if so, what the district court judge would be issuing is an order that says you’ve got 49 days to appeal downtown” to the Court of Appeals.

Relatedly, the rules committee decided to give district judges 91 days to rule on magistrate appeals. After that, the appeal would be deemed denied and litigants can go to the appellate court.

Court of Appeals Judge Jerry N. Jones, who chairs the rules committee, warned about giving an overly lengthy window for district judges to act.

“My concern is, and I mean to insult nobody by this, we seem to be focused on the judges here,” he said. “And the parties are being put on hold. And I think we need to really, seriously consider whose interests are paramount. And I would respectfully submit it is the parties’ interests that are paramount.”

Bradley A. Levin, a civil litigator on the committee, said he believed 91 days was appropriate. He noted there is no decision-making deadline in the federal courts, which results in “folks’ rights just getting abandoned by the courts because of a motion that’s just been out there.”

As far back as 2009, one member of the Court of Appeals deemed the magistrate 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.

Tims acknowledged her subcommittee was mindful of how to keep appeals of magistrates’ rulings inexpensive and quick, while preserving the legal rights of litigants.

“People in certain areas are entitled to a constitutionally vetted judicial officer,” Tims said, referring to someone who the governor appoints and voters have the opportunity to retain. “How do we make sure they know they have that right? How do we make sure they are waiving it only when they understand it? How do we ensure the rules are easy follow for pro se (self-represented) people?”

Among other tweaks the civil rules committee approved were an allowance for district judges to remand cases back to the magistrates with instructions to perform further work. Last summer, the Court of Appeals ruled that the existing structure only gives district judges three options: adopt, reject or modify the magistrate’s decision themselves.

Tims said district judges and magistrates have long been operating in a way that is contrary to the Court of Appeals’ interpretation.

“I’ve been a magistrate for 21 years and for 21 years, they have remanded it back to the magistrates. And that’s true all over the state,” she said. “If there is judicial review and the district court has to keep it, that’s an unbearable amount of judicial resources that they would have to start over.”

Finally, the committee declined the Supreme Court’s invitation to possibly include a “carve out” in the magistrate rules for domestic relations cases.

“We decided that was a pretty slippery slope,” said Tims. “Why only domestic relations cases? Why not a civil case? Why not a probate case?”

The civil rules committee will forward the revisions to the Supreme Court.