Proposed Magistrate Rules: Crucial to Civil Litigators

• Publication year: 1999
• Pages: 51
• Citation: Vol. 28 No. 7 Pg. 51

28 Colo.Law. 51 Colorado Lawyer 1999.

1999, August, Pg. 51. Proposed Magistrate Rules: Crucial to Civil Litigators

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51

Vol. 28, No. 7, Pg. 51

The Colorado Lawyer
August 1999
Vol. 28, No. 8 [Page 51]

Specialty Law Columns
The Civil Litigator
Proposed Magistrate Rules: Crucial to Civil Litigators
by Richard P. Holme

Under newly proposed rules for state court magistrates pending before the Colorado Supreme Court and published in the July 1999 issue of The Colorado Lawyer,1 if a civil litigator fails to object to the use of a magistrate in any proceeding, he or she may have impliedly and irrevocably consented to having all pretrial hearings, including the trial, handled exclusively by a magistrate, with no right to review by a district court judge

The last chance for input on this proposal is to submit written comments to the Supreme Court by September 2, 1999 No further public hearings are scheduled at this time

Background

Most civil litigators who even know that there are state court magistrates believe that they are used only for domestic relations cases and traffic tickets. Since 1991, however, Colorado Rules for Magistrates ("Rules") have allowed magistrates to act in district and county court criminal and civil cases, juvenile court, probate court, and small claims court. Statutes passed by the legislature have further expanded the transfer of judicial powers to magistrates2 and have even created some anomalous situations, such as giving juvenile court magistrates power to issue search and arrest warrants when the Rules do not give such power to district court magistrates.3 Moreover, the Colorado constitutional requirement of a two-thirds vote of each house of the legislature to authorize additional judgeships4 has led both the legislature and the Colorado State Judicial Department to use funding of additional magistrates as a means of creating more "judicial" slots without the need to approve more judges. Thus, unbeknownst to most Colorado trial lawyers, there are now fifty-six magistrates in the state, more than 33 percent of the number of full-time trial judges.5

Notwithstanding this growth in the number of magistrates, no concentrated effort has been made to keep the Rules abreast of the changes in the other rules of court. Thus, for example, the Rules did not provide for magistrates to have any role in the conduct of C.R.C.P. 16 case management conferences adopted in 1995, much less any role in dealing with any discovery disputes. Sometimes, the district courts simply used magistrates in fashions unauthorized by the Rules, apparently hoping, often correctly, that no one would notice or object. However, the Colorado Court of Appeals recently rejected that practice.6 There were not even any provisions relating to the appointment or retention of magistrates—such functions were left to the discretion of the chief judges of each judicial district.

About four years ago, a committee of magistrates was formed to review the Rules and make recommendations for changing and...