The Civil Litigator. Proposed Magistrate Rules: Crucial to Civil Litigators. Richard P. Holme

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1 Originally published in The Colorado Lawyer, Vol. 28, No. 8, August The Civil Litigator Proposed Magistrate Rules: Crucial to Civil Litigators 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, 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 magistrates 2 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 judgeships 4 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 magistratescsuch functions were left to the discretion of the chief judges of each judicial district.

2 About four years ago, a committee of magistrates was formed to review the Rules and make recommendations for changing and updating them. Following long and arduous efforts, that committee submitted several proposed amendments to the Colorado Supreme Court Standing Committee on Civil Rules. Further debate by the Civil Rules Committee, sometimes intense, led to a revised Proposal. The Supreme Court published that proposal 7 and held a public hearing on September 29, Only three or four people appeared to comment on the proposal. Following the hearing, the Supreme Court did not issue the proposed Rules, but instead appointed a new committee to take a broader look at the magistrates rules. The new committee was to examine issues such as the appointment, review, and retention of magistrates, as well as to reconsider the more contentious proposals relating to the proposed grants of power to magistrates. The new ad hoc Magistrate Committee was comprised of seventeen trial and appellate judges, thirteen magistrates, and nine private practitioners. 8 Members included judges and magistrates from all levels of courts, from all parts of the state, and with experience in the full variety of cases handled by the judicial system. The Magistrate Committee met several times for long hours, and had remarkable attendance and thoughtful, although often heated, debate. The result of the Committee's efforts is the newly proposed Colorado Rules for Magistrates ("Proposed Rules"). 9 Much of the Committee's work relies on the assumption that it is either desirable or practically necessary, or both, to use magistrates for many functions that used to be in the exclusive domain of the judiciary. The Proposed Rules will affect practitioners of all stripes: criminal, domestic, and civil. The main purpose of this article is to call to the attention of the civil trial bar a few of the most significant portions of the Proposed Rules. Significant Portions of the Proposed Rules First, the Proposed Rules expand the power of the magistrates considerably. Even without any party's consent, magistrates would have the power to "hear and rule upon all motions relating to disclosure, discovery, and all C.R.C.P. 16(b) [case management] matters." 10 Lawyers will react to this change differently, but it should be noted that the Proposed Rules will shift away from the judges most pretrial disputes and scheduling issues. Moreover, any appealable magistrate's ruling will be reviewable only under a "clearly erroneous" standard 11 Cnot review de novo or for "abuse of discretion." Thus, the magistrate's rulings on these issues will be difficult to challenge. The Proposed Rules also provide that, with the consent of the parties, "A Magistrate may perform any function in a civil case except that a magistrate may not preside over a jury trial." 12 This would probably cause little comment were it not for the definition of "consent" contained in Proposed Rule 5(a) (1). Under that Proposed Rule, consent is not just something voluntarily given by the parties. Consent also can be irrevocably implied or presumed from a party's inaction. Proposed Rule 5(a)(1), defining consent, provides: (a) Consent

3 (1) Consent in District Court (A) For the purposes of the rules, a party is deemed to have consented to a proceeding before a magistrate if: (1) The party has affirmatively consented in writing or on the record; or (2) The party has been provided notice of the referral, setting, or hearing of a proceeding before a magistrate and failed to file a written objection within fifteen days of such notice; or (3) The party failed to appear at a proceeding after having been provided notice of that proceeding. (B) Once given, a party's consent to a magistrate in a proceeding may not be withdrawn. (Emphasis added.) It is noteworthy that it is easier to be deemed to have given irrevocable consent to having all proceedings heard by a magistrate in a $15 million case in the district court than it is to consent to the use of a magistrate in the county court in a $15,000 case. In county court, there is no presumed or implied consent, only an express waiver of the right to a judge given in writing or orally in open court. 13 Subpart (A)(1) of Proposed Rule 5(a)(1), although phrased differently from the Proposed Rule for county court, also relates to voluntary and knowing consent to the use of a magistrate. If the parties are willing to have a magistrate rule on any or all of their case, and waive the use of a district court judge, there is little reason to interfere with their choice. Even the fact that the magistrate's ruling is not subject to appeal to the district court, but only to the Court of Appeals, is of little concern as long as the parties have affirmatively consented in writing or on the record. The one potential ambiguity in subpart (A)(1) of the Proposed Rule is the breadth of the term proceeding, to which the voluntary consent applies and cannot be withdrawn. Presumptively, parties agreeing to the use of a magistrate can define the breadth of their agreement however they choose. The presumed or implied consent portions of the Proposed Rule, subparts (A)(2) and (A)(3), raise several issues of importance to civil litigators. The first is the extent to which implied consent can be applied to serve as an ad hoc grant of judicial power to a magistrate. As noted above, the Proposed Rules grant certain powers to magistrates to perform acts, even without the consent of the parties, as well as provide an unlimited grant of power to perform all acts where consented to by the parties. When presumed or implied consent is involved, however, can this also be the legal authorization for magistrates to exercise unlimited power? For example, if a judge notices the parties to appear before a magistrate for a hearing on a summary judgment motion (an action that the magistrate is not

4 authorized by the Proposed Rules to perform without consent ) and neither party files a written objection within fifteen days of the notice, can such failure by the parties effect a grant to the magistrate of the unlimited power to conduct all remaining matters in the case? As discussed below, the language of the Proposed Rule is open to that interpretation, if the courts agree that such an unlimited expansion of power can be granted to the magistrates in that fashion. 14 The major application of Proposed Rules 5(a)(1)(A)(2) and (3) relating to presumed or implied consent appears to be in matters to be determined by magistrates without consent under Proposed Rule 6(c) (1). The very language of that grant of power suggests that it would make no difference if a party objects to the proceeding, because the Proposed Rule grants the power under any circumstance. Thus, the natural inclination of many litigators would be not to file an objection to something the Proposed Rule allows to be done over their objection anyway. However, under 5(a)(1)(A)(2) and (3), consent is implied or presumed if no written objection is interposed within fifteen days or a party fails to appear at the noticed hearing. Moreover, under Rule 5(a)(1)(B), once consent is given, it may not be withdrawn, apparently at any time thereafter. Finally the Proposed Rule provides neither for withdrawal of the consent for good cause (for example, if the lawyer was on vacation or in the hospital during the fifteen days within which the objection had to be filed) nor for any means to challenge the implied consent in the district court. One major impact of having consented to a magistrate's action is that appeals cannot be taken to the district court under Proposed Rule 7(a), but can only be taken to the Court of Appeals after final judgment has been entered under Proposed Rule 7(b). Thus, if a civil trial lawyer inadvertently fails to file a written objection to a proceeding noticed before a magistrate, that failure seems to preclude the lawyer and his or her client from being able to appeal the magistrate's ruling or order on the matter. It is also noteworthy, for example, that even if all parties want a magistrate to rule on a discovery dispute, and therefore do not file an objection, they would be precluded from any review of the action by the district court. The failure to file the timely objection to a matter that the magistrate is entitled to hear without consent appears to carry further significant ramifications. There is no limiting language in the Proposed Rule that states that the presumed or implied consent is limited to the hearing or proceeding that is noticed before the magistrate. Under a literal reading of the Proposed Rule, failure to file a timely written objection to a properly noticed Rule 16(b) case management conference at the outset of the case would create an unwithdrawable consent that would cause all further proceedings in the case, including a trial to the court (if a jury had not been timely demanded), to be handled solely by the magistrate. Further, even for the party who desires the magistrate to rule on the originally noticed matter, the party's failure to file a written objection to that matter may forfeit the right to return to the district court for any further proceedings in the case. Conclusion The Proposed Rules for magistrates raise important issues. Civil litigators need to read and carefully analyze the impact of these rules on their practices and their clients. If interested, lawyers also should make their views on the subject known to the Colorado Supreme Court before September 2, 1999.

5 NOTES 1. "Proposed Magistrate Rules," 28 The Colorado Lawyer 117 (July 1999). 2. See CRS '' (district court magistrates, including probate matters); (family law magistrates); (Class A and B county courts); (small claims court magistrates in Class A and B counties); juvenile court magistrates). 3. Compare CRS ' (6) with C.R.M. 6(b). 4. Colo. Const., Art VI, ' 10(3). 5. Telephone call to the State Court Administrators Office, June 23, Goderstad v. Dillon Companies, Inc., 971 P.2d 693 (Colo.App. 1998) (C.R.M. does not grant authority to magistrates to rule on discovery matters). 7. Colorado Rules for Magistrates, 27 The Colorado Lawyer 171 (June 1998). 8. The author was a member of the ad hoc committee, as well as being a member of the Standing Committee on Civil Rules. 9. See note 1, supra. 10. Proposed Rule 6(c)(l)(F). 11. Id. at 7(a)(1) and (2). 12. Proposed Rule 6(c)(2) (emphasis added). 13. Cf. Proposed Rule 5(a)(2) and CRS ' (5). 14. But cf., Goderstad, supra, note 6 at 693. Richard P. Holme, Denver, is a partner of the firm of Davis, Graham & Stubbs LLP, (303) Column Ed.: Richard L. Gabriel of Holme Roberts & Owen, DenverC(303)