Governor's Task Force on
Civil Justice Reform

Task Force Co-Chairs and Governor's Counsel

Rebecca A. Koppes Conway, Esq. - Co-Chair
Timothy M. Tymkovich, Esq. - Co-Chair
Troy A. Eid, Esq. - Counsel to the Governor
Britt Weygandt, Esq. - Deputy Counsel to the Governor

Anthony van Westrum, Esq. - Reporter

Committee Presentations to the Full Task Force on Civil Justice Reform

Minutes of Meeting of
April 23, 2000

Introduction by Rebecca A Koppes Conway. Remarks by Troy Eid

• Thanks to members
• Document posted to web site - Comments on all Committee reports by members by April 7.
• Final document released May 1 for public comment. The process to get a final report is to be finalized by September, 2000. Then the Governor can make proposals for legislation (as appropriate) for next session.
• Gain access to secure web site to review Committee reports and comment.
• The ADR Committee report is not on the web site yet, but it will be soon.
• Reiterate that nothing has yet been adopted by the Governor. These are just recommendations at this point. Public input will be needed for final preliminary report to be drafted.

1st Report by Tom Kanan, Co-Chair- Administrative Law System in the Executive Branch Committee

• Had participation / input from all members and got consensus on approach adopted.
• Took a global approach, considering the entire adjudication process for administrative system.
• Found that there is no uniform way that ALJ's are evaluated or do their jobs / apply process.
• An identified problem is that political pressure is often brought to bear on ALJs.
• Recommendation #1: The A.L. system should be a single administrative system under one Executive Director appointed by the Governor and reporting to him. This should help keep the system in line. Direct accountability to the public would be provided through the Executive Director.
• Recommendation #2: The current financing system is not functional. The new way would be to fund A.L. activities through this agency alone without billing to agencies for services. Keep personnel in areas of their expertise with the same civil service protections. This could be layered system.
• Recommendation #3: Ultimate finding of facts / conclusions of law remain with underlying administrative agencies.
• Recommendation #4: Global ALJs, hearing officers, referees. 75 people in adjudicative capacity.
• Conclusion: The new system should be cheaper than the existing one. Consolidation of function should result in efficiencies. Billing of agencies under the present system is a problem.

2nd Report by Mark S. Loye, Co-chair - Alternative Dispute Resolution Committee

Mark S. Loye, co-chair of the Alternative Dispute Resolution Committee, summarized that committee's report. As a preliminary matter, he noted that along with the core group of committee members who contributed to the report, the committee made great use of expert help and ex-officio members, including Silke Hansen (President, CCMO), Cindy Savage (Director, ODR), Sheila Somberg (President, State SPIDR) and Jackie Moorhead (immediate Past President, CCMO), among others.

     The committee took a global approach considering issues beyond the designated scope of the committee. Attempting not to recreate the wheel, the committee considered how various nonjudicial resolutions could be and currently are applied to conflicts. Various resources were checked for information on where and how ADR principals are applied in other geographic and judicial locales and jurisdictions.

     The committee concluded that ADR is effective based on statistics that indicate ADR allows more effective utilization of existing resources, such as mediation, settlement conferences, and arbitration. Settlement rates are typically 75% in cases that utilize ADR and up to 90% in certain areas. Appendices containing studies and information demonstrating the effectiveness of ADR will be attached to the committee's report.

     The basic premise underlying the committee's recommendations is that the use of ADR should be expanded with little or no fiscal impact. The report includes recommendations that can be implemented currently by the Governor's office/state government, and the judicial branch, and also includes a wish list. Specifically, the committee recommended that:

• ADR should always be considered by litigants
• Court rules should be amended to require consideration by litigants and to require litigants to disclose such consideration on forms to be reviewed by judges
• Newly appointed judges and newly-licensed lawyers should receive ADR training, and continuing legal education in ADR should be encouraged
• State government should expand the use, including;
• Imposing responsibility on a central person in the governor's office to monitor
• Issuance of an executive order requiring state use of ADR
• Designing agency templates for use of ADR

If funding becomes available, the committee listed several "wish items" including addressing the needs of rural communities, family mediation with emphasis on juvenile issues, funding the Office of Dispute Resolution, ADR coordinators in Judicial Districts, state funding for Community Mediation Centers, school mediation programs, and several others.

3rd Report by Annita Mennogan and Trish Nagel, Co-chairs - Business Court Committee

In General:

• The rationale for a business court is also applicable to other courts.
• Information is needed about constituency and number of cases that could use a business court.

Recommendations:

• A Judiciary to hear business cases should be established, with a pilot program in Denver. Types of cases: contract, shareholder, derivative disputes (not necessarily workplace). Develop a body of law. Would allow for efficient use of resources, although a business court could take resources from other courts.
• Expand / amend Rule 53 to enlarge the ability of litigants to use special masters. There would be a cost, but faster resolutions would occur.
• Alter rotation of judges so they are not removed in the middle of cases. Again, this would save time and make for better efficiencies.
• The Judiciary should adopt simplified procedures in Rule 1.1, especially where the amounts involved are $100,000 or less. Smaller companies don't have resources to pursue cases under the present system. This would produce timely results at less cost.
• Look at case management in Eastern Virginia - There, a "Rocket Docket" promotes quick resolution of cases.
• Monitor digital technology and use of the Internet for electronic fees, document and docket management. This represents the future of the system, reducing costs and saving time.
• Amend State Administrative Procedures Act relating to rulemaking by agencies. Substantiated need for regulations, compliance with APA by agencies.
• Administrative proceedings for other business concerns / conflicts.
• Possible legislative approaches should be investigated.
• Discussion on difficulty of getting and keeping business court judges.

4th Report by Michael Goldman, Co-chair - Committee on Magistrates in the Civil Justice System

Conclusions and Recommendations:

• Overcapacity of courts was discussed.
• Magistrates serve important adjunct functions.
• Magistrates help make the courts more accessible.
• More magistrates or more judges? Magistrate system works, but we should push for more Article 6 judges and leave magistrate system alone.
• Magistrates are at will employees with year contracts and are hired and fired at will. Often they are as qualified as the judges they serve.
• There is little complaint with use of magistrates, now.
• We should not make uses of magistrates consistent statewide; they are used differently based on needs that vary from District to District.
• Magistrates do not save as much money as Committee thought over established Article 6 judges.

5th Report by Eric Field and Doris Truhlar, Co-chairs - Pro Se Parties and Their Impact on the Colorado Court System Committee

Conclusions and Recommendations:

• Look at impact of pro se litigants. Should judicial system encourage or discourage them?
• Some problems with Pro Se Litigants: Unprepared, delays, only one side pro se.
• The percentage of pro se cases is going up.
• Problem - pro se status may come and go during a case and data on these filings only applies to the time of filing. These cases are ½ of domestic relations filings.
• Why are parties pro se? Reasons include lack of money and dislike of attorneys (this group increasing). The trend toward pro se parties will continue, and the Judicial System needs to recognize this.
• One possibility is to make the system more user friendly for pro se parties.
• Pilot projects are occurring. One only in dissolution of marriage cases - a "family friendly" program.
• Pilot program - case managers to make a case move more smoothly.
• Recommendation: Set up pro se resource centers in every judicial district serving both District and County courts. Eventually have one in every County. User fees would be charged. This would be part of the state judicial system, not private.
• Recommendation: Groundless and frivolous litigation is another concern, but it may not be more common for pro se than for represented parties. There needs to be more training for judges in this area.
• Recommendation: More training for court staff in dealing with pro se litigants is needed. Judge candidates should be screened for patience in dealing with pro se litigants.
• John Suthers, Committee member, commented on pro se inmate litigation. His analysis. Very seldom does a judge find these to be groundless and frivolous. There needs to be an exhaustion of administrative remedies, first. We should keep track of how much of this litigation is filed and assess fees to inmates.

Conclusions by Rebecca Koppes Conway preceded adjournment of the meeting.