Governor
Bill Owens

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

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Executive Summary

EXECUTIVE SUMMARY

 

Civil Justice in Colorado: A System Approaching Crisis

Colorado’s civil justice system is a system approaching crisis. Rising caseloads, the increasing complexity of many civil cases, a growing number of pro se litigants who proceed without attorneys – these and other developments challenge the ability of state courts to resolve civil disputes in a quality, timely and cost-effective manner.

During the past decade alone, the caseload of Colorado’s state trial courts has grown by 23 percent, to 636,000 total cases in 1997.1 New district court filings in 1998 were nearly 10 percent higher than the year before. Significantly, civil cases are rising even faster than criminal cases. For instance, civil district court filings grew by 20 percent between 1997 and 1998, compared to a 15 percent increase in criminal cases. While county court filings have remained largely static during the same period, the complexity of those cases appears to be rising. At the same time, cases filed in Colorado’s appellate courts are increasing. During the past five years, the Colorado Supreme Court caseload has grown by 22 percent, while Court of Appeals filings have increased by 14 percent.

Looking forward, Colorado’s surging population growth – which surpassed four million people in July 1998 – is expected to increase by about 2 percent per year for the next 20 years, placing even greater demands on our civil courts. With fewer than 250 total judges statewide, the number of constitutionally appointed judges in Colorado has not kept pace with the flood of new civil and criminal cases entering the system each year. While new trial court judges have been added piecemeal in selected judicial districts, the number of cases per judge continues to rise in many parts of the state.

Nor is population growth the only reason why civil caseloads are increasing. Throughout the United States – even in states with little or no population growth – people are increasingly using the state courts to resolve their civil disputes. Nearly 15.5 million civil cases (excluding domestic relations) were filed in state courts in the United States in 1998 – the highest number since 1992.2 Since 1984, civil filings (in both limited and general jurisdiction courts) per 100,000 population have increased 17 percent, or an average of 1.2 percent per year.

In Colorado, the public’s growing reliance on state courts to resolve civil disputes, amplified by the state’s continuing population growth, make civil justice reform a top priority. Clogged court dockets in some parts of our state are already causing serious and unacceptable trial delays for many civil litigants. Nationally, most civil cases that go to trial are resolved within two years: 56 percent of tort trials are disposed within two years and 88 percent are disposed within four years. In contract cases tried before a jury, 54 percent are resolved within two years and 91 percent are disposed within four years.3 Most civil cases in Colorado are resolved well within these timeframes. Yet in some urban jurisdictions, attorneys now report that trial delays in commercial cases sometimes exceed five years or more. Without meaningful civil justice reform, Colorado’s continued economic boom will be in jeopardy.

 

 

Governor Owens Takes Action

Against this backdrop, Colorado Governor Bill Owens called for civil justice reform immediately upon taking office in January 1999. In his first "State of the State" address that month, the Governor announced plans to create a Civil Justice Reform Task Force. The goal of this Task Force, the Governor said, was to assess some of the major trends affecting Colorado’s civil justice system and recommend possible reforms for consideration by the Governor, General Assembly and Colorado State Judiciary. The goal of these reforms: To make quality civil justice more widely available to Colorado citizens at less delay and at lower cost.

After consulting with judges and justices, attorneys, business leaders and many others to explore this concept, Governor Owens issued an executive order creating the Civil Justice Reform Task Force in the fall of 1999. At a press conference at the State Capitol, the Governor recognized task force members from throughout Colorado and charged two of the state’s most prominent attorneys – Tim Tymkovich, former Colorado Solicitor General, and Rebecca Koppes Conway, former president of the Colorado Bar Association – to co-chair the effort. The Task Force co-chairs, members and staff then worked to identify some of the most pressing civil justice reform priorities facing Colorado. After focusing its efforts on five key areas for potential reform as discussed below, the Task Force divided into five separate committees – each led by a pair of distinguished experts – to develop these concepts in more detail.

This Report is the culmination of these efforts. It is not intended to be the last word in civil justice reform, but rather the first. A comprehensive blueprint for overhauling Colorado’s civil justice system is beyond the scope of this Report. Instead, the Report aspires to shed light on some of the trends that are shaping civil justice in our state. It suggests several specific measures that, if adopted, promise to improve both the quality and speed of civil dispute resolution in Colorado – at reduced cost to Colorado taxpayers.

Key Recommendations

The Report proposes meaningful civil justice reform in five key areas, including:

  1. Establishing a specialized business court system within the existing Colorado courts to handle commercial cases more quickly, less expensively, and with greater expertise. The rapid growth in Colorado’s commercial and professional services sectors – particularly in areas such as information technology (IT), where Colorado leads the nation according to a recent American Electronics Association survey in newly created IT jobs per capita – is placing new demands on Colorado’s court system. The Task Force recommends creating a specialized business court system to help resolve such disputes. This court should be located within an existing District Court in the Denver metropolitan area. Such a business court could develop the expertise and specialized procedures needed to help Colorado attract and retain world-class employers and employees alike. More generally, and as detailed in the Report, Colorado should strengthen the ability of all Colorado courts to resolve complex business disputes with less cost and reduced delay.

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  2. Increasing the number of new trial court judges available to hear civil cases. Colorado’s sporadic attempts to add new state court judge positions have not kept pace with population growth for many years. Instead, it appears that an increasing number of judicial magistrates are being hired to deal with rising caseloads. Magistrates are staff attorneys selected by chief district court judges in the state’s various judicial districts, instead of by Colorado’s constitutional process for the merit selection of judges. Magistrates perform valuable responsibilities within the Colorado State Judiciary, but they were never intended to take the place of constitutionally appointed judges. By definition, new magistrate positions are less responsive to changing caseload requirements than are new judges. Colorado can and should fund new trial court judge positions partly by limiting the unprecedented growth in new judicial magistrate staff positions in recent years.

  3. Reforming Colorado’s administrative law system by ensuring that administrative law judges are properly selected, better trained and supervised, and more accountable to the public. Colorado’s system of resolving regulatory disputes with State departments and agencies – the so-called administrative law system – is widely perceived as unresponsive to many of the needs of litigants and the public generally. The quality of administrative adjudication within the executive branch varies widely across different departments and agencies, producing inconsistent and sometimes contradictory results. Administrative law judges (ALJs) are part of the State Personnel System, giving them career protection, and are selected and supervised according to State Personnel requirements. The Report recommends consolidating all ALJs within a single Division of Administrative Adjudication under a director appointed by the Governor. The new Division would be responsible for strengthening selection, supervision and training requirements for all ALJs to help ensure greater professionalism and accountability to the General Assembly, the Governor and the public.

  4. Strengthening the resources available to pro se litigants – persons using the courts who are not represented by an attorney – while toughening sanctions against unrepresented litigants who abuse the system. Pro se litigants appear to be here to stay in the Colorado courts. This is especially true in domestic relations cases such as divorce. In some jurisdictions, at least one of the parties appears without an attorney in up to 65 percent of all domestic relations matters. While the courts and Congress have taken steps to reduce frivolous and groundless pro se litigation by prisoners, Colorado has yet to adopt a comprehensive approach for dealing with pro se litigants in civil matters. The Report recommends building on the approach of several jurisdictions, which have established low-cost pro se resource centers to help these litigants minimize their impact on the courts in non-complex cases. Conversely, the Report recommends strengthening penalties against pro se parties who abuse the system.

  5. Expanding the use of alternative dispute resolution (ADR), such as mediation and arbitration, to reduce demands on Colorado’s court system. ADR is increasingly accepted in Colorado and elsewhere as an effective way to resolve selected civil disputes with less involvement by the court system. This can cut costs and reduce delays for the affected parties as well as for other litigants. The Report recommends broadening the use of ADR within State departments and agencies, as well as increasing ADR awareness by the general public. In the latter case, the public should be made aware of potential ADR options at the outset of a civil case through a disclosure process conducted by the Colorado courts.

1 Statistics in this section regarding the Colorado state courts are from the Honorable Mary J. Mullarkey, Chief Justice of the Colorado Supreme Court, "State of the Judiciary," address to the 62nd Colorado General Assembly, January 15, 1999.

2 See Brian J. Ostrom and Neal B. Kauder, editors, "Examining the Work of State Courts, 1998," Report of the National Center for State Courts (1999).

3 Id. at 8.