By Kaela Zihlman
The W Law
Domestic relations litigants and attorneys often appear before magistrates in districts throughout the state. Under the current Colorado Rules for Magistrates and case law, parties have limited options to request the review of a magistrate’s orders. And, even when opportunities are available to parties, “[t]he Colorado Rules for Magistrates create a ‘confusing appellate labyrinth’ perplexing both counsel and pro se parties alike, leading to the dismissal of a ‘significant, and perhaps unacceptable’ number of appeals.”
The Colorado Supreme Court is addressing proposed changes to the Colorado Rules for Magistrates and is requesting written public comments by any interested person due on or before April 25. The proposed changes seek to simplify the path to appellate relief through the Colorado Rules for Magistrates by providing a procedural pathway forward rather than continuing to send litigants into the labyrinth.
Current Opportunities for Review Under Rule 7
Rule 7 addresses the review of district court magistrate orders or judgments. The current Rule 7 distinguishes between when consent is or is not necessary for parties to be subject to order or judgment by magistrates. The revised version does not.
Under the current Rule 7, “a party may obtain review of a magistrate’s final order or judgment by filing a petition to review such final order or judgment with the reviewing judge” within 14 or 21 days after the final order is given or transmitted to the parties, depending on whether the parties are present when the magistrate’s order is entered.
Another area for ambiguity in the current Rule 7 is created by tension between 7(a)(4) and 7(a)(5). Under 7(a)(4), “a final order or judgment is not reviewable until it is written, dated, and signed by the magistrate.” However, there are no clarifications built into the rule for circumstances when, for example, the parties are present for the magistrate’s ruling (in the case of an oral ruling) but also when the magistrate requires the parties to submit proposed written orders for the magistrate’s review and entry.
The petition for review “shall state with particularity the alleged errors in the magistrate’s order or judgment and may be accompanied by a memorandum brief discussing the authorities relied upon to support the petition.” After receiving the petition and any responsive brief from the other party, “the reviewing judge shall consider the petition for review on the basis of the petition and the briefs filed, together with such review of the record as is necessary. The reviewing judge may conduct further proceedings, take additional evidence, or order a trial de novo in the district court . . . .”
Importantly, under the current framework, parties cannot request reconsideration of a magistrate’s order pursuant to Colorado Rule of Civil Procedure 59. In the 2023 Court of Appeals case In re Marriage of James, the court “resolve[d] the question left unanswered by [earlier opinions] that ‘even where a magistrate’s actions require the parties’ consent, C.R.M. 5(a) prohibits the magistrate from entertaining C.R.C.P. 59 postjudmgent motions.” In 2024, the Colorado Court of Appeals held that “the only post-trial motion over which a magistrate has authority to rule . . . is a C.R.C.P. 60(a) motion,” which addresses clerical mistakes, not requests for reconsideration.
If a party requests substantive review of a magistrate’s order, it must via a petition to the district court judge and then, possibly, to the Court of Appeals This removes the opportunity for magistrates to effectively reconsider and, potentially, correct their own errors in the way that district court judges have the ability to do under procedural Rule 59.
Contemplated Revisions to Rule 7: A Clearer Path Forward
The proposed revisions to magistrate Rule 7 serve to dismantle the labyrinth of the old rule and provide a clearer path forward for litigants. This article addresses some, but not all, of these changes.
The proposed Rule 7(a) requires all magistrates to include “in every order or judgment the following statement: Except as otherwise provided by statute, no appeal may be filed with the Colorado Court of Appeals unless a petition for review has been filed with the district court within 28 days of this order or judgment . . . and the district court has ruled on that petition.” The revisions strike the differentiation between cases where consent is necessary versus where consent is not necessary, which result in different paths forward under Rule 7(a) and Rule 7(b). If the revisions are accepted, every order or judgment entered by a magistrate, regardless of the circumstances in which it is entered, would tell litigants exactly what they must do to seek appellate review.
In addition to telling litigants how to request review, the revisions to Rule 7 will tell litigants when to request review. The proposed change to Rule 7(e) requires any petition for review to be filed with the district court “no later than 28 days from the date the order or judgment becomes reviewable under C.R.M. 7(d).” This removes the ambiguity in the current Rule 7(a)(7) that provides a different deadline for review if the parties are “present” (14 days) or if they are not present and mailed to the parties (21 days).
Another significant update comes with proposed Rule 7(f) which allows “any party [to] file with the magistrate either a C.R.C.P. 121, section 1-15(11) motion to reconsider or a C.R.C.P. 60 motion to correct clerical errors” provided that the motion is filed within 7 days of the magistrate’s order.” Motions to reconsider under procedural Rule 121, Section 1-15(11) require “a party moving to reconsider must show more than a disagreement with the court’s decision . . . . ” Under the proposed changes to Rule 7(f), the magistrate, not the district court, would rule on the motion for reconsideration allowing it the power to amend its orders akin to the power afforded to district court judges pursuant to procedural Rule 59.
Notably, the proposed changes to magistrate Rule 7(f) do not permit any extensions for motions for reconsideration. They must be filed within the seven-day deadline if they are to be considered at all. This appears to be an attempt to allow magistrates limited and expedient opportunities to correct errors without causing substantial delay to the final disposition of the case.
The revisions to the new rule also clarify the deadline to file for an appeal to align with Rule 4(a) of the Colorado Appellate Rules.
Opportunities for Further Revision
The Colorado Supreme Court is accepting public comments in letter format through April 25 at 4 p.m. As attorneys who often have to navigate the murkiness of magistrate Rule 7, family law attorneys are well-equipped to share experience and expertise to continue to demystify the Colorado Rules for Magistrates.
– Kaela Zihlman is a senior associate attorney with The W Law.