C.A.R.—the 2016 Model: Recent Changes to the Colorado Appellate Rules

The Colorado Supreme Court has been hard at work, handing down multiple changes to the Colorado Appellate Rules. Some changes were significant. Others were minor. The most notable change to the Colorado Appellate Rules was to Rule 3.4: Appeals from Proceedings in Dependency or Neglect. For cases filed after July 1, 2016, appeals from these proceedings will get a major overhaul. Here are some of the significant changes in the rules.

Respondent Parents’ Counsel Gets a Little Help

An addition to the rules clarifies the role of respondent parents’ counsel’s obligation on appeal. Previously, the rule required that the notice of appeal be filed by trial counsel. The new rule jettisons this requirement. The rule makes clear that if an appeal is filed by respondent parents who were represented by counsel in the trial court, it is trial counsel’s obligation to ensure a timely notice of appeal is filed. However, this obligation is not personal to the attorney, but is met if different counsel for appeal timely files a notice of appeal.

What this means going forward: Respondent parent counsel still is obliged to ensure that the notice of appeal is timely filed. But the new rule means that RPC are not obligated to personally do this work. RPC can work with appellate counsel, who can enter an appearance and file the notice of appeal and handle the appeal.

The Notice of Appeal Gets an Upgrade

Under the old rule, appeals from proceedings in dependency or neglect started out by filing Form 1. Under the new rules, Form 1 still exists, but it has been upgraded by the new rules. The new rule specifies the contents of the notice of appeal. The new rule also does away with the requirement that the notice be signed by the appellant. Perhaps by extension, the rule also gets rid of counsel’s ability to file a “Certificate of Diligent Search.” This certificate was previously available where counsel was unable to file a notice of appeal because the appellant was unavailable.

What this means going forward: Make sure you are filing out the right form! For the most part, the notice of appeal is not significantly different. The rule does specify that a copy of the order or judgment being appealed be included when the notice of appeal is filed. In addition, there is more flexibility on who can sign and file the notice of appeal.

The Petition on Appeal Is Replaced by Traditional Briefing

The most significant change is the complete overhaul in how appeals from proceedings in dependency and neglect are presented to the court. Previously, the appellant’s arguments were presented in a “Petition on Appeal.” The appellee then answered with the “Response to Petition on Appeal.” In the new rule, this procedure has been replaced by briefing that is similar to that required for other direct appeals. Now, the appellant must file an Opening Brief containing the following required sections:

• • A Caption that complies with C.A.R. 32

• • A Certificate of Compliance

• • Table of Contents

• • Table of Authorities

• • Statement of compliance with ICWA

• • Statement of the Issues

• • Summary of the Argument

• • Argument

The argument section must contain what was previously referred to as “28(k)” compliance, which is a brief statement of where in the record the issue was raised and ruled upon, as well as the standard of review for the appellate court. The Opening Brief is allowed to be a bit longer than a petition (now 7,500 words excluding attachments and/or any addendum). An Answer Brief that is similarly formatted replaces the previous “Response to Petition on Appeal.” Another new change is that the appellant may then file a Reply brief.

What this means going forward: The shift from a Petition on Appeal to more traditional briefing structure is a major change. Attorneys practicing in this areas should carefully review the new rules to ensure compliance.

Other Changes

The Supreme Court also modified Colorado Appellate Rules 39, 43, 44, and 45. Unlike the changes to Rule 3.4, these changes were relatively minor. Mainly the changes involved word changes and moving sections. Here is a brief summary:

• • Rule 39 on Attorney Fees on Appeal. This rule was reworded to better explain the requirements for requesting appellate attorney fees. The rule does not change much substantively, but it does make clear that the party seeking attorney fees must specifically make the request in the principal brief and explain not only the legal basis, but the factual basis for the specific request.

• • Rule 43. Substitution of Parties. The rule on substitution of parties on appeal was clarified to provide additional information in the event of the death of a party or the situation when a public officer no longer holds office. The new rule separates these two instances into different sections, but does not provide much substantive change.

• • Rule 44. Cases Involving a Constitutional Question When the State of Colorado is Not a Party. In this rule change, the language is clarified but the substance—Notice to the clerk of the Supreme Court must be given so that the Attorney General can be informed—stayed the same. In addition, the substance of subsections (b) and (c) were moved to new rule, C.A.R. 44.1.

• • Rule 45. Duties of Clerk of Appellate Court. This rule, which outlines the duties of the clerk of court, does some rewording and shifting of sections, but does not have much substantive change for attorneys.