Colorado § 19-1-108 - Magistrates - qualifications - duties.

§ 19-1-108. Magistrates - qualifications - duties.

(1) The juvenile court may appoint one or more magistrates to hear any case or matter under the court's jurisdiction, except where a jury trial has been requested pursuant to section 19-2.5-610 and in transfer hearings held pursuant to section 19-2.5-802. Magistrates shall serve at the pleasure of the court, unless otherwise provided by law.

(2) Every magistrate appointed pursuant to this section shall be licensed to practice law in Colorado; except that county judges who are not lawyers may be appointed to serve as magistrates, as authorized by section 13-6-105 (3), C.R.S., to hear detention and bond matters.

(3) (a) Repealed.

(a.5) Magistrates shall conduct hearings in the manner provided for the hearing of cases by the court. During the initial advisement of the rights of any party, the magistrate shall inform the party that, except as set forth in this subsection (3), the party has the right to a hearing before the judge in the first instance and the party may waive that right but that, by waiving that right, the party is bound by the findings and recommendations of the magistrate, subject to a request for review as set forth in subsection (5.5) of this section. The right to require a hearing before a judge does not apply to hearings at which a child is advised of his or her rights pursuant to section 19-2.5-605; detention hearings held pursuant to sections 19-2.5-303, 19-2.5-304, and 19-2.5-305; preliminary hearings held pursuant to section 19-2.5-609; temporary custody hearings held pursuant to section 19-3-403; proceedings held pursuant to article 4 of this title 19; and support proceedings held pursuant to article 6 of this title 19. In proceedings held pursuant to article 4 or 6 of this title 19, contested final orders regarding allocation of parental responsibilities may be heard by the magistrate only with the consent of all parties.

(b) In proceedings pursuant to article 2.5 of this title 19, the right to require a hearing before a judge is deemed waived unless a request is made by any party that the hearing be held before a judge at the time the matter is set for hearing.

(c) In proceedings under article 3 of this title, the right to require a hearing before a judge is waived unless:

(I) A request is made by a party or the people of the state of Colorado that the hearing be held before the judge at the time the matter is set for hearing, if counsel for the party is present at the time the matter is set; or

(II) A request is made by a party or the people of the state of Colorado in writing within seven days after receipt of notice of the setting if the matter is set for hearing outside of the presence of counsel for a represented party or if the matter is set on notice.

(4) At the conclusion of a hearing, the magistrate shall:

(a) Advise the parties before him of his findings and ruling;

(b) Advise the parties of their right to review by the judge of his findings and ruling;

(c) Prepare findings and a written order that shall become the order of the court, absent a petition for review being filed as provided in subsection (5.5) of this section; and

(d) Advise the parties that they have a right to object to an order allowing the review of any decree for placement of a child to be conducted as an administrative review by the department of human services and that if any party objects to administrative review, the court shall conduct the review.

(5) Repealed.

(5.5) A request for review must be filed within fourteen days for proceedings under articles 2.5, 4, and 6 of this title or within seven days for proceedings under article 3 of this title after the parties have received notice of the magistrate's ruling and must clearly set forth the grounds relied upon. Such review is solely upon the record of the hearing before the magistrate and is reviewable upon the grounds set forth in rule 59 of the Colorado rules of civil procedure. A petition for review is a prerequisite before an appeal may be filed with the Colorado court of appeals or Colorado supreme court. The judge may, on his or her own motion, remand a case to another magistrate after action is taken on a petition for review.

(6) A magistrate may issue a lawful warrant taking a child into custody pursuant to section 19-2.5-204 and may issue search warrants as provided in sections 19-1-112 and 19-2.5-205.

Source: L. 87: Entire title R&RE, p. 701, § 1, effective October 1. L. 88: (3) amended, p. 741, § 2, effective July 1. L. 91: Entire section amended, p. 361, § 26, effective April 9. L. 92: (4)(d) added, p. 221, § 3, effective July 1. L. 94: (4)(d) amended, p. 2658, § 145, effective July 1. L. 97: (3) and (5) amended, p. 517, § 4, effective July 1. L. 99: (1) and (6) amended, p. 1375, § 11, effective July 1; (5) amended, p. 1086, § 4, effective July 1. L. 2000: (3)(c) amended, p. 35, § 1, effective July 1. L. 2003: (3)(b) amended, p. 1901, § 1, effective July 1. L. 2006: (3)(a) and (5) amended, p. 451, § 2, effective April 18; (3)(a.5) and (5.5) added, p. 452, §§ 3, 4, effective July 1, 2007. L. 2007: (3)(a.5) amended, p. 1652, § 9, effective May 31; (3)(a.5) amended, p. 2029, § 35, effective June 1; (4)(c) amended, p. 2029, § 36, effective July 1. L. 2016: IP(3)(c), (3)(c)(II), and (5.5) amended, (HB 16-1057), ch. 31, p. 70, § 1, effective July 1. L. 2019: (3)(a.5) amended, (SB 19-108), ch. 294, p. 2727, § 21, effective July 1. L. 2021: (1), (3)(a.5), (3)(b), and (6) amended, (SB 21-059), ch. 136, p. 726, § 62, effective October 1. L. 2022: (5.5) amended, (SB 22-212), ch. 421, p. 2970, § 33, effective August 10.

Editor's note: (1) This section was contained in a title that was repealed and reenacted in 1987. Provisions of this section, as it existed in 1987, are similar to those contained in 19-1-110 as said section existed in 1986, the year prior to the repeal and reenactment of this title.

(2) Subsection (3)(a)(II) provided for the repeal of subsection (3)(a), effective July 1, 2007. (See L. 2006, p. 451.)

(3) Amendments to subsection (3)(a.5) by House Bill 07-1349 and House Bill 07-1367 were harmonized.

(4) Subsection (5)(b) provided for the repeal of subsection (5), effective July 1, 2007. (See L. 2006, p. 451.)

ANNOTATION

Law reviews. For note, "In re Gault and the Colorado Children's Code", see 44 Den. L. J. 644 (1967).

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

Natural parents have a constitutionally protected liberty interest in the companionship, care, custody, and management of their children. B.B. v. People in Interest of T.S.B., 785 P.2d 132 (Colo. 1990); In re R.G.B., 98 P.3d 958 (Colo. App. 2004).

To protect this interest, a court must provide parents with fundamentally fair procedures if termination of parental rights is sought. In re Petition of R.H.N., 710 P.2d 482 (Colo. 1985); In re R.G.B., 98 P.3d 958 (Colo. App. 2004).

Where an error of the trial court is considered fundamental or involves a miscarriage of justice, the appellate court may consider the issue for the first time on appeal. In re R.G.B., 98 P.3d 958 (Colo. App. 2004).

Two-stage proceeding before referee and court satisfies due process. Where, in a juvenile case, the procedure involves a two-stage fact-finding process with the first stage conducted by agreement of the parties before a referee with final judgment reserved for the court, it is not violative of the standards of due process and fair treatment. In re People in Interest of J.A.M., 174 Colo. 245, 483 P.2d 362 (1971).

Actions of court and referee constitute one proceeding. There are not two separate proceedings, one before the referee and a second before the court, but rather one proceeding to pass on the question of possible delinquency. In re People in Interest of J.A.M., 174 Colo. 245, 483 P.2d 362 (1971).

This section does not outline two separate proceedings, one before the referee and a second before the court; instead it prescribes a single, two-step proceeding in which the question of dependency or neglect is decided. People in Interest of S.S.T., 38 Colo. App. 110, 553 P.2d 82 (1976).

And second hearing is not double jeopardy. A second hearing before the judge on motions of the people in juvenile proceedings, and the modification of the referee's findings, do not place the child twice in jeopardy. In re People in Interest of J.A.M., 174 Colo. 245, 483 P.2d 362 (1971).

When parties agree to hearing before referee, they also agree to statutory procedures outlined for such hearings in this section. In re People in Interest of J.A.M., 174 Colo. 245, 483 P.2d 362 (1971).

The referee is a hearing officer who acts with limited authority under the supervision and direction of a judge and who has no independent power to enter orders or decrees. People in Interest of S.S.T., 38 Colo. App. 110, 553 P.2d 82 (1976).

The procedural powers of a juvenile court after reviewing a juvenile magistrate's findings are governed not only by relevant provisions of the Colorado Children's Code but also by the Colorado Rules for Magistrates (C.R.M.). People in Interest of R.A., 937 P.2d 731 (Colo. 1997).

Requirement in subsection (3)(a) that a magistrate inform the parties of their right to a hearing before a judge in the first instance is mandatory. In re R.G.B., 98 P.3d 958 (Colo. App. 2004); In re A.P.H., 98 P.3d 955 (Colo. App. 2004).

Waiver of initial advisement of rights in § 19-3-202 (1) includes waiver of advisement of right to be heard by a judge in subsection (3)(a) of this section. People ex rel. T.E.M., 124 P.3d 905 (Colo. App. 2005).

Subsection (3)(a) does not require parent to be advised at any time other than the initial appearance. Accordingly, a parent's waiver of right to formal advisement is effective throughout the dependency and neglect proceedings. People ex rel. T.E.M., 124 P.3d 905 (Colo. App. 2005).

Acts of referee dependent on waiver by parties and court confirmation. The essential ingredients to give judicial effect to a referee's findings and recommendations are: (a) A waiver, on the part of all parties, of a request for hearing before a judge, which may be affirmatively stated or may result from a lapse of five days without request; and (b) confirmation of the findings and recommendations by the court. In re People in Interest of J.A.M., 174 Colo. 245, 483 P.2d 362 (1971).

Only if no request for review is filed, and if they are confirmed by judicial order, do the findings and recommendations of the referee become the decree of the court. People in Interest of S.S.T., 38 Colo. App. 110, 553 P.2d 82 (1976).

Final judgment results only after court acts. The findings and recommendations of the referee do not have the effect of a final judgment until adopted or modified by the court. In re People in Interest of J.A.M., 174 Colo. 245, 483 P.2d 362 (1971).

Final responsibility for disposition lies with trial judge. Since the referee's recommendations do not automatically become the order of the court, and since the court may, even upon its own motion, order a rehearing, the final responsibility for the disposition of the case lies in every instance with the trial judge regardless of whether the parties request review. People in Interest of S.S.T., 38 Colo. App. 110, 553 P.2d 82 (1976).

This responsibility may neither be assumed by, nor delegated to, a referee. People in Interest of S.S.T., 38 Colo. App. 110, 553 P.2d 82 (1976).

The court must draw its own conclusions from the testimony and must independently ascertain how the best interests of the child and of society may most appropriately be served in the case before him. People in Interest of S.S.T., 38 Colo. App. 110, 553 P.2d 82 (1976).

The parties have the right to demand that a judge hear the matter in the first instance, and the referee must so advise them. People in Interest of S.S.T., 38 Colo. App. 110, 553 P.2d 82 (1976).

Failure of magistrate to advise party of the right to a hearing before a judge or to secure a waiver of that right does not divest magistrate of subject matter jurisdiction. In re A.P.H., 98 P.3d 955 (Colo. App. 2004).

Magistrate's failure to advise party of this right, however, requires reversal of the order modifying the parties' parental responsibilities. In re A.P.H., 98 P.3d 955 (Colo. App. 2004).

Referee to transmit papers, findings, and recommendations to judge. At the conclusion of any hearing conducted by a referee, he must promptly transmit to the judge all papers relating to the case along with his findings of fact and recommendations as to the disposition of the case. People in Interest of S.S.T., 38 Colo. App. 110, 553 P.2d 82 (1976).

Jury trial held before referee was improper. The trial court exceeded its jurisdiction in prescribing, instead of a jury trial and in lieu of a trial before a master or referee, a procedure whereby the parties were to have a "jury trial in all respects" but conducted by the referee, where it was agreed that the referee and the court would be bound by the jury verdict, although the jury was described as being "an advisory one". Maniatis v. Karakitsios, 161 Colo. 378, 422 P.2d 52 (1967).

C.R.C.P. 53(e)(2) inapplicable in dependency proceeding. C.R.C.P. 53(e)(2), which provides that in an action tried without a jury the court shall accept a master's or referee's findings of fact unless clearly erroneous, is inapplicable in a dependency proceeding because that is a statutory proceeding in which the statute supersedes the conflicting rule. People in Interest of S.S.T., 38 Colo. App. 110, 553 P.2d 82 (1976).

Grandmother required to file petition for district court review of magistrate's denial of motion to intervene before seeking appellate review in paternity action where grandmother sought to intervene for visitation rights. This section is properly applied, not C.R.M. 7, if parents have waived the right to a hearing by a judge. In re K.L.O-V., 151 P.3d 637 (Colo. App. 2006).

Period for filing requests for review. For purposes of subsection (5) the "conclusion of the [juvenile] hearing" does not occur until the juvenile commissioner signs the written findings and recommendations, and transmits them to the juvenile judge by filing in the office of the clerk. The five-day period within which to file a request for review does not commence running until the filing date. People ex rel. M.C.L., 671 P.2d 1339 (Colo. App. 1983).

A request for review of the commissioner's findings, filed within five days after the commissioner's written findings and recommendations are filed in the district court, is timely. C.T.R. v. R.C.S., 672 P.2d 548 (Colo. App. 1983).

And such review shall be before the district court. The statute calls for an initial decision by the commissioner, with the right of appeal to the judge. There is nothing in the statute providing for new trial or rehearing directed to the commissioner. M.E.G. v. R.B.D., 676 P.2d 1250 (Colo. App. 1983).

Under subsection (5), the district court reviews only the record of the hearing before the magistrate and its review is similar to an appellate review of the magistrate's decision. The review of the trial court's decision by an appellate court, therefore, is similar to a second level of appellate review. People ex rel. J.G., 97 P.3d 300 (Colo. App. 2004).

Magistrate has jurisdiction over juvenile's Crim. P. 32(d) motion to withdraw previously entered guilty plea until the proceedings have culminated in a final order or judgment. Juvenile sought to withdraw guilty plea based on ineffective assistance of counsel in delinquency action subject to deferred adjudication prior to the imposition of sentence. A magistrate is not prohibited from reviewing prior rulings, decrees, or other decisions in a case the magistrate is properly appointed to hear until there is a final appealable order or judgment. A guilty plea, prior to sentencing and entry of a judgment or conviction, does not constitute a final judgment or order. People in Interest of J.D., 2020 CO 48, 464 P.3d 785.

A party must present an issue to the district court in a petition for review before that issue may be raised in the court of appeals. A party seeking review of a magistrate's decision must raise a particular issue in the district court so that the district court may have an opportunity to correct any error that may have been made by the magistrate. If a party does not raise an issue before the district court in a petition for review, but raises the issue on appeal for the first time, such party seeks to have the court of appeals correct an error that could have been corrected by the district court in a petition for review. People ex rel. K.L-P., 148 P.3d 402 (Colo. App. 2006).

Because paternity actions are proceedings under article 4 of this title 19, a petition for review of a magistrate's ruling is a prerequisite before an appeal may be filed with the court of appeals or supreme court. The court of appeals and supreme court lack jurisdiction to review a magistrate's order if a district court did not review it. People in Interest of J.H., 2021 COA 94, 497 P.3d 20.

A juvenile must petition the district court for review of a magistrate's order revoking probation before the juvenile may pursue review by the court of appeals. People in Interest of A.P.H., 2020 COA 159, 478 P.3d 1284.

Appeal of magistrate's dispositional order in accordance with subsection (5.5) is not a jurisdictional prerequisite to appealing the district court's adjudicatory order to the court of appeals or the supreme court. The parties did not appeal the magistrate's dispositional order. The adjudicatory order became final and appealable upon entry of the disposition. People in Interest of R.J., 2019 COA 109, 451 P.3d 1232.

Reinstatement of magistrate's delinquency judgment by appellate court does not violate double jeopardy if the district court acting pursuant to subsection (5) erroneously reversed the judgment. People ex rel. J.G., 97 P.3d 300 (Colo. App. 2004).

Interpreting the filing requirement of subsection (5) liberally to account for the best interests of the child and avoiding a construction of the statute that would call into question its constitutional validity, district court was determined to be authorized to retain jurisdiction to consider a late-filed petition when the delay was excusable neglect and the department failed to raise the timing issue. C.S. v. People, 83 P.3d 627 (Colo. 2004); People ex rel. M.A.M., 167 P.3d 169 (Colo. App. 2007) (decided prior to 2007 repeal of subsection (5)).

For the purpose of evaluating a court's discretionary decision whether to accept an untimely petition for review of a magistrate's order pursuant to former subsection (5), "excusable neglect" shall be defined as a situation where the failure to act results from circumstances that would cause a reasonably careful person to neglect a duty. People ex rel. M.A.M., 167 P.3d 169 (Colo. App. 2007) (decided prior to 2007 repeal of subsection (5)).

District court's determination that counsel's misunderstanding of the law did not constitute good cause amounted to a finding that juvenile had not shown "excusable neglect". People ex rel. M.A.M., 167 P.3d 169 (Colo. App. 2007) (decided prior to 2007 repeal of subsection (5)).

Allegations of "inexcusable neglect" should be resolved by the district court in the course of determining whether there is good cause to consider juvenile's petition for review, even though there was no excusable neglect to justify its late filing. People ex rel. M.A.M., 167 P.3d 169 (Colo. App. 2007) (decided prior to 2007 repeal of subsection (5)).

Because a district court's review of a magistrate's order is effectively appellate in nature, the factors identified in Estep v. People, 753 P.2d 1241 (Colo. 1988), and People v. Baker, 104 P.3d 893 (Colo. 2005), are equally important when a juvenile's ability to obtain appellate review of a judgment of delinquency entered by a magistrate is foreclosed by counsel's failure to file a timely petition for district court review pursuant to former subsection (5) and should be considered as part of a determination whether there is good cause to permit the late filing of a petition for review. Only after a determination is made that counsel's acts or omissions were inexcusable should the court turn to the Estep-Baker analysis of whether other factors "weigh heavily" in favor of permitting the late filing. People ex rel. M.A.M., 167 P.3d 169 (Colo. App. 2007) (decided prior to 2007 repeal of subsection (5)).

Magistrate may not synthesize conflicting testimony. Where the magistrate apparently combined portions of two very different versions of the facts into a third version unsupported by the record, the magistrate's findings could not be upheld. Although the magistrate may believe all or part of the testimony of any witness, he or she may not create a version which is not supported by the testimony of any witness. People in Interest of R.A., 937 P.2d 731 (Colo. 1997).

Failure of commissioner to prepare a detailed written order as promised concerning child's placement in residential care facility excuses any delay by the school district in requesting review under either the "Exceptional Children's Educational Act" or the "Colorado Children's Code" because the time for filing for review would not begin to run until the written order was received. People v. Adams County Sch. Dist. No. 50, 732 P.2d 1222 (Colo. App. 1986).

Commissioner's statement at restitution hearing as to the amount of damages to be paid did not constitute sufficient findings to satisfy statutory requirement that findings be prepared at the conclusion of such hearing. People in Interest of A.R.M., 832 P.2d 1093 (Colo. App. 1992).

Mittimus order signed by commissioner two months prior to restitution hearing failed to satisfy statutory requirement that a written order be prepared. People in Interest of A.R.M., 832 P.2d 1093 (Colo. App. 1992).

District court did not provide a sufficient record to support its affirmation of the commissioner's order where commissioner failed to make sufficient findings at the conclusion of restitution hearing. People in Interest of A.R.M., 832 P.2d 1093 (Colo. App. 1992).

A court may consider a late petition for review, in accordance with subsection (5.5), if the court finds the delay is the result of a party's counsel's medical condition or need for medical care that constitutes excusable neglect. A party must show that the counsel's medical condition or need for care was so disabling as to prevent counsel from filing the petition or a request for an extension of time. People in Interest of L.B-H-P., 2021 COA 5, 482 P.3d 527.

Subsection (5.5) does not provide for district court review of magistrate's orders in proceedings under article 5 of this title. In a kinship adoption case, appeal is made directly to the appellate courts. In re C.A.B.L., 221 P.3d 433 (Colo. App. 2009).

Magistrate's finding under subsection (a)(3.5) that a juvenile is competent to proceed is reviewable by the juvenile court under subsection (5.5). People in Interest of A.T.C., 2023 CO 19, 528 P.3d 168.

Applied in People in Interest of J.F.C., 660 P.2d 7 (Colo. App. 1982); In re Petition of Taylor, 134 P.3d 559 (Colo. App. 2006).