People Ex Rel. Sullivan v. Swihart

897 P.2d 822, 19 Brief Times Rptr. 1014, 1995 Colo. LEXIS 260, 1995 WL 354277

• Court: Supreme Court of Colorado
• Decided: June 12, 1995
• Docket: 95SA57
• Status: Published

Opinions

Justice SCOTT

delivered the Opinion of the Court.

We accepted jurisdiction of this matter¹ to decide whether the district court erred when it ruled that the Chief Judge of the Eighth Judicial District lacks the authority, absent supreme court approval, to issue a standing order prohibiting the unauthorized possession of a deadly weapon or firearm within the district court area of the Larimer County Courthouse. The People, appellants here, appealed the district court’s order vacating a contempt citation and discharging the order to show cause issued to Michael Swihart (the “appellee”). Because we find that a chief judge of a judicial district has the authority to issue and enforce orders for the proper administration of justice, including the power to regulate firearms within the courthouse, and because we find that C.R.C.P. 121 is not applicable here, we conclude that the use of the standing order by the chief judge is valid. Accordingly, we reverse and remand with directions.

I

On September 2, 1993, the Chief Judge of the Eighth Judicial District issued Standing Order 93-2,² prohibiting all persons, including law enforcement officers acting within the performance of their duties, from carrying any firearm or deadly weapon on the second floor of the Larimer County Courthouse located in Fort Collins, Colorado. On or prior to September 3, 1993, Standing Order 93-2 had not been submitted to or approved by the supreme court.

On September 2, 1993, appellee, a uniformed police officer with the Fort Collins Police Department, appeared pursuant to a subpoena requiring his testimony in proceedings before the Larimer County District Court. Appellee entered the secured area of the second floor of the Larimer County Courthouse in possession of a firearm. When asked to surrender his firearm in compliance with Standing Order 93-2, appellee refused to do so even though he was aware of the existence and proscriptions of Standing Order 93-2. A security officer then told the appellee to either surrender his firearm or leave the courtroom. At that time and without incident, appellee left the courtroom.

On November 3, 1993, the appellee was ordered to show cause why he should not be held in contempt for violating Standing Order 93-2.³ After retaining counsel, appellee filed a motion to disqualify Chief Judge John David Sullivan which was granted. Because “all four district judges voted to prohibit firearms and other weapons,” Judge Sullivan’s order effectively recused all the judges of the Larimer County District Court. After the appointment of a senior judge to preside over the district court contempt proceedings, appellee filed a motion to vacate the contempt citation.

On December 17,1993, after a hearing, the district court granted appellee’s motion to vacate and discharged the show cause order on the grounds that Standing Order 93-2 was null and void as having been issued (1) in excess of the authority of the chief judge, and (2) without supreme court approval pursuant to C.R.C.P. 121 and Chief Justice Directive 85-01, “Authority and Responsibility of Chief Judges” (CJD 85-01). In so ruling, the district court opined that “a chief judge doesn’t have the authority, by himself or herself, to issue an order such as Standing Order 93-2.”

The People subsequently appealed the district court’s ruling to the court of appeals. On certification by that court, we accepted jurisdiction.

ii

The district court ruled that since “the chief judge of a judicial district [has] only those powers and duties as authorized by the chief justice,” and since CJD 85-01, which delineates the authority and responsibility of chief judges, does not specifically confer upon chief judges the power and authority to promulgate a standing order such as 93-2, the order was not valid. We disagree.

CJD 85-01, promulgated in 1985,⁴ delineates the authority of the chief judge of each judicial district as to administrative matters.⁵ We find that Standing Order 93-2 was issued as part of the administrative authority of the chief judge.⁶

CJD 85-01 provides in pertinent part: “The Chief Judge is the administrative head of all district and county courts within a district.” As such, the chief judge must have the ability to assure that order is maintained and to control security as it relates to the district court courtrooms. The chief judge, with the concurrence of the other district judges, issued Standing Order 93-2 to assure the proper functioning of the district court. Moreover, by its terms, the order limited its effect to the second floor of the Larimer County Courthouse, where the district court courtrooms are located and thus the particular location where violence or the threat of violence may interfere with the operation of the courts and pose the greatest threat to the administration of justice.

Thus, Standing Order 93-2 is a valid exercise of Chief Judge Sullivan’s administrative authority to ensure that the operation of the district court of the Eighth Judicial District is not thwarted or obstructed by the unauthorized use of firearms.

III

The district court also ruled that because Standing Order 93-2 was not submitted to this court for approval in accordance with C.R.C.P. 121 and CJD 85-01, it was of no effect.

C.R.C.P. 121 states:

(a) Repeal of local rules. All .District Court local rules, including local procedures and standing orders having the effect of local rules, enacted before April 1, 1988 are hereby repealed.

(b) Authority to enact local rules on matters which are strictly local. Each court by action of a majority of its judges may from time to time propose local rules and amendments of local rules not inconsistent with the Colorado Rules of Civil Procedure or Practice Standards set forth in C.R.C.P. 121(c), nor inconsistent with any directive of the Supreme Court. A proposed rule or amendment shall not be effective until approved by the Supreme Court.

The defendant suggests that the terms “directives,” “local rules” and “standing orders” are used interchangeably, and all such actions of a chief judge are subject to the supreme court approval provisions of Rule 121. We disagree.

C.R.C.P. 121(a), by its terms, draws a clear distinction between “standing orders having the effect of local rules” and those which do not. It follows, then, that not all standing orders are local rules. Accordingly, we must determine when standing orders have the effect of local rules.

C.R.C.P. 121 does not mandate that all judicial orders be reviewed by this court. The purpose of Rule 121 is to provide uniformity among the various district courts of our twenty-two judicial districts as to procedural matters.⁷ Absent such uniformity, there is significant risk that lawyers and litigants will be subjected to a patchwork of rules establishing many different practices, potentially resulting in surprise or unanticipated local process when appearing in different districts. Thus, consistent with the goal of uniformity in court procedures and the rule’s plain language, we find that only those standing orders which address procedural matters involving the actual dispute before the court have the effect of local rules. We conclude that Rule 121 contemplates supreme court approval only for standing orders which affect the procedural rights of litigants before the court.

Seeking affirmance, appellee relies primarily on Walsmith v. Lilly, 194 Colo. 270, 571 P.2d 1107 (1977), and Halliburton v. County Court, 672 P.2d 1006 (Colo.1983), for his assertion that the standing order has no effect absent supreme court approval. The “rules” in Walsmith and Halliburton, however, involved the type of procedural matter contemplated by Rule 121. Halliburton and Wal-smith both involved a Denver District Court “directive or local court rule” which authorized the court to order a change of venue on its own motion in certain situations. This court found such rules of court to be justified, but subject to the requirements of C.R.C.P. 83 (now C.R.C.P. 121). See Halliburton, 672 P.2d at 1010 n. 3; Walsmith, 194 Colo. at 272, 571 P.2d at 1109. Orders regarding venue requirements clearly come within the purview of Rule 121, as they affect the procedural rights of litigants before the court.

Conversely, Standing Order 93-2 does not involve standards for practice in different courtrooms, thus it does not affect the procedural rights of litigants. Rather, it involves specific security concerns of all the judges of the district court as to persons who visit the Larimer County Courthouse, matters of an administrative nature. We need not pass upon every order issued by a chief judge regarding administrative matters which do not affect the rights of parties in disputes before the court. Thus, since Standing Order 93-2 does not “have the effect of local rules,” as contemplated by Rule 121, Rule 121 does not apply here.

Similarly, CJD 85-01 does not require that Standing Order 93-2 be submitted to this court for approval. CJD 85-01 requires:

Local rules of practice and procedure must be approved by the Supreme Court. Proposed local rules are to be submitted to the Supreme Court by the Chief Judge through the office of the state court administrator. Proposed rules for the Denver County, Juvenile, Probate and Superior courts shall be submitted by their respective presiding judges in the same manner.

Because CJD 85-01 specifically excludes from its reach orders that, in effect, are not “[ljocal rules of practice and procedure,” Standing Order 93-2 need not be submitted to this court for approval pursuant to CJD 85-01.⁸

Accordingly, we conclude that Rule 121 and CJD 85-01 do not stand as a bar to the validity of Standing Order 93-2.

IV

In sum, pursuant to CJD 85-01, a chief judge may issue orders of an administrative nature to assure that the district court is able to reasonably perform its judicial functions. The chief judge issued Standing Order 93-2 to assure the security of the Larimer County District Court so that its district judges can administer justice in an orderly and dignified atmosphere. Moreover, because Standing-Order 93-2 does not have the effect of a local rule, C.R.C.P. 121 does not mandate prior approval by the supreme court. Therefore, the order was a valid and proper exercise of the chief judge’s administrative authority.

Accordingly, we reverse the district court’s ruling and remand this case to the district court with directions that it reinstate the contempt citation and the order to show cause.

LOHR, J., dissents, and KIRSHBAUM, J., joins in the dissent.

1 . We accepted jurisdiction over this matter pursuant to § 13-4-109, 6A C.R.S. (1987), which provides that the court of appeals, prior to determination, may certify a case pending before it to the supreme court for consideration. As contemplated by the statute, we may accept the case or remand and return it to the court of appeals for final determination.

2 . Standing Order 93-2 provides, in pertinent part, that:

no person shall bring in, possess, or carry any deadly weapon or firearm on the Second Floor of the Larimer County Courthouse, except for assigned Courthouse security personnel.

This Order shall apply to all persons including peace officers who are otherwise authorized to possess and carry firearms while acting within the scope of their official public law enforcement employment, and also to persons with written permits for concealed weapons, except, as stated, assigned Courthouse security personnel.

Any deadly weapons or firearms which are seized within the Larimer County Courthouse, shall be forfeited, destroyed, or otherwise disposed of, upon order of the Court.

3 . The original citation to show cause was issued on September 3, 1993, and was modified on November 3, 1993.

4 . CJD 95-01, promulgated in 1995, now supersedes CJD 85-01.

5 . The directive permits chief judges to exercise power over administrative relationships among judges, delegation of responsibility for the day-today administrative operations of the court, appointment of an acting chief judge, proposal of local court rules, assignment of judges, judicial schedules and court hours, case assignment and calendaring procedures, requests for judicial assistance, authorization for leave of judges and court employees, reassignment of employees, personnel responsibilities and budget and fiscal responsibilities.

6 .Because we resolve this dispute based upon the chief judge’s administrative authority existing under CJD 85-01, we need not and do not discuss other sources of authority of a chief judge. Thus, although in Board of County Commissioners v. Nineteenth Judicial District, No. 94SC655 (Colo. May 22, 1995), we acknowledged our constitution as the "source” of judicial power, we express no opinion as to the inherent power or authority of judges here.

7 . See Rule 121 § 1-1 (committee comment) ("This standard was necessary because there was no uniformity among the counties."); Rule 121 § 1-3 (committee comment) ("This Practice Standard is designed to make handling of collection of jury fees uniform throughout the state.”); Rule 121 § 1-5 (committee comment) ("This Practice Standard was made necessary by lack of uniformity throughout the districts concerning access to court files.”); Rule 121 § 1-15 (committee comment) ("This Practice Standard was necessary because of lack of uniformity among the districts concerning how motions were to be made, set and determined.”); Rule 121 § 1-18 (committee comment) ("This Practice Standard ... attempts to make procedures reasonably uniform.”); Rule 121 § 1-19 (committee comment) ("This standard makes preparation and timing of submission of jury instructions uniform throughout the state.”); Rule 121 § 1-21 (committee comment) ("This Practice Standard sets forth uniform requirements for obtaining, paying for, certification and removal of court reported transcripts.”).

8 . We note that it is of no import that several other district courts have included in their local rules of procedure prohibitions regarding firearms. Just because other jurisdictions have sought and received supreme court approval for local rules prohibiting firearms does not mean that all orders regarding firearms must be approved by this court to have effect.