Judges Granted Rights Over Cites
by Craig Eley
hat do retired judges and retired NFL players have in common? Both groups claim to be suffering from inadequate retirement benefits. Depending on how long ago they retired, both judges and quarterbacks complain that by today’s standards, they have been left far behind in their golden years.
Although the NFL has not yet come up with a plan for supplementing the income of veterans of gridiron wars, retired judges in some states, including Colorado, are about to see some relief.
The plan, in its simplest terms, is for a judge’s state retirement account to be paid a small royalty every time a decision authored by that judge is cited in a pleading or brief. With most legal documents these days being filed electronically, it is a simple process for them to be scanned and the citations identified and accounted for. In Colorado, this task will be accomplished by those companies that have been designated by the Colorado State Judicial Branch to accept and transmit e-filings to courts.
For each citation that appears in a legal document, the filer will be charged 85 cents. Ten cents of this amount will be retained by the e-filing company to compensate it for the scanning and accounting services it will perform. The remainder will be collected by the judicial branch and then deposited into the retirement account of the judge who wrote the opinion. In the event an opinion is co-authored, the payment will be divided between two or among more accounts.
After receipt of a document from a party, the e-filing company will send an email to the filer of the document, which will itemize the number of citations found and the total cost for that document. This will allow the filer to bill the proper amount to his or her client. The filer will not be charged for the citations at that time, however. As a convenience to the bar, it has been decided that a single statement will be sent to the filing attorney when the Colorado Supreme Court distributes its annual invoice for attorney registration. To maintain active status as an attorney, the attorney will have to pay not only the annual registration fee, but also the accumulated citation royalty charges.
This plan has been touted as having some salutary effects beyond augmenting judicial retirements. It will inspire judges to write quality decisions that will more likely be candidates for future citation. It also will discourage attorneys from citing endless strings of citations that support that same hypothesis.
Where a judge is deceased, but his or her retirement account is still paying a surviving spouse, royalty payments will continue to be deposited into the retirement account. After the death of the spouse, the retirement account will close, and future royalties will go to a common fund.
The common fund will receive royalty payments for citations so old that no state retirement account exists, or for federal or out-of-state citations that would have no associated Colorado state retirement account. Each year, the common fund receipts will be divided among all the existing retirement accounts on a pro rata basis: a judge who has more decisions cited during the year will receive a larger portion of the common fund in his or her retirement account.
Also going into the common fund will be “bundling fees.” These will result from special promotions designed to save law firms money and make accounting easier. For example, a law firm will be permitted to purchase a bundle of pre-1950 citations for a flat fee of $500 per year, regardless of the size of the firm. Also contemplated is a “Supra Sale” during certain months of the year, where second and subsequent citations of the same decision in a brief are half-price.
This plan, which is being promoted by e-filing companies, has been adopted in a number of other states. It is expected that eventually these states will enter into cooperative agreements, whereby payment for citations of out-of-state decisions will be forwarded to the judges of those states.
Although the Colorado Supreme Court has made this plan effective April 1, the court is still taking suggestions for fine-tuning the program. For example, should the amount of royalty paid if one quotes an entire poem by Justice Gregory Hobbs in a brief be the same as making a simple case citation? Also, if a cited decision is later overturned, should the royalty fee be refunded?
Regardless of how some of these issues are resolved, there is no doubt that this new plan will have the beneficial effects of attracting more qualified attorneys to the bench, increasing judges’ enjoyment of their retirement years, making briefs briefer, and encouraging high-quality written decisions. D
Craig Eley is an administrative law judge for the Colorado Division of Workers’ Compensation whose written decisions probably will never be cited by anyone for anything. He can be reached at email@example.com.