Chapter 29.3 - The Colorado Rules Governing the Creation, Appointment, Terms, and Procedure for the Public Defender Commission(1) Pursuant to Section 21-1-101 , Colorado Revised Statutes, as amended, the Colorado Supreme Court hereby creates and establishes the Colorado Public Defender Commission. The commission shall have the following duties: a. To appoint the Colorado State Public Defender; b. To receive and act upon complaints made against the Public Defender; and c. To remove the Public Defender upon a showing of adequate cause as set forth in these rules. (2) The commission shall consist of five members appointed by the Chief Justice for staggered five-year terms beginning July 1, 1979. The Chief Justice shall determine the length of the initial term of each member, if such term is less than five years, to create the staggered full terms. In making appointments to the commission, the Chief Justice shall adhere to the qualifications and disqualifications set forth in Section 21-1-101(2), Colorado Revised Statutes, as amended, and shall take into consideration those matters set forth in the statute regarding place of residence, sex, race, and ethnic background. (3) Any vacancy in the membership of the commission shall be filled by appointment by the Chief Justice in accordance with the membership qualifications stated above, and for the balance of the term remaining for the vacant position. A member of the commission shall be deemed to have resigned if that member is absent from three consecutive commission meetings. (4) Any member of the commission may be reappointed for one full term following that member's initial term. (5) The commission shall select a chairman from among its members. The chairman shall serve at the pleasure of the commission, and the chairman shall suffer no disqualification or impediment to his vote as a consequence of his occupying the position of chairman of the commission. The commission shall keep minutes of its meeting. (6) The commission shall meet at least annually, and also upon the call of the chairman when necessary to consider appointment, tenure, or removal of the Public Defender. (7) Three members shall constitute a quorum of the commission. The affirmative vote of four members of the commission is required for a decision to appoint or remove the Public Defender. Any other act of the commission requires the affirmative vote of a majority of the quorum, or, if more than a quorum is present, of the members present. (8) In accordance with the procedure set forth below, the person serving as the Public Defender may be removed for permanent physical or mental disability seriously interfering with the performance of his duties, willful misconduct in office, willful or persistent failure to perform his duties, conduct prejudicial to the administration of justice, documented incompetence, or violation of any applicable canon or disciplinary rule contained in the Code of Professional Responsibility. (9) Members of the Public Defender Commission shall serve without compensation but shall be reimbursed for actual and reasonable expenses incurred in the performance of their duties. (10)Procedure for Appointment of the Public Defender. Any time a vacancy exists in the position of Public Defender, either by removal or resignation of the person serving as Public Defender or at the expiration of the term of any incumbent Public Defender, the commission shall select and appoint a person to serve as Colorado State Public Defender. The commission may reappoint an incumbent Public Defender. The selection and appointment of the Public Defender shall be based solely upon the merit of the appointee, pursuant to such procedures as the commission may adopt and in conformity with the qualifications set forth in section 21-1-102 , C.R.S., as amended. (11)Hearing Examiner. The commission may appoint one or more hearing examiners to conduct hearings in removal cases. Each hearing examiner shall be an attorney who has practiced law in Colorado for at least five years. A hearing examiner may be appointed for a two-year term to handle cases referred to him during his term by the commission. He shall be compensated on the basis of the actual time spent on commission matters at a rate to be established by the commission, in addition to reimbursement for actual expenses incurred. A hearing examiner and any commission member shall have the power to administer oaths and to issue subpoenas and subpoenas duces tecum for hearings conducted under these rules. (12)Procedure for Removal of the Public Defender.a. Any person seeking discharge of the Public Defender shall file a written complaint with the commission chairman requesting the Public Defender's discharge and stating all facts the complainant deems necessary to justify the discharge of the Public Defender. The complainant shall transmit copies of his complaint to the Public Defender. b. The Public Defender shall file a response to the complaint with the commission chairman within ten days following receipt of the complaint, responding to the allegations of the complaint, and justifying whatever action is the subject of the complaint. c. One member of the commission, selected by rotation of the commission members, shall consider the complaint and response and shall recommend to the commission either that the allegations and response justify a hearing or that the matter should be ruled upon by the commission without a hearing. The commission shall thereupon decide whether or not to hold a hearing. The Public Defender shall not be discharged unless a hearing is held. d. If the commission determines not to hold a hearing, it shall so notify the parties, stating the matters considered and reasons for denying the hearing. The commission shall then decide the matter of the complaint upon the documents submitted by the parties without a hearing and shall dismiss the complaint or order such remedial action as the commission deems appropriate under the circumstances. The commission shall notify the complainant and the Public Defender of the commission's decision. e. If the commission determines to hold a hearing, it shall so notify the parties, the hearing examiner, and all the interested and concerned parties. The hearing examiner shall set a convenient date and place for the hearing, to be held within thirty days after notification by the commission. Hearings shall be open to the public, unless a closed hearing is requested by the complainant or the Public Defender and ordered by the hearing examiner, and shall be recorded verbatim either stenographically or electronically. f. Hearings shall be conducted in accordance with the provisions and procedures prescribed by Section 24-4-105 , C.R.S., as amended, and the hearing examiner shall have the power therein granted, except that where such provisions are in conflict with the provisions of these rules, these rules shall control. g. The hearing examiner shall conduct the hearing and shall afford the parties opportunity to introduce evidence, including testimony and statements of the complainant, his representative, if any, the Public Defender, his representative, if any, and other witnesses, and to cross-examine witnesses. The testimony received shall be under oath or affirmation. h. Rules of evidence shall not be applied strictly, but the hearing examiner shall exclude irrelevant or unduly repetitious evidence. i. The burden of initially going forward to show jurisdiction of the commission and the factual basis for the requested discharge of the Public Defender shall be upon the complainant. If the hearing examiner is satisfied that the complainant has met this burden after hearing the complainant's evidence, the hearing examiner shall so rule, and the burden of going forward shall then shift to the Public Defender to show that the action complained of did not occur, or if it did occur, that it was based upon good or justifiable cause. j. Upon hearing the evidence and statements of the parties, and after such deliberation as necessary, the hearing officer shall make findings and a recommended decision on the issue of whether the Public Defender should be discharged, or whether the complaint should be dismissed. Any recommended decision of the hearing examiner to discharge the Public Defender shall be based upon clear and convincing evidence. k. The hearing examiner shall issue a written decision and shall send copies thereof to the commission and to the parties and their representatives, if any. The decision shall contain findings, recommendations for any action, and notification of the right of either party to appeal directly to the commission. The decision shall include an analysis of the findings and a statement of the reasons for the conclusions reached. The commission, on its own motion or upon petition to review by an interested party, may affirm, modify, reverse, or set aside any decision of a hearing examiner on the basis of the evidence previously submitted in the case. The commission may also take additional evidence, or it may remand to the hearing examiner for the taking of additional evidence and a new decision. Unless the commission acts to the contrary, the decision of the hearing examiner shall become the decision of the commission and shall be carried into effect within twenty calendar days after issuance by the hearing examiner. l. Either party may appeal the decision of the hearing examiner to the full commission. Such appeal shall be filed with the chairman of the commission. An appeal to the commission shall be in writing, setting forth the reasons for the appeal, and shall be filed with the commission within fifteen calendar days after the receipt of the decision of the hearing examiner. The commission may extend this time limit when a party shows that circumstances beyond his control prevent the filing of the appeal within the time limit. If an appeal is filed, the decision shall not be given effect until the commission has decided the appeal. m. The commission shall review the record of the proceedings, all relevant written representations, and the decision of the hearing examiner. The record of proceedings may include such portions of the transcript of the hearing as may be necessary to consider the exceptions. Transcripts shall be furnished by the party appealing. The commission, may, in its discretion, afford the parties opportunity to appear and present oral arguments and representations. n. The commission shall issue a written decision, which may consist of an affirmation without comment of the decision of the hearing examiner, and shall send copies thereof to the parties and their representatives, if any. Such decision of the commission shall be subject to court review, as provided below. (13)Court Review.a. No action, proceeding, or suit to set aside a commission decision or to enjoin the enforcement thereof shall be brought unless the petitioning party has first petitioned the commission for review of its decision, and no matter not brought to the commission's attention in the petition for review shall be considered on judicial review. b. Actions, proceedings, or suits to set aside, vacate, or amend any final decision of the commission or to enjoin the enforcement of any final decision of the commission shall be on the record only and commenced in the Supreme Court within twenty days after notification of the final decision. c. The commission may certify to the Supreme Court questions of law involved in any of its decisions. d. In judicial proceedings under this article, the findings of the commission as to the facts, if supported by substantial evidence and in the absence of fraud, shall be conclusive. e. Actions, proceedings, and suits to review any final decision of the commission or questions certified to the Supreme Court by the commission shall be heard in an expedited manner and shall be given precedence over all other civil cases. f. A commission decision may be set aside only upon the following grounds: 1. That the commission acted without or in excess of its powers; 2. That the decision was procured by fraud; 3. That the findings of fact do not support the decision; 4. That the decision is erroneous as a matter of law. g. In any action in which the plaintiff seeks judicial review of a commission final decision made after a hearing, the parties shall file briefs within the time periods specified in the Colorado appellate rules, and the matter shall be set promptly for oral argument. h. Pending judicial review of a final decision of the commission discharging the Public Defender, the commission shall appoint an acting Public Defender, and the discharged Public Defender shall be in the status of suspension without pay. If the reviewing court reverses the commission and reinstates the Public Defender, the Public Defender shall be entitled to full compensation from the time of his being placed in status of suspension. Adopted by the SUPREME COURT OF COLORADO Effective 9/13/1979.