1975, December, Pg. 2305. Preparation of the Appeal from an Administrative Decision.

• Author: by Harry S. Silverstein, Jr.

4 Colo.Law. 2305

Colorado Lawyer

1975.

1975, December, Pg. 2305.

Preparation of the Appeal from an Administrative Decision

2305Vol. 4, No. 12, Pg. 2305Preparation of the Appeal from an Administrative Decisionby Harry S. Silverstein, Jr. and Edwin G. RulandAs early as 1889, the General Assembly in Colorado recognized the need for creating state agencies to regulate areas of vital concern to the general public.(fn1) From that time to the present, the General Assembly has created in excess of 40 state administrative bodies whose action may be subject to judicial review.(fn2) In addition, some decisions of the boards of county commissioners and county agencies, as well as city councils and municipal agencies, may be appealed to the courts.(fn3)

Procedures for judicial review of the action of these various governmental bodies differ and are not readily ascertainable without careful research and analysis. Conversely, since these agencies have authority to and do regulate many aspects of professional, business, and personal life, it is not surprising that numerous cases have been filed seeking judicial review of agency proceedings.

Since there is no uniformity in the appellate procedures pertaining to the various agency decisions, it is also not surprising that many litigants have run afoul of procedural defects which have thwarted attempts to obtain judicial review on the merits. A book-length treatise would be required to develop and analyze fully the procedural steps for judicial review of the decisions of each of the many agencies. Accordingly, the purpose of this article is to suggest an analytical approach for the practitioner when he is confronted with a client's request to obtain judicial review of an administrative decision. For purposes of brevity, the term "agency" is used in this article to include any state, county, or city entity or school district whose action is subject to judicial review. The proper procedure for challenging the constitutionality of a statute, ordinance, or county resolution is beyond the scope of this article. However, some cases involving that issue have been included as illustrative of procedural problems in seeking judicial review of administrative decisions.

The analytical approach suggested here can perhaps be best stated in the form of questions which must be answered in preparing an appeal:

1. Has the agency acted in a quasi-judicial capacity?

2. If so, does the litigant have standing to challenge that action?

3. If the first two questions can be answered in the affirmative, has the litigant exhausted all administrative remedies?

4. If the first three questions can be answered in the affirmative, then it is critical for the practitioner to determine which type of procedure is applicable in judicial review of that agency's action, i.e., is judicial review available under the organic statute creating the agency, under the Administrative Procedure Act, as set forth in C.R.S. 1973, § 24-4-106, pursuant to C.R.C.P. 106, or is some other form of judicial review proper?

5. Finally, the practitioner must carefully

   2306analyze the question of what parties must be joined in the appeal.The Prerequisite of Quasi-Judicial ActionIt is axiomatic that judicial review is only available when an administrative agency acts in a quasi-judicial as distinguished from a quasi-legislative capacity.(fn4) While the question of whether a proceeding is quasi-judicial or quasi-legislative arises most frequently in conjunction with action taken by local agencies such as county boards or city administrators or agencies,(fn5) the issue also arises at times relative to the acts of state agencies.(fn6)

   Historically, the most common test used in determining whether agency action qualified as quasi-judicial was that of whether the function undertaken by the agency involved the exercise of discretion and required notice and a hearing.(fn7) As to municipal agencies, a recent case has reaffirmed this test, and the agency will be deemed to be acting in a quasi-judicial capacity if: (1) A state or local law requires that the agency give adequate notice to the community before acting; (2) a state or local law requires that the agency conduct a public hearing, pursuant to notice, at which time concerned citizens must be given an opportunity to be heard and present evidence; and (3) a state or local law requires the agency to make a determination by applying the facts of a specific case to certain criteria established by law.(fn8) Thus, for example, the adoption of a master plan for county zoning constitutes a legislative act whereas approval of an application to rezone a particular piece of property is considered a quasi-judicial act which is subject to judicial review.(fn9)

   Numerous state agencies exercise discretion in adopting rules, and oftentimes do so after public hearing with notice. If the agency is governed by the Administrative Procedure Act, then judicial review is available.(fn10) Hence, the quasi-legislative versus quasi-judicial distinction becomes relevant only when the agency is not governed by the Administrative Procedure Act.(fn11)

   Assuming that the agency action may be classified as quasi-judicial, the practitioner must next address the question of standing.

   Standing

   To establish standing, the litigant must show that he is aggrieved or adversely affected by the agency action.(fn12) This burden is not difficult to sustain when a party appears before an administrative agency relative to a complaint against him upon which the agency takes some action adverse to him.(fn13) However, if the agency action affects numerous parties, it would appear that the litigant must first show that he is within the class of persons affected by the agency action and also that he has been personally adversely affected.

   To illustrate, while the various members of an association of chiropractors might be adversely affected by a statute governing other physicians, the association has no standing to challenge the statute because it is not within the class of persons the statute was designed to protect.(fn14) Also, residents outside the city boundaries have no standing to challenge the manner in which zoning regulations are adopted for an area of the city.(fn15) On the other hand, even when a litigant establishes that he is within the general class of persons covered by the agency action, as, for example, a resident of the city covered by an ordinance, to achieve standing he must also show that he is personally adversely affected thereby.(fn16) Thus, although the resident of a city may have no standing to challenge an annexation,(fn17) once territory is annexed he may then have standing to challenge the zoning adopted for the annexed territory.(fn18)

   When the practitioner is satisfied that the agency has taken quasi-judicial action and that his client has standing to challenge that decision, the practitioner must next examine the applicable administrative procedures to make certain that no additional review is allowed within the agency framework.

   Exhaustion of Administrative Remedies

   An oft cited maxim in the law governing administrative appeals is that the litigant

   2307must first exhaust all administrative remedies prior to seeking judicial review.(fn19) Like most maxims, there are some exceptions.(fn20) However, the rationale behind this principle is such that the practitioner is well advised to consider the exhaustion doctrine carefully before proceeding with judicial review.

   The basis for the rule is twofold: (1) Unless the administrative remedies are exhausted, the court is required to remedy an alleged error which the agency might have corrected on its own, thus making inefficient use of judicial resources;(fn21) and (2) unless the administrative remedies are exhausted, the problem of "piecemeal" review exists.(fn22) Litigants who have ignored this principle have suffered defeat in various and diverse areas of administrative review without resolution of the merits of their claim, as, for example, in challenging general property taxes,(fn23) the transfer of a liquor license,(fn24) issuance of a building permit,(fn25) eligibility for promotion in employment,(fn26) and zoning decisions.(fn27)

   As a corollary to this same principle, generally the litigant may not request a court to intervene prior to the time that an agency has initiated action to enforce any rule,(fn28) or, if such action has been commenced, prior to the time the agency has completed its proceedings relative thereto.(fn29)

   If the practitioner is satisfied that the agency has taken quasi-judicial action, that his client has standing, and that no further administrative review is available, he must next consider which statute or rule governs an appeal to the courts.

   Appellate ProcedureIn determining which appellate procedure applies to a given agency, resort must first be made to the organic statute governing the agency. The importance of this requirement can best be illustrated by noting the divergent courses of action which various statutes require. Thus, for example, judicial review of the decisions of most of the agencies begins in the district court.(fn30) However, review of decisions of the Industrial Commission in workmen's compensation and...