Original Proceedings in the Colorado Supreme Court
| Publication year | 1983 |
| Pages | 413 |
1983, March, Pg. 413. Original Proceedings in the Colorado Supreme Court
William H. ReMine, Denver, is an associate of the firm of Montgomery Little Young Campbell & McGrew, P.C.
Each year the Colorado Supreme Court decides a number of important issues through original proceedings rather than by appeal. In 1977 and 1978, for example, it set standards for destructive testing in products liability cases and declared the existing death penalty statute to be unconstitutional.(fn1) In 1979 it adopted the concept of irreversible brain death for the first time in this state.(fn2) Two 1980 cases examined the reach of the long-arm statute, finding the requisite contacts for in personam jurisdiction had been provided by the marketing activities of a French corporation and by the professional services of a Virginia attorney for a Colorado resident.(fn3) The following year, the Court established guidelines for when tape-recorded depositions may be taken in pretrial discovery.(fn4)
These and other cases underscore the significance of original proceedings in modern litigation. In each instance, the case was brought directly from a district court to the Supreme Court to resolve a question of public importance arising out of the controversy. Historically, a few exceptional cases have been commenced in the Supreme Court itself, but for the most part original proceedings have been directed to some action or refusal to act by a district court or other court of first impression.(fn5)
This article discusses the nature of original proceedings, the grounds for jurisdiction and the forms of relief available. It also covers the procedural requirements under Colorado Appellate Rule 21 and selected cases. Finally, it examines the recent trend where discretion to hear original proceedings has been expanded when discovery rulings and other pretrial orders significantly affect the ability of the parties to litigate the merits.
Although the Supreme Court is primarily and essentially a court of appellate jurisdiction, the Colorado Constitution reposes in it a separate, original power to issue remedial writs. Thus, §§ 2 and 3 of Article VI(fn6) provide:
Section 2. Appellate jurisdiction. (1) The supreme court, except as otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be coextensive with the state, and shall have a general superintending control over all inferior courts, under such regulations and limitations as may be prescribed by law.
Section 3. Original jurisdiction---opinions. The supreme court shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, injunction, and such other original and remedial writs as may be provided by rule of court with authority to hear and determine the same;...
From the outset, case law has regarded these two sections as distinct in purpose. The leading case of Wheeler v. Northern Colorado Irrigation Co.(fn7) in 1886 rejected the theory that original writs are an appendage of appellate review. The argument had been raised that these writs could be used only in aid of appellate jurisdiction(fn8) or for superintending control over inferior courts.(fn9) However, the opinion demonstrated the constitutional intent that the Supreme Court should possess a separate, though limited, original jurisdiction.
It noted first that § 2, by declaring the Court's jurisdiction to be appellate "except as otherwise provided in this constitution," implied the conferring of some independent original jurisdiction. Second, at least two of the writs designated in § 3 could not be used in aid of appellate jurisdiction nor were they appropriate to the exercise of superintending control of inferior courts.(fn10) Finally, both appellate jurisdiction and superintending control, without any express provision on the subject, carry with them the authority to issue all writs appropriately connected with the duties imposed.(fn11) If the argument of counsel had been correct, then § 3 would have been entirely unnecessary. Its provisions could have been stricken, and the authority of the Court would remain wholly unchanged. Such a view was held inconsistent with settled rules of construction.
Wheeler went on to explain that all of the writs named in the Constitution, save injunction, were "prerogative writs"(fn12) of the old common law. The writ of injunction, by reason of association, was considered quasi-prerogative. These writs differ in character from the usual processes of courts by which controversies between private parties are settled. They are designed for the protection of the interests of the state at large where a sufficient remedy is otherwise unavailable,(fn13) and they extend to two classes of cases. The first is where a sovereign interest of the state is directly involved, as where a usurpation or illegal use of its prerogatives and franchises is the principal issue. The second is where, in exceptional circumstances, a private controversy also affects a question of public importance and a refusal to take jurisdiction would practically amount to a denial of justice.
While Wheeler laid the groundwork for the constitutional understanding of original jurisdiction, it was left to other cases to express the details of how the writs were meant to operate. It was soon held that unlike appellate jurisdiction, the authority to hear and determine original proceedings cannot be abridged or enlarged by the legislature.(fn14) The distinction from appellate review was also sharpened by recognition of the manner in which original jurisdiction is employed. The function of an appeal is to correct error. By contrast, the original writs go to accomplish specific objects, carrying with them the special mandate of the sovereign addressed to a person or lower court.(fn15) Their purpose is to command the performance of a duty required by law or to require the person or court to abstain from the exercise of power without lawful authority. The process issues in the form of an order or rule to show cause why the specific relief should not be granted and made absolute.
An original proceeding is an extraordinary remedy and does not lie where ordinary forms of relief are adequate and available; it may not be used as a substitute for appeal.(fn16) On the other hand, the fact that an action by a lower court may later be considered on appeal is not dispositive if the remedy by appeal would be inadequate.(fn17) Thus, the rule has been stated that the original jurisdiction of the Supreme Court may be invoked where an appeal would not be a "plain, speedy and adequate remedy."(fn18) In such circumstances, the Supreme Court may intervene to resolve a question of public importance, even though the case has not proceeded to a final judgment.
A recent example of this is a 1980 case involving a trial court's order that a civil defendant disclose his income and net worth.(fn19) The plaintiff had not demonstrated a prima facie case for punitive damages, without which the information would be irrelevant at trial. A second example, a 1977 case, involved an order that a civil plaintiff submit to a psychiatric examination.(fn20) There was a dispute over whether he had placed his mental condition in controversy. The issue in both instances was a party's right to privacy and freedom from harassment versus the broad policy favoring liberal pretrial discovery. It was apparent that the remedies by appeal would have been futile. Had the Supreme Court not exercised its original jurisdiction, post-judgment appeals could not have cured the adverse consequences of the discovery orders.
The concept of no plain, speedy and adequate remedy by appeal has led to a handful of decisions on whether the prospective delay and expense of trial may be urged as grounds for original jurisdiction. A few isolated cases have considered it as a factor, but they may be explained by the fact that the relief granted was to prohibit a trial court from proceeding in excess of its jurisdiction.(fn21) There is authority that the probability of irreparable injury from delay or expense may satisfy the test,(fn22) but situations where the harm would be irreparable are uncommon. The general rule is that prospective delay and expense do not make the appellate remedy inadequate. The mere fact that proceedings may be expensive and may result in ultimate reversal of the trial court is insufficient for a resort to original proceedings.(fn23)
The potential scope of original proceedings is also limited by the availability of similar forms of relief in the district courts. At an early date, it was recognized that the state constitution vested an implied power in the district courts to issue remedial writs analagous to those of the Supreme Court.(fn24) These are currently embodied in Rule 106 of the Colorado Rules of Civil Procedure. When adequate relief can be afforded under Rule 106 or, for that matter, through an equitable or declaratory remedy, the Supreme Court will not exercise original jurisdiction.(fn25) As discussed below regarding individual writs, this eliminates practically all cases calling for relief in the nature of habeas corpus, quo warranto or injunction.
In all instances, the decision whether to hear an original proceeding is discretionary. The issuance of a rule to show cause is not a matter of right, but rests in what has been called the "cautious discretion" of the Supreme Court.(fn26) Each petition is considered on its own circumstances, and only in exceptional cases will a petition be granted. The burden of persuasion is particularly great where the Supreme Court is asked to intervene in a case...
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