General Principles of the Colorado Administrative Procedure Act
| Publication year | 1987 |
| Pages | 1983 |
| Citation | Vol. 15 No. 9 Pg. 1983 |
1987, November, Pg. 1983. General Principles of the Colorado Administrative Procedure Act
In view of the evolving complexity of administrative law and the interplay of legal concepts beyond the immediate statutory framework, it is difficult to formulate general principles with respect to the Administrative Procedure Act ("state APA").(fn1) Therefore, this article attempts only to identify certain highlights.(fn2)
Administrative law concerns the powers of administrative agencies, including the law governing judicial review of administrative actions.(fn3) The state APA makes no provision for the creation of particular agencies; this is done by the Administrative Organization Act of 1968, sometimes referred to as the "Organic Act."(fn4)
Crucial to any administrative law matter is the question of whether a particular administrative agency is exceeding its power and impinging upon the power of the legislature or the judiciary, or is violating the rights of another party. Likewise, the inquiry often becomes one of to what extent discretion should be controlled.
The U.S. Supreme Court repeatedly has indicated that Congress cannot delegate legislative power, although it never actually held as such.(fn5) The Court has taken the position, in delineating a "non-delegation doctrine," that Congress must state or provide meaningful standards when it delegates legislative power.(fn6) A number of federal statutes do delegate legislative power without meaningful standards.(fn7)
Only two delegations by Congress to public authorities have ever been held unconstitutional by the Supreme Court, but numerous delegations by state legislatures have been invalidated. Even during the 1980s the non-delegation doctrine still has a good deal of force in state courts.(fn8)
A substitution of a requirement of safeguards of statutory standards has been used as a test or for application of the non-delegation doctrine.(fn9)
Article III, Colorado Constitution, provides:
The powers of the government of this State are divided into three distinct departments---the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.
The Colorado courts have held that while the legislature may not delegate the power to make or define a law, it may delegate the power to promulgate rules and regulations, provided sufficient standards are set forth for the proper exercise of the agency's rulemaking function.(fn10) Where such standards are lacking, the delegation of power is invalid as being violative of the separation of powers doctrine.(fn11) Furthermore, the Colorado Supreme Court has held that sufficient standards are required in order to afford due process of law and that the failure to provide sufficient standards may constitute an unlawful delegation of legislative power.(fn12)
CRS § 24-4-3(8)(a) states:
No rule shall be issued except within the power delegated to the agency and is authorized by law. A rule shall not be deemed to be within the statutory authority or in the jurisdiction of any agency merely because the rule is not contrary to the specific provisions of a statute. Any rule or amendment to an existing rule issued by an agency, including state institutions of higher education administered pursuant to Title 23, C.R.S. 1973, which conflicts with a statute shall be void.
Therefore, no less than four separate grounds have been used to serve as the necessary predicate for a lawful delegation of power: (1) the separation of powers doctrine; (2) due...
To continue reading
Request your trial