Hurdles to Interlocutory Review Under Car 4.2
| Publication year | 2015 |
| Pages | 107 |
Columns
Appellate Practice
Hurdles to Interlocutory Review Under CAR 4.2
By Stephen G. Masciocchi
About the Author
Stephen G. Masciocchi is a partner in the Denver office of Holland & Hart LLP. He specializes in appellate advocacy, complex civil litigation, and legal ethics —smasciocchi@hollandhart. com.
Under CRS § 13-4-102.1 and Colorado Appellate Rule (CAR) 4.2, the Colorado Court of Appeals has discretion to review interlocutory orders in civil cases that are certified for review by trial courts and that involve a "controlling and unresolved question of law."[1] Shortly after their adoption, the statute and implementing rule appeared to significantly expand the court of appeals' jurisdiction.[2] But it has not turned out that way.
In a series of opinions, including several recent ones, the Colorado Court of Appeals has narrowly interpreted the scope of its jurisdiction to hear CAR 4.2 appeals. In practice, the appellate court has granted relatively few petitions and provided full or partial relief on the merits in even fewer instances.[3] In rejecting and accepting CAR 4.2 petitions, the appellate court has identified both procedural and substantive barriers to interlocutory review. This article discusses these hurdles, with a particular focus on the substantive requirements for review. This includes the court's recently articulated limitation on what constitutes a question of law.
CRS § 13-4-102.1 and CAR 4.2
Under CRS § 13-4-102.1, the Colorado Court of Appeals, under rules promulgated by the Colorado Supreme Court, may permit an interlocutory appeal in a civil matter if:
(a) the trial court certifies that immediate review may promote a more orderly disposition or establish a final disposition of the litigation; and
(b) the order involves a controlling and unresolved question of law.
This rule is similar, but not identical, to 28 USC § 1292(b).[4]
CAR 4.2 is the rule that implements the statute. Rule 4.2 reiterates the substantive requirements of the statute.[5] It provides a definition of what constitutes an unresolved question of law,[6] but it does not define any other terms.
Rule 4.2 also sets forth the procedural requirements for seeking certification of an interlocutory order for immediate appeal. Within fourteen days after the order, a party must take one of two actions: (1) the party must move the trial court to certify the order, in which case the court may, in its discretion, grant certification; or (2) all parties must stipulate that the order be appealed, in which case the trial court is required to certify the order.[7] Denial of a motion for certification is not appealable.[8] If the order is certified for immediate appeal, the party seeking review must file a petition in the court of appeals within fourteen days of certification.[9]
Procedural Hurdles
In two recent decisions, the court of appeals has interpreted and applied these procedural requirements to new factual scenarios and added a judicial gloss to Rules 4.2(c) and 4.2(d). In In the Interest of M.K.D.A.L., the court addressed the novel though straightforward question of whether a trial court can sua sponte certify an order for interlocutory appeal.[10] The court answered this question in the negative. It reasoned that Rule 4.2 "only empowers trial courts to grant or deny a motion for certification, not to initiate certification."[11] The court therefore dismissed the petition.
The court of appeals addressed a far more complicated and interesting set of facts in People in the Interest of A.M. C.[12] There, the trial court disqualified a city attorney's office from representing the city's department of human services (department) based on a conflict of interest. Eight days later, the department moved for reconsideration of the disqualification order, but the trial court denied reconsideration. Thirteen days after the reconsideration order, but forty-one days after the original disqualification order, the department moved to certify the disqualification order under Rule 4.2, and the trial court granted the motion. The department filed its petition in the court of appeals seven days later.[13]
The court of appeals held that it had no Rule 4.2 jurisdiction, because the department did not move for certification within fourteen days after the disqualification order. The court ruled that the department's motion for reconsideration did not toll the time for filing a motion to certify. The court rejected the department's argument that its motion to reconsider "was in the nature of a motion pursuant to C.R.C.P. 59, which tolls the time of filing a notice of appeal," because no judgment had entered and Rule 59 therefore did not apply.[14] The court likewise rejected the contention that the trial court had "implicitly extended" the time for filing a motion to certify, because the trial court lacked authority to extend the time period.[15]
The court then addressed the department's separate request to extend the time period for filing the Rule 4.2 petition in the court of appeals under CAR 26(b). The court first observed that the untimely filing "occurred in the juvenile court, not in this court."[16] But because Rule 26(b) "permits enlarging the time prescribed by" the appellate rules, the court addressed the request to extend the deadline for filing a motion in the trial court set by CAR 4.2(c).[17] The court ruled that to obtain an extension of the trial court filing deadline for good cause under CAR 26(b), a party must establish excusable neglect.[18] The court decided that the department had not done so, because "common carelessness and negligence by the party's attorney does not amount to excusable neglect."[19] It thus dismissed the appeal.
Under A.M.C., only the court of appeals, not...
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