Demystifying Colorado’s Atypical Civil and Administrative Appeals

JurisdictionColorado,United States
CitationVol. 52 No. 1 Pg. 24
Publication year2023
52 24
Demystifying Colorado’s Atypical Civil and Administrative Appeals
Vol. 52, No. 1 [Page 24]
Colorado Lawyer
February, 2023

January, 2023

Some civil and administrative appeals in Colorado are governed by special procedural requirements. This article discusses three atypical civil and administrative appeals and summarizes the unique rules that govern them.

When faced with atypical appeals in civil or administrative cases, Colorado litigants should survey applicable deadlines, procedures, and requirements to develop an informed litigation strategy. This article explains the procedures governing three atypical Colorado civil and administrative appeals: (1) appeals of quasi-judicial decisions of local governments under CRCP 106(a)(4); (2) appeals from Industrial Claim Appeals Office (ICAO or Panel) decisions; and (3) appeals from Public Utilities Commission (PUC) decisions.[1]

To lay a foundation for discussing these atypical appeals, this article first provides an overview of Colorado's appellate landscape and the typical appellate process for civil and administrative cases. It next outlines key distinctions between standard appeals and the three atypical appeals listed above.[2]

The "Typical" Civil Appeal in Colorado

Understanding Colorado's general appellate landscape and the typical appellate process helps contextualize the atypical deadlines, procedures, and requirements discussed later in this article. Three levels of Colorado courts can exercise appellate jurisdiction—district courts, the court of appeals, and the Supreme Court. Within this landscape, the C.A.R. 4 "appeal as of right" is the most common appeal mechanism for civil and administrative cases.

Colorado District Courts

Colorado district courts serve as Colorado's "trial courts of record with general jurisdiction."[3]But they also serve as intermediate appellate courts for certain classes of cases arising in other courts of first resort—like small claims courts, county courts, or municipal courts—and certain agency or government actions.[4]

Generally, if a Colorado district court exercises appellate jurisdiction over a matter, any subsequent appeal goes directly to the Colorado Supreme Court rather than the Colorado Court of Appeals, and the second appeal is discretionary, meaning that the Colorado Supreme Court need not accept it for review.[5]Said otherwise, litigants seldom get two intermediate, as-of-right appeals in Colorado. One notable exception, discussed below, is Rule 106(a)(4) appeals, which get two "as of right" appeals and one discretionary appeal to the Colorado Supreme Court.

Colorado Court of Appeals

The Colorado Court of Appeals is the "typical" intermediate appellate court in Colorado, with a caseload of more than 2,000 new appeals and approximately 2,400 dispositions each year.[6]While the court largely reviews "final judgments of . . . the district courts," it also has jurisdiction over certain administrative decisions from state boards and agencies, including the ICAO, State Personnel Board, Colorado Medical Board, Colorado Banking Board, and Colorado Board of Education.[7]

Unlike the federal courts of appeals—which may entertain petitions for writs such as mandamus—the Colorado Court of Appeals has no original jurisdiction. It similarly lacks jurisdiction to issue original and remedial writs; this power is conferred to the Colorado Supreme Court by the Constitution.[8]

Colorado Supreme Court

The Colorado Supreme Court exercises "general superintending control over all inferior courts" in Colorado.[9] Under the Colorado Constitution, our Supreme Court has both original and appellate jurisdiction.[10] Unlike the court of appeals' review of district court decisions, the Colorado Supreme Court's review of "typical" appeals is "a matter of sound judicial discretion," meaning that the Court can choose whether to accept review.[11]

Approximately 1,500 cases are filed with the Colorado Supreme Court each year.[12] The Court's caseload largely consists of discretionary appeals from Colorado Court of Appeals decisions but includes direct appeals in habeas corpus proceedings, water rights adjudications, Election Code summary proceedings, ballot title reviews, and C.A.R. 21 appeals.[13]

The Standard "Appeal as of Right"Under C.A.R. 4

The most common appeal mechanism in Colorado civil and administrative cases is the C.A.R. 4 "appeal as of right." Table 1 summarizes the requirements and deadlines that generally apply in these appeals, but certain motions affect the deadline for filing a notice of appeal under C.A.R. 4. For example, timely Rule 59 motions stop the clock for filing a notice of ap-peal.[14] However, though C.A.R. 4(a)(3)—which discusses the effect of certain post-judgment motions on the deadline for filing a notice of appeal—mentions post-judgment motions filed under CRCP 59, it is silent on post-judgment motions filed under CRCP 60.[15] Therefore, while CRCP 59 motions stop the clock, CRCP 60 motions do not.[16]

Colorado's Atypical Appeals

Familiarity with the applicable deadlines, requirements, and procedures is even more important when dealing with atypical Colorado appeals—those outside of "typical" C.A.R. 4 appeals as of right. While this article does not cover all such appeals, it focuses on three appeals governed by unique deadlines and procedures that Colorado litigants may encounter with some frequency.

Appealing Quasi-Judicial Decisions from Lower Governmental Entities—CRCP 106(a)(4) Appeals

If a county's board of commissioners affirms a community development department's decision to approve the construction of a "gravity-driven rollercoaster" over neighborhood protest, how do neighborhood residents challenge the board's application of zoning provisions?[17]

Traditionally the answer might have been a writ of mandamus. When a governmental body has breached its legal duties, writs of mandamus provide an avenue of potential relief. If successful, the result of a mandamus petition is a judicial order commanding the governmental body to perform required action or correct the breach.[18] This form of relief is often used when the contested decision is not issued by a court but by, for example, a city council or board of county commissioners. This makes the appellate path less straightforward.

At first blush, a litigant may believe that writs are unavailable in Colorado's judicial system. CRCP 106—subtitled "Forms of Writs Abolished"—appears to abolish writs of mandamus in district courts. But CRCP 106 does not leave Colorado litigants without an avenue to challenge the decisions of governmental bodies whose decisions are not governed by the Colorado Administrative Procedure Act (APA) or another set of rules or procedures. Although it does away with outdated procedural requirements for traditional common law writs, CRCP 106 enables Colorado litigants to obtain the same relief a writ of mandamus would otherwise provide using simplified, straightforward procedures similar to those that govern more typical administrative appeals.[19]

In particular, CRCP 106(a)(4) allows interested parties to appeal the decision of any "governmental body or officer or any lower judicial body exercising judicial or quasi-judicial functions" to the district court, provided that "there is no plain, speedy and adequate remedy otherwise provided by law."[20]

Colorado litigants and practitioners should be mindful of the procedures, deadlines, and requirements outlined below when appealing the decision of a governmental body under CRCP 106(a)(4).

Qualifying for CRCP 106(a)(4) appellate review. Litigants can bring Rule 106(a)(4) appeals only where the contested decision was issued by a government entity acting in a "judicial or quasi-judicial" role.[21] Such "qua-si-judicial" actions are taken by a government entity where a local or state law (1) requires that notice be given before the action is taken, (2) requires that a hearing be conducted before the action is taken, and (3) directs that the action results from applying prescribed criteria to the individual facts of a particular case.[22]Litigants seeking to contest a government decision under Rule 106(a)(4) should consider whether the decision qualifies as "quasi-judicial" decision under these criteria. Trial courts do not have jurisdiction to review legislative or administrative actions under Rule 106(a)(4).[23]

Initiating the action and certifying the record. Because Rule 106(a)(4) replaces traditional common law writs, an action under Rule 106(a)(4) is initiated by filing a complaint rather than a petition or traditional notice of appeal.[24]

Unless another statute controls, a complaint seeking review under Rule 106(a)(4) must be filed in the district court within 28 days after the contested governmental decision.[25] In drafting a Rule 106(a)(4) complaint, practitioners and litigants should note that "Rule 106(a)(4) explicitly permits the joinder of Rule 106 actions with other non-Rule 106 claims."[26]Given this, if litigants fail to include other applicable claims—for example, a request for declaratory relief—or to join applicable parties in a Rule 106(a)(4) complaint, those claims may be waived.[27]

Although some Rule 106(a)(4) actions may not require a record, the complaint should in most cases include a motion and proposed order requiring certification of the record from the government body where the decision under appeal originated. The court, in response, will direct the government body to file a record alongside a certificate of authenticity sometime after the deadline for filing the answer.[28] Within 21 days after receipt of an order for record certification, the government body may also designate portions of the record not set forth in the order.[29] At the same time the government body files the record, it must notify all parties that it has done so.[30] Parties can...

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