Chapter 5 - § 5.5 • STATE AGENCY ACTION; EXHAUSTION OF ADMINISTRATIVE REMEDIES

• Jurisdiction: Colorado

§ 5.5 • STATE AGENCY ACTION; EXHAUSTION OF ADMINISTRATIVE REMEDIES

§ 5.5.1—Colorado Administrative Procedure Act (APA) Compared To C.R.C.P. 106(a)(4)

Unless the statutes governing a state agency provide for judicial review (e.g., C.R.S. § 8-43-307, which provides for judicial review of Industrial Claim Appeals Panel orders in workers' compensation cases), the Colorado Administrative Procedure Act (APA) governs procedure before agencies of Colorado's executive branch. C.R.S. § 24-4-106; Maurer v. Young Life, 779 P.2d 1317, 1326 (Colo. 1989). The APA does not apply to actions involving cities and counties that do not have statewide jurisdiction. C.R.S. § 24-4-107; Cherokee Water & Sanitation Dist. v. El Paso County, 770 P.2d 1339, 1341 (Colo. App. 1988); but cf. Bourgeron v. City & County of Denver, 159 P.3d 701, 705 (Colo. App. 2006) (right to judicial review of city's administrative action was available not under C.R.C.P. 106(a)(4) but under C.R.S. § 24-4-106(9)). The APA allows review of both quasi-judicial and quasi-legislative acts. Colo. Ground Water Comm'n v. Eagle Peak Farms Ltd., 919 P.2d 212, 216 (Colo. 1996). Review of quasi-judicial acts of cities and counties, in contrast, is governed by C.R.C.P. 106(a)(4), not by the APA. See State Farm Mut. Auto. Ins. Co. v. Lakewood, 788 P.2d 808, 813 (Colo. 1990).

§ 5.5.2—Finality

Generally, before seeking review under either the APA or C.R.C.P. 106(a)(4), one must exhaust all available administrative remedies so that the agency decision is final. This is because under the separation of powers doctrine and C.R.S. § 24-4-106(2), the courts are barred from interfering with the acts of an administrative agency prior to the issuance of a "final" decision by the agency or hearing officer. See Colo. State Bd. of Med. Exam'rs v. Colo. Court of Appeals, 920 P.2d 807, 812 (Colo. 1996); cf. Crow v. Penrose-St. Francis Healthcare Sys., 169 P.3d 158, 165 (Colo. 2007) (noting three exceptions to exhaustion requirement: (1) when it is clear beyond a reasonable doubt that further administrative review would be futile, (2) when the issue is a matter of law on which the agency lacks authority to rule, and (3) when policy reasons for the doctrine would not be served by requiring exhaustion). As a result, the court does not have jurisdiction if administrative remedies have not been exhausted. State v. Golden's Concrete Co., 962 P.2d 919, 923 (Colo. 1998); Kendal v. Cason, 791 P.2d 1227, 1228 (Colo. App. 1990).

An agency action is "final" when the agency's own rules of procedure, if any, state that the act is final for purposes of judicial review. See Geerdes v. Director, Colo. Dep't of Corr., 226 P.3d 1261, 1262 (Colo. App. 2010) (in a case seeking judicial review of a prison disciplinary conviction, decision by warden of a private prison is not a "final decision" under C.R.C.P. 106(b) because DOC regulations require further administrative review by private prison monitoring unit); Chittenden v. Colo. Bd. of Soc. Work Examiners, 292 P.3d 1138, 1141 (Colo. App. 2012) (dismissing an appeal of an order declining to rule on a petition for a declaratory order, and concluding that the phrase "agency action subject to judicial review" in C.R.S. § 24-4-105(11) of the APA requires final agency action under C.R.S. §...