Colo. Judicial Dep't, Eighteenth Judicial Dist. v. Colo. Judicial Dep't Personnel Bd. of Review , 2021 COA 82 ( 2021 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
June 10, 2021
2021COA82
No. 20CA0161, Colo. Judicial Dep’t, Eighteenth Judicial Dist.
v. Colo. Judicial Dep’t Personnel Bd. of Review — Courts and
Court Procedure — Colorado Judicial System Personnel Rules
— Judicial Department Personnel Board of Review; Civil
Procedure — C.R.C.P. 106 — Review of Governmental Body
Exercising Judicial or Quasi-Judicial Functions
A division of the court of appeals holds that a decision by the
Judicial Department Personnel Board of Review upholding,
modifying, or reversing a disciplinary action, including dismissal, by
a judicial branch administrative authority cannot be challenged in
district court under C.R.C.P. 106(a)(4) because the Colorado
Judicial System Personnel Rules, which govern such matters, do
not allow for such a challenge.
COLORADO COURT OF APPEALS 2021COA82
Court of Appeals No. 20CA0161
City and County of Denver District Court No. 19CV33717
Honorable David H. Goldberg, Judge
Colorado Judicial Department, Eighteenth Judicial District,
Plaintiff-Appellant,
v.
Colorado Judicial Department Personnel Board of Review,
Defendant-Appellee,
and Concerning Abbey Dickerson,
Intervenor-Appellee.
JUDGMENT AFFIRMED
Division V
Opinion by JUDGE J. JONES
Navarro and Yun, JJ., concur
Announced June 10, 2021
Philip J. Weiser, Attorney General, Michael T. Kotlarczyk, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellant
Philip J. Weiser, Attorney General, Amy R. Lopez, Assistant Attorney General,
Denver, Colorado, for Defendant-Appellee
Roseman Law Offices, LLC, Barry D. Roseman, Denver, Colorado, for
Intervenor-Appellee
¶1 The Colorado Supreme Court, acting pursuant to article VI,
section 5 of the Colorado Constitution and section 13-3-105, C.R.S.
2020, promulgated rules — the Colorado Judicial System Personnel
Rules (Personnel Rules) — creating a personnel classification
system and setting forth procedures for appointing and removing
court personnel. As relevant to this case, these rules establish a
process for a Judicial Department employee to challenge the
termination of her employment with the branch. The last step in
that process is an appeal to the Judicial Department Personnel
Board of Review (Board).
¶2 The question presented in this case is whether the Board’s
decision resolving such an appeal may be challenged in district
court under C.R.C.P. 106(a)(4). We answer that question “no.” As a
result, we affirm the district court’s judgment dismissing the
Eighteenth Judicial District’s complaint against the Board for lack
of subject matter jurisdiction.1
1 Though we hold that the district court lacks subject matter
jurisdiction over this case, that doesn’t mean that we lack
jurisdiction to decide this appeal. Just as a court has jurisdiction
to determine its own jurisdiction, Keystone, a Div. of Ralston Purina
Co. v. Flynn, 769 P.2d 484, 488 n.6 (Colo. 1989), we have
jurisdiction to decide if the district court has jurisdiction. See U.S.
1
I. Background
¶3 The Eighteenth Judicial District (District) terminated Abbey
Dickerson’s employment as a probation officer because, it said, she
had violated department confidentiality and use of social media
policies. She appealed to the Board. Consistent with the applicable
rules (discussed in detail below), the Board appointed a hearing
officer to conduct an evidentiary hearing. Following the hearing,
the hearing officer determined that although Ms. Dickerson had
violated probation department confidentiality and use of social
media policies, the District’s decision to terminate her employment
was arbitrary and capricious. The hearing officer reduced the
discipline to an unpaid ninety-day suspension.
¶4 The District appealed the hearing officer’s decision to the
Board. The Board upheld the hearing officer’s decision.
¶5 Unsatisfied, the District filed a complaint against the Board
under Rule 106(a)(4) in Denver District Court challenging the
Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 21-22 (1994);
United States v. Corrick, 298 U.S. 435, 440 (1936); Assouline v.
Reynolds, 219 A.3d 1131, 1140-41 (Pa. 2019).
2
Board’s decision as an abuse of discretion.2 Ms. Dickerson
intervened in the case.
¶6 The Board moved to dismiss the complaint under C.R.C.P.
12(b)(1) for lack of subject matter jurisdiction. It argued that the
application and interpretation of the Personnel Rules are the
exclusive province of the Colorado Supreme Court, and that the
Board is not a body subject to Rule 106(a)(4). Ms. Dickerson joined
in the Board’s motion to dismiss, arguing in addition that the Board
isn’t a “lower judicial body” within the meaning of Rule 106(a)(4)
because it is effectively at the same level as a district court and
that, because personnel decisions are made by the district court,
allowing a district court to review a Board decision would
impermissibly allow a district court to adjudicate its own or another
district court’s personnel decision.
¶7 The District responded that the Board is a “governmental
body” and a “lower judicial body” within the meaning of Rule
2 C.R.C.P. 106(a)(4) allows for the filing of an action in district court
“[w]here, in any civil matter, any governmental body or officer or
any lower judicial body exercising judicial or quasi-judicial
functions has exceeded its jurisdiction or abused its discretion, and
there is no plain, speedy and adequate remedy otherwise provided
by law.”
3
106(a)(4), no statute creates an exception to the district court’s
broad statutory jurisdiction for cases such as this, nothing in the
Personnel Rules bars Rule 106(a)(4) review of a Board decision, and
to read the Personnel Rules as barring such review would violate
employees’ due process rights.
¶8 The district court agreed with the Board and Ms. Dickerson. It
ruled that the Board is neither a “governmental body” nor a “lower
judicial body” within the meaning of Rule 106(a)(4); the Personnel
Rules bar any further appeal from a Board decision; and, because
the District is a district court, to allow a Rule 106(a)(4) action in
these cases would impermissibly allow one district court to review
the actions of another. Thus, the court concluded that it lacks
subject matter jurisdiction, and it dismissed the case with
prejudice.3
II. Standard of Review
¶9 Normally in an appeal of a Rule 106(a)(4) case, we review
whether “the [governmental] body or officer has exceeded its
3 The Board also moved to dismiss under C.R.C.P. 12(b)(5) for
failure to state a claim. The district court didn’t address the merits
of that motion.
4
jurisdiction or abused its discretion, based on the evidence in the
record before the defendant body or officer.” Langer v. Bd. of
Comm’rs, 2020 CO 31, ¶ 12 (quoting Ad Two, Inc. v. City & Cnty. of
Denver, 9 P.3d 373, 376 (Colo. 2000), in turn quoting C.R.C.P.
106(a)(4)). And in doing that, “we sit in the same position as the
district court.” Id.¶ 10 But this appeal is different. No party asks us to review the
Board’s decision. Rather, the District asks us to review the district
court’s decision that it lacks subject matter jurisdiction. When, as
in this case, the challenge to jurisdiction doesn’t involve any
disputed facts, we review the district court’s determination of
subject matter jurisdiction de novo. Jim Hutton Educ. Found. v.
Rein, 2018 CO 38M, ¶ 17; Tulips Invs., LLC v. State ex rel. Suthers,
2015 CO 1, ¶ 11.
¶ 11 Our resolution of that issue in this case turns on
interpretations of various court rules.4 We also review such matters
de novo. People ex rel. Rein v. Meagher, 2020 CO 56, ¶ 23.
4 As noted, article VI, section 5 of the Colorado Constitution and
section 13-3-105, C.R.S. 2020, are the sources of authority for the
Personnel Rules. The issue presented doesn’t call for us to interpret
these provisions per se. But to the extent our characterization of
5
¶ 12 In interpreting court rules, we use the same tools of
construction that we use when we interpret statutes. Id. In
determining the meaning of a court rule, we first look to the words
and phrases used, ascribing to each its plain and ordinary
meaning. People v. Vanness, 2020 CO 18, ¶ 17. We also consider
the rule’s language as a whole and in context. See Willhite v.
Rodriguez-Cera, 2012 CO 29, ¶ 9; L & R Expl. Venture v. CCG, LLC,
2015 COA 49, ¶ 17. If, after using these tools, we decide that a
court rule is unambiguous, we apply it as written, without
employing other tools of construction. Delta Air Lines, Inc. v.
Scholle, 2021 CO 20, ¶ 13; Mercantile Adjustment Bureau, L.L.C. v.
Flood, 2012 CO 38, ¶ 30.
III. Discussion
¶ 13 To resolve the jurisdictional question before us, we must first
answer this question: “Do the Personnel Rules, by their terms,
preclude judicial review by a district court of a decision made by the
Board?” If they do, our job is finished because any potential
the import of those provisions can be seen as interpreting them, any
such interpretation is de novo. Campaign Integrity Watchdog v. All.
for a Safe & Indep. Woodmen Hills, 2018 CO 7, ¶ 19.
6
conflict between the more specific Personnel Rules, promulgated by
the supreme court, and the more general Rule 106(a)(4), also
promulgated by the supreme court, must be resolved by giving
effect to the Personnel Rules. Indus. Claim Appeals Off. v. Zarlingo,
57 P.3d 736, 737 (Colo. 2002). But if they don’t, we must answer a
second question: “Is the Board’s decision in a matter entrusted to it
reviewable in district court under Rule 106(a)(4)?” More specifically,
“Is the Board’s decision in such a case a decision by a
‘governmental body . . . or any lower judicial body exercising
judicial or quasi-judicial functions?’” C.R.C.P. 106(a)(4). If so, the
district court has jurisdiction over this case. If not, it doesn’t.
¶ 14 We hold that the Personnel Rules, by their terms, bar review of
a Board decision by a district court. In light of that conclusion, we
don’t need to determine whether the Board is a “governmental body”
or “lower judicial body” within the meaning of Rule 106(a)(4).
A. The Personnel Rules
¶ 15 The supreme court promulgated the Personnel Rules
“pursuant to the authority vested by section 5(3) of article VI of the
state constitution, and in fulfillment of the requirements of section
7
13-3-105, [C.R.S. 2020].” C.J.S.P.R. 2 (2018).5 Article VI, section
5(3) of the Colorado Constitution says that “[t]he supreme court
shall appoint a court administrator and such other personnel as the
court may deem necessary to aid the administration of the courts.”
Section 13-3-105 says that “[t]he supreme court, pursuant to
section 5(3) of article VI of the state constitution, shall prescribe, by
rule, a personnel classification plan for all courts of records to be
funded by the state . . . .” § 13-3-105(1). That plan must include,
as relevant to this case, “[t]he procedures for and the regulations
governing the appointment and removal of court personnel.” § 13-
3-105(2)(f). It is therefore clear — and no party disputes — that the
supreme court has sole authority over personnel matters within the
Judicial Department, including the authority to oversee and make
rules governing termination of Judicial Department employees’
employment.
¶ 16 The Personnel Rules promulgated by the supreme court
govern a host of personnel matters — from hiring, classification,
5We apply the version of the Personnel Rules in effect when Ms.
Dickerson challenged her termination. The supreme court
amended the rules in 2020, but not in any way affecting the
outcome of this case.
8
and compensation of employees to conditions and terms of
employment and employee discipline and termination.6
¶ 17 C.J.S.P.R. 29 of the Personnel Rules concerns disciplinary
actions, including “dismissal.” See C.J.S.P.R. 29.C.1 (2018). The
responsibility for imposing any disciplinary action is “vested in the
Administrative Authority.” C.J.S.P.R. 29.A.1 (2018). The
Administrative Authority for a judicial district’s employees
(including probation department employees) is the Chief Judge of
that judicial district. C.J.S.P.R. 6.A.4 (2018). Every Administrative
Authority is “responsible to the Chief Justice and the Supreme
Court for all personnel matters for all employees within the
jurisdiction.” C.J.S.P.R. 6.A.5 (2018).
¶ 18 If the Administrative Authority contemplates any disciplinary
action against an employee, he or she must first give the employee
an opportunity to respond or present mitigating evidence.
C.J.S.P.R. 29.C.5 (2018). If, after doing so, the Administrative
Authority decides to impose discipline, he or she must so notify the
employee in writing. That notice must include certain information,
6The Personnel Rules are limited to certain employees within the
Judicial Department. C.J.S.P.R. 3 (2018).
9
including the employee’s “right, if any, to appeal the disciplinary
action, including the time limit in which an appeal must be filed,
and the name and address of the person with whom it is to be
filed.” C.J.S.P.R. 29.C.7(d) (2018).7 Except for certain employees,
“an employee who has received a disciplinary action pursuant to
[Rule 29] may request review of the action as provided in Rule 34.”
C.J.S.P.R. 29.C.9 (2018).
¶ 19 Rule 34 governs the process for an employee to challenge an
Administrative Authority’s disciplinary action via appeal. It creates
the Board and gives it “jurisdiction over appeals of disciplinary
actions pursuant to Rule 29.” C.J.S.P.R. 34.A.1, 34.A.4 (2018).
The Board has eight members, all appointed by the Chief Justice:
an appellate court justice or judge, a district court judge other than
a chief judge, a county court judge, a district administrator, a chief
probation officer, a nonmanagement administrative employee, a
probation employee, and “a court employee not within the
management occupational group.” C.J.S.P.R. 34.A.1 (2018). The
members serve three-year terms. Id.
7It is undisputed that the Administrative Authority complied with
all applicable rules in this case.
10
¶ 20 The Board may reverse or modify an Administrative
Authority’s disciplinary action only if it finds “that the action was
arbitrary, capricious, or contrary to rule or law.” C.J.S.P.R. 34.A.5
(2018). But appeals aren’t resolved initially by the Board itself. The
Board appoints a hearing officer to conduct an evidentiary hearing.
C.J.S.P.R. 34.A.7, 34.D.1 (2018). Motions and discovery are
allowed, albeit not quite to the extent allowed in civil cases subject
to the Colorado Rules of Civil Procedure. See C.J.S.P.R. 34.D.3-
34.D.4 (2018). The hearing itself proceeds much like an ordinary
civil trial in accordance with the procedures prescribed by section
24-4-105, C.R.S. 2020, of the Administrative Procedure Act (APA),
though the rules of evidence aren’t strictly followed. C.J.S.P.R.
34.E-34.E.4 (2018). The Administrative Authority bears the burden
of establishing that his or her decision is not “arbitrary, capricious
or contrary to rule or law.” C.J.S.P.R. 34.E.5 (2018). The employee
may be represented by an attorney (at the employee’s expense).
C.J.S.P.R. 34.C.1.c (2018).
¶ 21 The hearing officer must apply the preponderance of the
evidence standard to determine whether the Administrative
Authority’s action was arbitrary, capricious, or contrary to rule or
11
law “and what, if any, remedial action should be ordered, or
whether the appeal should be dismissed or denied.” C.J.S.P.R.
34.F.1 (2018). The hearing officer’s written decision must include
“specific findings of fact and conclusions of law.” C.J.S.P.R. 34.F.3
(2018). And it must notify the parties of their right “to appeal to the
Board.” Id.
¶ 22 If neither party appeals to the Board, the hearing officer’s
decision “shall become the decision of the Board and shall be
carried into effect.” C.J.S.P.R. 34.F.4 (2018). But if a party appeals
to the Board, “the hearing officer’s decision is not final and may not
be given effect until the Board has decided the appeal.” Id.
¶ 23 Either party may “appeal” the hearing officer’s decision to the
Board by following certain procedures. C.J.S.P.R. 34.G-34.G.4
(2018). The Board reviews the record, the parties’ briefs, and the
hearing officer’s decision. And the Board may allow oral argument.
C.J.S.P.R. 34.G.4, 34G.5.a-b (2018).
¶ 24 The Board is bound by the hearing officer’s findings of
evidentiary fact unless they are “contrary to the weight of the
evidence.” C.J.S.P.R. 34.G.5.c (2018). By majority vote, the Board
may “affirm, modify or reverse” the hearing officer’s decision or
12
remand the case to the hearing officer for further proceedings. Id.
It must issue a written decision. And that decision “is final, and
there is no further right to appeal.” C.J.S.P.R. 34.G.5.d (2018)
(emphasis added); see also C.J.S.P.R. 34.A.6 (2018) (“All decisions
of the Board shall be final and binding on all parties and are not
subject to appeal or review procedures set forth in these rules.”);
C.J.S.P.R. 34.B.1 (2018) (“Appeals shall be limited specifically to the
circumstances described in section A.5. of this rule.”).
B. Analysis
¶ 25 For four reasons, we conclude that the Personnel Rules bar
judicial review in district court under Rule 106(a)(4).
¶ 26 First, the structure of the decision-making process set out in
the Personnel Rules belies any notion of such review. As discussed,
the hearing before the hearing officer, though called an “appeal,”
proceeds much like a trial, with witnesses, other evidence,
arguments, and findings.8 Before the hearing, each party must
8As noted, the hearing is to be conducted in accordance with
section 24-4-105, C.R.S. 2020, of the APA, except where the
Personnel Rules differ from the statute. C.J.S.P.R. 34.E (2018).
Judicial Department employees are otherwise excluded from the
APA’s operation. § 24-4-102(3), C.R.S. 2020.
13
submit a “Prehearing Information Statement,” which looks for all
the world like a trial management order akin to that required in civil
cases by C.R.C.P. 16(f). As well, there is an opportunity for
discovery (including written discovery requests and depositions),
and parties may file motions.
¶ 27 After the hearing officer renders a written decision containing
findings of fact and conclusions of law, a party may “appeal” to the
Board. As described above, such an appeal is handled very much
like an appeal to the court of appeals in a civil case.
¶ 28 In sum, the Personnel Rules provide for what in effect are a
trial and an appeal. And an employee is provided substantial
procedural rights at both levels — rights going beyond those that
apply in an agency proceeding under the APA. Also in contrast to
the procedures of the APA, the final appeal is heard by a body —
the Personnel Board — that includes judicial officers. All this
indicates that the supreme court intended the process set forth in
the Personnel Rules to be exclusive.
¶ 29 Second, the Personnel Rules don’t provide for judicial review
following the Board’s decision. This contrasts with the APA, which
does so. § 24-4-106, C.R.S. 2020. The supreme court obviously
14
could have similarly provided for judicial review of the Board’s
decision in the Personnel Rules, but it didn’t.
¶ 30 Third, the Personnel Rules say that the appeal to the Board is
the last, “final” step before an Administrative Authority’s
disciplinary action takes effect. “Appeals [are] limited specifically to
the circumstances described in section A.5. of [the Personnel
Rules].” C.J.S.P.R. 34.B.1 (2018). Those “circumstances” are
“action[s] of an Administrative Authority which [are] appealable to
the Board pursuant to [the Personnel Rules].” C.J.S.P.R. 34.A.5
(2018) (emphasis added). “All decisions of the Board shall be final
and binding on all parties and are not subject to appeal or review
procedures set forth in [the Personnel Rules].” C.J.S.P.R. 34.A.6
(2018). And, “[t]he decision of the Board is final, and there is no
further right to appeal.” C.J.S.P.R. 34.G.5.d (2018). These strong,
clear disavowals of further appeal rights would be undermined
(indeed, read out of existence) by allowing for district court review.
¶ 31 Fourth, personnel matters in the Judicial Department lie
within the exclusive province of the supreme court. That is so by
virtue of the constitution. And the Personnel Rules themselves
reflect this. They are not only created by the supreme court; they
15
acknowledge the Chief Justice’s authority over the branch,
C.J.S.P.R. 6.A.1 (2018), and provide that all Administrative
Authorities within the branch are responsible to the Chief Justice
and the supreme court in all personnel matters, C.J.S.P.R. 6.A.5
(2018). Allowing for district court review of such matters would
undermine the supreme court’s sole authority to oversee such
matters.
¶ 32 Our reasoning is buttressed by the supreme court’s recent
decision resolving a similar issue in Chessin v. Office of Attorney
Regulation Counsel, 2020 CO 9. In that case, an attorney filed a
complaint in district court under Rule 106(a)(4) challenging a
decision by the Office of Attorney Regulation Counsel not to bring
disciplinary charges against another attorney. In holding that the
district court lacked subject matter jurisdiction, the supreme court
rested its decision on three related pillars:
1. The supreme court has exclusive authority to regulate
and supervise the practice of law, which includes the
authority to determine the structure and
administration of attorney regulation proceedings. It
has exercised that authority by adopting rules
16
specifically to govern such proceedings. Id. at ¶¶ 2, 11-
12.
2. The supreme court’s rules for disciplinary proceedings
don’t provide for district court review of decisions of the
type challenged in that case. Id. at ¶¶ 10, 15.
3. The supreme court’s rules governing such matters say
that “the decision of the Regulation Counsel [regarding
whether to proceed] shall be final, and the complaining
witness shall have no right to appeal.” Id. at ¶ 15
(quoting C.R.C.P. 251.9(b)).
¶ 33 The court concluded:
[A] district court’s exercise of jurisdiction over
such a claim would interfere with the inherent
power of this court to regulate, govern, and
supervise the practice of law because it would
directly circumvent the rules we have
prescribed, which provide that “the
complaining witness shall have no right to
appeal” Regulation Counsel’s decision not to
pursue further investigation of a particular
complaint.
Id. at ¶ 21.
¶ 34 Chessin is, as the supreme court observed, of a piece with
prior supreme court decisions concerning areas in which the
17
supreme court has essentially plenary authority. See, e.g., Smith v.
Mullarkey, 121 P.3d 890 (Colo. 2005) (district court lacked
jurisdiction to review a decision of the Board of Law Examiners);
Colo. Sup. Ct. Grievance Comm. v. Dist. Ct., 850 P.2d 150 (Colo.
1993) (district court lacked jurisdiction over complaint challenging
constitutionality of attorney disciplinary rule facially and as
applied).
¶ 35 The upshot of this line of authority, as we see it, is that where
the supreme court has sole authority under the state constitution
to regulate in a particular area, it has promulgated rules governing
that area, and those rules don’t provide for district court review, a
district court lacks jurisdiction to review a decision emanating from
the process created by such rules (or, indeed, any challenge to the
rules themselves) because allowing such review interferes with the
supreme court’s exercise of its authority.
¶ 36 This case fits that mold. The supreme court’s authority to
regulate personnel within the Judicial Department emanates from
the express terms of the Colorado Constitution. The supreme court
has promulgated rules governing the field. And those rules don’t
provide for district court review; to the contrary, they appear to
18
preclude it. Thus, we conclude that the Personnel Rules, by their
terms, preclude district court review under Rule 106(a)(4).
¶ 37 The District’s arguments to the contrary are unpersuasive.
¶ 38 The District relies first on the “broad” language of Rule
106(a)(4). But if that language controlled, Chessin (as well as Smith
and Colorado Supreme Court Grievance Committee) would have come
out differently. Under Chessin’s reasoning, supreme court rules
such as the Personnel Rules are incompatible with district court
review.
¶ 39 Nor does the constitution’s broad grant of jurisdiction to
district courts dictate a contrary result. See Colo. Const. art. VI,
§ 9(1). The court rejected this very argument in Smith. It held that
if a “claim falls within the inherent power and exclusive
jurisdiction” of the supreme court, or if the exercise of jurisdiction
by the district court would “interfere[] with the inherent power” of
the supreme court to regulate and supervise the practice of law, the
district court has no jurisdiction under article VI, section 9. Smith,
121 P.3d at 892. As discussed, the supreme court has
constitutional, exclusive jurisdiction over the personnel system for
Judicial Department employees.
19
¶ 40 Lastly, the District raises the specter of “unconstitutional
consequences,” asserting that denying employees “judicial review
would likely violate their due process rights.” But the District
makes little effort to develop this argument. And we observe that,
as discussed in detail above, the Personnel Rules provide employees
with extensive procedural rights. One such right, for example, is
the right to appeal to a body within the Judicial Department that
includes among its members three judicial officers.9 In short, the
District hasn’t clearly identified any due process problem and none
is obvious.
IV. Conclusion
¶ 41 We affirm the district court’s judgment.
JUDGE NAVARRO and JUDGE YUN concur.
9 The District argues that the Board is a “governmental body” or
“lower judicial body” within the meaning of Rule 106(a)(4). We don’t
take any position on that issue. Nor do we take any position on
whether a party may attempt to challenge the Board’s decision
directly with the supreme court via C.A.R. 21.
20