Dunlap v. Colorado Department of Corrections

2013 COA 63, 303 P.3d 572, 2013 WL 1776090, 2013 Colo. App. LEXIS 611
CourtColorado Court of Appeals
DecidedApril 25, 2013
DocketNo. 12CA0955
StatusPublished
Cited by2 cases

This text of 2013 COA 63 (Dunlap v. Colorado Department of Corrections) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunlap v. Colorado Department of Corrections, 2013 COA 63, 303 P.3d 572, 2013 WL 1776090, 2013 Colo. App. LEXIS 611 (Colo. Ct. App. 2013).

Opinions

Opinion by

JUDGE J. JONES

JUDGMENT AFFIRMED

T1 Nathan J. Dunlap, a death row inmate in the custody of the Colorado Department of Corrections (DOC), appeals the district court's judgment denying his challenge to the DOC's regulation establishing the procedure for carrying out the death penalty by lethal injection. He contends that the DOC failed to comply with the state Administrative Procedure Act, sections 24-4-101 to -108, C.R.S. 2012(APA), in promulgating the regulation, rendering it invalid. We conclude, however, as did the district court, that, by virtue of section 17-1-111, C.R.S.2012, the regulation is exempt from the portions of the APA on which Mr. Dunlap relies. Accordingly, we affirm the district court's dismissal of Mr. Dunlap's complaint.

I. Background

T 2 Colorado law provides for imposition of the death penalty by lethal injection. § 18-1.3-1202,1 The implementation of such a sentence is entrusted to the Executive Director of the DOC. § 18-1.83-1204, C.R.S.2012. As relevant here, the Executive Director must provide (1) "a suitable and efficient room or place, enclosed from public view, within the walls of the correctional facility at Canon City"; (2) "all necessary implements requisite for" carrying out the sentence; and (8) "a person ... trained to administer intravenous injections" to perform the execution. Id.

13 The Executive Director promulgated Administrative Regulation 300-14 (the regulation), effective June 1, 2011, "to establish procedures, consistent with Colorado statutes, governing death penalty-executions." Subparagraphs A through J of the regulation [574]*574address, among other things, where executions are to take place, where condemned inmates must be housed, the timing of an execution upon receipt of a warrant for execution, visitor access to condemned inmates, anonymity of members of the lethal injection team, post-execution examination of executed inmates, and "procedures and guidelines for: carrying out a death sentence by lethal injection."2 The specific procedures and guidelines for carrying out a death sentence are included in a "restricted distribution document," identified in subparagraph K, that is to be distributed to DOC employees "on a need-to-know basis." 3

T4 Mr. Dunlap is a DOC inmate who was sentenced to death for murdering four people at a Chuck E. Cheese restaurant in Aurora, Colorado, in 1998. See Dunlap v. People, 173 P.3d 1054, 1061 (Colo.2007); People v. Dunlap, 975 P.2d 723, 733-85 (Colo.1999). He is incarcerated at the DOC's Sterling Correctional Facility. He has exhausted his state and federal appeals. See Dunlap v. Clements, 476 Fed.Appx. 162 (10th Cir.2012), cert. denied, - U.S. --, 133 S.Ct. 1244, 185 LEd.2d 191 (2018); Dunlap, 173 P.8d 1054, cert. denied, 552 U.S. 1105, 128 S.Ct. 882, 169 L.Ed.2d 740 (2008); Dunlap, 975 P.2d 723, cert. denied, 528 U.S. 898, 120 S.Ct. 221, 145 L.Ed.2d 186 (1999).

T5 Shortly after the effective date of the regulation, Mr. Dunlap filed a complaint in district court under subsection 24-4-106(4), C.R.S.2012, of the APA, claiming that the DOC had violated the APA in promulgating the regulation, and seeking a declaratory judgment that the regulation is invalid and that the DOC must comply with the APA in promulgating any regulation pertaining to executions or lethal injections.4 Specifically, Mr. Dunlap alleged that the DOC had failed to comply with the rule-making procedures of section 24-4-108, C.R.S.2012.

T6 Defendants moved to dismiss the complaint under C.R.C.P. (lack of subject matter jurisdiction) and (5) (failure to state a claim). They based their contention of lack of subject matter jurisdiction on seetion 17-1-111, which provides as follows:

The provisions of this title relating to the placement, assignment, management, discipline, and classification of inmates shall not be subject to section 24-4-103, 24-4-105, or 24-4-106, C.R.S.

Because the regulation is exempt from the procedural requirements of section 24-4-103 of the APA, they argued, the court lacked jurisdiction to review the regulation under subsection 24-4-106(4).

T7 The district court granted defendants' motion to dismiss for lack of subject matter jurisdiction. The court concluded that the regulation pertained to the Executive Director's "management" of inmates within the meaning of section 17-1-111 because it concerned a matter within the Executive Director's duties set forth in section 17-1-108, C.R.98.2012. Having concluded that it lacked jurisdiction over Mr. Dunlap's complaint, the court declined to rule on defendants' motion to dismiss for failure to state a claim.5

II. Discussion

8 Mr. Dunlap contends that section 17-1-111 does not apply to the regulation because (1) the Executive Director's statutory authority to administer the death penalty is found in title 18 of the Colorado Revised Statutes, not "this title" (Le., title 17) as he claims is [575]*575required by section 17-1-111; and (2) the regulation does not relate to "the placement, assignment, management, discipline, and classification of inmates." We reject these contentions.6

A. Standard of Review

T9 Mr. Dunlap's contentions present issues of statutory construction. We review such issues de novo. Dubois v. People, 211 P.3d 41, 43 (Colo.2009).

'I 10 In construing a statute, our overriding goals are to determine and give effect to the General Assembly's intent. People v. Goodale, 78 P.3d 1108, 1107 (Colo.2003). To do so, we first look to the statute's plain language, giving the words and phrases therein their plain and ordinary meanings. People v. Perez, 238 P.3d 665, 669 (Colo.2010); People v. Green, 2012 COA 68, 1 23, 296 P.3d 260. And. we must read the statutory language at issue in the context of the statute as a whole and the context of the entire statutory scheme. People v. Dist. Court, 7183 P.2d 918, 921 (Colo.1986); see also People v. Smith, 254 P.8d 1158, 1161 (Colo.2011) (court must consider the statutory scheme "as a whole, giving consistent, harmonious, and sensible effect to all its parts"). If we determine that the statutory language is unambiguous, we enforce the statute as written, without resorting to other rules of statutory construction. Dubois, 211 P.3d at 48; Goodale, 78 P.3d at 1107.

B. "This Title"

111 Contrary to Mr. Dunlap's contention, the fact that the General Assembly placed the statutes authorizing imposition of the death penalty by lethal injection and authorizing the Executive Director to carry out death sentences in title 18 does not mean the regulation is unrelated to the provisions of title 17. Virtually all sentencing provisions relating to criminal offenses are contained in title 18.

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Bluebook (online)
2013 COA 63, 303 P.3d 572, 2013 WL 1776090, 2013 Colo. App. LEXIS 611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunlap-v-colorado-department-of-corrections-coloctapp-2013.