(1) In order to assure a plain, simple, and prompt
judicial remedy to persons or parties adversely affected or aggrieved by agency
actions, the provisions of this section shall be applicable.
(2) Final agency action under this or any other law shall be subject to judicial
review as provided in this section, whether or not an application for reconsideration
has been filed, unless the filing of an application for reconsideration is required by
the statutory provisions governing the specific agency. In the event specific
provisions for rehearing as a basis for judicial review as applied to any particular
agency are in effect on or after July 1, 1969, then such provisions shall govern the
rehearing and appeal procedure, the provisions of this article to the contrary
notwithstanding.
(3) An action may be commenced in any court of competent jurisdiction by or
on behalf of an agency for judicial enforcement of any final order of such agency. In
any such action, any person adversely affected or aggrieved by such agency action
may obtain judicial review of such agency action.
(4) Except as provided in subsection (11) of this section, any person adversely
affected or aggrieved by any agency action may commence an action for judicial
review in the district court within thirty-five days after such agency action becomes
effective; but, if such agency action occurs in relation to any hearing pursuant to
section 24-4-105, then the person must also have been a party to such agency
hearing. A proceeding for such review may be brought against the agency by its
official title, individuals who comprise the agency, or any person representing the
agency or acting on its behalf in the matter sought to be reviewed. The complaint
shall state the facts upon which the plaintiff bases the claim that he or she has
been adversely affected or aggrieved, the reasons entitling him or her to relief, and
the relief which he or she seeks. Every party to an agency action in a proceeding
under section 24-4-105 not appearing as plaintiff in such action for judicial review
shall be made a defendant; except that, in review of agency actions taken pursuant
to section 24-4-103, persons participating in the rule-making proceeding need not
be made defendants. Each agency conducting a rule-making proceeding shall
maintain a docket listing the name, address, and telephone number of every person
who has participated in a rule-making proceeding by written statement, or by oral
comment at a hearing. Any person who commences suit for judicial review of the
rule shall notify each person on the agency's docket of the fact that a suit has been
commenced. The notice shall be sent by first-class certified mail within fourteen
days after filing of the action and shall be accompanied by a copy of the complaint
for judicial review bearing the action number of the case. Thereafter, service of
process, responsive pleadings, and other matters of procedure shall be controlled
by the Colorado rules of civil procedure. An action shall not be dismissed for failure
to join an indispensable party until an opportunity has been afforded to an affected
party to bring the indispensable party into the action. The residence of a state
agency for the purposes of this subsection (4) shall be deemed to be the city and
county of Denver. In any action in which the plaintiff seeks judicial review of an
agency decision made after a hearing as provided in section 24-4-105, the parties
after issue is joined shall file briefs within the time periods specified in the Colorado
appellate rules.
(4.5) Subject to the limitation set forth in section 39-8-108 (2), C.R.S., the
board of county commissioners of any county of this state may commence an action
in the Denver district court within the time limit set forth in subsection (4) of this
section for judicial review of any agency action which is directed to any official,
board, or employee of such county or which involves any duty or function of any
official, board, or employee of such county with the consent of said official, board,
or employee, and to the extent that said official, board, or employee could maintain
an action under subsection (4) of this section. In addition, in any action brought
against any official, board, or employee of a county of this state for judicial
enforcement of any final order of any agency, the defendant official, board, or
employee may obtain judicial review of such agency action. In any such action for
judicial review, the county official, board, or employee shall not be permitted to
seek temporary or preliminary injunctive relief pending a final decision on the
merits of its claim.
(4.7) The county clerk and recorder of any county may commence an action
under this section in the Denver district court for judicial review of any final action
issued by the secretary of state arising under the Uniform Election Code of 1992,
articles 1 to 13 of title 1, C.R.S. In any such action, the county clerk and recorder may
seek temporary or preliminary injunctive relief pending a final decision on the
merits of the claim as permitted under this section.
(5) Upon a finding that irreparable injury would otherwise result, the agency,
upon application therefor, shall postpone the effective date of the agency action
pending judicial review, or the reviewing court, upon application therefor and
regardless of whether such an application previously has been made to or denied by
any agency, and upon such terms and upon such security, if any, as the court shall
find necessary and order, shall issue all necessary and appropriate process to
postpone the effective date of the agency action or to preserve the rights of the
parties pending conclusion of the review proceedings.
(6) In every case of agency action, the record, unless otherwise stipulated by
the parties, shall include the original or certified copies of all pleadings,
applications, evidence, exhibits, and other papers presented to or considered by the
agency, rulings upon exceptions, and the decision, findings, and action of the
agency. Any person initiating judicial review shall designate the relevant parts of
such record and advance the cost therefor. As to alleged errors, omissions, and
irregularities in the agency record, evidence may be taken independently by the
court.
(7) (a) If the court finds no error, it shall affirm the agency action.
(b) The court shall hold unlawful and set aside the agency action and shall
restrain the enforcement of the order or rule under review, compel any agency
action to be taken that has been unlawfully withheld or unduly delayed, remand the
case for further proceedings, and afford other relief as may be appropriate if the
court finds that the agency action is:
(I) Arbitrary or capricious;
(II) A denial of statutory right;
(III) Contrary to constitutional right, power, privilege, or immunity;
(IV) In excess of statutory jurisdiction, authority, purposes, or limitations;
(V) Not in accord with the procedures or procedural limitations of this article
4 or as otherwise required by law;
(VI) An abuse or clearly unwarranted exercise of discretion;
(VII) Based upon findings of fact that are clearly erroneous on the whole
record;
(VIII) Unsupported by substantial evidence when the record is considered as
a whole; or
(IX) Otherwise contrary to law, including failing to comply with section 24-4-104 (3)(a) or 24-4-105 (4)(b).
(c) In making the findings specified in this subsection (7), the court shall
review the whole record or portions of the record cited by any party.
(d) In all cases under review, the court shall determine all questions of law
and interpret the statutory and constitutional provisions involved and shall apply
the interpretation to the facts duly found or established.
(8) Upon a showing of irreparable injury, any court of competent jurisdiction
may enjoin at any time the conduct of any agency proceeding in which the
proceeding itself or the action proposed to be taken therein is clearly beyond the
constitutional or statutory jurisdiction or authority of the agency. If the court finds
that any proceeding contesting the jurisdiction or authority of the agency is
frivolous or brought for the purpose of delay, it shall assess against the plaintiff in
such proceeding costs and a reasonable sum for attorney fees (or an equivalent
sum in lieu thereof) incurred by other parties, including the state.
(9) The decision of the district court shall be subject to appellate review as
may be permitted by law or the Colorado appellate rules, but a notice of intent to
seek appellate review must be filed with the district court within forty-nine days
after its decision becomes final. If no notice of intent to seek appellate review is
filed with the trial court within forty-nine days after its decision becomes final, the
trial court shall immediately return to the agency its record. Upon disposition of a
case in an appellate court which requires further proceedings in the trial court, the
agency's record shall be returned to the trial court. On final disposition of the case
in the appellate court when no further proceedings are necessary or permitted in
the trial court, the agency's record shall be returned by the appellate court to the
agency with notice of such disposition to the trial court or to the trial court, in which
event the agency's record shall be returned by the trial court to the agency.
(10) In any judicial review of agency action, the district court or the appellate
court shall advance on the docket any case which in the discretion of the court
requires acceleration.
(11) (a) Whenever judicial review of any agency action is directed to the court
of appeals, the provisions of this subsection (11) shall be applicable except for
review of orders of the industrial claim appeals office.
(b) Such proceeding shall be commenced by the filing of a notice of appeal
with the court of appeals within forty-nine days after the date of the service of the
final order entered in the action by the agency, together with a certificate of service
showing service of a copy of said notice of appeal on the agency and on all other
persons who have appeared as parties to the action before the agency. The date of
service of an order is the date on which a copy of the order is delivered in person or,
if service is by mail, the date of mailing.
(c) The record on appeal shall conform to the provisions of subsection (6) of
this section. The designation and preparation of the record and its transmission to
the court of appeals shall be in accordance with the Colorado appellate rules. A
request for an extension of time to transmit the record shall be made to the court of
appeals and may be granted only by that court.
(d) The docketing of the appeal and all procedures thereafter shall be as set
forth in the Colorado appellate rules. The agency shall not be required to pay a
docket fee. All persons who have appeared as parties to the action before the
agency who are not designated as appellants shall, together with the agency, be
designated as appellees.
(e) The standard for review as set forth in subsection (7) of this section shall
apply to appeals brought under this subsection (11).