Colorado § 42-2-135 - Right to appeal.

§ 42-2-135. Right to appeal.

(1) Every person finally denied a license or identification card, whose identification card has been finally canceled, or whose license has been finally canceled, suspended, or revoked by or under the authority of the department may, within thirty-five days thereafter, obtain judicial review in accordance with section 24-4-106, C.R.S.; except that the venue for such judicial review shall be in the county of residence of the person seeking judicial review.

(2) For actions filed on or after January 1, 2024, in the third, fifth, sixth, seventh, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, twenty-first, and twenty-second judicial districts, on or after July 1, 2024, in the fourth, eighth, nineteenth, and twentieth judicial districts, and on or after July 1, 2025, in the first, second, seventeenth, eighteenth, and twenty-third judicial districts, the attorney general shall represent the department in all actions for judicial review filed pursuant to this section. The attorney general is permitted to appear for a hearing pursuant to this section by telephone, use of video teleconferencing technology, or any other court authorized means of electronic participation.

Source: L. 94: Entire title amended with relocations, p. 2154, § 1, effective January 1, 1995. L. 97: (1) amended, p. 203, § 3, effective July 1. L. 2015: (1) amended, (HB 15-1021), ch. 25, p. 63, § 3, effective August 5. L. 2023: (2) amended, (SB 23-251), ch. 361, p. 2168, §1, effective August 7.

Editor's note: This section is similar to former § 42-2-127 as it existed prior to 1994, and the former § 42-2-135 was relocated to § 42-2-143.

ANNOTATION

Annotator's note. Since § 42-2-135 is similar to 42-2-127 as it existed prior to the 1994 amending of title 42 as enacted by SB 94-1 and to repealed § 13-4-27, C.R.S. 1963, and to § 13-3-28, CRS 53, relevant cases construing these provisions have been included in the annotations to this section.

Administrative procedure act governs appellate review of revocation. Appellate review by the district court of a department of revenue order revoking a driver's license is governed by the administrative procedure act. Donelson v. Colo. Dept. of Rev., 38 Colo. App. 354, 561 P.2d 345 (1976).

A suspension order under § 42-2-123 is subject to judicial review pursuant to this section. Theobald v. District Court, 148 Colo. 466, 366 P.2d 563 (1961).

Until the agency makes a determination, action of the judiciary is premature. Colo. Dept. of Rev. v. District Court ex rel. County of Adams, 172 Colo. 144, 470 P.2d 864 (1970).

Court may not nullify limitation on right to postpone suspension. Where the general assembly, in the interest of public safety, has provided a reasonable limitation upon the right to secure postponement of the effective date of suspension of a driver's license by the director of revenue, requiring a showing of irreparable injury, the courts have no power to nullify by procedural rule the limitations so imposed, the function of the courts being limited to a review of the acts of the directors. Theobald v. District Court, 148 Colo. 466, 366 P.2d 563 (1961).

Court's discretion limited to determination of irreparable injury. Under Rule 106(a)(4), C.R.C.P., the district court has no discretion whatever to determine that a driver has a right to a postponement of the effective date of a suspension order even though he makes no showing of irreparable injury. The only discretion the district court has under these circumstances is to determine whether "irreparable injury" would result if the director's order remains in effect pending review. Where no showing whatever is made on this question, there is nothing before the district court upon which its discretion could operate. Theobald v. District Court, 148 Colo. 466, 366 P.2d 563 (1961).

Court's allowance of injunction would be in derogation of department's constitutional authority. By virtue of the authority of the constitution, it is the duty of the department of revenue to carry into effect the provisions of the revenue law which it is required to execute. They are of a governmental character. The sole object of the action commenced in the district court is to obtain an injunction to restrain the department from performing its duties. If this should be permitted in a direct proceeding, the result would be to directly subject executive officials to the jurisdiction of the courts when acting within their province and strip them of their constitutional powers. This is an authority that the judicial department cannot exercise in this manner, for the obvious reason that to concede it would be an assumption that the judicial was of superior authority to the executive department. Colo. Dept. of Rev. v. District Court ex rel. County of Adams, 172 Colo. 144, 470 P.2d 864 (1970).

There is no specific statutory provision allowing for award of costs where an individual pursues his right to judicial review of an administrative hearing officer's actions under § 24-4-106 and this section; such an award is erroneous because Rule 54(d), C.R.C.P., limits the imposition of costs against the state to "the extent permitted by law". Lucero v. Charnes, 44 Colo. App. 73, 607 P.2d 405 (1980).

Finality of order of revocation. An order of revocation issued at the conclusion of a hearing is final. Judicial review must be perfected within thirty days after the date of that hearing as specified in this section. If an appeal is not perfected within the statutory time limit, dismissal is mandated. Houston v. Dept. of Rev., 699 P.2d 15 (Colo. App. 1985).

Applied in Stortz v. Colo. Dept. of Rev., Motor Vehicle Div., 195 Colo. 325, 578 P.2d 229 (1978); Arnold v. Charnes, 41 Colo. App. 338, 589 P.2d 1373 (1978); Marin v. Colo. Dept. of Rev., 41 Colo. App. 557, 591 P.2d 1336 (1978); People v. District Court, 200 Colo. 65, 612 P.2d 87 (1980); Tomasi v. Thompson, 635 P.2d 538 (Colo. 1981); Croker v. Colo. Dept. of Rev., 652 P.2d 1067 (Colo. 1982); Thurber v. Charnes, 656 P.2d 702 (Colo. 1983); Dept. of Rev. v. Borquez, 751 P.2d 639 (Colo. 1988).