Colorado § 40-6-113 - Transcripts - record on review.

§ 40-6-113. Transcripts - record on review.

(1) In any proceeding the commission, any single commissioner, or any administrative law judge may order a transcript of all or any part of such proceeding. The cost of preparing the transcript shall be paid by the commission. If any party to any proceeding seeks to reverse, modify, or annul a recommended decision of a single commissioner or administrative law judge, or a decision of the commission, in the manner as provided in this section, then such party, and not the commission, shall pay the cost of the transcript of such proceeding or the applicable portion thereof in accordance with the provisions of this section.

(2) Any party who seeks to reverse, modify, or annul the recommended decision of a single commissioner or administrative law judge or the decision of the commission shall promptly notify the official reporter of the parts of the transcript of the proceedings which shall be prepared and certified by the official reporter. A copy of this notification shall be served upon the commission and all parties. Within ten days thereafter any other party or the commission may serve and file a designation of additional parts of the transcript of proceedings which is to be included. The transcript or the parts thereof which may be designated by the parties or the commission shall be prepared by the official reporter and certified by such reporter, and when completed shall be filed with the commission. The transcript, as so prepared, shall be filed with the commission on or before the time the first pleading is required to be filed with the commission by the party, whether such pleading is exceptions or a petition for rehearing, reconsideration, or reargument. The commission, upon request timely made, may extend the time within which to file the transcript, and if the transcript cannot reasonably be prepared within the time prescribed, the commission shall extend the time for filing both the transcript and the first pleading of the party.

(3) The cost of preparing the transcript shall be advanced by the party seeking to reverse, annul, or modify the recommended decision of a commissioner or administrative law judge, or the decision of the commission; except that the commission may upon objections by such party order any other party to advance payment forthwith for the cost of preparing such parts of the transcripts designated by them, as the commission shall determine.

(4) It is not necessary for a party to cause a transcript to be filed as provided in this section in any case where the party does not seek to amend, modify, annul, or reverse basic findings of fact which shall be set forth in the recommended decision of a commissioner or administrative law judge or in the decision of the commission. If such transcript is not filed pursuant to the provisions of this section for consideration with the party's first pleading, it shall be conclusively presumed that the basic findings of fact, as distinguished from the conclusions and reasons therefor and the order or requirements thereon, are complete and accurate.

(5) Instead of designating portions of the transcript as provided in subsection (2) of this section, the parties, by written stipulation filed with the commission and acceptable to the commission, may designate the portions of the transcript to be filed with the commission. The transcript, as agreed upon and subject to the approval of the commission, shall be filed with the commission.

(6) In case of an action to review an order or decision of the commission, a transcript of such testimony or the affidavits or other evidence under the shortened or informal procedure, together with all exhibits or copies thereof introduced and all information secured by the commission on its own initiative and considered by it in rendering its order or decision, and the pleadings, record, and proceedings in the case, shall constitute the record of the commission. On review of an order or decision of the commission, the party seeking such review and the commission may stipulate that a certain question alone or a particular portion only of the evidence shall be certified to the district court for its judgment, whereupon such stipulation and the question and the evidence specified shall constitute the record on review.

Source: L. 13: p. 496, § 50. C.L. § 2959. CSA: C. 137, § 50. CRS 53: § 115-6-13. C.R.S. 1963: § 115-6-13. L. 69: p. 947, § 45. L. 89: (1) to (4) amended, p. 1531, § 15, effective April 12.

ANNOTATION

Effect of failure by party to file transcript. If a party who seeks to reverse, modify, or annul a recommended decision of a commission examiner or the decision of the commission fails to file a transcript, the basic findings of fact of the commission are conclusively presumed to be complete and accurate. Howard v. Pub. Utils. Comm'n, 187 Colo. 138, 528 P.2d 1303 (1974).

The commission may rely on evidence other than that obtained at a formal hearing; thus the commission is allowed to consider a broader range of information in making an adjudicatory decision than that allowed by strict application of § 24-4-105 (14) of the State Administrative Procedure Act. Colo. Energy Advocacy v. Pub. Serv. Co., 704 P.2d 298 (Colo. 1985).

All such evidence must be placed in the public record, and the commission must provide an opportunity for the parties to comment thereon. Colo. Energy Advocacy v. Pub. Serv. Co., 704 P.2d 298 (Colo. 1985).

While subsection (6) does not generally require the commission to include advisory memoranda as part of the record, when staff injects new factual information into the proceedings through an advisory memorandum read at the open meeting deliberation of the commissioners and this factual information has not otherwise been made part of the record, the commission must include such factual information in the record for purposes of judicial review under § 40-6-115. Bd. of County Comm'rs of San Miguel v. Pub. Utils. Comm'n, 157 P.3d 1083 (Colo. 2007).

Applied in Colo. Ute Elec. Ass'n v. Pub. Utils. Comm'n, 198 Colo. 534, 602 P.2d 861 (1979).