Chittenden v. Colo. Bd. of Soc. Work Exam'rs

• Decision Date: 11 October 2012
• Docket Number: No. 11CA1872.,11CA1872.
• Citation: 292 P.3d 1138
• Parties: Cora Lea CHITTENDEN, LCSW, Appellant, v. COLORADO BOARD OF SOCIAL WORK EXAMINERS, Appellee.
• Court: Colorado Court of Appeals

292 P.3d 1138

Cora Lea CHITTENDEN, LCSW, Appellant,

v.COLORADO BOARD OF SOCIAL WORK EXAMINERS, Appellee.

No. 11CA1872.

Colorado Court of Appeals,

Div. VI.

Sept. 13, 2012.

As Modified on Denial of Rehearing Oct. 11, 2012.

Denis K. Lane, Jr., Colorado Springs, Colorado, for Appellant.

John W. Suthers, Attorney General, Catherine Shea, Assistant Solicitor General, Denver, Colorado, for Appellee.

Opinion by Judge GABRIEL.

¶ 1 Cora Lea Chittenden, a licensed clinical social worker, attempts to appeal from an order (the Order) of the State Board of Social Work Examiners (the Board) that declined to rule on her petition for a declaratory order.

¶ 2 Section 24–4–105(11), C.R.S.2012, of the Administrative Procedures Act (APA) provides, in pertinent part, “The order disposing of the petition [for a declaratory order] shall constitute agency action subject to judicial review.” As an apparent matter of first impression in Colorado, we construe the phrase “agency action subject to judicial review” within that provision to require final agency action under section 24–4–106(2), C.R.S.2012, which governs judicial review under the APA. We further conclude that the Order did not constitute final agency action for purposes of the APA. Accordingly, we lack jurisdiction and therefore dismiss this appeal.

I. Background

¶ 3 Chittenden provided court-ordered therapy to a minor child. The child's father filed a complaint with the Board, alleging unlawful, unprofessional, and unethical conduct by Chittenden. The Board assigned the complaint case number 2011–001224 and began its investigation. Chittenden was then notified of the complaint and filed a response with supporting exhibits.

¶ 4 After reviewing the complaint, response, and additional information, the Board found reasonable grounds to believe that Chittenden had violated section 12–43–222(1)(g), (j), and (v), C.R.S.2012. Before proceeding further, however, the Board made Chittenden a settlement offer, under which Chittenden would admit that she (1) fraudulently billed the father above the maximum allowable insurance provider rate, and (2) made unsubstantiated statements alleging a dire future for the child.

¶ 5 Chittenden neither accepted nor rejected this offer. Instead, she submitted a request for declaratory orders that (1) her billing had complied with applicable law and the Board had no jurisdiction over what was in essence a fee dispute between her and the father; and (2) she was immune from discipline for any of the statements that she allegedly made about the child.

¶ 6 In response to Chittenden's petition, the Board issued the Order, which stated, in pertinent part:

This letter is to notify you that at its meeting on July 8, 2011, the [Board] considered your petition of [sic] Declaratory Order contained in your letter of March 16, 2011 requesting a Declaratory Order in Case No.2011–001224. After full discussion and deliberation on your request, the Board determined, in its discretion, that it will not rule on your petition. The reason the Board decided not to rule on your petition is that it does not feel that ruling on your request would terminate the controversy or remove uncertainty as to the applicability of any statutory provision or any Board rule or order. Furthermore, your client [sic] has another legal remedy, other than action for declaratory relief pursuant to Rule 57, Colorado Procedures, that will terminate the controversy or remove any uncertainty you have as to the applicability of the statute, rule or order in question.

¶ 7 Chittenden then filed a notice of appeal in this court, and the Board moved to dismiss the appeal in part on various grounds. The Board, however, did not move to dismiss that portion of the appeal relating to the Board's refusal to rule on Chittenden's request for a declaratory order.

¶ 8 A motions division of this court granted the Board's motion to dismiss in part, which concerned issues not pertinent here, but ordered the parties to address in their principal briefs whether a decision “not to decide” a petition for a declaratory order is an order “disposing of the petition” and thus subject to judicial review. After reviewing the parties' briefs, the record in this case, and the applicable law, we noted an additional jurisdictional issue and asked the parties to submit supplemental briefs addressing the following questions:

1. Does § 24–4–105(11), C.R.S., require final agency action within the meaning of § 24–4–106(2), C.R.S., before an order disposing of a petition for a declaratory order is subject to judicial review?

2. If so, was there final agency action here, or should this appeal be dismissed without prejudice for lack of final agency action?

¶ 9 We address these questions first because we conclude that they are dispositive of this appeal.

II. Statutory Construction

¶ 10 With respect to the meaning of section 24–4–105(11), Chittenden argues that any order disposing of a petition for a declaratory order is subject to immediate judicial review, regardless of whether other matters are pending in the same administrative proceeding. She further asserts that section 24–4–105(11), unlike section 24–4–106(2), does not require final agency action prior to judicial review, but rather provides a separate and independent basis for such review. The Board, in contrast, contends that section 24–4–105(11) requires final agency action within the meaning of section 24–4–106(2) before an order disposing of a petition for declaratory relief is subject to judicial review. We agree with the Board.

A. Rules of Statutory Construction

¶ 11 The meaning of section 24–4–105(11) presents an issue of statutory construction that we review de novo. See People v. Daniels, 240 P.3d 409, 411 (Colo.App.2009). Our primary purpose in statutory construction is to ascertain and give effect to the intent of the General Assembly. Id. We first look to the language of the statute, giving words and phrases their plain and ordinary meaning. Id. We read words and phrases in context and construe them according to their common usage. Id.

¶ 12 In addition, we must interpret a statute in a way that best effectuates the purpose of the legislative scheme. Id. When a court construes a statute, it should read and consider the statute as a whole and interpret it in a manner giving consistent, harmonious, and sensible effect to all of its parts. Id. In doing so, a court should not interpret the statute so as to render any part of it either meaningless or absurd. Id.

¶ 13 If the statute is unambiguous, we look no further. Id. If the statute is ambiguous, however, then we may consider prior law, legislative history, the consequences of a given construction, and the underlying purpose or policy of the statute. Id. We may also consider the title of the statute and any accompanying statement of legislative purpose. Larson v. Sinclair Transp. Co., 2012 CO 36, ¶ 8.

¶ 14 “A statute is ambiguous when it ‘is capable of being understood by reasonably well-informed persons in two or more different senses.’ ” Jefferson Cnty. Bd. of Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo.2010) (quoting 2A Norman J. Singer & J.D. Shambie Singer, Statutes & Statutory Construction § 45:2, at 13 (7th ed.2007)).

B. Application

¶ 15 Section 24–4–105(11) provides:

Every agency shall provide by rule for the entertaining, in its sound discretion, and prompt disposition of petitions for declaratory orders to terminate controversies or to remove uncertainties as to the applicability to the petitioners of any statutory provision or of any rule or order of the agency. The order disposing of the petition shall constitute agency action subject to judicial review.

(Emphasis added.) Thus, whether we have jurisdiction to hear Chittenden's appeal turns on whether the Order (1) disposed of her petition and (2) constituted “agency action subject to judicial review.” We need not decide the first issue, however, because we conclude that the proper construction of the phrase “agency action subject to judicial review” is dispositive of this appeal.

¶ 16 In our view, the phrase “agency action subject to judicial review” is reasonably susceptible of the interpretations advanced by both parties. Accordingly, we conclude that the phrase is ambiguous and thus turn to the other rules of statutory construction discussed above to determine its meaning. See Gerganoff, 241 P.3d at 935. Applying those rules, we hold that, absent the applicability of the exception set forth in section 24–4–106(8), C.R.S.2012, which we discuss below, section 24–4–105(11) requires final agency action within the meaning of section 24–4–106(2) before an order disposing of a petition for declaratory relief is subject to judicial review. We reach this conclusion for three reasons.

¶ 17 First, this construction is consistent with the APA's overall purpose and design, and it gives sensible and harmonious effect to all of its parts.

¶ 18 As pertinent here, section 24–4–106 is the provision of the APA specifically relating to judicial review. See§ 24–4–106(1), C.R.S.2012 (“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.”); see also Colorado State Bd. of Med. Exam'rs v. Colorado Court of Appeals, 920 P.2d 807, 810 (Colo.1996) (“Judicial review of agency actions is governed under section 24–4–106 ... of the APA.”). Section 24–4–106(2) provides the general rule requiring final agency action as a jurisdictional prerequisite to judicial review. Section 24–4–106(8) provides an exception to that general rule and allows a party suffering irreparable injury to bring suit to enjoin the conduct of an agency proceeding when the proceeding or the action proposed to be taken is “clearly beyond the constitutional or statutory jurisdiction or authority of the agency.” See also Envirotest Sys., Corp. v. Colorado Dep't of...