Cloverleaf Kennel Club, Inc. v. Colorado Racing Commission

• Decision Date: 15 December 1980
• Docket Number: No. 79SC41,79SC41
• Citation: 620 P.2d 1051
• Parties: CLOVERLEAF KENNEL CLUB, INC., a Colorado Corporation, and Rocky Mountain Greyhound Park, Inc., a Colorado Corporation, Petitioners, v. COLORADO RACING COMMISSION and Mile High Kennel Club, Inc., Respondents.
• Court: Colorado Supreme Court

Page 1051

620 P.2d 1051

CLOVERLEAF KENNEL CLUB, INC., a Colorado Corporation, and Rocky Mountain Greyhound Park, Inc., a Colorado Corporation, Petitioners, v. COLORADO RACING COMMISSION and Mile High Kennel Club, Inc. Respondents.

No. 79SC41.

Supreme Court of Colorado, En Banc.

Dec. 15, 1980.

Cogswell, Chilson, Dominick & Whitelaw, James E. Heiser, John H. Chilson, Denver, for Cloverleaf Kennel Club, Inc.

Rector, Retherford & Mullen, Leo W. Rector, Colorado Springs, for Rocky Mountain Greyhound Park, Inc.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Jeffrey G. Pearson, Asst. Atty. Gen., Denver, for Colorado Racing Commission.

Rothgerber, Appel & Powers, James M. Lyons, Denver, for Mile High Kennel Club, Inc.

DUBOFSKY, Justice:

Petitioners Cloverleaf Kennel Club, Inc. (Cloverleaf) and Rocky Mountain Greyhound Park, Inc. (Rocky Mountain) petitioned for review of the court of appeals' decision in Cloverleaf Kennel Club, Inc. v. Colorado Racing Commission, 42 Colo.App. 13, 592 P.2d 1341 (1979). We granted certiorari and now affirm the court of appeals' judgment.

In 1977, the General Assembly enacted a bill increasing the duration of race meets for animals other than horses from thirty to thirty-five days. See section 12-60-107(1), C.R.S. 1973 (1978 Repl. Vol. 5). ¹ The amendment became effective on July 1, 1977. On September 27, 1977, the respondent Mile High Kennel Club, Inc. (Mile High), which had concluded its licensed, 1977 racing meets on August 29th, petitioned the other respondent, the Colorado Racing Commission (Commission), for an allotment of eight of the additional annual racing days created by the amendment. Mile High's petition alleged that the requested allotment was authorized by section 12-60-106(8), C.R.S. 1973 (1978 Repl. Vol. 5), which provides:

"Upon petition by the licensee and a finding by the commission that it is impossible or impractical for a licensee because of fire or act of God or other unforeseeable emergency not caused or participated in by the licensee, to conduct a race meet upon the dates allocated or upon a race track designated by the commission to the licensee, other dates may be substituted and granted to the licensee. A licensee so petitioning may be granted the right to lease and utilize any other licensee's facilities for the term of the petitioning licensee's annual permit or any portion thereof, but said grant shall not be construed to allow any licensee more days of racing in any year than are prescribed by this article."

The additional racing dates requested by Mile High (December 21, 22, 23, 26, 27, 28, 29 and 30, 1977) did not conflict with any racing days allotted to Cloverleaf or Rocky Mountain. See section 12-60-108(5), C.R.S. 1973 (now in 1978 Repl. Vol. 5). ²

The Commission held a hearing on Mile High's petition on October 11, 1977. Cloverleaf and Rocky Mountain appeared in opposition. At the conclusion of the hearing, the Commission found that an emergency existed and granted Mile High's request for eight additional racing dates during December, 1977.

On November 8, 1977, the petitioners filed a petition in Denver District Court seeking judicial review of the Commission's decision under C.R.C.P. 106(a)(4). They alleged that the Commission's allotment of additional racing days to Mile High was in excess of the "emergency" powers conferred on it by section 12-60-106(8). The court directed the Commission to show cause why the relief requested by the petitioners should not be granted. The respondents then filed motions to dismiss the petition and quash the order to show cause, arguing, first, that inasmuch as the petitioners had an adequate and exclusive remedy under section 24-4-101, et seq., C.R.S. 1973 (the State Administrative Procedure Act; APA), the court lacked jurisdiction to review the Commission's action under C.R.C.P. 106(a)(4) and, second, that the petitioners, as economic competitors of Mile High, lacked standing to challenge the Commission's action. On December 13, 1977, the petitioners moved for leave to amend their C.R.C.P. 106(a)(4) petition to add a second claim for relief under section 24-4-106, C.R.S. 1973 (1979 Supp.).

On December 21, 1977, the petitioners' motion to amend their petition to add a claim for judicial review under the APA was denied as untimely because it had been filed more than thirty days after the date on which the agency action complained of became effective. Section 24-4-106(4), C.R.S. 1973 (1979 Supp.). The respondents' motions to dismiss the C.R.C.P. 106(a)(4) action were granted on the ground that Cloverleaf and Rocky Mountain, as economic competitors of Mile High, lacked standing to challenge the lawfulness of the Commission's allotment of additional racing days to Mile High. ³

The petitioners appealed the dismissal of their action to the court of appeals. The court affirmed the ruling below, holding that economic injury from lawful competition does not confer standing to challenge agency action; that the petitioners failed to show that they were "adversely affected or aggrieved" within the meaning of either C.R.C.P. 106(a)(4) or section 24-4-106; and that, even if it were assumed that the petitioners sustained an injury as a result of the Commission's action, the harm was too incidental and indirect to constitute an actionable injury under Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977).

We then granted the petitioners' petition for certiorari and now affirm the court of appeals' judgment dismissing the appeal on the ground that the petitioners lack standing to challenge the Commission's action. However, we disapprove the language in the opinion below suggesting that injury from lawful competition can never confer standing to challenge the legality of agency action.

I.

The respondent Commission asks us to dismiss the petitioners' appeal as moot. We decline to do so. While it is true that any injury sustained by petitioners is, as a practical matter, irremediable, and although it is equally true that the precise factual circumstances in which this controversy arose are unlikely to recur, the underlying substantive question is one "capable of repetition yet evading review." Rocky Mountain Association of Credit Management v. District Court, 193 Colo. 344, 345, 565 P.2d 1345, 1346 (1977). The breadth of the Commission's statutory authority to award additional racing dates to a licensee under section 12-60-106(8), C.R.S. 1973 (1978 Repl. Vol. 5) may again be drawn into question by petitions reciting that the applicant has been prevented from conducting a race meet because of an emergency or act of God. Were challenges to the Commission's disposition of these petitions mooted by the expiration of the calendar year in which additional days were requested or awarded, the Commission's or trial courts' interpretations of section 12-60-108(6) would evade appellate scrutiny. Under these circumstances, "a court may elect to settle the controversy so as to establish a precedent for future action by trial courts." Rocky Mountain Association of Credit Management v. District Court, supra.

II.

The respondents also ask us to dismiss the petitioners' appeal on the ground that our jurisdiction to review agency action was never timely invoked under section 24-4-106(4), C.R.S. 1973 (1979 Supp.). ⁴ We disagree and hold that the trial court erroneously dismissed petitioners' motion to amend their C.R.C.P. 106(a)(4) petition to add a claim for relief under the APA.

Our disposition of this matter is guided by People v. District Court, Colo., 612 P.2d 87 (1980), in which we rejected a virtually identical challenge to the timeliness of a motion to amend a C.R.C.P. 106(a)(4) petition to state a claim for relief under the APA. Here, Cloverleaf and Rocky Mountain filed a C.R.C.P. 106(a)(4) petition less than thirty days after the date of the Commission's decision; the only amendment requested by the petitioners was one bringing their claim for relief within the APA by substituting an invocation of the district court's jurisdiction under section 24-4-106 for the erroneous reference to C.R.C.P. 106(a)(4); as amended, the pleadings stated a claim for judicial review identical in all substantive respects to that stated in the original petition. Therefore, although the motion to amend was filed approximately one month after the thirty-day period prescribed by section 24-4-106(4), C.R.S. 1973 (1979 Supp.), had expired, leave to amend should have been granted under C.R.C.P. 15(a) and, because the amended pleading related back to the date on which the original petition was filed, C.R.C.P. 15(c), the pleading, as amended, stated a timely claim for judicial review under the APA. People v. District Court, supra.

Although the district court erroneously denied the petitioners' motion for leave to amend their petition to add a claim for relief under the APA, it is unnecessary to remand the case to that court. The standing questions raised by the petitioners are not affected by the pleadings amendment; they are questions of law which may be resolved on the record presently before us.

III.

Cloverleaf and Rocky Mountain contest the decision of the court of appeals that they lacked standing to challenge the Commission's allotment of eight additional racing days to Mile High. While we agree with the court of appeals' conclusion and hold that the petitioners are without standing to challenge the Commission's action, we disapprove of those portions of the lower court's opinion which predicate the denial of standing on Kornfeld v. Perl Mack Liquors, Inc., 193 Colo. 442, 567 P.2d 383 (1977), and Woda v. City of Colorado Springs, 40 Colo.App. 173, 570 P.2d 1318 (1977).

The general law of standing in this state was summarized in Wimberly v. Ettenberg, supra. In Wimberly we explicitly declined to adopt the standing doctrines propounded by the United States Supreme Court in ...