Colorado State Bd. of Optometric Examiners v. Dixon, 22626

• Decision Date: 29 April 1968
• Docket Number: No. 22626,22626
• Citation: 165 Colo. 488,440 P.2d 287
• Parties: COLORADO STATE BOARD OF OPTOMETRIC EXAMINERS, Plaintiff in Error, v. Donald D. DIXON, Joseph Washington Evans, Harold Fishman, Dallas C. Hiatt, Harry W. Odil, and Joseph A. Wolfe, Individually and as Representatives of a Class, Defendants in Error. . En Banc
• Court: Colorado Supreme Court

Page 287

440 P.2d 287

165 Colo. 488

COLORADO STATE BOARD OF OPTOMETRIC EXAMINERS, Plaintiff in Error, v. Donald D. DIXON, Joseph Washington Evans, Harold Fishman Dallas C. Hiatt, Harry W. Odil, and Joseph A Wolfe, Individually and as Representatives of a Class Defendants in Error.

No. 22626.

Supreme Court of Colorado En Banc.

April 29, 1968.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., William Tucker, Asst. Atty. Gen., Clifton A. Flowers, Sp. Asst. Atty. Gen., Denver, for plaintiff in error.

Isaacson, Rosenbaum, Goldberg & Miller, Sheldon E. Friedman, Van Cise, Freeman, Tooley & Eason, Charles Goldberg, John J. Atkinson, Rothgerber, Appel & Powers, William P. Johnson, Denver, for defendants in error.

PRINGLE, Justice.

This writ of error is brought to review an order of the District Court of the City and County of Denver granting a preliminary injunction restraining plaintiff in error, the Colorado State Board of Optometric Examiners, from enforcing a regulation.

Plaintiff in error will hereafter be referred to as the Board, and the defendants in error, who were plaintiffs in the trial court, will be referred to as plaintiffs.

Regulation No. 11, the subject of this action, was adopted by the Board January 29, 1966. It provides:

'No optometrist shall conduct the practice of his profession in or on premises where a commercial or mercantile establishment is the primary business being conducted.'

This regulation was to become effective June 1, 1966. On May 27, plaintiffs filed their complaint in the district court, seeking (1) an injunction against enforcement of Regulation No. 11, (2) a declaratory judgment that the regulation and C.R.S. 1963, 102--1--7(2) are unconstitutional, and (3) judicial review under C.R.S. 1963, 3--16--5, and R.C.P. Colo. 106, of the Board's action in adopting Regulation No. 11. Plaintiffs brought suit individually and as representatives of the class comprising 'all persons licensed to practice optometry in the State of Colorado who practice optometry in or on premises which might be deemed to be premises where a commercial or mercantile establishment is the primary business being conducted.'

A temporary restraining order was granted ex parte, and after hearing on June 6, 1966, the trial court entered its order granting a preliminary injunction restraining the Board from enforcing its regulation. Such an order is reviewable by writ of error under R.C.P. Colo. 111(a)(3). No determination on the merits of the validity of Regulation No. 11 has yet been made.

The Board's sole contention, both here and in the trial court, has been that the district court was without jurisdiction to grant the preliminary injunction in question. It presented no evidence at the hearing and does not contest the court's finding that plaintiffs 'established by a strong weight of the evidence * * * that the enforcement of Regulation No. 11 * * * would cause Plaintiffs to suffer immediate irreparable injury and damage.' Since we hold that the district court did have jurisdiction by reason of C.R.S. 1963, 3--16--5, to issue the injunction, we affirm.

The Board argues that C.R.S. 1963, 3--16--5 does not apply, contending that no 'final action' has been taken by it with regard to Regulation No. 11. We do not agree with the Board's contention.

The optometry statute, C.R.S. 1963, Chapter 102, contains no provisions governing the procedures to be followed by the Board under the rule-making power granted by Section 102--1--7(2). The general provisions of the Administrative Code are therefore applicable.

Under C.R.S. 1963, 3--16--5, judicial review, including injunctive relief, is available to persons aggrieved by agency 'action' where irreparable damage would otherwise result. The trial court is specifically authorized to postpone the effective date of agency action pending review, as it did here. Under C.R.S. 1963, 3--16--1(k), agency 'action' includes 'the whole or any part of Any agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.' (Emphasis added.) 'Rule' is defined by C.R.S. 1963, 3--16--1(d) as: 'the whole or any part of Every agency statement of general applicability and future effect implementing, interpreting, or declaring law or policy, or setting forth the procedure or practice requirements of any agency.' (Emphasis added.) In our view, Regulation No. 11 comes within that definition and is therefore agency action which we hold to be final agency action subject to the provisions of C.R.S. 1963, 3--16--5.

All of the cases cited by the Board, except Colorado State Board of Examiners of Architects v. Rico, 132 Colo. 437, 289 P.2d 162, involve attempted judicial interference with various administrative proceedings before such proceedings had been concluded, and are, of course, not in point here. Nor is this case governed by cases decided before the adoption of Article 16 of the Administrative Code in 1959. We hold that the district court had jurisdiction under the Administrative Code to issue the relief it did.

Rico, supra, held that a declaratory judgment may not be brought to secure a judicial determination of the validity of a statute which adversely affects a particular person, and that the remedy is to violate the statute and raise the invalidity as a defense to a prosecution for the violation.

The Uniform Declaratory Judgments Act, C.R.S. 1963, 77--11, and R.C.P. Colo. 57 state as follows:

'Any person interested under a deed, will, written contract or other writings constituting a contract, or Whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, May have determined any question of construction or validity arising under the instrument, Statute, ordinance, contract or franchise And obtain a declaration of rights, status or other legal relations thereunder.' (Emphasis added.)

C.R.S. 1963, ...