Harris v. Jefferson County Court, 89CA1652

• Decision Date: 28 February 1991
• Docket Number: No. 89CA1652,89CA1652
• Citation: 808 P.2d 364
• Parties: Lawrence Everett HARRIS, Plaintiff-Appellee, v. The JEFFERSON COUNTY COURT and the Honorable Robert Morris, one of the Judges thereof, and Donald E. Mielke, District Attorney, Defendants-Appellants. . V
• Court: Colorado Court of Appeals

Page 364

808 P.2d 364

Lawrence Everett HARRIS, Plaintiff-Appellee, v. The JEFFERSON COUNTY COURT and the Honorable Robert Morris,

one of the Judges thereof, and Donald E. Mielke,

District Attorney, Defendants-Appellants.

No. 89CA1652.

Colorado Court of Appeals,

Div. V.

Feb. 28, 1991.

Miller, Hale & Harrison, Daniel C. Hale, Boulder, for plaintiff-appellee.

Donald E. Mielke, Dist. Atty., First Judicial Dist., Donna Skinner Reed, Chief Appellate Deputy Dist. Atty., Golden, for defendants-appellants.

Opinion by Judge PLANK.

This appeal challenges the judgment of the district court holding that the district attorney does not have authority to prosecute actions under § 25-15-310, C.R.S. (1989 Repl.Vol. 11A). We affirm.

The District Attorney of the First Judicial District initiated a county court action against the plaintiff here, Lawrence E. Harris, under § 25-15-310 for unlawfully and knowingly treating, storing, and disposing of hazardous waste without a permit. Harris moved to dismiss, asserting the district attorney did not have proper authority to prosecute the action, which the county court denied.

Harris then filed a complaint pursuant to C.R.C.P. 106 in the district court, asking it to direct the county court to dismiss the action. The district court held that the district attorney did not have the authority to prosecute the case and ordered it remanded to county court for dismissal.

I.

On this appeal, the district attorney argues that his authority to prosecute violations of law within his judicial district extends to violations of § 25-15-310. We disagree.

Ordinarily the district attorney has authority to prosecute all violations of law which occur in his judicial district. However, when the General Assembly authorizes a different body to prosecute a particular type of action, then the district attorney is without authority to act. See People v. District Court, 190 Colo. 483, 549 P.2d 778 (1976); People v. Gibson, 53 Colo. 231, 125 P. 531 (1912).

Here, the statute involved is the State Hazardous Waste Management Act, § 25-15-301, et seq., C.R.S. (1989 Repl.Vol. 11A).

Section 25-15-301(1), C.R.S. (1989 Repl.Vol. 11A) provides:

"The department [of health] shall be the entity in the state responsible for the regulation of hazardous waste management; however, the department may in accordance with section 25-15-306 enter into agreements with local governments to conduct specified activities involving monitoring, inspections, and technical services but not permit issuance or enforcement." (emphasis added)

Thus, although the department of health may delegate some of its authority, it may not delegate its authority to enforce the provisions of the statute.

In addition, § 25-15-308(2), C.R.S. (1989 Repl.Vol. 11A), which specifically addresses enforcement, provides:

"Whenever the department finds that any person is in violation of any permit, rule, regulation, or requirement of this part 3, the department may issue an order requiring such person to comply with any such permit, rule, regulation, or requirement and may request the attorney general to bring suit for injunctive relief or for penalties pursuant to section 25-15-309 or 25-15-310." (emphasis added)

Section 25-15-310 concerns criminal penalties under the Act. It does not contain language specifically...