Ratcliff v. Kite
| Decision Date | 08 July 1975 |
| Docket Number | No. 74-261,74-261 |
| Citation | 541 P.2d 88,36 Colo.App. 261 |
| Parties | Sybil RATCLIFF, Plaintiff-Appellee, v. Harold E. KITE, Mayor of Commerce City, et al., Defendant-Appellants. . III |
| Court | Colorado Court of Appeals |
Geer, Goodwin & Chesler, P.C., David L. McCarl, Denver, for plaintiff-appellee.
Gehler & Cohen, Robert R. Gehler, Commerce City, for defendants-appellants.
Plaintiff, Sybil Ratcliff, was terminated as City Clerk of the city of Commerce City by the City Manager on June 7, 1972. A review of her termination, pursuant to provision of the city charter was scheduled by the City Council. Plaintiff requested that the City Council issue subpoenas to compel attendance of witnesses to testify at the hearing. This request was refused and plaintiff thereupon applied to the district court for Adams County, ex-parte, for an order requiring the city to issue the subpoenas. An order, in the form requested, was granted without notice or hearing. Commerce City then filed a motion seeking to have the order vacated and, after a hearing, the court vacated its previous order and ruled that the City Council of Commerce City did not have the power to issue subpoenas in this type of review proceeding.
Plaintiff previously appealed to this court from the decision of the district court denying her request for the issuance of subpoenas. That appeal was dismissed, under C.A.R. 35 for her failure to prosecute diligently the same.
The review proceeding was held by the City Council, evidence was received, and after deliberation, the Council upheld the decision of the City Manager. Plaintiff objected to the hearing being held and refused to participate or present evidence because the city had refused to issue subpoenas on her behalf. She also objected to the Council's consideration of affidavits which had been presented.
Plaintiff thereafter filed a complaint in the district court pursuant to C.R.C.P. 106(a)(4) seeking review of the decision of the City Council which had upheld the City Manager's termination of plaintiff. The district court ruled that the City Council violated plaintiff's constitutional right to due process of law because she was not afforded compulsory process to compel attendance of witnesses at the City Council's review proceeding and because hearsay testimony in the form of affidavits was considered by the City Council as a portion of the evidence against plaintiff during that proceeding. The Mayor, City Council, and City appeal. We reverse.
As to the issue of whether plaintiff was entitled to the issuance of subpoenas, the earlier determination by the district court that plaintiff was not entitled to compulsory process, which became final when we dismissed an appeal thereon, is binding on plaintiff here. She may not relitigate it now. The issue is precisely the same one terminated by a final judgment in the prior case; the parties are identical, and there is no evidence that plaintiff did not have a full and fair opportunity to litigate the issue in the prior proceeding. See Pomeroy v. Waitkus, Colo., 517 P.2d 396.
As to whether plaintiff was entitled to a full evidentiary hearing, we recognize that Colorado has followed the general rule that, unless otherwise limited or restricted by statute or ordinance, implicit in the power of a city...
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BENDIX-WESTINGHOUSE, ETC. v. LATROBE DIE CAST. CO.
...v. Standard Electric Co., Civ. Action No. C-1752 (D.Colo. Sept. 21, 1974), aff'd 522 F.2d 986 (10th Cir. 1975); Ratcliff v. Kite, 36 Colo. App. 261, 541 P.2d 88 (Colo.App.1975); Pomeroy v. Waitkus, 183 Colo. 344, 517 P.2d 396, 399 (1974); Bernhard v. Bank of America, 19 Cal.2d 807, 122 P.2d......
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People v. Tynan
...was a final judgment because the supreme court had dismissed and not reinstated the appeal from that ruling. See Ratcliff v. Kite, 36 Colo.App. 261, 541 P.2d 88 (1975). The identity of parties or their privies for res judicata purposes is a factual determination of substance, not mere form.......
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Johnson v. City Council for City of Glendale
...Capital Improvement District v. Board of County Commissioners, 149 Colo. 284, 369 P.2d 67 (1962); See also Ratcliff v. Kite, 36 Colo.App. 261, 541 P.2d 88 (1975). However, the absence of a set of standards for termination does not give the City Manager absolute discretion. In such circumsta......