Sullivan v. Board of County Com'rs of Arapahoe County, 82SA311

• Decision Date: 17 December 1984
• Docket Number: No. 82SA311,82SA311
• Citation: 692 P.2d 1106
• Parties: Patrick J. SULLIVAN, Jr., Sheriff of Arapahoe County, Plaintiff-Appellee, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF ARAPAHOE, Charles A. Pitts, Thomas R. Eggert, and Betty Ann Dittemore, Defendants-Appellants.
• Court: Colorado Supreme Court

Page 1106

692 P.2d 1106

Patrick J. SULLIVAN, Jr., Sheriff of Arapahoe County, Plaintiff-Appellee, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF ARAPAHOE, Charles A. Pitts, Thomas R. Eggert, and Betty Ann

Dittemore, Defendants-Appellants.

No. 82SA311.

Supreme Court of Colorado,

En Banc.

Dec. 17, 1984.

Rehearing Denied Jan. 11, 1985.

Banta, Hoyt, Banta, Greene, Hannen & Everall, J. Mark Hannen, Englewood, for plaintiff-appellee.

Peter L. Vana, III, Arapahoe County Atty., James E. Heiser, Asst. County Atty., Littleton, for defendants-appellants.

NEIGHBORS, Justice.

The Board of County Commissioners of the County of Arapahoe (Board) appeals the Arapahoe County District Court's declaratory judgment that the Board has no power to interfere with the personnel decisions of the Arapahoe County Sheriff concerning his deputies. The district court also declared that funds budgeted for the sheriff's department by the Board were under the exclusive control of the sheriff and it enjoined the Board from interfering with the sheriff's personnel decisions regarding deputy sheriffs. We vacate the order and remand for dismissal of the sheriff's complaint.

The dispute between these parties arose when a deputy sheriff, Steven Toney, was disciplined and ultimately terminated from employment with the sheriff's department for alleged violations of rules governing operation of the jail. Toney sought review of his discharge pursuant to the procedures set out in a personnel manual promulgated by the Board. The Board conducted a hearing, in which the sheriff declined to participate, and adopted a resolution stating that Toney had been wrongfully terminated and ordering that he be paid two months wages, the funds to be taken from money previously allocated to the sheriff's personnel budget.

The sheriff filed a complaint in Arapahoe County District Court seeking declaratory and injunctive relief. The complaint recited the details of the Board's action with respect to Toney and alleged that the Board lacked the power to review personnel decisions of the sheriff concerning his deputies or to order the transfer of money previously budgeted to the sheriff's department. The sheriff sought a declaratory judgment delineating the respective powers of the Board and the sheriff and an injunction restraining the Board from taking actions regarding deputy sheriffs in excess of its powers. Summary judgment was awarded in favor of the sheriff and the Board appealed.

I.

Although not urged by the Board, at oral argument we raised the question whether the plaintiff's exclusive remedy in this case was under C.R.C.P. 106(a)(4). This court is free to consider the district court's possible lack of subject matter jurisdiction notwithstanding any party's failure to raise the issue. Moschetti v. Liquor Licensing Authority, 176 Colo. 281, 490 P.2d 299 (1971); Lien v. Gertz, 158 Colo. 416, 407 P.2d 328 (1965). We conclude that the district court lacked jurisdiction to adjudicate this matter in view of the exclusivity of the plaintiff's remedy under C.R.C.P. 106 and his failure to pursue that remedy within the time limits prescribed by the rule.

C.R.C.P. 106(a)(4) provides that relief may be obtained in the district court "[w]here an inferior tribunal (whether court, board, commission, or officer) exercising judicial or quasi-judicial functions, has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy." The rule also provides that in the absence of any other statutory time period, "a petition for certiorari or other writ seeking to review the acts of any inferior tribunal shall be filed in the district court not later than 30 days from the final action taken by said tribunal." C.R.C.P. 106(b).

The Board's action in reviewing the discharge of Deputy Toney was quasi-judicial in nature. Quasi-judicial actions "involve the determination of juridical facts on which the impact of a law upon an individual depends," Shoenberg Farms v. People ex rel. Swisher, 166 Colo. 199, 209, 444 P.2d 277, 282 (1968), and the general test "is to consider whether the function in question involves the exercise of discretion and requires notice and hearing." Van Pelt v. State Board for Community Colleges, 195 Colo. 316, 320, 577 P.2d 765, 768 (1978). In general, quasi-judicial proceedings involve a determination of rights and liabilities with reference to past or present facts. City & County of Denver v. Eggert, 647 P.2d 216 (Colo.1982). An examination of the applicable provisions of the policy manual ¹ leads us to conclude that the actions of the Board concerning the sheriff were quasi-judicial in nature. ²

In this case the gravamen of the sheriff's complaint was that the Board had no authority to hear Toney's grievance. This allegation by the sheriff that the Board was proceeding in excess of its jurisdiction was properly cognizable under C.R.C.P. 106(a)(4). It is well established that in the absence of another period provided by statute, a proceeding under C.R.C.P. 106(a)(4) must be filed within the thirty-day period provided in C.R.C.P. 106(b), Tri-State Generation & Transmission Co. v. City of Thornton, 647 P.2d 670 (Colo.1982), and a failure to do so is a jurisdictional defect. Gold Star Sausage Co. v. Kempf, 653 P.2d 397 (Colo.1982). Thus, the failure of the sheriff to bring this action within the requisite time period deprived the district court of subject matter jurisdiction in this case. ³

Moreover, the sheriff here "may not seek to accomplish by a declaratory judgment what [he] can no longer accomplish directly under C.R.C.P. 106(a)(4)...." Tri-State Generation & Transmission Co. v. City of Thornton, 647 P.2d 670, 676 n. 7 (Colo.1982). See also Greyhound Racing Association v. Colorado Racing Commission, 41 Colo.App. 319, 589 P.2d 70 (1978). Insofar as the relief sought by the sheriff pertains to the dispute over Toney's discharge, ⁴ such relief is unavailable by way of a declaratory judgment, given the sheriff's failure to bring a timely C.R.C.P. 106 action.

The Board contends that, insofar as the district court adjudicated the rights of the parties concerning matters apart from the facts of Toney's discharge, it merely rendered an advisory opinion. We agree.

The request for declaratory relief sought, in addition to a declaration that the Board had exceeded its authority in its actions regarding Toney, a ruling that the Board lacked authority to act in a variety of areas pertaining to deputy sheriffs. Given that the relief as to the actual controversy over Toney is unavailable to the sheriff, the remaining requests for a declaratory judgment seek only an advisory opinion. This court has noted that "[d]etermination of the scope and constitutionality of legislation in advance of its immediate adverse effect in the context of a concrete case involves too remote and abstract an inquiry for the proper exercise of the judicial function." Theobald v. Board of County Commissioners, 644 P.2d 942, 950 (Colo.1982) (quoting International Longshoremen's & Warehousemen's Union, Local 37 v. Boyd, 347 U.S. 222, 224, 74 S.Ct. 447, 448, 98 L.Ed. 650 (1954)). Although the Uniform Declaratory Judgments Law §§ 13-51-101 to -115, 6 C.R.S. (1973 & 1984 Supp.), is to be liberally construed and administered, § 13-51-102, 6 C.R.S. (1973), we have nevertheless consistently required that "[a] proceeding for declaratory judgment must be based upon an actual controversy and not be merely a request for an advisory opinion." Beacom v. Board of County Commissioners, 657 P.2d 440, 447 (Colo.1983); Farmers Elevator Co. v. First National Bank, 176 Colo. 168, 489 P.2d 318 (1971); Taylor v. Tinsley, 138 Colo. 182, 330 P.2d 954 (1958). Here, as already noted, the requested relief specifically based upon the dispute over Toney's discharge was unavailable because of the sheriff's failure to properly bring the action under C.R.C.P. 106(a)(4). The declaration sought by the parties regarding the general powers of the sheriff and the Board to control personnel and budgetary matters in the sheriff's department is unavailable because it is not grounded upon any actual controversy concerning those matters. This case was resolved on motion for summary judgment and no evidence was presented concerning a number of the matters addressed by the district court's order. If these issues are to be adjudicated, they should be resolved within the context of an actual controversy between these parties. ⁵ See Beacom v. Board of County Commissioners, 657 P.2d 440 (Colo.1983).

II.

The Board also contends that the district court erred in awarding to the sheriff the amount of $11,830.51 in attorney's fees. We agree.

The district court relied upon Wadlow v. Kanaly, 182 Colo. 115, 511 P.2d 484 (1973), as authority for the award of attorneys' fees. In Wadlow, we stated that "when the question of the respective powers of two governmental...