Western Food Plan, Inc. v. District Court In and For City and County of Denver, 28504

CourtSupreme Court of Colorado
Citation598 P.2d 1038,198 Colo. 251
Docket NumberNo. 28504,28504
PartiesWESTERN FOOD PLAN, INC., a Utah Corporation, Petitioner, v. DISTRICT COURT IN AND FOR the CITY AND COUNTY OF DENVER, the Honorable Joseph R. Quinn, the Honorable Howard Kirschbaum and J. D. MacFarlane, Attorney General, Respondents.
Decision Date13 August 1979

Cogswell, Chilson, Dominick & Whitelaw, John M. Cogswell, Denver, for petitioner.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Marshall A. Snider, Daniel C. Kogovsek, Asst. Attys. Gen., Denver, for respondents.

CARRIGAN, Justice.

Western Food Plan, Inc. (Western) filed this original proceeding under C.A.R. 21(a) seeking a writ of prohibition against the Denver District Court, and both an injunction and a writ of prohibition against the Colorado Attorney General.

The underlying lawsuit from which this proceeding arose was an action brought by the Attorney General under the Colorado Consumer Protection Act (CCPA). Section 6-1-101 Et seq., C.R.S.1973. The Attorney General, alleging deceptive trade practices, sought an injunction and restitution against Supreme Food Corporation of Colorado (Supreme Colorado), Supreme Food Corporation of Utah (Supreme Utah), Micron Corporation (Micron) and Talon Corporation (Talon). Apparently all the companies initially named as defendants had become defunct before the Attorney General's action was instituted, and their assets had been foreclosed and transferred to Western incident to enforcing security agreements. Western intervened in the underlying lawsuit to protect its interest in the assets of the defunct defendant corporations. The Attorney General met Western's intervention by filing a counterclaim against it for restitution.

Western urges us to prohibit and enjoin the Attorney General from prosecuting, and to prohibit the district court from hearing, the Attorney General's restitution 1 claims. Alternatively, Western asks us to declare section 6-1-110(1) of the CCPA unconstitutional as applied. We issued a rule to show cause why the Attorney General should not be enjoined from litigating, and the district court should not be prohibited from hearing these claims. We have concluded that the rule should be discharged as to both respondents.

In July, 1976, the Attorney General filed a complaint alleging that Supreme Colorado, Supreme Utah, Micron and Talon had violated the CCPA by engaging in deceptive trade practices including false representations and false and misleading advertising. As stated above, this original complaint did not name Western as a party.

In August, 1976, the Attorney General seized certain assets allegedly belonging to the originally named defendants. A German corporation (Hussel, A.G.), however, previously had foreclosed upon a security interest in those assets and had transferred them to Western. Thereafter, Western, claiming ownership of the confiscated assets, intervened in the Attorney General's lawsuit to protect its asserted interest.

Subsequently, the Attorney General amended his complaint to allege that Hussel was the original defendants' alter ego and that Hussel's security interest, foreclosure and assignment to Western had been invalid. Furthermore, the Attorney General alleged in a counterclaim that Western was a successor corporation to the original defendants and should be required, under the CCPA, to make restitution.

The issues to be decided are: (1) whether the Attorney General should be prohibited or enjoined from seeking restitution under the CCPA; and (2) whether the district court should be prohibited from hearing the Attorney General's restitution claims.

I. Prohibition or Injunction Against the Attorney General.

C.A.R. 21 regulates exercise of our constitutional authority 2 to grant "relief in the nature of prohibition . . . where the District court is proceeding without or in excess of its jurisdiction . . . ." (Emphasis added.) Although Rule 21 provides for prohibition against district courts in appropriate circumstances, 3 it expresses no authority for issuing such writs against the Attorney General. The rule's limited scope thus comports with the common law precept that a writ of prohibition lies only "to prevent an inferior tribunal, whether it have judicial or quasi-judicial powers, from usurping a jurisdiction with which it is not legally vested." Leonhart v. District Court, 138 Colo. 1, 5, 329 P.2d 781, 783 (1958). 4

The essence of a proceeding in the nature of prohibition is to test whether a judicial or quasi-judicial tribunal has exceeded its jurisdiction or grossly abused its discretion. The Attorney General is not a judicial officer, but an executive department officer. As such he has neither "jurisdiction" which might be exceeded in the underlying lawsuit giving rise to this proceeding, nor "discretion" which might be abused. The Attorney General is a litigant rather than a judicial officer, and his acts do not amount to judicial or quasi-judicial action. Consequently prohibition is not an appropriate remedy against the Attorney General in this case. See Commonwealth v. Wise,351 S.W.2d 493, 494 (Ky.1961); In re Investigation of January 1974 Philadelphia County Grand Jury, 458 Pa. 586, 328 A.2d 485, 489 (1974).

Similarly an injunction is generally inappropriate to prevent the Attorney General from performing his statutory duties. An injunction is normally sought in a trial court since it requires the taking of evidence and finding of facts. Only in the most extraordinary circumstances will this court exercise its power to issue an injunction. No such circumstances appear here.

II. Prohibition Against the District Court.

Western contends that the district court has exceeded its jurisdiction by indicating it would hear the Restitution action brought under the CCPA by the Attorney General.

While acknowledging that the CCPA authorizes the Attorney General to seek injunctive relief, Western contends that the Act does not allow him to seek restitution separate from an injunction. Western further maintains that the CCPA does not authorize the district court to order restitution except that which is ancillary to authorized injunctive relief. Both of these arguments apparently derive from language in the CCPA which provides:

"Whenever the attorney general has cause to believe that a person has engaged in or is engaging in any deceptive trade practice listed in section 6-1-105, he may apply for and obtain in an action in any district court of this state, a temporary restraining order, or injunction, or both, pursuant to the Colorado rules of civil procedure, prohibiting such person from continuing such practices, or engaging therein, or doing any act in furtherance thereof. The court may make such orders or judgments as may be necessary to prevent the use or employment by such person of any such deceptive trade practice, or which may be necessary to restore to any other person any money, or real or personal property which may have been acquired by means of any such practice." Section 6-1-110(1), C.R.S.1973 (Emphasis added).

In our view the quoted language must be read in light of the broad legislative purpose to provide prompt, economical, and readily available remedies against consumer fraud. This obvious legislative purpose would be frustrated if we were to hold that the Attorney General may not seek restitution.

Similar reasoning requires that we reject Western's argument that restitution may be invoked as a remedy only when supplementary to an injunction. In essence, Western asks us in this original proceeding to impose an inordinate restraint upon the Attorney General's power to enforce the CCPA. Such a restrictive approach which would render restitution a form of relief incidental to, rather than independent from, injunctive relief was rejected by the Iowa Supreme Court in reviewing consumer protection language virtually identical to that in Colorado's act. State ex rel. Turner v. Limbrecht, 246 N.W.2d 330, 334-35 (Iowa 1976). We hold that the narrow construction advanced by Western is inappropriate in interpreting remedial legislation such as the CCPA.

Nor can we accept Western's argument that CCPA section 6-1-110(1) restricts the Attorney General's choice of remedies to an election between injunctive relief and the assurances of discontinuance provided for in section 6-1-110(2), C.R.S.1973. This contention, too, is inconsistent with the CCPA's remedial purpose. In People ex rel. Dunbar v. Gym of America, 177 Colo. 97, 116, 493 P.2d 660, 670 (1972), we upheld, against an equal protection attack, "(t)he giving (under the CCPA) of prosecutorial discretion to the attorney general to determine which of several enforcement...

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