Stuart-James Co. v. Division of Employment & Training

Judge RULAND,

dissenting.

I respectfully dissent from that part of the majority holding which sets aside the Panel’s disposition of the equal protection argument.

I recognize that our supreme court in Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971) held that the proper forum for presentation of evidence in support of an equal protection challenge is the district court in conjunction with a declaratory judgment action. However, if, as here, that issue may be determined based upon the record before the administrative tribunal, in my view, the better approach is for an appellate court to do so. See Lucchesi v. State, 807 P.2d 1185 (Colo.App.1990).

Indeed, both our supreme court and this court have proceeded to do so both in workers’ compensation proceedings, see Higgs v. Western Landscaping & Sprinkler Systems, Inc., 804 P.2d 161 (Colo.1991); Floyd v. AMF Tuboscope, Inc., 817 P.2d 534 (Colo.App.1990), and in unemployment compensation proceedings. See Miller v. Industrial Commission, 173 Colo. 476, 480 P.2d 565 (1971); Getts v. Industrial Claim Appeals Office, 804 P.2d 282 (Colo.App.1990).

Resolution of the constitutional claim in such a manner promotes judicial economy, allays unnecessary delay and expense to the parties, and avoids duplicitous presentation of similar evidence in separate forums.

This procedure also avoids pitfalls for the unwary who might assume both that the constitutional issue need not be raised in connection with the appeal from the Panel’s order, see Industrial Commission v. Board of County Commissioners, 690 P.2d 839 (Colo.1984) (fn. 6) and that the declaratory judgment action can always be filed after final resolution of the administrative proceeding. See Clasby v. Klapper, 636 P.2d 682 (Colo.1981).

I also agree with the Panel that, based upon the offer of proof by Stuart-James, In re Claim of Woloson, 796 P.2d 1 (Colo.App.1989) is dispositive of the equal protection claim. In that case, which was also resolved based upon the record made in the administrative proceeding, this court determined that the difference in regulatory schemes for real estate brokers and securities salesmen supported different classifications for unemployment compensation purposes. Thus, I would affirm the Panel’s order in all respects.