dissenting.
I respectfully dissent.
I disagree with the majority’s conclusion that Moody had a right to an adversary hearing under § 16-5-209, C.R.S. (1986 Repl.Vol. 1A) and that it was error for the trial court to deny her the opportunity to present evidence.
A district attorney’s broad prosecutorial discretion is rooted in his capacity as an executive officer and in the doctrine of the separation of powers. See People v. District Court, 632 P.2d 1022 (Colo.1981). However, even executive officers are prohibited from exceeding the limits of the discretion entrusted to them. See State v. Clark, 291 Or. 231, 630 P.2d 810 (1981).
Section 16-5-209 is a mechanism created by the General Assembly as part of the Colorado Code of Criminal Procedure, § 16-1-101, et seq., C.R.S. (1986 Repl.Vol. 8A) to prevent abuses in connection with the prosecutorial decision. The statute creates an avenue for persons who believe a prosecuting attorney is not pursuing a case with diligence to petition the district court to review the status of the case. Dohaish v. Tooley, 670 F.2d 934 (10th Cir.1982). The district court may then summon the district attorney to be heard on his or her reasons for the exercising of discretion resulting in the non-prosecution.
In my view, § 16-5-209 is a special statutory proceeding as part of the Code of Criminal Procedure, and the Rules of Civil Procedure do not apply to it. Under C.R. C.P. 81, the Rules of Civil Procedure apply in special statutory proceedings only to the extent they are not inconsistent or in conflict with the practice and procedure provided for in the statute. Contrary to the right of any person to commence an adversarial proceeding by filing a complaint, here, the statutory procedure is initiated by affidavits and is addressed to the sound discretion of the district court. Further, the statute, as is proper in a matter concerned with the constitutional division of power, Colo. Const, art. Ill, restricts the right of the district court to require an appearance before it and a showing by the district attorney that his or her decision was not arbitrary or capricious, or without reasonable excuse. Matters beyond these are, as here, left to the political wisdom of the district attorney’s constituency.
Section 16-5-209 is clear in its requirements. It specifically limits the hearing to an explanation by the prosecutor. It also provides the exclusive judicial remedy to rectify improper refusals to prosecute. Hence, the Rules of Civil Procedure do not apply. See Brown v. Hansen, 177 Colo. 39, 493 P.2d 1086 (1972).
*1175Therefore, the trial court was acting within its discretion in refusing to hear the motion to compel discovery, and an order compelling discovery could well have been an abuse of discretion.
In addition, a prosecutor’s charging decision is presumed to be in accordance with the law. People v. District Court, supra. A party challenging the prosecutor’s decision under § 16-5-209 may overcome the presumption only upon a showing of clear and convincing evidence that the refusal to prosecute was arbitrary or capricious and without reasonable excuse. Landis v. Farish, 674 P.2d 957 (Colo.1984); Sandoval v. Farish, 675 P.2d 300 (Colo.1984).
Clear and convincing proof is “evidence which is stronger than a ‘preponderance of the evidence’ and which is unmistakable and free from serious or substantial doubt.” DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318 (1980). An affidavit must introduce sufficient evidence to satisfy this burden of proof before a discretionary hearing may be held under § 16-5-209.
Moreover, at the hearing, the burden does not shift to the district attorney to explain before the court that his refusal to prosecute was justified by reasonable excuse; however, his failure to go forward with the evidence would leave affiant’s verified allegations unrebutted. See Sandoval v. Farish, supra. The affiant may exercise his right to test the district attorney’s credibility through cross-examination, but only in regard to the narrow issue to be determined in a § 16-5-209 proceeding, and whether to accept additional evidence at the hearing lies within the discretion of the court.
Here, Moody was afforded the opportunity to cross-examine the district attorney thoroughly. Based upon the record, it cannot be said that the district court abused its discretion in refusing to accept additional evidence.
Nor do I perceive any error in the court’s refusal to grant Moody’s motion to compel discovery.
Finally, I would reject Moody’s argument that the trial court erred in finding the district attorney’s refusal to prosecute justified by reasonable excuse. Credibility of the district attorney’s explanation was a matter for the district court as the trier of fact.
Therefore, because the record, including Moody’s affidavit and the testimony of the district attorney, shows no abuse of discretion by the trial court in ruling that the district attorney had not acted arbitrarily, capriciously, or without reasonable excuse in declining to prosecute, I would affirm the district court’s disposition of this proceeding.