dissenting:
I would affirm the judgment of the district court. Mrs. Lowenstein filed a complaint before the Civil Rights Commission. Thus, she is a “party who appeared,” § 24-34-308(9), C.R.S. 1973. And, consequently, she was an indispensable party to the hearing and is an indispensable party on appeal. C.R.C.P. 19.
Under the Act, a complainant initiates the process by filing a verified complaint with the Commission within six months of the alleged discriminatory employment practice. The Commission’s agent may also file such a complaint; however, § 24-34-307, C.R.S. 1973 “authorizes a commission complaint only in those instances where a specific person or persons have been aggrieved by the alleged discriminatory practices charged.” (emphasis added). Sisneros v. Woodward Governor Co., 192 Colo. 454, 560 P.2d 97 (1977).
The complainant or the commission may amend the complaint. If a hearing is held, the case in support of the complaint is presented by the Commission’s agent; however, the complainant may intervene and present testimony.
Within thirty days of the Commission’s final order, the complainant may obtain judicial review of the final order of the Commission in the district court, and whenever judicial review is sought, § 24-34-308(3), C.R.S. 1973, provides:
“Such proceeding shall be initiated by the filing of a petition in such court and the service of a copy thereof upon the commission and upon all parties who appeared before the commission.”
Therefore, under the Act, the complainant has substantial, not incidental, rights, and the Act requires that the complainant be an active participant in the entire process, including appellate review. Here, the employer is appealing the order which provided a monetary award to the complainant; she is an indispensable party to this action seeking judicial review.
The majority opinion equates “parties who appeared” with complainants who “intervene.” See § 24-34-308(3), C.R.S. 1973. However, “parties who appeared” refers to those persons who were involved as litigants and not in default. See § 24-34-*702307(9), C.R.S. 1973. Where the complainant either originally files the complaint or the complainant’s allegations constitute the basis of the Commission’s complaint; see Sisneros v. Woodward Governor Co. supra, the complainant necessarily is a “party who appeared.” Additionally, the reference to “intervention” in § 24-34-308(8), C.R.S. 1973, is not to a complainant’s intervention in the suit, rather it is to intervention in the presentation of evidence at the hearing.
The majority opinion also finds significance in the provision that only the Commission may seek enforcement of its order. See § 24-34-308(12), C.R.S. 1973. However, the fact that the complainant has no standing to seek a contempt citation against noncomplying respondents does not affect the complainant’s status as a party to an action, such as this, to determine the propriety of the order, and does not relegate the private relief granted to being merely “incidental.” Merely because the complainant must rely upon the Commission to seek enforcement of her rights when the Commission’s decision is no longer subject to judicial review does not mean that she is not an indispensable party in the judicial process which determines those rights.
The General Assembly has specifically recognized the distinction between these two kinds of judicial proceedings. Now, under § 24-34-307(2), C.R.S. 1973 (1979 Cum.Supp.), judicial review is brought in the court of appeals; however, under § 24-34-307(12), C.R.S. 1973 (1979 Cum. Supp.), an action for enforcement must still be brought in the district court.
Finally, to hold that a complainant is not a party leads to an unjust and unreasonable result. Although the majority attempts to cover the issue with a veneer of technical reasoning and legalistic statutory construction, there remains the central fact that Mrs. Lowenstein was duly granted a monetary award by the Commission. Consequently, basic principles of fairness and due process mandate that if that award is challenged, in any form, Mrs. Lowenstein must be a party.