Associated Governments of Northwest Colorado v. Colorado Public Utilities Commission

Justice HOBBS

delivered the Opinion of the Court.

T1 Respondent Colorado Public Utilities Commission challenged the subject matter jurisdiction of the district court of Routt County to consider changing the venue in regard to a petition for judicial review, arguing that the petitioner failed to meet the requirements of section 40-6-115(1) and (5), C.R.S. (2011). Holding that section 40-6-115(5) pertained to venue, not jurisdiction, the Routt County District Court allowed a *648transfer of the ease to the District Court for the City and County of Denver, We issued a rule to show cause why the case should not be dismissed. We agree with the district court, and hold that section 40-6-115(5) mandates venue and does not limit jurisdiction. Accordingly, we discharge the rule. On remand, the Routt County District Court may transfer this case to the Denver District Court.

I.

T2 The Associated Governments of Northwest Colorado (AGNC) timely petitioned the Routt County District Court, in two cases, for a writ of certiorari or judicial review pursuant to section 40-6-115, C.R.S. (2011). AGNC wished to challenge orders of the Public Utilities Commission (PUC). The orders adopted in part an emission reduction plan of the Public Service Company of Colorado. AGNC alleged that the plan (1) was untimely filed in violation of the Clean Air Clean Jobs Act, §§ 40-8.2-201 to -210, 40-6-123(1), C.R.S. (2011), and AGNC's due process rights; (2) relied unlawfully on a determination of the Colorado Department of Public Health and Environment; (8) was arbitrary, capricious, and unsupported by evidence; (4) failed to adequately consider economic and environmental effects; and (5) depended on unreliable cost calculations. AGNC also alleged that two commissioners should have been disqualified from participating in the PUC decisions.

1 3 PUC and intervenors moved to dismiss under C.R.C.P. 12(b)(1) on the ground that the court lacked subject matter jurisdiction. Section 40-6-115 requires that any suit brought to challenge a PUC order be "commenced and tried" in district court, either in the county the petitioner maintains its principal office or place of business or in Denver District Court. The district court found, and AGNC does not dispute, that its principal office or place of business is not in Routt County but in Garfield County.

T 4 Nevertheless, the district court did not dismiss the case. It concluded that the language in section 40-6-115(5) requiring a case to be "commenced and tried" in one of two district courts was a venue provision, not a jurisdictional limitation. As such, the court ordered AGNC to select one of the two fora, and indicated that it would order a transfer. As the court put it,

Routt County is not Petitioner's primary place of business; Garfield County is. Routt County District Court, therefore, has no authority to review the decision of the Public Utility Commission at issue. Routt County District Court does, however, have general jurisdiction over the class of cases before the court and may change venue to the proper forum. Petitioner will inform the court no later than August 12, 2011 as to whether it elects to have the venue changed to Garfield County District Court or to the District Court for the City and County of Denver.

AGNC selected the Denver District Court.

15 PUC initiated an original proceeding with this court pursuant to C.A.R. 21, arguing that the case should be dismissed for lack of jurisdiction because it was not "commenced" in a proper forum. We issued a rule to show cause, and we now discharge the rule.

IL.

16 We hold that section 40-6-115(5) mandates venue and does not limit jurisdiction. On remand, the Routt County District Court may transfer this case to the Denver District Court.

A. Standard of Review

17 In response to a C.R.CP. 12(b)(1) challenge, the plaintiff has the burden of proving subject matter jurisdiction. Medina v. State, 35 P.3d 443, 452 (Colo.2001). The constitution grants district courts general subject matter jurisdiction. Colo, Const. art. VI, § 9. The legislature may limit this jurisdiction, but only explicitly. State v. Borquez, 751 P.2d 639, 642 (Colo.1988).

T8 Where a statute provides a right of review of an administrative decision, the statute is the exclusive means to secure review. Id. at 644. A petitioner's failure to comply strictly with the statutory procedure deprives the district court of jurisdiction. Id. *649(quoting Barber v. People, 127 Colo. 90, 95, 254 P.2d 431, 434 (1953)). If, however, the petitioner meets the jurisdictional requirements for review of an agency decision, the petitioner may cure nonsubstantive deficiencies in its complaint. Trans Shuttle, Inc. v. PUC, 58 P.3d 47, 50 (Colo.2002).

19 Venue requirements limit where an action may be "commenced," "brought," or "tried." See Spencer v. Sytsma, 67 P.3d 1, 3 (Colo.2003); Borquez, 751 P.2d at 641. A specific statutory provision on venue prevails over a conflicting provision in C.R.C.P. 98, the catch-all venue provision. See U.M. v. Dist. Court, 631 P.2d 165, 168 (Colo.1981). Venue requirements are imposed for the convenience of the parties, and are a procedural, not a substantive issue. Spencer, 67 P.3d at 3. When a party brings an action in an improper venue, it is not a jurisdictional or fatal defect. CL Fletcher v. Stowell, 17 Colo. 94, 96, 28 P. 326 (1891). The remedy for improper venue is a transfer to the proper venue. See Spencer, 67 P.3d at 7; People v. Dist. Court, 78 Colo. 526, 530, 242 P. 997 (1925).

110 However, not all place-based forum requirements are venue provisions; some are jurisdictional in nature. When a party violates a jurisdictional requirement in petitioning a district court to review an administrative decision, the court has no power to hear the case, or even to order a transfer. Instead, the court must dismiss the case. See Borquez, T51 P.2d at 648-45.

111 Therefore, the pivotal question in this case is whether section 40-6-115(5) contains a jurisdictional or a venue requirement. As with all matters of statutory interpretation, we proceed de novo with the goal of effectuating the intent of the General Assembly. S. Ute Indian Tribe v. King Consol. Ditch Co., 250 P.3d 1226, 1232-33 (Colo.2011). We apply the plain meaning of the statutory language, give consistent effect to all parts of a statute, and construe each provision in harmony with the overall statutory design. Id. If the statutory language is ambiguous, we use other tools of statutory interpretation to determine the General Assembly's intent, including legislative history, the language of laws on the same or similar subjects, and the placement of a provision within the statutory framework. Id. at 1233; Hernandez v. People, 176 P.3d 746, 753 (Colo.2008) (legislative history); id. at 752-58 ("In resolving the statutory ambiguity, we now look to the statutory setting."); Town of Erie v. Eason, 18 P.3d 1271, 1276 (Colo.2001) (laws on same or similar subjects); People v. Hickman, 988 P.2d 628, 645 (Colo.1999) (placement of statutory provision within framework); see § 2-4-2083, CRS. (2011).

B. Section 40-6-115

T 12 The two subsections of section 40-6-115 relevant to this case are (1) and (5). They provide:

(1) Within thirty days after a final decision by the commission in any proceeding, any party to the proceeding before the commission may apply to the district court for a writ of certiorari or review for the purpose of having the lawfulness of the final decision inquired into and determined....
(5) All actions for review shall be commenced and tried in the district court in and for the county in which the petitioner resides, or if a corporation or partnership in the county in which it maintains its principal office or place of business, or in the district court of the city and county of Denver, at the option of the petitioner....

(Emphasis added.)

1. Subsection (1); Judicial Review

T 13 Subsection (1) is clearly jurisdictional. It provides a strict process and notes the court of jurisdiction. We must determine whether subsection (5), in specifying the counties where an action may be commenced and tried, supplements the jurisdictional requirements of subsection (1) or acts as a freestanding venue requirement.

T 14 An initial question is the meaning of "the district court" in subsection (1). This is an unusual formulation. "In district court" is a typical colloquialism, as the district court below pointed out. But "the district court" is also susceptible to a second meaning, "the district court which as defined in subsection (5) may hear the action." As the two possible meanings raise an ambiguity, we look to *650legislative history to determine legislative intent. The forerunner of the current statute, an act of 1913, originally provided that, to challenge a PUC decision, "the applicant may apply to the supreme court of this State for a writ of review." Ch. 127, see. 52, 1918 Colo. Sess. Laws 497 (emphasis added). An amendment of 1945 simply replaced "the supreme court" with "the district court." Ch. 195, see. 8, 1945 Colo. Sess. Laws 581. This indicates that "the district court" in the current statute is so phrased as to contrast with other types of courts. It does not suggest a cross-reference to the "commenced and tried" language, also added in 1945 (tacked onto the end of the section), which has become subsection (5). Id. at 532.

2. Subsection (5): "Shall Be Commenced"

$15 Unless context dictates otherwise, "shall" denotes a mandate. Pearson v. Dist. Court, 924 P.2d 512, 516 (Colo.1996). As such, section 40-6-115(5) mandates that all actions for judicial review of PUC orders be commenced in one of two district courts. Whether this is a mandatory venue or a jurisdictional requirement is ambiguous from the mandatory meaning of "shall," since both are types of mandate.

{116 The meaning of "commence" is clear enough: it means to initiate a suit. It is synonymous with "bring an action," which means "(tlo sue; institute legal proceedings." Black's Law Dictionary 219 (9th ed. 2009). Where an action is commenced is the same place as where it is "brought." See People ex rel. Lackey v. District Court, 30 Colo. 123, 128, 69 P. 597 (1902) (equating "shall be brought" with "shall be commenced").

117 Of course, this is different from where an action is "tried." See id. at 127, 69 P. 597 (distinguishing "the place for the commencement of actions" from "the place of trial"). Venue is traditionally defined as "place of trial," see Fletcher, 17 Colo. at 96, 28 P. 326, but we have recognized more recently that venue may also "relate[ ] to the locality where an action may be properly brought." Borquez, 751 P.2d at 641; see also Black's Law Dictionary 1695 (Oth ed. 2009) (defining venue more vaguely as "[t]he proper or a possible place for a lawsuit to proceed," which may encompass the place of commencement or trial (emphasis added)).

{18 Accordingly, we cannot determine from the words of the statute alone whether "shall be commenced" limits jurisdiction or mandates venue. We look to external aids to determine legislative intent. The most availing constructive aid in this instance is our reference to similar statutes. The General Assembly has passed a number of venue statutes, and their language is instructive.

119 Section 22-38-108, C.R.S. (2011), for example, provides for jurisdiction over juvenile school attendance matters in its subsection (1); "Those courts having jurisdiction over juvenile matters in a judicial district shall have original jurisdiction over all matters arising out of the provisions of this article." Subsection (1.5) provides further: "All proceedings brought under this article shall be commenced in the judicial district in which the child resides or is present." § 22-83-108(1.5)(a) (emphasis added). The latter requirement is not jurisdictional in nature but venue-driven, as noted in the transfer provisions of paragraphs (1.5)(b) and (c): "When a court transfers venue pursuant to . this subsection (L5) ...." § 22-33-108(1.5)(c).

20 Section 19-5-204, C.R.S. (2011), provides that "[a] petition for adoption shall be filed in the county of residence of the petitioner or in the county in which the placement agency is located." (Emphasis added.) The legislature titled this section "Venue." Ch. 188, see. 1, § 19-5-204, 1987 Colo. Sess. Laws 806. Although where headings are added by the revisor of statutes no implication or presumption of a legislative construction is to be drawn therefrom, we properly can use a legislatively selected heading as an aid in construing a statute. U.M. v. Dist. Court, 631 P.2d at 167.

121 Section 19-8-201, C.R.S. (2011), provides, "All proceedings brought under this article shall be commenced in the county in which the child resides or is present." (Emphasis added.) Section 19-6102, C.R.S. (2011), provides, "A petition filed under this section shall be brought in the county in *651which the child resides or is physically present, or in any county where the obligor parent resides, or in any county where public assistance is or was being paid on behalf of the child." (Emphasis added.) The legislature called both of these sections "Venue." Ch. 188, see. 1, §§ 19-8-201, -6-102, 1987 Colo. Sess. Laws 760, 811.

122 Section 16-18-807, C.R.S. (2011), regarding suits over public nuisance, provides a jurisdictional subsection (1) "The several district courts of this state shall have original jurisdiction of proceedings under this part 3." Subsection (2) provides, "An action to abate a public nuisance shall be brought in the county in which the subject matter of the action, or some part thereof, is located or found or in the county where the public nuisance act, or any portion thereof, was committed." (Emphasis added.) The legislature affixed the heading "Jurisdiction-venue-parties-process." Ch. 122, see. 5, $ 16-13-8307, 1987 Colo. Sess. Laws 683. As subsection (1) is clearly the jurisdiction piece, it follows that subsection (2) provides for venue, and not jurisdiction. CL U.M. v. Dist. Court, 631 P.2d at 167 (reasoning, in a similar situation, that "Section 19-6-109 consists of three subsections; the first two explicitly treat jurisdiction. It follows that the 'venue' portion of the statutory heading was intended to apply to subsection (8).").

123 These are just a few of the statutes throughout the code limiting venue, and not jurisdiction, by specifying the county or counties where an action "shall be commenced," or using substantively identical language. It follows that, in place-based forum provisions, the legislature uses "shall be commenced" to erect venue requirements.

T 24 On the other hand, Borquez, the case on which the PUC relies, involved a statute for judicial review of administrative driver license revocations which provided, "Within thirty days of the issuance of the final determination of the department under this seetion, a person aggrieved by the determination shall have the right to file a petition for judicial review in the district court in the county of the person's residence." 751 P.2d at 641 (quoting § 42-2-122.1(9)(a), C.R.S. (1984 Repl.)). Taking into account the language of other related statutes, we explained that as a matter of construction this section was controlling as to forum for driver license revocations. Id. at 644. No part of the section, section 42-2-122.1, included any other forum provisions. We held that, "[elxam-ined in the context of the other sections of title 42, the language of this provision is persuasive that the legislature intended not simply to specify proper venue, but rather to prescribe that review of administrative license revocations under section 42-2-122.1 may be obtained only in the district court of the driver's residence." Id. at 648. We also interpreted the statutory language that a person "shall have the right to file a petition" to characterize section 42-2-122.1(9)(a) as a "statutorily provided right of review." Id. at 644. Because it was the sole provision setting out the "right to file," a failure to comply with the Borquez statute constituted a "failure to exercise a statutorily provided right of review ... a Jurisdictional defect, mandating dismissal." Id. at 644.

125 In this case, unlike in Borquez, the statute at issue includes a separate subsection which clearly prescribes jurisdiction. See § 40-6-115(1). In contrast to stand-alone language setting out a "right to file," section 40-6-115(5) prescribes only where an "action| ] for review," whose parameters are set out in subsections above, shall proceed. For these reasons, we do not reach the conclusion that a failure to comply with section 40-6-115(5) constitutes a "failure to exercise a statutorily provided right of review." Bor-ques, T5l P.2d at 644. In Borques we also used the language of related statutes to conclude that the provision was jurisdictional. Id. at 648. Here, the language of other statutes points to venue instead. Thus, we distinguish Borquez from the case before us.

126 A failure to comply with section 40-6-115(5), coupled with compliance with section 40-6-115(1), constitutes only a failure to file in the correct venue, a procedural, and not a substantive or jurisdictional, defect. Spencer, 67 P.3d at 3; Fletcher, 17 Colo. at 96, 28 P. 326. Therefore transfer, and not dismissal, is the proper remedy. See Spencer, 67 P.3d at 7; People v. Dist. Court, 78 Colo. at *652530, 242 P. 997; of. Trams Shuttle, 58 P.3d at 50.

C. Application to this Case

T 27 AGNC filed a petition for certiorari or judicial review in compliance with section 40-6-115(1) but not in compliance with section 40-6-115(5). It invoked jurisdiction properly but commenced suit in an improper venue. As the district court found, the proper remedy is transfer, not dismissal.

€ 28 This case demonstrates why the General Assembly intended to allow a venue transfer rather than require dismissal. The district court found that, "from [AGNC's] perspective, Routt County was a proper county in which to file the Petition." Although AGNC does not argue that the case should stay in Routt County, the facts illuminate why it was mistaken in its initial venue selection. The organization attempted to amend its bylaws in January 2011 to specify that its principal office is located in the county of the residence of the Chair, Routt County at the time. AGNC's Board voted on this amendment by email, with six of the seven Board members (a majority, as necessary) voting for the amendment, but the district court found flaws in the voting procedure.1

{29 We assume without deciding that such flaws in the voting process may have been substantial enough to void the amendment regarding AGNC's change of principal office, and that, as the district court found, the "nerve center" of the organization remained in Garfield County despite the attempted bylaw change.

130 Nevertheless, a primary purpose of courts is to provide a forum for litigating disputes. Trans Shuttle, 58 P.3d at 50. Subject matter jurisdiction is defined only as a court's power to resolve a dispute in which it renders judgment. Id. at 49-50. In Trans Shuttle we accepted a petition under section 40-6-115 despite its "technical deficiencies." Id. at 50. Although in Trams Shuttle the "poorly framed complaint caused unnecessary delay and added expense to the parties and the courts," we concluded that the PUC was not prejudiced and there was no jurisdictional defect Id. The petition substantively complied with the requirements of section 40-6-115 in that it (1) was filed by a party to a PUC proceeding, (2) was filed within 30 days of a final PUC decision, (8) informed the relevant parties of the basis of its request for review, and (4) requested certification of the PUC record to the district court. Id. at 49. We held that, where an action to review a PUC final decision substantially complies with public utility law and the defective pleading causes no prejudice, that action does not violate section 40-6-115. Id.

131 Here, there is no question that the petition for judicial review was timely filed and that AGNC met the other substantive requirements set forth according to the four factors identified in Trans Shuttle We do not construe the General Assembly's intent in enacting section 40-6-115 as prohibiting a venue transfer to the Denver District Court, as here. The district court correctly determined that venue was proper in the district court of either Garfield County or the City and County of Denver. AGNC has elected to proceed in Denver. The court may order a transfer to the District Court for the City and County of Denver.

IIL

132 Accordingly, we discharge the rule and return the case to the Routt County District Court for further proceedings consistent with this opinion.

Justice RICE dissents, and Chief Justice BENDER joins in the dissent. Justice MARQUEZ does not participate.

. AGNC's bylaws required thirty days' notice of amendment language before a vote could take place. While the Chair requested on January 17, 2011, that votes be in "no later than 4:00 p.m. on January 20, 2011," the court found from the record that ""the vote was complete on January 18, 2011," two days earlier than the required thirty days.

The district court also had concerns about the Open Meetings Law (OML), since it held AGNC to be an intergovernmental relationship under part 2 of article 1 of title 29, C.R.S. (2011). The court was "unclear as to how an electronic vote from each Board member to the administrative assistant of [AGNC] over a several-day period could be accessed by the public as the votes were cast, as required by OML."