Associated Governments of Northwest Colorado v. Colorado Public Utilities Commission

*653Justice RICE,

dissenting.

133 These cases present the question of whether a petitioner's failure to commence its action to review a PUC decision in a proper division of the district court, as required by subsection 40-6-115(5), C.R.S. (2011), mandates dismissal of the action for want of subject matter jurisdiction. I would answer this question in the affirmative and hold accordingly that the Routt County district court should have dismissed this case. Therefore, I respectfully dissent.

T 34 Section 40-6-115, read as a whole and in harmony with the legislature's intent to create an efficient vehicle for judicial review of PUC decisions, explicitly limits the district court's jurisdiction over PUC actions to cases in which the petitioner strictly complies with the section's requirements. One such requirement, contained in subsection 40-6-115(5), states that all actions for review of a PUC decision "shall be commenced" in one of two district courts: (1) the Denver district court, or (2) the district court of the county in which the petitioner resides; or, in the case of a business, where the business has its principal office or place of business. In my view, AGNC's failure to strictly comply with subsection 40-6-115(5), by filing its petition in Routt county instead of in Denver or Garfield county, created a jurisdictional de-feet that should have led to dismissal of the case.

I. Standard of Review

135 We review the district court's construction of a statute de novo. See Klinger v. Adams Cnty. Sch. Dist. No. 50, 130 P.3d 1027, 1031 (Colo.2006). Our analysis begins with the plain language of the statute. Wolf Ranch, LLC v. City of Colo. Springs, 220 P.3d 559, 563 (Colo.2009) (citing People v. Valenzuela, 216 P.3d 588, 590 (Colo.2009)). When this language is unambiguous, we give effect to the plain and ordinary meaning of the provision without resorting to other rules of statutory construction. Stamp v. Vail Corp., 172 P.3d 437, 442-43 (Colo.2007). In reviewing the plain language of a provision, we will read and consider the statute as a whole. People v. Dist. Court, 713 P.2d 918, 921 (Colo.1986). We will also "give effect to each word and construe each provision in harmony with the overall statutory design." Well Augmentation Subdist. v. Aurora, 221 P.3d 399, 410 (Colo.2009).

II. Jurisdiction and Venue

136 The outcome of this case turns on whether subsection 40-6-115(5) is jurisdictional, or whether it simply describes venue. If subsection 40-6-115(5) only pertains to venue, the reviewing court may "cure" a petitioner's failure to comply with the provision by transferring the case to the proper division of the district court because filing in an improper venue is a non-substantive error. See Maj. op. at 18 (citing Trans Shuttle, Inc. v. PUC, 58 P.3d 47, 50 (Colo.2002)). For example, in Trans Shuttle, we permitted a petitioner to cure its non-substantive error in titling its request for the district court's review of a PUC decision as a complaint under C.R.C.P. 106, rather than as a writ of certiorari under section 40-6-115, instead of requiring the district court to dismiss the petition for want of jurisdiction. 58 P.3d at 48, 50. In reaching that result, we determined that the petition "substantively complied with the requirements of section 40-6-115," id. at 49, and therefore held that the petition "met the jurisdictional requirements for review of a PUC decision," id. at 50. Accordingly, if we determine here that subsection 40-6-115(5) is a non-substantive venue provision, then we must allow the petitioner to cure its error by having the case transferred to the proper division of the district court.

137 If subsection 40-6-115(5) is jurisdictional, however, then the petitioner's failure to strictly comply with its requirements will result in dismissal of the action. Barber v. People, 127 Colo. 90, 95, 254 P.2d 431, 434 (1953); see Mile High United Way, Inc. v. Bd. of Assessment Appeals, 801 P.2d 3, 5 (Colo.App.1990). I begin by describing the basic rules of jurisdiction.

138 "Jurisdiction is the authority of a court to hear and decide a case presented to it." Sanctuary House, Inc. v. Krause, 177 P.3d 1256, 1258 (Colo.2008) (citing Hill v. Dist. Court, 134 Colo. 369, 373-74, 304 P.2d 888, 891 (1957)). A court has jurisdiction if *654"the case is one of the type of cases that the court has been empowered to entertain by the sovereign from which the court derives its authority." Paine Webber, Jackson & Curtis, Inc. v. Adams, 718 P.2d 508, 513 (Colo.1986). The Colorado Constitution bestows appellate jurisdiction upon the district court "as may be prescribed by law." Colo. Const. art. VI, § 9(1). We have interpreted this constitutional provision to confer " 'unrestricted and sweeping jurisdictional powers'" upon the district court in the absence of explicit limiting legislation. Dep't of Revenue, Motor Vehicle Div. v. Borquez, 751 P.2d 639, 642 (Colo.1988) (quoting In re A.W., 637 P.2d 366, 373 (Colo.1981)).

139 Where, as here, the legislature provides the district court with a statutory right of judicial review, a party must strictly comply with the statute's terms to invoke the reviewing court's jurisdiction. Mile High United Way, 801 P.2d at 5 (citing Barber, 127 Colo. at 95, 254 P.2d at 434). A petitioner's failure to strictly comply with an explicit, plain, and mandatory statutory review requirement results in a lack of jurisdiction and requires the district court to dismiss the action. Barber, 127 Colo. at 95, 254 P.2d at 434.

{40 Onee a court establishes that it has jurisdiction over an action, the answer to the question of venue determines which particular Colorado court should try the case. Krause, 177 P.3d at 1258. The right to have venue changed because an action is brought in an improper county is not jurisdictional. Slinkard v. Jordan, 131 Colo. 144, 149, 279 P.2d 1054, 1056 (1955). Matters of jurisdiction, however, may divest a court of its authority to transfer a case to the proper venue. See Krause, 177 P.3d at 1259 ("Venue is subservient to jurisdiction."). As such, a court may only transfer a case filed in an improper venue if that court has jurisdiction over the matter. See id. With this legal framework in mind, I turn to section 40-6-115.

III. Section 40-6-115

1 41 Section 40-6-115 as a whole "provides the exclusive procedure for invoking the jurisdiction of the district court to review a PUC decision." Silver Eagle Servs., Inc. v. PUC, 768 P.2d 208, 209 (Colo.1989) (emphasis added). The General Assembly enacted this section to explicitly limit district court jurisdiction over PUC matters within the legislative framework of encouraging the speedy and efficient judicial review of PUC decisions. See § 40-6-117, C.R.S. (2011) (priority of PUC review actions in district court).

T 42 After describing the plain language of section 40-6-115 to highlight the jurisdictional nature of the entire provision, I specifically analyze subsection 40-6-115(5), apply it to this case, and conclude that the Routt County district court should have dismissed this action because AGNC failed to strictly comply with all jurisdictional requirements of section 40-6-115.

A. Section 40-6-115 is Jurisdictional

148 Each subsection of section 40-6-115 explicitly limits the district court's jurisdiction to review PUC decisions. First, subsection 40-6-115(1) describes the form and timing of petitions for certiorari to review a PUC action, and limits the evidence that the district court may review. This subsection is clearly jurisdictional because it delineates some of the initial procedures that petitioners must follow to invoke the district court's statutory authority to review a PUC decision.

'I 44 Subsection 40-6-115(2) further limits the district court's jurisdiction to review PUC decisions. According to this provision, the district court may only review the PUC's findings and conclusions on disputed questions of fact that are challenged on constitutional grounds. $ 40-6-115(2). We have construed this subsection to additionally authorize the district court to decide questions of law relevant to its review, and "to interpret pertinent constitutional and statutory provisions." Silver Eagle, 768 P.2d at 212.

T45 Subsection 40-6-115(8) limits the scope of the district court's jurisdiction in PUC cases by stating that the district court's review "shall not extend further than to determine whether the [PUC] has regularly pursued its authority." (emphasis added); see Silver Eagle, 768 P.2d at 212. Subsection 40-6-115(4) similarly narrows the district *655court's power to review PUC actions by explicitly providing that "no court of this state, except the district court to the extent specified, shall have jurisdiction to review, reverse, correct, or annul any order or decision of the [PUC]." (emphasis added). Finally, subsection 40-6-115(5) provides the last explicit limitation on the district court's jurisdiction to review a PUC action by expressly delineating the divisions of the district court in which an action "shall be commenced" in order to properly invoke the district court's power to review the case.

46 As this summary of section 40-6-115 reveals, subsection 40-6-115(1) is not the only subsection of section 40-6-~115 that de-seribes the seope of a reviewing court's jurisdiction to review PUC decisions. Rather, section 40-6-115 as a whole premises the district court's jurisdiction on the petitioner's strict compliance with all of the statute's requirements, consistent with the legislature's intent to limit district court jurisdiction over PUC matters. See Mile High United Way, 801 P.2d at 5; see also Borquez, 751 P.2d at 644 (compliance with jurisdictional forum provision required to avoid dismissal). I now analyze the plain language of subsection 40-6-115(5) to determine the parameters of its jurisdictional forum requirement.

B. Subsection 40-6-115(5)

147 To successfully invoke the statutory jurisdiction of a district court to review a PUC decision, subsection 40-6-115(5) plainly and unambiguously requires a petitioner to initiate its appeal in either one of two specific divisions of the district court. The subsection provides in the relevant part:

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.

§ 40-6-115(5) (emphasis added).

T48 The word "shall" is mandatory. See People v. Dist. Court, 713 P.2d at 921. When read within the jurisdictional whole of section 40-6-115, "shall" in subsection 40-6-115(5) denotes a requirement with which a petitioner must strictly comply to invoke the jurisdiction of a reviewing court. See id; Mile High United Way, 801 P.2d at 5. The word "commence" means "to initiate formally by performing the first act of." Webster's Third New Int'l Dictionary 456 (Philip Babcock Gove, ed., 2002). "Commence" is synonymous with "bring an action," which means to "institute legal proceedings." Black's Law Dictionary 219 (Oth ed. 2009). Thus, the phrase "shall be commenced" plainly means that a petitioner must initiate its appeal of a PUC decision in the proper division of the district court, as described in subsection 40-6-115(5), to successfully invoke the reviewing court's jurisdiction. See Mile High United Way, 801 P.2d at 5. A petitioner's failure to comply with this requirement constitutes a jurisdictional defect mandating dismissal of the case. Borquez, 751 P.2d at 644.

T49 In addition, the phrase "and tried" that immediately follows "shall be commenced" in subsection 40-6-115(5) indicates that the legislature intended "shall be commenced" to refer to something other than venue. Venue relates to where a case "shall be tried."2 See, eg., C.R.C.P. 98. As such, the phrase "and tried" in subsection 40-6-115(5) refers to venue, and shows that the legislature intended venue to lie in the same district court in which an action is properly commenced. Had the legislature intended "shall be commenced" to refer to venue, it would not have included "and tried" immediately after that phrase because doing so would have been redundant. Therefore, "shall be commenced" speaks to the jurisdictional requirement that a petitioner must initiate its action in the proper forum; it does not describe venue.

1 50 Construing subsection 40-6-115(5) in isolation and as a non-Jjurisdictional venue provision, as the majority does, permits petitioners to file section 40-6-115 actions in any district court in Colorado, and completely *656ignores the legislature's intent to limit district court jurisdiction over PUC matters. The majority's interpretation directly contravenes the plain language of subsection 40-6-115(5), which explicitly limits district court jurisdiction over a petition to review a PUC decision by requiring petitioners to "commence and try" such an action in one of two specific divisions of the district court.

T51 An action can only be commenced once. The result of the majority's interpretation of "commence" defies logic and frustrates the legislature's intent to limit district court jurisdiction because the interpretation allows an action to be commenced in any district court, and then commenced again in one of the district courts described in subsection 40-6-115(5). Nothing in the plain language of section 40-6-115 expressly or impliedly permits a district court to transfer a previously-commenced action to another division of the district court for trial,. Thus, the majority appears to inexplicably interpret "commence" to mean more than it does: to initiate formally by performing the first act of a legal proceeding.

152 We must construe the unambiguous plain language of subsection 40-6-115(5) to require a petitioner to initiate a PUC review action in one of two specific forums to invoke the jurisdiction of the district court. Failure to strictly comply with the terms of subsection 40-6-115(5) effectively closes the courtroom door on the petition, consistent with the legislature's intent to explicitly limit district court jurisdiction to review PUC decisions. See Mile High United Way, 801 P.2d at 5.

IV. Application and Conclusion

T53 AGNC undisputedly failed to substantively comply with subsection 40-6-115(5) by commencing its action for review of a PUC decision in Routt County district court, rather than in the district court for Garfield or Denver county. The Routt County district court, like the majority, interpreted subsection 40-6-115(1) to confer jurisdiction to review PUC decisions upon all Colorado district courts generally, and interpreted subsection 40-6-115(5) as de-seribing venue with no impact on jurisdiction. Based on this interpretation, the Routt County district court took jurisdiction over AGNC's case and transferred it to Denver district court, at AGNC's request, in an effort to comply with subsection 40-6-115(5).

1 54 The plain language of section 40-6-115, read as a whole to define the limits of a district court's jurisdiction to review PUC decisions, indicates that the Routt County district court erred by taking jurisdiction over this case. Unlike the petitioner in Trans Shuttle, AGNC failed to substantively comply with the requirements of section 40-6-115. See 58 P.3d at 50. As such, the Routt County district court should have dismissed AGNC's action for lack of jurisdiction pursuant to C.R.C.P. 12(b)(1), as the PUC requested, because AGNC failed to strictly comply with the jurisdictional forum requirement of subsection 40-6-115(5). See Bor-ques, 751 P.2d at 644; see also Mile High United Way, 801 P.2d at 5. Because the majority affirmed the Routt County district court's inappropriate assumption of jurisdiction, and thereby failed to order that court to dismiss AGNC's petition, I respectfully dissent.

155 I am authorized to state that Chief Justice BENDER joins in this dissent.

. The majority relies on several venue-related cases and statutes to conclude that subsection 40-6-115(5) refers only to venue. It does so, however, after finding that subsection 40-6-115(5) is ambiguous. As I perceive no ambiguity in this subsection, I do not address the external interpretive aids relied upon by the majority.