Janssen v. Industrial Claim Appeals Office

Judge STERNBERG

dissenting.

This division decided this case on April 26, 2001 and dismissed this appeal. We reasoned that C.A.R. 8.1 precludes the application of CAR. 26(c) because the time for filing is predicated on the applicable statute, not the rules, and the statute does not permit us to grant additional time to file a notice of appeal. That decision was correct; thus, we err in granting the petition for rehearing, withdrawing the opinion, and issuing a new opinion that creates a divergent line of authority. Therefore, I respectfully dissent.

C.A.R. 3.1 provides that an appeal from a final order of the Panel must be "within the time prescribed by statute." Section 8-48-301(10), C.R.S.2000, is that statute. It provides that any party seeking review of the Panel's order must file a notice of appeal with this court "within twenty days after the date of the certificate of mailing of such order."

C.A.R. 3.1 recognizes that special statutory proceedings are governed by their own procedural scheme and are not to be supplemented. See Newman v. McKinley Oil Field Service, 696 P2d 238 (Colo.1984); Gardner v. Friend, 849 P.2d 817 (Colo.App.1992). Thus, a division of this court has previously held that $ 8-48-801(10) prohibits this court from granting additional time in which to file a notice of appeal, see Western Empire Constructors, Inc. v. Industrial Claim Appeals Office, 769 P.2d 1089 (Colo.App.1989), and that CAR. 8.1 specifically precludes application of C.A.R. 26(c) because the controlling statutes do not permit additional time when the final order is served by mail. See Lutheran Hosp. & Homes Soc'y v. Indus. Comm'n, 710 P.2d 496, 498 (Colo.App.1985).

The majority acknowledges this precedent, but states that the cases, statute, and rule have been implicitly overruled by the supreme court's decision in Matter of Title, Ballot Title & Submission Clause, 961 P.2d 1077 (Colo.1998). However, this requires a leap of logic I cannot make. In my view Title does not support a conclusion that the supreme court intended that parties in all appeals, including administrative appeals, should be permitted three additional days under GAR. 26(c) to file their notice of appeal. To reach that result, here, an amendment to § 8-43-801(10) would be required.

The reasoning in Title addressed only the application of C.A.R. 26(a), which, by its very terms, pertains strictly to the computation of time as set forth in the "rules, by an order of court, or by any applicable statute." That rule speaks to practical concerns such as *6computing time periods that end on a weekend or that are fewer than seven days, such as in Title Because CAR. 26(a) merely provides guidance as to how a prescribed period is to be determined and does not purport to "expand" the time for filing, the supreme court concluded that it does not alter the jurisdictional effect of a statutory deadline for taking an appeal.

Conversely, C.A.R. 26(c), by its own terms, adds three days to a prescribed period when service has been made by mail. Its plain language subverts the majority's attempt to classify it as a computational guideline similar in nature to CAR. 26(a). Further, the rule is self-limiting in that it expressly provides that it does not apply to the notice of entry of judgment or notice of disposition of motions, which may be transmitted by mail as provided in C.A.R. 4(a). Consequently, it is questionable whether the three-day mailing rule under C.A.R. 26(c) may be applied to enlarge the filing time for ordinary civil appeals brought under C.A.R. 4(a). See Cline v. Farmers Insurance Exchange, 792 P.2d 305 (Colo.App.1990)(time for filing notice of cross-appeal triggered by date of filing, rather than service, of notice of appeal).

More importantly, C.A.R. 26(b), which the majority ignores, forbids application of the rule to this case. Under that rule, this court is prohibited from "enlarg{ing] the time prescribed by law for filing a petition ... [for] review, or a notice of appeal from, an order of an administrative agency, board, commission, or officer of the State of Colorado, except as specifically authorized by law" (emphasis supplied).

Consequently, in my view, Title is inappo-site. I further conclude that applying CAR. 26(c) in these circumstances would alter the statutory jurisdictional requirement set forth in § 8-48-801(10) and thereby abrogate C.A.R, 3.1 and established precedent.

Nor does Littlefield v. Bamberger, 10 P.3d 710 (Colo.App.2000), provide any support, analogous or otherwise, for the majority's analysis. That decision involved the application of C.R.C.P. 6(e), a comparable three-day mailing rule, to motions filed pursuant to C.R.C.P. 59. It did not involve the jurisdictional requirements for bringing an appeal under either C.AR. 8.1 or 4(a). Moreover, C.R.C.P. 6(e) does not apply to the period prescribed for filing a petition to review in a workers' compensation proceeding. See Digital Equipment Corp. v. Industrial Claim Appeals Office, 894 P.2d 54 (Colo.App.1995). Significantly, the statutory language in § 8-43-801(10) mirrors the language used in § 8-43-301(2), C.R.S.2000, to define the jurisdictional period in which review must be commenced.

If C.A.R. 26(c) is to be applied to administrative appeals, and in particular, to those subject to C.A.R. 3.1, such intention must be expressed by the General Assembly in the controlling statutory provisions. Instead of following a long line of existing authority, the majority opinion creates a divergent line of authority, which will lead to uncertainty in the law until and unless the issue is resolved by the supreme court or the General Assembly.

Accordingly, I would dismiss this appeal.