Allison v. Industrial Claim Appeals Office of Colorado

Justice VOLLACK

dissenting:

The majority holds section 8-43-307, 3B C.R.S. (1994 Supp.), unconstitutional because it deprives Allison of access to the courts as guaranteed by Article II, Section 6, of the Colorado Constitution. Maj. op. at 1115. In so holding, the majority concludes that the court of appeals’ denial of certiorari does not constitute a review on the merits. I disagree and dissent because I consider certiorari review by the court of appeals of the decision of the Industrial Claim Appeals Office as satisfying the state constitutional requirement that the courts of justice shall be open to every person.

Certiorari review is, and always has been, an accepted form of appellate review in Colorado. The majority misconstrues the scope of the right of access to the courts and the context in which this right exists. By denying the petition for certiorari, the court of appeals performed a judicial review of the decision of the Industrial Claim Appeals Office (ICAO) sufficient to satisfy the constitutional access to courts provision. Because section 8-43-307 does not affect a litigant’s access to the judicial process, it does not contravene the access to courts guarantee of our state constitution, and therefore, I would affirm the court of appeals’ judgment.

Further, since I would affirm the court of appeals’ judgment, I address whether the rehearing provisions in the Colorado Appellate Rules are in conflict.1 I conclude that, in limited circumstances, such as in a workers’ compensation proceeding, where the court of appeals has denied certiorari after reviewing the petition, this court, pursuant to C.A.R. 2, should suspend the petition for rehearing requirement for filing a petition for certiora-ri. An aggrieved party, therefore, need not comply with the petition for rehearing requirement in C.A.R. 52(b) for this court to review the court of appeals’ judgment. I would therefore reverse the court of appeals’ judgment on this issue.

I.

The court of appeals denied Allison’s petition for certiorari to review a workers’ compensation appeal pursuant to section 8-43-307, 3B C.R.S. (1994 Supp.). Section 8-43-307(1), 3B C.R.S. (1994 Supp.), provides that

[ajny person in interest, ... being dissatisfied with any final order of the division, may file a petition for a writ of certiorari in the court of appeals against the industrial claim appeals office as defendant to modify or vacate any such order on the grounds set forth in section 8-43-308.[2] The court of appeals may issue a summary order denying any petition for writ of certiorari filed pursuant to this section. Such summary order shall be based on criteria established by the supreme court, by rule, governing the exercise of discretion by the court of appeals in such cases.

Section 13-4-102(4), 6A C.R.S. (1994 Supp.), provides that the court of appeals “may review decisions of the industrial claim appeals panel in workers’ compensation cases ... by writ of certiorari as prescribed by the Colorado appellate rules.” (Emphasis added.)

*1123Colorado Appellate Rule 46(a) sets forth the criteria for determining whether certiora-ri should be granted or denied. C.A.R. 46 provides in pertinent part:

(a) Petition for Certiorari to the Court of Appeals. A petition for review in the Court of Appeals on writ of certiora-ri as provided in section 8-43-807, C.R.S., is a matter addressed to the sound judicial discretion of the court, and such determination shall constitute judicial review.

The rule specifies six grounds for granting a petition for certiorari. The court of appeals evaluates whether: (1) the findings of fact are insufficient; (2) conflicts in the evidence are not resolved in the record; (3) the findings of fact are unsupported by evidence; (4) the findings of fact do not support the order; (5) the order may not be supported by the applicable law; or (6) whether the order decided a question of substance not previously determined. C.A.R. 46(a).

II.

A. Access to the Courts

Article II, Section 6, of the Colorado Constitution provides in relevant part that “[ejourts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character.” This provision simply provides that, if a right does accrue under the law, the courts will be able to effectuate such right. O’Quinn v. Walt Disney Prods., Inc., 177 Colo. 190, 195, 493 P.2d 344, 346 (1972); Goldberg v. Musim, 162 Colo. 461, 469, 427 P.2d 698, 703 (1967).

Article II, section 6, by its plain and ordinary language, simply requires that the “courts of justice shall be open.” This article neither specifies the type of judicial review needed to satisfy the access to the courts provision nor requires that the court of justice conduct a full-blown hearing to constitute a review on the merits.

Lawrence Tribe, in American Constitutional Law §§ 10-18, at 753-59 (2d ed. 1988), describes access to courts as the “right of access to a neutral and fair tribunal in which to ventilate such claims of right as one may have under the governing body of substantive law.” In my view, Allison’s right of access to the courts was not violated since a three-member panel of the court of appeals reviewed Allison’s petition for certiorari and unanimously determined that granting certio-rari was not warranted. In making this determination, the panel reviewed the action of the ICAO and determined that none of the six grounds for granting the petition for cer-tiorari was present. By denying certiorari, the court of appeals, in effect, was affirming the ICAO’s ruling. Allison therefore received both judicial scrutiny of an administrative agency’s decision and a review of the merits of his workers’ compensation claims.

The majority asserts that the claimant did not receive a judicial determination of the merits of his case. Contrary to the majority’s contention, section 8-43-307(1) authorizes the court of appeals to issue a summary order denying a petition for writ of certiorari only if its order is based on criteria established in C.A.R. 46(a), governing the exercise of discretion to the court of appeals in workers’ compensation eases.3 In denying Allison's petition for writ of certiorari in light of C.A.R. 46(a), the claimant therefore received a review of the merits of his workers’ compensation claims.

The majority equates equal access to the court with a decision on the merits. Maj. op. at 1119. I do also. However, I part from the majority’s interpretation of a decision on the merits to connote a full-blown hearing with a written opinion. Rather, in my view, the fact that a three-member panel of the court of appeals denied Allison’s petition for certiorari review, without conducting a formal hearing or writing an opinion, does not indicate that access to the courts was denied.

*1124 B. Relevant Case Law

I believe that this construction is compatible with and supported by the ease law. I do not view the discretionary nature of certiora-ri review to be a denial of a litigant’s right to access to the courts,4 given the line of United State Supreme Court cases and Colorado cases that have addressed a litigant’s right of access to the courts. The United States Supreme Court cases have been largely confined to the access right of either special litigants or litigants who have special claims,5 and the decisions have embodied a prohibition of state action that directly obstructed access,6 state action that indirectly interfered ■with access,7 and state inaction — the state’s failure to provide affirmative help to prisoners.8

I am also guided by Colorado cases and other jurisdictions that have considered various legal challenges to a litigant’s access to the courts. Although we have previously evaluated the scope of the right of access to courts, we have never before addressed it in the context of certiorari review by the court of appeals in a workers’ compensation proceeding.

In State Farm Mutual Automobile Insurance Co. v. Broadnax, 827 P.2d 531 (Colo.1992), State Farm brought a constitutional challenge against a statute which required binding arbitration of disputes arising under no-fault insurance contracts. State Farm contended that the statute violated its right of access to the courts because it removed State Farm’s statutory cause of action for disputes arising under the No-Fault Act9 from a trial to jury before a district court, without providing a right of de novo review by the district court following an adverse arbitration award. This court concluded that the statutory scheme at issue did not deny *1125due process or violate State Farm’s right of access to the courts where the parties had a right to a full hearing before the arbitrators and the right to appeal.

Similarly, here, the parties in this workers’ compensation proceeding received a full hearing before an Administrative Law Judge, had a right of appeal to the ICAO, and the right to file a petition for a writ of certiorari for judicial review in the court of appeals.

The majority additionally concludes that our holding in Bill Dreiling Motor Co. v. Colorado Court of Appeals, 171 Colo. 448, 468 P.2d 37 (1970), is not dispositive in this case. Maj. op. at 1120. To the contrary, I find the holding in Bill Dreiling to lend support to the conclusion that certiorari review satisfies the requirements of article II, section 6. In Bill Dreiling, the petitioner contended that a statute providing only the court of appeals, and not the Colorado Supreme Court, with mandatory direct review of a district court decision violated Article VI, Section 2(2), of the Colorado Constitution.10 The petitioner maintained that, unless there was an appeal as of right to the Colorado Supreme Court, this court would not have “appellate review” of a district court judgment as required by article VI, section 2(2). The question presented in Bill Dreil-ing was whether review by certiorari is appellate review. 171 Colo, at 452, 468 P.2d at 39. We held that discretionary review by writ of certiorari was a form of “appellate review” within the meaning of article VI, section 2.

Our holding that certiorari review is appellate review implies the obvious: the court of appeals is free to grant or deny such request at its discretion, subject to C.A.R. 46(a). Based on this holding, it can be logically deduced that certiorari review, being a form of appellate review, constitutes a judicial review on the merits.

Courts in other jurisdictions have also recognized and accepted certiorari review of administrative decisions, without holding such provisions to be unconstitutional as a denial of due process or access to the courts.

In Pinellas County Department of Consumer Affairs v. Castle, 392 So.2d 1292 (Fla.1980), the Supreme Court of Florida determined that a special act creating the Uniform Consumer Protection Act of Pinellas County afforded the parties sufficient means of access to the courts, so as to withstand constitutional attack, by providing means of access through declaratory judgment action and common law certiorari. The court reasoned that certiorari review comports with constitutional due process and court access requirements. Id. at 1294 (citing Vargas v. Americana of Bal Harbour, 345 So.2d 1052 (Fla.1976); Scholastic Systems, Inc. v. Leloup, 307 So.2d 166 (Fla.1974)).

In conclusion, I believe that section 8-43-307(1) does not violate a litigant’s right of access to the courts. In my view, the court of appeals, in denying Allison’s petition for certiorari, performed a judicial review of an administrative agency action which satisfies the constitutional access to courts provision. Because I would affirm the court of appeals’ judgment, I now address whether the rehearing provisions in the Colorado Appellate Rules are in conflict.

III.

On October 14, 1993, the court of appeals denied Allison’s petition for certiorari. Allison filed a request for reconsideration. On October 28, 1993, the court of appeals determined that the request for reconsideration should be denied because C.A.R. 46.4 and C.A.R. 46.7 “do not allow for the filing of a petition for rehearing upon this court’s denial of a petition for a writ of certiorari in a worker’s compensation proceeding.” Allison contends that C.A.R. 46 and C.A.R. 52 are internally conflicting and should be amended to provide for a rehearing if certiorari is denied by the court of appeals. According to Allison, C.A.R. 46.4 and 46.7 do not allow for the filing of a petition for rehearing after the court of appeals denies a petition for a writ of certiorari in a workers’ compensation proceeding. This, in turn, restricts access to the *1126supreme court because a party may only petition the supreme court for certiorari review if a rehearing has been denied. C.A.R. 52. The respondents agree with Allison that there is an inherent conflict between C.A.R. 46 and 52.

C.A.R. 46.4(b) provides:

Denial of Writ. No mandate shall issue upon the denial of a petition or writ of certiorari. Whenever application for a writ of certiorari to review a decision of the Division is denied, the court shall enter an order to that effect and shall notify the Industrial Claim Appeals Panel and the parties. If, after granting the writ, the court later denies the same as having been improvidently granted or renders decision by opinion of the court on the merits of the writ, a petition for rehearing may be filed in accordance with the provisions of C.A.R. 40.

C.A.R. 46.7 states:

Further Review

(a) No petition for rehearing shall be permitted except as provided in C.A.R. 46.4.
(b) Further review of the denial of a petition for writ of certiorari or following the denial of a petition for rehearing shall be as provided by C.A.R. 49, et seq.

C.A.R. 52(b) provides:

To review Court of Appeals Judgment. ■No writ of certiorari to the Supreme Court shall issue unless a petition for rehearing has been filed in the Court of Appeals. A petition for writ of certiorari to review a judgment of the Court of Appeals shall be filed not later than thirty days from the date rehearing is denied in the Court of Appeals, except that in workers’ compensation and unemployment insurance cases the time for filing a petition for writ of certiorari to the Supreme Court is reduced to fifteen days.

C.A.R. 52(b), which governs certiorari to this court, requires that a petition for rehearing be filed before this court can issue a writ of certiorari, whereas C.A.R. 46.4 permits a petition for rehearing only if the court of appeals grants the petition or denies the petition as having been improvidently granted. Combining the certiorari provisions in C.A.R. 46 and 52 therefore creates a Catch-22 situation in which this court is unable to review denials of certiorari by the court of appeals.

Under C.A.R. 2, this court is authorized to suspend the provisions of any appellate rule in a particular case and order proceedings so long as there is evidence of good cause. See also People v. Williams, 736 P.2d 1229, 1231 (Colo.App.1986).

I would therefore suspend the provision that mandates filing a petition for rehearing pursuant to C.A.R. 52(b) in workers’ compensation cases involving the court of appeals’ certiorari review of the ICAO decision until the appropriate modification of these rules takes effect.11 In suspending this provision and allowing this court to review a denial of certiorari by the court of appeals, we accommodate due process requirements and resolve the tension created by these two rules.

I hold that in a workers’ compensation proceeding, where the court of appeals has denied certiorari after reviewing the petition, an aggrieved party need not comply with the petition for rehearing requirement pursuant to C.A.R. 52(b). I consider this result to be a reasonable interpretation of the rules since to hold otherwise would deny an aggrieved party the right to petition this court to review the court of appeals’ denial of certiorari. I conclude that, in limited circumstances, such as in a workers’ compensation proceeding where the court of appeals has denied certiorari after reviewing the petition, this court, pursuant to C.A.R. 2, should suspend the petition for rehearing requirement for filing a petition for certiorari with this court.12 I would therefore reverse the court of appeals’ judgment on this issue.

*1127I am authorized to say that Chief Justice ROVIRA and Justice MULLARKEY join in this dissent.

. We granted certiorari to consider

[w]hether the court of appeals correctly interpreted C.A.R. 46.4 and 46.7 to limit petitioner’s right to a rehearing in light of C.A.R. 52 which provides that no “Writ of Certiorari to the Supreme Court shall issue unless a petition for rehearing has been filed in the court of appeals.”

Because the majority holds that certiorari review by the court of appeals denies Allison access to the courts, the majority does not address this issue. Maj. op. at 1118 n. 9.

. Section 8-43-308, 3B C.R.S. (1994 Supp.), sets forth the grounds for setting aside an award:

Upon hearing the action, the court of appeals may affirm or set aside such order, but only upon the following grounds: That the findings of fact are not sufficient to permit appellate review; that conflicts in the evidence are not resolved in the record; that the findings of fact are not supported by the evidence; that the findings of fact do not support the order; or that the award or denial of benefits is not supported by applicable law. If the findings of fact entered by the director or administrative law judge are supported by substantial evidence, they shall not be altered by the court of appeals.

. The majority is concerned that an ICAO decision operates as a final authority in determining a claimant’s entitlement to workers’ compensation without a state court determination that it is valid. Maj. op. at 1121. This is not the case. The court of appeals reviewed the ICAO decision and determined that the petition for certiorari should be denied because Allison’s petition did not fall within the criteria outlined in C.A.R. 46(a).

. Contrary to the majority opinion, the discretionary nature of certiorari review does not violate Article II, Section 6, of the Colorado Constitution because, as my analysis in the preceding paragraph demonstrates, pursuant to § 8-43-307, persons affected by ICAO decisions are guaranteed access to the court of appeals via certiorari review.

. See, e.g., Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977) (state prisoners); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) (divorce proceedings).

In support of its conclusion that the right of access to the courts is not satisfied by a discretionary review provided by certiorari, the majority relies on Boddie v. Connecticut. Maj. op. at 1119. In Boddie, indigent litigants seeking divorces contended that a state law requiring the payment of court fees and costs for service of process before commencing a divorce action unduly restricted their access to the courts and thus violated due process and equal protection requirements. Justice Harlan, speaking for the majority in Boddie, determined that welfare recipients unable to pay the prerequisite fees for bringing a divorce action'were deprived of their access to the legal system. The Court explicitly refrained, however, from finding a right of universal access to the courts. The Boddie decision bolsters my view since the requirement of payment of court fees and costs directly obstructed the litigants' access to the courts, whereas here, the court of appeals was available to review Allison's workers' compensation claims.

. In Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941), the Supreme Court invalidated a prison restriction that authorized a legal investigator for the parole board to intercept prisoner habeas corpus petitions that were thought not to be properly written.

. In Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), the Supreme Court held that, unless the state provides reasonable alternatives to assist inmates in the preparation of petitions for post-conviction relief, the state may not enforce a regulation that prevents inmates from providing assistance such as preparing writs for other indigent prisoners. Justice Fortas, writing for the Court, found that, "in the absence of any other source of assistance,” preventing "writ writers” from helping “illiterate or poorly educated prisoners ... file habeas corpus petitions” is the functional equivalent of forbidding them to file such petitions. Id. at 487, 89 S.Ct. at 749.

. Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971) (per curiam); In Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977), the Supreme Court held that the access right places an affirmative obligation on states to develop positive "remedial measures to insure that inmate access to the courts is adequate, effective, and meaningful.” Id. at 822, 97 S.Ct. at 1495.

. The No-Fault Act permits a full hearing before arbitrators whose final order could be vacated, modified, or corrected. Under the Uniform Arbitration Act, a party could apply to the court to modify or vacate the award of the arbitrators in some limited circumstances, such as where the arbitrators exceeded their powers or where there was an evident mistake in the award.

. That provision states that "[ajppellate review by the supreme court of every final judgment of the district courts ... shall be allowed.”

. This holding does not apply to a workers' compensation claim where the court of appeals initially grants the writ and later denies the same as having been improvidently granted or renders decision by opinion of the court on the merits of the writ. C.A.R. 46.4.

. It should be noted that this court received this case in a peculiar posture. In a written order, *1127the court of appeals denied Allison's request for reconsideration. Under C.A.R. 46.4 and 46.7, the court of appeals should not have even considered this request and should instead have stricken this motion.

To further complicate this situation, this court granted certiorari to review the court of appeals' decision even though the court of appeals denied certiorari on October 14, 1993, and the petition for writ of certiorari was not filed with this court until November 12, 1993. Under C.A.R. 52(b), in workers' compensation proceedings, the petition for writ of certiorari must be filed within fifteen days of the denial of the petition for rehearing. However, because I find that an exception to 52(b) should be carved out in workers' compensation proceedings, I would require that the petition for writ of certiorari be filed within fifteen days from the date of the court of appeals' denial of certiorari.