COLORADO COURT OF APPEALS
2017COA133
Court of Appeals No. 16CA1678
Arapahoe County District Court No. 16CV173
Honorable Phillip L. Douglass, Judge
Harley Adams; Ernest Vigil; and Phyllis Vigil,
Plaintiffs-Appellants,
v.
Arlene Sagee, in her official capacity as the Sheridan City Clerk; Devin
Granberry, in his official capacity as the Sheridan City Manager; Dallas Hall, in
his official capacity as the Mayor of Sheridan and a member of the City
Council; Tara Beiter-Fluhr, in her official capacity as the Mayor Pro Tem of
Sheridan and a member of the City Council; David Black, in his official
capacity as a member of the Sheridan City Council; Ernie Camacho, in his
official capacity as a member of the Sheridan City Council; Sally Daigle, in her
official capacity as a member of the Sheridan City Council; Leon Hartness, in
his official capacity as a member of the Sheridan City Council; and Gary
Howard, in his official capacity as a member of the Sheridan City Council,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division VII
Opinion by JUDGE J. JONES
Fox and Freyre, JJ., concur
Announced October 19, 2017
Cheney Galluzzi & Howard, LLC, Kevin B. Cheney, Timothy C. Galluzzi,
Denver, Colorado, for Plaintiffs-Appellants
The Law Office of Steven J. Dawes, LLC, Steven J. Dawes, Denver, Colorado,
for Defendants-Appellees
¶1 This case presents one question: Did the district court
unconstitutionally apply a filing deadline to this case, which
involves citizens pursuing their constitutional right of initiative?
We answer no, and so we affirm the district court’s dismissal of the
complaint.
I. Background
¶2 Plaintiffs Harley Adams, Ernest Vigil, and Phyllis Vigil
petitioned to present a ballot initiative to the residents of Sheridan.
For various reasons, Sheridan’s City Clerk rejected some of the
signatures plaintiffs had collected. That left plaintiffs short of the
required number of signatures for the Sheridan City Council and
Sheridan voters to consider the initiative. Plaintiffs contested the
decision, and the City Clerk upheld it after a protest hearing.
¶3 Thirty-five days after the City Clerk’s final decision, plaintiffs
filed a complaint in district court against the City Clerk, the City
Manager, the Mayor, and the members of the City Council
(collectively, Sheridan) pursuant to section 31-11-110(3), C.R.S.
2017 (“The determination as to petition sufficiency may be reviewed
by the district court for the county in which such municipality or
portion thereof is located upon application of the protester, [or] the
1
persons designated as representing the petition proponents
pursuant to section 31-11-106(2).”). The district court dismissed
the case for lack of subject matter jurisdiction because plaintiffs
had failed to file the case within the twenty-eight-day time limit of
C.R.C.P. 106, the rule which is plaintiffs’ only avenue for judicial
review of the decision they challenge.1
II. Discussion
¶4 Plaintiffs concede that Rule 106(b)’s twenty-eight-day
jurisdictional bar applies, and that they filed their case thirty-five
days after the relevant final decision. But they argue that the
district court’s strict application of the twenty-eight-day time limit
to them as pro se parties pursuing their constitutional right of
initiative deprived them of that right. Put another way, they argue
1 The district court also ruled that C.R.C.P. 6(b), which allows it to
grant extensions of time for “excusable neglect,” didn’t authorize it
to extend a jurisdictional deadline like the one in C.R.C.P. 106. We
don’t address this issue because plaintiffs don’t raise it on appeal.
But even if they did, the law is clear that mistake or ignorance of
the law doesn’t constitute excusable neglect. See Goodman Assocs.,
LLC v. WP Mountain Props., LLC, 222 P.3d 310, 321-22 (Colo. 2010);
People v. Alexander,
129 P.3d 1051, 1056 (Colo. App. 2005); see
also Farmers Ins. Grp. v. Dist. Court,
181 Colo. 85, 89,
507 P.2d
865, 867 (1973) (“Failure to act due to carelessness and negligence
is not excusable neglect.”).
2
that Rule 106(b) is unconstitutional as applied to their
circumstances. Their argument fails.
A. Standard of Review
¶5 We review challenges to the constitutionality of statutes and
rules, including as-applied challenges, de novo. Hickman v.
Catholic Health Initiatives, 2013 COA 129, ¶ 6; see also Turney v.
Civil Serv. Comm’n,
222 P.3d 343, 347 (Colo. App. 2009) (reviewing
a void for vagueness challenge to an administrative rule de novo).
B. As-Applied Unconstitutionality
¶6 When asserting an as-applied challenge, the party “contends
that the statute would be unconstitutional under the circumstances
in which the [party] has acted or proposes to act.” Sanger v.
Dennis, 148 P.3d 404, 410-11 (Colo. App. 2006) (citation omitted);
see also Developmental Pathways v. Ritter,
178 P.3d 524, 534 (Colo.
2008). “The practical effect of holding a statute unconstitutional as
applied is to prevent its future application in a similar context, but
not to render it utterly inoperative.” Developmental Pathways,
178
P.3d at 534 (quoting Sanger,
148 P.3d at 410).
3
C. Analysis
¶7 Rule 106(b) says that “a complaint seeking review under
subsection (a)(4) of this Rule shall be filed in the district court not
later than 28 days after the final decision of the body or officer.”2
Plaintiffs filed their complaint thirty-five days after the final
decision, mistakenly believing they could seek review pursuant to
section 24-4-106, C.R.S. 2017, which governs challenges to certain
“agency actions.”
¶8 The “time requirement in C.R.C.P. 106(b) is jurisdictional and
a complaint to review the actions of an inferior tribunal will be
dismissed if it is not filed within thirty days after final action by that
tribunal.” Danielson v. Zoning Bd. of Adjustment, 807 P.2d 541, 543
(Colo. 1990); see also Baker v. City of Dacono,
928 P.2d 826, 827
(Colo. App. 1996) (“[B]ecause th[e] thirty-day filing requirement is
jurisdictional, a C.R.C.P. 106(a)(4) action not filed within the . . .
limitations period must be dismissed for lack of subject matter
2 Rule 106(a)(4) provides for review “[w]here any governmental body
or officer or any lower judicial body exercising judicial or
quasi-judicial functions has exceeded its jurisdiction or abused its
discretion, and there is no plain, speedy and adequate remedy
otherwise provided by law . . . .” Plaintiffs correctly concede that
this rule applies, and therefore we needn’t address whether the
clerk’s action was quasi-judicial.
4
jurisdiction.”) (emphasis added); Crawford v. State, Dep’t of Corr.,
895 P.2d 1156, 1158 (Colo. App. 1995) (upholding dismissal of
inmate’s two-day late complaint as untimely under Rule 106
because “failure to comply with the . . . limitations period divests
the district court of subject matter jurisdiction to hear the action”).3
Nothing in the rule countenances any exceptions.
¶9 Though recognizing this, plaintiffs argue that Rule 106(b)’s
jurisdictional time limit can’t be applied to their pursuit of their
right of initiative guaranteed by the Colorado Constitution. See
Colo. Const. art. V, §1(2) (“The first power hereby reserved by the
people is the initiative.”). This is so, they say, because applying the
limit “narrows” the right. With this we can’t agree.
¶ 10 We begin by observing that plaintiffs’ pro se status doesn’t
affect our analysis. It is widely understood that although courts
should liberally construe pro se parties’ pleadings, pro se parties
must comply with procedural rules to the same extent as parties
represented by attorneys.
As the United States Supreme Court observed
in McNeil v. United States, 508 U.S. 106 . . .
3Rule 106(b)’s time limit was thirty days when the cited cases were
decided.
5
(1993), “[the Supreme Court] ha[s] never
suggested that procedural rules in ordinary
civil litigation should be interpreted so as to
excuse mistakes by those who proceed without
counsel.” Accordingly, “pro se litigants are not
entitled to a general dispensation from the
rules of procedure or court-imposed
deadlines.” Jones v. Phipps, 39 F.3d 158, 163
(7th Cir. 1994).
Dewitt v. Hutchins, 309 F. Supp. 2d 743, 748-49 (M.D.N.C. 2004);
see also Manka v. Martin,
200 Colo. 260, 267,
614 P.2d 875, 880
(1980) (“A litigant is permitted to present his own case, but, in so
doing, should be restricted to the same rules of . . . procedure as is
required of those qualified to practice law before our courts;
otherwise, ignorance is unjustly rewarded.” (quoting Knapp v.
Fleming,
127 Colo. 414, 415,
258 P.2d 489, 489-90 (1953))).
¶ 11 No Colorado appellate decision has addressed the precise
issue before us — whether a generally applicable, jurisdictional
deadline may be unconstitutional when applied to parties seeking to
exercise a constitutional right. But analogous case law establishes
the general principle that the state may impose reasonable time
limits on the exercise of a constitutional right.
¶ 12 For example, the state may impose reasonable time limits for
criminal defendants to seek habeas corpus relief. People v.
6
Wiedemer, 852 P.2d 424, 434-35 (Colo. 1993); see also People ex
rel. Wyse v. Dist. Court,
180 Colo. 88, 92,
503 P.2d 154, 156 (1972)
(“Although the privilege of the writ of habeas corpus is
constitutionally guaranteed, the procedural mechanism for its
exercise may change.”). Similarly, the state may require pro se
defendants in criminal cases to adhere to procedural rules, though
their cases often implicate constitutional rights. See People v.
Romero,
694 P.2d 1256, 1266 (Colo. 1985) (“By electing to represent
himself the defendant subjected himself to the same rules,
procedures, and substantive law applicable to a licensed attorney.”);
see also Fisher v. Johnson,
174 F.3d 710, 714 (5th Cir. 1999)
(“[I]gnorance of the law, even for an incarcerated pro se petitioner,
generally does not excuse prompt filing.”); United States v. Hill,
826
F.2d 507, 508 (7th Cir. 1987) (“The Supreme Court has not held or
even hinted that a defendant’s own neglect, or that of his lawyer,
extends a jurisdictional time limit.”).
¶ 13 And in the civil context, courts have consistently rejected
arguments that statutes of limitations deny parties their
constitutional right of access to the courts. Ciccarelli v. Carey
Canadian Mines, Ltd.,
757 F.2d 548, 554 (3d Cir. 1985) (“There is
7
no absolute and unlimited constitutional right of access to courts.
All that is required is a reasonable right of access — a reasonable
opportunity to be heard.”); see also Wilson v. Giesen, 956 F.2d 738,
744 (7th Cir. 1992) (“Further, the fundamental right of access to the
courts has not been burdened here, as the mere shortening of the
limitations period would not have prevented plaintiff from
maintaining his claim, had he done so in a timely fashion.”).
¶ 14 We are also guided by the supreme court’s decision in Van
Sickle v. Boyes,
797 P.2d 1267 (Colo. 1990). In that case, the court
held that Rule 106(a)(4)’s abuse of discretion standard of review
doesn’t deny parties due process.
Id. at 1273-74. The court
reasoned, in part, that, while the less deferential standard of review
proposed by the plaintiff would indeed provide for closer judicial
scrutiny of governmental decisions, “[j]udicial efficiency is
promoted” by the abuse of discretion standard, and the standard
doesn’t deprive parties of fundamental fairness.
Id. at 1274.
¶ 15 Parties seek to vindicate constitutional rights in court all the
time. But there is simply no authority for the notion that a court or
legislature can’t impose time limits for doing so. So long as such a
time limit doesn’t unduly burden the exercise of a constitutional
8
right, it is permissible. Plaintiffs haven’t shown that the
twenty-eight day deadline imposed by Rule 106(b) unduly burdens
their constitutional right of initiative.
¶ 16 Indeed, at oral argument plaintiffs’ counsel conceded that
twenty-eight days is not an inherently unreasonable time for
requiring action under Rule 106(a)(4), even when a constitutional
right is at stake. It becomes unreasonable, counsel argued,
because the General Assembly has allowed greater time periods for
challenging other types of government actions that don’t necessarily
implicate constitutional rights. See § 24-4-106(4) (a party desiring
to challenge final agency action in court has thirty-five days from
such action to do so). We aren’t persuaded, however, that a
reasonable time period for filing one kind of case is transformed into
an unreasonable one merely because other time periods for filing
other types of cases are longer. The fact that there is a range of
time periods for filing court actions doesn’t render the shortest such
period unreasonable, or constitutionally suspect. To put a finer
point on it, parties seeking to vindicate constitutional rights aren’t
constitutionally entitled to a filing period at least as long as the
longest period provided for filing any type of action.
9
¶ 17 Lastly, we conclude that Loonan v. Woodley, 882 P.2d 1380
(Colo. 1994), on which plaintiffs rely, is distinguishable. In that
case, the supreme court held that constitutional and statutory
provisions governing the initiative process should be liberally
construed to avoid narrowing the constitutional right of initiative.
Id. at 1384, 1386; see also Griff v. City of Grand Junction,
262 P.3d
906, 911 (Colo. App. 2010). But Rule 106(b) is not a provision
governing the initiative process; it is a procedural rule of general
applicability. See People in Interest of B.C.,
981 P.2d 145, 149
(Colo. 1999) (“This interpretation of Rule 106 is consistent with the
general principle that the rules of civil procedure are procedural
and do not attempt ‘to abridge, enlarge, nor modify the substantive
rights of any litigants.’” (quoting Crowley v. Hardman Bros.,
122
Colo. 489, 498,
223 P.2d 1045, 1049 (1950))). And the rule in no
way restricts the constitutional right of initiative.
¶ 18 We therefore conclude that applying Rule 106(b)’s
jurisdictional deadline to plaintiffs’ petition under Rule 106(a)(4)
doesn’t deprive them of or unduly burden their constitutional right
of initiative.
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III. Conclusion
¶ 19 The judgment is affirmed.
JUDGE FOX and JUDGE FREYRE concur.
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