Bennett v. Colorado Department of Revenue.
2024 COA 97. No. 24CA0252. Administrative Law—Judicial Review of Agency Decision—Notice—Service of Process by Mail—Good Cause for Failure to Properly Serve.
August 22, 2024
During a traffic stop, Officer Medina determined that Bennett was impaired by alcohol. He advised Bennett of Colorado’s express consent law and gave her the opportunity to take a breath or blood test. Bennett refused both, so Officer Medina confiscated her driver’s license and issued her a notice of revocation. Following an administrative hearing, a Division of Motor Vehicles of the Colorado Department of Revenue (CDOR) hearing officer sustained Bennett’s license revocation for one year. Bennett timely filed an appeal with the district court using Judicial Department Form (JDF) 599, Complaint for Judicial Review, and completed a certificate of service stating that she had hand-delivered a copy of the complaint to her county department of motor vehicles. Bennett later filed a separate certificate of service indicating that she had mailed CDOR and the attorney general a copy of her complaint. A deputy district attorney then filed a “Notice of Non-Perfected Appeal Due to Lack of Personal Service” on behalf of the CDOR. The district court then issued an order regarding service of process, concluding that CRS § 24-4-106(4) authorizes service of process by first class mail when a party petitions for judicial review of an agency action. CDOR moved to certify the court’s order for interlocutory appeal, and the district court granted the motion. The court of appeals agreed with the district court that immediate review of the court’s nonfinal order could promote a more orderly disposition or establish a final disposition of the litigation, and that the order involves a controlling question of law that is unresolved. Accordingly, the court agreed to review the nonfinal order
On appeal, CDOR argued that the district court erred by determining that § 24-4-106(4) authorizes initial service of process of complaints for judicial review by mail; and because Bennett did not comply with the rules governing service of process, the district court should have dismissed the case. The court held that § 24-4-106(4) does not authorize initial service of process for a judicial review complaint by mail, so Bennett failed to properly serve CDOR. However, it appears that Bennett and the district court relied in part on inaccurate old JDF 599 or the old self-help website indicating that service of process in a judicial review action can be completed by mail. Therefore, Bennett has shown good cause for her failure to properly serve process, so her failure is excused.
The order was reversed and the case was remanded with instructions to extend the time for service for an appropriate period to allow Bennett to complete personal service as required by § 24-4-106(4) and CRCP 4.