1979-06-06_ENFORCEMENT - M1978352 (13)

Home Browse Search

what is the legal basis for the contention that Plaintiff is "obligated" (page 9 of Defendant' s Memo) to request an adjudicatory hearing? To create such an obligation would contort the exhaustion doctrine intolerably, and would do not"ring but in fact exhaust all the parties and the agencies involved in administrative proceedings in the State. Such a ruling would force every party with any sort of objection to opt for the more extensive hearing procedures of Article 4 of Title 24, C.R.S. 1973 , as soon as they received notice, and even if no objection was initially apparent , a hearing request would no doubt be made by any sober party who wanted to assure themselves the eventual right to a judicial review. Ironically, if Defendant ' s view was to prevail , final agency action would be an irrelevant element in determining the propriety of judicial review, in complete contradiction of the statutory mandate. Parties would be required to request a lengthy adjudicatory hearing provided in Section 24-4-105, C.R. S. 1973 . If a party failed to, at the outset (i . e . twenty days after the last publication) request such a hearing , it would be precluded from an eventual judicial review, even if the final review proceedings totally violated the rights of the parties. There is to be found neither in the statutory pronouncements nor the exhaustion doctrine nor elsewhere any obligation that a party requests one particular form of agency review process over another parallel form in order to preserve that party ' s right to judicial review. Properly understood , the exhaustion doctrine means the sane as the final agency action concept . (See '.:. C . Davis , T.dministrative La%.., Treatise , Section 20. 08 , 1958. ) "Exhaustion" is not to be ta':en literall:• here, but is a term of art and where final agency review has been accomplished, the "prerequisites to court action" have been realized. -8-