1989-10-10_REVISION - M1988112 (35)

Home Browse Search

In Continental Airlines the Supreme Court based its broad ruling on the specific language of the enabling statute. An extension of that logic to cases not governed by that: statutory standard of review is inappropriate and conflict with the constitutional prohibition against judicial interference with an agency's performance of its statutory function. A narrower, and more rational, reading of the Continental Airlines decision is that an agency's continuing jurisdiction over an order subject to judicial review is limited only in those situations where the exercise of the agency's statutory authority would change the status or affect the rights of the parties to the judicial review action. Two other Colorado cases have expressly followed Continental Airlines. In a Court of Appeals decision, Marr v. Colorado Department of Revenue, 598 P.2d 155 (Colo.App. 1979) the court was presented with a question of mootness; the issue of agency jurisdiction pending judicial review arises only in dicta. In Marr, Marr's driver's license was revoked by the De}partment of Revenue on September 28, 1978 for a period of three months resulting from his failure to submit to a chemical sobxiety test. Marr sought judicial review on the same day and the district court entered an order staying the Department's revocation order pending judicial review in the district court. On January 29, 1979 the district court affirmed the Department's revocation order. Marr moved for emergency relief allowing him to drive within the course and scope of his employment. The district court granted Marr's motion on February 21, 1979, however, it ordered him to surrender his license to the Department. Marr appealed and the Department, without notice to Marr or his counsel, stayed the revocation pending the appeal. On May 24,1979 Marr sought to dismiss his appeal for mootness arguing that the 3 months revocation period had lapsed since the January 29, 1979 affirmance by the court of the revocation order. The Court of Appeals agreed wit}i Marr and dismissed the appeal for mootness. Since the appeal wars dismissed for mootness the Court of Appeals only addressed in dicta the Department's argument that its ex parte stay of the revocation order after the appeal was pending. The court states, '''[a]ssuming arguendo that a supplemental record would support the Department's assertion that it stayed its revocation order, such action would not affect our disposition of this appeal." Marr, at 157. What is consistent in Marr with other cases dealing with an agency's modification of an order pending judicial review i:s that the Department's attempt to stay the revocation order was ex parte, and affected Marr's rights pending review. This deecision is distinguishable from Battle Mountain's situation where CES would be afforded full notice and opportunity to be heard in the amendment process. The most recent Colorado decision is O'Brvant v. The Public Utilities Commission, XIII Brief Times Reptr. 853 (Colo. 7-17-89). 7