2011-03-11_ENFORCEMENT - M1977300

Home Browse Search

impertinent, or scandalous matter." C.R.C.P. 12(f). See South Conejos School District RE- 10 v. Martinez, 709 P.2d 594 (Colo. App. 1985). Plaintiff's Complaint contains numerous allegations that are irrelevant, immaterial, and the subject of a pending case. Paragraphs 8-50, 52, and 53 of Plaintiff's Complaint are a substantial part of the Complaint, comprising eight of its 16 pages. Yet, these paragraphs are not relevant and are immaterial and prejudicial to the case at hand. These paragraphs appear to represent an attempt by Plaintiff to get a second judicial review of the propriety of the Board's August 1 lth Order. The November 2010 hearing did not include the record from the July 2010 hearing. In the November 2010 hearing, Plaintiff requested that the entire record from the Board's July 2010 hearing be incorporated into the November hearing. The Board specifically excluded the record involved in the July hearing from the November hearing. Plaintiff seeks to bring matters into this judicial review that the agency expressly kept out. Plaintiff is not entitled to two bites of the judicial review apple. The August 1 Ith Order from the July hearing is already the subject of a separate pending judicial review action and therefore, cannot be subject to the current action. The only issue involved in the present judicial review is whether the Board properly found that Plaintiff failed to fully comply with the Board's prior Order, not whether the Board properly found that Plaintiff committed violations and properly ordered Plaintiff to perform corrective actions and pay civil penalties within stated deadlines (which are the issues involved in the separate judicial review). Accordingly, the Board and Division respectfully request that this Court strike paragraphs 8-50, 52, and 53 from the Plaintiff's Complaint. C.R.C.P. 12(f); see Koch v. Whitten, 342 P.2d 1011, 140 Colo. 109 (1959). On a related note, Plaintiff's Motion for Certification of Administrative Record requests that the administrative record in this case include documents concerning the Board's hearing in November "and related proceedings." Page 2, paragraph 3 of Plaintiff's Motion. If, by the quoted language, Plaintiff seeks to include in the administrative record for this case material related to the July 2010 Board hearing, the Board and Division object and request that this Court strike such language from Plaintiff's Motion, or otherwise rule that the administrative record here excludes documents from the July 2010 hearing. As stated above, in the November 2010 hearing, Plaintiff attempted to incorporate by reference the entire and extensive record from the Board's July 2010 hearing. The Board specifically denied Plaintiff's request and specifically ruled to exclude the record involved in the July hearing from the November hearing. Accordingly, for the reasons stated herein, and to the extent Plaintiff seeks to include in the administrative record documents related to the pending judicial review action pertaining to the Board's August 1 Ith Order, this Court should 3