CO Bar Administrative Law 3 — Questions and Answers
Question 1: A party wants to challenge a Colorado agency rule as exceeding the agency's statutory authority. Under the Colorado APA, what is the primary judicial vehicle for such a facial challenge?
- An action for declaratory judgment on the rule's validity (Correct answer)
- A writ of mandamus in county court
- A petition to the Secretary of State
- An interlocutory appeal to the court of appeals
Correct answer: An action for declaratory judgment on the rule's validity
C.R.S. § 24-4-106(2) allows an action for declaratory judgment to determine the validity of a rule.
Question 2: Under the exhaustion doctrine in Colorado administrative law, a court will generally decline review unless the plaintiff has:
- Pursued all available administrative remedies before suing (Correct answer)
- Filed a bond covering the agency's costs
- Obtained the Attorney General's consent to sue
- Petitioned the Governor for relief first
Correct answer: Pursued all available administrative remedies before suing
Colorado courts require exhaustion of administrative remedies before judicial review unless an exception, such as futility, applies.
Question 3: Which of the following is a recognized exception to the exhaustion requirement in Colorado?
- Pursuing the administrative remedy would be futile (Correct answer)
- The claimant prefers a jury trial
- The agency hearing would take more than a week
- The claimant seeks money damages under $10,000
Correct answer: Pursuing the administrative remedy would be futile
Colorado excuses exhaustion where the administrative remedy would be futile or inadequate, or where the issue is purely legal.
Question 4: A Colorado licensing board summarily suspends a license before a hearing. Under the APA and due process principles, summary suspension is permitted only when:
- The agency finds the public health, safety, or welfare imperatively requires emergency action (Correct answer)
- The licensee has a prior disciplinary record
- The board votes unanimously
- The Attorney General approves in writing
Correct answer: The agency finds the public health, safety, or welfare imperatively requires emergency action
C.R.S. § 24-4-104 permits summary suspension only upon a finding that public health, safety, or welfare imperatively requires emergency action, with a prompt hearing to follow.
Question 5: In Colorado administrative hearings, hearsay evidence is:
- Admissible if it is the kind of evidence reasonably prudent persons rely on, though residuum concerns may limit its weight (Correct answer)
- Always inadmissible as in jury trials
- Admissible only if both parties stipulate
- Admissible only from government witnesses
Correct answer: Admissible if it is the kind of evidence reasonably prudent persons rely on, though residuum concerns may limit its weight
The APA relaxes formal evidence rules, admitting evidence that reasonably prudent persons rely upon in the conduct of serious affairs.
Question 6: A rule adopted by a Colorado agency does not take effect until it is published where?
- The Colorado Register (Correct answer)
- The Federal Register
- A newspaper of general circulation in Denver
- The agency's internal manual
Correct answer: The Colorado Register
Rules must be filed with the Secretary of State and published in the Colorado Register to become effective.
Question 7: When a Colorado court reviews an agency's interpretation of its own governing statute, the court:
- Gives the interpretation deference but is not bound and decides legal questions de novo (Correct answer)
- Must always adopt the agency's view
- May not consider the agency's view at all
- Certifies the question to the General Assembly
Correct answer: Gives the interpretation deference but is not bound and decides legal questions de novo
Colorado courts give respectful consideration to an agency's statutory interpretation but retain de novo review over questions of law.
CO Bar Administrative Law 3
A party wants to challenge a Colorado agency rule as exceeding the agency's statutory authority.
Under the Colorado APA, what is the primary judicial vehicle for such a facial challenge?