Bennett v. Colorado Department of Revenue
Bennett v. Colorado Department of Revenue
559 P.3d 690; 2024 COA 97
(Pacific Reporter, Third Series)
Bennett v. Colorado Department of Revenue
Opinion
SUMMARY
August 22, 2024
2024COA97
No. 24CA0252, Bennett v. Colorado Department of Revenue —
Administrative Law — State Administrative Procedure Act —
Judicial Review — Notice — Process — Service by Mail
In this interlocutory appeal under C.A.R. 4.2, a division of the
court of appeals considers as a matter of first impression whether
the notice provision of section 24-4-106(4), C.R.S. 2023, authorizes
service of process by mail in an action for judicial review of an
agency decision. The division holds that section 24-4-106(4) does
not authorize initial service of process for a judicial review
complaint by mail and reverses the district court.
The division then determines that the plaintiff has shown good
cause for her failure to properly serve process and remands with
instructions to extend the time to serve process for an appropriate
period.
The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
COLORADO COURT OF APPEALS 2024COA97
Court of Appeals No. 24CA0252
Pueblo County District Court No. 23CV58
Honorable Stephen J. Sletta, Judge
Misty Bennett,
Plaintiff-Appellee,
v.
Colorado Department of Revenue, Division of Motor Vehicles,
Defendant-Appellant.
ORDER REVERSED AND CASE
REMANDED WITH INSTRUCTIONS
Division A
Opinion by JUDGE KUHN
Gomez and Schock, JJ., concur
Announced August 22, 2024
Misty Bennett, Pro Se
Philip J. Weiser, Attorney General, Danny Rheiner, Assistant Attorney General,
Denver, Colorado, for Defendant-Appellant
1
¶ 1 In this interlocutory appeal under C.A.R. 4.2, we consider
whether section 24-4-106(4), C.R.S. 2023, authorizes service of
process by mail in an action for judicial review of an agency
decision. In concluding that it does not, we hold that service of
process for a judicial review action under section 24-4-106(4) is
governed by the Colorado Rules of Civil Procedure. We then
determine that plaintiff, Misty Bennett, has failed to properly serve
defendant, the Division of Motor Vehicles of the Colorado
Department of Revenue (CDOR), but that her failure is excused for
good cause. We therefore reverse the district court’s order finding
service proper, with instructions to extend the time for service of
process for an appropriate period.
I. Background
¶ 2 In September 2023, during a traffic stop, Officer Carlos
Medina determined that Bennett was impaired by alcohol. He
advised her of Colorado’s express consent law and offered her to
take a breath or blood test. Bennett refused both, and as a result,
Officer Medina confiscated her driver’s license and issued her a
notice of revocation.
2
¶ 3 Bennett had a hearing the next month before a hearing officer
for the CDOR. The hearing officer sustained the revocation of her
license for one year. Bennett then timely filed her appeal with the
district court under section 42-2-135, C.R.S. 2023. Bennett filed
her complaint using Judicial Department Form (JDF) 599,
Complaint for Judicial Review (DMV Appeal) (revised May 2018),
1
and completed a certificate of service saying that she had
hand-delivered a copy of the complaint to her county department of
motor vehicles (DMV). Bennett later filed a separate certificate of
service indicating that she had mailed a copy of her complaint to
the CDOR and the Attorney General.
¶ 4 A deputy district attorney then filed a “Notice of Non-Perfected
Appeal Due to Lack of Personal Service” on behalf of the CDOR.
The notice indicated that the deputy district attorney had consulted
with a representative of the Attorney General’s office. After that
consultation, the deputy district attorney agreed to enter a special
1
We take judicial notice of the district court filings in the
underlying case under CRE 201(b). See Schnelle v. Cantafio, 2024
COA 17, ¶ 2 n.1.
3
appearance and advise the court of issues with service of the
complaint.
¶ 5 The district court then issued an order regarding service of
process. It concluded that section 24-4-106(4) authorizes service of
process by first class mail when a party petitions for judicial review
of an agency action. The CDOR moved to certify the court’s order
for interlocutory appeal, the district court granted the motion, and
we accepted the appeal.
II. Appellate Jurisdiction
¶ 6 Before turning to the merits of the CDOR’s appeal, we first
explain why an interlocutory review of the district court’s order is
appropriate.
¶ 7 With limited exceptions, this court has jurisdiction only over
final judgments — that is, judgments that end an action, leaving
nothing further for the district court to do to completely determine
the parties’ rights. Wilson v. Kennedy, 2020 COA 122, ¶¶ 5-7. One
such exception is set forth in section 13-4-102.1(1), C.R.S. 2023,
and C.A.R. 4.2, which allow this court, in its discretion, to review a
nonfinal order in a civil case when the district court certifies, and
we agree, that (1) immediate review may promote a more orderly
4
disposition or establish a final disposition of the litigation; (2) the
order involves a controlling question of law; and (3) that question of
law is unresolved. S. Conejos Sch. Dist. RE-10 v. Wold Architects
Inc., 2023 COA 85, ¶ 11. We conclude that each of these
requirements is satisfied here.
¶ 8 First, our immediate review of whether Bennett has completed
proper service by mail may “establish a final disposition of the
litigation.” C.A.R. 4.2(b)(1). If we were to conclude that service of
process was improper, then her action against the CDOR may be
subject to dismissal. See C.R.C.P. 4(m) (“If a defendant is not
served within 63 days (nine weeks) after the complaint is filed, the
court — on motion or on its own after notice to the plaintiff — shall
dismiss the action without prejudice against that defendant or
order that service be made within a specified time.”).
¶ 9 Second, the question presented to us in this case is a
controlling question of law. Whether a particular question is
controlling depends on the nature and circumstances of the order
being appealed. Affiniti Colo., LLC v. Kissinger & Fellman, P.C.,
2019 COA 147, ¶ 17. We consider a number of factors in making
that decision, including, as relevant here, whether the question may
5
be dispositive of the case and whether addressing the issue would
see also Indep. Bank v. Pandy, 2015 COA 3, ¶ 10. As noted, the
failure to properly serve process may result in dismissal. And the
CDOR asserts that this question is implicated in more than a
hundred complaints a year for judicial review under section
42-2-135. Cf. Adams v. Corr. Corp. of Am., 264 P.3d 640, 646 (Colo.
App. 2011) (rejecting a question as controlling because, among
other things, it did not “identify parallel litigation that would be
impacted by an interlocutory ruling”).
¶ 10 Lastly, the relevant question is an unresolved question of law.
A question of state law is unresolved if it hasn’t been decided by our
supreme court or determined in a published decision of this court.
C.A.R. 4.2(b)(2). Neither the supreme court nor a published
decision of this court has resolved the exact legal question before
us. Consequently, “the order[] at issue appear[s] to involve an
unresolved question of law.” Tomar Dev., Inc. v. Bent Tree, LLC, 264
P.3d 651, 653 (Colo. App. 2011).
6
¶ 11 Thus, we conclude that our review of the CDOR’s interlocutory
appeal is warranted under section 13-4-102.1(1) and C.A.R. 4.2(b).
We now turn to the merits of the appeal.
III. Service of Process Under Section 24-4-106(4)
¶ 12 The CDOR contends that the district court erred by
determining that section 24-4-106(4) authorizes initial service of
process of complaints for judicial review by mail. We agree.
A. Applicable Law and Standard of Review
¶ 13 We must interpret section 24-4-106(4) to determine whether it
carves out an exception to C.R.C.P. 4’s usual requirements for
service of process. Interpretation of statutes and court rules
involves questions of law, which we review de novo. Gleason v. Jud.
Watch, Inc., 2012 COA 76, ¶ 14.
¶ 14 When interpreting a statute, “we strive to give effect to the
(Colo. 2005). “[T]o ascertain the legislative intent, we look first to
the plain language of the statute, giving the language its commonly
accepted and understood meaning.” Smith v. Exec. Custom Homes,
Inc., 230 P.3d 1186, 1189 (Colo. 2010) (citation omitted).
Additionally, “[t]he language at issue must be read in the context of
7
the statute as a whole and the context of the entire statutory
scheme.” Jefferson Cnty. Bd. of Equalization v. Gerganoff, 241 P.3d
932, 935 (Colo. 2010). And we read the statute as a whole and give
consistent, harmonious, and sensible effect to the entire statute.
rules. Gleason, ¶ 16.
¶ 15 A person “whose license has been finally canceled, suspended,
or revoked by or under the authority of the [CDOR] may, within
thirty-five days thereafter, obtain judicial review in accordance with
section 24-4-106.” § 42-2-135(1). Section 24-4-106 provides for
judicial review of agency actions, including a driver’s license
revocation. And its provisions are intended “to assure a plain,
simple, and prompt judicial remedy to persons or parties adversely
affected or aggrieved by agency actions.” § 24-4-106(1).
B. Section 24-4-106(4) Does Not Authorize
Service of Process by Mail
¶ 16 The CDOR contends that the district court misinterpreted
section 24-4-106(4) by finding that the statute authorizes service of
process by mail. The district court concluded that Bennett’s
certificate of service — indicating that she had mailed a copy of the
8
complaint to the CDOR and the Attorney General’s office —
complies with the provisions of section 24-4-106(4). We disagree
with the district court’s interpretation.
¶ 17 The relevant portion of subsection (4) contains the
requirements for service of process:
Every party to an agency action in a
proceeding under section 24-4-105 not
appearing as plaintiff in such action for
judicial review shall be made a defendant;
except that, in review of agency actions taken
pursuant to section 24-4-103, [C.R.S. 2023,]
persons participating in the rule-making
proceeding need not be made defendants.
Each agency conducting a rule-making
proceeding shall maintain a docket listing the
name, address, and telephone number of every
person who has participated in a rule-making
proceeding by written statement, or by oral
comment at a hearing. Any person who
commences suit for judicial review of the rule
shall notify each person on the agency’s docket
of the fact that a suit has been commenced.
The notice shall be sent by first-class certified
mail within fourteen days after filing of the
action and shall be accompanied by a copy of
the complaint for judicial review bearing the
action number of the case. Thereafter, service
of process, responsive pleadings, and other
matters of procedure shall be controlled by the
Colorado rules of civil procedure.
§ 24-4-106(4) (emphasis added).
9
¶ 18 The district court primarily based its interpretation on the
italicized language above.
2
But in doing so, it overlooked the two
previous sentences, which are critical to ascertaining the meaning
of the statute. Section 24-4-106(4) does say that “notice shall be
sent by first-class certified mail within fourteen days after filing of
the action.” However, the reference to “notice” does not refer to
service of process. Instead, it refers to an earlier portion of that
same paragraph requiring a party commencing suit for judicial
review of “a rule-making proceeding” under section 24-4-103 to
“notify each person on the agency’s docket of the fact that a suit
has been commenced.” § 24-4-106(4).
¶ 19 Section 24-4-103, governing rule-making proceedings, is
applicable when “any agency is required or permitted by law to
make rules, in order to establish procedures and to accord
interested persons an opportunity to participate therein.”
§ 24-4-103(1). In a judicial review of an agency rule-making,
“persons participating in the rule-making proceeding need not be
2
The district court also referenced the language of the form that
Bennett used to file her pro se complaint. We address this portion
of the order in Part III.D.
10
made defendants.” § 24-4-106(4). Thus, the plain language of the
notice provision in section 24-4-106(4) is designed to ensure that
notice is given to those nondefendant participants in the
rule-making proceeding who will not automatically be made parties
to the judicial review. Id.
¶ 20 The statute also makes clear that this notice in rule-making
proceedings is not intended to supplant service of process or other
procedural requirements. It notes that after the notice of judicial
review in a rule-making proceeding, “service of process, responsive
pleadings, and other matters of procedure shall be controlled by the
Colorado rules of civil procedure.” Id. This language indicates that
the notice by mail is an extra requirement that only applies to
judicial reviews of rule-making proceedings. However, for all
judicial review actions — regardless of type — the rules of civil
procedure control service of process and subsequent procedure in
the case.
¶ 21 In the case before us, Bennett sought judicial review of her
driver’s license revocation under section 42-2-135, which is not a
challenge to a rule-making proceeding. And the plain language of
section 24-4-106 demonstrates that the legislature did not intend to
11
abrogate the service of process requirements for judicial review of
such an action.
¶ 22 Consequently, we hold that section 24-4-106(4) does not
authorize initial service of process for a judicial review complaint by
mail. The district court erred by concluding otherwise.
C. Bennett’s Service of Process Was
Controlled by C.R.C.P. 4
¶ 23 Absent an exception, Rule 4 controls the service of “all
process.” C.R.C.P. 4(a). In the case before us, Bennett had to
personally serve the CDOR “by delivering a copy [of the summons
and complaint] to the principal officer, chief clerk, or other
executive employee [of the CDOR], and by delivering a copy to the
[A]ttorney [G]eneral.” C.R.C.P. 4(e)(10)(B).
¶ 24 Bennett argues that she accomplished this by hand-delivering
a copy of the complaint to her county DMV and mailing a copy to
the CDOR and Attorney General’s office. However, personal service
of process is proper when it is completed “by any person whose age
is eighteen years or older, not a party to the action.” C.R.C.P. 4(d).
Because Bennett is a party to the action, she could not serve
12
process of her own complaint.
3
See Nelson v. Chittenden, 53 Colo.
30, 37, 123 P. 656, 659 (1912) (reiterating that a litigant cannot
serve their own summons).
¶ 25 Bennett also argues that service was effective because all
parties received copies of her complaint through the mail. But
Rule 4 only authorizes service by mail under sections (f), addressing
substituted service, and (g), addressing other service, neither of
which is applicable here. We therefore conclude that Bennett did
not properly serve the CDOR as required by Rule 4.
3
Bennett argues that this distinction prioritizes procedural
technicalities over substantive fairness. But there are good reasons
for requiring a third party to serve process. For example, it reduces
the chance of conflict between the parties, and it provides for
participation by a neutral third party who could be called to testify
if a party denies having received proper service. See generally
Toenniges v. Drake, 7 Colo. 471, 472-73, 4 P. 790, 791 (1884)
(explaining the necessity of a disinterested and impartial process
server). Regardless, proper service of process is an important part
of invoking the jurisdiction of the courts to bring a lawsuit, Empire
Ranch & Cattle Co. v. Coldren, 51 Colo. 115, 116, 117 P. 1005, 1006
(1911), and Bennett is bound to follow the rules of procedure. See
we apply the same law and procedural rules to pro se parties as
attorneys).
13
D. Bennett has Good Cause for Failing to
Properly Serve Within the Required Timeframe
¶ 26 Last, the CDOR argues that because Bennett did not comply
with the rules governing service of process before the
sixty-three-day deadline contained in Rule 4(m), the district court
should have dismissed the case. Bennett, in turn, asks us to
consider the broader context of her situation and to permit her case
to move forward. While Bennett did not explicitly request an
extension based on a showing of good cause, “[p]leadings by pro se
litigants must be broadly construed to ensure that they are not
denied review of important issues because of their inability to
articulate their argument like a lawyer.” Johnson v. McGrath, 2024
COA 5, ¶ 10 (quoting Jones v. Williams, 2019 CO 61, ¶ 5). We
interpret Bennett’s argument as asking for an opportunity to fix the
problems with service in her case. We conclude that the
circumstances here constitute good cause to extend the deadline for
Bennett to properly serve process.
¶ 27 Rule 4(m) requires the plaintiff to serve a defendant within
sixty-three days after the complaint is filed. But it also provides
that “if the plaintiff shows good cause for the failure [to serve
14
process within sixty-three days], the court shall extend the time for
service for an appropriate period.” And “the court may — even
without a showing of good cause — ‘order that service be made
within a specified time’ after the deadline.” Taylor v.
HCA-HealthONE LLC, 2018 COA 29, ¶ 47 (quoting C.R.C.P. 4(m)).
¶ 28 Bennett used JDF 599, “Complaint for Judicial Review (DMV
Appeal),” to file her lawsuit. The district court noted in its order
that the “Colorado Judicial Department’s self-help website provides
the following note on use of JDF 599 . . . . Make a copy of this form
for the Division of Motor Vehicles and the Attorney General
(Revenue and Utilities Section) and send it to them by mail.”
¶ 29 Taking judicial notice of the then-existing Colorado Judicial
Branch website under CRE 201(b) confirms this assertion.
4
See
Colo. Jud. Branch, Self Help/Forms, https://perma.cc/53N4-UB8U
(navigate to “Division of Motor Vehicles (DMV) Appeals” and open
popout six, “File and Notify”). In 2023, when Bennett filed her
lawsuit, the “Division of Motor Vehicles (DMV) Appeals” section of
4
The Colorado Judicial Branch implemented a new website during
the pendency of this appeal. We refer in this opinion to the prior
version of the website that existed during Bennett’s appeal to the
district court.
15
the website contained instructions titled “Mail a Copy.” That
section provided addresses for the CDOR and the Attorney
General’s office. It also contained a generic certificate of service
form.
¶ 30 Additionally, the then-existing JDF 599 form itself also
contained a generic certificate of service section showing service
options including e-filing, fax, mail, and hand delivery.
5
To the
extent that the old JDF 599 or the old self-help website indicated
that service of process in a judicial review action can be completed
by mail, they were incorrect. As noted, service of process for this
type of case must be completed by personal service. See
§ 24-4-106(4); C.R.C.P. 4(e)(10)(B).
¶ 31 It appears that both Bennett and the district court
understandably relied, at least in part, on the inaccurate website
5
We note that the inaccuracies in the old website and JDF 599
were corrected during the pendency of this appeal.
16
and JDF 599 information.
6
Under these circumstances, we
conclude that Bennett has shown good cause for not timely
completing personal service on the CDOR under Rule 4(m). On
remand, the district court should extend the time for service for an
appropriate period to allow Bennett to properly serve the CDOR and
Attorney General in accordance with the rules.
IV. Disposition
¶ 32 The district court’s order is reversed, and the case is
remanded with instructions to extend the time for service for an
appropriate period to allow Bennett to complete personal service as
required by section 24-4-106(4) and Rule 4.
JUDGE GOMEZ and JUDGE SCHOCK concur.
6
But we also note that the self-help website contained a legal
disclaimer stating that “[t]hese instructions are for informational
purposes only and do not constitute legal advice about your case. If
you choose to represent yourself, you are bound by the same rules
and procedures as an attorney.” Colo. Jud. Branch, Appeals,
https://perma.cc/S8R7-D8TR.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.