Court of Appeals No.: 08CA0890
Elbert County District Court No. 07CV48
Honorable Jeffrey K. Holmes, JudgeCitizens for Responsible Growth, Elbert County, a Colorado nonprofit corporation; Laura E. Shapiro; and John T. Dorman, Plaintiffs-Appellees,
RCI Development Partners, Inc., a Colorado corporation, Defendant-Appellant
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Opinion by: JUDGE KAPELKE*
Graham and Booras, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(f)
COLORADO APPELLATE RULES 35(f) Paragraph 2
No opinion of the Court of Appeals shall be designated for official publication unless it satisfies one or more of the following standards:
(1) the opinion lays down a new rule of law, or alters or modifies an existing rule, or applies an established rule to a novel fact situation;
(2) the opinion involves a legal issue of continuing public interest;
(3) the majority opinion, dissent, or special concurrence directs attention to the shortcomings of existing common law or inadequacies in statutes;
(4) the opinion resolves an apparent conflict of authority.
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“The Court of Appeals decision is based solely on this procedural issue [timely filing of the original lawsuit], and its opinion does not address the validity of the BOCC’s action.” West Elbert County Sun, 6/4/09.
Hold on! The West Elbert County Sun would improve its credibility if it did not present partisan opinions in news stories.
The Court of Appeals did not lay down a new rule of law, did not alter or modify an existing rule, did not apply an established rule to a novel fact situation, did not find an issue of continuing public interest, did not find a shortcoming in existing common law, did not find an inadequacy in statute, and did not resolve an apparent conflict of authority. If any one of these conditions had been met, the Court of Appeals would have published it’s opinion as legal precedent. Since the opinion was unpublished, not one of these conditions was met.
I guess we’re to assume the merits of the plaintiffs position on limiting the BOCC’s authority are more important than the plaintiff’s obedience to legal rules of procedure. According to the West Elbert County Sun, John Dorman intends to appeal his case to the Colorado Supreme Court if he can’t get the Court of Appeals to change its mind, so the case can be heard on the merits. The Court of Appeals, however, “generally employs the same standard of review as the trial court in its review of the Board’s action.” [Citizens for Responsible Growth v. RCI, Unpublished order 08CA0890, May 21, 2009.] It appears the Court of Appeals already considered the case’s merits or lack thereof, found the trial court to be “clearly erroneous” on the question of subject matter jurisdiction, wisely avoided further enabling this political issue, and ordered the trial court to dismiss the case.
Another key fact mentioned in the Court of Appeals order, which I don’t believe has been mentioned in all of the press about this case, is that when the BOCC approved the SVV project, they did so upon the recommendation of the Planning Commission. The Planning Commission’s purpose is to interpret the county master plan, which they did in this case to a reasonable conclusion that the SVV development should be approved. The plaintiff’s case has always been cast against the BOCC in the press, as if the BOCC acted in violation of the master plan, when in fact they were simply agreeing with the interpretation of the master plan given them by the Planning Commission–which is what they usually do!
In effect, the plaintiffs want neither the BOCC nor the Planning Commission to interpret the master plan. Who does that leave? Judges–the branch of government the left uses to advance their “progressive” agenda.
For the uninitiated, “progressive” means living a poorer life with fewer jobs, less economic activity, less energy available, in smaller living spaces, driving in less safe cars, enduring higher taxes with less income under private control, acting under more regulation of all aspects of life, with fewer opportunities to engage in commerce and few opportunities to act without the approval of quasi-public socialist committees. Progressivism stifles freedom and causes stagnation and decline. Progressivism’s only beneficiary is the governing class. Everyone else, even the intended beneficiaries of progressivism, loses.
Conservative newspapers, conservative radio, conservative tv, and conservative internet communications are all booming, and all the left can think about is how to shut them all down. If leftist progressivism is so wonderful, why can leftists only get people to cooperate with them by using force, coercion, threats, intimidation, and subversion?
The 1st Amendment. Use it or lose it.