source: Caselaw Access Project

author: Justice KOURLIS Justice MARTINEZ

license: Public Domain

text:
    THE PEOPLE of the State of Colorado, Petitioner, v. Mark Lowe LUTHER, Respondent.
    No. 01SC877.
    Supreme Court of Colorado, En Banc.
    Nov. 25, 2002.
    Rehearing Denied Dec. 16, 2002.

    Ken Salazar, Attorney General, John J. Krause, Assistant Solicitor General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Petitioner.
    David S. Kaplan, Colorado State Public Defender, Nancy J. Lichtenstein, Deputy State Public Defender Denver, Colorado, Attorneys for Respondent.

       Justice MARTINEZ and Justice BENDER would grant the Petition.

   Justice KOURLIS

delivered the Opinion of the Court.

I. Introduction

In this case, defendant, Mark Lowe Luther, served a sentence of incarceration for reckless manslaughter, was released on parole, and then violated his parole by commission of the crime of escape. The trial court imposed a consecutive sentence on the escape charge, to begin after completion of the revoked parole incarceration period. Luther appealed, and the court of appeals reversed the trial court in People v. Luther, 43 P.3d 660 (Colo.App.2001), holding that the effect of the sentence would be the imposition of consecutive mandatory parole periods, in violation of section 18-l-105(l)(a)(V)(E), 6 C.R.S. (2002). That statute provides that when an offender receives two or more consecutive felony sentences, the governing mandatory parole period shall be the one for the higher class felony.

We granted certiorari and now reverse the judgment of the court of appeals. Consistent with the overall statutory structure regarding sentencing and parole, we conclude that Luther was not facing two sentences with associated mandatory parole periods, and therefore section 18 — 1— 105(l)(a)(V)(E) is inapplicable.

II. Facts and Procedural History

Mark Lowe Luther pleaded guilty to reckless manslaughter, a class four felony. In 1995, the trial court sentenced Luther to an eighteen-month term of imprisonment plus a three-year period of mandatory parole. After approximately one year of incarceration, the parole board paroled Luther, with the condition that he complete 180 days of intensive supervised parole (“ISP”). During ISP, Luther fled to Texas, where authorities arrested him and extradited him back to Colorado. Upon his return to Colorado, Luther was charged with escape pursuant to sections 17-27.5-104 and 18-8-208(1) and (2), 6 C.R.S. (2002), and theft of an electronic monitoring device pursuant to section 18-4-401(2)(e), 6 C.R.S. (2002). The parole board revoked Luther’s parole and he remained in custody awaiting disposition of the new charges.

As part of a plea agreement, Luther agreed to plead guilty to a charge of attempted escape from ISP, a class four felony, pursuant to section 18-8-208.1(1), 6 C.R.S. (2002), in exchange for the dismissal of the remaining charges. The trial court sentenced Luther to a three-year stipulated sentence in the Department of Corrections (“DOC”), plus a three-year period of mandatory parole as required by section 18 — 1— 105(l)(a)(V)(A). The trial court ordered that this sentence was to be served consecutively to the underlying manslaughter sentence, as required by section 18-8-208.1(1).

Luther filed a Crim.P. 35(a) motion arguing that the sentence imposed was illegal as it would require him to serve consecutive mandatory parole periods in violation of section 18-l-105(l)(a)(V)(E). The trial court denied the motion, reasoning that when Luther was reincarcerated on the parole revocation, he was no longer serving his original sentence, but was rather serving a revocation of parole period, such that the consecutive sentences imposed did not violate section 18-l-105(l)(a)(V)(E).

Luther appealed this ruling to the court of appeals, which reversed the trial court order. The court of appeals held that while the escape statute authorized a consecutive sentence, the trial court could not require Luther to serve two mandatory parole periods. People v. Luther, 43 P.3d 660, 661 (Colo.App. 2001). Because Luther had not completed serving his period of mandatory parole for the manslaughter sentence, the court concluded that the effect of the trial court’s ruling would be to require consecutive mandatory parole periods, thus violating section 18-l-105(l)(a)(V)(E). Id. at 662.

The People sought certiorari, arguing that the court of appeals erred in concluding that section 18-l-105(l)(a)(V)(E) applied to Luther. We agree, and now reverse.

III. Statutory Interpretation

The basic rules of statutory interpretation are so oft-stated as to be rote. First, we begin with the proposition that we have a fundamental responsibility to interpret statutes in a way that gives effect to the General Assembly’s purpose or intent in enacting a statute. Martin v. People, 27 P.3d 846, 861 (Colo.2001). To accomplish this objective, the court must begin with the plain language of the statute. Id. If the statute is unambiguous and does not conflict with other statutory provisions, we need look no further. Id. If, however, the language of the statute is ambiguous, or in conflict with other provisions, we then look to legislative history, prior law, the consequences of a given construction, and the goal of the statutory scheme, to ascertain the correct meaning of a statute. Id.

We presume that the General Assembly intended the entire statute to be effective and intended a just and reasonable result. § 2-4-201(l)(b) and (c), 1 C.R.S. (2002). “[W]e must read and consider the statutory scheme as a whole to give consistent, harmonious and sensible effect to all its parts.” Charnes v. Boom, 766 P.2d 665, 667 (Colo.1988). If an interpretation would yield an absurd result, it is disfavored. Reg’l Transp. Dist. v. Lopez, 916 P.2d 1187, 1192 (Colo.1996).

IV. Analysis

This case requires us to determine the effect of section 18-l-105(l)(a)(V)(E), which directs that when a court imposes consecutive sentences for two or more felonies, the mandatory parole period shall be the period for the highest class felony of which the defendant is convicted. Specifically, the statute states that:

If an offender is sentenced consecutively for the commission of two or more felony offenses pursuant to sub-subparagraph (A) of this subparagraph (V), the mandatory period of parole for such offender shall be the mandatory period of parole established for the highest class felony of which such offender has been convicted. •

§ 18-l-105(l)(a)(V)(E).

This statute is part of the mandatory parole construct, implemented by the General Assembly in 1993. The penalties for felony offenders under that scheme include both an incarceration component and a mandatory parole component. See Ch. 322, sec. 7, § 18-l-105(l)(a)(V)(A)-(E), 1993 Colo. Sess. Laws 1981, 1981-83. The statutes provide presumptive maximum and minimum sentences for imprisonment and require that a mandatory period of parole must attach to each imprisonment sentence, the length of which is dependent on the class of the felony. § 18-l-105(l)(a)(V)(A). The statute does not permit the parties or the trial courts to waive or suspend any portion of the mandatory period of parole, but vests in the state board of parole the exclusive authority to release an offender from his or her designated parole period after a determination that the offender has been sufficiently rehabilitated and can no longer benefit from the parole supervision. § 18-l-105(l)(a)(V)(B).

In this case, Luther argues that his sentence violated section 18-l-105(l)(a)(V)(E) by creating the equivalent of two periods of mandatory parole. Luther had completed his first prison term and had commenced his mandatory period of parole. He was reincar-cerated due to the parole violation. The trial court sentenced him to a consecutive sentence of three years in DOC with three years of mandatory parole. The net effect of that order is that Luther must serve out the remainder of the term of reincarceration resulting from his parole violation before beginning the escape sentence and then serving the parole attaching to that escape sentence. Luther contends that the period of reincar-ceration attributable to a parole violation is itself mandatory parole, and thus must merge into the mandatory parole period associated with the attempted escape charge. The effect of his argument is that he would suffer no additional penalty associated with the parole revocation because that penalty would merge into the mandatory parole attached to the attempted escape charge.

We disagree with Luther’s analysis for two reasons. First, we conclude that the trial court that imposed the attempted escape sentence had no authority over the parole revocation reincarceration. Second, we conclude that the parole revocation reincarceration was itself neither a period of parole nor a sentence that carried parole pursuant to section 18-l-105(l)(a)(V)(A).

As directed by statutory construction principles, we look initially to the language of the statute to determine the overall meaning and intent. Luther had discharged his sentence to imprisonment on the manslaughter charge, and that sentence was no longer operable in any sense. § 18 — 1— 105(l)(a)(V)(D) (“If the offender has been granted release to parole supervision by the state board of parole, the offender shall be deemed to have discharged the offender’s sentence to imprisonment.”) He was released on mandatory parole and reincarcerat-ed for a parole violation.

In addressing the mandatory period of parole, the General Assembly clearly stated that the parole board maintains exclusive authority to grant parole. Once an offender is on parole, the parole board alone has the power to continue, modify, or revoke parole if the offender violates the terms and conditions of that parole. § 17-22.5-403(1) and (8)(a), 6 C.R.S. (2002). Thus, once the parole board released Luther to his mandatory parole period, the trial court lacked authority to impact the terms of that parole, or the penalties for violation of that parole. See Martin v. People, 27 P.3d 846, 858 (Colo.2001) (an offender’s reincarceration period for a parole violation is limited only by the parole board’s statutory authority); Craig v. People, 986 P.2d 951, 958 (Colo.1999) (recognizing that the state board of parole has the authority to discharge an offender from parole, but the trial court lacks discretion to waive or suspend the mandatory period of parole).

A plain reading of the statute dictates that the sentencing court did not have authority over Luther’s parole revocation proceedings, or the sentence imposed thereon.

The two sentences at issue in this case are the sentence on manslaughter, which carried a three-year period of parole; and the sentence on attempted escape, which also carried a three-year period of parole. If those two sentences had been imposed at the same time to run consecutively to one another, then clearly Luther would have faced a three-year period of mandatory parole at the conclusion of his imprisonment by operation of section 18-l-105(l)(a)(V)(E).

That was not, however, the case. Luther received the manslaughter sentence in 1995, and discharged the imprisonment component in 1996 when he was released on parole. By reason of violation of the terms of that parole, Luther was reincarcerated. He faced a possibility of a period of reincarceration for that violation of up to three years, minus whatever credit he had obtained. The sole question thus becomes whether the General Assembly intended that the period of rein-carceration be classified as “mandatory parole” such that it would fold into the mandatory parole period attached to the escape sentence.

We conclude that once Luther was reincarcerated, he was neither serving a sentence that carried mandatory parole, nor serving a period of mandatory parole as contemplated by the statute at issue. Clearly, a sentence imposed because of a parole revocation does not carry with it a mandatory period of parole. More importantly, rein-carceration for violation of parole is not itself “parole” as contemplated by section 18 — 1— 105(l)(a)(V)(A). As set forth in 17-22.5-403(8)(a), when an offender is on parole and violates the conditions of that parole, the state board of parole has the option of revoking parole and returning the offender to a place of confinement for any period of time up to the time remaining on such person’s mandatory period of parole.

Reading the statutes as a whole, we determine that Luther’s interpretation leads to the absurd result of vitiating any penalty associated with violation of the terms of his parole. That reading is not consistent with the treatment in the statutes of revoked parole. Once parole is revoked, the statutes anticipate that the offender can be confined for the remaining period of parole. Nothing in the statutes provides that the offender is at risk of such confinement only if he faces no other mandatory parole periods. Although the period of confinement is delimited by the original mandatory parole period, the offender is not still on “parole” as that term is used in the statutes. “Parole” is a condition of constrained liberty involving a “release from institutional custody.” § 17-22.5-404(1), 6 C.R.S. (2002). At the time of resentencing, Luther was not “on parole” in the sense in which that term is used in the statutes.

Therefore, both because we do not view the trial court as having any authority over the period of incarceration under the revoked parole, and because the period of confinement attributable to parole revocation was not a “period of mandatory parole” as contemplated by the statutes, we hold that section 18-l-105(l)(a)(V)(E) is inapplicable.

Y. Continuous Sentencing

Luther’s situation is more aptly analyzed under the procedure found' in section 17-22.5-101, 6 C.R.S. (2002). Under that section, the DOC has the clear ability and statutory authority to handle separate sentences. Section 17-22.5-101 provides that, “when any inmate has been committed under several convictions with separate sentences, the department shall construe all sentences as one continuous sentence.” Because the legislature enacted the provisions of 18-1-105(l)(a)(V) after section 17-22.5-101 and made no attempt to alter section 17-22.5-101, we interpret the statutes as to give effect to both sections. § 2-4-201(l)(b); Charnes v. Boom, 766 P.2d 665, 667 (Colo.1988).

Pursuant to section 17-22.5-101, Luther’s parole revocation reincarceration period and his new sentence for attempted escape are one continuous sentence, with one period of mandatory parole following. Luther will not be eligible for parole until the completion of all the incarceration time Luther owed. See Spoto v. Colo. State Dep’t of Corr., 883 P.2d 11, 15 (Colo.1994) (applying section 17-22.5-101 to a situation where both mandatory and discretionary parole provisions applied and holding that where consecutive sentences are imposed, there is no need for one particular sentence to dominate; thus section 17-22.5-101 requires that separate sentences be construed as one continuous sentence and denies an offender eligibility for parole until the completion of all incarceration). In calculating Luther’s parole eligibility dates for the consecutively imposed sentences, the DOC would treat the parole revocation and the attempted escape sentence as one continuous sentence. Looking only to the.parole revocation sentence, Luther is immediately eligible for parole. § 17-22.5-403(8). However, for his attempted escape sentence, Luther becomes eligible for parole after 18 months of incarceration. § 17-22.5-403(1). Because Luther must complete all incarceration owed where consecutive sentences are imposed, Luther first becomes eligible for parole after the 18 months he must serve on the escape sentence. Hence, that date would.be his presumptive parole eligibility date. On the other hand, Luther’s mandatory release date would not occur until the expiration of approximately five years of imprisonment the cumulative total of the two years left on his parole reincarceration period, and the three-year sentence for the attempted escape. Once released on parole, he faces the three-year mandatory period prescribed by section 18-l-105(l)(a)(V)(A) for the attempted escape.

By analyzing Luther’s sentences under the continuous sentencing statute, we reach an outcome consistent with our view of the import of the statutes as a whole.

VI. Conclusion

The trial court’s consecutive sentence on the attempted escape charge of three years in DOC plus mandatory parole did not violate section 18-l-105(l)(a)(V)(E). We reverse the judgment of the court of appeals and return the case for remand to the trial court and reinstatement of Luther’s original sentence.

Justice MARTINEZ dissents, and Justice BENDER joins in the dissent.

Justice MARTINEZ

dissenting:

The Majority finds section 18 — 1— 105(l)(a)(V)(E), 6 C.R.S. (2002) inapplicable in this case because the trial court did not have authority over the parole revocation proceedings and sentencing on the prior felony conviction. Because the Majority’s interpretation, requiring a trial court’s authority over a prior sentence, is inconsistent with the plain meaning of section 18 — 1— 105(l)(a)(V)(E), and because the Majority has failed to explore the implications of its interpretation, I respectfully dissent.

The relevant facts are not in dispute, and thus I only repeat the essential details. When Mark Lowe Luther had discharged his term of incarceration on a reckless manslaughter conviction, a class four felony, he began serving a period of mandatory parole. He violated the mandatory parole when he fled to Texas, and subsequently pled guilty to attempted escape, also a class four felony. The trial court sentenced Luther to three years in the Department of Corrections, to be served consecutively to Luther’s reincar-ceration for the period remaining on mandatory parole.

I. Plain Meaning

I agree with the Majority that our interpretation of a statute must give effect to the General Assembly’s purpose or intent in enacting the statute. Martin v. People, 27 P.3d 846, 851 (Colo.2001). If the statutory language clearly sets forth its purpose, we need not apply additional rules of statutory construction to determine the statute’s meaning. Id. In light of our rules of statutory construction, and because section 18 — 1— 105(l)(a)(V)(E) is clear, we need look no further than its express language.

Although already quoted by the Majority, I repeat section 18 — 1—105(l)(a)(V)(E) to show that an offender sentenced consecutively to two or more felonies listed in sub-subpara-graph (A) serves only the mandatory period of parole for the highest class felony:

If an offender is sentenced consecutively for the commission of two or more felony offenses pursuant to sub-subparagraph (A) of this subparagraph (V), the mandatory periods of parole for such offender shall be the mandatory period of parole established for the highest class felony of which such offender has been convicted.

§ 18-l-105(l)(a)(V)(E). In my view, that provision clearly applies because Luther was sentenced consecutively for the commission of two felony offenses under sub-subpara-graph (A): the first in August 1995 for reckless manslaughter, a class four felony, and the second for attempted escape in July 1997, also a class four felony; and Luther faced two periods of mandatory parole. A plain-meaning application of section 18 — 1— 105(l)(a)(V)(E) to Luther’s felony convictions requires that he commence his attempted escape sentence upon his conviction of that offense — not, as the trial court ordered, after the conclusion of Luther’s reincarceration for violation of his mandatory parole. Maj. Op. at 1015. Because Luther was sentenced consecutively for the commission of two felonies, the mandatory period of parole for the highest class offense of which he was convicted is the period of parole he must serve. Since both of his convictions were class four felonies, either his mandatory parole upon the reckless manslaughter or his mandatory parole on the attempted escape must be served — but not both.

Section 18 — 1—105(l)(a)(V)(E) works in conjunction with section 17-22.5-101, 6 C.R.S. (2002), to assure that periods of incarceration precede one period of mandatory parole. Specifically, section 17-22.5-101 states that, for purposes of determining parole eligibility, an offender’s separate sentences are construed as one continuous sentence. As such, section 17-22.5-101 requires completion of all incarceration before an offender is parole eligible. In the case of a consecutive sentence, section 18-l-105(l)(a)(V)(E) prohibits multiple periods of mandatory parole. In conjunction, these provisions require that, in the event of a consecutive sentence, the incarceration portions of the sentence must be served before the mandatory parole, and that only one period of mandatory parole attaches. Therefore, Luther should serve one period of mandatory parole after he completes the incarceration portion of his attempted escape sentence.

II. The Trial Court’s Authority Over the Prior Sentence

The Majority’s contention, that the trial court had no authority over the parole revocation proceedings and sentencing on the prior reckless manslaughter conviction, and that section 18-l-105(l)(a)(V)(E) is therefore inapplicable, reads a requirement into the statute that is not there. Maj. Op. at 1015, 1016-1017. Because the Majority conditions the applicability of section 18 — 1— 105(l)(a)(V)(E) on the court’s authority over the prior proceedings, the Majority’s interpretation limits the scope of section 18-1-105(l)(a)(V)(E) to apply only when the same court sentences an offender to multiple felony offenses. Nothing in section 18-1-105(l)(a)(V)(E) even suggests that the same judge must sentence an offender on each of the two or more felony offenses for only one period of mandatory parole to attach. Moreover, the logical extension of the Majority’s interpretation leads to absurd results. Specifically, the Majority fails to account for those circumstances in which mandatory parole has not been revoked at the time of sentencing on a new offense. It is not uncommon for an offender to receive a consecutive sentence for a separate felony while still serving the incarceration component of an earlier sentence. Under the Majority’s reasoning, if the consecutive sentence is not imposed by the same court that imposed the earlier sentence, section 18-l-105(l)(a)(V)(E) would be inapplicable because the court had no authority over the earlier sentencing proceedings. As a result, the offender, at the time of sentencing on his second offense, would be exposed to two periods of mandatory parole.

I presume that the Majority does not intend to restrict the application of section 18-l-105(l)(a)(V)(E) to those circumstances where a single judge imposes all the sentences. Therefore, the Majority’s holding is not truly founded on the authority of the sentencing court, but instead on the basis that the offender who is reincarcerated is not serving a period of mandatory parole. I next address this contention.

III. A Reincarcerated Offender is Serving Mandatory Parole

In 1993, the General Assembly implemented a new sentencing scheme comprised of two separate components: a term of incarceration and a period of mandatory parole. § 18-1-105(1); Craig v. People, 986 P.2d 951, 958, 961-62 (Colo.1999). Section 18-1-105(l)(a)(V)(A) designates the length of mandatory periods of parole for felons, basing the length of the parole periods on the class of felony for which the individual was convicted. § 18-1-105(l)(a)(V)(A); Martin, 27 P.3d at 850.

This new sentencing scheme was a compromise to reduce prison time for offenders, thereby saving funds, Hearing on H.B. 93-1302 Before the House Judiciary Committee, 59th General Assembly, 1st Reg. Sess. (Feb. 16, 1993); simultaneously, the measure imposed a mandatory period of parole upon release from the custody of the department of corrections. Id. The net effect of this scheme resulted in keeping an offender in the system longer than the previous sentencing method, as the offender was supervised after release to ensure his successful integration into the community. Id.; see § 17-22.5-102.5, 6 C.R.S. (2002). Therefore, the legislation’s intent was not punitive; instead, it served to maintain public safety while reducing costs of incarceration.

Mandatory parole is an addition to the sentence of incarceration on a felony conviction; the portion to be served in prison is discharged once the felon is released to mandatory parole. § 18-l-105(l)(a)(V)(D). Thus, although an offender has completed his sentence to incarceration, he has not discharged his sentence in its entirety and must also complete a period of post-incarceration supervision. Martin, 27 P.3d at 858 (once paroled, a mandatory parolee has discharged his prison sentence as a matter of law pursuant to section 18-l-105(l)(a)(V)(D), but must still fulfill the mandatory parole period of offender’s sentence); People v. Johnson, 13 P.3d 309, 313 (Colo.2000) (mandatory parole is a distinct element of sentencing, separate from the terms of incarceration or length of sentence imposed by the trial court).

Mandatory parole is different from the traditional notions of parole. Craig, 986 P.2d at 963. Prior to the mandatory parole-sentencing scheme, offenders could choose to serve some of their sentence in the community under supervision and reduce their period of incarceration. Id. Some offenders, however, chose to waive parole and serve their entire sentence within prison, in part to avoid post-release supervision. Id. After implementation of the new sentencing scheme, however, offenders must serve and cannot waive mandatory parole. § 18 — 1— 105(l)(a)(V)(B).

As suggested before, one purpose of post-incarceration supervision is to ensure the successful reintegration of an offender into a community. § 17-22.5-102.5. In some circumstances after a parole violation, mandatory parole can be served in a community corrections program, in home detention, or within a place of confinement. § 17-22.5^403(9)(f), 6 C.R.S. (2002). If a violation results in an offender’s reincarceration, he serves the period remaining on the mandatory parole of his original sentence in a place of confinement, § 17-22.5-403(8)(a), 6 C.R.S. (2002); the violation does not produce a new sentence. This proposition is further supported by Representative Kerns explanation, sponsor of H.B. 93-1002, that if mandatory parole is revoked, the offender continues to “serv[e] the community sentence, but [is] doing it in prison.” Hearing on H.B. 93-1002 Before the House Judiciary Committee, 59th General Assembly, 1st Reg. Sess. (March 2, 1993) (Amendment H.B. 1002.007 initially contained provisions for parole eligibility and earned time which were subsequently incorporated into H.B. 93-1302 in the April 2, 1993 Senate Judiciary Comm. Hearing).

In compliance with this sentencing scheme, Luther’s reckless manslaughter felony sentence was divided into two components: an eighteen-month incarceration at the department of corrections and a mandatory parole period of three years. Luther was serving the mandatory parole component of his sentence on reckless manslaughter at the time of his attempted escape. The Majority mischaracterizes Luther’s sentence. Although it initially acknowledges that a penalty to a felony offense includes components of a term of incarceration and mandatory parole, Maj. Op. at 1015, it later concludes, contradictorily, that since Luther had discharged his term of incarceration, he had discharged his sentence, Maj. Op. at 1016. Again, although Luther had discharged his term of incarceration, his sentence on the reckless manslaughter conviction, a class four felony, remained incomplete.

Further, the legislature intended that the mandatory parole period commence at the conclusion of the term of incarceration. § 18-l-105(l)(a)(V)(D). While reincarcerated for the term of mandatory parole, an offender is eligible at any time during reincarceration for release into the community as determined by the parole board. § 17-22.5-403(8)(a). Without imposing only one period of mandatory parole at the conclusion of the term of incarceration, Luther could be released to the community to serve the remainder of mandatory parole before commencing his term of incarceration on the attempted escape conviction. This absurd result is precisely what the General Assembly intended to avoid by the requirement in section 18 — 1— 105(l)(a)(V)(E) that “the mandatory period of parole ... shall be the mandatory period of parole established for the highest class felony.” § 18-l-105(l)(a)(V)(E).

The Majority addresses this absurdity by invoking section 17-22.5-101 to ensure Luther’s incarceration until he is eligible for parole on his attempted escape conviction. Specifically, the Majority’s application of section 17-22.5-101 requires Luther to complete all terms of incarceration prior to all periods of mandatory parole. Because Luther remains subject to incarceration until he is parole eligible on the attempted escape offense, he must serve that offense first. Maj. Op. at 1017. As the Majority concedes, Luther is immediately parole eligible on the reincarceration of the mandatory parole violation. As such, section 17-22.5-101 forces the Majority to require Luther to serve his consecutive sentence for, attempted escape before the sentence to which the Majority contends it is consecutive. According to the Majority, the attempted escape sentence is consecutive to the reincareeration period on the parole violation. Yet the Majority would have the reincarceration period served after the incarceration portion of the attempted escape sentence. While the Majority avoids an absurd result, it does so only by altering the meaning of the word “consecutive.” Therefore, I remain unconvinced by the Majority’s reasoning.

IV. Conclusion

While on mandatory parole, Luther’s impermissible departure from this state led to his sentence on attempted escape, a class four felony pursuant to section 18-8-208.1, 6 C.R.S. (2002). Section 18-8-105(l)(a)(V)(E) applies because Luther was sentenced consecutively for two felony convictions and both felonies have required periods of mandatory parole as listed in sub-subparagraph (A). Therefore, Luther should serve only one period of mandatory parole at the conclusion of his term of incarceration. Because the Majority ignores the plain meaning of section 18-l-105(l)(a)(V)(E) and finds it inapplicable to Luther’s consecutive sentence, I respectfully dissent.

I am authorized to say that Justice BENDER joins in this dissent.

      . Section 18-1-105 was renumbered in 2002 and is now found at section 18-1.3-401, 6 C.R.S. (2002). Because both the trial court and the court of appeals referred to it in this case as section 18-1-105 and because section 18-1-105 was in effect at the time of Luther's conviction, we will also refer to it as such.

      . We granted certiorari on "[w]hether the Court of Appeals erred in holding that § 18 — 1— 105(l)(a)(V)(E), C.R.S. (2001) was applicable to the defendant and thus prohibited requiring him to complete his manslaughter sentence prior to commencement of his consecutive sentence for attempted escape.”

      .Luther pleaded guilty to reckless manslaughter pursuant to section 18-3-104(l)(a), 6 C.R.S. (2002).

      . Since the two terms of parole were the same, the only real impact of the statute would be to assure that Luther was not subject to consecutive terms of parole, akin to his consecutive terms of imprisonment.

      . Section 18-l-105(l)(a)(V)(A) establishes that only sentences for the commission of felonies carry a period of mandatory parole. Hence, the reincarceration for the parole violation does not in itself carry with it a term of mandatory parole.

      . The Majority’s selective application of section 17-22.5-101, 6 C.R.S. (2002) to Luther’s reincar-ceration on his parole violation, to the exclusion of the rest of his sentence for reckless manslaughter, results in giving the phrase “all sentences” dual meanings. Undoubtedly, the General Assembly regarded "all sentences” to mean an entire sentence, including both a term of incarceration and a period of discretionary parole, since section 17-22.5-101 was enacted before the enactment of mandatory parole. After enactment of section 18-1-105, "all sentences” in section 17-22.5-101 still includes an entire sentence — a term of incarceration and a period of mandatory parole. The Majority implies, however, that "all sentences” can, in select circumstances, have an entirely different meaning. Specifically, it includes in "all sentences” only the period of Luther’s reincarceration resulting from the violation of mandatory parole.


author: Justice RICE

text:
    HILLSIDE COMMUNITY CHURCH, S.B.C., a non-profit corporation; First Bank of Arvada, N.A; The City of Golden, a Colorado municipal corporation; and the City Council of the City of Golden, Petitioners, v. Marian L. OLSON and Ida M. Brueske, Respondents. The City of Golden, a Colorado municipal corporation; and the City Council of the City of Golden, Petitioners, v. Marian L. Olson and Ida M. Brueske, Respondents.
    Nos. 01SC808, 01SC878.
    Supreme Court of Colorado.
    Nov. 25, 2002.
    Rehearing Denied Dec. 16, 2002.

      The Overton Law Firm, Thomas J. Over-ton, Denver, CO, Attorneys for Petitioner Hillside Community Church.
    Otten, Johnson, Robinson, Neff, & Rago-netti, PC, J. Thomas MacDonald, Griffiths, Tanoue, Light, Harrington & Dawes, P.C., Steven J. Dawes, Denver, CO, Attorneys for Petitioners City of Golden and The City Council of the City of Golden.

      Victor F. Boog & Associates, PC, Victor F. Boog, Linda A. Battalora, Lakewood, CO, Attorneys for Respondents.
    Geoffrey T. Wilson, Carolynne C. White, Denver, CO, Attorneys for Amicus Curiae the Colorado Municipal League.
    Josh A. Marks, Hall & Evans, LLC, Denver, CO, Attorneys for Amicus Curiae Colorado Counties, Inc.
   Justice RICE

delivered the Opinion of the Court.

In this combined proceeding, we granted certiorari to determine whether the requirement in the Golden Municipal Code (GMC) that a public hearing be held before a special use permit is issued affords neighboring landowners a property right in that procedure warranting the protection of Fourteenth Amendment due process guarantees.

The trial court held, and the court of appeals affirmed, that Respondents had a legitimate claim of entitlement to notice of, and participation in, a public hearing regarding a special use permit for Hillside Community Church’s building addition. They concluded that this entitlement was a property right warranting procedural due process protection. Accordingly, because no public hearing was held as required by the GMC, both courts held that Respondents’ due process rights were violated pursuant to their claim under 42 U.S.C. § 1983. In addition, because 42 U.S.C. § 1988 provides for an award of attorney fees to the prevailing party in a § 1983 claim, the court of appeals affirmed the trial court’s grant of attorney fees to Respondents in a separate opinion.

We reverse. We hold that procedural guarantees stemming from state law or local ordinance do not create a constitutionally cognizable property interest. As such, they cannot be the basis of a meritorious § 1983 claim, and hence, the award of attorney fees to Respondents under § 1988 was improperly granted. We further conclude that Respondents had an adequate remedy for their claims under state law, and therefore no basis upon which to seek recourse under § 1983.

I. FACTS & PROCEDURAL HISTORY

This case arose from a dispute between the Hillside Community Church (Hillside) and Respondents Marian L. Olson and Ida M. Brueske, over the construction of an addition to the church. Respondents own and reside in homes adjacent to the church property in Golden, Colorado. In the spring of 1997, Hillside began construction activities on its property without investigating applicable planning and zoning requirements, and thus without obtaining a permit of any kind. Although Hillside belatedly obtained a “Foundation Only” permit in May of 1997, it subsequently exceeded the bounds of that permit by commencing construction on the addition itself. Petitioner, the City of Golden, eventually issued a building permit to Hillside in October of 1997.

In April of 1998, when the addition was substantially complete, Respondents asserted to the City of Golden that Hillside should have obtained a special use permit prior to construction, that the addition might be in violation of height limitations applicable to the R 1 zone district, and that other code provisions were being violated.

In May of 1998, the City Attorney for Golden agreed, determining that Hillside’s building permit had been improperly granted because the church addition constituted an extension of a non-conforming use in the R 1 zone district. Under the requirements of the GMC, the extension of a non-conforming use was precluded unless a special use permit had been obtained. The GMC further mandated that before a special use permit could be issued, a public hearing must be held and neighboring landowners given notice and an opportunity to participate. This had never occurred with regard to the church addition. Although acknowledging the mistake, the City Attorney did not require that a special use permit be obtained or a hearing held after the fact, because the addition was by then substantially complete. He also declined to revoke the building permit or require that the addition be modified or torn down, relying on the doctrine of relative hardship set forth in Hargreaves v. Skrbina, 662 P.2d 1078 (Colo.1983). In June, Hillside belatedly obtained a five-foot height variance. In November, the City issued a certificate of occupancy to Hillside for the addition.

In June of 1998, Respondents filed suit in the district court seeking injunctive relief and mandamus under C.R.C.P. 106(a)(2). They alleged six claims for relief, among them a violation of their rights under 42 U.S.C. § 1983. That statute states, in pertinent part, that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, ....

42 U.S.C. § 1983 (2000). Specifically, Respondents claimed that because Golden had issued a building permit to Hillside without granting them an opportunity to participate in the special use permit hearing as mandated by the GMC, Respondents had been deprived of a property interest in violation of their due process rights as guaranteed by the Fourteenth Amendment to the United States Constitution.

The trial court ordered the City to set aside the height variance, vacate the certificate of occupancy, hold a hearing as required by the GMC pursuant to the issuance of a special use permit, and only reissue a certificate of occupancy upon approval of the special use permit and compliance with all other provisions of the GMC. Provided that the special use permit was ultimately granted, however, and finding that Hillside had relied in good faith on the assurances of the City, the court declined to order the church addition altered or removed, citing the doctrine of relative hardship. Finally, the trial court held that Respondents had a “constitutionally protected property interest to see that local zoning and planning ordinances are followed, where non-compliance affects their property.” Olson v. Hillside Cmty. Church, No. 98CV1842, slip op. at 19 (Colo.Dist.Ct.1999). Having thus concluded that Respondents had prevailed in their claim under 42 U.S.C. § 1983, the trial court ordered reasonable attorney fees awarded to them pursuant to 42 U.S.C. § 1988.

The court of appeals affirmed Respondents’ § 1983 claim, but reversed on the relative hardship doctrine. The court concluded that Hillside had not, in fact, acted in good faith, and hence should not be afforded the positive presumption of that doctrine. It accordingly reversed the trial court’s ruling on that issue, and remanded to the trial court to require Hillside to modify the church addition to comply with existing GMC ordinances. In affirming the Respondents’ § 1983 claim, the court of appeals held that they had a “legitimate property interest arising from the GMC” and their “procedural due process rights were violated.” Olson v. Hillside Cmty. Church, 42 P.3d 52, 55 (Colo. App.2001). In a separate ruling, the court of appeals also upheld the award of attorney fees to Respondents under 42 U.S.C. § 1988. Olson v. City of Golden, No. 00CA0570, slip op. at 5 (Colo.App. Sept. 13, 2001).

Petitioners City of Golden and Hillside Community Church appealed the court of appeals’ decisions to this court. We granted certiorari only with respect to the due process issue. We thus address the question of whether Respondents had a legitimate property interest either in their right to a special use hearing, or in their right to a denial of the special use permit, and hence a meritorious claim under 42 U.S.C. § 1983. We also granted certiorari in regard to the separate ruling affirming the award of attorney fees. We have combined those petitions in the present proceeding, and now reverse.

II. PROCEDURAL DUE PROCESS RIGHTS

In bringing a due process claim under 42 U.S.C. § 1983, a plaintiff must show that (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). That Golden was acting under color of state law in this case is undisputed. Respondents’ claim instead centers on the second Parratt prong; specifically, that they were deprived of property without due process of law.

In evaluating a due process claim, a court must consider:

(a) whether a property right has been identified; (b) whether governmental action with respect to that property right amounts to a deprivation; and (c) whether the deprivation, if one be found, was visited upon the plaintiff without due process of law.

Fusco v. Connecticut, 815 F.2d 201, 205 (2d Cir.1987); accord Double I Ltd. P’ship v. Plan and Zoning Comm’n, 218 Conn. 65, 588 A.2d 624 (1991). Because we conclude that Respondents have no property right at issue in this case, our analysis will center primarily on the first factor listed in Fusco — the identification of a property right.

Since we have not before considered whether state law procedural protections create a cognizable property right in the land use context, we preface our analysis with an overview of what types of property are protected under the due process clause, and how those rights are ascertained.

The Fourteenth Amendment mandates that a state may not “deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend XIV, § 1. The definition of what type of property is safeguarded by the Fourteenth Amendment has evolved over the years to encompass not only tangible physical property, but a “legitimate claim of entitlement” to certain circumscribed benefits. Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The identification and parameters of those benefits, and what constitutes a “legitimate claim of entitlement” to them, however, is determined not by the Constitution, but largely by state law. Id. Once the state has legislatively created a certain entitlement and a person can demonstrate a legitimate claim to that entitlement, only then is the Fourteenth Amendment implicated to ensure that the person is not deprived of her entitlement absent due process of law. In short, “legislatures create property and courts protect it.” Peter N. Simon, Liberty and Property in the Supreme Court: A Defense of Roth and Perry, 71 Calif. L.Rev. 146,146 (1983).

Having thus established a basis in how constitutionally protected property is created and identified, we now turn to the question of whether a property interest has been established in this case. The court of appeals determined that Respondents had a property interest in the procedures set forth in the GMC because they had a legitimate claim of entitlement to (1) notice of, and an opportunity to participate in, the special review hearing for the Hillside addition; and (2) denial of the special use permit for the Hillside addition. We will discuss these two potential property interests in turn.

A. Notice and Opportunity to Participate in a Special Use Permit Hearing

The court of appeals held that Respondents had a “legitimate claim of entitlement arising from the GMC, which requires Hillside to obtain a special use permit.” Olson v. Hillside Cmty. Church, 42 P.3d 52, 55 (Colo.App.2001). Respondents more specifically claimed that their due process rights were infringed by Petitioners’ violation of sections 18.30.020(4), 18.30.020(6), and 18.30.020(7) of the GMC. Those sections require, respectively: (1) that upon receipt of a special use permit application, the Planning and Development Department shall notify all adjacent property owners of the filing, inform them of the date, time, and location of the permit hearing, and advise them that they can inspect the application prior to the hearing; (2) that the property shall be posted, and a notice of the hearing published in a newspaper of general circulation at least twelve days prior to the hearing; and (3) that the Planning Commission shall hold a public hearing on the permit, and shall subsequently make a determination of approval, approval with limitations or conditions, or denial of the special use permit. GMC §§ 18.30.020(4),(6), and (7) (1996).

These code sections set out the specific procedures that must be followed pursuant to a special use permit review; hence, the essence of the court of appeals’ holding is that Respondents have a property interest in these procedures. This holding cannot stand. Although the precise issue has never been addressed by this court, the United States Supreme Court and a significant body of case law from other jurisdictions have conclusively established that there can be no property right in mere procedure.

The point is straightforward: the Due Process Clause provides that certain substantive rights — life, liberty, and property— cannot be deprived except pursuant to constitutionally adequate procedures. The categories of substance and procedure are distinct. Were the rule otherwise, the Clause would be reduced to a mere tautology. “Property” cannot be defined by the procedures provided for its deprivation any more than can life or liberty. The right to due process “is conferred, not by legislative grace, but by constitutional guarantee.”

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (citing Arnett v. Kennedy, 416 U.S. 134, 167, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (Powell, J., concurring in part and concurring in result in part)). See also Olim v. Wakinekona, 461 U.S. 238, 251 n. 12,103 S.Ct. 1741, 75 L.Ed.2d 813 (1983) (“an expectation of receiving process is not, without more, a liberty interest protected by the Due Process Clause.”); Montgomery v. Carter County, 226 F.3d. 758, 768 (6th Cir.2000) (“What the Due Process clauses of the Fifth and Fourteenth Amendments protects is ‘life, liberty [and] property,’ not the procedures designed to protect life, liberty and property.”); Jacobs, Visconsi & Jacobs, Co. v. City of Law rence, 927 F.2d 1111, 1117 (10th Cir.1991) (“The Supreme Court has recognized that the mere existence of an entitlement to a hearing under state law, without further substantive limitation, does not give rise to an independent substantive liberty interest protected by the fourteenth amendment.”); Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 58 (2d Cir.1985) (“the mere existence of reasonable procedures entitling a person to a hearing under state law does not give rise to an independent substantive liberty interest protected by the Fourteenth Amendment.”); Slotnick v. Staviskey, 560 F.2d 31, 34 (1st Cir.1977), (“The simple fact that state law prescribes certain procedures does not mean that the procedures thereby acquire a federal constitutional dimension.”); Double I Ltd. P’Ship v. Plan and Zoning Comm’n, 218 Conn. 65, 588 A.2d 624, 631 (1991) (citing Cain v. Larson, 879 F.2d 1424, 1426 (7th Cir.1989)) (“A party seeking to demonstrate a property interest entitled to protection under the due process clause cannot ‘simply rely upon the procedural guarantees of state law or local ordinance.’ ”).

We find distinguishable the sole case cited by the court of appeals to support its conclusion that “[statutes or regulations can create a legitimate property interest.” Olson v. Hillside Cmty. Church, 42 P.3d 52, 55 (Colo.App.2001). In Painter v. Shalala, 97 F.3d 1351 (10th Cir.1996), the court rejected a doctor’s claim that he had a protected property interest in receiving Medicare reimbursements calculated in a particular way. The court indicated in dicta that although the doctor may have had a legitimate property interest under the Medicare statute for reimbursement of medical services' already rendered, he had no such interest in the procedure by which those reimbursements were calculated. Id. at 1357-58.

From this reasoning, the court of appeals erroneously concluded that Painter stood for the proposition that a statute itself could confer a property right. This misconstrues the court’s logic. Instead, the Tenth Circuit held that a doctor has a property right in his preexisting entitlement to payment of services already rendered, not the enforcement of the Medicare statute per se. Accordingly, we interpret Painter consistently with the line of cases cited above.

Respondents nevertheless argue that their case is distinguishable from this body of law because Golden failed to follow its own procedures. Petitioner’s failure to follow the procedural requirements of the GMC may have indeed contravened state law. A state procedural failure alone, howéver, does not create a violation of constitutional proportions. The crux of our examination is not compliance with or violation of the prescribed procedure; rather, it is determining whether Respondents had a preexisting entitlement which gives rise to constitutional due process guarantees, an inquiry we answer in the negative.

Accordingly, we hold that Respondents did not have a cognizable property interest in their claimed right to notice of, and opportunity to participate in, a special use permit hearing for the Hillside addition. The violations of the GMC that Respondents claim were properly pursued under state law remedies pursuant to C.R.C.P. 106(a)(2), and do not rise to the level of procedural due process claims under 42 U.S.C. § 1983.

B. Ño Property Interest in Denial of a Special Use Permit Due to the Discretion of the Decision Maker

We now turn to Respondents’ claim that they had a property interest in the denial of the special use permit for the Hillside addition. The court of appeals generally concluded that the GMC provisions were not discretionary, Olson v. Hillside Cmty. Church, 42 P.3d 52, 55 (Colo.App.2001), thereby suggesting that had the special use permit hearing been held, the Planning Commission would have been obligated to deny Hillside’s special use permit. We disagree.

Whether a property interest exists in the outcome of a particular zoning board decision depends not on the probability of a favorable result, but on the degree of discretion vested in the decision-maker. Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir.2000). Thus, in order to prove a property interest in the denial of the special use permit, Respondents must show that, had it held the hearing, the Golden Planning Commission was obligated to deny the special use permit. Our analysis concludes that Golden, had it held the hearing, would not have been obligated to deny the special use permit, and hence Respondents have no legitimate claim of entitlement to a denial.

Like the right to certain procedures, the right to certain outcomes has been extensively litigated in the land use context, albeit usually in regard to the failure of a zoning department to grant a permit or license. The Tenth Circuit Court of Appeals has described the test for determining the existence of a protected property interest:

If the decisionmaker is granted a broad range of discretion, the applicant is seeking neither an interest that he or she has already acquired nor a claim upon which he or she should rely, regardless of the characterization of the process involved.

Jacobs, Visconsi & Jacobs, Co. v. City of Lawrence, 927 F.2d 1111, 1117 (10th Cir.1991); see also Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 59 (2d Cir.1985) (“the question of whether an applicant has a legitimate claim of entitlement to the issuance of a license or certificate should depend on whether, absent the alleged denial of due process, there is either a certainty or a very strong likelihood that the application would have been granted.”).

Applying the “discretion of the decision-maker” analysis to the facts of this case, we now turn to the provisions of the GMC in order to determine how much (if any) discretion the Golden Planning Commission would have had in deciding whether to grant or deny Hillside’s special use permit. Section 18.30(7) of the GMC provides as follows: “The Planning Commission shall hold a public hearing on the special use permit application, and upon conclusion of the public hearing, make a determination of approval, approval with limitations or conditions, or denial of the special use permit.” GMC § 18.30(7) (1996) (emphasis added). This language clearly indicates that the Planning-Commission has significant-if not unlimited-discretion to rule on a special use permit application in whatever manner it deems appropriate.

On the other hand, section 18.30.020(5) lists a number of factors the Planning Commission should consider in deciding whether to grant a permit, and arguably limits that body’s discretion by mandating that “[s]pe-cial use permits shall be granted only ¾/the usage will not authorize or require any construction or alteration in violation of any ordinances of the city, including the planning and zoning ordinance and the city building code.” GMC § 18.30.020(5) (1996) (emphasis added). Given that the trial court noted some twelve specific code and ordinance violations, there is some merit to Respondents’ contention that they had a “certainty or very strong likelihood” that the special use permit would have been denied. Cf. Polenz v. Parrott, 883 F.2d 551, 556 (7th Cir.1989) (“where a municipal ordinance provides substantive criteria which, if met, dictate the issuance of a permit, an applicant who has met those criteria might assert a legitimate claim of entitlement to the permit.”).

The GMC is ambiguous with respect to which code section was intended to prevail over the other. Specifically, the question is whether section 18.30(7) prevails over section 18.30(5), or vice-versa. Given the use of the mandatory language in section 18.30(5) (“special use permits shall be granted only if’ GMC and building code provisions are complied with), coupled with its list of provisions the Planning Commission “shall” consider, this section could arguably be considered to control over the language of 18.30(7). In other words, the Planning Commission might only have the discretion to grant the permit under 18.30(7) if the project was otherwise in compliance.

We find, however, that section 18.30(7), with its expansive discretionary language, was intended to vest the Planning Commission with the broad degree of flexibility necessary to individually tailor project requirements to particular circumstances, even to the extent of negating the directives of section 18.30(5). Indeed, the special permit process itself has been recognized by other courts as largely discretionary in nature. See, e.g., Irwin v. Planning and Zoning Comm’n, 244 Conn. 619, 711 A.2d 675, 678-79 (1998) (“We previously have recognized that the special permit process is, in fact, discretionary. ... ‘If the special permit process were purely ministerial there would be no need to mandate a public hearing.’ ”) (citing Conn. Health Facilities, Inc. v. Zoning Bd. of Appeals, 29 ConnApp. 1, 618 A.2d 1358, 1362 (1992)).

Moreover, section 18.30.040 vests the City Council with the power, upon appeal by either an applicant or person to whom notice is required, to “uphold, deny, or modify the decision of the Planning Commission.” GMC § 18.30.040 (1996). Section 18.30.040, therefore, creates a wholly separate, yet equally expansive, grant of discretionary power to the City Council. This lends support to our conclusion that sections 18.30(7) and 18.30.040, granting discretion to the Planning Commission and the City Council, respectively, were intended to prevail over section 18.30(5). By vesting discretionary power in these two bodies by the plain language of the code, Golden expressly declined to tie its own hands with respect to the denial of a special use permit.

Because the plain language of two separate sections of the GMC vests broad decision-making powers in both the Planning Commission and City Council to either grant or deny a special use permit, we conclude that had the special use permit hearing been held, Respondents would have had no certainty that Hillside’s special use permit application would have been denied. Accordingly, Respondents could have had no preexisting claim of entitlement to the denial of the special use permit.

In summary, we conclude that: (1) Respondents’ right to notice of, and an opportunity to participate in, the special use permit hearing was solely a procedural claim and as such lacked the requisite property entitlement necessary for the successful assertion of a due process claim; and (2) both the Planning Commission and the City Council had discretion whether to grant or deny the permit, thus negating Respondents’ claimed entitlement to the denial of the special use permit. Accordingly, we hold that Respondents have no cognizable property interest in the right to notice of, and participation in, the special use hearing, nor in the denial of the special use permit to Hillside.

III. Adequacy of State Law Remedy

Finally, Respondents assert that because Golden’s failure to follow the special use permit procedures mandated by the GMC was a deliberate and intentional decision, made jointly by the Planning and Zoning Commission, the City Council, and the City Attorney, as opposed to a “random and unauthorized” act by a single governmental official, the post-deprivation remedy afforded them by C.R.C.P. 106(a)(2) was inadequate. They claim that in such circumstances, only a pre-deprivation remedy is legally sufficient to protect a claimant’s due process rights, a remedy they were denied.

The United States Supreme Court articulated the distinction upon which Respondents rely in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). In Parratt, the Court rejected a prisoner’s claimed violation of his procedural due process rights pursuant to § 1983 when prison officials lost the prisoner’s mail-ordered hobby kit due to their failure to follow proper procedures regarding the distribution of prison mail. The Court reasoned that had the loss been the direct result of an “established state procedure,” the prisoner would have had a cognizable due process claim which could be adequately addressed only by a pre-deprivation remedy. Id. at 538, 101 S.Ct. 1908. Since the failure was instead the result of a “random and unauthorized” act taken by prison officials, however, and because such an act could not have been reasonably predicted prior to its occurrence, the Court held that a post-deprivation remedy was constitutionally sufficient in these circumstances. Id. at 541, 101 S.Ct. 1908. It therefore concluded that a state statute providing redress when officials failed to follow state procedures provided an adequate remedy, and the prisoner’s due process rights were accordingly not violated. Id.

Respondents’ assertion that the failure to follow the dictates of the GMC was an intentional and deliberate decision made by the Planning Commission, City Council, and City Attorney, as opposed to a “random and unauthorized” act by an isolated official, is unsupported by the record. Indeed, the argument is belied by the fact that it was the City Attorney himself who later acknowledged that the failure to hold a special use permit hearing was in error.

Even were we to agree with Respondents’ claims that the failure to follow the mandates of the GMC was a deliberate decision made by the entirety of the Golden city government, however, we still could not find a violation of Respondents’ due process rights requiring a pre-deprivation remedy. This is because, as we indicated earlier, a necessary prerequisite to the Parrott distinction is the existence of cognizable property right at issue. In Parmtt, the prisoner’s hobby kit was clearly property; a preexisting right to that property was simply assumed. Here, however, for the reasons we have articulated in Part II of this opinion, Respondents have identified no cognizable property interest to which their claim for a pre-deprivation remedy can attach. Their reliance on the Parratt distinction accordingly fails.

We therefore conclude that Respondents had an adequate remedy for their claims under state law, and no basis upon which to seek recourse under § 1983. Section 18.30.050 of the GMC allows any person “adversely affected or aggrieved” by any city action to seek judicial review pursuant to C.R.C.P. 106(a)(4). Respondents successfully sued under that provision, and under C.R.C.P. 106(a)(2) for a writ of mandamus, achieving injunctive relief in the trial court that was not only upheld on appeal, but enhanced by the court of appeals’ rejection of the relative hardship doctrine and their order to Hillside to modify its addition to bring it into compliance with the code. These state law remedies were all the process that was due, and Respondents therefore have no recourse to a § 1983 claim. See, e.g., River Park, Inc. v. City of Highland Park, 23 F.3d 164, 166-67 (7th Cir.1994) (“the Constitution does not require state and local governments to adhere to their procedural promises. Failure to implement state law violates that state law, not the Constitution.”); Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 58-59 (“even an outright violation of state law ... will not necessarily provide the basis for a federal claim, at least when the applicant has a state law remedy.”); Chesterfield Dev. Corp. v. City of Chesterfield, 963 F.2d 1102, 1104-05 (8th Cir.1992):

It is not enough simply to give these state law claims constitutional labels such as “due process” or “equal protection” in order to raise a substantial federal question under section 1983 .... we have unequivocally held that a state-law error, no matter how fundamental, cannot in and of itself create a federal due-process violation.

Therefore, we hold that although the City of Golden may indeed have violated the provisions of the GMC, Respondents had an adequate state law remedy under section 18.30.050 of the GMC allowing for a writ of mandamus, and under C.R.C.P. 106(a)(2) which provides for judicial review of governmental decisions.

IV. CONCLUSION

We conclude that Respondents have no cognizable property interest with respect to (1) notice of, and an opportunity to participate in Hillside’s special use permit hearing, or (2) the denial of the special use permit to Hillside. Respondents therefore cannot sum cessfully assert a § 1983 claim against the City of Golden. Accordingly, we also reverse the court of appeals’ opinion allowing the payment of reasonable attorney’s fees under 42 U.S.C. § 1988. We conclude that Respondents received an adequate remedy under state law, and were not deprived of their right to be heard. We therefore reverse the court of appeals’ holding that Respondents procedural due process rights were violated, and remand to the trial court for the determination of whether Hillside adequately complied with all other orders issued by the court of appeals.

      . We granted certiorari on the following issue: Whether the failure to conduct a public hearing on a landowner’s application for a special use permit pursuant to a provision of a municipal code, which grants adjacent landowners the right to notice of and an opportunity to participate in such hearing, violates the adjacent landowners’ procedural due process rights, even though adjacent landowners successfully sued for mandamus to remedy the mistake.

      . In addition to their claim under 42 U.S.C. § 1983, Respondents also alleged that: (1) Hillside had impaired their prescriptive right of access over and across the church property; (2) Hillside had violated numerous provisions of the GMC and the Uniform Building Code, entitling them to relief under C.R.C.P. §§ 106(a)(2) and 65(a); (3) the City of Golden had improperly granted Hillside a building permit and must accordingly direct the church to remove the addition; (4) the City Council had exceeded its jurisdiction and abused its discretion in granting the variance to Hillside; and (5) the City of Golden had violated the Establishment Clause of the First Amendment of the United States Constitution by giving preferential treatment to churches.

      . In its petition to this court, Hillside seeks the abandonment of that order because it maintains that compliance has been achieved during the pendency of the appeal to this court. We conclude that the determination of whether Hillside has complied with the court of appeals’ order is an issue of fact which must ultimately be determined by the trial court. Accordingly, we decline to rule on that issue.

      . In their brief to this court, Respondents also claim appeal rights to Golden’s City Council under Section 18.30.040 of the GMC and to subsequent judicial review under Section 18.30.050 of the GMC. Because the special use permit hearing failed to occur, Respondents' right to appeal that decision to the City Council was subsumed by their subsequent filing in district court. In any event, the right to appeal to the City Council, like the right to notice and participate in the hearing itself, is purely procedural, and does not give rise to due process protection. See Fusco v. Connecticut, 815 F.2d 201, 205-206 (2d Cir.l987)("The opportunity granted abutting landowners ... to appeal decisions of planning and zoning commissions and zoning boards of appeal is purely procedural and does not give rise to an independent interest protected by the fourteenth amendment.”) (citations omitted). As for the right to subsequent judicial review under Section 18.30.050, Respondents have clearly availed themselves of that right in the present proceeding.

      . Petitioners argue that because these provisions of the GMC are only triggered when a special use permit application is filed, and because no such application was ever filed in this case, these code sections are simply inapposite to the present discussion. Because the court of appeals held that Respondents had a cognizable property interest in these procedures notwithstanding the absence of an actual application, however, we must analyze this issue accordingly.

      . This distinction is of no consequence to our analysis. Whether a litigant claims a protected property interest with regard to the granting of a permit or its denial are simply opposite sides of the same argument.

      . This section reads as follows:
      Council review. The applicant and any person to whom notice is required, pursuant to paragraph 18.30.020(3) above, aggrieved by the decision of the Planning Commission on any special use permit, may, within 15 days of the date of the decision thereon, apply to the City Council for review of said decision by filing a request for review with the City Clerk. The City Council shall within 30 days of receipt of the review request, based on the record alone as certified to the Council by the Planning Commission, decide to uphold, deny, or modify the decision of the Planning Commission.

      . We first emphasize that we need not reach the merits of this claim. As we explain, the argument that Respondents advance is relevant only when a cognizable property interest hangs in the balance. Because we have found no such property interest at issue in this case, Respondents’ argument is essentially mooted at the outset. We address it to the extent we do, however, only to clarify our holding that Respondents had an adequate remedy under state law.


author: Justice HOBBS

text:
    John E. ARCHIBOLD; Harry A. Galligan, Jr.; Edythe S. Miller; and John B. Stuelpnagel, Petitioners-Appellants, v. The PUBLIC UTILITIES COMMISSION OF the STATE OF COLORADO; and Raymond L. Gifford, Robert J. Hix, and Polly Page, Commissioners thereof in their official capacity; and U S West Communications, Inc. n/k/a Qwest Communications International, Inc., Respondents-Appellees.
    Dec. 2, 2002.
    No. 01SA414.
    Supreme Court of Colorado, En Banc.

      John B. Stuelpnagle, Grand Junction, Colorado, Attorney for Petitioners-Appellants.
    Ken Salazar, Attorney General, Anne K. Botterud, Assistant Attorney General, Denver, Colorado, Attorneys for Respondents-Appellees, The Public Utilities Commission of the State of Colorado and Raymond L. Gifford, Robert J. Hix, and Polly Page, Commissioners thereof in their official capacity.
    Kris Ciccolo, Hale Hackstaff Tymkovich, Timothy M. Tymkovich, Richard A. Westfall, Denver, Colorado, Attorneys for Respondent-Appellee, U S WEST Communications, Inc. n/k/a Qwest Communications International, Inc.
   Justice HOBBS

delivered the Opinion of the Court.

Pursuant to section 40-6-115(1), 11 C.R.S. (2002), petitioners Arehibold, Galligan, Miller, and Stuelpnagel (Arehibold) appeal a decision of the Public Utilities Commission (PUC) requiring Qwest Communications (Qwest) to pay reparations to customers for violations of the PUC rules. Arehibold alleges that the PUC should have sought civil penalties against Qwest for those violations instead of selecting a reparations remedy. The district court dismissed the appeal, finding the case to be moot because Qwest had already paid the required reparations to customers, in compliance with the PUC’s decision. We affirm the dismissal of this appeal, but on different grounds. We hold that the PUC’s selection of a reparations remedy instead of a civil penalties remedy did not exceed its authority.

I.

The PUC staff investigated Qwest Communications International, Inc., formerly known as U S WEST Communications, for alleged violations of the PUC rules regulating telecommunication service providers. In July 1999, the PUC issued an Order to Show Cause, directing Qwest to appear at a PUC hearing and demonstrate why the PUC should not sanction the company for violating commission regulations.

Shortly after the PUC issued its Order to Show Cause, Arehibold filed for intervention in the proceedings. Citing Qwest’s monopoly status as the sole provider of local exchange service, Archibold’s stated goal in intervening was to “ensure that any remedial action taken by the commission is consistent with current Colorado law.” The PUC granted Ar-chibold’s motion to intervene.

The Office of Consumer Counsel (OCC) intervened in the proceeding as a matter of right, explaining that any remedy that the PUC would impose could affect consumers and the public interest, the viewpoint that the OCC is statutorily established to represent. §§ 40-6.5-104(1), -106(l)(b), 11 C.R.S. (2002). See Pub. Serv. Co. v. Trigen-Nations Energy Co., 982 P.2d 316, 326 (Colo.1999) (explaining that the OCC has authority to ascertain compliance with the statutory criteria for the protection of the public interest).

The PUC held a public hearing on the record to determine whether Qwest had violated any commission regulations and, if so, to select the remedy or remedies for those violations. The PUC staff, the OCC, and Qwest filed written testimony and presented witnesses at the hearing; Archibold did neither.

The OCC and the PUC staff recommended to the PUC that it select the remedy of reparations to consumers and ratepayers. In a post-hearing written statement, Archi-bold requested the PUC to reject reparations and seek civil penalties against Qwest.

The PUC issued its Decision on Order to Show Cause, finding that Qwest violated the PUC rules 84,451 times. It ordered reparations to customers. The PUC calculated the reparations by examining information in commission files, including reports filed by Qwest. The PUC took administrative notice of this information, but later supplemented the record with information that had provided a basis for its calculations. The PUC explained, in detail, the processes it used to calculate the reparations.

Archibold argued that the PUC should seek civil penalties and not award reparations because the PUC could not determine either the identity of specific customers who had paid excessive charges or the amount each customer was overcharged. The PUC decided, nonetheless, to award reparations according to a methodology it found to be reasonably designed to redress the overcharges. It explained that Qwest’s customers had experienced service defaults and paid for service they had not received. It rejected Archibold’s argument that reparations should not be ordered and only civil penalties would suffice to redress the Qwest violations:

As for the suggestion that we cannot order reparations in this case because the record does not identify specific customers who paid excessive charges ... we conclude: Most of the rule requirements at issue here ... do not lend themselves to identifying the specific customers who were harmed by a violation of the rules. The nature of the interconnected public switched telephone network derives substantial value from being able to communicate with others. To some extent, as other customers have problems with service quality or connectivity, other customers are adversely impacted and the value paid-for is not received. Nevertheless, the method we adopt for awarding reparations here is reasonably designed to refund excessive charges to those groups of ratepayers ... who were affected by the rule violations found here.

In response to the PUC’s reparations order, Archibold filed an application for reconsideration, reargument, and rehearing. The PUC granted a limited rehearing to allow parties an opportunity to submit testimony and exhibits regarding the methodology the PUC used to calculate reparations. The PUC entered an interim stay of its decision and order, in order to prevent customer confusion in the event that the refund amount was changed on rehearing. Archibold did not present any testimony or exhibits at the rehearing; Qwest, the OCC and the PUC staff filed comments on the reparations methodology.

After the rehearing, the PUC adjusted and explained its methodology and ordered Qwest to pay customer reparations in the amount of $12,695,581, with interest at 10.11% from the effective date of the decision until the reparations were paid. The PUC refused to grant Arehibold’s request to institute a suit for civil penalties. See §§ 40-7-105, -109, 11 C.R.S. (2002). Commissioner Robert Hix filed a supplemental statement to the Decision on Rehearing, enunciating his position that the PUC should have proceeded “to state district court to enforce Colorado statutes and rules with respect to [Qwest’s] violations of the Held Order Rule, 4 CCR 723-2-24, and to seek fines for these violations.”

Filing a motion for reconsideration, Archi-bold requested the commission to institute a court case through the Attorney General, in accordance with the dissent of Commissioner Hix. The PUC denied the motion.

In October and November 2000, Qwest paid the PUC-required reparations in full, with interest. Archibold took an appeal by means of certiorari to the district court un: der section 40-6-115(1), asking the court to set aside the reparations order and order the PUC to request the Attorney General to institute a suit for civil penalties. § 40-6-115(1), 11 C.R.S. (2002); see Trans Shuttle, Inc. v. Pub. Utils. Comm’n, 58 P.3d 47, 48-50 (Colo. 2002) (explaining certiorari procedure for appeal of a PUC decision).

The district court ordered the PUC to certify the record and, later, dismissed the appeal as moot because Qwest had already paid the required reparations to its customers. Archibold moved for reconsideration and amendment of judgment, which the district court denied. On appeal under section 40-6-115(5), 11 C.R.S. (2002), Archibold requests that we set aside the reparations payment and order the PUC to commence a civil penalties lawsuit.

ii.

We affirm the dismissal of this appeal, but on different grounds. We hold that the PUC’s selection of a reparations remedy instead of a civil penalties remedy did not exceed its authority.

A.

Mootness

We first determine that this case is not moot. “A case is moot when the relief sought, if granted, would have no practical legal effect. ‘[W]hen issues presented in litigation become moot because of subsequent events, an appellate court will [generally] decline to render an opinion on the merits of an appeal.’ ” State Bd. of Chiropractic Exam’rs v. Stjernholm, 935 P.2d 959, 970 (Colo.1997) (internal citations omitted) (quoting Van Schaack Holdings, Ltd. v. L.C. Fulenwider, 798 P.2d 424, 427 (Colo.1990)).

In this case,-Qwest had already paid reparations as ordered by the PUC. However, the remedy Archibold seeks on appeal of the PUC decision and order is to direct the institution of a civil penalties lawsuit. Archi-bold claims that the statutes applied to the facts of this case require the PUC to collect civil penalties. Although we disagree with Archibold on the merits of his contention, deferring as we do to the PUC’s selection of a reparations remedy, the issue Archibold seeks to litigate is plainly not moot. This case presents an existing legal controversy, see Bd. of County Comm’rs v. Park County Sportsmen’s Ranch, LLP, 45 P.3d 693, 698 (Colo.2002), and our decision will have legal effect. See Stjemholm, 935 P.2d at 970.

The fulcrum of Archibold’s appeal is that the PUC pursued the “wrong” remedy, and we should order substitution of the “right” remedy. We now examine the merits of this contention.

B.

The PUC Selection of Remedies

To rectify unlawful utility action, the General Assembly provided the PUC with four primary remedies to select from. These remedies, which include a combination of administrative remedies and judicial remedies, are not mutually exclusive; the PUC may choose to pursue one or more of them. § 40-7-103,11 C.R.S. (2002).

First, the PUC may administratively order a public utility to pay reparations to customers. Under section 40-6-119(1), the PUC may impose reparations if it finds that a public utility has charged “an excessive or discriminatory amount” for a product, commodity, or service, after a customer has complained about the utility and the PUC has conducted an investigation. § 40-6-119(1), 11 C.R.S. (2002). The PUC may order reparations based on PUC-initiated investigations, pursuant to its power to regulate utilities under section 40-3-102. § 40-3-102, 11 C.R.S. (2002); Peoples Natural Gas Div. v. Pub. Utils. Comm’n, 698 P.2d 255, 263 (Colo.1985).

Second, the PUC may request the Attorney General to bring a suit for civil penalties for payment to the state treasury. §§ 40-7-101, -109, 11 C.R.S. (2002); Peoples Natural Gas Div., 698 P.2d at 262. Civil penalties are meant to punish a perpetrator, to deter future unlawful acts, and to protect the public interest by shifting costs from the public to the perpetrator; civil penalties do not reimburse consumers for overpayment or make them whole for injuries received. May Dep’t Stores Co. v. State ex rel. Woodard, 863 P.2d 967, 972 (Colo.1993); May v. Colo. Civil Rights Comm’n, 43 P.3d 750, 758-59 (Colo.App.2002).

Third, the PUC may refer the case to the Attorney General for commencement of a lawsuit for relief against current or pending law violations through injunction or mandamus. § 40-7-104(1), 11 C.R.S. .(2002).

Fourth, the PUC may refer to the prosecution authority facts that may warrant criminal prosecution against any utility officer, agent, or employee who violates the law or assists a public utility in violating the law. § 40-7-106,11 C.R.S. (2002).

The PUC is not always required to seek a litigation remedy:

Certainly the general assembly did not by these [enforcement] sections contemplate that every alleged violation of the terms of a certificate of public convenience and necessity had to be heard in a court of record. The commission has inherent power to investigate alleged violations and to make its orders, subject to review as provided by law.

Eveready Freight Serv., Inc. v. Pub. Utils. Comm’n, 131 Colo. 172, 175-76, 280 P.2d 442, 444 (1955).

We accord great deference to the PUC’s remedy choice because the commission has special expertise in public utility regulation and its choice of remedy resides at the core of its responsibility and discretion. Mountain States Tel. and Tel. Co. v. Pub. Utils. Comm’n, 763 P.2d 1020, 1030 (Colo.1988). We presume that the PUC’s decisions and orders are valid; we review the PUC’s findings on the record in the light most favorable to the commission’s disposition; and only in the rarest case do we reject the PUC’s selection of remedy. Id.; see also Pub. Serv. Co. of Colo. v. Pub. Utils. Comm’n, 26 P.3d 1198, 1204-05 (Colo.2001); City of Boulder v. Pub. Utils. Comm’n, 996 P.2d 1270, 1274-75 (Colo.2000). “It is well established that ‘[o]nly in the rarest cases, limited primarily. to demonstrated recalcitrance by the agency, should a court attempt to substitute its remedy for that of the agency.’” Id. quoting 2 Charles H. Koch, Jr., Administrative Law and Practice § 8.7, at 14 (1985).

C.

The PUC’s Choice of Remedy in this Case

Here, the PUC analyzed the available remedies and chose to order reparations; it rejected the option of seeking civil penalties through the institution of a lawsuit filed by the Attorney General. We affirm the PUC’s choice.

1. Reparations

We review the PUC’s decisions only to determine “whether the commission has regularly pursued its authority, including a determination of whether the decision under review violates any right of the petitioner Under the constitution of the United States or of the state of Colorado, and whether the decision of the commission is just and reasonable and whether its conclusions are in accordance with the evidence.” § 40-6-115(3), 11 C.R.S. (2002); see CF & I Steel, L.P v. Pub. Utils. Comm’n, 949 P.2d 577, 584-85 (Colo.1997).

Upon determining this case not to be moot, we also determine that we need not remand this case to the district court for further review. Archibold’s primary contention in this appeal is one of law, whether the commission must seek civil penalties. We determine as a matter of law that the statutes do not require the commission to invoke that remedy.

The record documents the PUC’s choice of remedies in this case. The PUC considered the remedies available to redress the Qwest rule violations and selected reparations. The PUC explained in its decision that reparations are “related to the rates paid (or might be paid) by customers for regulated services [and may not be] specifically designed to adjust rates prospectively to reflect the quality of service actually provided by [Qwest] in the future.” This interpretation of reparations is reasonable and consistent with our previous examination of reparations. See Peoples Natural Gas Div, 698 P.2d at 257, 263 (holding that the PUC properly awarded reparations to customers who had paid for and received lower quality products than the utility was legally required to deliver, and stating that reparations provide a remedy for overcharging of a utility’s ratepayers); Bonfils v. Pub. Utils. Comm’n, 67 Colo. 563, 577, 189 P. 775, 780 (Colo.1920) (upholding agency finding that “the amount of reparation should be the difference between the rates paid and the reasonable rates for the period”).

The PUC then considered Archibold’s contention that reparations may only be given to customers who could be specifically identified as having paid excess charges to Qwest. It reasoned that “no authority holds that the Commission is unable to order customer reparations in the absence of the ability to precisely identify those customers who paid excessive charges and the precise amounts overpaid by each customer.” The PUC found that Qwest customers paid too much for the substandard service they received. The PUC arrived at a method for calculating the reparations after hearing the arguments of the PUC staff, the OCC, and Qwest. Ar-chibold did not offer any counter evidence or argument on reparations methodology or amount, continuing to insist that (1) only civil penalties collected at $2,000 per violation in a court of law would suffice to redress the rule violations and (2) the reparation payments the commission ordered were actually inadequate civil penalties.

Contrary to Archibold’s contention, we determine that the PUC’s order for payment of reparations to Qwest customers and its choice not to seek civil penalties were within its legal authority for remedy selection.

2. Civil Penalties

Archibold contends that the PUC should have instituted a lawsuit for the collection of civil penalties. In construing statutory provisions, our primary purpose is to effectuate the intent of the General Assembly. Adams v. Farmers Ins. Group, 983 P.2d 797, 801 (Colo.1999). In order to discern such intent, we first look to the statutory language itself, giving words and phrases their commonly accepted and understood meaning. Id.

Civil penalty litigation is brought in the name of the people:

[a]ctions to recover penalties ... shall be brought in the name of the people of the state of Colorado ... [and] shall be commenced and prosecuted to final judgment by the attorney general.... Any such action may be compromised or discontinued on application of the commission upon such terms, as the court shall approve and order.

§ 40-7-109, 11 C.R.S. (2002) (emphasis added). The PUC may request the Attorney General to bring a lawsuit for the enforcement of provisions of the statutes or the constitution. § 40-7-101, 11 C.R.S. (2002).

Clearly, the General Assembly has consigned the pursuit or settlement of litigation for civil penalties to the PUC and the Attorney General, on behalf of the people. § 40-7-109,11 C.R.S. (2002). Significantly, the General Assembly did not provide a citizen suit provision under the Public Utilities Law, allowing individuals such as Archibold to institute a civil penalties lawsuit if the PUC does not.

Archibold’s request for relief is equivalent to a request for mandamus, although this is not an appeal of a denial of mandamus relief. He seeks an order compelling the PUC to commence litigation through the Attorney General, even though the statute does not require the PUC to institute a civil penalties lawsuit for rule violations. This is not a case in which the PUC has failed to act. Through a proceeding on the record, it ordered reparations and rejected collection of civil penalties. Mandamus is appropriate only if a plaintiff has a clear right to the relief sought, the agency has a clear duty to perform the act requested, and there is no other available remedy. State v. Bd. of County Comm’rs, 897 P.2d 788, 791 (Colo.1995) citing Gramiger v. Crowley, 660 P.2d 1279, 1281 (Colo.1983). We will not issue mandamus unless the administrative act requested is purely ministerial in nature, and the agency has a clear legal duty to perform the act. Ahern v. Baker, 148 Colo. 408, 414, 366 P.2d 366, 369 (1961); Jones v. Colo. State Bd. of Chiropractic Exam’rs, 874 P.2d 493, 494 (Colo.App.1994).

Arehibold desires an enforcement remedy consigned to the agency by statute, but we typically refrain from ordering the executive branch to take an action committed to prosecutorial discretion. People v. Thorpe, 641 P.2d 935, 938 (Colo.1982); see W. Food Plan v. Dist. Court, 198 Colo. 251, 255-57, 598 P.2d 1038, 1040-41 (1979) (refusing to order an injunction prohibiting the Attorney General from filing a prosecution); People ex rel. Dunbar v. Gym of Am., 177 Colo. 97, 117, 493 P.2d 660, 670 (1972)(stating that “[t]he right of officials to meet statutory evils as they arise and according to the manner in which they arise must always remain within the sound discretion of the statute’s enforcement officer”).

Because the statutes do not obligate the PUC to collect civil penalties for violation of its rules and the commission’s selection of a reparations remedy in this case is not contrary to law, unjust, or unsupported by the record, see section 40-6-115(3), 11 C.R.S. (2002), we uphold the PUC’s decision and order.

III.

Accordingly, we affirm the judgment of the district court dismissing this case.

      . At the time of the PUC investigation and hearing, respondent was known as U S WEST Communications, Inc.; however, U S WEST merged with Qwest Communications International, Inc. in July 2000. For clarity, we refer to respondent as Qwest, both before and after the merger.

      .The PUC found that Qwest had violated five PUC rules: 1) 397 violations of 4 Colo.Code Regs. § 723-2-21.2.4 (2002) (requiring telephone companies to acknowledge calls to published repair service or business phone numbers within twenty seconds, and requiring an employee to answer eighty-five percent of such calls within sixty seconds); 2) 44 violations of 4 Colo.Code Regs. § 723-2-22.1 (2002) (forbidding telephone companies from receiving more that eight customer trouble reports for jurisdictional services per one hundred access lines per local exchange center, averaged over three months); 3) 44,315 violations of 4 Colo.Code Regs. § 723-2-22.2 (1998) (requiring telephone companies to clear eighty-five percent of all out-of-service reports within twenty-four hours, averaged over three months); 4) 30,459 violations of 4 Colo.Code Regs. § 723-2-24.4.2 (1995) (requiring telephone companies to provide basic local exchange service to new customers within 150 working days); and 5) 9,236 violations of 4 Colo.Code Regs. § 723-2-15.1.2 (1999) (requiring local exchanges to hold at least four hours of battery reserve rated for peak traffic loads for each local central office, toll switching or tandem switching office). The PUC also found that Qwest violated section 40-3-101, 11 C.R.S. (2002) (requiring telephone companies to provide reasonable services, equipment, and facilities). However, the PUC did not find that Qwest violated section 40-3-106(1), 11 C.R.S. (2002) (forbidding a telephone company from charging unreasonably different rates of service for different localities or classes of customers).

      . One commissioner, Raymond Gifford, dissented in part, asserting that the record contained insufficient evidence to support specific monetary reparations.

      . See Consol. Freightways Corp. of Del. v. Pub. Utils. Comm’n, 158 Colo. 239, 253, 406 P.2d 83, 90 (1965) (stating that "the Commission can take notice of other evidence in its files, annual statements and data gathered through its own investigation").

      . Commissioner Hix stated: “I considered all rationalizations suggested here (e.g. the Commission’s limited resources to pursue a court action, that fines upon [Qwest] would be paid to the state treasury and would not benefit ratepayers, powerful political pressures could, result in adverse consequences for the agency, etc.); none is valid.” (emphasis supplied by Commissioner Hix).

      . Archibold’s opening brief lists the following issues:
      1. Did the District Court err by its failure to address whether the awarding of payment of "refunds" to certain customers with insufficient or lack of [sic], evidence; and using calculations based upon number of violations by [Qwest]? Were such awards fines or penalties, which can only be awarded by a district court in the State of Colorado?
      2. Did the District Court err by not addressing the issue of the Commission not instituting a proceeding under § 40-7-101, et. seq., C.R.S. against [Qwest], to enforce its provisions for the recovery of penalties due the State of Colorado for over 30,000 violations of Commission Rule 24.4.2 (held service orders/failure to provide services)?
      3. Did the District Court err by its failure to determine whether the Commission violated its role as a neutral decision-maker by supplementing the record with new evidence to allegedly justify relief other than that proposed by any party to the Commission proceeding, and by limiting cross-examination on such evidence?
      4. Did the District Court err by its failure to determine whether the Order of the Commission for payment of interest based upon [Qwest]'s currently authorized rate-of-return on rate base was legally proper, and whether the Commission’s findings and conclusions were made subsequent to hearing without opportunity for comment or cross examination? 5. Did the District Court erred [sic] by dismissing this matter contrary to the decision of the Colorado Supreme Court in O'Bryant v. P.U.C. of State of Colo., 778 P.2d 648 (Colo. 1989)?
      6. Did the District Court err by dismissing the action brought by [Archibold] on the erroneous basis that [Archibold] had not sought a stay of the Commission’s Decision notwithstanding the fact that the Commission itself had stayed its decision pending judicial review?

      . Upon reviewing all of the issues Archibold lists for review, we find none that justifies reversal of PUC’s decision and order.

      . We do' not intend our discussion of remedies available under Colorado Public Utilities Law to be definitive or limiting. The commission has authority to investigate utility law violations and issue corrective decisions and orders, see, e.g., section 40-6-109(3), 11 C.R.S. (2002), subject to judicial review under section 40-6-115, 11 C.R.S. (2002). In addition, a corporation or person may have an action for damages as provided by section 40-7-102, 11 C.R.S. (2002); such actions do not preclude the commission from pursuing the remedies available to it, see section 40-7-102(2), 11 C.R.S. (2002).

      .Every violation of the law is a separate and distinct offense, and each day that a violation persists is a separate offense. § 40-7-105(2), 11 C.R.S. (2002). The penalty is up to $2,000 per offense. § 40-7-105(1), 11 C.R.S. (2002).