text:
    ROOSEVELT TUNNEL, LLC and El Paso Gold Mines, Inc., Plaintiffs-Appellants, v. Jane NORTON in her official capacity as Director of the Colorado Department of Public Health and Environment; Colorado Department of Public Health and Environment; J. David Holm in his official capacity as Director of the Colorado Water Quality Control Division; and Colorado Water Quality Control Division, Defendants-Appellees.
    No. 02CA1738.
    Colorado Court of Appeals, Div. I.
    July 17, 2003.
    Rehearing Denied Sept. 4, 2003.
    Certiorari Denied April 26, 2004.

      Merrill, Anderson, King & Harris, LLC, James L. Merrill, Stephen D. Harris, Colorado Springs, Colorado, for Plaintiffs-Appellants.
    Ken Salazar, Attorney General, Jerry W. Goad, Senior Assistant Attorney General, Denver, Colorado, for Defendants-Appellees.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const, art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.

   Opinion by

Judge TAUBMAN.

The dispositive issue in this appeal concerning judicial review of agency action is whether an agency’s admitted failure to rule on a request for a temporary water discharge permit within a 180-day statutory period provides a basis for mandamus relief under C.R.C.P. 106(a)(2). Because we agree with the trial court that the agency’s “failure to act” constituted final agency action under the Administrative Procedure Act (APA), § 24-4-101, et seq., C.R.S.2002, we conclude plaintiffs’ action, filed outside the time limit for review under the APA, was properly dismissed for lack of subject matter jurisdiction. Accordingly, we affirm.

This dispute arises from an application for a temporary discharge permit filed by plaintiff Roosevelt Tunnel, LLC, on behalf of itself and plaintiff El Paso Gold Mines, Inc. (collectively Roosevelt). Pursuant to the Colorado Water Quality Control Act (CWQCA), § 25-8-101, et seq., C.R.S.2002, Roosevelt sought a temporary discharge permit for water flows from the Roosevelt Tunnel, a century-old regional mine drain, into Cripple Creek. Roosevelt filed its application with defendant Colorado Water Quality Control Division, a part of defendant Colorado Department of Public Health and Environment (CDPHE).

The CWQCA parallels the federal Clean Water Act, 33 U.S.C. § 1251, et seq., which authorizes the states, including Colorado, to assume regulatory authority over water pollution. See 33 U.S.C. § 1342(b). The CWQCA is a comprehensive statute designed to protect the quality of waters throughout the state by, among other things, regulating the discharge of pollutants into such waters. Accordingly, the Division is charged with granting permits for discharge of pollutants into waters of the state to assure that such discharges do not exceed prescribed limits. See § 25-8-501(1), C.R.S.2002.

Under the CWQCA, a temporary permit shall be issued “if the division has not finally issued or denied a permit within one hundred eighty days after receipt of the permit application.” Section 25-8-502(5)(a)(I), C.R.S. 2002.

Here, Roosevelt applied to the Division for a discharge permit on October 12, 2001. It is undisputed that the Division did not respond to Roosevelt’s request for a discharge permit by April 12, 2002, the end of the 180-day statutory period.

Roosevelt filed this mandamus action in the trial court on June 26, 2002, some 75 days after the expiration of the 180-day period. The trial court dismissed the action, and this appeal followed.

I. Administrative Procedure Act

Roosevelt argues that because the Division did not act on its request for a temporary discharge permit within 180 days, it had no adequate remedy at law and, therefore, was entitled to file an action in the nature of mandamus pursuant to C.R.C.P. 106(a)(2). In contrast, the defendants contend that under the APA, the Division’s failure to rule on the request for a temporary discharge permit constituted final agency action, thereby requiring Roosevelt to file a complaint within 30 days after the expiration of the 180-day period. We agree with the defendants.

The APA provides for judicial review of “final agency action.” Section 24-4-106(2), C.R.S.2002. As relevant here, “any person adversely affected or aggrieved by any agency action may commence an action for judicial review in the district court within thirty days after such action becomes effective.” Section 24-4-106(4), C.R.S.2002. Under the APA, the term “action” is specifically defined as including “the whole or any part of any agency ... order, interlocutory order ... or failure to act.” Section 24-4-102(1), C.R.S. 2002. Both the Division and CDPHE are considered agencies under the APA. See § 24-4-102(3), C.R.S.2002.

“Where ... an agency has an obligation to carry out a mandatory, nondiscre-tionary duty and ... fails to meet an established statutory deadline for carrying out that duty ... the failure to carry out that duty is itself ‘final agency action.’ ” S. Utah Wilderness Alliance v. Norton, 301 F.3d 1217, 1229 (10th Cir.2002)(applying similar federal APA provision, 5 U.S.C. § 551(13)); see also Sierra Club v. Thomas, 828 F.2d 783, 793 (D.C.Cir.1987)(“[I]f an agency is under an unequivocal statutory duty to act, failure so to act constitutes, in effect, an affirmative act that triggers ‘final agency action’ review.”).

The CWQCA provides that any final rule, order, or determination by the Division, including approval of permits, shall be subject to judicial review in accordance with the terms of that act and the APA. As does the APA, the CWQCA provides that any proceeding for judicial review of any final rule, order, or determination of the Division shall be filed within thirty days after that rule, order, or determination has become final. See § 25-8-404(3), C.R.S.2002.

Under this legislative scheme, therefore, agency determinations pursuant to the CWQCA shall be reviewed pursuant to APA procedures. Because the APA expressly defines “action” to include a “failure to act,” defendants’ failure to approve or deny Roosevelt’s request for a temporary discharge permit within 180 days of the filing of the permit application constitutes final agency action. Similarly, because final agency action includes a failure to act, Roosevelt had available the remedy of judicial review pursuant to the APA. To pursue that remedy, Roosevelt was required to file an action in the district court within 30 days after the expiration of 180 days following the filing of its application.

Because Roosevelt did not file its action within that period, the trial court was without jurisdiction to decide Roosevelt’s complaint on the merits.

Nevertheless, Roosevelt argues that even if the APA applies, there are two reasons why it should still prevail. We are not persuaded.

First, Roosevelt contends, relying on National Wildlife Federation v. Cotter Corp., 665 P.2d 598, 603 (Colo.1983), that because there is no specific determination being challenged, and thus no specific date to begin the 30-day period for filing a judicial review action, it must be accorded a reasonable time within which to file its complaint. Filing its complaint within 75 days after the expiration of the 180-day period was reasonable, Roosevelt asserts.

However, Roosevelt’s reliance on Cotter is unavailing. Although it is true that there is no determination as such that Roosevelt is appealing, Roosevelt itself maintains that the defendants were required to issue a temporary discharge permit within 180 days of the filing of the application. That date, accordingly, provides the specific date from which to calculate the time to file an action for judicial review based on the Division’s failure to act.

Second, Roosevelt maintains that, because the CWQCA’s judicial review provisions are more specific than those in the APA and do not provide for review of an agency’s failure to act, APA judicial review is not available here. We do not agree.

The APA provides that “where there is a conflict between this article and a specific statutory provision relating to a specific agency, such specific statutory provision shall control as to such agency.” Section 24-4-107, C.R.S.2002.

Roosevelt argues that the CWQCA judicial review provision, § 25-8-404(1), C.R.S.2002, applies to “any final rule, order, or determination by the division or the commission,” but does not refer to the agency’s failure to act. Thus, Roosevelt urges us to conclude that the more specific CWQCA statutory provisions apply here, rather than the APA’s provision concerning an agency’s failure to act.

The difficulty with this argument, however, is that it ignores that part of § 25-8-404(1) providing that judicial review is to be in accordance with the provisions of the CWQCA and the APA. Thus, by expressly incorporating the APA procedures, the CWQCA requires that judicial review be under the APA, including review of an agency’s failure to act.

Accordingly, we reject Roosevelt’s further argument that review of inaction is counter-indicated by two provisions of the CWQCA which specifically contemplate judicial review of particular affirmative decisions. One of those provisions, § 25 — 8—502(5)(b), C.R.S.2002, specifies that issuance of a temporary permit shall be final agency action for the purposes of § 24-4-106. Aso, § 25-8-502(2)(c), C.R.S.2002, states that a decision that an application is not complete shall be considered final agency action and shall be subject to judicial review. That these provisions provide for judicial review of affirmative CWQCA decisions does not preclude application of the APA judicial review provisions in other circumstances, such as those presented here.

Accordingly, we conclude there is no conflict between the judicial review provisions of the CWQCA and the APA.

II. Mandamus

Roosevelt contends that relief in the nature of mandamus was appropriate in this case. We disagree.

Under C.R.C.P. 106(a)(2), relief in the nature of mandamus may be obtained to compel an agency or public official to perform a plain legal duty required by virtue of the office or which the law enjoins as a duty resulting from the office. See Bd. of County Commr’s v. County Road Users Ass’n, 11 P.3d 432 (Colo.2000). For a mandamus action to lie, there must be no other adequate remedy available to the plaintiff. McIntosh v. Bd. of Educ., 999 P.2d 224 (Colo.App.2000).

Because we have determined that Roosevelt had an adequate remedy pursuant to the APA, it was not entitled to file an action seeking mandamus relief.

Accordingly, the judgment is affirmed.

Judge KAPELKE and Judge CRISWELL concur.


source: Caselaw Access Project

author: Chief Judge DAVIDSON.

license: Public Domain

text:
    DEE ENTERPRISES, d/b/a D & D Electric; and Mid-Century Insurance Company, Petitioners, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO and Ronald Nations, Respondents.
    No. 02CA2040.
    Colorado Court of Appeals, Div. I.
    July 31, 2003.

      Joel N. Varnell & Associates, Chris For-syth, Denver, Colorado, for Petitioners.
    No Appearance for Respondent Industrial Claim Appeals Office.
    Bisset Law Firm, Jennifer Bisset, Denver, Colorado, for Respondent Ronald Nations.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const, art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.

   Opinion by

Chief Judge DAVIDSON.

In this workers’ compensation proceeding, Dee Enterprises and its insurer, Mid-Century Insurance Company (collectively employer), seek review of the final order issued by the Industrial Claim Appeals Office (Panel) upholding the order of the administrative law judge (ALJ) finding that Ronald Nations (claimant) had suffered a compensable injury and awarding him benefits. We affirm.

I. Constitutionality

On appeal, employer’s primary contention is that §§ 8-43-201 and 8-43-301, C.R.S. 2002, of the Workers’ Compensation Act (Act), are unconstitutional. Specifically, employer argues that these statutes violate both the doctrine of separation of powers, under article III of the Colorado Constitution, and the requirement that district courts have original jurisdiction in civil cases, as mandated in article VI, § 9(1). We conclude that employer has failed to establish beyond a reasonable doubt that the Act violates these provisions of the Colorado Constitution.

Preliminarily, we agree with employer that this court has original jurisdiction to address challenges to the constitutionality of the Act. The standard of review is de novo, and because statutes are presumed to be constitutional, the challenging party bears the burden of proving them unconstitutional beyond a reasonable doubt. Thus, as relevant here, when the General Assembly creates an administrative agency and provides it specific powers pursuant to the state’s police power, the agency’s exercise of those powers within the scope of its authority is presumed to be valid and constitutional. MGM Supply Co. v. Indus. Claim Appeals Office, 62 P.3d 1001 (Colo.App.2002).

A. Police Power

The General Assembly created the Act as a substantive right pursuant to its police power. See Sch. Dist. No. 1 v. Indus. Comm’n, 66 Colo. 580, 185 P. 348 (1919). The Act is a mutual renunciation of common law tort claims and defenses in favor of a no-fault system with reduced but guaranteed benefits. Whiteside v. Smith, 67 P.3d 1240 (Colo.2003). The Act is the exclusive remedy for workers injured within the scope and course of their employment and precludes employees from bringing tort actions against their employers. Section 8-41-102, C.R.S. 2002; Kandt v. Evans, 645 P.2d 1300 (Colo.1982).

The constitutionality of all types of workers’ compensation acts generally has been firmly established. 1 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 2.07, at 2-14 (2002). Indeed, the legislature has broad discretion to enact measures for the protection of the public health, safety, and welfare, so long as the remedy adopted is rationally related to a legitimate governmental purpose. See Young v. Indus. Claim Appeals Office, 969 P.2d 735 (Colo.App.1998). It is well established that the employer-employee relationship involves a vital public interest and that there is a need for its regulation. See Corcoran v. P.G. Corcoran Co., 245 Minn. 258, 71 N.W.2d 787 (1955).

B. Separation of Powers

Section 8-43-201 of the Act confers jurisdiction on ALJs to hear and determine workers’ compensation matters, and § 8-43-301 provides the Panel with jurisdiction to review the ALJs’ orders. Employer contends that these provisions violate the constitutional separation of powers doctrine by conferring judicial authority on an administrative agency that is part of the executive branch. We disagree.

Article III of the Colorado Constitution prohibits one branch of government from exercising powers that the constitution vests in another branch. People v. Barth, 981 P.2d 1102 (Colo.App.1999). The separation of powers doctrine does not require a complete division of authority among the three branches, however, and the powers exercised by different branches of government necessarily overlap. People in Interest of R.W.V., 942 P.2d 1317, 1320 (Colo.App.1997)(“absolute separation of government functions ' among the co-equal branches is neither required nor desirable to achieve the constitution’s ultimate goal of effective and efficient government”); Nev. Indus. Comm’n v. Reese, 93 Nev. 115, 560 P.2d 1352 (1977)(because an administrative agency exercises executive, judicial, and legislative power, a strict application of the separation of powers doctrine would make the mere existence of an agency unconstitutional); McKay v. N.H. Comp. Appeals Bd., 143 N.H. 722, 732 A.2d 1025 (1999)(separation of powers doctrine requires some overlapping and duality as a matter of practical and essential expediency). Indeed, the fundamental purpose of the doctrine is not to create three mutually exclusive departments of government, but to prevent one department from exercising power that is essential to another department’s exercise of its constitutionally defined functions. Colo. Gen. Assembly v. Lamm, 700 P.2d 508 (Colo.1985).

Employer maintains, however, that pursuant to §§ 8^43-201 and 8-43-301, ALJs and the Panel have the power to enforce workers’ compensation orders. According to employer, these orders involve private rights stemming from common law, and their rulings are binding without the parties’ consent. Consequently, employer argues, ALJs and the Panel exercise functions essential to the judicial branch, in violation of article III. We disagree.

1. Judicial Power

Traditionally, judicial power has been defined as consisting of three elements: (1) examination of the “truth of the fact,” (2) determination of the “law arising upon that fact,” and (3) ascertainment and application of the remedy. See, e.g., Union Colony v. Elliott, 5 Colo. 371 (1880)(eiting Justice Blackstone). Not every exercise of duties judicial in nature, however, is necessarily an exercise of “judicial power.” Indeed, many administrative officials are required to make determinations of fact and apply the law thereto. It is generally agreed that the essence of judicial power is the ability to carry a judgment into effect. See Firelock Inc. v. Dist. Court, 776 P.2d 1090, 1094 (Colo.1989); Cedar Rapids Human Rights Comm’n v. Cedar Rapids Cmty. Sch. Dist., 222 N.W.2d 391 (Iowa 1974).

a. Quasi-Judicial Power

We agree with employer that an administrative agency cannot validly exercise a purely judicial function. See City & County of Denver v. Lynch, 92 Colo. 102, 106, 18 P.2d 907, 909 (1932) (“It is universally held that the legislative department is powerless to confer judicial duties upon the officials of other departments.”). However, the agency may nevertheless possess quasi-judicial powers that blend legislative and judicial characteristics, so long as the legislature retains authority to effectively change the agency’s rules and the courts can effectively correct errors made in the determination of cases. See 1 Frank E. Cooper, State Administrative Law 17 (1965).

Here, the General Assembly has granted to ALJs and the Panel quasi-judicial power with limited jurisdiction to conduct administrative hearings, make findings, and render administrative decisions thereon, in workers’ compensation claims arising between an employer and employee. See Ontario Mining Co. v. Indus. Comm’n, 86 Colo. 206, 280 P. 483 (1929). But this exercise of judgment and discretion does not involve pure judicial power in the constitutional sense. Cf. People ex rel. Hubbard v. Colo. Title & Trust Co., 65 Colo. 472, 178 P. 6 (1918)(public utilities commission’s exercise of judgment and discretion as incidental to the administration of law is not the exercise of judicial power within the meaning of article III); Am. Sulphur & Mining Co. v. Brennan, 20 Colo.App. 439, 446, 79 P. 750, 752 (1905)(“mere fact that duties are imposed upon officers which require the exercise of judgment and discretion does not of itself render their proceedings conducted in pursuance of their authority judicial, in the sense in which the term is used in the Constitution”); Goodrum v. Asplundh Tree Expert Co., 824 S.W.2d 6 (Mo.1992)(citing De May v. Liberty Foundry Co., 327 Mo. 495, 37 S.W.2d 640 (1931); commission is not vested with judicial power in the sense in which the term is used in article III); Wylie Corp. v. Mowrer, 104 N.M. 751, 726 P.2d 1381 (1986)(workers’ compensation commission is no more “purely judicial” than are other administrative agencies); Mallatt v. Luihn, 206 Or. 678, 294 P.2d 871 (1956)(administrative officials do not exercise judicial power in the traditional sense of the word).

Employer’s contention to the contrary notwithstanding, neither an ALJ nor the Panel has the power to carry a judgment into effect. By the specific terms of the Act, only a court of competent jurisdiction has the power to enforce the payment of orders issued by ALJs or the Panel by reducing such an award to judgment. See § 8-43-304, C.R.S.2002 (any employer or insurer who refuses to obey a lawful order issued by an ALJ or the Panel shall be subject to the order reduced to judgment by a court of competent jurisdiction); § 8 — 13—108(3), C.R.S.2002 (certified copy of an award of director, ALJ, or Panel may be filed with the clerk of the district court, the recording of which shall have all the effect of a judgment of the district court); Hard v. Indus. Comm’n, 174 Colo. 51, 482 P.2d 353 (1971); Passaretti v. Indus. Comm’n, 711 P.2d 1285 (Colo.App.1985).

Thus, the awards and determinations of ALJs and the Panel, including any penalties imposed, lack judicial finality because they are not enforceable by execution or other proceedings, see C.R.C.P. 69, until a district court enters a binding judgment thereon. See Cedar Rapids Human Rights Comm’n v. Cedar Rapids Cnty. Sch. Dist., supra (when the school district failed to comply with the commission’s orders, it was necessary to file a petition with the district court to order compliance; the commission was without final authority to decide and render an enforceable judgment).

The General Assembly has explicitly made the exercise of the powers conferred upon ALJs and the Panel subordinate to the judiciary by providing for a review as of right by this court for errors of law and findings of fact that are unsupported by the evidence. See §§ 8 — 13-307, 8-43-308, C.R.S.2002; cf. Larrick v. N. Kiowa Bijou Mgmt. Dist., 181 Colo. 395, 510 P.2d 323 (1973)(because the ground water commission’s determinations are appealable to the courts, no violation of separation of powers); Carrillo v. Compusys, Inc., 122 N.M. 720, 930 P.2d 1172 (N.M.Ct.App.1996)(workers’ compensation administration is not part of the judiciary as appeals are taken from orders of the worker’s compensation judge to the judiciary).

Therefore, we conclude that §§ 8-43-201 and 8 — 13-301 of the Act do not undermine the purpose of article III by preventing the judicial branch of government from exercising power that is essential to its proper functioning. Indeed, the Act no more confers pure judicial authority upon the workers’ compensation commission than do the statutory schemes granting quasi-judicial authority to Colorado’s public utilities commission, board of land commissioners, and many other administrative agencies that have been upheld as constitutional. See People ex rel. Hubbard v. Colo. Title & Trust Co., supra (public utilities commission); Am. Sulphur & Mining Co. v. Brennan, supra (board of land commissioners); see also Firelock Inc. v. Dist. Court, supra.

b. Private Rights

Relying on Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932), and Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), employer next contends that even if ALJs and the Panel do not exercise judicial power in the constitutional sense of the term, they are nonetheless prohibited by the doctrine of separation of powers from making “nonjudicial determinations of fact and law” in matters involving private rights arising out of common law, which, according to employer, include workers’ compensation cases. We agree with employer that the considerations underlying Article III of the United States Constitution are similar and therefore relevant to an analysis of the doctrine of separation of powers under article III of the Colorado Constitution. See State v. Pena, 911 P.2d 48, 55 n. 10 (Colo.1996). However, when we analyze these decisions of the United States Supreme Court in light of the more adaptive approach set forth by the Court in subsequent opinions, we cannot conclude that the Act involves purely private rights.

The public rights doctrine was first set forth in Den v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 284, 15 L.Ed. 372 (1855), in which the Supreme Court stated that “there are matters involving public rights which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which [C]on-gress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.” Thus, pursuant to the powers conferred upon it, Congress may create “legislative courts” to serve as “special tribunals to examine and determine various matters, arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it.” Ex parte Bakelite Corp., 279 U.S. 438, 451, 49 S.Ct. 411, 413, 73 L.Ed. 789 (1929).

The rationale behind the doctrine was that because Congress is free to delegate such matters to nonjudicial executive determination, “there can be no constitutional objection to Congress’ employing the less drastic expedient of committing their determination to a legislative court or an administrative agency.” Indeed, the public rights doctrine is based upon a distinction between matters that could be determined by the executive and legislative branches and matters that are “inherently judicial.” Congress cannot “withdraw from [Art. Ill] judicial cognizance any matter which, from its nature, is the subject of a suit at the common law.” N. Pipeline Constr. Co. v. Marathon Pipe Line Co., supra, 458 U.S. at 68-70, 102 S.Ct. at 2870-71 (citing Den v. Hoboken Land & Imp. Co., supra, 59 U.S. at 284).

In Crowell v. Benson, supra, the Court went beyond its previous cases, however, in ratifying initial adjudication by non-Article III judges in private rights cases, so long as the “essential attributes” of judicial power remained in an Article III court. To retain the “essential attributes” of decisionmaking in an Article III court, Crowell insisted upon de novo review of the agency’s factual and legal decisions.

Subsequently, in Northern Pipeline, the Supreme Court held unconstitutional the authority granted to non-Article III bankruptcy judges under the Bankruptcy Act of 1978. That Act had enabled bankruptcy judges to adjudicate common law rights involving debtors, to render final judgments, and to issue binding orders, without the litigants’ consent and subject only to deferential appellate review. The Court stated that Congress can create agencies as adjuncts to Article III judges, but that the “essential attributes” of initial decisionmaking must remain with Article III courts. The court concluded appellate review by an Article III judge did not satisfy this standard.

The decision in Northern Pipeline was sharply criticized. Commentators argued that the Court’s holding was rigid, unworkable, and out of touch with the needs and practices of the modern administrative state, and that administrative agencies routinely adjudicate private as well as public disputes. In few cases, if any, did an Article III court exercise more than appellate review and they argued that if the Court adhered to the plurality opinion in Northern Pipeline, many accepted administrative agencies could not be justified.

The Court decided Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 587-88, 105 S.Ct. 3325, 3336, 87 L.Ed.2d 409 (1985), against this backdrop of criticism and concern. See Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III, 101 Harv. L.Rev. 915, 929 (1988).

In Thomas, recognizing that a strict construction of Article III was not possible “in this area of ‘frequently arcane distinctions and confusing precedents,’ ” the Supreme Court upheld as constitutional the power granted to non-Artiele III arbitrators to make final decisions on compensation claims submitted to the Environmental Protection Agency, subject to review by an Article III court only for “fraud, misrepresentation, or other misconduct.” The Court stated that pursuant to its constitutional powers under Article I, Congress “may create a seemingly ‘private’ right that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary.” Thomas v. Union Carbide Agric. Prods. Co., supra, 473 U.S. at 593-94, 105 S.Ct. at 3339-40.

The Court distinguished Thomas from Northern Pipeline on the basis that the right to compensation under the statutory scheme in Thomas did not replace a right to such compensation under traditional common law. Thomas v. Union Carbide Agric. Prods. Co., supra, 473 U.S. at 584, 587, 105 S.Ct. at 3334, 3336; cf. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., supra (contract claims at issue were a matter of state law); Crowell v. Benson, supra (replacing traditional admiralty negligence action with administrative workers’ compensation scheme); see also Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986)(risk that Congress may have improperly encroached upon the judicial branch is magnified when Congress withdraws from an Article III court matters which are the subject of suit at common law and grants the decision of these matters to non-Article III tribunals).

The Court was also persuaded that the statutory scheme did not violate separation of powers because, although the dispute involved two private parties, it had many of the characteristics of a public rights case. The Court noted that the rights asserted were purely statutory and arose from a regulatory scheme designed to promote the public purpose of safeguarding the public health. Thomas v. Union Carbide Agric. Prods. Co., supra, 473 U.S. at 589, 105 S.Ct. at 3337.

Similarly, in the workers’ compensation scheme at issue here, the rights provided by the Act are purely statutory, Peterkin v. Indus. Comm’n, 698 P.2d 1353 (Colo.App.1985), aff'd, 729 P.2d 977 (Colo.1986); Indus. Comm’n v. Carpenter, 102 Colo. 22, 76 P.2d 418 (1938), and did not exist at common law, Chartier v. Winslow Crane Serv. Co., 142 Colo. 294, 350 P.2d 1044 (1960); Miller v. Denver Post, Inc., 137 Colo. 61, 322 P.2d 661 (1958); Indus. Comm’n v. Plains Util. Co., 127 Colo. 506, 259 P.2d 282 (1953).

Prior to the Act, employees injured in the course of employment were required to prove negligence on the part of their employer in order to recover for injuries. Since the Act was enacted, employees may recover compensation from their employers for job-related injuries regardless of fault. See Frohlick Crane Serv., Inc. v. Mack, 182 Colo. 34, 510 P.2d 891 (1973); Colo. Springs Disposal v. Indus. Claim Appeals Office, 58 P.3d 1061 (Colo.App.2002)(Act provides compensation to employee even though he or she may be negligent and employer is not negligent; employer is immunized from tort claims because it assumes burden of compensating employees for all work-related injuries).

The Act defines both the terms of compensation to the injured employee and the procedures for arriving at the proper amount of compensation. Cf. Thomas v. Union Carbide Agric. Prods. Co., supra. ALJs and the Panel possess only such power as is conferred upon them by the Act, and they “cannot exercise any jurisdiction, exert any powers, perform any duties, or assume any authority unless the right so to do is given [them] by statute.” Miller v. Denver Post, Inc., supra, 137 Colo. at 69-70, 322 P.2d at 665 (quoting Md. Cas. Co. v. Indus. Comm’n, 116 Colo. 58, 178 P.2d 426 (1947)); cf. Pub. Utils. Comm’n v. Colo. Motorway, Inc., 165 Colo. 1, 437 P.2d 44 (1968)(publie utilities commission is a creature of statute whose power and scope of authority is controlled by the act upon which it relies).

As in Thomas, the Colorado workers’ compensation scheme has many characteristics of a public rights case and serves the legitimate purpose of safeguarding the public health. The danger to public health of workers who are injured in industrial activities led the General Assembly to enact the workers’ compensation scheme as an appropriate method of dispute resolution. See In re Hampton v. Dir. of Div. of Labor, 31 Colo.App. 141, 500 P.2d 1186 (1972).

Given the nature of the right at issue and the concerns motivating the General Assembly, we conclude that granting ALJs and the Panel the task of hearing and determining workers’ compensation matters does not diminish the likelihood of impartial decison-making, nor does it threaten the role of the judiciary. To hold otherwise would “defeat the obvious purpose of the legislation to furnish a prompt, continuous, expert and inexpensive method for dealing with a class of questions of fact which are peculiarly suited to examination and determination by an administrative agency specially assigned to that task.” Thomas v. Union Carbide Agric. Prods. Co., supra, 473 U.S. at 590, 105 S.Ct. at 3338 (quoting Crowell v. Benson, supra, 285 U.S. at 46, 52 S.Ct. at 291); see also State v. Esser, 30 P.3d 189 (Colo.2001)(purpose of Act is to compensate injured workers, while controlling costs and minimizing claim delays).

Moreover, we note, in Thomas, the Court found that the statutory scheme, which provided limited review by an Article III court of the arbitrator’s findings and determinations for fraud, misconduct, or misrepresentation, was sufficient to preserve the appropriate exercise of judicial function by protecting against arbitrators who abuse or exceed their powers. Thus, pursuant to the decision in Thomas, de novo review is no longer required. Thomas v. Union Carbide Agric. Prods. Co., supra, 473 U.S. at 592, 105 S.Ct. at 3339.

Similarly, here, review by this court of the Panel’s final orders for errors of law and abuse of discretion is sufficient to protect the proper exercise of judicial function. This scheme is consistent with the purpose of the Act, which is to avoid congestion of the courts with piecemeal litigation and to provide a method whereby claims arising out of work-related injuries can be resolved in a just and speedy manner. See Indus. Comm’n v. Globe Indem. Co., 145 Colo. 453, 358 P.2d 885 (1961); cf. Huizar v. Allstate Ins. Co., 952 P.2d 342 (Colo.1998)(de novo review of workers’ compensation claims not required).

c. Consent

Employer maintains, however, that even under the rationale of more recent pronouncements of the Supreme Court, §§ 8-43-201 and 8-43-301 nevertheless violate Article III because the parties to workers’ compensation proceedings do not have the option of consenting to a hearing and determination by an ALJ. We disagree.

Employer relies primarily on Commodity Futures Trading Commission v. Schor, supra. "In that ease, the Supreme Court upheld the authority of the commission because parties had the option to resolve their disputes administratively or in ’ district court. However, the Court explained that, in determining the extent to which a statute conferring adjudicatory power to a non-Article III tribunal encroaches upon the judicial branch, it was necessary to weigh a number of factors, “with an eye to the practical effect that the congressional action will have on the constitutionally assigned role of the federal judiciary.” Commodity Futures Trading Comm’n v. Schor, supra, 478 U.S. at 851, 106 S.Ct. at 3257. Among the factors cited were: (1) the extent to which the essential attributes of judicial power are reserved to Article III courts, (2) the extent to which non-Article III courts exercise the range of jurisdiction and power normally vested only in Article III courts, (3) the origins and importance of the right to be adjudicated, and (4) the concerns that prompted Congress to depart from the requirements of Article III.

The Court noted that “bright-line rules cannot effectively be employed to yield broad principles applicable in all Article III inquiries,” and that “due regard must be given in each case to the unique aspects of the congressional plan at issue and its practical consequences in light of the larger concerns that underlie Article III.” Commodity Futures Trading Comm’n v. Schor, supra, 478 U.S. at 857, 106 S.Ct. at 3260. The Court did not reveal, however, the extent to which a congressional scheme impermissibly threatens the integrity of the judicial branch when, as here, the litigants have not consented to the administrative agency’s jurisdiction.

Nevertheless, we are convinced that §§ 8-43-201 and 8-43-301 leave far more of the “essential attributes of judicial power” to Colorado courts than did that portion of the Bankruptcy Act found unconstitutional in Northern Pipeline. The Colorado Act, like the agency model approved in Crowell and Schor, deals only with a particularized area of law, and the rights to be adjudicated in the employer-employee relationship are of great importance to the public health and welfare in that they provide a method by which workers’ compensation matters may be speedily and justly resolved. Indeed, the General Assembly created the Act to provide quick and efficient delivery of benefits for job-related injuries. Serna v. Kingston Enters., 72 P.3d 376 (Colo.App.2002).

Further, ALJs and the Panel, unlike the bankruptcy courts in Northern Pipeline, do not exercise all the ordinary powers of courts. They may not, inter alia, preside over jury trials or issue sanctions for contempt. See § 8^3-207(l)(p), C.R.S.2002 (ALJ cannot impose sanctions for contempt for willful failure to comply with an order imposed by the ALJ).

2. Conclusion

Our conclusion that the General Assembly’s grant of limited authority in §§ 8-43-201 and 8-43-301 to ALJs and the Panel over the area of workers’ compensation matters does not create a substantial threat to the separation of powers is consistent with authority in the majority of other jurisdictions. See Medina v. Gulf Coast Linen Servs., 825 So.2d 1018 (Fla.Dist.Ct.App.2002)(legislature’s investment in the judge of compensation claims of authority to determine whether claimant has committed fraud in obtaining compensation benefits did not violate separation of powers as judge merely determined worker’s entitlement to benefits); Breimhorst v. Beckman, 227 Minn. 409, 35 N.W.2d 719 (1949)(vesting by the legislature in the industrial commission of quasi-judicial powers, including the power to determine facts and apply the law thereto, does not violate separation of powers doctrine, as long as the commission’s awards and determinations are subject to court review and are not enforceable by execution in the absence of a binding court judgment); Walters v. Blackledge, 220 Miss. 485, 71 So.2d 433 (1954)(Mississippi workmen’s compensation law does not violate separation of powers doctrine, as boards or commissions are merely administrative agencies that do not have final authority to decide and render enforceable judgments); McKay v. N.H. Comp. Appeals Bd., supra (workers’ compensation act’s compelled adjudication of the underlying facts by an administrative body does not offend the separation of powers doctrine); Carrillo v. Compusys, Inc., supra (workers’ compensation administration was created by statute to provide administrative system for quasi-judicial adjudication of disputes arising from job-related injuries; vesting that power administratively, instead of in the courts, does not threaten the constitutional separation of powers reserved to the judiciary); Evanhoff v. State Indus. Accident Comm’n, 78 Or. 503, 154 P. 106 (1915)(statute creating state industrial accident commission composed of three commissioners who were charged with the administration of the act did not contravene the state constitution’s declaration of separation of powers).

C. District Court Original Jurisdiction

Employer also contends that § 8-43-201, which confers jurisdiction upon ALJs to hear and decide all matters arising under the Act, conflicts with Colorado Constitution article VI, § 9(1). Again, we disagree.

Article VI, § 9(1) provides, as pertinent here, that “district courts shall be trial courts of record with general jurisdiction, and shall have original jurisdiction in all civil, probate, and criminal cases, except as otherwise provided herein.” Although this constitutional provision confers broad jurisdiction on district courts, the General Assembly may limit that jurisdiction. See State v. Borquez, 751 P.2d 639 (Colo.1988).

In MGM Supply Co. v. Industrial Claim Appeals Office, supra, a division of this court concluded that § 8-43-201 does not violate article VI, § 9(1). We agree with the rationale of that decision and find it to be disposi-tive. Workers’ compensation cases are not ordinary civil disputes between “private parties litigating private rights” that must be resolved in a trial court. The parties in workers’ compensation actions have expressly surrendered their common law rights, remedies, and proceedings in exchange for the benefits of the Act, which did not exist at common law — specifically, compensation to the employee for job-related injuries regardless of fault and immunity for the employer from common law claims. See Frohlick Crane Serv., Inc. v. Mack, supra; MGM Supply Co. v. Indus. Claim Appeals Office, supra.

Contrary to employer’s contention, Moore v. Roemer, 560 So.2d 927 (La.Ct.App.), aff'd, 567 So.2d 75 (La.1990), superseded by constitution as stated in Pope v. State, 792 So.2d 713 (La.2001), is inapplicable here. There, the court determined that workers’ compensation claims are civil matters within the original jurisdiction of the district court. The court concluded that the language in Louisiana’s workers’ compensation statute that costs in workers’ compensation matters may be awarded “as in other civil proceedings” indicated an intent by the legislature that the worker’s compensation scheme was a civil proceeding.

Here, however, employer has failed to point out, and we are unaware of, any similar provision indicating an intent by the General Assembly that Colorado workers’ compensation matters be civil proceedings.

Thus, we conclude that employer has failed to overcome the presumption that § 8^43— 201 is valid and constitutional, and the ALJ’s order will not be set aside on this basis.

II. Abuse of Discretion

Employer also challenges the Panel’s order as an abuse of discretion. We disagree.

A. Causation

Claimant alleged that he was injured on March 21, 2001, when the pliers he was using came loose, hit him in the face, and knocked him backwards, resulting in injury to his lip and a broken dental bridge. Claimant subsequently alleged that the injury aggravated his preexisting neck and shoulder pain.

At the hearing, employer presented the results of an independent medical examination (IME), which concluded that there was no causal connection between the industrial accident and claimant’s neck condition. The IME physician opined that MRI test results indicated claimant’s complaints were consistent with a degenerative disease of the cervical spine and that there were no objective studies suggesting a causal relationship between the work incident and claimant’s neck problems.

On claimant’s motion, the ALJ ruled that the record would remain open, giving claimant the opportunity to rebut the opinion of the IME physician with deposition testimony from his own expert, who was also his treating neurologist.

Claimant’s expert admitted that the MRI studies from 1999 and 2001 showed no apparent structural change in the cervical spine. However, the expert opined that both MRI and EMG testing would not necessarily provide objective findings even when a serious injury had been sustained. Relying upon claimant’s report of significant changes following the accident, the expert concluded that it had contributed to the progression of claimant’s neck and upper extremity problems.

Crediting the testimony of claimant and his expert, the ALJ found it more probable than not that the industrial injury had aggravated and accelerated claimant’s preexisting cervical problems and caused the need for further medical treatment. The ALJ also concluded that other medical evidence in the record supported the expert’s opinions. Therefore, the ALJ determined that claimant had sustained his burden of proof that a compensable aggravation of his preexisting cervical condition had occurred.

The Panel upheld the ALJ’s determination on review.

B. Prehearing Order

Employer contends that the ALJ erred in allowing claimant to submit the rebuttal testimony of his expert after the hearing and in failing to enforce a prehearing order, which required all depositions to be completed prior to the evidentiary hearing. We disagree.

The prehearing order at issue here directed any party who had a problem filing a medical deposition within the established time constraints prior to the evidentiary hearing to schedule another prehearing. It is undisputed that claimant did not request another preliminary hearing before he filed a motion seeking permission to submit the posthearing deposition of his expert. However, his motion was filed in response to employer’s motion to endorse the IME physician as a witness, which was granted over claimant’s objection, only eight days before the hearing. In his motion, claimant asserted that he had not yet received the IME repoi't and that he anticipated it would necessitate rebuttal testimony from his medical expert. Claimant also stated that his expert would not be available to testify until after the hearing date, which had been rescheduled pursuant to a continuance requested by employer.

Claimant did not receive the IME report until the day before the hearing. He orally renewed his motion at the hearing and stipulated that employer could also submit rebuttal testimony by posthearing deposition. Taking note of his discretionary authority to permit posthearing depositions, the ALJ granted claimant’s motion.

Employer argues that the prehearing order issued by the preliminary administrative law judge (PALJ) was binding on the parties and the law of the case. Employer asserts that by failing to defer to that order, the ALJ improperly nullified it. We are not persuaded.

As the Panel pointed out in its order, § 8-43-207(l)(i), C.R.S.2002, provides that upon written motion an ALJ may grant reasonable extensions of time for the taking of any action contained in this article if good cause is shown. Section 8 — 43—207(l)(j), C.R.S.2002, also authorizes an ALJ to adjourn a hearing to a later date for the taking of additional evidence for good cause shown. Dep’t of Labor & Employment Rule VIII(I)(2), 7 Code Colo. Regs. 1101-7, permits the ALJ to admit deposition testimony prior to the conclusion of the hearing.

As the Panel concluded, an ALJ may admit a posthearing deposition as was done in this ease. See IPMC Transp. Co. v. Indus. Claim Appeals Office, 753 P.2d 803 (Colo.App.1988)(the ALJ has wide discretion in the conduct of evidentiary proceedings, including the decision to permit the taking of posthear-ing evidence). Further, the admission of posthearing evidence may be necessary to satisfy the requirements of due process where such evidence may affect the outcome of a claim for benefits. See Potomac Ins. Co. v. Indus. Comm’n, 744 P.2d 765 (Colo.App.1987)(hearing officer properly accepted additional testimony following remand where it was necessary to determine whether coverage existed).

We conclude that good cause was established to support the ALJ’s determination that such evidence would be accepted. Although the expedited time frame was imposed pursuant to claimant’s request, that did not diminish his right to due process. See Delaney v. Indus. Claim Appeals Office, 30 P.3d 691 (Colo.App.2000)(claimant given opportunity to submit division-sponsored IME report after hearing where permanent benefits were at issue, even though she resisted employer’s request for a continuance).

Although the orders of a PALJ are binding upon the parties, see § 8-43-207.5(3), C.R.S. 2002, the statute does not confer exclusive jurisdiction in the PALJ to determine discovery matters or evidentiary disputes. Pursuant to § 8-43-207.5(1), C.R.S.2002, a pre-hearing conference may be requested any time, but at least ten days prior to the formal adjudication on the record before an ALJ. In view of the timing of the IME report, it would have been impractical, if not impossible, for claimant to have requested a pre-hearing conference.

Employer has presented no authority which convinces us that an ALJ lacks authority to override the ruling of a PALJ, and we conclude that the circumstances occurring here after the prehearing order lessened its binding effect. Not only was the ALJ presented with claimant’s renewed request at the hearing, but that request was necessitated by time constraints arising immediately prior to the hearing, and the request involved evidence having the potential to affect the outcome. Thus, the ALJ did not abuse his discretion in granting claimant’s motion.

Employer relies on People v. Trujillo, 784 P.2d 788 (Colo.1990), and People v. Jordan, 891 P.2d 1010 (Colo.1995), for the proposition that deference must be accorded an interlocutory order. But, these cases involved the direct appeal to the supreme court of a trial court’s suppression ruling and did not involve the trial court’s authority to override a preliminary order. Thus, employer’s reliance is misplaced.

C. Good Cause

We also reject employer’s contention that the Panel improperly inferred the good cause necessary to accept the posthearing depositions. Claimant’s expert was not under subpoena at the time of the hearing. Thus, his unavailability did not, by itself, establish the requisite good cause. See Dep’t of Labor & Employment Rule VIII(C)(2)(c)(2), 7 Code Colo. Regs. 1101-7. Nevertheless, we consider the totality of the circumstances more than sufficient to provide the good cause necessary for the ALJ’s order.

The order is affirmed.

Judge STERNBERG and Judge HUME concur.


author: Judge WEBB.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lamont A. HOWARD, Defendant-Appellant.
    No. 01CA2465.
    Colorado Court of Appeals, Div. II.
    July 31, 2003.
    Rehearing Denied Oct. 9, 2003.
    Certiorari Denied May 10, 2004.

      Ken Salazar, Attorney General, Karen E. Lorenz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    David S. Kaplan, Colorado State Public Defender, Elisabeth Hunt White, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const, art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.

   Opinion by

Judge WEBB.

Defendant, Lamont A. Howard, appeals the judgment of conviction entered on a jury verdict finding him guilty of second degree assault, a class four felony in violation of § 18 — 3—203(l)(g), C.R.S.2002, and third degree assault, a class one misdemeanor in violation of § 18-3-204, C.R.S.2002, both for biting one victim, and of third degree assault for striking another victim. The trial court sentenced defendant to six years in the Department of Corrections on the felony, with the sentences on the two misdemeanor convictions to run concurrently.

Defendant alleges insufficiency of the evidence of specific intent to cause serious bodily injury, error for failure to instruct on provocation, and failure to merge the second and third degree assault convictions. We remand for correction of the mittimus, but otherwise disagree and therefore affirm.

A homeowner found defendant in his front yard, unconscious and bleeding, and took him to a hospital. Once there defendant said he did not want treatment and remained in the homeowner’s car. The police were called. Defendant then told an officer that he might have overdosed and accompanied the officer into the emergency room. However, upon questioning by a nurse, he became agitated and defensive, told the hospital staff not to touch him, and demanded to be released.

Nevertheless, he was wheeled into a trauma room and placed on a bed for examination. He struggled and multiple staff members sought to restrain him. A private security guard applied a painful “compliance hold” under his jaw. When she released this hold, he turned his head and bit off the tip of her finger. During the struggle, he also struck a nurse who was attempting to insert an intravenous needle.

A test of defendant’s blood revealed a high level of an anti-epileptic prescription medication, an alcohol level of .258, and cocaine.

I.

Defendant first argues that, because of his drug and alcohol intoxication, the evidence of specific intent for the second degree assault conviction was insufficient. We disagree.

In reviewing a challenge to the sufficiency of the evidence, we consider the evidence in the light most favorable to the People, giving the People the benefit of every reasonable inference that might be drawn from the evidence. Kogan v. People, 756 P.2d 945 (Colo.1988); People v. Martinez, 36 P.3d 154 (Colo.App.2001).

Second degree assault under § 18-3-203(l)(g) requires specific intent to cause bodily injury. Specific intent may be inferred from a defendant’s conduct and the overall circumstances. People v. White, 191 Colo. 353, 553 P.2d 68 (1976). The jury decides whether intoxication precludes formation of the requisite specific intent. People v. White, supra.

Here, the parties presented conflicting evidence concerning defendant’s mental state. Viewed in the light most favorable to the People, the record includes testimony that although visibly intoxicated, defendant seemed capable of making decisions, was neither confused nor disoriented, had control over his body, and was clear in his speech. The jury could disregard testimony of defendant’s expert concerning the likely effect of his intoxication. See Thiele v. State, 30 Colo.App. 491, 495 P.2d 558 (1972).

Accordingly, we discern sufficient evidence of specific intent to sustain the guilty verdict on second degree assault.

II.

Defendant next contends that, because he was being restrained against his will and subjected to a painful compliance hold, the trial court should have instructed the jury on provocation. In summation, defense counsel argued that defendant was only trying to defend himself, but did not request a provocation instruction. Defendant now asserts that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), provocation must be treated as an element of second degree assault, and therefore the lack of a provocation instruction must be reviewed for constitutional harmless error. We do not agree with defendant’s application of Ap-prendi. Therefore, we review for plain error, and we find none.

A.

We reject defendant’s contention that Ap-prendi requires us to apply constitutional harmless error review.

Under the second degree assault statute, unless the act causing injury is done in “a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person causing the injury sufficiently to excite an irresistible passion in a reasonable person,” the offense is a class four felony. Section 18-3-203(2)(b), C.R.S. 2002. If provocation is at issue and the People fail to establish lack of provocation, then second degree assault is a class six felony. Section 18-3-203(2)(a), C.R.S.2002.

Presumptive sentences for class six felonies range from one year to eighteen months in prison, while sentences for class four felonies run from four to six years. Section 18-1.3^01(l)(a)(V)(A), C.R.S.2002.

The supreme court has not expressly addressed the provocation clause in the second degree assault statute, but has interpreted identical language in the first degree assault statute, § 18-3-202(2)(b), C.R.S.2002. Rowe v. People, 856 P.2d 486 (Colo.1993). This identical language was added to both statutes in the same session of the General Assembly. Hence, we perceive no reason to interpret the two sections differently. See People v. Suazo, 867 P.2d 161 (Colo.App.1993)(applying Rowe to the former § 18-3-209, which cross-referenced the second degree assault statute).

In Rowe, the supreme court concluded that the provocation language in § 18-3-202(2)(b) is a sentence mitigating factor which does not involve an element of the offense, give rise to an affirmative defense, or create a separate offense. In People v. Garcia, 28 P.3d 340 (Colo.2001), the supreme court expressly rejected the argument that unpreserved error in failing to instruct on provocation was subject to constitutional harmless error review.

Nevertheless, defendant argues that even if provocation is not an element, it operates in the same manner as a statutory penalty enhancer because both involve factual determinations that influence the penalty. Therefore, according to defendant, under Ap-prendi — which was announced after Rowe and not cited in Garcia — provocation must be determined by the jury. Assuming, without deciding, that an unpreserved Apprendi violation would require constitutional harmless error review, we are not persuaded that provocation operates as a penalty enhancer.

Apprendi held that any fact which increases the range of punishment beyond the statutory maximum, other than that of a prior conviction, must be treated as an element of the offense and determined by a jury. See People v. Martinez, 32 P.3d 520 (Colo.App.2001).

However, divisions of this court have repeatedly distinguished Apprendi where the mere fact of conviction exposes a defendant to a range within which the defendant is sentenced. See, e.g., People v. Rivera, 62 P.3d 1056 (Colo.App.2002); People v. Allen, 43 P.3d 689 (Colo.App.2001).

When applying Apprendi, “the label which the legislature applies to the fact — ■ sentencing factor or element — is irrelevant because inquiry properly focuses on effect, not form.” Woldt v. People, 64 P.3d 256, 263 (Colo.2003). See also Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

Accordingly, we eschew the labels used in Rowe v. People, supra, and focus instead on whether provocation is a fact that impermis-sibly increases punishment unless determined by the jury, as in Apprendi, or that allows sentencing in a range to which the defendant is already subject, as in Allen. We conclude that provocation does not increase punishment.

Under the second degree assault statute, the jury must be instructed on provocation if some evidence supports it and the defendant requests the instruction. People v. Lee, 30 P.3d 686 (Colo.App.2000). Where the instruction is proper, if the jury finds the defendant guilty, then the jury considers whether the People proved lack of provocation. The sequence of proof is described in the following pattern instruction applicable to first and second degree assault:

If you find the defendant not guilty of [a count of first, or second degree assault], you need not consider this instruction. If however, you find the defendant guilty of [that count], you must then consider the issue of provocation.
The evidence in this case has raised the issue of provocation. Provocation means that the defendant’s acts were performed, not after deliberation, but upon a sudden heat of passion caused by a serious and highly provoking act of the intended victim which affected the defendant sufficiently to excite such an irresistible passion in a reasonable person.
It is the burden of the prosecution to prove beyond a reasonable doubt a lack of provocation for the defendant’s acts.

CJI-Crim. 10:20 (1983)(emphasis supplied).

In Rowe v. People, supra, 856 P.2d at 490, the court cited with approval CJI-Crim. 10:20, pointing out that the instruction treats provocation as “an issue the jury must consider once it has found a defendant guilty.” See also People v. Garcia, supra, 28 P.3d at 345 (“Thus, we conclude that the General Assembly intended for a jury to consider the issue of provocation after determining that a defendant is guilty of second-degree murder.”).

The sequence in which the jury considers provocation distinguishes Apprendi for reasons articulated in Allen and its progeny: before the jury could consider provocation, it must already have determined that the defendant was guilty of the greater felony, and thereby was subject to the higher sentencing range for a class four felony. Thus, unlike Apprendi, the jury’s factual determination on provocation cannot increase the potential sentence. Hence, defendant has not established a basis for constitution harmless error review.

Accordingly, we conclude that failure of the trial court sua sponte to instruct the jury on provocation is subject to plain error review. See People v. Garcia, supra; cf. People v. Sepulveda, 65 P.3d 1002 (Colo.2003)(generally endorsing plain error review of unpreserved instructional error).

B.

Nevertheless, defendant asserts that the lack of a provocation, or “heat of passion,” instruction was plain error. Again, we disagree.

“Failure to instruct the jury properly does not constitute plain error where the subject of the error in the instruction is not contested at trial, or where evidence of the defendant’s guilt is overwhelming.” Bogdanov v. People, 941 P.2d 247, 255 (Colo.1997).

Here, in summation defense counsel asserted that defendant was only protecting himself, thereby arguably precluding application of the first prong of Bogdanov to defendant’s provocation argument. Hence, we turn to the second prong of Bogdanov, and consider whether the evidence, even if it warranted the provocation instruction for which defendant now argues, suffices to cast doubt on the reliability of the conviction. We conclude that it does not.

“Heat of passion is a legal theory that recognizes that sometimes circumstances conspire to cause even a reasonable person to react passionately and violently.” People v. Ramirez, 56 P.3d 89, 94 (Colo.2002)(interpreting similar language in § 18 — 3—103(3)(b), C.R.S.2002). Heat of passion involves both subjective and objective considerations: first, the defendant must have responded to the victim’s “serious and highly provoking act”; second, the victim’s act must have been “sufficient[ ] to excite an irresistible passion in a reasonable person.” Section 18-3-203(2)(a), C.R.S.2002.

However, “the only reading of ‘reasonable person’ that harmonizes and gives sensible effect to all of the statute’s provisions is one that interprets the term to mean an objectively reasonable individual and not a subjectively reasonable one possessing the individual defendant’s personality traits or defects.” People v. Dooley, 944 P.2d 590, 594 (Colo.App.l997)(interpreting similar language in § 18 — 3—104(l)(c), C.R.S.2002); see also Lanari v. People, 827 P.2d 495 (Colo.1992).

Here, even assuming defendant acted in the subjective belief of defending himself, the evidence does not show that a reasonable person in his position would have done so. After defendant accompanied the officer into the emergency room, the hospital personnel did nothing that would have led a reasonable person to revoke consent to treatment. Under these circumstances, a reasonable person in defendant’s position would have cooperated with the medical personnel as they attempted to examine and treat him under the exigent circumstances of a potential drug overdose.

Accordingly, we conclude that failure to give a provocation instruction was not plain error.

III.

Defendant next argues that the trial court erred in the final paragraph of the second degree assault elements instruction, which directed the jury to acquit “if you decide the prosecution has failed to prove each of the elements beyond a reasonable doubt” (emphasis supplied). According to defendant, the jury was effectively instructed that it could acquit him only if the People failed to prove all of the elements. We do not agree.

Defendant did not raise this issue before the trial court, and as a result we again review for plain error. See Crim. P. 52(b).

Defendant concedes this argument was rejected in People v. Freeman, 739 P.2d 856 (Colo.App.1987). However, he contends the division there relied on CJI-Crim. 9:01 and 9:02 (1983), the pattern elemental instructions have since changed, and they now provide that a defendant should be acquitted if the People failed to prove “any one or more” of the elements. See, e.g., CJI-Crim. 10:12 (Supp.l993)(instruction for second degree assault while confined). We are not persuaded.

Since the 1993 amendment to these instructions, divisions of this court have rejected this argument. See, e.g., People v. Ornelas, 937 P.2d 867 (Colo.App.1996); People v. Watson, 892 P.2d 388 (Colo.App.1994).

Moreover, despite a departure from pattern instructions, no error results if the instructions, taken together, accurately inform the jury of the law. People v. Sherman, 45 P.3d 774 (Colo.App.2001).

Here, the standard burden of proof instruction told the jury to find defendant guilty if “each and every element has been proven beyond a reasonable doubt” and to find him not guilty if “the prosecution has failed to prove any one or more of the elements.” Hence, the instructions as a whole adequately informed the jury that the People’s burden involved every element.

Accordingly, while the “any one or more” phraseology may be the better practice, we discern no plain error.

TV.

Finally, defendant asserts that the conviction of third degree assault involving the security guard should be struck, because third degree assault is a lesser included offense of second degree assault. The People concede that the conviction of third degree assault should merge into the conviction of second degree assault. We agree. See Armintrout v. People, 864 P.2d 576 (Colo.1993)(merger); People v. Thompson, 187 Colo. 252, 529 P.2d 1314 (1975)(lesser included offense).

Accordingly, on remand the conviction and sentence on this charge should be vacated.

The judgment is affirmed in part, and the ease is remanded for correction of the mitti-mus.

Judge NEY and Judge PIERCE concur.


text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lonny W. DAWSON, Defendant-Appellant.
    No. 02CA1171.
    Colorado Court of Appeals, Div. II.
    Aug. 28, 2003.
    Rehearing Denied Nov. 20, 2003.
    Certiorari Denied April 19, 2004.

      Ken Salazar, Attorney General, Karen E. Lorenz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
    Barbara K. Grant, Boulder, Colorado, for Defendant-Appellant.

       Justice BENDER would grant as to the following issue:
      Whether the district's attorney’s statements during the sentencing hearing are concessions, which were part of an enforceable plea agreement, to the extent that petitioner should have been permitted to .withdraw from the plea agreement when the court declined to follow said concessions.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const, art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.

   Opinion by

Judge WEBB.

Defendant, Lonny W. Dawson, appeals the trial court order denying his latest motion for postconviction relief. He also' appeals the judgment of conviction and sentence. We dismiss the appeal in part, affirm the order, and remand for correction of the mittimus.

Pursuant to a plea agreement, defendant pleaded guilty to two added counts of attempted sexual assault on a child, a class five felony, and the original charges against him were dismissed. The record does not include a written plea agreement, and the Crim. P. 11 advisement form does not state the position of the prosecution on sentencing. At the providency hearing, the prosecutor told the court, “I am not asking the court to find discretionary mitigating or aggravating circumstances for sentencing.”

At the sentencing hearing, the prosecutor reaffirmed that she “would not be arguing for discretionary aggravating circumstances,” but added, “that’s not to say this case doesn’t deserve that.” Defense counsel did not object to the prosecutor’s statement.

The trial court found the presence of extraordinary aggravating circumstances and sentenced defendant to consecutive terms outside of the presumptive range, plus two years of mandatory parole, pursuant to § 18-1.3-401(l)(a)(V)(A), (6), C.R.S.2002. The court did not offer defendant an opportunity to withdraw his plea before imposing sentence, and defense counsel did not request that the plea be withdrawn.

Defendant filed a timely motion for reconsideration of sentence pursuant to Crim. P. 35(b), which was denied. In this motion, defendant acknowledged that the prosecutor had not sought sentencing in the aggravated range and that the court, “on its own initiative,” had sentenced him in that range.

Defendant then filed a timely Crim. P. 35(a) and (c) motion alleging, among other things, that the sentencing court had erred by imposing aggravated range sentences without affording him the opportunity to affirm or withdraw his plea pursuant to Crim. P. 32(d). The trial court denied the motion without a hearing, but invited defendant to file another motion to withdraw his plea if “that truly is what [defendant] would like to do.” Defendant did not appeal this order.

Shortly thereafter, defendant filed a “Motion to Withdraw Plea,” in which he reasserted his claim that the sentencing court had erred by imposing aggravated range sentences without affording him the opportunity to affirm or withdraw his plea. After appointing counsel and holding a hearing, the trial court denied the motion. Defendant appeals this order.

I.

Defendant first contends the sentences imposed are inconsistent with the plea agreement, and hence Crim. P. 32(d) required the trial court to give him the opportunity to withdraw his plea upon deciding to impose aggravated range sentences. We disagree.

Initially, we note that a motion to withdraw a plea of guilty may only be made before sentence is imposed or imposition of sentence is suspended. Crim. P. 32(d). However, after sentence has been imposed, the validity of a guilty plea can be challenged under Crim. P. 35(c). See, e.g., People v. Seaney, 36 P.3d 81 (Colo.App.2000).

Here, because the trial court’s order denying defendant’s Crim. P. 35(c) motion encouraged defendant to move to withdraw his guilty plea, defendant could have been misled concerning the need to preserve this issue by instead timely appealing that Crim. P. 35(c) order. Cf. P.H. v. People, 814 P.2d 909 (Colo.1991)(counsel reasonably relied on an erroneous trial court action). Moreover, the People do not challenge defendant’s motion to withdraw his guilty plea on this basis. Hence, we will address the merits of defendant’s motion.

As pertinent here, Crim. P. 32(d) provides: If the court decides that the final disposition should not include the charge or sentence concessions contemplated by a plea agreement, as provided in Rule 11(f) of these Rules, he shall so advise the defendant and the district attorney and then call upon the defendant to either affirm or withdraw his plea of guilty or nolo conten-dere.

Defendant argues that the prosecutor’s agreement not to seek a sentence in the aggravated range constitutes a sentence concession within the meaning of Crim. P. 32(d). We are not persuaded.

Crim. P. 11(f), to which Crim. P. 32(d) refers, provides that in a plea agreement the district attorney may agree “[t]o make or not to oppose favorable recommendations concerning the sentence to be imposed if the defendant enters a plea of guilty or nolo contendere.” Crim. P. ll(f)(2)(I); see also § 16-7-301(2)(a), C.R.S.2002.

In our view, the term “sentence concessions” in Crim. P. 32(d) must refer only to the prosecution’s making or not opposing favorable recommendations, because that rule specifically cross-references Crim. P. 11(f) and does not otherwise define the term. See People v. Denton, 91 P.3d 388, 2003 WL 21939669 (Colo.App. No. 01CA2344, Aug. 14, 2003).

In People v. Wright, 194 Colo. 448, 573 P.2d 551 (1978), the supreme court concluded that, under Crim. P. ll(f)(2)(I), a favorable sentence recommendation by the prosecution is a sentence concession within the meaning of Crim. P. 32(d). Thus, the court held that a defendant must be given the opportunity to withdraw a guilty plea when the trial court elects not to follow the prosecution’s sentence recommendation. However, the court did not hold the converse: that all sentence concessions by the prosecution are sentence recommendations. See also People v. Walker, 46 P.3d 495 (Colo.App.2002).

In contrast to the facts presented in Wright, here the prosecutor only agreed, as a sentence concession, not to recommend an aggravated range sentence. The prosecutor made no affirmative recommendation of any sentence favorable to defendant. Defendant cites no Colorado case, and we have found none, applying Crim. P. 32(d) to such a plea agreement. Cf. People v. Frye, 997 P.2d 1223, 1227 (Colo.App.1999)(trial court was not required to give defendant the opportunity to withdraw his plea before imposing a sentence to probation conditioned upon his surrendering his passport, despite prosecution’s agreement not to object to defendant’s being permitted to travel abroad).

Even if we accept defendant’s assertion that the prosecutor agreed not to oppose defendant’s argument for a presumptive range sentence, we are not persuaded that the prosecutor thereby agreed “not to oppose favorable recommendations” within the meaning of Crim. P. 11(f). In our view, the power to make a favorable recommendation on sentencing resides with the prosecutor and the probation department, not with the defendant. Defendant cites no authority suggesting otherwise, and we have found none.

Had the drafters intended that an agreement not to oppose a defendant’s position on sentencing constituted a favorable recommendation, Crim. P. 11(f) would have been written differently. Cf Fed.R.Crim.P. 11(c)(3)(b) (when a plea agreement provides that the prosecution will recommend or not object to a particular sentence, the court must specifically advise the defendant that if the court does not accept the recommendation, the defendant nevertheless has no right to withdraw the plea).

Accordingly, we conclude that the trial court did not violate Crim. P. 32(d).

In light of this conclusion, we need not address the People’s implicit argument that the providency court satisfied the requirement of Crim. P. 32(d) by advising defendant that it was not bound by any promises or representations made to him regarding sentencing.

II.

Defendant next contends that his counsel provided ineffective assistance at the sentencing hearing by not immediately objecting to the imposition of aggravated range sentences and that the prosecutor breached her agreement not to recommend such sentences. We disagree.

A.

We reject defendant’s ineffective assistance argument because he did not present it to the trial court. See, e.g., People v. Valdez, 874 P.2d 415 (Colo.App.1993).

B.

We also reject defendant’s contention that the prosecutor breached her agreement not to seek a sentence in the aggravated range by commenting at the sentencing hearing “that’s not to say this case doesn’t deserve that,” an apparent reference to aggravated sentences.

After this comment, the prosecutor reiterated, “I’m not here arguing for discretionary aggravation.” In denying this aspect of defendant’s posteonvietion motion, the trial court reviewed the transcripts of the provi-dency and sentencing hearings, and concluded the remark “is just emphasizing that [sic] her agreement was, despite what she might otherwise think.”

At the sentencing hearing, the trial court explained at length its multiple reasons for imposing sentences in the aggravated range. These comments suggest no misunderstanding of the prosecutor’s position.

Accordingly, the record supports the trial court’s finding that the prosecutor did not breach her agreement, and we will not disturb the finding on appeal. See People v. Thomas, 853 P.2d 1147 (Colo.1993).

III.

We dismiss the appeal as to defendant’s claim that the trial court abused its sentencing discretion by considering erroneous information and by failing to consider his potential for rehabilitation.

A criminal defendant is generally entitled to one appellate review of the propriety of his or her sentence. Section 18-1-409(1), C.R.S. 2002. However, § 18-1-409(2), C.R.S.2002, states that:

No appellate court shall review any sentence which is imposed unless, within forty-five days from the date of the imposition of sentence, a written notice is filed in the trial court to the effect that review of the sentence will be sought; said notice must state the grounds upon which it is based.

See People v. Williams, 916 P.2d 624 (Colo.App.1996)(§ 18-1-409 sets time limitation for appellate court’s review of defendant’s sentence).

Here, because defendant was sentenced on March 8, 2000, he had until April 22, 2000, to appeal the court’s sentencing decision. However, he did not file his notice of appeal until June 13, 2002. Thus, § 18-1-409(2) precludes our review of this issue.

IV.

Finally, the mittimus must be amended to reflect that defendant is subject to discretionary parole under § 17-2-201(5)(a.5), C.R.S.2002, not mandatory parole, because his crimes were alleged to have been committed between August 1, 1997 and January 4, 1998. See People v. Cooper, 27 P.3d 348 (Colo.2001).

The appeal from the judgment of conviction and sentence is dismissed; the order denying defendant’s motion to withdraw his pleas is affirmed; and the case is remanded for correction of the mittimus.

Judge CASEBOLT and Judge METZGER concur.


author: Judge TAUBMAN.

text:
    Arionna CRAWFORD, Plaintiff-Appellant, v. Evan L. MELBY, individually, and Evan L. Melby, Inc., d/b/a Melby Ranch Properties, Melby Ranch, Wild Horse Mesa, Elk Park Ranch, San Luis Estates South, Rio Grande Ranchos, San Luis Valley Ranch, and Elm Estates, Defendants-Appellees.
    No. 02CA1724.
    Colorado Court of Appeals, Div. I.
    Sept. 11, 2003.
    Rehearing Denied Nov. 26, 2003.
    Certiorari Denied May 3, 2004.

      Graham Law Firm, David A. Graham, Taos, New Mexico, for Plaintiff-Appellant.
    Lester, Sigmond, Rooney & Schwiesow, Eric Schwiesow, Alamosa, Colorado, for Defendants-Appellees.
   Opinion by

Judge TAUBMAN.

Plaintiff, Arionna Crawford, appeals the judgment entered by the trial court after a bench trial in favor of defendants, Evan L. Melby and Evan L. Melby, Inc. (collectively the Melbys). The sole issue on appeal is whether the trial court erred in granting, without Crawford’s consent, the Melbys’ request to withdraw their demand for a jury trial when Crawford had paid the requisite jury fee and had not affirmatively waived her right to a jury trial after the Melbys made their request. We perceive no error and thus affirm.

Crawford was employed by the Melbys in their real estate business. She brought this action against them seeking damages based on the termination of that employment relationship. In her complaint, filed in 1998, Crawford demanded a trial by jury, but she did not pay the requisite jury fee at that time. In their answer, filed in 2000, the Melbys also demanded a jury trial, but, in contrast to Crawford, they simultaneously paid the jury fee.

In 2002, Crawford paid the jury fee. Shortly thereafter, however, the Melbys moved to withdraw their demand for a jury trial. Crawford objected, arguing that because she had paid the jury fee, the Melbys could not withdraw their demand for a jury trial without her consent. The Melbys argued that Crawford waived the right to a jury trial when she failed to pay the jury fee when she filed her complaint or within ten days of service of the last pleading directed to an issue triable by a jury.

The trial court agreed with the Melbys and ordered that the case be tried to the court. Following a bench trial, the trial court made extensive findings of fact and entered judgment in favor of the Melbys. Crawford then brought this appeal challenging the trial court’s decision allowing the Melbys to withdraw their demand for a jury trial.

C.R.C.P. 38 sets forth the procedures for exercising the right to trial by jury. C.R.C.P. 38(a) provides that any party to an action in which a jury trial is permitted may exercise that right by filing a demand and simultaneously paying the requisite jury fee. See also § 13-71-144, C.R.S.2002 (setting forth amount of the jury fee and tracking the language in C.R.C.P. 38(a) regarding who may demand a trial by jury).

C.R.C.P. 38(b) provides that a demand for a trial by jury is made “by filing and serving upon all other parties, pursuant to Rule 5(d), a demand therefor at any time after the commencement of the action but not later than ten days after the service of the last pleading directed to such issue.” A party may endorse a demand for a jury trial upon a pleading and shall pay the requisite jury fee upon the filing of the demand. See C.R.C.P. 38(b).

Once a party to an action “has exercised the right to demand a trial by jury, every other party to such action shall also pay the requisite jury fee unless such other party, pursuant to Rule 5(d), files and serves a notice of waiver of the right to trial by jury within ten days after service of the demand.” C.R.C.P. 38(c).

C.R.C.P. 38(e) describes waiver or withdrawal of a jury demand:

The failure of a party to file and serve a demand for trial by jury and simultaneously pay the requisite jury fee as required by this Rule constitutes a waiver of that party’s right to trial by jury. A demand for trial by jury made pursuant to this rule may not subsequently be withdrawn in the absence of the written consent of every party who has demanded a trial by jury and paid the requisite jury fee and of every party who has failed to waive the right to trial by jury and paid the requisite jury fee.

Similarly, C.R.C.P. 121 § 1-3 provides that:

Any party who has demanded a trial by jury and has paid the requisite jury fee and any party who has not waived the right to trial by jury and has paid the requisite jury fee is entitled to trial by jury of all issues properly designated for trial by jury unless that party waives such right pursuant to Rule 38(e).

Further, C.R.C.P. 39(a) provides, in pertinent part, that when a party demands a jury trial and pays the requisite fee, a trial shall be by jury, unless, as relevant here, “all parties who have failed to waive the right to trial by jury and paid the requisite jury fee have, in writing, waived their rights to trial by jury.”

The Melbys contend that the plain language of C.R.C.P. 38(e) provides that Crawford’s failure to file and serve a demand for trial by jury and simultaneously pay the requisite jury fee constituted a waiver of her right to trial by jury. Conversely, Crawford argues that when, as here, one party has timely filed and served a demand for trial by jury and paid the requisite fee, the request for a jury trial may not be withdrawn without the consent of the other party who has paid the jury fee and who has not affirmatively waived the right to a trial by jury. We agree with the Melbys’ construction of the rule.

In determining the meaning of procedural rules, we give the words their plain meaning, and if the language of the rules is clear and unambiguous, we need not look further to determine their meaning. Anheuser Busch, Inc. v. Indus. Claim Appeals Office, 28 P.3d 969 (Colo.App.2001). However, if the language of a rule is susceptible of different meanings, a court must attempt to ascertain the supreme court’s intention in promulgating the rule so as to carry out its intended purpose. In doing so, the court may consider not only the language of the rule, but also the reason and necessity of the rule and the objective that the rule seeks to accomplish. In re Marriage of Eisenhuth, 976 P.2d 896 (Colo.App.1999).

We conclude that C.R.C.P. 38(e) is susceptible of different meanings.

Initially, we note that the second sentence of C.R.C.P. 38(e) creates two categories of litigants who may have a right to a jury trial: (1) those who have timely demanded a trial by jury and paid the requisite jury fee; and (2) those who have not waived the right to a jury trial and have paid the requisite jury fee. The first category applies to litigants who have a right to a jury trial as a result of their own actions. The second category applies to litigants who have a right to a jury trial as a result of another party’s action in requesting a jury trial and their own action in paying the requisite fee.

As noted, C.R.C.P. 38(c) provides that once a party has exercised the right to trial by jury, the other party shall also pay the jury fee unless that party affirmatively files and serves a written notice of waiver of the right to jury trial within ten days after service of the first party’s demand for a jury trial.

One possible interpretation of these provisions, urged upon us by Crawford, is that a party does not waive the right to trial by jury when the party who has properly requested a jury trial later withdraws that request. Rather, Crawford contends, in accordance with C.R.C.P. 38(e), when the requesting party has timely demanded and paid the requisite jury fee, and the second party has paid the jury fee, the demand for a trial by jury may not be withdrawn by the first party without the consent of the second party who has paid the jury fee, but has not affirmatively waived that right by serving the first party with a written notice of waiver.

Another interpretation, based on the plain language of the applicable rules and statute, supports the trial court’s conclusion that a party does not have two opportunities to insist unconditionally on the right to trial by jury. We agree with this conclusion and determine that it is more consistent with the supreme court’s intent.

As noted, C.R.C.P. 38(e) states in pertinent part, “The failure of a party to file and serve a demand for trial by jury and simultaneously pay the requisite jury fee as required by this rule constitutes a waiver of that party’s right to trial by jury.” (Emphasis added.) Similarly, § 13-71-144 provides in pertinent part: “Failure to pay the jury fee at the time of filing the demand, and no later than ten days after the service of the last pleading directed to any issue triable by a jury, shall constitute a waiver of a jury trial by the demanding, nonpaying party.” (Emphasis added.)

Here, it is undisputed that Crawford did not pay the jury fee when she filed her complaint or within ten days after service of the last pleading directed to any issue triable by a jury. Accordingly, pursuant to C.R.C.P. 38(e) and § 13-71-144, she waived her right to a jury trial. See Unigard Sec. Ins. Co. v. Mission Ins. Co. Trust, 12 P.3d 296 (Colo.App.2000).

Once Crawford waived her right to a jury trial, that right was reinstated only conditionally by the Melbys’ proper and timely request for a jury trial. Once the Melbys withdrew their request for a jury trial, Crawford no longer had a right to insist on a jury trial.

One difficulty with Crawford’s interpretation is that she mistakenly includes herself in the second category of litigants described in C.R.C.P. 38(e) — those who have not waived the right to a jury trial and have paid the requisite jury fee. Here, while Crawford eventually paid the jury fee, she waived her right to a jury trial by not timely paying the jury fee when she filed her complaint or within ten days of the service of the last pleading directed to an issue triable by a jury. Thus, the second sentence of C.R.C.P. 38(e) does not provide a basis for Crawford to obtain a jury trial.

In our view, the second sentence of C.R.C.P. 38(e) applies when a defendant timely requests a jury trial and, in response, pursuant to C.R.C.P. 38(c), a plaintiff then timely pays the jury fee. In that situation, the plaintiff would still be entitled to a jury trial, even if the defendant attempts to withdraw his or her request for a jury trial. In contrast, here, Crawford specifically waived her right to a jury trial by not paying the jury fee in a timely manner.

Another difficulty with Crawford’s interpretation is that it would provide her with two opportunities to insist on a jury trial. In other words, having initially waived her right to a jury trial, she would then have a second opportunity to obtain a jury trial by withholding her consent after the Melbys withdrew their jury trial request. We do not believe the supreme court contemplated that a party would have two unconditional opportunities to obtain a jury trial.

Finally, we note that the trial court relied in part on Machol v. Sancetta, 924 P.2d 1197 (Colo.App.1996). There, a division of this court held that C.R.C.P. 39(b) does not afford the trial court discretion to grant an untimely request for a jury trial. The trial court here indicated that if it could exercise its discretion, it would have been inclined to grant Crawford’s request for a jury trial, but based upon Machol v. Sancetta, supra, it was without that discretion. That determination was correct, and the trial court was required to deny Crawford’s request for a jury trial.

Because Crawford’s claim is not frivolous, we deny the Melbys’ request for attorney fees and costs under C.A.R. 38(d). See Wood Bros. Homes, Inc. v. Howard, 862 P.2d 925 (Colo.1993).

The judgment is affirmed.

Judge KAPELKE and Judge LOEB concur.