Summary
In Colorado Anti-Discrimination Commission v. Continental Air Lines, Inc., 143 Colo. 590, 355 P.2d 83 (1960), we applied this principle where an appeal was taken from the final decision of an agency.
Summary of this case from State Bd. of Exam. v. Lopez-SamayoaOpinion
No. 19,215.
Decided August 15, 1960. Rehearing denied September 19, 1960.
Review of proceedings instituted before Anti-Discrimination Commission. From orders of dismissal the Commission brings error.
Writ of Error Dismissed and Cause Remanded.
1. LABOR RELATIONS — Anti-Discrimination Commission — Procedure — Findings. In proceedings before the Anti-Discrimination Commission, where a hearing has been had and a final order entered therein and a party thereto seeks review in the district court as provided by statute, the commission has no jurisdiction thereafter of its own motion to vacate, alter, amend or enlarge the order to which the review proceedings are directed.
2. ADMINISTRATIVE LAW — Agency — Authority — Orders — Modification. An administrative agency is without authority to change, alter to vacate an order entered in proceedings before it while review thereof is pending in the district court.
3. APPEAL AND ERROR — Administrative Law — Judgment — Merits of Controversy — Determination. Where orders of the Anti-Discrimination Commission were before the district court for review, and the matter was remanded to the commission with directions to make specific findings on issues, and the Commission failed to comply with such directions, it had no jurisdiction to do other than as directed by the trial court, and there being no final judgment on the merits of the controversy in the trial court, there is nothing before the Supreme Court to review on writ of error.
Error to the District Court of the City and County of Denver, Hon. William A. Black, Judge.
Mr. DUKE W. DUNBAR, Attorney General, Mr. FRANK E. HICKEY, Deputy, Mr. CHARLES S. THOMAS, Assistant, Mr. ROBERT L. NAGEL, Assistant, Mr. EDWARD MILLER, Special Assistant, for plaintiff in error Colorado Anti-Discrimination Commission.
Mr. T. RABER TAYLOR, for plaintiff in error Marlon D. Green.
Messrs. HOLLAND HART, Mr. PATRICK M. WESTFELDT, Mr. WILLIAM C. McCLEARN, Mr. WARREN L. TOMLINSON, for defendant in error.
WE will refer to plaintiff in error Marlon D. Green by name, and to all other plaintiffs in error as the Commission. Defendant in error will be referred to as Continental.
Green filed a complaint before the Commission in which he alleged that Continental unlawfully discriminated against him by reason of the fact that he is a Negro, and had refused to give him employment as an airplane pilot because of his race, notwithstanding that he was in all respects qualified for the employment he sought.
The Commission conducted extensive hearings pursuant to authority to do so as provided by C.R.S. 1953, 80-24-5 (6). At the conclusion of the hearings it entered "Findings of Fact, Conclusions of Law and Orders" in which Continental was found guilty of discriminatory and unfair employment practice in its requirement that in application forms the racial identity of an applicant for employment be shown and a photograph attached. The Commission found that Green was better qualified for the position than any applicant interviewed but was not hired because of his race. The Commission assumed the constitutionally of the Act; that it had jurisdiction to hear the complaint, and found there was a violation as charged by Green. It ordered Continental to cease and desist from the discriminatory and unfair employment practice; to give Green the first opportunity to enroll in its training school in the next course; and fixed Green's priority status as of June 24, 1957. Green was given until January 10, 1959, to indicate his willingness to enter the next pilot training course and this expression of willingness was duly filed by him. The record before us shows that the said order was signed by the "coordinator" of the Commission only and the seal of the Commission was affixed thereto.
Continental then filed a petition in the district court of the City and County of Denver in which it sought judicial review of the Commission's order. The hearing in the district court was terminated by entry of the following order:
"It is ordered by the Court that the cause and commission record be forthwith remanded to the Colorado Anti-Discrimination Commission; and
"It is further ordered by the court that said Commission make findings of fact as to the Type and Nature of business that the Petitioner is engaged in; as to whether or not it is engaged in Interstate Commerce, and a finding by the Commission as to whether or not the Petitioner by virtue of that occupation and business is subject to the Anti-Discrimination Act; and also as to whether the job in question which Mr. Green applied for was a job that actually involved interstate operations.
"It is further ordered that upon making the additional findings, the Commission return the record to this Court, and this Court will retain jurisdiction."
The court also ruled that the Commission's order was defective in that it was signed by the coordinator only.
Upon receipt of this remand from the district court the Commission entered an order which included the following:
"It is our understanding that the matter having been remanded to us by the Court, and particularly in view of the fact, as pointed out by the Court, that the purported original findings of fact and conclusions of law and Orders of December 19, 1958, were signed by the Coordinator, and are to that extent defective, that it is therefore within the Commission's jurisdiction, and upon its own motion, it does hereby, withdraw its December 19, 1958, findings of fact, conclusions of law and Orders."
Without further notice to the parties, or hearing of any kind, the Commission entered new findings and new orders consisting of nineteen typewritten pages, whereas the original document consisted of only five pages. As thus enlarged the record went back to the district court where is was held that the order of the Commission to which the proceedings for review had been instituted, having been withdrawn by the Commission, was no longer in existence and that the questions raised by the proceedings in the district court were moot. The court held that the enlarged nineteen page order of the Commission was a nullity since it had been entered without notice to the parties and without a hearing.
The record before us does not disclose that any judgment of dismissal was entered. It does, however, contain a statement by the trial judge that: "The Court will dispense with a motion for new trial and grant any aggrieved party 30 days to take such proper proceedings on appeal as they may care to." Whatever might have been intended, the trial court did not enter a final judgment which, except for stated exceptions, is essential to a review on writ of error. We might well dismiss this writ of error but to do so would only cause embarrassment and further delay. For the reason that the cause must be remanded for further consideration by the trial court we treat the matter as though a judgment of dismissal had actually been entered since it is quite apparent that the trial court intended to accomplish that result.
Question to be Determined.
Where a hearing has been had before the Anti-Discrimination Commission and a final order has been entered; and where a party to those proceedings seeks review by the district court as provided by statute; does the Commission thereafter have jurisdiction, of its own motion, to vacate, alter, amend or in any manner enlarge upon the order to which the proceedings on review are directed?
The question is answered in the negative. The pertinent portion of the statute (C.R.S. '53, 80-24-8 (3)) provides that when the petition for review is filed:
"* * * The court shall have jurisdiction of the proceeding and the questions determined therein, and shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter upon the pleadings, testimony and proceedings set forth in such transcript an order enforcing, modifying and enforcing as so modified, or setting aside the order of the commission, in whole or in part."
Subsection (7) of the same statute provides:
"The jurisdiction of the court shall be exclusive and its judgment and order shall be final, subject to review by the supreme court as provided by law."
It is clear that the above quoted language is controlling and requires the negative answer to the question. Even in the absence of the language of the statute this court has repeatedly held that an administrative agency is without authority to change, alter or vacate an order while review proceedings are pending in the district court, even as an inferior court is without authority to vacate or modify a judgment after writ of error has issued out of this court directed to such judgment. We direct attention to the following cases in this connection: Denver Salt Lake Railroad Company v. Chicago, Burlington Quincy Railroad Co., et al., 67 Colo. 155, 185 Pac. 817; Morgan v. U.S. 304 U.S. 1, 58 S. Ct. 773, 82 L.Ed. 1129; Mantor v. Industrial Commission, et al., 89 Colo. 90 299 Pac. 11; Davidson Chevrolet, Inc., et al. v. City and County of Denver, et al., 137 Colo. 575, 328 P.2d 377; Brooke v. People, 139 Colo. 388, 339 P.2d 993.
It follows that the attempt of the Commission to vacate its original order was void. That order is the only one which was properly before the district court for adjudication concerning its validity. The district court has not passed upon that issue but remanded the cause to the Commission with directions to make specific findings on specific issues. The Commission failed to comply with this order. It had no jurisdiction to do other than as directed by the trial court which should require performance of its order if for any reason it cannot take judicial notice of the facts upon which it asked for the entry of findings. In any event the district court must pass judgment upon the merits of the controversy, and until such judgment is entered there is nothing before us to affirm or reverse.
The writ of error is dismissed and the cause remanded with directions for further proceedings in conformity with the views expressed herein.
MR. CHIEF JUSTICE SUTTON, MR. JUSTICE FRANTZ and MR. JUSTICE DOYLE specially concur in the result.