Berges v. County Court of Douglas County

COLORADO COURT OF APPEALS 2016COA146

Court of Appeals No. 15CA1589
Douglas County District Court No. 14CV31174
Honorable Paul A. King, Judge

Ronald Berges, Beth Ballen, Stephanie Van Voorst, Jody Curtin, Nathan Mohr,
Lynn Robinson, and Mark Bauman,

Plaintiffs-Appellants,

v.

County Court of Douglas County and Honorable Monica J. Gomez,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE NAVARRO
Furman and Miller, JJ., concur

Announced October 6, 2016

Lindquist & Vennum LLP, John A. Chanin, Patrick G. Compton, Denver,
Colorado, for Plaintiffs-Appellants

Eytan Nielsen LLC, Iris Eytan, Denver, Colorado, for Plaintiff-Appellant Ronald
Berges

Recht Kornfeld, P.C., Richard Kornfeld, Denver, Colorado, for
Plaintiff-Appellant Beth Ballen

Denis Lane, Jr., Colorado Springs, Colorado, for Plaintiff-Appellant Stephanie
Van Voorst

Greenberg Traurig, LLP, John Voorhees, Denver, Colorado, for
Plaintiff-Appellant Nathan Mohr
Shufflebarger Lambrone & Clark LLC, Jeremy Shufflebarger, Fort Collins,
Colorado, for Plaintiff-Appellant Lynn Robinson

Foster Graham Milstein & Calisher, LLP, Gary Lozow, Denver, Colorado, for
Plaintiff-Appellant Mark Bauman

Cynthia H. Coffman, Attorney General, David C. Blake, Chief Deputy Attorney
General, Matthew D. Grove, Assistant Solicitor General, Denver, Colorado, for
Defendants-Appellees
¶1 This appeal requires us to examine the interplay between two

sections of article 3 of title 19 (the Children’s Code). Section

19-3-206, C.R.S. 2016, vests county attorneys with exclusive

authority to represent the “petitioner” in all “proceedings” brought

under article 3, which is entitled “Dependency and Neglect.”

Section 19-3-304, C.R.S. 2016, requires certain people (e.g., doctors

and school officials) to report suspected child abuse or neglect;

these people are often called “mandatory reporters.” A mandatory

reporter who willfully violates this duty to report commits a

misdemeanor.

¶2 The question is: Does section 19-3-206 strip district attorneys

of their authority to prosecute mandatory reporters for the

misdemeanor offense described in section 19-3-304? We conclude

that the answer is “no” because section 19-3-304 does not set forth

a proceeding under article 3; it simply defines an offense. And

criminal prosecutions of that offense do not constitute article 3

proceedings. Accordingly, we affirm the district court’s judgment

denying relief under C.R.C.P. 106(a)(4) to plaintiffs Ronald Berges,

Beth Ballen, Stephanie Van Voorst, Jody Curtin, Nathan Mohr,

Lynn Robinson, and Mark Bauman.

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I. Factual and Procedural History

¶3 Plaintiffs are medical doctors, clinical social workers, and

health care professionals facing criminal charges in Douglas County

Court for violating section 19-3-304. The charges were filed by a

detective in the Douglas County Sheriff’s Office. See Crim. P.

4.1(c)(3).

¶4 When the district attorney assumed the prosecution of the

criminal cases, plaintiffs moved to dismiss the charges, arguing that

the district attorney lacked authority to prosecute the charges in

light of section 19-3-206. The county court denied the motions,

concluding that “a proceeding brought under Article 3 of the

Children’s Code is limited to proceedings brought in Dependency

and Neglect actions, not cases involving mandatory reporters.”

¶5 Plaintiffs then filed a complaint pursuant to Rule 106(a)(4) in

the district court, seeking review of the county court’s order along

with a stay and dismissal of the criminal proceedings. Plaintiffs

asserted that the county court’s determination was an abuse of

discretion resulting from an incorrect interpretation of the law. The

district court denied all relief, upholding the county court’s

determination and reiterating that “the mandate of C.R.S.

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§ 19-3-206 does not apply to criminal prosecutions of

failures-to-report.” This appeal followed.

II. Standard of Review

¶6 In a Rule 106(a)(4) proceeding,1 the district court’s scope of

review is limited to determining whether the lower governmental or

judicial body exceeded its jurisdiction or abused its discretion.

C.R.C.P. 106(a)(4); Walker v. Arries, 908 P.2d 1180, 1182 (Colo.

App. 1995). Because we are in the same position as the district

court, we review the district court’s decision de novo and assess

whether the county court exceeded its jurisdiction or abused its

discretion. See Roalstad v. City of Lafayette, 2015 COA 146, ¶ 13.

Misinterpretation of the law may constitute an abuse of discretion.

Griff v. City of Grand Junction, 262 P.3d 906, 909 (Colo. App. 2010).

We review de novo questions of statutory interpretation. Roalstad,

¶ 10; see People v. Diaz, 2015 CO 28, ¶ 9.

1The Attorney General, representing the county court, conceded at
oral argument that an action under C.R.C.P. 106(a)(4) was an
appropriate avenue for the district court’s review of the county
court’s decision here.

3
III. Analysis

¶7 Plaintiffs contend that section 19-3-206 vests county attorneys

with exclusive authority to prosecute mandatory reporters for

criminal violations of section 19-3-304 because such prosecutions

are proceedings brought under article 3. Plaintiffs thus present a

question of statutory interpretation.

¶8 The primary goal of statutory interpretation is to ascertain and

give effect to the legislature’s intent. St. Vrain Valley Sch. Dist.

RE-1J v. A.R.L., 2014 CO 33, ¶ 10. To determine the plain meaning

of a statute, “[t]he language at issue must be read in the context of

the statute as a whole and the context of the entire statutory

scheme.” Jefferson Cty. Bd. of Equalization v. Gerganoff, 241 P.3d

932, 935 (Colo. 2010). Our interpretation should give consistent,

harmonious, and sensible effect to all parts of a statute. Id.;

see also Lewis v. Taylor, 2016 CO 48, ¶ 20 (“In evaluating whether

a statute is ambiguous, we do not read its words or phrases in

isolation, but instead read them in context and in a manner that

gives effect to the statute as a whole.”). In particular, “[t]he sections

of the Children’s Code must be read together to effectuate the

legislative intent and to give consistent, harmonious, and sensible

4
effect to all their parts.” People In Interest of E.M., 2016 COA 38M,

¶ 19 (cert. granted Aug. 1, 2016).

¶9 Section 19-3-206 provides: “In all proceedings brought under

this article, the petitioner shall be represented by a county attorney,

special county attorney, or city attorney of a city and county.”

Section 19-3-304 describes a mandatory reporter and requires a

mandatory reporter who has reasonable cause to know or suspect

that a child has been subjected to abuse or neglect to report such

fact to the county department, local law enforcement agency, or the

child abuse hotline. This section closes by stating that any person

who willfully violates the duty to report “[c]ommits a class 3

misdemeanor and shall be punished as provided in section

18-1.3-501, C.R.S.,” and “[s]hall be liable for damages proximately

caused thereby.” § 19-3-304(4)(a)-(b).

¶ 10 Examining the words and phrases of section 19-3-206

“one-by-one,” plaintiffs maintain that the statute precludes a

district attorney from prosecuting a mandatory reporter. A contrary

interpretation, plaintiffs argue, would fail to give each word its

commonly accepted meaning (namely “all,” “proceedings,” “shall,”

and “petitioner”) and would render some of the words meaningless

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(namely “all”). We disagree because we cannot read statutory

language in isolation from its context. See Lewis, ¶ 20.

¶ 11 We begin by recognizing that a district attorney is ordinarily

vested with authority to prosecute all violations of law that occur in

his or her judicial district. Harris v. Jefferson Cty. Court, 808 P.2d

364, 365 (Colo. App. 1991); see § 16-5-205, C.R.S. 2016;

§ 20-1-102, C.R.S. 2016; People v. Taylor, 732 P.2d 1172, 1178

(Colo. 1987) (“These constitutional and statutory provisions relating

to the office of the district attorney clearly demonstrate that the

district attorney is vested with authority to initiate criminal

prosecutions for crimes committed within the geographical

boundaries of the judicial district served by the district attorney.”).

“However, when the General Assembly authorizes a different body

to prosecute a particular type of action, then the district attorney is

without authority to act.” Harris, 808 P.2d at 365.

¶ 12 So, did the General Assembly remove a district attorney’s

authority to prosecute mandatory reporters for violating section

19-3-304 when it required a county attorney to represent the

petitioner in “all proceedings” brought under article 3? § 19-3-206.

For four reasons, we conclude that the answer is “no.”

6
¶ 13 First, the statutory scheme as a whole makes clear that the

“proceedings” to which section 19-3-206 refers are not criminal

prosecutions but the civil proceedings described in detail

throughout article 3. The term “proceeding” is not defined in

article 3 or the Children’s Code generally, but plaintiffs recognize

that the ordinary meaning of the term is “[t]he business conducted

by a court or other official body.” Black’s Law Dictionary 1398

(10th ed. 2014). In section 19-3-206, however, the ordinary

meaning of proceeding is limited to those court actions brought by a

“petitioner.” “Petitioner” is not defined by the relevant statutes

either, but its ordinary meaning is “[a] party who presents a petition

to a court or other official body, esp. when seeking relief on appeal.”

Black’s Law Dictionary at 1329. Thus, to understand what

constitutes a proceeding and a petitioner under article 3, we must

explore what constitutes a petition under article 3. Article 3

describes two types of petitions: a petition in dependency and

neglect (see § 19-3-502, C.R.S. 2016) and a petition to reinstate the

parent-child legal relationship (see § 19-3-612, C.R.S. 2016).

¶ 14 Petitions in dependency and neglect arise from reports of

known or suspected child abuse. § 19-3-501(2)(a), C.R.S. 2016.

7
The resulting court proceedings focus on protecting a child’s best

interests while avoiding unnecessary out-of-family placement and

respecting parental rights (for example, through provision of

appropriate services and treatment plans). §§ 19-3-501, -505, -507,

C.R.S. 2016; People in Interest of J.G., 2016 CO 39, ¶ 24; see People

in Interest of E.M., ¶ 12 (“A dependency and neglect case focuses on

securing safety and protection for children through state

intervention by correcting, when possible, the problems that

endanger them so that they can remain in (or return to) their

homes.”). “It is not the State’s objective, when acting on a petition

for dependency and neglect, to punish the persons responsible for

the conduct involving the child.” L.G. v. People, 890 P.2d 647, 655

(Colo. 1995).

¶ 15 Petitions to reinstate the parent-child legal relationship arise

from a prior dependency or neglect adjudication; they rely on the

juvenile court’s continuing jurisdiction over a dependent or

neglected child. § 19-3-612(2); see § 19-3-205(1), C.R.S. 2016;

People in Interest of E.M., ¶ 20 (“[T]he . . . court presiding over the

dependency and neglect case maintains continuing, exclusive

jurisdiction over the adjudicated child, and in most circumstances

8
his or her parents, as long as the case continues.”). These petitions

also focus on the child’s best interest and family stability.

§ 19-3-612(1) (“The purpose of this section is to address the

problem of children who linger in the child welfare system by giving

them a second chance at achieving permanency with their

rehabilitated former parent.”).

¶ 16 The other provisions and procedures of article 3 are tailored to

these two types of petitions. See, e.g., §§ 19-3-201, -202, -203,

-205, -208, -209, -212, C.R.S. 2016. In particular, section

19-3-505, C.R.S. 2016, authorizes an adjudicatory hearing to

address a petition alleging dependency and neglect. Giving

consistent, harmonious, and sensible effect to all parts of article 3

reveals, therefore, that section 19-3-206 refers to those civil

proceedings initiated by (or supplementary to) petitions in

dependency and neglect or petitions to reinstate the parent-child

legal relationship.

¶ 17 Second, section 19-3-304 does not come within the ambit of

section 19-3-206’s reference to “proceedings” because, unlike the

sections of article 3 discussed above, section 19-3-304 does not

describe a proceeding. It does not set forth procedures for

9
conducting court business. As discussed, the plain language of

section 19-3-304 simply requires mandatory reporters to report

suspected child abuse or neglect and provides that a willful

violation of this duty is an offense subject to punishment under

section 18-1.3-501, C.R.S. 2016, of the Colorado Criminal Code

(title 18). Contrary to plaintiffs’ view, the fact that this offense is

defined in the Children’s Code, rather than in the Criminal Code,

does not meaningfully distinguish it from any other offense or

transform a criminal prosecution of this offense into an article 3

proceeding. See § 18-1-103(1), C.R.S. 2016 (Absent exceptions

inapplicable here, “the provisions of this [criminal] code govern the

construction of and punishment for any offense defined in any

statute of this state, whether in this title or elsewhere[.]”) (emphasis

added).

¶ 18 Third, in conflict with plaintiffs’ contention that a criminal

prosecution can constitute an article 3 proceeding, article 3 itself

draws a distinction between a proceeding under that article and a

criminal prosecution. Section 19-3-207(1), C.R.S. 2016, sets forth a

process whereby evidence obtained in an article 3 proceeding may

10
be deemed inadmissible in a criminal prosecution arising from the

same facts:

Upon the request of the county attorney,
special county attorney, or the city attorney of
a city and county, the court shall set a hearing
to determine the admissibility in a subsequent
criminal proceeding arising from the same
episode of information derived directly from
the testimony obtained pursuant to
compulsory process in a proceeding under this
article. The district attorney of the judicial
district in which the matter is being heard
shall be given five days’ written notice of the
hearing by the clerk of the court. Such
hearing shall be held in camera, and the
district attorney shall have the right to appear
at the hearing and to object to the entry of the
order holding such information
inadmissible. . . . The provisions of this
subsection (1) shall not be construed to
prevent any law enforcement officer from
independently producing or obtaining the
same or similar facts, information, or evidence
for use in any criminal prosecution.

(Emphasis added.)

¶ 19 Our supreme court read section 19-3-207 in pari materia with

section 19-3-206 in H.B. v. Lake County District Court, 819 P.2d 499

(Colo. 1991). The court construed the statutes to preclude a district

attorney from acting as a special county attorney in article 3

proceedings. The court explained:

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Interpreting section 19-3-206 to allow the
district attorney to represent the Department
in article 3 proceedings would lead to the
absurd result of having the district attorney, in
his role of special county attorney, argue that
information is inadmissible, and then object to
his own arguments [per section 19-3-207].

Id. at 502. The same logic applies here. Interpreting section

19-3-206 to require the county attorney to bring a criminal

prosecution could lead to the absurd result of the county attorney,

in his or her role as prosecutor, arguing that evidence is admissible

in a criminal prosecution and objecting to those arguments in the

related dependency and neglect proceeding. The statutes are better

understood as authorizing county attorneys to bring the civil

petitions articulated in article 3 while preserving the district

attorneys’ authority to bring criminal prosecutions based on the

same or related facts. After all, a county attorney is ordinarily

tasked with representing the county in civil matters (including in

dependency and neglect actions), not bringing criminal actions. See

County of Adams v. Hibbard, 918 P.2d 212, 219 (Colo. 1996); see

also § 19-1-103(31.5), C.R.S. 2016; § 30-11-118, C.R.S. 2016;

Medberry v. People, 107 Colo. 15, 19, 108 P.2d 243, 245 (1940) (A

county attorney “has no part whatsoever in the initiation or conduct

12
of ordinary criminal proceedings which, in Colorado, are prosecuted

by the district attorney in the name of the people of the state and

not of the county[.]”), overruled on other grounds as recognized by

Petition of Griffin, 152 Colo. 347, 351, 382 P.2d 202, 204 (1963).

¶ 20 Fourth, although article 3 of the Children’s Code contains

extensive procedures bearing upon a petition in dependency and

neglect, article 3 contains no procedures for criminal prosecutions.

This is significant because the Colorado Code of Criminal Procedure

does not apply “to proceedings under the ‘Colorado Children’s

Code,’” absent exceptions not pertinent here. § 16-1-102, C.R.S.

2016. It would be incongruous to conclude that the General

Assembly intended article 3 proceedings under the Children’s Code

to include criminal prosecutions for violating section 19-3-304 while

simultaneously providing that the Code of Criminal Procedure does

not apply to such prosecutions. A more likely interpretation — and

one more consistent with article 3 as a whole — is that the General

Assembly did not intend criminal prosecutions of any sort to be

considered article 3 proceedings.

¶ 21 Accordingly, we conclude that criminal prosecutions for

violations of section 19-3-304 do not constitute “proceedings

13
brought under” article 3 within the meaning of section 19-3-206.

As a result, section 19-3-206 does not divest district attorneys of

their authority to prosecute mandatory reporters for violating

section 19-3-304.2

IV. Conclusion

¶ 22 Because the county court correctly interpreted the relevant

statutes — and thus did not abuse its discretion or exceed its

jurisdiction — the district court’s judgment denying relief under

Rule 106(a)(4) is affirmed.

JUDGE FURMAN and JUDGE MILLER concur.

2 Because we rely on the plain language of section 19-3-206, C.R.S.
2016, as read in the context of the statute as a whole and the
comprehensive statutory scheme, we do not address plaintiffs’
reliance on legislative history. See Denver Post Corp. v. Ritter, 255
P.3d 1083, 1089 (Colo. 2011).

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