Sellards v. Mesa

24CA1924 Sellards v Mesa 07-17-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1924
Mesa County District Court No. 23CV30007
Honorable Valerie J. Robison, Judge

Corbin Sellards, a minor, and through his parent and next friend, Michelle
Stanton,

Plaintiffs-Appellants,

v.

Mesa County Valley School District 51,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE BROWN
Dunn and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 17, 2025

Kishinevsky Raykin LLC, Igor Raykin, Connor O’Donnell, Aurora, Colorado, for
Plaintiffs-Appellants

Tammy Eret, Grand Junction, Colorado, for Defendant-Appellee
¶1 The plaintiff, Corbin Sellards, a minor appearing through his

parent and next of friend, Michelle Stanton, appeals the district

court’s denial of his petition to set aside the decision of the Board of

Education (the Board) of Mesa County Valley School District 51 (the

District) affirming his expulsion through the end of the 2022-2023

school year. We affirm.

I. Background

¶2 Sellards was a student at Mount Garfield Middle School (the

School). On October 12, 2022, two students reported that while

riding the bus to school, Sellards threatened to shoot up the school

and a teacher. Following an investigation, which included

interviewing numerous students and conducting a threat

assessment, the School principal determined that Sellards had

engaged in conduct that “was a significant interruption to learning

and created a situation that made students feel unsafe and

uncomfortable,” suspended Sellards from the School, and

recommended that Sellards be expelled for one calendar year.

¶3 The District provided Sellards notice of the School’s

recommendation and of the date, time, and location of a hearing on

the contemplated expulsion, if Sellards requested it. Sellards

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requested and was provided a hearing before an impartial hearing

officer.

¶4 Sellards, his mother, and his attorney attended the expulsion

hearing. The School principal presented evidence of the incident

prompting the request for discipline, as well as a prior incident for

which the School had placed Sellards on a safety plan after it

discovered that he drew a picture of a gun on a shed behind the

School and sent threatening emails from his laptop. Sellards had

the opportunity to present evidence, cross-examine witnesses, and

make arguments. Rather than contest the evidence offered by the

School, Sellards’ attorney conceded that “the evidence . . . is pretty

clear, there’s not much point in debating that.” Instead, Sellards’

attorney opted to focus his argument on whether Sellards was a

threat and on alternatives to expulsion as the proper discipline.

¶5 The hearing officer issued a written order reflecting his

findings of fact based on the evidence, his conclusion that Sellards

had violated school board policies, and his recommendation that

the District superintendent expel Sellards through the end of the

2022-2023 school year. The District superintendent adopted the

recommendation and issued a disciplinary order expelling Sellards

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from the District. The disciplinary order advised Sellards and his

parents that they had the right to appeal the disciplinary order to

the Board by filing a notice of appeal within ten days after receiving

the order.

¶6 Sellards’ mother timely filed a notice of appeal with the Board,

which included arguments that Sellards presented a low threat risk

and that the “punishment does not fit the crime.” In a letter dated

November 16, 2022, the Board acknowledged receipt of Sellards’

appeal and informed Sellards that he had fifteen days to submit the

record from the expulsion hearing and file any written arguments or

authorities to support his appeal.1 It advised that the “record on

appeal consists of whatever portions of the testimony and exhibits

presented at the expulsion hearing you contend are relevant to the

specific issues you raise on appeal.” And it informed Sellards that

“[w]here the basis for appeal is that the [s]uperintendent’s decision

rests upon findings of fact that are clearly erroneous or

1 The letter indicated that a copy of the District regulation

establishing the appeal procedures was attached. Only a partial
copy of that regulation is included in the record on appeal. The full
version can be accessed on the District’s website. Mesa Cnty.
Valley Sch. Dist. 51, JKD/JKE-R: Student Suspension/Expulsion
(revised Jan. 19, 2021), https://perma.cc/4AZ9-VLNX.

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unsupported by substantial evidence,” Sellards would be

responsible for purchasing and providing the Board with a

transcript of the expulsion hearing.

¶7 The Board explained that, upon receipt of the record and

written argument, the superintendent would have an opportunity to

respond. It noted that Sellards “may request an opportunity to

present an oral argument to the Board” but that the Board could

deny the request. And it indicated that it would render a decision

within ten days after receiving the superintendent’s response or the

date of oral argument, whichever was later. The Board clarified

that the appeal is “not an opportunity for a new expulsion hearing

or for the Board to consider a less severe punishment” and must be

“based on the facts as they were presented in the hearing.”

¶8 Sellards’ attorney emailed the District’s legal counsel on

November 22 to protest the requirement that Sellards provide a

transcript of the appeal hearing as “a condition of moving forward

with the appeal.” Sellards’ attorney did not receive a response.

Sellards did not file any additional written arguments or authorities

within the fifteen-day deadline and did not request oral argument.

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¶9 On November 30, Sellards’ mother emailed the Board, seeking

an update on the status of the appeal and asking whether there was

“anything [they] need to do in order to move forward.” In the

afternoon on December 6, the Board responded via email that it

would consider Sellards’ appeal at a Board meeting that evening.

During the meeting, the Board reviewed Sellards’ “letter of appeal,”

the expulsion packet, and the hearing officer’s findings and

unanimously decided to uphold the superintendent’s disciplinary

order. On December 9, the Board informed Sellards of its decision.

¶ 10 Sellards filed a petition in the Mesa County District Court to

set aside the Board’s decision under section 22-33-108(2), C.R.S.

2024. He argued that the Board (1) improperly conditioned his

“ability to appeal on his payment and obtainment of the hearing

transcript, which in effect denied him the ability to meaningfully

appeal his expulsion”; and (2) denied him due process by failing to

notify him when the Board would consider his appeal, “thus

preventing [him] from presenting his arguments before the [Board]

and responding to questions of clarification from the [Board].” The

district court denied Sellards’ petition, concluding that the Board

had provided Sellards due process.

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II. Analysis

¶ 11 Sellards contends that the district court erred by (1) refusing

to supplement the certified record with exhibits he contends were

necessary to resolve his due process claim and (2) concluding that

the Board had provided Sellards with adequate procedural due

process. We perceive no basis to reverse.

A. Applicable Law and Standard of Review

¶ 12 Section 22-33-105, C.R.S. 2024, provides the procedure for

student expulsion proceedings. If an expulsion hearing is

requested, the school district is required to conduct an evidentiary

hearing and produce a written report with findings of fact and

recommendations as to the resulting punishment.

§ 22-33-105(2.3)(a), (c); see also Mesa Cnty. Valley Sch. Dist. 51,

JKD/JKE-R: Student Suspension/Expulsion (B)(4) (revised Jan. 19,

2021), https://perma.cc/4AZ9-VLNX.

¶ 13 Administrative hearings of this sort do not require overly strict

or unduly rigid procedures. Nichols v. DeStefano, 70 P.3d 505, 507

(Colo. App. 2002), aff’d, 84 P.3d 496 (Colo. 2004). But due process

requires that school districts provide, at a minimum, “notice and an

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opportunity to be heard in a meaningful manner.” Id. (citing Goss

v. Lopez, 419 U.S. 565, 579 (1975)).

¶ 14 A student who is expelled after an evidentiary hearing may

appeal the decision to the school district’s board of education.

§ 22-33-105(2.3)(d). “The appeal must consist of a review of the

facts presented and determined at the hearing . . . , arguments

relating to the decision, and questions of clarification from the

board of education.” Id. The board of education then has the

discretion to grant or deny the appeal. See id.

¶ 15 The District has also promulgated procedures for appeals to

its Board. Mesa Cnty. Valley Sch. Dist. 51, JKD/JKE-R at (B)(5).

Those procedures include the following:

The review shall not be de novo, but shall be
limited to whether the superintendent’s
decision was arbitrary or capricious, a denial
of statutory or constitutional right, power,
privilege or immunity, in excess of statutory
jurisdiction, authority purposes, or limitations,
not in accord with the procedures or
procedural limitations of District policy or
procedure, or based upon findings of fact that
are clearly erroneous on the whole record,
unsupported by substantial evidence when the
record is considered as a whole, or otherwise
contrary to law.

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Id. at (B)(5)(b). In addition, the Board “may, but need not, grant

oral argument.” Id. at (B)(5)(c).

¶ 16 If a school district’s board of education upholds the

determination to expel a student, the student is entitled to judicial

review of the decision under C.R.C.P. 106(a)(4).

§§ 22-33-105(2.3)(d), -108(3); Mesa Cnty. Valley Sch. Dist. 51,

JKD/JKE-R at (B)(5)(d). Under Rule 106(a)(4)(I), the district court

reviews the board’s decision to determine whether it exceeded its

jurisdiction or abused its discretion, based on the evidence in the

record before it.2 Nichols, 70 P.3d at 507. “This Rule does not

contemplate a new evidentiary hearing at the district court level,

but rather contemplates that the district court will review the record

of the proceedings conducted elsewhere” to make its determination.

Widder v. Durango Sch. Dist. No. 9-R, 85 P.3d 518, 526 (Colo. 2004).

2 In this context, “[a]buse of discretion means that the decision

under review is not reasonably supported by any competent
evidence in the record,” meaning “that the ultimate decision of the
administrative body is so devoid of evidentiary support that it can
only be explained as an arbitrary and capricious exercise of
authority.” Widder v. Durango Sch. Dist. No. 9-R, 85 P.3d 518, 526-
27 (Colo. 2004).

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¶ 17 On appeal, we review a district court’s decision in a Rule

106(a)(4) action de novo and assess whether the board of education

exceeded its jurisdiction or abused its discretion. Berges v. Cnty.

Ct., 2016 COA 146, ¶ 6. We also review de novo whether a party’s

due process rights were violated during the proceedings. Nichols,

70 P.3d at 507.

¶ 18 Even if we conclude that the district court erred, however, we

will not disturb a judgment on appeal unless the error affects the

substantial rights of the parties. C.R.C.P. 61; Bernache v. Brown,

2020 COA 106, ¶ 26. An error affects a party’s substantial rights if

it “substantially influenced the outcome of the case or impaired the

basic fairness of the trial itself.” Bernache, ¶ 26 (quoting Laura A.

Newman, LLC v. Roberts, 2016 CO 9, ¶ 24). The party asserting the

error on appeal has the burden of showing that it was not

harmless. Curry v. Brewer, 2025 COA 28, ¶ 54.

B. Exclusion of Email Records

¶ 19 Sellards contends that the district court erred by excluding the

following emails from the certified record:

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• the November 22 email from Sellards’ counsel to the

District’s legal counsel objecting to the requirement that

Sellards purchase a transcript to proceed with the appeal;

• the November 30 email from Sellards’ mother to the Board

requesting an update on the status of Sellards’ appeal; and

• the December 6 email from the Board to Sellards’ mother

informing her that the Board would resolve Sellards’ appeal

at a meeting that evening.

¶ 20 Sellards argues that these emails prove that the Board failed

to (1) respond to his counsel’s questions concerning the financial

precondition it imposed on his appeal and (2) provide adequate

notice of when the appeal would be heard by the Board. According

to Sellards, “the [court] was not free to disregard evidence of

whether the [Board] provided [Sellards] with due process just

because such evidence was not contained within the record created

by and presented to the Board.”

¶ 21 A C.R.C.P. 106(a)(4) action must be based on the evidence in

the record before the governmental body that made the final

decision subject to review. Foothills Park & Recreation Dist. v. Bd. of

Cnty. Comm’rs, 2024 COA 62, ¶ 21. Rule 106(a)(4)(IV) provides that

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“[a]ny party may move to correct the record at any time.” We review

a district court’s decision on a motion to amend the record for an

abuse of discretion. Foothills Park & Recreation Dist., ¶ 22. “A

court abuses its discretion if its ruling is manifestly arbitrary,

unreasonable, or unfair, or is based on a misunderstanding or

misapplication of law.” Id.

¶ 22 When the petitioner raises a due process challenge, however,

“the court must examine the totality of the procedures afforded and

their effect on the fundamental fairness of the” expulsion

proceeding. Nichols, 70 P.3d at 507. We acknowledge that the

record before the hearing officer, which became the record before

the Board, does not fully capture how the Board conducted the

appeal proceedings. Because Sellards contends he was denied due

process during the appeal before the Board, it would have been

appropriate for the district court to have supplemented the record

with the contested emails.

¶ 23 But Sellards never moved to supplement the record. Instead,

he filed what he called a “certified record” that included the

contested emails. When the District objected, the court ordered

Sellards to file a record “duly certified as a true and complete record

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of the record before” the Board. The “true and complete” certified

record Sellards filed did not include the emails. As the court

explained in its order denying Sellards’ petition, Sellards “did not

seek to amend the certified record with those exhibits. Rather, [he]

simply referred to them in [his] briefing and noted that they were

previously filed.”

¶ 24 Under these circumstances, we conclude that the district

court did not err by declining to sua sponte supplement the record

with the contested emails. See Foothills Park & Recreation Dist.,

¶ 22. Even so, those emails are in the record before us (as part of

the uncertified record Sellards first filed with the district court), and

we have reviewed them.

C. Alleged Due Process Violations

¶ 25 Sellards contends that the district court erred by concluding

that the Board provided him procedural due process when it

affirmed the superintendent’s decision to expel him from the

District for the remainder of the 2022-2023 school year.

Specifically, Sellards argues that the Board denied him the

opportunity to present additional evidence and argument to the

Board by (1) creating a financial precondition to his appeal;

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(2) failing to provide adequate notice of when the Board would hear

his appeal; and (3) conducting his appeal “in abstentia.”

¶ 26 Several of Sellards’ arguments rest on a faulty

premise — namely, that he was entitled to present additional

evidence to the Board when it resolved his appeal. To be clear,

Sellards’ opportunity to present evidence was at the evidentiary

hearing conducted by the hearing officer. See § 22-33-105(2.3);

Mesa Cnty. Valley Sch. Dist. 51, JKD/JKE-R at (B)(4). Sellards does

not contend that he was prevented from presenting evidence at that

hearing or otherwise argue that he was denied due process at that

stage of the proceedings.

¶ 27 In contrast, an appeal to the Board consists of a review of the

facts presented and determined at the hearing, arguments relating

to the decision, and questions of clarification, if any, from the

Board. § 22-33-105(2.3)(d). The Board is not authorized to review

the evidence de novo or to conduct an evidentiary hearing. See id.;

Mesa Cnty. Valley Sch. Dist. 51, JKD/JKE-R at (B)(5)(b). We

conclude that Sellards had a full and fair opportunity to present

evidence at the evidentiary hearing before the hearing officer and

13
that he was not denied due process by the inability to present

additional evidence on appeal to the Board.

¶ 28 In his notice of appeal, Sellards argued that the “video

provided as evidence does not support the claim that [Sellards

threatened the school or [teacher]” and that expulsion was too

harsh a penalty. To the extent Sellards contends that he was

denied the opportunity to present additional argument to the Board,

we note that the Board’s letter acknowledging receipt of his appeal

advised him that he could file written arguments and authorities

with the Board within fifteen days. See Mesa Cnty. Valley Sch.

Dist. 51, JKD/JKE-R at (B)(5)(c). He did not do so. The letter also

advised Sellards that he could request oral argument. See id. He

did not do so. His assertion that he “had no notice that his appeal

nor any argument or evidence was due before the Board . . . until

mere hours before the hearing” is belied by the record. Having

failed to take advantage of either procedural mechanism for

presenting additional argument to the Board, Sellards’ claim that he

was denied any opportunity to be heard is unconvincing.

¶ 29 Still, Sellards contends that the Board placed a financial

precondition on his ability to appeal by requiring him to pay for a

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transcript of the expulsion hearing and that it misled him into

believing that his appeal would not “commence” until the Board had

received the transcript. Notably, Sellards’ assertion that the Board

“clarified that the appeal would only commence ‘[u]pon receipt of

the record of appeal and accompanying written argument and

authority[’]” misconstrues the record. The sentence of the Board’s

November 16 letter that Sellards partially quotes reads in full as

follows: “Upon receipt of the record of appeal and accompanying

written argument and authority, the [s]uperintendent will have ten

days to file a response with the Board.” (Emphasis added.) The

Board did not indicate that the appeal would not “commence” until

Sellards paid for and provided a transcript.3

¶ 30 But even assuming the Board’s communications about the

transcript and its failure to advise Sellards of the date the Board

would resolve his appeal denied Sellards due process, Sellards fails

to explain (1) what additional arguments he would have presented

3 We also note that the statute Sellards cites in support of his

argument that the Board could not impose a “financial
precondition” on his appeal does not apply to the Board appeal
process. Rather, it prevents the district court from collecting
“docket or other fees” for its C.R.C.P. 106(a)(4) review. § 22-33-
108(2), C.R.S. 2024.

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to the Board had he been provided the opportunity and (2) how

those arguments would have satisfied the Board’s standard of

review. Recall that section 22-33-105(2.3)(d) provides that “the

decision to grant or deny the appeal is at the discretion of the board

of education.” (Emphasis added.) And the District’s regulation

limits the Board’s review to determining whether the

superintendent’s expulsion decision was arbitrary and capricious, a

denial of a statutory or constitutional right, rendered in excess of

jurisdiction, violative of District policy or procedure, or based upon

findings of fact that are clearly erroneous, unsupported by

substantial evidence, “or otherwise contrary to law.” Mesa Cnty.

Valley Sch. Dist. 51, JKD/JKE-R at (B)(5)(b).

¶ 31 For any alleged due process violation to warrant reversal,

Sellards must demonstrate that he could have met these standards.

See C.R.C.P. 61; Curry, ¶ 54 (the appellant has the burden of

proving that the error was not harmless). But the only argument

Sellards makes concerning the harm caused by the Board’s conduct

is that, “[h]ad [he] been able to present argument and evidence, he

would have challenged the underlying findings of the school hearing

officer, as well as the propriety of expulsion as a punishment.”

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Sellards does not explain what findings he would have challenged

or how those findings were clearly erroneous. And he does not

explain why expelling him was an arbitrary and capricious decision

or not within the discretion of the superintendent. Thus, Sellards

failed to establish that the Board’s conduct “substantially

influenced the outcome of the case or impaired the basic fairness of

the [disciplinary proceeding] itself.” Bernache, ¶ 26 (quoting Laura

A. Newman, LLC, ¶ 24).

III. Disposition

¶ 32 We affirm the district court’s denial of Sellards’ petition to set

aside his expulsion.

JUDGE DUNN and JUDGE SCHOCK concur.

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