COLORADO COURT OF APPEALS                                     2017COA133


Court of Appeals No. 16CA1678
Arapahoe County District Court No. 16CV173
Honorable Phillip L. Douglass, Judge


Harley Adams; Ernest Vigil; and Phyllis Vigil,

Plaintiffs-Appellants,

v.

Arlene Sagee, in her official capacity as the Sheridan City Clerk; Devin
Granberry, in his official capacity as the Sheridan City Manager; Dallas Hall, in
his official capacity as the Mayor of Sheridan and a member of the City
Council; Tara Beiter-Fluhr, in her official capacity as the Mayor Pro Tem of
Sheridan and a member of the City Council; David Black, in his official
capacity as a member of the Sheridan City Council; Ernie Camacho, in his
official capacity as a member of the Sheridan City Council; Sally Daigle, in her
official capacity as a member of the Sheridan City Council; Leon Hartness, in
his official capacity as a member of the Sheridan City Council; and Gary
Howard, in his official capacity as a member of the Sheridan City Council,

Defendants-Appellees.


                            JUDGMENT AFFIRMED

                                 Division VII
                         Opinion by JUDGE J. JONES
                          Fox and Freyre, JJ., concur

                         Announced October 19, 2017


Cheney Galluzzi & Howard, LLC, Kevin B. Cheney, Timothy C. Galluzzi,
Denver, Colorado, for Plaintiffs-Appellants

The Law Office of Steven J. Dawes, LLC, Steven J. Dawes, Denver, Colorado,
for Defendants-Appellees
¶1    This case presents one question: Did the district court

 unconstitutionally apply a filing deadline to this case, which

 involves citizens pursuing their constitutional right of initiative?

 We answer no, and so we affirm the district court’s dismissal of the

 complaint.

                             I. Background

¶2    Plaintiffs Harley Adams, Ernest Vigil, and Phyllis Vigil

 petitioned to present a ballot initiative to the residents of Sheridan.

 For various reasons, Sheridan’s City Clerk rejected some of the

 signatures plaintiffs had collected. That left plaintiffs short of the

 required number of signatures for the Sheridan City Council and

 Sheridan voters to consider the initiative. Plaintiffs contested the

 decision, and the City Clerk upheld it after a protest hearing.

¶3    Thirty-five days after the City Clerk’s final decision, plaintiffs

 filed a complaint in district court against the City Clerk, the City

 Manager, the Mayor, and the members of the City Council

 (collectively, Sheridan) pursuant to section 31-11-110(3), C.R.S.

 2017 (“The determination as to petition sufficiency may be reviewed

 by the district court for the county in which such municipality or

 portion thereof is located upon application of the protester, [or] the


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 persons designated as representing the petition proponents

 pursuant to section 31-11-106(2).”). The district court dismissed

 the case for lack of subject matter jurisdiction because plaintiffs

 had failed to file the case within the twenty-eight-day time limit of

 C.R.C.P. 106, the rule which is plaintiffs’ only avenue for judicial

 review of the decision they challenge.1

                             II. Discussion

¶4    Plaintiffs concede that Rule 106(b)’s twenty-eight-day

 jurisdictional bar applies, and that they filed their case thirty-five

 days after the relevant final decision. But they argue that the

 district court’s strict application of the twenty-eight-day time limit

 to them as pro se parties pursuing their constitutional right of

 initiative deprived them of that right. Put another way, they argue



 1 The district court also ruled that C.R.C.P. 6(b), which allows it to
 grant extensions of time for “excusable neglect,” didn’t authorize it
 to extend a jurisdictional deadline like the one in C.R.C.P. 106. We
 don’t address this issue because plaintiffs don’t raise it on appeal.
 But even if they did, the law is clear that mistake or ignorance of
 the law doesn’t constitute excusable neglect. See Goodman Assocs.,
 LLC v. WP Mountain Props., LLC, 222 P.3d 310, 321-22 (Colo. 2010);
 People v. Alexander, 129 P.3d 1051, 1056 (Colo. App. 2005); see
 also Farmers Ins. Grp. v. Dist. Court, 181 Colo. 85, 89, 507 P.2d
 865, 867 (1973) (“Failure to act due to carelessness and negligence
 is not excusable neglect.”).

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 that Rule 106(b) is unconstitutional as applied to their

 circumstances. Their argument fails.

                        A. Standard of Review

¶5    We review challenges to the constitutionality of statutes and

 rules, including as-applied challenges, de novo. Hickman v.

 Catholic Health Initiatives, 2013 COA 129, ¶ 6; see also Turney v.

 Civil Serv. Comm’n, 222 P.3d 343, 347 (Colo. App. 2009) (reviewing

 a void for vagueness challenge to an administrative rule de novo).

                  B. As-Applied Unconstitutionality

¶6    When asserting an as-applied challenge, the party “contends

 that the statute would be unconstitutional under the circumstances

 in which the [party] has acted or proposes to act.” Sanger v.

 Dennis, 148 P.3d 404, 410-11 (Colo. App. 2006) (citation omitted);

 see also Developmental Pathways v. Ritter, 178 P.3d 524, 534 (Colo.

 2008). “The practical effect of holding a statute unconstitutional as

 applied is to prevent its future application in a similar context, but

 not to render it utterly inoperative.” Developmental Pathways, 178

 P.3d at 534 (quoting Sanger, 148 P.3d at 410).




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                               C. Analysis

¶7    Rule 106(b) says that “a complaint seeking review under

 subsection (a)(4) of this Rule shall be filed in the district court not

 later than 28 days after the final decision of the body or officer.”2

 Plaintiffs filed their complaint thirty-five days after the final

 decision, mistakenly believing they could seek review pursuant to

 section 24-4-106, C.R.S. 2017, which governs challenges to certain

 “agency actions.”

¶8    The “time requirement in C.R.C.P. 106(b) is jurisdictional and

 a complaint to review the actions of an inferior tribunal will be

 dismissed if it is not filed within thirty days after final action by that

 tribunal.” Danielson v. Zoning Bd. of Adjustment, 807 P.2d 541, 543

 (Colo. 1990); see also Baker v. City of Dacono, 928 P.2d 826, 827

 (Colo. App. 1996) (“[B]ecause th[e] thirty-day filing requirement is

 jurisdictional, a C.R.C.P. 106(a)(4) action not filed within the . . .

 limitations period must be dismissed for lack of subject matter

 2 Rule 106(a)(4) provides for review “[w]here any governmental body
 or officer or any lower judicial body exercising judicial or
 quasi-judicial functions has exceeded its jurisdiction or abused its
 discretion, and there is no plain, speedy and adequate remedy
 otherwise provided by law . . . .” Plaintiffs correctly concede that
 this rule applies, and therefore we needn’t address whether the
 clerk’s action was quasi-judicial.

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  jurisdiction.”) (emphasis added); Crawford v. State, Dep’t of Corr.,

  895 P.2d 1156, 1158 (Colo. App. 1995) (upholding dismissal of

  inmate’s two-day late complaint as untimely under Rule 106

  because “failure to comply with the . . . limitations period divests

  the district court of subject matter jurisdiction to hear the action”).3

  Nothing in the rule countenances any exceptions.

¶9     Though recognizing this, plaintiffs argue that Rule 106(b)’s

  jurisdictional time limit can’t be applied to their pursuit of their

  right of initiative guaranteed by the Colorado Constitution. See

  Colo. Const. art. V, §1(2) (“The first power hereby reserved by the

  people is the initiative.”). This is so, they say, because applying the

  limit “narrows” the right. With this we can’t agree.

¶ 10   We begin by observing that plaintiffs’ pro se status doesn’t

  affect our analysis. It is widely understood that although courts

  should liberally construe pro se parties’ pleadings, pro se parties

  must comply with procedural rules to the same extent as parties

  represented by attorneys.

             As the United States Supreme Court observed
             in McNeil v. United States, 508 U.S. 106 . . .

  3Rule 106(b)’s time limit was thirty days when the cited cases were
  decided.

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             (1993), “[the Supreme Court] ha[s] never
             suggested that procedural rules in ordinary
             civil litigation should be interpreted so as to
             excuse mistakes by those who proceed without
             counsel.” Accordingly, “pro se litigants are not
             entitled to a general dispensation from the
             rules of procedure or court-imposed
             deadlines.” Jones v. Phipps, 39 F.3d 158, 163
             (7th Cir. 1994).

  Dewitt v. Hutchins, 309 F. Supp. 2d 743, 748-49 (M.D.N.C. 2004);

  see also Manka v. Martin, 200 Colo. 260, 267, 614 P.2d 875, 880

  (1980) (“A litigant is permitted to present his own case, but, in so

  doing, should be restricted to the same rules of . . . procedure as is

  required of those qualified to practice law before our courts;

  otherwise, ignorance is unjustly rewarded.” (quoting Knapp v.

  Fleming, 127 Colo. 414, 415, 258 P.2d 489, 489-90 (1953))).

¶ 11   No Colorado appellate decision has addressed the precise

  issue before us — whether a generally applicable, jurisdictional

  deadline may be unconstitutional when applied to parties seeking to

  exercise a constitutional right. But analogous case law establishes

  the general principle that the state may impose reasonable time

  limits on the exercise of a constitutional right.

¶ 12   For example, the state may impose reasonable time limits for

  criminal defendants to seek habeas corpus relief. People v.


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  Wiedemer, 852 P.2d 424, 434-35 (Colo. 1993); see also People ex

  rel. Wyse v. Dist. Court, 180 Colo. 88, 92, 503 P.2d 154, 156 (1972)

  (“Although the privilege of the writ of habeas corpus is

  constitutionally guaranteed, the procedural mechanism for its

  exercise may change.”). Similarly, the state may require pro se

  defendants in criminal cases to adhere to procedural rules, though

  their cases often implicate constitutional rights. See People v.

  Romero, 694 P.2d 1256, 1266 (Colo. 1985) (“By electing to represent

  himself the defendant subjected himself to the same rules,

  procedures, and substantive law applicable to a licensed attorney.”);

  see also Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999)

  (“[I]gnorance of the law, even for an incarcerated pro se petitioner,

  generally does not excuse prompt filing.”); United States v. Hill, 826

  F.2d 507, 508 (7th Cir. 1987) (“The Supreme Court has not held or

  even hinted that a defendant’s own neglect, or that of his lawyer,

  extends a jurisdictional time limit.”).

¶ 13   And in the civil context, courts have consistently rejected

  arguments that statutes of limitations deny parties their

  constitutional right of access to the courts. Ciccarelli v. Carey

  Canadian Mines, Ltd., 757 F.2d 548, 554 (3d Cir. 1985) (“There is


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  no absolute and unlimited constitutional right of access to courts.

  All that is required is a reasonable right of access — a reasonable

  opportunity to be heard.”); see also Wilson v. Giesen, 956 F.2d 738,

  744 (7th Cir. 1992) (“Further, the fundamental right of access to the

  courts has not been burdened here, as the mere shortening of the

  limitations period would not have prevented plaintiff from

  maintaining his claim, had he done so in a timely fashion.”).

¶ 14   We are also guided by the supreme court’s decision in Van

  Sickle v. Boyes, 797 P.2d 1267 (Colo. 1990). In that case, the court

  held that Rule 106(a)(4)’s abuse of discretion standard of review

  doesn’t deny parties due process. Id. at 1273-74. The court

  reasoned, in part, that, while the less deferential standard of review

  proposed by the plaintiff would indeed provide for closer judicial

  scrutiny of governmental decisions, “[j]udicial efficiency is

  promoted” by the abuse of discretion standard, and the standard

  doesn’t deprive parties of fundamental fairness. Id. at 1274.

¶ 15   Parties seek to vindicate constitutional rights in court all the

  time. But there is simply no authority for the notion that a court or

  legislature can’t impose time limits for doing so. So long as such a

  time limit doesn’t unduly burden the exercise of a constitutional


                                     8
  right, it is permissible. Plaintiffs haven’t shown that the

  twenty-eight day deadline imposed by Rule 106(b) unduly burdens

  their constitutional right of initiative.

¶ 16   Indeed, at oral argument plaintiffs’ counsel conceded that

  twenty-eight days is not an inherently unreasonable time for

  requiring action under Rule 106(a)(4), even when a constitutional

  right is at stake. It becomes unreasonable, counsel argued,

  because the General Assembly has allowed greater time periods for

  challenging other types of government actions that don’t necessarily

  implicate constitutional rights. See § 24-4-106(4) (a party desiring

  to challenge final agency action in court has thirty-five days from

  such action to do so). We aren’t persuaded, however, that a

  reasonable time period for filing one kind of case is transformed into

  an unreasonable one merely because other time periods for filing

  other types of cases are longer. The fact that there is a range of

  time periods for filing court actions doesn’t render the shortest such

  period unreasonable, or constitutionally suspect. To put a finer

  point on it, parties seeking to vindicate constitutional rights aren’t

  constitutionally entitled to a filing period at least as long as the

  longest period provided for filing any type of action.


                                       9
¶ 17    Lastly, we conclude that Loonan v. Woodley, 882 P.2d 1380

  (Colo. 1994), on which plaintiffs rely, is distinguishable. In that

  case, the supreme court held that constitutional and statutory

  provisions governing the initiative process should be liberally

  construed to avoid narrowing the constitutional right of initiative.

  Id. at 1384, 1386; see also Griff v. City of Grand Junction, 262 P.3d

  906, 911 (Colo. App. 2010). But Rule 106(b) is not a provision

  governing the initiative process; it is a procedural rule of general

  applicability. See People in Interest of B.C., 981 P.2d 145, 149

  (Colo. 1999) (“This interpretation of Rule 106 is consistent with the

  general principle that the rules of civil procedure are procedural

  and do not attempt ‘to abridge, enlarge, nor modify the substantive

  rights of any litigants.’” (quoting Crowley v. Hardman Bros., 122

  Colo. 489, 498, 223 P.2d 1045, 1049 (1950))). And the rule in no

  way restricts the constitutional right of initiative.

¶ 18    We therefore conclude that applying Rule 106(b)’s

  jurisdictional deadline to plaintiffs’ petition under Rule 106(a)(4)

  doesn’t deprive them of or unduly burden their constitutional right

  of initiative.




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                           III. Conclusion

¶ 19   The judgment is affirmed.

       JUDGE FOX and JUDGE FREYRE concur.




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