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                                                   ADVANCE SHEET HEADNOTE
                                                                March 2, 2020

                                     2020 CO 17

No. 19SA99, Gale v. City & County of Denver—Claim Preclusion—Section 1983
Claims—C.R.C.P. 106(a)(4) Claims.

      In this case, the supreme court accepted jurisdiction to consider the

following question certified to the court by the Tenth Circuit Court of Appeals:

      Has the Colorado Supreme Court crafted an exception to the doctrine
      of res judicata such that a prior action under Colorado Rule of Civil
      Procedure 106(a)(4) cannot preclude 42 U.S.C. § 1983 claims brought
      in federal court, even though such claims could have been brought in
      the prior state action?

      Plaintiff was terminated from his job as a deputy sheriff with the Denver

Sheriff’s Department. He sought review of his termination before the Denver

Career Service Board. After a hearing officer and then the full Board affirmed

Plaintiff’s termination, he filed a C.R.C.P. 106(a)(4) claim for judicial review in the

Denver District Court, naming present Defendant, among others, as defendants.

In addition, Plaintiff filed a separate action pursuant to 42 U.S.C. section 1983

against Defendant, among others, in the United States District Court for the

District of Colorado.
      The Denver District Court ultimately affirmed the Career Service Board’s

order upholding Plaintiff’s termination, and Defendant thereafter sought and

obtained leave to amend its answer in the federal action to assert a defense of claim

preclusion. Defendant then moved for summary judgment in the federal action

based on this defense. The federal district court subsequently granted that motion,

Plaintiff appealed, the Tenth Circuit certified the present question to the supreme

court, and the supreme court accepted jurisdiction.

      The supreme court now answers “no” to the certified question and

concludes that, under Colorado state law, section 1983 claims are not excepted

from the claim preclusion doctrine such that a prior C.R.C.P. 106(a)(4) action

cannot preclude a section 1983 claim that could have been brought in the prior

state action.
                 The Supreme Court of the State of Colorado
                 2 East 14th Avenue • Denver, Colorado 80203

                                     2020 CO 17

                      Supreme Court Case No. 19SA99
                         Certification of Question of Law
     United States Court of Appeals for the Tenth Circuit Case No. 18-1269

                             Plaintiff-Appellant:

                                Franklin Gale,

                                         v.

                             Defendant-Appellee:

                        The City and County of Denver.


                        Certified Question Answered
                                   en banc
                                March 2, 2020


Attorneys for Plaintiff-Appellant:
Elkus & Sisson, P.C.
Donald C. Sisson
Lucas Lorenz
      Greenwood Village, Colorado

Attorneys for Defendant-Appellee:
Denver City Attorney’s Office
Charles T. Mitchell
Jessica Allen
       Denver, Colorado



JUSTICE GABRIEL delivered the Opinion of the Court.
¶1    In this case, we accepted jurisdiction to consider the following question

certified to us by the Tenth Circuit Court of Appeals:

      Has the Colorado Supreme Court crafted an exception to the doctrine
      of res judicata such that a prior action under Colorado Rule of Civil
      Procedure 106(a)(4) cannot preclude 42 U.S.C. § 1983 claims brought
      in federal court, even though such claims could have been brought in
      the prior state action?1

¶2    Plaintiff Franklin Gale was terminated from his job as a deputy sheriff with

the Denver Sheriff’s Department. At the time of his termination, he was serving

as chief of the Downtown Detention Center, and the Denver Department of Safety

had concluded that he had violated several internal regulations and certain Career

Service Rules.

¶3    Gale sought review of his termination before the Denver Career Service

Board. After a hearing officer and then the full Board affirmed Gale’s termination,

he filed a C.R.C.P. 106(a)(4) claim for judicial review in the Denver District Court,

naming present defendant the City and County of Denver (the “City”), among



1Although the certified question is framed in terms of “res judicata,” to avoid the
confusion that that term engenders, Colorado courts have adopted the term “claim
preclusion,” as distinct from “issue preclusion.” See Foster v. Plock, 2017 CO 39,
¶ 14, 394 P.3d 1119, 1123 (“[T]he term res judicata has been a source of confusion.
Historically, res judicata was used as a general umbrella term referring to all of the
ways in which one judgment could have a binding effect on another. However,
courts and commentators increasingly began to use the more precise terms ‘claim
preclusion’ and ‘issue preclusion’ . . . .”) (citation omitted). For consistency with
current Colorado law, we will use the term “claim preclusion” to refer to what the
certified question denominated “res judicata.”
                                          2
others, as defendants.    In addition, Gale filed a separate action pursuant to

42 U.S.C. section 1983 against the City, among others, in the United States District

Court for the District of Colorado (the “federal action”). In the federal action, Gale

sought money damages for the City’s alleged violations of his First Amendment

rights to free speech and free association.

¶4    The Denver District Court ultimately affirmed the Career Service Board’s

order upholding Gale’s termination, and the City thereafter sought and obtained

leave to amend its answer in the federal action to assert a defense of claim

preclusion. The City then moved for summary judgment in the federal action

based on this defense. The federal district court subsequently granted that motion,

Gale appealed, the Tenth Circuit certified the present question to us, and we

accepted jurisdiction.

¶5    We now answer “no” to the certified question and conclude that, under

Colorado state law, section 1983 claims are not excepted from the claim preclusion

doctrine such that a prior C.R.C.P. 106(a)(4) action cannot preclude a section 1983

claim that could have been brought in the prior state action.

                         I. Facts and Procedural History

¶6    In January 2015, the Denver Sheriff’s Department fired Gale from his

position as a deputy sheriff and chief of the Downtown Detention Center, based

on allegations that Gale had violated several departmental regulations and certain


                                          3
Career Service Rules. Contending, among other things, that his termination was

in retaliation for his union activities, Gale appealed the Department’s decision to

the Career Service Board. After a hearing officer affirmed Gale’s termination, Gale

appealed to the full Board, which also affirmed his termination.

¶7    Gale then filed a C.R.C.P. 106(a)(4) petition for judicial review in the Denver

District Court, naming as defendants the City, the Career Service Board, and the

Denver Department of Safety. In addition, a little over one month later, Gale filed

the federal action, naming as defendants the City and Stephanie O’Malley, in her

official capacity as Executive Director of the Department of Safety. In the federal

action, Gale sought money damages for what he claimed to be a termination in

violation of his constitutional rights to free speech and free association.

¶8    The state district court subsequently affirmed the Career Service Board’s

decision upholding Gale’s termination. Eleven days later, the City sought leave

from the federal district court to amend its answer in the federal action to include

the affirmative defense of claim preclusion. The court granted this motion, and

the City subsequently moved for summary judgment based on that defense.

¶9    The federal district court ultimately granted the City’s summary judgment

motion, finding each of the requirements for the application of the claim

preclusion doctrine to have been satisfied. In so ruling, the district court rejected

Gale’s argument that in Board of County Commissioners v. Sundheim, 926 P.2d 545


                                          4
(Colo. 1996), and State Board of Chiropractic Examiners v. Stjernholm, 935 P.2d 959

(Colo. 1997), this court had concluded that section 1983 claims need not be brought

in a C.R.C.P. 106(a)(4) action and therefore his section 1983 claims were not barred

under the claim preclusion doctrine.

¶10   Gale then appealed to the Tenth Circuit, where, among other things, he

renewed his argument that this court has crafted an exception to the claim

preclusion doctrine such that a prior action under C.R.C.P. 106(a)(4) cannot

preclude a section 1983 claim brought in the federal district court, even though

such a claim could have been brought in the prior state action.

¶11   The Tenth Circuit then certified the question now before us, and we

accepted review.

                                   II. Analysis

¶12   We begin by discussing the applicable standard of review. We then provide

an overview of Colorado law regarding the claim preclusion doctrine. Finally, we

turn to the certified question and answer that question in the negative, concluding

that this court has not crafted an exception to the claim preclusion doctrine such

that a prior state court action under C.R.C.P. 106(a)(4) cannot preclude a section

1983 claim brought in federal court.




                                         5
                              A. Standard of Review

¶13   Under C.A.R. 21.1(a), when requested, we may answer questions of law

certified to us by a federal court “if there is involved in any proceeding before it

questions of law of this state which may be determinative of the cause then

pending in the certifying court and as to which it appears to the certifying court

that there is no controlling precedent in the decisions of the supreme court.” We

review such questions de novo. Hernandez v. Ray Domenico Farms, Inc., 2018 CO

15, ¶ 5, 414 P.3d 700, 702.

                  B. Claim Preclusion Under Colorado Law

¶14   Claim preclusion prevents parties from relitigating claims that were or that

could have been litigated in a prior proceeding. Meridian Serv. Metro. Dist. v.

Ground Water Comm’n, 2015 CO 64, ¶ 36, 361 P.3d 392, 398. The claim preclusion

doctrine applies when four elements are met: “(1) the judgment in the prior

proceeding was final; (2) the prior and current proceedings involved identical

subject matter; (3) the prior and current proceedings involved identical claims for

relief; and (4) the parties to the proceedings were identical or in privity with one

another.” Id.

¶15   The certified question before us arises from the third element noted above,

namely, the identity of claims, which requires a court to determine whether the

claim at issue in a second proceeding is the same claim that was or that could have

                                         6
been brought in the first proceeding. Foster v. Plock, 2017 CO 39, ¶ 29, 394 P.3d

1119, 1127. Specifically, we are essentially asked to decide whether our decisions

in Sundheim, 926 P.2d at 548–49, and Stjernholm, 935 P.2d at 967, created an

exception to the claim preclusion doctrine such that a prior state C.R.C.P. 106(a)(4)

action cannot preclude a section 1983 claim brought in federal court, even though

the two claims could have been brought together in the earlier state action. We

conclude that neither Sundheim nor Stjernholm created such an exception.

¶16   In Sundheim, 926 P.2d at 548, we recognized that C.R.C.P. 106(a)(4) provides

the exclusive remedy for reviewing a quasi-judicial decision made by a

government entity. We thus stated that “a C.R.C.P. 106(a)(4) complaint must

include all causes of action, including constitutional claims, in a single C.R.C.P.

106(a)(4) action.” Id. We then observed:

      The analysis shifts, however, when a complainant asserts a claim for
      money damages under § 1983 because claims under § 1983 exist as a
      “uniquely federal remedy” that “is to be accorded a sweep as broad
      as its language.” The United States Supreme Court has held that
      when a state places procedural barriers that deny or limit the remedy
      available under § 1983, those barriers must give way or risk being
      preempted.

Id. at 548 (quoting Felder v. Casey, 487 U.S. 131, 139 (1988); other citations omitted).

¶17   Notwithstanding Gale’s assertion to the contrary, this statement did not

create an exception to the claim preclusion doctrine for section 1983 claims.

Indeed, Sundheim did not involve any issue of claim preclusion, and we did not


                                           7
address claim preclusion in that case. Instead, our statement was a reference to

the federal preemption principles described in Felder and cases like it. See, e.g.,

Felder, 487 U.S. at 153 (concluding that principles of federalism, as well as the

Supremacy Clause, dictate that a state law that conditions the right of recovery

under section 1983 on compliance with a state rule designed to minimize

governmental liability “must give way to vindication of the federal right when

that right is asserted in state court”). We, however, do not perceive the certified

question before us as asking us to determine whether the application of the claim

preclusion doctrine here would create a conflict with the remedy available under

section 1983, and we express no opinion on that subject.

¶18   Stjernholm likewise did not establish an exception to the claim preclusion

doctrine such that a prior state C.R.C.P. 106(a)(4) action cannot preclude section

1983 claims brought in federal court. In Stjernholm, 935 P.2d at 963–64, the State

Board of Chiropractic Examiners suspended a chiropractor’s license, and the

chiropractor sought judicial review in the court of appeals pursuant to the

applicable provisions of the state Administrative Procedure Act (“APA”). While

the foregoing administrative proceedings were ongoing and before the court of

appeals had issued its opinion in the review proceeding before it, the chiropractor

filed a section 1983 action in the district court against the Board of Chiropractic

Examiners, among others. Id. at 965. As pertinent here, the Board subsequently


                                        8
contended that under the claim preclusion doctrine, the chiropractor’s failure to

raise all of his constitutional issues in the judicial review action precluded

litigation of those issues in his section 1983 action. Id. at 967. We, however,

disagreed. Id.

¶19   In so ruling, we first noted that “[a] court reviewing agency action is

competent to review state and federal constitutional issues therein, and parties are

ordinarily barred from raising issues which were not presented in a single action

for judicial review.” Id. We continued, however, that in Sundheim, we had held

that a suit under section 1983 could exist separately from a C.R.C.P. 106(a)(4)

action. Id. (citing Sundheim, 926 P.2d at 548–49). We then explained:

      Our rationale in Sundheim allowing a section 1983 claim to be tried
      independently also applies here. Judicial review of state agency
      action under APA section 24-4-106(7)[, C.R.S. (2019),] is the
      counterpart to judicial review of local governmental action under
      C.R.C.P. 106(a)(4). Here, judicial review of this agency’s action must
      commence in the court of appeals under a special statutory provision
      of the Chiropractic Act, while section 1983 lawsuits are tried in the
      district court. Review of agency action, whether in the district court
      or the court of appeals, is essentially appellate in nature based on the
      Board’s administrative record. See § 24-4-106(6), [C.R.S. (2019)].
      Section 1983 suits involve evidentiary presentation to and fact finding
      by a district court. As to the alleged federal constitutional violations
      essential to a section 1983 action, the court of appeals did not err in
      refusing, as a general matter, to employ res judicata to preclude section
      1983 litigation in the district court.

Id.




                                         9
¶20      Although we acknowledge that the above-quoted passage could perhaps

have been clearer, when read in context, it did not create the exception to the claim

preclusion doctrine for section 1983 actions that Gale asserts.

¶21      In Stjernholm, the chiropractor had sought judicial review under the APA,

not under C.R.C.P. 106(a)(4). As a result, the review occurred in the court of

appeals, not in the district court, and it was based solely on the administrative

record. Accordingly, unlike in a C.R.C.P. 106(a)(4) proceeding, the review process

in Stjernholm did not afford the chiropractor an opportunity to assert a section 1983

claim before he filed his section 1983 complaint: he could not assert such a claim

before the chiropractic board, nor could he assert such a claim, which required the

production of evidence, for the first time in the court of appeals. Thus, the

chiropractor could not have asserted his section 1983 claim other than in a separate

section 1983 action, and therefore the claim preclusion doctrine did not bar that

claim.

¶22      In short, in concluding that the plaintiffs’ section 1983 claims were not

barred, Sundheim relied on federal preemption, not claim preclusion, principles,

and Stjernholm relied on the fact that the chiropractor there could not have raised

his section 1983 claims in his prior administrative proceedings. Thus, Sundheim

did not address claim preclusion principles at all, and Stjernholm’s conclusion was

fully consistent with the claim preclusion doctrine. Accordingly, we conclude that


                                         10
neither of these cases established any exception to the claim preclusion doctrine

such that a prior state C.R.C.P. 106(a)(4) action cannot preclude section 1983 claims

brought in federal court.

¶23   In reaching this conclusion, we are unpersuaded by the decisions of

divisions of our court of appeals on which Gale relies. None of these cases

required the divisions to address the question of claim preclusion in a case in

which the plaintiff had brought separate C.R.C.P. 106(a)(4) and section 1983

claims. Moreover, these decisions are fully consistent with the above-discussed

principles set forth in Sundheim and Stjernholm. See, e.g., Nat’l Camera, Inc. v.

Sanchez, 832 P.2d 960, 966 (Colo. App. 1991) (concluding that the availability of

judicial review of a state agency’s action pursuant to the APA did not preclude a

separate section 1983 action, as this court would likewise conclude six years later

in Stjernholm); Luck v. Bd. of Cty. Comm’rs, 789 P.2d 475, 477 (Colo. App. 1990)

(concluding that the district court had erred in dismissing the plaintiff’s section

1983 claim when the plaintiff had filed a complaint seeking both judicial review

under C.R.C.P. 106(a)(4) and damages under section 1983 but the district court had

concluded that the C.R.C.P. 106(a)(4) claim was untimely under the short

limitations period applicable to that claim, a decision that is fully consistent with

this court’s later ruling in Sundheim); Wilson v. Town of Avon, 749 P.2d 990, 992

(Colo. App. 1987) (concluding that the plaintiffs’ section 1983 claims were not


                                         11
barred under the claim preclusion doctrine because neither plaintiff had sought

judicial review of the underlying administrative proceedings under C.R.C.P.

106(a)(4) and the plaintiffs’ section 1983 claims could not have been raised in the

prior administrative proceedings).

                                 III. Conclusion

¶24   For these reasons, we conclude that this court has not crafted an exception

to the claim preclusion doctrine such that a prior state C.R.C.P. 106(a)(4) action

cannot preclude section 1983 claims brought in federal court. We thus answer

“no” to the certified question before us.




                                            12
