Gale v. City & County of Denver

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ADVANCE SHEET HEADNOTE
March 2, 2020
2020 CO 17No. 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 17Supreme 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.”
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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
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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 5454
(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.
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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
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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
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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
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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.
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¶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
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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
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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.
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