*1 аttempted pro- ment of a Crim.P. 11 advisement. Due providency court] as relates step charge require cess does not that a court inform a theft of what substantial previously every held that de- means.”8 We have defendant of conceivable constitutional constituting fining attempt by “conduct a sub- right might guilty plea. as be waived Alexander, step the commission of the People stantial towards v. 797 P.2d 1256-57 (Colo.1990); Drake, purpose provid- People crime” is sufficient for P.2d v. (Colo.1990). necessary ing a defendant with We conclude that a defen- under- Ramirez, standing charged. right of the crime dant need not be advised of the (attempted possession plеa may at 1185 appeal guilty 682 P.2d before a be said to be Cisneros, drugs); People voluntarily given. narcotic see also knowingly and (Colo.App.1991), 824 P.2d rev’d on provided conclude the advisement We Cisneros, grounds People v. 855 P.2d other constitutionally to the defendant was ade- (Colo.1993) (attempt to commit second ruling quate providency and that the court’s Thus, providency degree burglary). guilty “freely, voluntarily pleas that the were regard in court’s advisement this was consti- intelligently fully supported are made” tutionally adequate. by Accordingly, we make the the record. Arapahoe rule absolute and direct Coun- Next, Arapahoe we- address ty habitu- District Court to reinstate the two County holding District Court’s that the ad al and to conduct further criminal counts inadequate visement was because the defen proceedings opinion. consistent with this “any potential pa dant was not informed of in period.” role This was also error. advised, required
The defendant was 11(b)(4), possible penalties
Crim.P. pled guilty. provi- if
that he faced he dency possible periods court recited the INC., GAMBLER’S EXPRESS presumptive incarceration both the Petitioner-Appellant, extraordinary ranges. informed The court possibility the defendant of the of consecutive sentencing mandatory sentencing and the re OF PUBLIC UTILITIES COMMISSION quirements apply that would if at the time COLORADO; THE Robert STATE OF committed, the offense was the defendant Temmer, Gary Nakarado, L. L. Christine probation, judgment, pa was “on deferred Alvarez, Commissioners; E.M. role, bond, custody, escape.” or on Inc., Respon Express, Shuttle charge, Additionally, respect to each dents-Appellees. “period parole” court indicated that a No. 93SA89. penalty. a further This information was suf comply requirement ficient to with the Colorado, Supreme Court 11(b)(4) that the defendant under Crim.P. En Banc. possible penalties that could result stand the 14, 1994. Feb. guilty pleas. from his Rehearing March Denied Finally, as to the district court’s de termination that the defendant should have right appeal, this
been advised his mandatory simply not a ele-
information is statute, complete purpose attempt firmness of the actor’s criminal 18-2- Colorado part: provides in relevant Factual or the commission of offense. if, attempt acting person committing A with the kind of commits criminal legal impossibility the offense is culpability required otherwise have been not a defense if the offense could offense, engages in for commission of an he had the attendant circumstances committed constituting step toward conduct a substantial be, it the actor believed them to nor is been as the offense. A substantial the commission of step attempted the crime was actual- a defense that conduct, act, omission, whether ly perpetrated accused. possession, strongly which is corroborative *3 Arehibold, Denver, petitioner- for
John E. appellant. Norton, Gen., Atty. Timothy M.
Gale A. Gen., Shields, Depu- Tymkovich, Sol. Merrill Gen., Djokic, Asst. ty Atty. Richard First Gen., Rising, Atty. Atty. Carol Smith Asst. Denver, Section, Gen., for Regulatory Law Com’n respondents-appellees Public Utilities Colo., Temmer, L. of the State of and Robert Nakarado, Alvarez, Gary E.M. L. Christine Com’rs. Frost, Denver, respondent- F.
James Blackjack Express, Inc. appellee Shuttle Opinion Justice VOLLACK delivered of the Court. Inc. proceeding, Express
In this Gambler’s (Gambler’s) appeals of the Adams the order Public County holding District Court that the (the PUC) not vio- had Utilities Commission (1993).1 40-6-120(1), 17 C.R.S. lated section right of the challenges now Gambler’s authority to to extend (Blackjack), Express, Blackjack Inc. Shuttle carrier, Blackjack’s motor because a common approved by request was initial term PUC had expired. We conclude that the had request to extend jurisdiction to consider the temporary authority. We ac- Blackjack’s the district cordingly judgment affirm court.
I. 8, issued November On Blackjack temporary authori- granting order pursuant C.R.S. jurisdiction matter We have over this 1.
ty operate agreed motor common The ALJ with Gambler’s transporting passengers vehicle in and, between argument on June entered an metropolitan gam- the Denver area and the setting interim order aside his initial decisiоn bling facilities Black Hawk and Central Blackjack’s temporary authority. City.2 temporary authority permitted Blackjack’s The ALJ denied motion to set Blackjack operations to conduct for a modify vacating aside or the order the exten- days, expired of 166 April temporary authority, sion of the and a motion granting Blackjack temporary authority, stay of that decision. filed new that, although the PUC noted Gambler’s was applications emergency temporary granted permanent authority transport pro- 10,1991,3 passengers dating September from *4 essentially vide the same services. The PUC providing any it was not service at that time.4 granted Blackjack emergency temporary Blackjack’s The PUC therefore found that authority 19, days for fifteen on June 1992. temporary passenger service satisfied the el- Gambler’s filed a motion to dismiss the latest 40-6-120(1) requiring ements of section temporary authority application Blackjack. need,” there be an urgent “immediate and additionally requested Gambler’s the PUC to and that no other capa- carrier service “was reconsider granting emergen- its decision meeting ble of that need.”5 cy temporary authority. granted The PUC 20, 1992, April days On two Blackjack’s motion Gambler’s to dismiss Blackjack’s temporary authority expired, temporary authority application, agreed Blackjack petitioned the for an exten- granting to reconsider its decision the emer- temporary authority. sion of its Blackjack gency temporary authority. The PUC re- requested an extension since the PUC had granting emergency versed its decision yet not rendered a final administrative deci- temporary authority, and dismissed the Blackjack’s application permanent sion on for emergency temporary 1, authority. July On conducting operations as a com- 1992, PUC, motion, on its own reconsid- mon carrier motor vehicle for the same setting ered the ALJ’s decision aside the opposed servicеs. Gambler’s the extension Blackjack’s temporary authority. Blackjack’s temporary authority.6 granted Blackjack’s petition The PUC to ex- 12, 1992, May On the administrative law temporary authority, pro tend its nunc tunc (the ALJ) judge issued an interim decision 22, 1992, April as of until a final administra- granting requested tempo- extension for Blackjack’s tive per- was rendered rary authority, finding for authority application. manent the extension had been shown.7 Gambler’s order, 22, 1992, July filed a motion to vacate the interim On appli- Gambler’s filed arguing jurisdiction reconsideration, that the ALJ lacked cation rehearing, for (RRR) extend the April reargument after of this decision. Au- On However, approved Blackjack’s 2. application The PUC Blackjack sought tions. service to cer- temporary authority pursuant §to purview tain areas not within the of Gambler's 17 C.R.S. territory. service granted pub- 3. The PUC Gambler's certificate of 11, 1992, May Blackjack supplemented 6. On its necessity lic convenience and which authorized petition temporary authority by filing to extend transport passengers Gambler’s to between Den- approximately forty-six verified statements from ver, including por- southeast Denver and certain public attempting continuing to show that a Stapleton tions of downtown Denver and Inter- public being need existed services ren- Airport, national and Black Hawk and Central by Blackjack City. dered under its ty. produce any contrary Gambler's did not evi- fact, begin providing 4. In Gambler's did not its dence; rather, argued Gambler’s that another 10, transport passengers service January until (Gambler's) existed that could meet the public's needs. granting Blackjack's application tempo- twenty-three days 7. The ALJ issued its order after rary authority, recognized for extension was submitted. Blackjack's requested authority substantially overlapped opera- with Gambler's authorized 1992, findings judg- 19, granted motion to amend the gust Gambler’s RRR, July Subsequent application appeal and modified This followed. ment. Blackjack’s extension on appeal, decision on filing of this Commission authority application to reflect granted permanent authority to not be entered nunc that the decision would non-overlapping in the service June April 1992. The PUC pro tunc as areas.10 held, however, Blackjack’s “legally time- tolled the ly filing of a motion for extension II. original grant of au- expiration date for the thority.” primary issue for us to resolve interpre juncture at is one of this 5, 1992, filed for November Gambler’s On tation, the PUC re and involves whether in the review of the PUC’s decisions Adams jurisdiction a carrier’s re tained its where court County District The district Court. quest to extend affirmed the PUC’s decision. district expira upon by the PUC acted had not vio- determined that the PUC court 40-6-120(1). tion of the initial term The district court lated section provisions authority.11 of sec- concluded that the further *5 (1) (3), 40-6-120, subsections and when tion tempo- authority grant of the PUC to The inconsistent, conclud- together,8 are read in 40-6- authority forth section rary is set interpretation was valid.9 ed that the PUC’s 120(1) provides: which in- found that the PUC’s The district court provision of carrier ser- To enable the statute, which should be terpretation of the appears there to be vice for which deference, reasonable. The dis- given any point or urgent need to immediate and not en- that the PUC had trict cоurt held territory having no carrier service within a legisla- impermissible post in ex gaged facto need, the commis- meeting such capable of Finally, court held the district tive action. may, and without in its discretion sion transcript the PUC had not violated that grant tem- hearings proceedings, 40-6-113, or other statute, § 17 C.R.S. by a com- authority for such service porary C.R.C.P. court denied Gambler’s district may it even if the (1) perti- not extend or renew provides § mission 40-6-120 in Subsection of 8. period otherwise be authority time would not temporary maximum part nent has cited no We note that Gamblers exceeded. authority as the commission be valid for such time shall specifies, Furthermore, argument. we for aggregate than an but for not more hypertechnical contentions find that Gamblers’ good eighty days, for unless of one hundred statutory intent. with the are not consistent extends such shown the commission cause authority period which temporary for a of time application permanent Blackjack for filed its 10. administrative deci- may extend until a final authority September on rendered, presump- no and shall create sion is authority permanent corresponding tion that authority Although Blackjack’s has ex- interim granted will be thereafter. per- operating under pired now is (3) perti- provides § of 40-6-120 Subsection appeal authоrity, we find that the instant manent part that nent Blackjack's quickly dispose justiciable, is any temporary period of maximum time [t]he States, Brink's, United In Inc. v. mootness claim. or authority approval not be extended shall or (D.C.Cir.1979), heard a the court F.2d 1079 provisions 4 of of article under the renewed authority, even petition to vacate C.R.S., or otherwise. title perma- already though had received the carrier authority. nent decision stated: 9. The PUC [Cjonsideration. is of this case of the merits period for time as the maximum Insofar time, dismiss- appropriate rather than a at this may operate pursuant to a a carrier concerned, would leavе ... mootness which provi- al for authority is whole, possibility subject 40-6-120, C.R.S., to the distinct carriers motor read as a sions they learn from the courts tempo- would never grant power to Commission's limit the agency's temporary authori- may parameters of the respect carrier rary in one authorities —a presented in this ty in not unusual situation operations after a to conduct not be authorized case. decision is rendered. final administrative n persuasive We hold Brink's to Id. at 1083. support Gamblers’ contention does not statute issue. authority lapsed, the mootness the Com- has that once Committee, Judiciary carrier mon or a contract motоr House 64th Gen.As- vehicle, (Audio may tempo- sembly, 83-6, be. Reg.Sess. Tape as the case Such 1st Feb. rary authority, suspended 1983). legislative unless or re- Nothing within the his- cause, good shall be voked valid for tory contemplates prohibit an intent to specifies such as the commission but acting timely a upon PUC from motion for aggregate not more than an one extension even after the date of eighty days, good hundred unless for authority. It therefore can be the commission extends such tem- shown reasonably legislature in- inferred porary period for a of time which tended the PUC to have the latitude to ex- may extend until a final administrative de- tend until a final admin- rendered, pre- is cision and shall create no permanent authority istrative decision on sumption permanent corresponding logically rendered. This inference follows granted will be thereafter. grants apply since carriers often of tem- part: porary authority they the intent that provides Subsection grants permanent will mature into tempo- The maximum time ty. rary authority approval or shall not be provisions or extended renewed under statute, In analyzing the we note that sec- 24, C.R.S., article 4 of title otherwise. 40-6-120(1) tion authorizes PUC to begin analysis We our of section temporary authority for no more than an by applying princi 40-6-120 well-established aggregate days. If cause is ples construing construction. shown, may extend the statute, the court must consider under authority until a final administrative decision lying purpose creating statute or plain language is rendered. The of subsec- *6 give legisla der to effect to intent of the the tion therefore that indicates the maximum Price, Meyers 229, ture. 842 P.2d 231 period temporary authority time of a is “until (Colo.1992); Meadows, Danielson v. Castle final a administrative decision is rendered.” (Colo.1990). Inc., 1106, 791 P.2d 1111 To (1) provides the criteria Subsection needed to legislature, the intent of discern the we look and, temporary authority extend based on statute, language Peoplе, to the of the B.B. v. (3), language the of subsection one is fore- (Colo.1990), give P.2d 138 and 786 effect relying upon closed from the State Adminis- phrases according to the words and to their any statutory trative Procedure Act other or and plain meaning. People obvious v. Dis provision operations beyond to continue the Court, (Colo.1986). 921 trict 713 P.2d temporary authority period. interpreting provision “When a statute each Blackjack timely applied for an extension harmony be construed in must the over authority temporary prior its expi- of to the scheme, accomplish all so toas the original period. ration of the The PUC con- purpose for statute] which was enacted.” [the application sidered the within a reasonable (Colo. Johnson, 1296,1297 People v. 797 P.2d time, twenty-three days, and then 1990). issued its interpretation The order. PUC’s of the tem- Because the is silent statute on this authority merely porary preserves statute issue, legislative history our review of the quo status its pending the decision on the probative. this particularly behind statute is Blackjack’s temporary motion to extend au- Royal, In Matter the Estate 826 of. of thority. interpretation The PUC’s is reason- (Colo.1992). Hearings 1236 1983 P.2d of language able and does not contravene the of Judiciary House reveal that Committee Furthermore, the statute. the statute should temporary purpose extending authori impose rigid not be read to more standards ty prevent suffering from a carrier on than interrupting financial losses its services grant temporary authority. of a temporary of authority after its rendering statute, language a decision From the but PUC’s and permanent authority legislative applica history on the carrier’s from our review of the Hearings purpose H.B. tion. on behind section it can 1281 Before
411 timely filing of that the timely filing therefore hold We reasonably inferred a for extension request au- request a extension jurisdiction act ty on the jurisdiction gives gives act thority period originаl time original period request after the after the time long expired long has so as expired has so a reasonable -time the within reasonable time acts within PUC acts PUC frame. frame. interpretation further of the statute Our III. way in the Inter- with the
conforms interpreted has Act been state Commerce additionally several col- raises Gambler’s congressional given the absence of clear dispose arguments which we of at this lateral dictating procedure. requirement Other point. language in the have similar courts construed Act, § 10928 Commerce 49 U.S.C. Interstate Legislation Ex Facto A. Post (1988),12 supports in a our read- manner court maintains that thе district Gambler’s ing section 40-6-120. had not en- in erred post gaged unconstitutional ex facto examining legislative pur lawmaking. retrospective Act, pose behind Interstate Commerce 310(a) (1963),13 the court U.S.C.A. agree posi do with Gambler’s We Associations, Trucking American Inc. tion that cert, States, (D.C.Cir.), 602 F.2d United expired initial had con after the denied, U.S. 100 S.Ct. legislative post ex or retroactive stitutes facto (1979), Congress found that in L.Ed.2d Constitution, under Colorado arti action the Commission with broad tended “to invest II, II, cle section 11. Article section discharge delegated re discretion provides ex “[n]o constitution state sponsibilities did not intend to constrain law, impairing law thе obli post facto nor rigid procedural by prescribing rules.” [it] contracts, gation retrospective or in its discretionary authority has Commission operation, making irrevocable continual service of a carrier while enforce *7 immunities, special or privileges, franchises pending matters before a determination of is assembly.” passed by general the shall be States, Transp., it. Inc. v. United Whitfield (D.N.M.1974). provision has This constitutional F.Supp. 373 statu 1032 legislation retrospective as tory granting authority interpreted in three procedure of “ [any] away impairs or ‘takes vested stages temporary authority, extension of which — laws, rights acquired existing or сre authority, permanent under temporary authori duty, imposes a new or continuity op obligation, in a new ty the carrier’s ates —facilitates to disability, respect trans a new determines attaches erations while the Commission ” already passed.’ granted permanent actions or considerations fitness to be carrier’s v. Public Energy Advocacy Colorado authority. See Interstate Com Gamble Office (Colo.1985) (5th Co., Commission, (quot 704 P.2d 305 636 F.2d 1103 Sen. merce Denver, Ry. Cir.1981). ing & Co. South Park Pacific (1988) plain language 10928(c)(1) provision by authorizes pro- its § This 49 Title U.S.C.A. specifi- to part Commerce Commission as follows: the Interstate vides grants emergency as cally permit оf Commission, regula- pursuant such to [T]he temporary authority, require ac- and to well issue, may grant may the tions as Commission dispositions applications. of such celerated emergency temporary a motor carrier transportation place ty provide to a or in an to repealed 49 in 1978. Title section was This having capable of meet- no motor carrier area replaces § au- the U.S.C.A. 10928 place or if ing needs of the area the immediate 310(a) (1963), thority granted U.S.C.A. that, 49 due to determines emer- the Commission language substantially conditions, similar and has gency time to there not sufficient changes to the time repealеd with minor statute application process an (b) requirements. of subsection this section. under Woodward, (1878)); Hearing Peoples C.Transcript ALJ Colo. of Comm’n, 197 Natural Gas v. Public Utils. argues Gambler’s 152, 155, Colo. 590 P.2d transcript it failed to obtain a of erred when twenty-one day “The fact was [a that there hearing Blackjack’s request stay on to the period] [temporary between the original setting the decision aside his ALJ’s authority] and the Commission’s decision Blackjack’s temporary extending au decision does not ret- render the Commission’s action thority. We have reviewed administra rospective meaning within the Colo. of the tive record and find that PUC was not II, § Peoples Const. Art. 11.” Natural Gas transcript required to review a of that hear Colo, Comm’n, v. Public at Utils. ing since PUC did not disturb the ALJ’s Contrary Rather, 590 P.2d findings adopted at 963. to con-' Gambler’s fact. tention, temporary authority findings entirety in their the extension ALJ’s fact extending from the ALJ’s decision impair right impose did not a vested a new Blackjack’s authority. Gambler’s duty past respect to since transactions compelling authority no has cited the time limited to was when the PUC required transcript PUC was to review deciding was requested whether hearing. extension. 4-0-6-120(3) D.Section B.Findings Good Cause finally maintains Gambler’s that a 40-6-120(3) earner additionally Gambler’s is foreclosed section contends that continuing operations beyond from the 180- district court in overruling erred admin- day period if a carrier has failed to obtain an judge’s finding istrative law of fact and not extension before acknowledging that the PUC had violated expiration. Gambler’s main contention is 40-6-120(1) by section its failure make that, temporary authority expired once the findings new justify extend- 22, 1992, April PUC without ing Blackjack’s temporary authority. jurisdiction to extend it since “there was nothing to extend.” Gambler’s relies on the We are satisfied evi Public Utilities Commission’s Rules of Prac dence before the PUC at the (C.R.P.P.) 50(j)(4), tice and Procedure original grant satis provides that a motion for extension of tem evidentiary support fied the it. porary authority twenty days should be filed that, correctly determined expiration. upon a motion for extension of statutorily 40-6-120 Section does not man- authority, necessary it was not new make *8 a date that motion to extend au- findings demonstrating “an and immediate thority filed twenty-day period be within that service,” urgent demonstrating need for and to the that “no other capable carrier service is ty. language 50(j)(4) We find the in C.R.P.P 40-6-120(1) meeting need,” that since section clearly directory, to be than rather mandato- merely requires showing good a for ry. reject legal We therefore fiction this and extending temporary authority. trial disagree interpreta- with Gambler’s strained findings court’s interim were the based on tion of section 40-6-120. support documents filed of the motion temporary authority which IV. public showed that the relied on and had Blackjack’s passenger familiar become reasons, foregoing For the we conclude pursuant temporary authority, service to jurisdiction that the PUC has under section Blackjack’s application that perma and 40-6-120(1) timely to filing consider the of a presently nent pending request for the extension of au- the PUC. no merit We find to Gambler’s thority, original period tempo- after the run, contention. rary authority long has so as the PUC
413
People,
proper);
v.
155
timе frame. We
deem
Jones
Colo.
a reasonable
acts within
(1964)
(stating
P.2d
the
contrary
would
that
outcome
further note that a
by
may
change
not
the laws
court
enacted
general purpose
the
inconsistent with
legislature).
Accord-
designed to achieve.14
statute is
of the trial court is af-
ingly,
judgment
pro-
Subsection
of section 40-6-120
firmed.
vides:
provision
To enable the
of carrier service
J.,
dissents,
SCOTT,
ERICKSON, J.,
appears
for which there
to be an immedi-
joins
the dissent.
urgent
any point
ate and
need to
or within
territory
capa-
having
a
no carrier service
ERICKSON, J.,
SCOTT,
dissents,
J.,
need, the
meeting
commission
ble
such
joins in the dissent.
may,
hearings
in its discretion and without
dissenting:
Justice ERICKSON
prоceedings, grant temporary au-
or other
Although the Public Utilities Commission
thority
by a
for such service
common carri-
(PUC)
embraces,
adopts,
majority
a
and the
vehicle,
a
er or
contract
motor
tempo-
reasonable method for
may
temporary au-
as the case
be. Such
rary
As-
authority authorized
the General
thority,
suspended or revoked for
unless
sembly,
language
40-6-
plain
of section
cause,
shall be
such time
valid
(1993),
120(1),
prohibits
the statuto-
C.R.S.
but
more
specifies,
the commission
for not
employed.
pro-
ry construction
The statute
eighty
aggregate
than an
of one hundred
approve a
if the PUC fails to
vides
days,
good cause
unless for
shown
within
extend
temporary au-
commission extends such
statutorily mandated
and before the
may
thority
for a
of time which
authority expires,
initial term of
until
final
extend
a
administrative decision
tempo-
may
not extend
rendered,
presump-
shall create no
is
rary
language
authority.
plain
Because the
corresponding permanent
author-
tion
dispositive,
reverse
of the statute is
I would
granted
ity will be
thereafter.
judgment
of the district court.
Nothing
language
gives
in the
of the statute
authority to consider extensions
construing
is
primary
Our
task
statute
my
grant beyond
days.
initial
give
intent
the General
effect to the
silent,
view, simply
the statute is
we
because
Assembly.
v.
Group,
Farmer’s
Inc.
accomplish
statute to
Williams,
(Colo.1991).
should not read the
To dis-
ments, body recognized it is the result of a Plaintiff-Appellant, developed it has time. experience, and over v. U.S.A. Inc. Natural Resources Chevron Inc., Council, 837,104 467 U.S. S.Ct. Defense Baptist SANTISTEVEN, John (1984); 81 L.Ed.2d Skidmore Jr., Defendant-Appellee. Co., & 323 U.S. 65 S.Ct. Swift L.Ed. 124 Com- Public Utilities No. 92CA2067. here, there was mission decision one which significant vacillation and confusion within Appeals, Court Colorado to agency prior reaching under Div. II. review, not, therefore, carry does the hall- a settled decision marks of and time-tested Dec. power per- nature its has the suade.
Furthermore, plain wording of section provides majority’s no for the
40-6-120 basis
proposition auto-
matically past is to extended date expiration where a motion for extension expiration date.
has been filed fact, majority actually im- decision own of Practice and
pugns the PUC’s Rules in that it to a
Procedure is now advantage, assuming its business is
carrier’s possible wait mo-
profitable, to until the last to file its for an extension
ment . longer filing the later the
because operation, in- is insured of continued PUC, a
cluding, without action de authority be-
facto
yond express statutory limits.1 government, form of the control our
Under the PUC is
the electorate exercises over Assembly by legislative
through the General If fail require we
enactments. plain language of the statutes
follow responsibilities its administrative
address authority, power we to the PUC to its and not contem-
not confined legislature.
plated by the respectfully
Accordingly, I dissent. say authorized to that Justice
I am joins in
ERICKSON
this dissent.
twenty days prior
that au-
Utility
Practice and
least
1. Public
Commission Rule of
50(j)(4) provides
ex-
that motions for
thority.
Procedure
filed at
should be
tension
court should
The
notes
“prevent
legislation
adding
is to
a
judicial
by
section 40-6-120
careful to avoid
interrupt-
suffering
by
losses
from
financial
legislature
the
did
to a statute that which
tolling
temporary
within the
of
for extension
We do
to consider the PUC's
not need
(i.e.,
clearly
§
theory,
by
180-day period,
the district court
because
40-6-120
addressed
expiration period
pending determi-
is tolled
tolling provision,
the
our
we find
does not contain a
authority request
temporary
the
nation of the
§
interpretation
40-6-120
be consistent
of
PUC),
the correct
court arrived at
since that
statutory purpose.
the
with
request
Blackjack timely filed its
result. Because
mg
expiration
its services after
tempo-
of its
proposition
“timely”
the
filing
that a
of a
rary authority
but
request
PUC’s render-
operation
extension “tolls” the
of
ing
40-6-120(1).
a decision on
permanent
the carrier’s
section
authority application.” Maj. op. at-.
I
Assembly
The General
provided
could have
However,
disagree.
do not
giving effect to
operating
that a carrier
tempo-
under initial
plain language
holding
of the statute and
rary authority
operate
could continue to
until
may
that the
grant
PUC
not act to
an exten-
upon
timely request
PUC acted
a
for an
beyond
days
sion
does not frustrate the
extension of that
authority. For
purpose of the statute. Carriers will not
example, such a
specifically
scheme is
creat-
they
suffer financial
if
request,
loss
and the
ed in the State Administrative Procedure
grants, an
PUC
extension 'of
au-
(1993
Act. See
10A C.R.S.
thority
timely
in a
mannеr.
Supp.) (stating
may
that a licensee
continue
under his
case,
license until an administrative
Even in this
the intent of the General
agency
upon
request
has acted
a
for renew-
Assembly
Although
was not frustrated.
al).
legislature
The
provision
made no
delayed
PUC
of
tolling the statute. Subsection
of section
ty beyond
time,
statutorily required
specifically
40-6-120
possibili-
forecloses that
Express,
(Blackjack),
Shuttle
Inc.
ty by barring the use of the State Adminis-
request
did not
an
days
extension until two
trative
Procedure Act or
alternate vehi-
165-day
before the
tempo-
renewing
cle for
or
rary authority.
majority
states that this
grants
authority.1
filing
If the
of a re-
request
“timely.” Maj.
op. at 411.
It
quest may
stаtutory
limit,
toll the
time
as the
was not. The PUC’s Rule of Practice and
majority
suggest,
au-
50(j)(4) provides
Procedure
that a “motion
thority may theoretically
perma-
become a
for an extension
[temporary authority]
nent
if the PUC never makes a
twenty days
be filed at least
should
my view,
determination.
In
this was not the
expiration”
request
so that the
for an exten-
Assembly
intent of the General
when it en-
sion can determined
-temporary
before the
(1993).
40-6-120,
acted section
17 C.R.S.
40-6-120(1)
authority expires. Section
re-
quires
showing
good
Accordingly,
cause to obtain an
I dissent.
temporary authority beyond
say
I am authorized to
that Justice SCOTT
180-day period
protection
and to obtain
joins in this dissent.
temporary authority until the administrative
processes
completed.
are
dissenting:
Justice SCOTT
Therefore, Blackjack complied
if
with the
join
I
the dissent of Justice Erickson.
I
PUC rule which was enacted as a result of
however,
separately,
write
to make clear that
statutory
limitation,
purpose
majority grants
the deference the
the statute would have
my
been satisfied.
Public
only
Utilities Commission not
falls
view, we should not rewrite the statute to
being
short
compelled,
it is not due.
give
group
one
the benefit of the statute
An agency
interpreting
decision
a statute
group
comply
when that
failed to
regulates
which it
is entitled to considerаtion
PUC rules.
and,
instances,
many
deference
courts.
majority
Blackjack’s
filing
relies on
of Trinity
Hall,
Universal Ins. Co. v.
690 P.2d
for an extension as the crucial
(Colo.1984). However,
agency’s
deci-
event that
180-day peri-
somehow “tolls” the
only
given
sion should
be
controlling weight,
plain wording
od. The
of the statute re-
arbitrary, capricious,
unless
manifestly
quires that
initial
law,
contrary to
policy
when it relates to
may not be
aggregate
for more than an
peculiar
matters
to its
compe-
administrative
days,
only
granted
and extensions can
NLRB,
Phelps Dodge
tence.
Corp. v.
during
180-day period.
U.S.
61 S.Ct.