Pena v. District Court of Second Judicial District
681 P.2d 953
Colo.
1984
Check Treatment

*1 PENA, Denver, Mayor of T.J. Federico

Hackworth, Carpio, Robert Salvador Jr.,

Crider, Davis, Cathy Do Hiawatha

nohue, McIntire, Reyn Cathy Nieves

olds, Scheitler, Silchia, William John J. Swalm, Den

and Paul Members of the Licht, City Council,

ver Michael Denver Auditor, Shaw,

City Thomas Denver Services,

Manager and Wil of General Smith, Manager Pub

liam E. Denver Works, Petitioners,

lic

v. OF the SECOND DISTRICT COURT In and For the

JUDICIAL DISTRICT DENVER, AND OF

CITY COUNTY

and the Honorable Sandra I. Rothen

berg, Judge in and for District Court Denver, Elmer Mozee, Defendant,

E. James D. Thom

as, Administrator, Respon State Court

dents.

No. 83SA286. Colorado,

Supreme Court of

En Banc.

April 1984. *2 Zall, City Atty., George

Max P. J. Cer- rone, Jr., Denver, City Atty., peti- Asst. tioners. Mathis,

Hughes Dorsey, Karen J. Nan- & Reid, cy Denver, respondents. NEIGHBORS, Justice. original proceeding pursu-

This is an filed ant to C.A.R. 21 and section 3 of article VI of the Colorado Constitution in which the petitioners, Mayor Pena, al., Federico et respondent contest the judge’s jurisdiction to order the issuance of an amended cita- why tion to show cause and Coun- ty of Denver should not be temperature lower the in Courtroom 21 of the Denver District Court. We issued a why respondents rule to show cause prohibited should not be proceeding from against petitioners pursuant to the amended citation to show cause. We now make the rule absolute.

I. 8, 1983,Judge On June Sandra I. Rothen- respondent, berg, presiding was over a criminal case in the Denver District Court in which the charged defendant was conditions, equate specifically proceed- murder.1 The trial was courtroom attempted 21; (3) ing routinely in Courtroom when ventilation Courtroom ordered healthy juror became ill from the young, the clerk of the court to issue an amended delayed juror heat. The trial was while par- citation to cause directed to all time, During this rested. adjudication ties for a full McNichols, judge spoke with William H. issues;2 hearing July set a date of *3 Mayor City County and then the permit parties in order to the added (County). Mayor McNichols ad- Denver present arguments regarding their respon- respondent that it was the vised facilities, adequacy of the courtroom (State) sibility of the State of Colorado intervention, necessity ap- of court and the County than the to cool the court- rather propriate remedy, any; if and denied the respondent day, On that room. petitioners’ stay pro- motion for a of the directed the Clerk of the Denver District ceeding. Court to issue a citation to show cause petitioners were served with ordering D. Lamm and Governor Richard 12, 1983, July amended citation on and filed McNichols, Mayor rep- or their authorized original July proceeding this on 1983. resentatives, appear before the court on We issued the rule to show cause and or- 6, 1983, July “why they cause stay proceedings respon- dered a in the temper- should not be ordered to lower the 14,1983. July dent court on ature in Courtroom 21 of the Denver Dis- petitioners concede that Colorado habitable, and trict Court to a healthful possess However, powers. courts inherent properly temperature.” The ci- ventilated they claim that the doctrine of inherent upon appropriate per- tation was served powers abrogated, has been or at least governor’s mayor’s son in both the limited, severely adoption of consti- offices. tutional, statutory, procedural, and admin- 28, 1983, respondent judge On June regulations. istrative rules and Since the prehearing held an informal conference for petitioners contend that the district court purpose clarifying the issues to be comply applicable failed to rules July represent- Attorneys resolved on 6. procedures, they argue that the court and ing County orally the State and the re- jurisdic- acted without and excess of its quested respondent that the court vacate by ordering the clerk to an tion issue quash the order and the citation on the why amended citation to show cause grounds respondent that the court lacked petitioners should not be ordered to lower personal jurisdiction and matter temperature in 21. Courtroom over them and had acted without and in statutory authority by issuing excess of its

the order and citation. The II. judge directed counsel to file written mo- Article III of the Constitu Colorado July tions and continued the case until powers govern tion divides the of state 1983. co-equal ment into three distinct and that, departments or and directs 6, 1983, branches July respondent judge

On the» person persons or collection of hearing. conducted a theAt conclusion of “[n]o charged powers prop hearing, with the exercise of granted she the State’s erly belonging departments to one of these ground motion to dismiss on the that it has any power properly belong duty provide adequate no in shall exercise courtrooms others_” ing County; Denver determined that to either of the The fun- responsible maintaining meaning separation was ad- damental caption People mayor, 1. The v. case is Elmer E. and city of Denver: members of the Mozee, council, auditor, general Criminal manager, Action No. 82CR2097. services public manager; D. works as well as James parties 2. The to whom the amended citation was Thomas, State Court Administrator. following issued include the officials of the powers powers that the doctrine is three branches at 22. The inherent coordinate, government separate, possess are powers courts consist of: “[A]ll Miller, equal. reasonably required Smith v. 158 Colo. to enable a court to 40-41, (1963), functions, perform efficiently 384 P.2d we its protect dignity, independence, integ stated: rity, and to make its lawful actions effec ingrained principle “It is an in our powers tive. These are inherent in the government departments that the three they sense exist because the court are coordinate and shall exists; is, the court therefore it has the co-operate complement, and at reasonably required to act an as the same time act as checks and balances (Emphasis origi efficient court.” Id. against one another but shall not inter- nal.) Accordingly, adopted this court has fere with or encroach on the or general rule that the branch of province within the of the other. The government possesses the inherent departments and executive *4 compel payment to determine and of those their functions and their exclusive money sums of which are reasonable and powers, including ‘purse’ and the necessary carry to out its mandated re judiciary ‘sword.’ The has its exclusive sponsibilities. Smith, 35, 153 Colo. 384 functions, powers judg- to-wit: it has policy P.2d 738. The sup consideration power judg- ment and the to enforce its porting cogently this rule was in stated responsibil- ments and orders. In their Tate, Commonwealth ex rel. Carroll v. duties, ities and the courts must have 45, (1971) (Pom 442 Pa. 274 A.2d 202 complete independence. ... is the [I]t J., eroy, concurring): genius government of our that the courts acknowledged “It must be also that crit- independent, unfettered, must be needs, ically important especially in directives, influence, free from or inter- cities, large competing strenuously are any ference from extraneous source. It revenues, for a share of tax and this in a is principles legal abhorrent to the of our period of serious inflation. system No evidence and to our form of governments to courts, establish that being that depart- a coordinate at all experiencing levels are fi- government, severe ment of should be com- opinion nancial strains. pelled As the of the depend upon to vagaries of an out, points however, Court the court sys- extrinsic will. Such would interfere with in Philadelphia tem operation courts, just is not another impinge upon competing need; cause or it their is itself a thwart effective ad- separate government, co-equal branch of justice. ministration principles, These legislative executive and concepts, and branch- thoroughly doctrines are so es headed the defendants in this legal system embedded in our case. they that degree, The distinction is one not of but have become bone and sinew of our state of kind. No doubt the courts must polity.” and national be mindful, making the estimates of their separation powers doctrine needs, financial of the needs of the total imposes upon judiciary proscription community problems and of the against interfering with the executive or legislative them; funding branch in but branches, legislative duty as well as a to having the courts made their determina- perform its constitutional statutory ob being tion as reasonably necessary to ligations complete independence. See performance of their constitutional func- Smith, 153 Colo. at 384 P.2d at 741. tions, it legislative is not for the branch aspect separation This latter pow deny to the reasonableness or the neces- places ers doctrine on courts the “affirma sity ground on the that something else is obligation[s] tive fully to assert and exer urgent more important.” or more powers, operate cise their efficiently by (Footnote omitted.) standards, modern protect and to their in ” dependent Carrigan, status.... Inherent The doctrine of the pow- courts’ inherent Finance, Trial, Powers and Nov.-Dec. er to order the or executive de-

957 partments provide reasonably proceed cautiously courts must when invok- necessary operate branch of ing powers. their inherent The need which government is not of origin. recent As the powers causes a court to such invoke must Pennsylvania Supreme stated in Court reasonably be necessary proper for its Carroll, Commonwealth ex rel. 274 A.2d functioning, and this determination is sub- at 199: ject appellate Moreover, review. a court “Mr. Chief Justice Marshall said may exercise its only inherent when Maryland,

McCulloch v. 17 U.S. established methods for procuring neces- (1819), Wheat. L.Ed. 579 sary funds have failed and the court has '... to tax involves the determined that assistance ’ destroy; Legislature ... A has the performance for the effective power of life and death over all the functions cannot by any be obtained other Sys- Courts and over the entire Judicial O’Coin’s, means. See Inc. v. Treasurer of Legislature tem. Unless the can be com- Worcester, 362-Mass. pelled by the Courts to the mon- (1972). N.E.2d 608 ey reasonably necessary which is proper functioning and administration of A. Courts, system our entire Judicial petitioners argue by adopt extirpated, Legislature could be ing 106(a) C.R.C.P. this court has abolished mockery could make a of our form of practice using special writs and di co-equal Government with its three procedures rected that rules and pro Executive, Legislative branches—the *5 process vide due be followed in matters and the Judicial.” formerly by resolved such extraordinary Trial increasingly courts have in Thus, proceedings. petitioners argue voked the inherent doctrine to com that person- court in lacked pel appropriations expenditures or of funds am and jurisdiction matter over judicial purposes. for Appellate courts them because the court could not exer uniformly upheld the exercise of this jurisdiction cise filing without the aof com power expenses when such were reason plaint summons; there are no ably necessary operation to the efficient of parties adverse in proceeding, thus no performance the court or the of controversy exists. functions and were necessary by made arguments These refusal of the are without merit. In legislative executive or County, Colo.App. branch to Lawson v. Pueblo 36 requests.3 honor reasonable 370, However, (1975), 540 P.2d the inherent of 1136 the court of courts is public appeals not requires unlimited. The held that relief in interest the nature of that government the three proper remedy branches of mandamus is a to force cooperatively work harmony. compliance and in See with a statute which contains Fawell, Knuepfer 284, v. 96 Ill.2d mandatory language places 70 Ill. continuing 708, (1983). Thus, Dec. 449 N.E.2d 1312 responsibility in the counties to Saline, 538, County, 3. Rose v. Palm Beach County 361 So.2d 135 Bass v. 171 Neb. 106 of (Fla. 1978); Fawell, 284, Knuepfer (1960); v. 96 Ill.2d 70 N.W.2d 860 In re Salaries Probation 708, (1983); Ill.Dec. 449 N.E.2d 1312 422, Noble Bergen County, 58 N.J. A.2d 278 Officers of State, 172, County Council v. 234 Ind. 125 (1971); Davis, Kitzmeyer 417 State ex rel. v. 26 (1955); Appointment N.E.2d 709 In re Clerk 373, (1902); of Finley Nev. 68 P. 689 State ex rel. v. Appeals, (Ky.App. Court 297 S.W.2d 764 149, of Pfeiffer, Ohio St. (1955); 163 126 N.E.2d 57 O’Coin’s, 1957); County Inc. v. Treasurer of Tate, Commonwealth ex rel. Carroll v. 442 Pa. Worcester, 507, (1972); 362 Mass. 287 N.E.2d 608 45, (1971); 274 A.2d 193 State ex rel. v. Moran Judges County the Third Judicial Circuit v. Administration, 311, Department 103 Wis.2d 228, 1, Wayne, 190 N.W.2d 386 Mich. cert. de (1981); 307 N.W.2d 658 In re Courtroom and nied, 923, 961, 405 U.S. 92 S.Ct. 30 L.Ed.2d 794 Court, 109, Circuit 148 Wis. 134 N.W. Officers of (1971); State ex rel. Weinstein v. St. Louis Coun (1912); Court, Supreme 490 In re Janitor 35 ty, (Mo.1970); 451 S.W.2d 99 State ex rel. Hillis (1874). Wis. 410 Sullivan, (1913); v. 48 Mont. 137 P. 392 958 be the that, pursued the result here would The court reasoned

court facilities. deny remedy judiciary to the “[i]ndeed, to a same.” only make that branch of would not ... 42-43, (emphasis 742 Id. at 384 P.2d at arbitrary to the subservient added). (or inaction) of the executive branch action jurisdictions have simi of other Courts branch also allow the executive but would courts to recognized larly impunity, specific di- ignore, other than proceedings by means initiate 36 rectives of the branch.” Knuepfer, of a civil action. institution P.2d at 1138. Colo.App. at 540 (case N.E.2d 1312 be 70 Ill.Dec. 449 Smith, P.2d 153 Colo. order); administrative gan as court’s court initiated suit judges of the district O’Coin’s, Inc., (court up 287 N.E.2d 608 El Commissioners against the Paso right judge of a to issue held the inherent complaint they request- in by filing a parte tape recorder since ex an order for a declaratory mandamus and a ed a writ of unavailable); reporter was a court trial court entered the judgment. Jacobs, (Mo. v. Schwartz 352 S.W.2d 389 requested and the coun- judgment ordered App.1961) (process may be the form of pay the salaries of ty commissioners to rel. cause); State ex an order to show employees as fixed district court Administration, Department Moran v. judges. upheld the trial court’s This court (1981) (the 311, 307 N.W.2d 658 103 Wis.2d procedure used in ruling approved parte to issue an ex order court has case, proce- but indicated that such formally instituting an action without remedy. exclusive We stat- dure is not the and free exercise preserve order to the full ed: functions); State v. of its above, judiciary, pointed “As out County, Wis.2d Court Kenosha separate departments of as one of the (court upheld trial 105 N.W.2d structure, charged governmental county directing order commission court’s justice and with the administration of conditioning pay for air unit which ers perform free to its functions must be chambers). installed in had impairment by without restriction or department. acts or conduct of another *6 procedure in proper

Hence a the circum- B. by stances shown this record would have petitioners The also contend that the re- judges to been for the involved spondent judge’s inherent to order certified to the Board of Commis- the amended citation to the clerk to issue sioners a schedule of salaries fixed for abrogated, or at least show cause has been compensation the of the several clerical in superseded, by provisions set forth involved, employees whereupon it would 5, article of the Consti- section VI Colorado upon procure the Board to devolve tution; 13-3-108, C.R.S.1973; and section furnish the funds to meet such schedule. disa- Chief Justice Directive No. 79-6. We In the event or refusal failure gree argument. with their so, might properly do the court issue a constitution, our the inher Under citation or rule directed to Board to compel expendi ent of a court to why cause an order should not be show reasonably necessary ture of for the compelling compliance entered with adequate functioning system of the court the schedule as so Unless the certified. Therefore, lodged judiciary. in the such Board was able establish that inherent cannot be taken from the wholly schedule of salaries so fixed was unreasonable, given to either the executive or courts and capricious arbitrary, See State ex rel. legislative branches. compelling compliance an order there- Moran, 307 N.W.2d at 662. case, In this with could be entered. We do not hesi- however, judgment tate to affirm the since it is court exceeded its procedure issuing clear that had a different been in an amended citation to 1, adhering applicable day 1970 and the first cause without of each Novem- thereafter, procedural requirements. long-range judicial a ber con- plan. plan struction Such shall outline Historically, placed law has Colorado priority a capital on basis the construc- duty providing courthouse facili- suitable court, by county, tion needs of each upon county commissioners of each ties years. copy the next five A long- of the 372, Lawson, county. Colo.App. at See range judicial plan construction shall be 30-11-104, 1137; 540 P.2d at section C.R.S. annually joint budget filed com- adopted by 1973. In amendments general assembly mittee of the 37, C.R.S.1963, chapter the General Assem- budget executive committee. bly indicated its intention to take over the (4)(a) justice The chief is authorized to providing adequate ju- financial burden of approve payment of state funds for the dicial facilities. Colo.Sess.Laws any capital improvement construction of ch. 37-11-10 at C.R.S.1963. How- ever, judicial purposes facilities to be used for Assembly provided the General in 13-3-108(1), C.R.S.1973, approved authorized and by general section commissioners, county excep- assembly. with certain

tions, provide adequate must and maintain (b) administrator, The court with the Specifical- courtrooms and other facilities. approval justice, of the chief shall enter 13-3-108, C.R.S.1973, ly, section stated: leasing agreements into govern- ing body appropriate “Maintenance court local unit of facilities—

capital improvements. joint The board when construction is authorized, county county in approved commissioners each or when the facili- responsibility shall continue to have the ties are also to nonjudicial be used for providing maintaining adequate purposes. leasing agreement The shall courtrooms and payment other court facilities in- of state funds service, cluding janitorial except portion as oth- for that of the construction costs provided erwise in operation this section. related to the of the courts.” administrator, The court administrator, the state court after approval justice, of the chief shall following statutory procedure set forth prepare annually capital construction above, seeking filed an action a writ budget. capital budget construction nature against of mandamus the Pueblo specify: shall The additional court hous- County Commissioners to enforce subsec- ing court; facilities for each Lawson, tion of the statute. See estimated cost of such additional struc- Colo.App. 540 P.2d 1136. The chronol- tures or facilities and whether such addi- ogy of events filing which resulted tional court structures or facilities will of the suit in are Lawson these: Gen- space governmen- include used other Assembly eral authorized an additional dis- nonjudieial purposes; tal units for *7 and a judge trict for the Tenth Judicial District report present detailed on the court facil- appropriated money and necessary currently ities in use and the for reasons salary However, equipment. and the Gen- inadequacy. copy capital their A of such Assembly appropriate eral failed to budget construction shall be submitted to to construct additional courtroom facilities. joint budget gener- the committee of the 13-3-108(1) Relying on sections and 30-11- assembly budget al and the executive 104, C.R.S.1973,4 appeals the court of held day office on or before the first of Octo- that since the appro- State had refused to ber of succeeding year. and each monies, priate necessary the Pueblo (3) The pre- responsible court administrator shall was providing adequate for pare facilities, and submit on or before November courtroom notwithstanding the 30-11-104, C.R.S.1973,provides: jail, necessary county Section sufficient and other 4. buildings, keep repair.” "County buildings. county, and them in Each at its own courthouse, expense, provide shall a suitable Hodges provisions According- 13-3-108. Justice Paul V. issued a “Directive of section Authority ly, appeals Concerning Delegation the ruled that the trial court of the properly a writ of Responsibility Judges” court issued mandamus and to Chief which county ordering adequate the is identified as No. numbered and CJD However, the court courtroom facilities. 79-6. delineates the This directive division only stated should contain that the order authority the within Colorado guidelines the which board must follow system. Specifically, provides the directive requirements governing physical need- judge that each “shall all chief submit re- adequate ed to maintain an courtroom facil- quests capital outlay to the court state dimensions, ity parti- acceptable such as approve “shall administrator” and all tions, and ventilation. court held that equipment rentals and leases or submit ordering the trial court too far in “went same to court the state administrator for specific that a location be made available to prior consummating agree- review judiciary.” at 540 P.2d Id. at 1139. provisions specific ment.” These set forth procedural guidelines which courts must decided, Since was Lawson subsec requesting follow in monies section tions 13-3-108 have improvements from either the State or 13-3-108, been amended. section C.R. responsible county board. (1983 Cum.Supp.). Significantly, S.1973 legislature added subsection although We conclude that provides: respondent judge possessed the inherent “(5) 1, 1975, July On and after construc- power to issuance of order the the amended remodeling any tion or court or court- cause, citation to she exceeded her facility be only related shall commenced authority provi Under the this case. prior approval justice of the chief statutes, sions of the and di constitution, supreme the Colorado court after consul- justice rective of the chief which we have county tation with the board of commis- opinion, discussed in this sioners; except that a board county proceedings initiate for the construction commissioners, discretion, at may adequate and maintenance court facili take such actions.” judge ties is vested in the chief of each Thus, improvements present, requiring at judicial district Chief Justice of the capital outlay, improvements which include Supreme Colorado Court who makes the classified as “construction” or “remodel- final decision. hold To otherwise could ing,” may only be undertaken ap- after officials in the and exec proval by Justice of Chief the Colorado utive branches of to inconsist Supreme Court after consultation with the district, ent each county, orders entered county board of commissioners. appellate judge the State of Colora do. addition, promul this court has gated governing administrative rules C. operations internal and administration of Finally, petitioners urge this court to VI, judicial system. the Colorado Article hold that the State rather than the 5(2) section of the Colorado Constitution responsible lowering temperature provides justice that the chief is the execu light in Courtroom 21. In of our resolution judicial system. tive head of the Article grounds, this case on other we decline to VI, 5(4) provides section that the jus chief proper address the issue of allocation appoint tice shall a chief for each *8 responsibility financial for providing ad- judicial that judge district and each chief equate court facilities between the State “shall have and exercise such administra and City County and of Denver. powers judges tive over all of all courts may within his be delegated district as to The rule to cause is made absolute. him by the justice.” chief Based on this grant power, DUBOFSKY, J., constitutional former Chief dissents. Fawell, (Fla.1978); Knuepfer v.

DUBOFSKY, Justice, dissenting: 96 Ill.2d (1983); 70 Ill.Dec. 449 N.E.2d 1312 majority The respectfully I dissent. O’Coin’s, Inc. v. Treasurer of pos- respondent rules that the district court Worcester, 362 Mass. 287 N.E.2d 608 the is- the inherent to order sesses (1972). why the of a citation to show cause suance state of Denver and the only evidence in the record before us court administrator should not be respon- on this issue is a statement conditioning, to air but concludes dent district court to the effect that authority that the district court lacks the state court administrator had indicated to do so. I believe that we lack the informa- request the court his refusal funds for necessary tion to determine whether conditioning air from the General Assem- respondent properly, court acted and I bly bring any against or to action Denver. hearing case for a on would remand this case, If this is the and I have no reason to meth- the issue of whether the established not, believe that it is this court should not providing ods for funds for conclude, majority, as has the that the re- functioning efficient of the court have spondent court lacks the to order Therefore, discharge failed.1 I would the issuance of a citation to show cause. rule. The majority’s result is to some extent on holding based its conclusion that the Chief Jus- agree majority I that a powers tice Directive removes all inherent things court has inherent to do those every judge except from for the chief reasonably necessary per- for the efficient every justice. district and the chief I judicial formance of its functions. One of procedure providing read the Directive as important responsibilities the court’s most cases, followed in most not ensuring be as a that citizens receive a fair trial. doing away document with a court’s com- It is obvious to me that control perform mon-law own court- court cannot its functions effi- way necessary room in a ciently fairly if fulfillment its courtroom is so hot of its duties. jurors agree that faint ill. I and become majority also with the observation that the The record before us indicates that powers poten- doctrine of inherent has the specifically not parties were advised damaging political tial to create conflicts need to discuss issue of the failure of government, with other branches Therefore, methods. I established would should-only it be invoked in situations discharge suggest the rule but to the court necessity. procedure of clear describ- proceedings that further should include a ed in Chief Justice Directive No. 79-6 is consideration of whether established meth- important and should be followed in most adequate ods to obtain courtroom facilities circumstances, thereby reducing conflicts have failed. between the branch of and the executive and branches.

However, where the method contained in 79-6,

Directive No. or other established procuring necessary

methods attempted attempts

have been

failed, a district court maintains its authori-

ty expenditures necessary to order performance

effective of its own functions

under the inherent doctrine. City,

Rose v. Palm Beach 361 So.2d 135 hearing appropriate remedy, any. stayed 1. The district court had scheduled a if We adequacy determine the ties, of the courtroom facili- hearing. scheduled intervention, necessity of court