BRILLIANT. BOLD. EFFECTIVE.
Making Municipal Ordinances Part of the Court Record in Colorado Civil Actions
One particular idiosyncrasy about litigating civil cases in Colorado state courts is that state courts cannot take judicial notice of municipal code or municipal ordinances. That is, even though municipal ordinances represent codified laws of local municipalities, similar to how state statutes represent codified state law, Colorado state courts cannot simply take notice of the existence of those ordinances. Instead, municipal ordinances need to be entered into evidence or officially made part of the record in order for a state court to properly consider them.
This particular quirk stems from the jurisdictional limits of local Colorado courts. In particular, there are two main types of local Colorado courts: state courts that are divided up assigned to various district and counties in Colorado, and municipal courts that function solely as judicial bodies in their respective municipalities.
Common examples where this distinction often arises include violations of municipal versus state traffic laws, as well as the implementation of other regulations adopted by local municipalities that can range from zoning codes to local liquor laws. In general, one way to tell whether one is dealing with a municipal ordinance or a state law is, if the law was adopted by a city council as opposed to the state legislature, then it is likely a municipal ordinance as opposed to a state statute.
Notably, this jurisdictional distinction that gives rise to separate municipal and state courts comes from the Colorado Constitution. More specifically, the Colorado Constitution grants municipalities the authority to govern themselves, including the power to legislative, regulate, conduct, and control matters within the municipality. Accordingly, in effect, municipalities are considered their own governing entities separate and distinct from, but coexistent with state law. See Colo. Const. Art. XX, § 6.
In contrast to municipal courts which only have jurisdiction over municipal laws, state courts are considered courts of general jurisdiction. Accordingly, because municipalities are considered separate and distinct local governments, in state court their ordinances are given the same status as foreign or private laws meaning that they must be averred and proven like any other alleged fact. Thus, Colorado state courts may not take judicial notice of municipal ordinances in either civil or criminal cases. See City of Pueblo v. Murphy, 542 P.2d 1288, 1289 (Colo. 1975); Dewell v. Lawson, 489 F.2d 877, 889 (10th Cir. 1974).
Miscellaneous Considerations for Making Municipal Ordinances Part of the Court Record
Notably, while state courts may not take judicial notice of municipal ordinances, municipal courts are permitted to take judicial notice of the ordinances within their own jurisdiction. Accordingly, ordinances do not have to be proven as facts in municipal courts that are enforcing their own ordinances. See City of Pueblo v. Murphy, 549 P.2d 1288, 1290 (Colo. 1975).
Similarly, where a Colorado state court is sitting in place of a municipal court, such as where an appeal has been taken from municipal court to state court and the state court is holding a de novo trial, then the state court may take judicial notice of the relevant ordinances since it is, in effect, acting as a municipal court. See City of Pueblo v. Murphy, 549 P.2d 1288, 1290 (Colo. 1975).
Overall, perhaps the most practical effect of Colorado state courts inability to take judicial notice of municipal ordinances occurs in civil cases challenging or otherwise involving decisions under municipal code. One particular class of cases this issue frequently arises in is challenging local municipality decision, such as challenging quasi-judicial city council decisions under Colorado Rule of Civil Procedure (“C.R.C.P.”) 106(a)(4) or challenging the adoption of a city council legislative decision under C.R.C.P. 57.
In such circumstances, often what happens is a city council, or other local governing body, will make a factual decision under an ordinance or adopt an entirely new ordinance and local citizens opposed to the decision or ordinance will file an action in Colorado state court contesting it. In these types of actions, especially for quasi-judicial actions under C.R.C.P. 106(a)(4), a record will have to be designated and it is imperative that a copy of the municipal ordinances be included in the record.
Similarly, for C.R.C.P. 57 actions contesting a municipality’s legislative decision, any relevant ordinances will have to be entered into evidence or otherwise designated as part of the record at some point during the progression of the case. Importantly, in these types of cases, failure to properly designate or otherwise include municipal ordinances in the record may lead to dismissal. See Alpenhof, LLC v. City of Ouray, 297 P.3d 1052 (Colo. App. 2013) (indicating appellate review is limited to ordinances that were properly included in the record). But see Concrete Contractors, Inc. v. City of Arvada, 621 P.2d 320, 321 (Colo. 1981) (remanding so that the record could be supplemented with the pertinent municipal ordinances).
Additional cases where introduction of municipal ordinances can have an effect include personal injury cases where municipal regulations may help establish negligence. That is, the violation of a municipal ordinance can help establish that a duty or certain action was required to be taken and lack of conformance with the ordinance can be used as evidence that the defendant’s actions were negligent. See Kulik v. Public Service Co. of Colorado, 605 P.2d 475 (Colo. App. 1979); Novak v. Craven, 195 P.3d 1115 (Colo. App. 2008).
Importantly, where ordinances must be factually proven in court, Colorado Revised Statute § 31-16-208 provides that state courts shall accept into evidence copies of municipal codes that are in published form and duly certified by the clerk and mayor of the municipality. Accordingly, where the parties do not stipulate as to the admissibility of a municipal ordinance or the entire code, it may be necessary to obtain a copy certified by the clerk and mayor in order to properly introduce it into evidence. See Novak v. Craven, 195 P.3d 1115 (Colo. App. 2008).
Lastly, and curiously, while Colorado state courts are generally prohibited from taking judicial notice of municipal code, they may take judicial notice city charters; that is, the establishing document for the city itself. See Concrete Contractors, Inc. v. City of Arvada, 621 P.2d 320, 321 (Colo. 1981); Bennett v. Shotwell, 194 P.2d 335 (Colo. 1948).
© 2018 J.D. Porter, LLC. Author: Jordan Porter. Denver, Colorado.
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