(574 P.2d 516)
No. 77-657Colorado Court of Appeals.
Decided January 19, 1978.
Discharged fireman brought action seeking review of that discharge, but trial court dismissed action on basis that it had not been commenced within statutorily prescribed time limits. Fireman appealed.
Affirmed
1. ADMINISTRATIVE LAW AND PROCEDURE — Aggrieved Party — Time Period — Commence — Judicial Review — Reduced — Discharged Fireman — Administrative Appeal — Final — After — Effective Date — Amendment — Review Action — Not Timely. Where amendment to Administrative Procedure Act reduced from 60 to 30 days the time period during which a party aggrieved by an agency action could commence action to review that agency ruling, and where that amendment took effect after discharged fireman had sought administrative appeal of his discharge, but before civil service committee had acted upon that appeal, the fireman’s right to judicial review did not arise until the civil service committee’s decision affirming the discharge had become final, and thus the 30 day period under the amended statute was then applicable; hence, his action for judicial review filed outside that 30 day period was not timely and was properly dismissed.
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Appeal from the District Court of Adams County, Honorable Abraham Bowling, Judge.
Brauer Simons, P.C., Mark N. Simons, Thomas B. Buescher, for plaintiffs-appellants.
Stitt, Wittenbrink Roan, P.C., James R. Stitt, for defendants-appellees.
Division I.
Opinion by JUDGE ENOCH.
The plaintiff William McCartney was employed as a fireman for the West Adams County Fire Protection District. On May 11, 1976, the Board of Directors of the District discharged McCartney from his employment. On May 14, 1976, McCartney filed an appeal with the Civil Service Committee of the District challenging the validity of the discharge. By a decision which took effect on September 29, 1976, the Committee upheld the action of the Board of Directors. On November 22, 1976, plaintiffs commenced an action in the district court seeking judicial review of the decision of the Civil Service Committee. Upon motion of the defendants, the court dismissed the plaintiffs’ action on the basis that it had not been commenced within 30 days of the effective date of the Committee’s decision as required by § 24-4-106(4), C.R.S. 1973 (1976 Cum. Supp.). From that dismissal plaintiff appeals. We affirm.
Section 32-5-315(5), C.R.S. 1973, provides that judicial review of a decision of a Civil Service Committee of a Fire Protection District “may be had in the same manner as prescribed in section 24-4-106, C.R.S. 1973.” Section 24-4-106, C.R.S. 1973, provided as follows:
“Any party adversely affected or aggrieved by any agency action may commence an action for judicial review in the district court . . . within sixty days after such agency action becomes effective.”
Effective May 24, 1976, an amendment to this statute reduced the time period in which a party aggrieved by agency action could commence an action for judicial review from 60 to 30 days. See § 24-4-106(4), C.R.S. 1973 (1976 Cum. Supp.).
Admittedly plaintiffs’ action for judicial review was not commenced within 30 days of the effective date of the decision of the Civil Service Committee. Plaintiffs contend, however, that their cause of action accrued
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on May 11, 1976, the date McCartney was discharged from his employment, and that the 60 day limitation period which was in effect until May 24, 1976, was applicable.
An amendment to a statute is not to be given retroactive application unless a contrary intent is clearly manifested therein. Allchurch v. Project Unicorn, Ltd., 33 Colo. App. 173, 516 P.2d 441. However, a statute is not considered to be retroactive in its application merely because the facts upon which it operated occurred antecedent to its effective date Rowe v. Tucker, 38 Colo. App. 532, 560 P.2d 843; Tucker v. Claimants in the Death of Gonzales, 37 Colo. App. 252, 546 P.2d 1271.
[1] In Rowe v. Tucker, this court held that a statute used in computing the period of redemption did not become material until the right of redemption arose, that is, until after the foreclosure sale, and concluded therefore that a statute which became effective between the date the deed of trust was executed and the foreclosure sale consummated was not retroactively applied. Similarly, a statute defining the period within which judicial review can be sought does not become material until after the right to review arises, that is, until after a final decision adverse to claimant. See Colorado Department of Revenue v. District Court, 172 Colo. 144, 470 P.2d 864. Accordingly, since the right to seek judicial review did not arise until September 29, 1976, the date when the Civil Service Committee’s action became final, the 30 day period which was in effect at that time was applicable.Plaintiff’s action for judicial review was not timely filed and the trial court’s judgment of dismissal was correct.
Judgment affirmed.
JUDGE COYTE and JUDGE PIERCE concur.
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