Current through Register Vol. 47, No. 5, March 10, 2024
1.1 Applicability:
Any person may petition the Secretary of State for a declaratory order to
terminate controversies or to remove uncertainties as to the applicability to
the petitioner of any statutory provisions or any rule or order of the
Secretary of State as required by CRS
24-4-105(11).
1.2 Initial determination:
(A) The Secretary of State will determine, at
her discretion and without notice to petitioner, whether to rule upon the filed
petition. If the Secretary decides not to rule upon the petition, the
petitioner shall promptly be notified of the action. The notice shall state the
reasons for the action.
(B) In
determining whether to rule upon a petition filed pursuant to this rule, the
Secretary will consider the following matters, among others:
(1) Whether a ruling on the petition will
terminate a controversy or remove uncertainties as to the applicability to the
petitioner of any statutory provision, rule or order of the
Secretary.
(2) Whether the petition
involves any subject, question or issue which is the subject of a formal or
informal matter or investigation currently pending before the Secretary or a
court involving one or more of the petitioners.
(3) Whether the petition involves any
subject, question or issue which is the subject of a formal or informal matter
or investigation currently pending before the Secretary or a court but not
involving any petitioner.
(4)
Whether the petition seeks a ruling on a moot or hypothetical question or will
result in an advisory ruling or opinion.
1.3 Content of petition: any petition filed
pursuant to this rule shall set forth the following:
(A) The name and address of the petitioner
and the relationship of the petitioner to the Secretary of State whether a
licensee, a person required to file with the Secretary of State, a citizen or
other relationship.
(B) The
statute, rule or order to which the petition relates.
(C) A concise statement of all of the facts
necessary to show the nature or the controversy or uncertainty and the manner
in which the statute, rule or order in question applies or potentially applies
to the petitioner.
1.4
Procedure for ruling: If the Secretary of State decides to rule on the
petition, the following procedures shall apply:
(A) The Secretary may rule upon the petition
based solely upon the facts presented in the petition. In such a case:
(1) Any ruling of the Secretary will apply
only to the extent of the facts presented in the petition and any amendment to
the petition.
(2) The Secretary may
order the petitioner to file a written brief, memorandum or statement of
position.
(3) The Secretary may set
the petition, upon due notice to petitioner, for a non-evidentiary hearing.
(4) The Secretary may dispose of
the petition on the sole basis of the matters set forth in the
petition.
(5) The Secretary may
request the petitioner to submit additional facts, in writing. In that event,
the additional facts will be considered as an amendment to the
petition.
(6) The Secretary may
take administrative notice of facts pursuant to the Administrative Procedure
Act. CRS 24-4-105(8), and
may utilize the experience, technical competence and specialized knowledge of
the Secretary in the disposition of the petition.
(7) If the Secretary rules upon the petition
without a hearing, the petitioner shall be promptly notified of the
decision.
(B) The
Secretary, at her discretion, may set the petition for hearing under CRS 1973,
24-4-105, as amended, upon due
notice to petitioner, for the purpose of obtaining additional facts or
information or to determine the truth of any facts set forth in the petition or
to hear oral argument on the petition. The notice to the petitioner setting the
hearing shall set forth, to the extent known, the factual or other matters into
which the Secretary intends to inquire. The petitioner shall have the burden of
proving all of the facts stated in the petition, all of the facts necessary to
show the nature of the controversy or uncertainty, the manner in which the
statute, rule or order in question applies or potentially applies to the
petitioner and any other facts the petitioner desires the Secretary to
consider.
1.5 Parties
and intervention: the parties to any proceeding pursuant to this rule shall be
the Secretary and the petitioner. Any other person may seek leave of the
Secretary to intervene in the proceedings. Leave to intervene will be granted
at the sole discretion of the Secretary. A petition to intervene shall set
forth the same information as required by rule 1.3. Any reference to a
"petitioner" in this rule also refers to any person who has been granted leave
to intervene by the Secretary.
1.6
Final agency action: any declaratory order or other order disposing of a
petition pursuant to this rule shall constitute agency action subject to
judicial review pursuant to CRS
24-4-106(2).
1.7 Effective date: these rules were adopted
as emergency rules on July 9, 1991 and as permanent rules on November 6, 1991,
effective January 1,1992.
