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State Personnel Board3/7/1988
compliance.
The majority states that this issue is not properly before the court because it is not an issue which we accepted for review and it was not briefed in this court. Slip op. at 2. I do not find this reasoning persuasive.
I note first that the majority does reach the plaintiff's argument that compliance with the procedural requirements of the Whistleblowers Act fulfills the purposes of the notice requirements of the Governmental Immunity Act. Slip op. at 12-13. This argument can only be construed as one of substantial compliance. The majority's analysis of this issue is inconsistent with its assertion that the question of substantial compliance is not properly before this court.
C.A.R. 53(a)(1) provides that the statement of an issue in a petition for certiorari "will be deemed to include every subsidiary issue clearly comprised therein" and that issues "fairly comprised therein will be considered." See Vigoda v. Denver Urban Renewal Auth., 646 P.2d 900 (Colo. 1982). The United States Supreme Court, in interpreting the almost identical language of Sup. Ct. R. 21.1(a), has held that it "is not limited by the precise terms of the question presented" and the "fairly comprised" standard is met if an issue is essential to analysis of the lower court decision, Procunier v. Navarette, 434 U.S. 555, 559-60 n.6, 55 L. Ed. 2d 24, 98 S. Ct. 855 (1978), or essential to the correct disposition of the stated issue, United States v. Mendenhall, 446 U.S. 544, 551-52 n.5, 64 L. Ed. 2d 497, 100 S. Ct. 1870, reh'g denied, 448 U.S. 908, 65 L. Ed. 2d 1138, 100 S. Ct. 3051 (1980); see also Pulliam v. Allen, 466 U.S. 522, 528 n.5, 80 L. Ed. 2d 565, 104 S. Ct. 1970 (1984) (the issue of whether judicial immunity bars an award of attorneys' fees against a judge includes the question of whether judicial immunity bars the injunctive relief awarded); Arkansas Elec. Coop. Corp. v. Arkansas Pub. Serv. Comm'n, 461 U.S. 375, 382 n.6, 103 S. Ct. 1905, 76 L. Ed. 2d 1 (1983) (question of statutory preemption is properly included within a challenge based upon the Commerce Clause).
This court granted certiorari to determine whether an action brought under the Whistleblowers Act is subject to the notice provisions of section 24-10-109. Slip op. at 2. Section 24-10-109 explicitly provides that substantial compliance satisfies the notice provisions. To reach a correct disposition of this issue, in the context of this case, the court must determine whether there was substantial compliance with the notice provisions. Thus, I would find that the issue of substantial compliance is fairly comprised within the issues upon which we granted certiorari.
There is also a second, independent reason why the issue of substantial compliance is before us. As the Supreme Court has held repeatedly, the party prevailing in the court below is entitled to rely upon any grounds presented in the lower courts to support the judgment below despite a failure to cross-petition for certiorari on that basis. Blum v. Bacon, 457 U.S. 132, 137 n.5, 72 L. Ed. 2d 728, 102 S. Ct. 2355 (1982); Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 419, 97 S. Ct. 2766, 53 L. Ed. 2d 851 (1977); United States v. New York Tel. Co., 434 U.S. 159, 166 n.8, 54 L. Ed. 2d 376, 98 S. Ct. 364; see also Washington v. Confederated Bands and Tribes, 439 U.S. 463, 476 n.20, 58 L. Ed. 2d 740, 99 S. Ct. 740, reh'g denied, 440 U.S. 940, 59 L. Ed. 2d 500, 99 S. Ct. 1290 (1979) (" s the prevailing party, the appellee was of course free to defend its judgment on any ground properly raised below whether or not that ground was relied upon, rejected, or even considered by
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