The judge of a court having jurisdiction of
the alleged offense, upon affidavit filed with the judge alleging the commission of a crime and
the unjustified refusal of the prosecuting attorney to prosecute any person for the crime, may
require the prosecuting attorney to appear before the judge and explain the refusal. If after that
proceeding, based on the competent evidence in the affidavit, the explanation of the prosecuting
attorney, and any argument of the parties, the judge finds that the refusal of the prosecuting
attorney to prosecute was arbitrary or capricious and without reasonable excuse, the judge may
order the prosecuting attorney to file an information and prosecute the case or may appoint a
special prosecutor to do so. The judge shall appoint the special prosecutor from among the full-
time district attorneys, assistant district attorneys, or deputy district attorneys who serve in
judicial districts other than where the appointment is made; except that, upon the written
approval of the chief justice of the supreme court, the judge may appoint any disinterested
private attorney who is licensed to practice law in the state of Colorado to serve as the special
prosecutor. Any special prosecutor appointed pursuant to this section shall be compensated as
provided in section 20-1-308, C.R.S.
Source: L. 72: R&RE, p. 217, § 1. C.R.S. 1963: § 39-5-209. L. 77: Entire section
amended, p. 858, § 1, effective May 24. L. 2000: Entire section amended, p. 454, § 12, effective
April 24.
PART 3
PRELIMINARY HEARING
Notes of Decisions
Cited in
23
cases (
5 in the last 5 years), 1976–2026 · leading case:
Moody v. Larsen, 802 P.2d 1169 (Colo. Ct. App. 1990).
Moody v. Larsen, 802 P.2d 1169 (Colo. Ct. App. 1990).
· cites it 54× “Pursuant to § 16-5-209, C.R.S. (1986 Repl.Vol. 8A), Moody filed a complaint and affidavit alleging that Dowell was murdered and, accordingly, that Larsen's failure to prosecute was unjustified.”
KAILEY v. Chambers, 261 P.3d 792 (Colo. Ct. App. 2011).
· cites it 28× “In his motion, Kailey requested appointment of a special prosecutor pursuant to section 16-5-209, C.R.S.2010, and the issuance of a warrant to arrest DMB pursuant to section 16-3-108, C.”
Sandoval v. Farish, 675 P.2d 300 (Colo. 1984).
· cites it 21× “106 and section 16-5-209, C.R.S. 1973 (1978 Repl.”
Schupper v. Smith, 128 P.3d 323 (Colo. Ct. App. 2005).
· cites it 16× “Whether Schupper was entitled to a full evidentiary hearing turns on the interpretation of § 16-5-209, C.R.S.2005. In Moody v. Larsen, 802 P.”
J.S. v. Chambers, 226 P.3d 1193 (Colo. Ct. App. 2009).
· cites it 28× “" § 16-5-209, C.R.S.2008. Here, because we conclude that this high standard has not been met by clear and convincing evidence, the district court's order appointing a special prosecutor must be reversed.”
People Ex Rel. Losavio v. Gentry, 606 P.2d 57 (Colo. 1980).
· cites it 9× “Upon reaching the conclusion that the special prosecutor has exceeded his authority, we must now consider the parties’ claims for relief.”
Feigin v. Colorado Nat'l Bank, N.A., 897 P.2d 814 (Colo. 1995).
· cites it 9× “In Moody the court of appeals held that actions initiated pursuant to section 16-5-209, 8A C.R.S. (1986), are special statutory proceedings subject to the rules of civil procedure.”
City of Golden v. Parker, 138 P.3d 285 (Colo. 2006).
· cites it 2× “12, § 16-5-209, 2000 Colo. Sess. Laws 451 , 454, as recognized in Schupper v.”
Landis v. Farish, 674 P.2d 957 (Colo. 1984).
· cites it 9× “The Rio Grande County District Court dismissed the petition or affidavit of the appellants, Joe and Monica Landis, in support of an order to require the district attorney to prosecute pursuant to section 16-5-209, C.R.S.1973 (1978 Repl.Vol.”
Tooley v. Dist. Court in & for Second Jud. Dist., 549 P.2d 772 (Colo. 1976).
· cites it 6× “Three attorneys filed a petition in the district court seeking relief in the nature of mandamus or, alternatively, for the appointment of a special prosecutor under the provisions of section 16-5-209, C.R.S. 1973, which provides: “Judge may require prosecution.”
People ex rel. N.R., 139 P.3d 671 (Colo. 2006).
· cites it 5× “On September 29, 2004, Brian and Beverly Funaro filed a Petition for Order Requiring District Attorney to Explain Refusal to Prosecute under section 16-5-209, C.R.S. (2005). In the November 2004 general election, Robert Watson replaced Adams as the District Attorney for the…”
Gansz v. People, 888 P.2d 256 (Colo. 1995).
· cites it 2× “§ 16-5-209, 8A C.R.S. (1986). The remedy provided by § 16-5-209 has not been sought by Gansz in this case, although she would have standing to do so.”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.