No. 95SC314Supreme Court of Colorado.
September 23, 1996
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Certiorari to the Colorado Court of Appeals.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS.
Dallas, Holland O’Toole, P.C., Neil D. O’Toole, Denver, Colorado, Attorneys for Petitioners.
Gale Norton, Attorney General Timothy M. Tymkovich, Solicitor General Maurice Knaizer, First Assistant Attorney General State Services Section Denver, Colorado, Attorneys for Respondent Secretary of State.
Curt Kriksciun Colorado Compensation Insurance Authority Denver, Colorado, Attorney for Respondent Colorado Compensation Insurance Authority.
EN BANC.
CHIEF JUSTICE VOLLACK dissents.
JUSTICE KIRSHBAUM delivered the Opinion of the Court.
[1] In Denver Area Labor Federation v. Meyer, 907 P.2d 638(Colo.App. 1995), the court of appeals affirmed a judgment of the Denver District Court affirming an order entered on February 3, 1993, by the Secretary of State (the Secretary)[1]
dismissing a complaint filed by the plaintiffs-petitioners Denver Area Labor Federation, AFL-CIO, and Jack Hawkins (the petitioners) against the defendant-respondent Colorado Compensation Insurance Authority (the Authority). The petitioners alleged in the complaint that the
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Authority violated the Campaign Reform Act of 1974, sections 1-45-101 to -123, 1B C.R.S. (1980 1994 Supp.) (the Act), and exceeded its statutory authority in making contributions in kind or contributions of public moneys for the purpose of opposing a proposed amendment to the Colorado Constitution. A divided panel of the court of appeals determined that the Authority did not violate section 1-45-116(1)(a), 1B C.R.S. (1994 Supp.), of the Act because the contributions did not constitute contributions of public moneys or prohibited contributions in kind. Having granted certiorari to review the propriety of the court of appeals’ decision, we reverse and remand with directions.[2]
I
[2] The petitioners filed a petition with the Secretary to include on the 1992 state ballot a proposed amendment to the Colorado Constitution entitled the “Safe Work Environment Amendment.” An organization, the Coalition to Save Colorado Jobs (the Coalition), was formed to defeat the proposed amendment. The Authority printed articles opposing the proposed amendment in its publication and, on behalf of the Coalition, purchased posters prepared by the Coalition and distributed them to employers. In addition, the Coalition filed reports with the Secretary indicating that the Authority had made contributions to the Coalition.
II
[5] The petitioners argue that the moneys in the fund administered by the Authority constitute “public moneys” for purposes of section 1-45-116(1)(a), 1B C.R.S. (1994 Supp.).[3]
We agree.
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[6] Section 1-45-116(1)(a) contains the following pertinent language:[7] Section 1-45-116(1)(a) thus prohibits certain entities from expending “public moneys from any source” to urge electors to vote in a particular manner on issues before the electorate. [8] In construing the language of a statute, courts must ascertain and give effect to the intent of the General Assembly in enacting the statute. Boatright v. Derr, 919 P.2d 221, 224State and political subdivisions — limitations on contributions. (1)(a) No agency, department, board, division, bureau, commission, or council of the state or any political subdivision thereof shall make any contribution or contribution in kind in campaigns involving the nomination, retention, or election of any person to any public office, nor shall any such entity expend any public moneys from any source, or make any contributions in kind, to urge electors to vote in favor of or against any issue before the electorate. . . .
(Colo. 1996); Colorado Common Cause v. Meyer, 758 P.2d 153, 160
(Colo. 1988). To determine such intent, courts should first look to the statutory language giving words and phrases their commonly understood meaning. Colorado Common Cause, 758 P.2d at 160. If the language of that statute is reasonably susceptible to more than one meaning, courts should construe the language in light of the objective sought to be achieved. Id. Moreover, a statute should be construed so as to give consistent, harmonious, and sensible effect to all of its parts. Id. [9] The Act prohibits the expenditure of “public moneys from any source” for certain purposes. While the term “public moneys” is not defined, the all-inclusive language “from any source” indicates that the General Assembly intended an expansive definition of the phrase. Thus, the term “public moneys” may not be construed to refer only to sums realized from the imposition of taxes. Given the broad sweep of this term, any effort to determine whether certain moneys constitute public moneys for purposes of the Act by reference solely to the source of such moneys would prove futile. [10] The Authority and the Secretary rely upon our decision in Stong v. Industrial Commission, 71 Colo. 133, 204 P. 892 (1922), in support of their argument that the fund administered by the Authority does not consist of public moneys for purposes of section 1-45-116(1)(a) of the Act. That case is readily distinguishable, however. In Stong, we determined that because the state compensation insurance fund administered by the industrial commission did not constitute part of the state treasury, a district court’s order requiring the state treasurer as custodian of the fund to obey the directions of the industrial commission regarding investment of fund moneys in United States bonds did not encroach upon the state treasurer’s constitutional power over the state treasury. Id. at 136, 204 P. at 893. The question presented here is not whether the moneys of the workers’ compensation fund are part of the state treasury but whether those moneys are “public moneys” for purposes of section 1-45-116(1)(a) of the Act. The Act expressly applies not only to discrete state entities but also to all political subdivisions of the state. A conclusion that moneys contained in the account or fund of a political subdivision do not constitute “public moneys” for purposes of section 1-45-116(1)(a) would render meaningless the prohibition of the use of public moneys by political subdivisions. [11] The parties do not dispute that the Authority is a political subdivision of this state and enjoys governmental immunity. See § 8-45-101(1), 3B C.R.S. (1995 Supp.); §
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24-10-103(5), 10A C.R.S. (1995 Supp.). While moneys collected by the Authority are not derived from state-imposed sales, use, property, or income taxes, those moneys may be spent by the Authority only for authorized public purposes. The General Assembly has in essence declared that the expenditure of moneys in the fund for purposes prohibited by section 1-45-116(1)(a) are not authorized expenditures for public purposes.
[12] The court of appeals referred to our decision in Pensioners Protective Association v. Davis, 112 Colo. 535, 150 P.2d 974(1944), in the course of its decision. In Davis, we concluded that an award of attorney fees satisfied from moneys taken from the old age pension fund did not constitute a recovery against the state and, therefore, was not barred by the doctrine of sovereign immunity. Id. at 539-40, 150 P.2d at 976. In the course of reaching that conclusion, we determined that moneys comprising the old age pension fund did not constitute “public funds” belonging to the state. Id. at 540, 150 P.2d at 976. The court of appeals in this case stated that the General Assembly is presumed to be aware of our interpretation of the term “public funds.” Denver Area Labor Federation, 907 P.2d at 640-41. [13] It must first be observed that section 1-45-116(1)(a) prohibits the use of “public moneys from any source,” not the use of “public funds.” The General Assembly thus selected a phrase not previously construed by this court in seeking to limit the expenditure of funds by various governmental entities for certain purposes. It is noteworthy that the General Assembly has defined the term “public funds” quite broadly in another statute to include not only those funds belonging to a public entity but also any funds “in the custody, possession, or control of a public entity.” See § 24-75-601(2), 10B C.R.S. (1995 Supp.). [14] Furthermore, the question presented here is not whether the moneys of the workers’ compensation fund are “public funds” that belong to the state. As we have indicated, section 1-45-116(1)(a) of the Act applies to several specified entities, including political subdivisions of this state, such as the Authority.[4] The declared purpose of the Act as initially adopted is to “promote public confidence in government through a more informed electorate.” § 1-45-102, 1B C.R.S. (1980). Section 1-45-116(1)(a) tends to promote public confidence in government by prohibiting the use of moneys authorized for expenditure by political subdivisions for specified public purposes to advance the personal viewpoint of one group over another.[5] In
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this case, the Authority used moneys authorized for expenditure for the benefit of an insured to oppose the passage of an amendment proposed by an insured. The General Assembly intended by the enactment of section 1-45-116(1) to prohibit such conduct. In light of the purpose of the Act, the General Assembly’s intent to subject all political subdivisions to its provisions, and the broad sweep of the phrase “public moneys from any source,” we conclude that the moneys of the fund administered by the Authority constitute “public moneys” for purposes of section 1-45-116(1)(a) of the Act.
III
[15] For the foregoing reasons, we reverse the judgment of the court of appeals. The case is remanded to that court with directions to return the case to the district court with directions to remand to the Secretary for further proceedings consistent with this opinion.
1. Whether the court of appeals erred when it found that the Campaign Reform Act’s prohibition against political subdivisions spending “public moneys” to support or oppose issues before the electorate, § 1-45-116(1)(a), 1B C.R.S. (1994 Supp.), does not apply to the Colorado Compensation Insurance Authority.
2. Whether the court of appeals erred when it found that § 1-45-116(1)(a), 1B C.R.S. (1994 Supp.), of the Campaign Reform Act, which prohibits “in kind” contributions by political subdivisions, does not apply to the Colorado Compensation Insurance Authority.
3. Whether § 8-45-101(5)(i) limits the political activities of the Colorado Compensation Insurance Authority to reviewing and recommending legislation pertaining to workers’ compensation and does not permit any other political activity under the doctrine of inclusio unius est exclusion [sic] alterius.
In view of our disposition of the first issue, we do not address the second and third issues.
Currently a public entity cannot give any money to a candidate for their retention, nomination or whatever, but they can put money into a ballot issue and there’s nothing to prohibit them from putting money in on one side of the issue or the other.
What the intent of my bill is is that they will be able to put money in to present an even, balanced, non-biased report of the facts on both sides of the issue so that the electorate will be informed, but that they cannot take one side or another and promote it . . . .
Hearings on H.B. 1179 Before the House Committee on State Affairs, 56th Gen. Assembly, 2d Reg. Sess., Feb. 11, 1988. Furthermore, use of the term “public moneys” serves the purpose of distinguishing such moneys from the personal moneys of those who serve in governmental office, as is further evidenced by the following statements by Representative Green:
[W]hat the bill does is it only deals with contributions and contributions in kind in prohibiting anyone from using those moneys to advocate, to take an advocate position on a ballot issue.
It does not prohibit by the definition of contribution or contribution in kind in the current statute an individual person using their own time. It only deals with public money or public time.
Hearings on H.B. 1179 Before the House Committee on State Affairs, 56th Gen. Assembly, 2d Reg. Sess., Feb. 11, 1988. There is no suggestion from these remarks that moneys such as those contained in the workers’ compensation fund were not intended to constitute public moneys for purposes of § 1-45-116(1)(a) of the Act.
I.
[19] In 1992, the “Safe Work Environment Amendment” (the Amendment) was included on the general election ballot. In response, the Coalition to Save Colorado Jobs (the coalition) was organized to defeat the Amendment. The CCIA, which supported the coalition’s efforts, spent approximately $30,000 out of the Colorado compensation insurance fund (the fund) to publish negative editorials in its newsletter and send out posters to subscribers urging them to vote against the Amendment.
II. A.
[22] The majority reverses the Court of Appeals, holding that the language of section 1-45-116(1)(a) applies to the CCIA. Section 1-45-116(1)(a) provides:
No agency, department, board, division, bureau, commission, or council of the state or any political subdivision thereof shall make any contribution or contribution in kind in campaigns involving the nomination, retention, or election of any person to any public office, nor shall any such entity expend any public moneys from any source, or make any contributions in kind, to urge electors to vote in favor of or against any:
(A) Statewide ballot issue . . . ;
(B) Local ballot issue . . . ;
(C) Referred measure . . . ;
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[23] (Emphasis added.) [24] The majority interprets the statute’s “from any source” language highlighted above as an indication that the General Assembly intended an expansive definition of the term “public moneys” to include political entities completely funded with private money. Maj. op. at 6. I dissent because I believe the plain language of the CRA requires that the “moneys” spent be “public.” In my view, the CCIA is a hybrid political entity managing a private fund to further the interests of its private membership. For this reason, I would hold that the CRA does not apply because the money spent by the CCIA on in kind campaign contributions is not public money within the meaning of the CRA.(D) Measure for a recall of any officer . . . .
B.
[25] The state compensation insurance fund was created with the passage of the original workers’ compensation statute in 1919 and was subsequently renamed the Colorado compensation insurance fund in 1990. It consists of (a) premiums paid by employers to insure them against workers’ compensation claims, (b) all property and securities acquired by the fund, and (c) any interest earned on those assets. § 8-45-102(4), 3B C.R.S. (1996 Supp.).
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serve a specific constituency made up of premium paying employers. By informing its membership of an upcoming ballot initiative, the CCIA was acting as the agent for its paying customers.
C.
[31] The CRA was passed to “promote public confidence in government through a more informed electorate.” § 1-45-102, 1B C.R.S. (1980). The General Assembly believed that through public disclosure and the regulation of certain campaign practices, it could create a more informed electorate, thus promoting public confidence in government. Id.
Full control of the fund is given to the Commission; the custodian [the treasurer] is authorized to do nothing with it except upon their order . . . .
. . . .
[36] Strong, 71 Colo. at 135-36, 204 P. at 893 (citation omitted). [37] Similarly, in Pensioners Protective Association v. Davis, 112 Colo. 535, 150 P.2d 974 (1944), we held that a pension fund administered by the State Board of Public Welfare was subject to an award of attorney fees because there was no public money in the fund. The Davis court pointed out that:. . . [Y]et the constitution is not violated, because the fund in question is not the general property of the state and its custody is no part of the treasurer’s constitutional duty but is conferred on him by statute only. The fund is not “creditable to the general revenue of the state” and is “designated for purposes other than such general revenue,” and so is not in the treasury of the state.
[38] Davis, 112 Colo. at 540, 150 P.2d at 976 (emphasis added). [39] As Strong and Davis make clear, the state has no interest in funds derived from private sources. The state, therefore, has no authority to prevent the CCIA from spending private moneys in support of, or against, a campaign issue.The fund is not dependent upon legislative appropriation. The state, in its sovereign capacity, has and can have, no interest therein . . . . The moneys involved are not public funds. They stand segregated for a special and designated use. The term public funds means funds belonging to the state. The term does not apply to special funds, which are collected or voluntarily contributed, for the sole benefit of the
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contributors, and of which the state is merely the custodian.
D.
[40] The CRA legislative history cited by the majority is ambiguous as to whether the term “public moneys” includes funds derived from purely private sources and held apart from the general fund. Maj. op. at p. 9, footnote 4. These passages only address the use of general or individual funds to advocate a position on a ballot issue and shed no light on the issue presented by this case. Id.
[42] H.B. No. 1179, 56th Gen. Assembly, 2d Reg. Sess., (Feb. 24, 1988) (emphasis added). Later, Representative Owens reaffirmed this idea:I don’t think it’s appropriate that we be using taxpayers money to push one side of an issue . . . . It’s not fair to take one group of taxpayers and elevate them above another group of taxpayers.
[43] H.B. No. 1179, 56th Gen. Assemb., 2d Reg. Sess., (Feb. 24, 1988) (emphasis added). [44] In her remarks to the house committee, Representative Green also compared the bill to section 43-4-512, 17 C.R.S. (1996 Supp.), a provision concerning public highway authorities which provides:I think the important point is that we shouldn’t be letting taxpayer funds be used on one side or the other of these issues. Representative Green’s bill will simply insure the government’s neutrality on these issues.
[45] If this provision was used as a model for section 1-45-116, then the inclusion of the word “public” to modify “moneys” in section 1-45-116 further suggests that the General Assembly sought to prohibit only publicly funded government entities from making in kind contributions. Additionally, if the General Assembly wished to include privately funded entities such as the CCIA in this prohibition, it could have applied the same “[n]o moneys” language contained in section 43-4-512 to section 1-45-116. [46] The emphasis on “public money” in the wording of section 1-45-116(1)(a) and in the legislative history of the CGA indicates that the General Assembly was concerned with public entities spending money earmarked for public use to influence ballot issues. Clearly, the bill’s sponsors sought to prevent publicly funded entities from using public funds to advocate for or against ballot initiatives. The driving impetus behind section 1-45-116, as amended, was to insure that government remain neutral while its citizens participated in the democratic process.No moneys of the authority may be used to urge or oppose passage of an election to establish or increase any tax or annual motor vehicle registration fee . . . .
III.
[47] I agree with the majority that the use of public money to influence the passage of a proposed initiative violates core values in our democratic system and reduces public confidence in government.[8] However, a public
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entity designed to function as a private insurance company should be allowed to expend its private funds to politically mobilize its constituents for an upcoming ballot measure. Such a use of non-public funds does not offend democratic principles and does not run contrary to the CRA.
[48] I dissent because I disagree with the majority’s classification of the fund over which the CCIA operates as “public moneys” subject to section 1-45-116(1)(a) of the CRA. I would therefore affirm the court of appeals decision.By creating and maintaining a majority of employer representatives on the board, the General Assembly clearly intended the CCIA to serve primarily as an agent for employers in the workers’ compensation scheme.
A use of the power of publicly owned resources to propagandize against a proposal made and supported by a significant number of those who were taxed to pay for such resources is an abridgment of . . . fundamental freedoms. Specifically, where the proposal in question — placed before the voters in the exercise of the initiative power — seeks fundamentally to alter the authority of representative government, opposition to the proposal which is financed by publicly collected funds has the effect of shifting the ultimate source of power away from the people. . . .
. . . When residents within a state seek to participate in this process by proposing an amendment to the state constitution, the expenditure of public funds in opposition to that effort violates a basic precept of this nation’s democratic process. Indeed, it would seem so contrary to the root philosophy of a republican form of government as might cause this Court to resort to the guaranty clause in Article IV, Section 4 of the United States Constitution.
Mountain States Legal Found. v. Denver Sch. Dist. #1, 459 F. Supp. 357, 360-61 (D. Colo. 1978) (citations omitted).
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