No. 83SA316Supreme Court of Colorado.
Decided March 11, 1985. Opinion modified and, as modified. Rehearing Denied April 1, 1985.
Appeal from District Court, Pueblo County Honorable Jack F. Seavy, Judge
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L. Duane Woodard, Attorney General, Charles B. Howe, Deputy Attorney General, Richard Forman, Solicitor General, Wade Livingston, Assistant Attorney General, for Plaintiff-Appellee and Cross-Appellant.
Terry A. Hart, James V. Phelps, Pueblo County Attorney’s Office, for Defendant-Appellant and Cross-Appellee.
Ware and Marroney, Gerald A. Marroney, for Intervenor-Appellant and Cross-Appellee.
Mitchell Mitchell, P.C., Rexford L. Mitchell, for Amicus Curiae, the Board of County Commissioners of the County of Otero and State of Colorado.
Charles Berry, for Amicus Curiae, the Board of County Commissioners of El Paso County.
EN BANC
JUSTICE KIRSHBAUM delivered the opinion of the Court.
[1] This case presents questions concerning the respective responsibilities of the Colorado Department of Social Services (the Department), the General Assembly, and county governments to fund public assistance programs established by the Colorado Social Services Code, sections 26-1-101 to 26-15-112, 11 C.R.S. (1982 1984 Supp.) (the Code).[1] The case arose when the Department sought a judicial decree requiring the Board of County Commissioners of Pueblo County (the Board) to pay the Board’s share of the county’s total public assistance costs for 1981, pursuant to section 26-1-122 of the Code.[2] The Board asserted that its responsibility for funding public assistance programs was limited to the sums generated by a tax levy of 2.5 mills under section 26-1-125 of the Code and that the Department improperly calculated the amount of its mandatory funding requirements. The Board also filed a counterclaim seeking compensation from the Department. Samuel J. Corsentino, a resident and taxpayer of Pueblo County, intervened to challenge the constitutionality of the funding provisions of the Code. [2] After a trial to the court, the trial court concluded, inter alia, that (1) the fundingPage 5
scheme established by the Code is constitutional; (2) the Board’s obligation to fund county public assistance costs is not limited by section 26-1-125 of the Code; (3) the Board is not entitled to reimbursement by the Department for sums the Board expended for foster care in 1981; (4) the Department properly determined the Department’s share of welfare costs in 1981; and (5) the General Assembly is required to fund fully the county contingency fund established by section 26-1-126
of the Code.
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[4] To aid the resolution of these issues, it will be helpful to briefly review the history of welfare programs in Colorado and to explain the functioning of the public assistance funding provisions established by the Code. The facts underlying the various claims will emerge in the course of these discussions.
[5] A. Overview of Public Assistance
[6] Prior to statehood, the territory’s county governments were charged by various legislative provisions with the responsibility of providing relief to poor persons who either had no relatives in the territory or whose relatives could not or would not support them. See Ch. 68, C.R.S. (1868) (chapter entitled “Paupers”). These provisions continued in force upon the admission of Colorado into the Union. See Colo. Const. sched. § 1 (1876); ch. 76, Colo. Gen. Laws (1877). Indeed, substantially similar provisions remained in effect until 1981. See §§ 30-17-101 to -117, 12 C.R.S. (1977), repealed and reenacted by Ch. 367, §§ 30-17-101 to -206, 1981 Colo. Sess. Laws 1451. The reenacted provisions deleted all language requiring county responsibility for public assistance programs, except for the obligation to provide burial services for indigent persons. See §§ 30-17-102, -104, 12 C.R.S. (1984 Supp.).
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authority to the executive director of the Department to issue rules governing the internal administration of both state and county departments; and authorizes the State Board of Social Services, a component body of the Department, to issue rules governing the scope and content of programs, the rights and responsibilities of persons affected by such programs, and the fiscal and personnel administration of the county departments. § 26-1-108(1), (2), 11 C.R.S. (1982). Furthermore, the State Board of Social Services, by rule, has authority to establish minimum personnel standards and qualifications, which rules govern the employment of support staff. Id. §§ 26-1-108(2), -119, -122; Dempsey v. City County of Denver, 649 P.2d 726 (Colo.App. 1982). The Department’s rules and regulations are binding on the several county departments. § 26-1-108(2), 11 C.R.S. (1982). Colorado State Board of Social Services v. Billings, 175 Colo. 380, 487 P.2d 1110 (1971).
[10] Some decisions, however, remain within the authority of county departments, such as the choice of county director, whether certain specialized training shall be given to county department employees, and whether certain optional specialized programs should be adopted. §§26-1-117(1), -118(8), -122(4)(e), 11 C.R.S. (1982). It is clear, however, that the county social services departments are agents of the State Department. Id. § 26-1-118(1); Board of County Commissioners v. State Board of Social Services, 186 Colo. 435, 528 P.2d 244 (1974). [11] The federal government, the state and the counties contribute funds to public assistance programs in Colorado. Section 26-1-109(2)(a) authorizes the Department, with the written approval of the governor and the attorney general, to accept federal funds for public assistance programs under the terms and conditions of applicable federal statutes. To obtain federal aid for such programs as aid to the blind, families with dependent children (AFDC), the needy disabled and the elderly, the state program must operate in and be mandatory for all political subdivisions of the state. See 42 U.S.C. §§ 302(a)(1), 602(a)(1), 1202(a)(1) and 1352(a)(1) (1982). The federal share of financing for various public assistance programs ranges generally from fifty percent to ninety percent, depending on the nature of the expenditure and the type of the program. See, e.g., 42 U.S.C. § 302(1)(4)(B) (fifty percent of certain old age assistance expenditures); 42 U.S.C. § 603(a)(3)(B) (ninety percent of AFDC program costs). Other special federal assistance programs may be one hundred percent federally funded. See, e.g., 42 U.S.C. § 8623(a)(1)(B) (1982) (Low-Income Home Energy Assistance (LEAP)). [12] The federal monies received by the state are held separately from state funds. The Code designates the state treasurer as ex officio custodian of these funds and authorizes the treasurer to disburse such funds for their designated purposes. See § 26-1-109(2)(b), (c), 11 C.R.S. (1982). These federal monies are included within the calculation of the state’s share of public assistance costs, which is eighty percent of overall program and administrative costs. Id. § 26-1-122(3)(b), (4)(b).[5] The counties are also responsible for certain expenses of public assistance, not to exceed twenty percent. Id. § 26-1-122(1).[6]Page 7
[13] The budget and appropriation processes for state and county public assistance program budgets are well established. The state fiscal year commences July 1 annually. § 24-30-204, 10 C.R.S. (1982). The Department begins work on its budget in the July preceding the next state fiscal year. The Department considers a variety of data in assessing state welfare needs, including actual expenses incurred in previous and current years and various indicators of general economic and social conditions. The budget contains separate funding requests for each program and fund. It must be submitted to the State Office of Planning and Budget by October 1, and, as modified there, is presented as part of the overall state budget to the General Assembly in December. Legislative committees hold hearings on the budget, which is eventually approved by the General Assembly prior to the commencement of the fiscal year. The General Assembly is required to make “adequate appropriations” for public assistance based upon the budget submitted by the Department. §26-1-121(1)(a), 11 C.R.S. (1982). In the event the initial appropriation fails to meet the costs of public assistance programs, the General Assembly may supplement appropriations to redress the imbalance. SeeColo. Const. art. V, § 32. Any unobligated and unexpended balances in state funds are credited to the general fund. Id. § 26-1-121(2). [14] Upon approval of its annual budget, usually near the July 1 date upon which the state fiscal year begins, the Department sends a “County Budget Letter” to each board of county commissioners. The letter includes projected fluctuations in caseloads, rate increases for programs and facilities, and provides estimates of the adequacy of the appropriations adopted by the General Assembly for the programs established by the Code. Because the counties employ a fiscal year based on the calendar year, see
section 29-1-103(1), 12 C.R.S. (1984 Supp.), and typically begin their budgeting process in the fall of each year, each county is aware of the Department’s appropriated budget for the first six months of the county’s next fiscal year and has some indication of the Department’s budget priorities for the remainder of the county’s next fiscal year well in advance of the commencement of the county budgetary process. [15] The public assistance budget prepared by each county in the fall must be submitted to the Department for review before it may be adopted by a board of county commissioners as part of the county’s overall budget. § 26-1-124, 11 C.R.S. (1982).[7] The Department neither approves nor disapproves preliminary county budgets; it uses these budgets as an aid in monitoring the adequacy of present and future state budgets. [16] The Code requires the board of county commissioners of each county to include in the annual county tax levy sums sufficient to defray the total costs of that county’s public assistance programs, up to a maximum of twenty percent of such costs. Id. § 26-1-122(1). The sums derived from the tax levy, together with the appropriate state and federal funds advanced to each county by the state treasurer upon warrants issued pursuant to vouchers from the Department, are deposited in a county social services fund in each county for payment of program and administrative costs. Sums are disbursed from that fund, upon proper warrants, by the director of the county program to appropriate programs and to eligible recipients. See id. §§ 26-1-109(2)(c), -122(4)(b). [17] Two particular aspects of the public assistance financing scheme bear special explanation — foster care funding under section 19-3-120, 8 C.R.S. (1984 Supp.), and the county contingency fund established by section 26-1-126, 11 C.R.S. (1982). The Children’s Code requires the State Board of
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Social Services to adopt a method for allocating funds for foster care. The Children’s Code also provides that no county may exceed its particular allocation for foster care. § 19-3-120(1), 8 C.R.S. (1984 Supp.). Section 19-3-120(2)(d) and (e) provides that the Department shall reimburse a county department for eighty percent of the total county allocation as described in section 26-1-122. Thus, foster care is a fixed or capped program, where the total expenditures are limited, as compared to an entitlement program in which total costs depend primarily on the number of eligible recipients served.
[18] Section 26-1-126 creates a “county contingency fund” funded by the General Assembly. The Department is required to make advancements from this fund to counties qualifying for such payments. A county is eligible for payments from this fund if a 3.0 mill levy would provide less than that county’s actual required share of public assistance costs. Section 26-1-126(3) provides a method for calculating the amount to be advanced each month to qualifying counties. Because data concerning actual expenditures in each county does not arrive at the Department until approximately two months after funds for a particular month have been advanced, in practice the Department authorizes advancements from this fund based upon estimated claims. The Department later recoups from or reimburses to the counties the amounts of prior advancements that have exceeded or fallen short of the actual amount to which a particular county was entitled.[19] B. Pueblo County Public Assistance Expenses
[20] The events precipitating the public assistance deficit in Pueblo County’s 1981 fiscal year budget began in 1979. In fiscal year 1979, Pueblo County imposed a public assistance levy of 5.3 mills. Funds from the property tax revenues generated by this levy, certain other taxes,[8]
and reliance upon $13,271,115 from state sources, including approximately $740,000 from the county contingency fund, constituted the sources from which Pueblo County’s $15,916,675 public assistance costs were to be funded. However, the General Assembly did not appropriate enough money for the county contingency fund to permit the Department to pay all counties the full amounts to which they were entitled according to the formula in section 26-1-126(3) of the Code. Thus, during its fiscal year 1979 Pueblo County received approximately $22,000 less in county contingency fund payments than had been expected.[9]
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that legislative funding for the county contingency fund in 1981 would be insufficient and counseled counties to “plan on receiving no more than 90% of claims against the contingency fund.” The letter also predicted a net increase in program caseloads and warned that, because the General Assembly had previously rejected requests for supplemental appropriations to the county contingency fund, it was unlikely to approve such a request during the coming year. Pueblo County prepared its fiscal 1981 budget on the assumption that during 1981 it would recover 100% of the county contingency fund advancements to which it would be entitled under the formula established by section 26-1-126(3).
[23] Pueblo County received a separate letter in 1980 from the Department concerning funding for the foster care program in 1981. This letter stated that “[n]o county will be reimbursed more than its allocation” for foster care and cautioned the county to budget carefully. The county, however, paid more than its total foster care allocation that year. [24] In 1980, anticipating a total expenditure of $23,300,000 for public assistance programs in its fiscal year 1981, as compared to expenses of $19,500,000 during fiscal year 1980, the Board sought permission, pursuant to section 26-1-125(3) of the Code, to increase its public assistance mill levy. The increase requested, 1.0 mill, was approved by the Division of Local Government, raising Pueblo County’s public assistance levy to 6.3 mills. The County simultaneously received permission to increase its levy for other county services by .44 mill.[10] The county also imposed a wage and hiring freeze and laid off forty-one employees in other departments in an attempt to reduce overall expenses. [25] In March 1981, the Board received a letter from the Department stating that the appropriation for the county contingency fund was less adequate than previously anticipated. The letter announced that advancements from the fund in March would be reduced to seventy-five percent of the amount claimed and that no further sums would be available from the county contingency fund for the remainder of that state fiscal year. In fact, the appropriations for that fund were later determined to be adequate to meet only seventy-five percent of the total annual amounts due the counties under the formula established by section 26-1-126 of the Code. The shortage in anticipated county contingency fund advancements for Pueblo County was $235,845. By the end of county fiscal year 1981, Pueblo County’s total public assistance deficit stood at approximately $539,000. [26] In May 1981, the Board determined that all available funds for public assistance programs in the county would be exhausted prior to the end of the year. It then notified the Department that “all Social Services operations” would be terminated in the county on November 1, 1981. When meetings among officials of the Department and the Board failed to resolve the funding dilemma, the Department, on August 18, 1981, ordered the Board “to continue to provide full assistance payments and . . . social services” and filed this action seeking judicial enforcement of its directive.[11]The complaint also sought an order requiring the Board to expend such funds as might be necessary to administer public assistance programs in the county. The Board filed its answer and counterclaim, and Corsentino intervened to press his constitutional challenges to the Code.
II.
[27] We first address intervenor Corsentino’s constitutional challenges to the funding mechanism established by the Code. He
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contends that the funding provisions of the Code violate sections 3, 7 and 8 of article X of the Colorado Constitution, as well as the equal protection guarantees of the Colorado and federal constitutions. We reject his arguments.
[28] A. State Revenue Provisions
[29] At the outset, it must be noted that statutes are presumed to be constitutional and that a party asserting the contrary must establish the constitutional infirmity alleged beyond a reasonable doubt. E.g., Palmer v. A.H. Robins Co., 684 P.2d 187 (Colo. 1984); People v. Schwartz, 678 P.2d 1000 (Colo. 1984). Corsentino, therefore, bears the heavy burden of demonstrating that the funding provisions of the Code violate one or more of these constitutional provisions.
[35] 1. Article X, Section 3
[36] Corsentino contends that the State of Colorado, not the Board, must be considered the entity actually imposing the taxes which fund public assistance programs. He further argues that because such taxes fall unevenly on different Colorado taxpayers based on their counties of residence, they violate the uniformity requirement of article X, section 3.
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flaw in his argument is the assertion that, although the Board, not the State of Colorado, is the taxing authority levying the taxes about which Corsentino complains, the Board is merely a conduit for the state and is using the tax dollars collected under the provisions of the Code for state purposes only.
[38] In assessing whether the Code’s funding provisions violate section 3, we first note that section 3 applies only to ad valorem property taxes See, e.g., Public Utilities Commission v. Manley, 99 Colo. 153, 60 P.2d 913(1936). It requires the burden of such taxation to be uniform on the same class of property within the jurisdiction of the authority levying the tax Denver Urban Renewal Authority v. Byrne, 618 P.2d 1374 (Colo. 1980). Corsentino does not contend that the ad valorem property taxes levied by each county for public assistance programs fall unevenly on identical classes of property within the county. [39] In support of his argument that the state must be deemed the taxing authority under the Code, Corsentino relies on Pueblo Junior College District v. Donner, 154 Colo. 26, 387 P.2d 727 (1963). In Donner, we considered the constitutionality of House Bill No. 360, ch. 219, 961 Colo. Sess. Laws 688, which required counties in which junior college students resided to pay a portion of the costs of maintaining these students at junior colleges in other counties. The statute required the board of county commissioners in each county to levy an ad valorem tax, computed on the basis of full-time-equivalent non-resident junior college students from the county, which revenues were transferred to a state fund and then distributed proportionally to the junior colleges the students attended. Ch. 219, secs. 8 to 13, 1961 Colo. Sess. Laws at 690-91. Taxpayers who resided in counties or parts of counties included in a junior college district, as well as taxpayers in counties whose levies exceeded certain limits, were exempted from these taxes. See id., sec. 8 at 690. We held this method of taxation to be prohibited by both section 3 and section 6 of Article X of the Colorado Constitution.[14] In so doing, we declared: [40] “Here, the various boards of commissioners have no discretion as to the amount of the levy, the purpose for which the money is to be raised or the expenditure of the same. County commissioners’ functions under the bill are purely administrative, doing exactly what the legislature says — fix a levy based on a formula provided by the state, collect the tax and turn it over to the state. The tax provided for is a state tax to raise revenue for state purposes. The commissioners, in making the levy, are performing a purely ministerial duty under direction of the state.” [41] Donner, 154 Colo. at 30, 387 P.2d at 729-30. [42] There are critical differences between the Code and the legislation declared invalid in Donner. The junior college funding scheme required tax funds raised by some, though not all, counties to be placed in a state fund and then to be distributed to junior colleges located in other counties. In contrast, under the Code locally raised funds for public assistance programs remain within and are disbursed within the county where they are raised. Furthermore, unlike the legislation considered in Donner, the Code does not exempt counties or portions of counties from its general funding provisions. Finally, under the Code county boards retain some
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discretion to expend some of the sums collected from the taxes imposed.
[43] We conclude that the counties retain sufficient control over the funds raised by the levy to be deemed the taxing authorities for the imposition of ad valorem taxes to meet the county share of public assistance costs. The levies concededly fall uniformly upon the same class of property within each county; therefore, the funding scheme does not violate article X, section 3 of the constitution.[44] 2. Article X, Sections 7 and 8
[45] Article X, sections 7 and 8 of the Colorado Constitution prohibit the General Assembly from either imposing state taxes for purposes of any particular smaller government unit or relieving a local governmental unit or the persons therein from the obligation to pay proportionate shares of taxes imposed for state purposes. Sections 7 and 8 further the goal of insuring uniform state taxation policies and prohibit the state from undermining the financial integrity of local governments. See Denver Urban Renewal Authority v. Byrne, 618 P.2d 1374 (Colo. 1980); City Real Estate, Inc. v. Sullivan, 116 Colo. 169, 180 P.2d 504 (1947); Burton v. City and County of Denver, 99 Colo. 207, 61 P.2d 856 (1936); In re Hunter’s Estate, 97 Colo. 279, 49 P.2d 1009 (1935); Walker v. Bedford, 93 Colo. 400, 26 P.2d 1051 (1933). Corsentino asserts that these constitutional provisions prohibit the state from adopting a tax-based funding program that serves both state and county purposes. We disagree.
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statutory scheme evidences an overwhelming state interest or establishes primary state authority over most aspects of a comprehensive funding scheme does not resolve the issue of whether the legislation serves state, local or mixed purposes. As we indicated in In re Hunter’s Estate, such questions as to what uses are the funds put and which governmental units benefit from those uses must also be asked when considering asserted constitutional prohibitions on the taxing authority of the state. When, as here, the effects of state-wide programs directly benefit residents of specific localities, we must conclude that such programs serve the “purposes” of the local governmental units which receive those services as well as cognizable interests of the state. See Bonnet v. State, 155 N.J. Super. 520, 382 A.2d 1175 (App.Div. 1978) aff’d, 78 N.J. 325, 395 A.2d 194 (1978) (mem. op.).
[49] Section 26-1-111(1), 11 C.R.S. (1982), declares that the public assistance and welfare activities of the state are “state as well as county purposes.” While such legislative declaration is not controlling, it suggests that even though state control of public assistance programs is essential, the programs themselves fulfill county as well as state purposes. The suggestion that localities benefit when the indigent or disabled residents of their communities receive assistance for basic subsistence needs is compelling. See State ex rel. Public Welfare Commission v. County Court, 185 Or. 392, 203 P.2d 305 (1949). [50] The General Assembly has further recognized that county purposes are served by the Code by placing some, if minimal, budgetary authority to establish the total proposed public assistance expenditures in each county in the county boards. The ability of the state to cooperate with counties in programs serving the purposes of both the state and the counties is recognized by Section 18 of Article XIV of our constitution, which provides in pertinent part: [51] “Nothing in this constitution shall be construed to prohibit the state or any of its political subdivisions from cooperating or contracting with one another . . . to provide any function, service, or facility lawfully authorized to each of the cooperating or contracting units, including the sharing of costs, the imposition of taxes, or the incurring of debt.” [52] Colo. Const. art. XIV, § 18(2)(a). [53] For the above reasons, we conclude that the funding provisions of the Code do not violate Section 7 of Article X of the Colorado Constitution. The same considerations lead us to reject Corsentino’s argument that these provisions violate Section 8 of Article X.[54] B. Equal Protection
[55] Corsentino also asserts that the Code violates federal and state constitutional guarantees of equal protection of the law. The federal constitution provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Although the Colorado Constitution does not contain an identical provision, it has long been recognized that article II, section 25 of our state constitution provides a similar guarantee. Lujan v. Colorado State Board of Education, 649 P.2d 1005 (Colo. 1982); Heninger v. Charnes, 200 Colo. 194, 613 P.2d 884 (1980); People v. Max, 70 Colo. 100, 198 P. 150
(1921).
J. Young, Constitutional Law, ch. 16 § I(c) (2d ed. 1983) [hereinafter J. Nowak]. State action which abridges fundamental rights or which employs racial or other suspect classifications is subjected to strict scrutiny Shapiro v. Thompson, 394 U.S. 618 (1969); Lujan, 649 P.2d 1005 (Colo. 1982). When the classification involves neither a suspect class, nor a fundamental right, review is
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limited to a determination of whether the challenged legislative scheme is rationally related to a legitimate state interest. City of New Orleans v. Dukes, 427 U.S. 297 (1976) (per curiam).
[57] Corsentino urges that the right to uniform taxation is a fundamental right and that the unequal social services tax burdens borne by similarly situated taxpayers cannot be justified by any compelling state interest. Alternatively, he submits that these disparate tax burdens bear no rational relation to any legitimate state interest. His arguments are unpersuasive. [58] In San Antonio Independent School District v. Rodriguez, 411 U.S. 1(1973), the Supreme Court held that rights not afforded explicit or implicit protection under the federal constitution are not fundamental for the purposes of that constitution. The Rodriguez Court concluded that the right to a public education was not such a fundamental right. In assessing whether education is a fundamental right under Colorado’s constitution i Lujan, we rejected the Rodriguez test and held that whether rights are fundamental does not necessarily depend on whether they are guaranteed explicitly or implicitly by our state constitution, but whether they “have been recognized as having a value essential to individual liberty in our society.” Lujan, 649 P.2d at 1015 n. 7. We reached this conclusion because the Colorado Constitution, unlike its federal counterpart, does not restrict itself to addressing only those areas deemed fundamental, but contains sections regulating health, safety and economic endeavors as well See id.; Alexander v. People ex rel Schoolfield, 7 Colo. 155 (1883). [59] No federal constitutional provision has been suggested by Corsentino as support for his suggestion that the right to uniform state taxation is a fundamental federal right. Nor has he demonstrated that such a right, as important as it is, has been recognized as essential to individual liberty. To the contrary, prior decisions of this court have recognized that the General Assembly has broad discretion to structure taxes and that classifications of persons or property for purposes of taxation need be merely rational and related to a legitimate governmental purpose to survive equal protection challenges. See, e.g., Gates Rubber Co. v. South Suburban Metropolitan Recreation and Park District, 183 Colo. 222, 516 P.2d 436
(1973) (as modified); District 50 Metropolitan Recreation District v. Burnside, 167 Colo. 425, 448 P.2d 788 (1968); Pueblo Junior College District v. Donner, 154 Colo. 26, 387 P.2d 727 (1963). See also, J. Nowak supra, ch. 11, § III. We conclude that such right is not fundamental, and therefore does not require application of the strict scrutiny standard. [60] We have noted that the Code serves both state and county purposes and that each county receives benefits from the public assistance programs established by the Code. It is both rational and logical to assign some of the costs of those programs to particular counties. As the Appellate Division of the New Jersey Superior Court observed in addressing challenges similar to those presented here asserted against New Jersey legislation establishing public assistance programs: [61] “It is rational that counties wherein welfare clients reside bear a share of the cost of benefits and administration thereof. . . . Providing the necessities of life of such people redounds to the benefit of the county locality in reducing crime, relieving health problems and promoting the general welfare of such localities in many other ways. The historical practice of requiring the expense of the poor to be met by municipalities further supports the rationality of the imposition. And, as argued by the State, since administration of some of these programs is delegated to county officials, the imposition of part of the cost on the counties may tend to promote efficiency in such administration.” [62] Bonnett v. State, 155 N.J. Super. 520, 529, 382 A.2d 1175, 1180 aff’d, 78 N.J. 325, 395 A.2d 194 (1978) (citations omitted); accord, Lindsay v. Wyman, 372 F. Supp. 1360 (S.D.
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15 N.Y. 1974), aff’d sub nom, Beame v. Lavine, 419 U.S. 806 (1974) (mem. op.).
[63] We also reject the assertion that the percentage of costs allocated to county governments is irrational. Any percentage allocation would be somewhat arbitrary. However, since all of the programs directly benefit county residents, an allocation of a twenty percent funding responsibility to the counties does not appear irrational. Furthermore, the allocation is the allocation of a maximum funding responsibility; the decision to temper the theoretical responsibilities of the county with the realities of county needs seems eminently sustainable. Corsentino has not met his burden of proving the statute unconstitutional beyond a reasonable doubt. [64] Corsentino also argues that the particular method of financing selected by the General Assembly irrationally overburdens counties with low property wealth and thus aggravates the social problems addressed by the Code. While there is some strength to this argument (see footnote 13 supra), the Code does contain provisions for state assistance to counties not capable of generating sufficient funds from property taxes to pay their share of county public assistance costs. To this extent the General Assembly has somewhat alleviated the problem of which Corsentino complains — a problem inherent in the diverse geopolitical structure of this state. In challenging the constitutionality of a state statute on equal protection grounds, it is insufficient to establish that some effects of the legislation may be counterproductive to the stated aims of the legislation. Rather, one must demonstrate that no rational relation exists between the goals and effects of the statute. See Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483 (1955); Lujan v. Colorado State Board of Education, 649 P.2d 1005 (Colo. 1982). As we have demonstrated, a rational relationship does exist between the requirement that local entities must support a portion of the costs of programs which serve the disadvantaged within their localities and the purposes of the Code. Thus, we conclude that the financing provisions of the Code do not deny county taxpayers equal protection of the laws under either the federal or the Colorado constitutions.III.
[65] The Board contends that the trial court erred in concluding that section 26-1-125, 11 C.R.S. (1982), does not limit Pueblo County’s obligation for providing revenues to meet its funding obligations under the Code. Specifically, the Board asserts that the provisions of section 26-1-122, concededly requiring a level of county funding of public assistance programs not to exceed twenty percent, is modified and limited by section 26-1-125(1). We disagree with the Board’s argument.
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percent limit is not the only constraint on county welfare funding established by the Code.
[69] Section 26-1-125(1) contains the following pertinent provisions: [70] “The board of county commissioners of each county shall make a county social services levy at such a rate that the amount when computed by applying the levy against the valuation for assessment of the county will provide the necessary money to be appropriated by the county, as provided by the final county social services budget as approved by the board of county commissioners, within the following limitations: [71] “(a) Counties with valuation for assessment per capita of one thousand four hundred dollars or more, but less than one thousand six hundred dollars, not to exceed four mills; [72] “(b) Counties with valuation for assessment per capita of one thousand six hundred dollars or more, but less than two thousand dollars, not to exceed three and one-half mills; [73] “(c) Counties with valuation for assessment per capita of two thousand dollars or more, but less than two thousand six hundred dollars, not to exceed three mills; [74] “(d) Counties with valuation for assessment per capita of two thousand six hundred dollars or more, not to exceed two and one-half mills.” [75] Between 1976 and 1981, Pueblo County’s per capita valuation for assessment exceeded $2,600, placing it within the 2.5 mill levy limit imposed by section 26-1-125(1)(d). However, the public assistance mill levy in Pueblo County exceeded this limitation in all of these years. In 1981, a mill levy of 6.3 was necessary to provide sufficient funds to pay the County’s share of the costs of public assistance programs. A mill levy of 2.5 would have generated revenues for less than eight percent of the total program expenses that year. At the outset, we observe that these sections, as part of the same Code and pertaining to the same subject, must be read in pari materia. See Allen v. Charnes, 674 P.2d 378 (Colo. 1984). We must also consider the effects of other provisions concerning the public assistance funding duties of the state and the counties in construing the interrelationship of these two provisions. [76] Section 26-1-125(3) permits county boards to apply to the Division of Local Government in the Department of Local Affairs for authorization “to make a county social services levy at a reasonable rate in excess of the limits provided for in this section.” Such language, expressly recognizing the ability of counties to impose levies in excess of the general formula of section 26-1-125, is strong evidence that the General Assembly did not consider that formula to constitute an absolute freeze on the obligation of counties to meet their county public assistance payment requirements. [77] The Department argues that the decision of this court in Colorado State Board of Social Services v. Billings, 175 Colo. 380, 487 P.2d 1110(1971), resolves the question of the Board’s funding obligations. We do not agree. The dispute in Billings arose when the state welfare authority brought an action to compel the county authorities in Weld County to defray twenty percent of the county’s welfare costs. Weld County officials had estimated that twenty percent of its welfare costs would require a 5.51 mill levy, but levied just 3.0 mills. The precise issue was the construction to be given the separate funding provisions for aid to the blind, § 16-2-22, 2 C.R.S. (1963),
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aid to indigent tuberculars, § 119-2-16, 6 C.R.S. (1963), aid to the needy disabled, id. § 119-6-21, and aid to dependent children, § 119-9-12, 10 C.R.S. (1967 Perm. Cum. Supp.). The county conceded its liability for twenty percent of the costs for the first three programs, but claimed it had no such obligation for the Aid to Dependent Children program. This court addressed the issue as one of statutory construction of the use of the word “may” rather than “shall” in section 119-9-12, and limited its holding to that statute, as follows:
[78] “[T]he fundamental question — and the one we first approach — is, irrespective of its lack of welfare money produced by its ad velorem [sic] tax, does a county have to defray 20% of the benefits awarde under the aid to dependent children statutes and of the costs incident thereto. We answer the question in the affirmative and hold that our statutes create such a mandate.” [79] 175 Colo. at 384, 487 P.2d at 1112 (emphasis added). [80] It is true that the Billings court found in section 119-1-15, 11 C.R.S. (1969 Perm Cum. Supp.), the predecessor of current section 26-1-122, “a legislative intent that each county must bear 20% of the welfare costs expended by it.” 175 Colo. at 385, 487 P.2d at 1112. However, the court deemed it “unnecessary” to decide the effect of the mill levy limit in section 119-3-6, 6 C.R.S. (1963), the precursor of the current section 26-1-125, on the issue before it: [81] “The appellees urge strongly that C.R.S. 1963, 119-3-6 provides for a levy limit in Weld County of 3 mills for welfare purposes. . . . A ruling on this question is unnecessary as it is our holding that in some manner the counties must produce their 20%, whether it be from contingency funds, an excess levy, registered warrants (C.R.S. 1963, 88-1-16), sales tax or otherwise.” [82] 175 Colo. at 388, 487 P.2d at 1114. [83] The statutory provisions under which the issue arises here are different from those confronted by the Billings court. Indeed, the Code has undergone repeal and reenactment with considerable reorganization and subsequent amendment since Billings was decided. The provisions of section 26-1-126, establishing a state-wide county contingency fund, merit particular attention, as the terms of this fund bear directly on the responsibilities of the counties to meet their county assistance payment requirements. (See Section VII, infra.) We thus find little i Billings that directly answers the Board’s challenge to the present statutory scheme. [84] Section 26-1-122(1)(c) recognizes that the amounts generated by a county’s social services tax levy may “prove insufficient to defray the county department’s twenty percent share of actual costs” of some public assistance programs and requires counties to utilize “additional funds” to satisfy their actual needs in such circumstances. The Code establishes the following scheme for the funding of county obligations to pay the costs of public assistance programs. Each county is required to include within its annual property tax levy a sum sufficient to meet its share of public assistance. § 26-1-122(1)(a), 11 C.R.S. (1982). This share may not exceed twenty percent. Id. § 26-1-122(1)(d). In certain circumstances, as when counties receive sums from the county contingency fund, the share will be less than twenty percent. See also id. §26-1-122(4)(d) (permitting Department to reimburse counties in excess of eighty percent whenever an emergency or temporary condition renders a county unable to meet its public assistance obligations). [85] The tax levy referred to in section 26-1-122(1)(a) is the county’s annual property tax levy.[16] Thus, the dicta inPage 18
Billings, to the effect that counties may utilize revenues from non-property based taxes to provide their share of revenues for public assistance, is not controlling here. We conclude that the present statutory scheme requires a county to satisfy its obligations to budget and appropriate its share of the costs of public assistance programs in the county from tax levies on property. If, as the county fiscal year progresses, revenues from the initial levy prove insufficient to satisfy the actual costs of the programs, then the county may utilize funds available from other sources as necessary to fulfill its public assistance program obligations.
[86] These conclusions do not render the limitations of section 26-1-125(1) ineffective. Every county must determine initially whether a mill levy within the limitations of that section will be sufficient to defray its share of public assistance costs. If a county determines that the applicable mill levy will not satisfy such obligations, that county must seek permission from the Department of Local Affairs to impose a reasonable excess levy, pursuant to section 26-1-125(3). [87] This process furthers the purpose of the Code to “promote the public health and welfare of the people of the State of Colorado by providing . . . programs relating to public assistance and welfare. . . .” § 26-1-102, 11 C.R.S. (1982). If the mill levy limitations of section 26-1-125 were deemed absolute, some of these programs in some counties would be terminated due to lack of funds. Such terminations could well violate federal provisions requiring programs to be in effect in all political subdivisions of a state. See 42 U.S.C. §§ 302(a)(1), 602(a)(1), 1202(a)(1), 1352(a)(1) (1982). In construing statutes, we must choose a construction that serves the purposes of the legislative scheme, Smith v. Myron Stratton Home, 676 P.2d 1196 (Colo. 1984), and must not strain to give language other than its plain meaning, unless the result is absurd. See Harding v. Industrial Commission, 183 Colo. 52, 515 P.2d 95(1973). To construe the provisions of section 26-1-125 in a manner which could jeopardize the stability of all federally assisted public assistance programs would indeed sanction an absurd result. [88] We conclude that under the Code counties must budget and appropriate sufficient funds from ad valorem property taxes to meet their respective shares of public assistance program costs. We further conclude that the provisions of section 26-1-125(1) do not constitute a limitation upon the amount of tax levy a county may impose to meet such obligations.
IV.
[89] The Board argues that the trial court erred in denying the Board’s counterclaim against the Department for $96,000, which allegedly represents eighty percent of an overexpenditure for foster care costs made by the Board during its fiscal year 1981. We disagree.
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percent of the total extra amounts spent by the Board in 1981.
The Board admits that the rule in section 19-3-120 prohibits a county from expending beyond its allocation. However, it contends that section 26-1-122(1)(d), 11 C.R.S. (1982), which prohibits a county from exceeding “its twenty percent share of actual costs” for public assistance, imposed a duty upon the State to develop an allocation formula which provides sufficient funds to meet the actual costs of foster care. This argument fails because it restricts the Department’s duty to determine the amount of allocations on the basis of reimbursements whereas section 19-3-120 does the exact opposite by limiting reimbursements to the amount allocated.
[91] The Board also relies on section 26-1-122(4)(b) and (c), 11 C.R.S. (1982), to support its argument. Section 26-1-122(4)(b) states in part that “eighty percent of the amount expended for assistance payments program costs and social services program costs shall be advanced to the county from the state treasurer. . . .” (emphasis added). Section 26-1-122(4)(c) defines “program costs” as “[a]mounts expended for assistance payments and social services.” The Board suggests that whatever it actually expended is a “program cost” which must be funded eighty percent by the State. [92] The Board erroneously assumes that any amounts it elected to spend for foster care in 1981 must be deemed “program costs.” Obviously, only the costs of a program as authorized by law are program costs. The statute authorizing the 1981 foster care program here involved contained its own limitation on the maximum funds to be spent by participating counties. Thus, expenditures in excess of that allocation are not part of the “program costs” for foster care, and need not be funded by the Department. In reaching this conclusion we are not insensitive to the County’s plight in 1981. It faced the predicament of trying to meet foster care responsibilities without being able to control the costs charged by foster care facilities and without a sufficient allocation from the Department. However, the County was not bound to provide for foster care unilaterally, and, in fact, section 26-1-122(1)(d) prohibited it from doing so. The County had other options; it could have sought to reduce services, as provided in section 26-1-122(5): [93] “If in any fiscal year the annual appropriation by the general assembly for the state’s share, together with any available federal funds for any income maintenance or social services program, or the administration of either, is not sufficient to advance to the counties the full eighty percent share of costs, said program or the administration thereof shall be temporarily reduced by the state board, so that all available state and federal funds shall continue to constitute eighty percent of the costs.” [94] The insufficient allocation for foster care constituted, in effect, a temporary reduction in that program. We conclude that the County is not entitled to reimbursement for its 1981 foster care expenditures in excess of the amount allocated to it by the Department. V.
[95] The Board also objects to the inclusion of certain programs by the Department in connection with the calculation of the county’s duty to fund “twenty percent of the overall cost of providing the assistance payments, food stamps (except the value of the food stamp coupons) and social services” under section 26-1-122(1)(a). Certain portions of the Code require the Department to advance to the counties eighty percent of the costs of “administering assistance payments, food stamps and social services . . . by the state treasurer from funds appropriated or made available for such purpose,” section 26-1-122(3)(b), and the same percentage for “assistance payments program costs and social services program costs.” § 26-1-122(4)(b), 11 C.R.S. (1982). In calculating these percentages, the Department includes programs which are funded entirely by either the federal government (Low-Income Home
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Energy Assistance Payments) or the state government (old age pension).
[96] The Board contends in essence that the inclusion of these “100% pass-through” programs in the county’s twenty percent share improperly inflates the county’s financial obligation. The trial court ruled that “insufficient evidence was presented on which to base a finding . . . that the State Department is not properly determining its 80 percent share of the overall cost of welfare benefits.” Although we believe that ample evidence was presented as to how the Department makes this determination, the real issue is one of statutory construction: whether benefits disbursed through the pass-through programs are “assistance payments” or “social services” as those terms are used in section 26-1-122(1)(a), and whether the monies advanced to the counties from the state out of federal grants or state appropriations are “funds appropriated or made available for such purpose” under section 26-1-122(3)(b), (4)(b). We conclude that the Department’s method of allocating costs was appropriate. [97] The term “assistance payments” is defined by the Code as “financial assistance . . . provided pursuant to rules and regulations adopted by the state department and includes pensions, grants, and other money payments to or on behalf of recipients.” § 26-2-103(2), 11 C.R.S. (1982) (emphasis added). The old age pension, funded entirely by the state, is one of the pensions provided for in the Code. See id. §§ 26-2-113, -114. The Low-Income Home Energy Assistance Program is a “grant” program providing for “payments” to low-income households. See 42 U.S.C. § 8623 (1982). The federal funds provided for programs such as LEAP are “made available” for such programs; pensions are provided from “funds appropriated” by the State. Thus, both programs clearly fall within the definition of assistance payments, are funded as specified in the statute and are properly included among the programs from which the shares of both the county and the Department must be calculated. [98] The Board also contends that these funds are not utilized by the Department in computing the state’s obligation to the county contingency fund described in section 26-1-126. Although evidence was presented as to how the state calculates this figure, this issue was not presented to the trial court and was not raised in the Board’s motion for a new trial. Therefore, we decline to consider it. VI.
[99] The Board finally argues that the trial court erred in refusing to consider the testimony of certain past and present members of the Colorado General Assembly with regard to the legislative intent of the Code. We disagree.
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reasons, courts have generally held that subsequent comments about the intent of a legislature by a member of the legislature that enacted a particular statute are not admissible to establish the legislative intent of the statute. See United States v. Philadelphia National Bank, 374 U.S. 321 (1963); Rogers v. Frito-Lay, Inc., 611 F.2d 1074 (5th Cir. 1980), cert. denied, 449 U.S. 889 (1980); Ambook Enterprises v. Time, Inc., 612 F.2d 604 (2d Cir. 1979), cert. dismissed, 448 U.S. 914 (1980) see generally, Singer, Sutherland Statutory Construction, §§ 48.15, .16 (4th ed. 1984).
[102] There are sound reasons to conclude that, given the existence of recorded contemporary legislative history, post-passage testimony of a legislator concerning the intent of particular legislation should not be admitted into evidence on the question of legislative intent. The recollections of the legislator could hardly be challenged in the absence of contrary testimony of another member of the appropriate legislative body. If the views coincided with extant contemporaneous legislative history, the testimony would be duplicative; if it contradicted such history, the recorded history should be deemed controlling. See State Wholesale Grocers v. Great Atlantic Pacific Tea Co., 154 F. Supp. 471(1957), aff’d in part, rev’d in part, 258 F.2d 831 (7th Cir. 1958) cert. denied, 358 U.S. 947 (1959). We conclude that when, as here, contemporaneous recorded legislative history is available, the exclusion of the post-enactment recollections of members of the legislature which enacted the statute is proper. We save for another day the question of whether, in the absence of any contemporaneous legislative history, such evidence might be admissible.
VII.
[103] The Department asserts that the trial court erred in concluding that the state is required to fully fund the county contingency fund created by section 26-1-126, 11 C.R.S. (1982).[17] We affirm the trial court’s decision.
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the amount expended for administrative costs and program costs of public assistance, medical assistance, and food stamps.
[108] “(3) The amount of the additional advancement for each county for each month commencing on or after July 1, 1975, shall be fifty percent of the difference between the following: [109] “(a) Twenty percent of the monthly amount expended for the purposes named in subsection (2) of this section, minus; (b) The moneys equivalent to those raised by a levy of three mills on the property valued for assessment in the county divided by twelve. [110] “(4) In the event appropriations are insufficient to cover advancements provided for in this section, all reimbursements shall be prorated on the basis of total claims submitted in proportion to funds available for reimbursement.” [111] The county contingency fund was initially enacted in 1969. See Ch. 276, sec. 1, § 119-3-12, 1969 Colorado Sess. Laws 988. The 1969 act[18] provided that the fund “may be expended” to supplement county welfare expenses when the county social services levy “exceeded the maximum property tax levy permitted by statute for the support of the county welfare fund.” Id. (emphasis added). It also provided that “[t]he degree of assistance to be furnished to any county under this section shall be determined . . . with due regard to funds available and the relative need of the various counties.” Id. [112] In 1973, when it repealed and reenacted the Code, the General Assembly materially altered the language of the county contingency fund provision. The 1973 act substituted “shall” for “may” preceding the Department’s duty to supplement county expenditures and provided for supplementation by “advancement or reimbursement.” It discarded the maximum property tax levies as the basis for qualifying to receive contingency fund monies and replaced it with the requirement that advancements “shall” be made to any county where “moneys equivalent to those raised by a levy of three mills on the property valued for assessment in the county are less than twenty percent” of public assistance costs. Finally, the 1973 act determined the amount of advancements or reimbursements according to the formula set forth in section 26-1-126(3) and added the language contained in subsection (4) See ch. 340, sec. 1, § 119-1-25, 1973 Colo. Sess. Laws 1160, 1177-78. In 1975, the General Assembly amended this section to the current form by deleting the term “reimbursement” from those sections establishing the means by which county funds are supplemented. See ch. 241, sec. 2, §26-1-126, 1975 Colo. Sess. Laws 885, 886. [113] These changes are significant for purposes of statutory construction. By replacing the word “may” with “shall,” the General Assembly indicated an intent to make mandatory the advancement of funds to qualifying counties. The references to section 26-1-122 pertaining to the Department’s responsibility for funding eighty percent of public assistance programs subject to funds made available for that purpose, indicates that the contingency fund provision requires additional funding. ThePage 23
reference to section 26-1-125, which contains both limitations and exceptions thereto concerning the ability of a county to assess a mill levy for public assistance programs (see Section III, supra), also supports the conclusion that by adopting this section the General Assembly provided a mechanism to ensure that counties required to provide specific levels of assistance to eligible persons under federal and state regulations defining eligibility and assistance level standards can be assured of their share of contingency fund monies to which their actual needs entitle them.
[114] This statutory scheme recognizes that appropriations for “advancements” based on estimated expenditures may fall short of the amounts required because of actual expenditures. Thus “reimbursements” may be necessary in the event of errors in the initial estimation. This is sensible not only because county expenses will vary according to unforeseeable fluctuations in numbers of welfare recipients, but also because the budget processes of the state and of the counties do not coincide. By providing a practical procedure for accommodating estimates to realities, the General Assembly cannot be deemed to have undermined the mandate expressed by other provisions of the section and of the Code to the effect that any county experiencing county public assistance program costs in excess of the amount generated by a three mill levy can rely upon the contingency fund for additional funds. [115] This result is compelled by well established principles of statutory construction. One such principle requires that where possible, a statute is to be construed as a whole to give “consistent, harmonious and sensible effect to all its parts.” J.A. Tobin Construction Co. v. Weed, 158 Colo. 430, 435, 407 P.2d 350, 353 (1965). In light of the clear mandate in subsections (1) through (3), we agree with the trial court that subsection (4) merely recognizes that state advancements may fall below the amounts actually needed to supplement county expenses. Whenever a shortage in “funds available” occurs, subsection (4) provides for equitable contribution of the available monies pending full appropriation by the General Assembly. [116] The Department urges that this construction is untenable because “the courts cannot force the state to appropriate money to meet [its] obligations.” This argument is not relevant to the issue presented here. The question is the meaning of the statute, not whether it may be judicially enforced. The Department also relies on Rodgers v. Atencio, 43 Colo. App. 268, 608 P.2d 813 (1979), to support its position Rodgers, however, is inapposite because the statute there challenged expressly stated that certain benefits were to be provided “subject to available appropriations [§ 26-2-119, 11 C.R.S. (1973)].” Where a statute leaves the funding of a program to the General Assembly’s discretion, obviously a court may not transform what is discretionary into a mandate. Here, however, the language is mandatory, not discretionary. We thus conclude, as did the trial court, that the statute requires sufficient funding of the county contingency fund to fulfill the justifiable claims of counties eligible for such assistance. VIII.
[117] In summary, we conclude that the funding provisions of the Code do not violate sections 3, 7 or 8 of Article X or Section 25 of Article II of the Colorado Constitution or the equal protection clause of the Fourteenth Amendment to the United States Constitution; that the provisions of section 26-1-125, 11 C.R.S. (1982), do not constitute an absolute limitation on the amount of mill levies counties may impose for funding of public assistance programs; that Pueblo County is not entitled to reimbursement for certain foster care costs it expended in 1981; that the Department did not improperly determine the percentage shares of the costs of public assistance programs in 1981; and that the Code requires the General Assembly to fund the county contingency fund established by section 26-1-126 to the extent required by actual expenses for public assistance
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programs incurred by counties which qualify for funds. The judgment of the trial court is, therefore, affirmed in all respects.
§ 26-1-122(1)(a), 11 C.R.S. (1982), all of these property-based taxes and revenues are properly relied on by the counties.
House Con. Res. No. 1005, Sec. 3, 1982 Colo. Sess. Laws 690, 691.
Colo. Const. art. X, § 6 (current version in 1A C.R.S. (1982)).