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Regents of Univ. of Colo. v. Meyer, 899 P.2d 316

Client/Matter: TABOR

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Regents of Univ. of Colo. v. Meyer

Court of Appeals of Colorado, Division Three
February 9, 1995, Decided
No. 93CA2006
Reporter
899 P.2d 316; 1995 Colo. App. LEXIS 27; 19 BTR 204

The Regents of the University of Colorado, and Judith

Albino, President of the University of Colorado,
Plaintiffs-Appellees, v. Natalie Meyer, Secretary of State,
Defendant-Appellant, and Vern Bickel, Chairman,
Colorado Union of Taxpayers, and Colorado Union of
Taxpayers, Defendants.
Subsequent History: [**1] Rehearing Denied March
9, 1995. Certiorari Denied August 14, 1995
(95SC232).Released For Publication August 14, 1995.
Prior History: Appeal from the District Court of the City
and County of Denver. Honorable John W. Coughlin,
Judge. No. 92CV8039.
Disposition: JUDGMENT AFFIRMED

Secretary found that both paragraphs violated the CRA

prohibiting the use of public funds to urge voters to vote
for or against any issue before the electorate. The trial
court found that the newsletter conformed to the
exemption requirements of the Campaign Reform Act
(CRA). The court held that former Colo. Rev. Stat.
1-45-116(1)(a) (1994) created an exemption in
situations in which a policy-maker responded to a
specific inquiry and those in which he or she wished to
express a personal opinion about an issue before the
electorate. Since there was no competent evidence in
the record to support the Secretary's conclusion that the
amount spent in printing and distributing the portion of
the letter directed toward the first paragraph issue was
more than $ 50, the trial court properly reversed that
determination.

Core Terms

Outcome
The court affirmed the judgment from the trial court.

newsletter, policy-maker, exemption, public funds,

electorate, expend

LexisNexis Headnotes
Administrative Law > Judicial Review > General Overview

Case Summary

Administrative Law > Judicial Review > Reviewability >

Factual Determinations

Procedural Posture
Defendant Colorado Secretary of State challenged a
judgment from the District Court, City and County of
Denver (Colorado), which reversed the Secretary's
order that plaintiffs, a university president and its regents
violated the Campaign Reform Act, Colo. Rev. Stat.
1-45-116(1)(a) (1994) by printing and disbursing election
materials in an administrative publication. Other
defendants were a taxpayers' union and its chairman.
Overview
One paragraph of plaintiffs' newsletter addressed a
proposed constitutional amendment, and another
paragraph addressed a proposed initiative. The

Administrative Law > Judicial Review > Reviewability >

Questions of Law
Administrative Law > Judicial Review > Standards of
Review > Substantial Evidence
Environmental Law > Administrative Proceedings &
Litigation > Judicial Review

HN1 In a proceeding for judicial review of agency action,

a district court is required to set aside such action that it
finds to be either unsupported by the evidence or
contrary to law, and it is for the district court to determine
all questions of law, interpret the applicable statutes
and State regulations, and apply such interpretations to
the facts. The court is bound by the same principles.

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Page 2 of 5
899 P.2d 316, *316; 1995 Colo. App. LEXIS 27, **1
Administrative Law > Judicial Review > Reviewability >
Questions of Law

Administrative Law > ... > Statutory Rights > Impartial

Decisionmaker > General Overview

HN2 Courts are authorized to interpret a legislative

enactment, and they are not bound by an agency
decision that misapplies or misconstrues that law.

Constitutional Law > ... > Fundamental Freedoms >

Freedom of Speech > Political Speech

Administrative Law > ... > Statutory Rights > Impartial

Decisionmaker > General Overview
Constitutional Law > ... > Fundamental Freedoms >
Freedom of Speech > Political Speech

HN3 See Colo. Rev. Stat. 1-45-116(1)(a) (1991).

Governments > Legislation > Interpretation
Governments > State & Territorial Governments >
Legislatures

HN4 In construing a statute, the court's primary task is

to ascertain and give effect to the intent of the Colorado
General Assembly; to do so, the court must first look to
the statutory language.

HN7 See Colo. Rev. Stat. 1-45-116(1)(a) (1994).

Counsel: Office of University Counsel, Joanne M.
McDevitt, Stephen Zweck-Bronner, Denver, Colorado,
for Plaintiffs-Appellees.
Gale A. Norton, Attorney General, Stephen K.
ErkenBrack, Chief Deputy Attorney General, Timothy
M. Tymkovich, Solicitor General, Laurie Rottersman,
Assistant Attorney General, Denver, Colorado, for
Defendant-Appellant.
Judges: Opinion by JUDGE HUME. Jones and
Taubman, JJ., concur.
Opinion by: HUME

Administrative Law > ... > Statutory Rights > Impartial

Decisionmaker > General Overview

Opinion

Constitutional Law > ... > Fundamental Freedoms >

Freedom of Speech > Political Speech

[*317] Defendant, Secretary of State Natalie Meyer,

appeals the district court's judgment reversing her order
in which she ruled that plaintiffs, the University of
Colorado (C.U.) and its president, Judith Albino, had
violated the Campaign Reform Act (Act) by printing and
disbursing election materials in an administrative
publication. We affirm.

Governments > Legislation > Interpretation

Governments > Local Governments > Administrative
Boards

HN5 Colo. Rev. Stat. 1-45-116(1)(a) (1991) creates

an exemption in situations in which a policy-maker
responds to a specific inquiry and those in which he or
she wishes to express a personal opinion about an
issue before the electorate. The Colorado General
Assembly's use of the word "or" generally is indicative
of two different categories.
Governments > Legislation > Interpretation
Governments > Legislation > Statutory Remedies & Rights
Governments > State & Territorial Governments >
Legislatures

HN6 If a statute is ambiguous, the court must determine

the intent of the Colorado General Assembly by
considering the statute's legislative history, problems
addressed by the legislation, and statutory remedies
created to cure problems. A subsequent legislative
pronouncement of intent may be considered in
construing the statute in question.

Plaintiffs regularly prepare a monthly newsletter and

distribute it in the pay envelopes of all 19,000 C.U.
employees. On September 30, 1992, the newsletter
comprised the front and back of one page and contained
a paragraph addressing the ramifications [**2] of a
proposed constitutional amendment concerning taxation
(Amendment One). It also contained a paragraph
discussing the Great Outdoors Colorado (GO Colorado)
initiative. Both issues were to be presented to the
electorate in November.
Defendant received two complaints alleging that the
newsletter violated the Act prohibiting the use of public
funds to urge voters to vote for or against any issue
before the electorate.
Pursuant to her statutory authority, defendant set a date
for a public hearing and sent all concerned parties
notice thereof. The complainant challenging both the

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Page 3 of 5
899 P.2d 316, *318; 1995 Colo. App. LEXIS 27, **2
Amendment One and GO Colorado paragraphs
responded by letter stating that he would not attend.
The other complainant, whose challenge was limited to
the Amendment One information, filed a brief and
participated in the hearing.
Defendant ultimately determined that both paragraphs
of plaintiffs' newsletter violated the Act and that, even if
the newsletter fell within an exemption permitted by the
Act, public funds expended relating to the contested
portions exceeded the $ 50 limitation provided by the
exemption. Defendant then ordered the matter to be
sent to the Colorado Attorney General's office for further
[**3] action and relief pursuant to statute.
Plaintiffs sought judicial review in the district court. The
court reversed defendant's order, finding that the
newsletter conformed to the exemption requirements
provided in the Act. Defendant now appeals the district
court's decision.
I.

[*318] Therefore, since there was no evidence in the

record to support defendant's conclusion of law that

both paragraphs of the newsletter violated the Act, the
district court did not err in limiting the scope of its review
to Amendment One information.
II.
Defendant next asserts that the court erred when it
construed the Act to permit a policy-maker to expend up
to $ 50 of public funds to express the official's personal
opinion on an issue. We are not persuaded.
HN2 Courts are authorized to interpret a legislative
enactment, and they are not bound by an agency
decision that misapplies or misconstrues that law. El
Paso County Board of Equalization v. Craddock, 850
P.2d 702 (Colo. 1993).
Colo. Sess. Laws 1991, [**5] ch. 104, 1-45-116(1)(a),
at 604, as then in effect, provided, in part:
HN3 No agency, department, board, division,

Defendant first contends that the court erred in

concluding that the challenge to the newsletter was
confined to the paragraph concerning Amendment One.
We perceive no error.
HN1 In a proceeding for judicial review of agency action,
the district court is required to set aside such action that
it finds to be either unsupported by the evidence or
contrary to law, and it is for the court to determine all
questions of law, interpret the applicable statutes and
state regulations, and apply such interpretations to the
facts. Colorado Department of Social Services v. Davis,
796 P.2d 494 (Colo. App. 1990). We are bound by the
same principles. Guildner Way, Inc. v. Board of Adjustment, 35 Colo. App. 70, 529 P.2d 332 (1974).
Here, the participating complainant entered into the
hearing record a C.U. professor's testimony that the
paragraph on Amendment [**4] One offended him and
that he considered it an attempt to influence his vote. He
then stated that the GO Colorado information did not
similarly concern him.

bureau, commission, or council of the state

or any political subdivision thereof shall
make any contribution or contribution in kind
. . . to urge electors to vote in favor of or
against any issue before the electorate.
However, a member or employee of any such
agency . . . who has policy-making
responsibilities may expend not more than
fifty dollars of public moneys in the form of
letters, telephone calls, or other activities
incidental to making himself available to the
press or public for the purpose of responding

No one appeared at the hearing to represent the other

complainant's concerns, and no evidence was
presented regarding the GO Colorado paragraph in the
newsletter. Nor can we conclude that the contents of the
newsletter explicitly advocate that its readers vote either
for or against the GO Colorado amendment.

to questions about any such issue or to

express his opinion on any such issue.
(emphasis added)

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Page 4 of 5
899 P.2d 316, *318; 1995 Colo. App. LEXIS 27, **5
HN4 In construing a statute, the court's primary task is
to ascertain and give effect to the intent of the General
Assembly; to do so, the court must first look to the
statutory language. Moody v. Corsentino, 843 P.2d
1355 (Colo. 1993).
Here, the statutory language supports the district court's
conclusion that 1-45-116, as then in effect, HN5
created an exemption in situations in which a
policy-maker responds to a specific [**6] inquiry and
those in which he or she wishes to express a personal
opinion about an issue before the electorate. See
Bloomer v. Board of County Commissioners, 799 P.2d
942 (Colo. 1990) (the General Assembly's use of the
word "or" generally is indicative of two different
categories). Albino's status as a policy-maker has not
been challenged in these proceedings.
Additionally, the statute's subsequent history supports
the court's determination that the phrase "incidental to"
has a broader meaning than that suggested by
defendant. See Charnes v. Boom, 766 P.2d 665 (Colo.
1988) HN6 (if a statute is ambiguous, the court must
determine the intent of the General Assembly by
considering the statute's legislative history, problems
addressed by the legislation, and statutory remedies
created to cure problems). See also BQP Industries,
Inc. v. State Board of Equalization, 694 P.2d 337 (Colo.
App. 1984)(subsequent legislative pronouncement of
intent may be considered in construing statute in
question).
In 1994, the General Assembly amended the Act so that
the relevant portion now reads:
HN7 However, a member or employee of [**7] any such
agency . . . may respond to questions about

on any such issue. Section 1-45-116(1)(a), C.R.S. (1994

Cum. Supp.).
The discussion surrounding the 1994 amendment
makes it clear that both the previous and current
versions of 1-45-116 were intended to permit a
policy-maker to utilize up to $ 50 of public funds to
express his or her personal opinion on an issue before
the electorate. See Hearings on S.B. 94-171 before the
Subcommittee of the House Education Committee, 59th
General Assembly, Second Session (March 9, 1994).
The section was amended, including two sentences
designed to clarify that only an employee with
policy-making responsibility is permitted to expend
public funds up to the $ 50 limit in expressing an opinion
about a [*319] pending ballot issue. See Hearing on
S.B. 94-171 before its second reading to the House,
59th General Assembly, Second Session (March 22,
[**8] 1994).
Therefore, the court did not err in interpreting the
meaning of the applicable exemption in evaluating
plaintiffs' newsletter.
III.
Finally, defendant argues that even if the exemption
applies to the newsletter, the court erred when it
concluded that the contested portion conformed to the $
50 limit. We perceive no error.
At the hearing, C.U.'s Director of Publications Service
testified that the total cost of printing the newsletter on
two sides of one page was $ 688.01 and that, even if the
challenged paragraph had been deleted, there would
have been no difference in the cost, because a second
side would still have been necessary to accommodate
the remaining portions of the letter.

any such issue, if the member . . . has not

solicited the question. A member or employee
. . . who has policy-making responsibilities
may expend not more than fifty dollars of
public moneys in the form of letters,

Additionally, the evidence established that the cost of

reimbursing the word processor's time for typing the
challenged paragraph was less than $ 1. Although final
arguments at the hearing made reference to the
possibility of contributions in kind that may have been
provided by auxiliary staff in folding and stuffing the
newsletter into the employee pay envelopes, neither
party presented any evidence about the value of such
contributions.

telephone calls, or other activities

incidental to expressing his or her opinion

Therefore, since there was no competent evidence in

the record [**9] to support defendant's conclusion that
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Page 5 of 5
899 P.2d 316, *319; 1995 Colo. App. LEXIS 27, **9
the amount spent in printing and distributing the portion
of the letter directed toward Amendment One was more
than $ 50, the district court did not err in reversing that
determination.

The judgment is affirmed.

JUDGE JONES and JUDGE TAUBMAN concur.

Julianna Wade