City of Wheat Ridge v. Cerveny

• Decision Date: 01 April 1996
• Docket Number: No. 94SC521,94SC521
• Citation: 913 P.2d 1110
• Parties: CITY OF WHEAT RIDGE, Petitioner, v. Carl CERVENY, George J. Langdon, and Kenneth K. Siler, Respondents.
• Court: Colorado Supreme Court

Page 1110

913 P.2d 1110

CITY OF WHEAT RIDGE, Petitioner, v. Carl CERVENY, George J. Langdon, and Kenneth K. Siler, Respondents.

No. 94SC521.

Supreme Court of Colorado.

April 1, 1996.

Kathryn L. Schroeder, Denver, for Petitioner.

Kevin B. Pratt, Castle Rock, for Respondents.

Justice MULLARKEY delivered the Opinion of the Court.

We granted certiorari in Cerveny v. City of Wheat Ridge, 888 P.2d 339 (Colo.App.1994). The petitioner, the City of Wheat Ridge (Wheat Ridge), seeks our review of the court of appeals' decision reversing the trial court's denial of an award of attorney fees to taxpayers Carl Cerveny, George J. Langdon, and Kenneth K. Siler, the respondents. The issues before us are: (1) whether an award of attorney fees is mandated under article X, section 20(1) of the Colorado Constitution (Amendment 1); ¹ (2) the propriety of the court of appeals' standard of review of the trial court's determination; (3) the applicability of rule requirements to contingent fee agreements in awarding attorney fees; and (4) whether parties who do not incur attorney fees and costs are nonetheless eligible to receive an award. ² We reverse the judgment of the court of appeals and return the case to that court with instructions to remand to the trial court for proceedings consistent with this opinion.

I.

In March 1993, the respondents filed a civil action seeking to enjoin Wheat Ridge from proceeding with a special election on a ballot issue prior to November 1993. The respondents contended that the special election contravened the terms of Amendment 1, specifically, article X, section 20, clause 3(a) of the Colorado Constitution. ³ The respondents sought declaratory and injunctive relief and prevailed at the trial court level. Wheat Ridge did not appeal that determination. Thereafter, the respondents sought an award of attorney fees and costs as permitted under Amendment 1 which provides that "[s]uccessful plaintiffs are allowed costs and reasonable attorney fees."

The trial court denied the respondents' motion. In doing so, the trial court relied on its finding that the respondents were "nominal" plaintiffs, i.e., they had been solicited by Douglas Bruce and the TABOR Committee, ⁴ because of their status as Wheat Ridge residents and taxpayers. ⁵ The trial court noted that the respondents had no personal financial stake in the litigation and that all attorney costs were being incurred by Douglas Bruce and the TABOR Committee. Further, Douglas Bruce and the TABOR Committee could not be adjudged "successful plaintiffs" under Amendment 1. Finally, the trial court commented on the impropriety of the contingent fee agreement between the respondents and their attorney.

In its oral findings of fact and conclusions of law, the trial court made the following statements:

[T]he three plaintiffs at no time incurred any obligation to make payment to Mr. Pratt [their attorney] for attorney's fees or to reimburse him or his actual clients, Mr. Bruce and the Tabor Committee, for any fees and costs that they might incur.

....

The Court notes--and again, it's undisputed that this complaint was filed in this Court on March 2, 1993; that each of the letters which were sent by Mr. Pratt to the nominal plaintiffs in this case is dated March 4, 1993, which advises them of what the fee arrangement is--and that is that it is a contingent fee, and he collects only if he's successful, and that is against the governmental body, that being the City of Wheat Ridge, the defendant; and that they have no obligation for fees whether he's successful or not.

The trial court then determined that a grant of attorney fees under such circumstances was contrary to the purpose of Amendment 1, i.e., to encourage citizens to enforce the provisions of Amendment 1. Hence, the trial court concluded that the respondents' attorney was not entitled to any compensation from the court.

The court of appeals reversed the decision of the trial court and held that:

[W]e do not interpret the provision authorizing awards in favor of "successful plaintiffs" to include a limitation solely to plaintiffs who incurred an obligation to pay or actually paid attorney fees and costs. The plain meaning of this phrase connotes that a plaintiff who prevails is entitled to an award of costs and reasonable attorney fees for litigation undertaken to enforce the amendment's substantive provisions.

Cerveny, 888 P.2d at 341. The court of appeals rejected the trial court's finding that Douglas Bruce was the real party in interest in the underlying litigation and ultimately concluded that "the denial of an award of reasonable attorney fees and costs requested by [the respondents] cannot stand." Id.

II.

The dispositive issue before us is whether the court of appeals correctly construed the language of Amendment 1. Specifically, we must determine whether the clause "[s]uccessful plaintiffs are allowed costs and reasonable attorney fees" mandates an award of attorney fees to victorious plaintiffs. Hence, we address the interpretation question first.

Amendment 1 was adopted by popular vote on November 3, 1992. When interpreting a constitutional amendment such as Amendment 1, "we should ascertain and give effect to the intent of those who adopted it." Urbish v. Lamm, 761 P.2d 756, 760 (Colo.1988); see also Bolt v. Arapahoe County Sch. Dist. Six, 898 P.2d 525, 532 (Colo.1995). It is our responsibility to ensure that we effect what the voters "believed the amendment to mean when they accepted it as their fundamental law." Urbish, 761 P.2d at 760. This means that words used in our Constitution must be given their "natural and popular meaning usually understood by the people who adopted them." Id. Guided by these principles, we hold that the fee-shifting phrase "[s]uccessful plaintiffs are allowed costs and reasonable attorney fees" is plain and unambiguous. A court is "allowed" to award attorney fees but is not required to do so. Therefore, we reject the court of appeals' conclusion that Amendment 1's fee-shifting language mandates an award whenever a plaintiff prevails under that amendment.

Our analysis starts with the "American Rule," long-established in our jurisprudence, which precludes the award of attorney fees to the prevailing litigant, Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247, 95 S.Ct. 1612, 1617, 44 L.Ed.2d 141 (1975), "absent a specific contractual, statutory, or procedural rule providing otherwise," Buder v. Sartore, 774 P.2d 1383, 1390 (Colo.1989). Hence, we should not construe a fee-shifting provision as mandatory unless the directive is specific and clear on that score. That is not the case here. The word "allow" is not a specific directive compelling an award of fees.

Dictionary definitions of the common usage of "allow," as relevant in the Amendment 1 context, are synonymous with the word "permit." See, e.g., Webster's Third New International Dictionary 58 (3d ed.1986); Random House Webster's College Dictionary 38 (1992). Notably, Webster's Third New International Dictionary includes a definition of "allow" as "to give or recognize as a right" which squares with the respondents' proposed interpretation. Webster's Third New International Dictionary. However, that definition is provided under the heading "obsolete." Id. According to Webster's explanatory notes, an "obsolete" definition signifies that "no evidence of standard use since 1755 has been found or is likely to be found." Id. at 16a (Explanatory Notes). Therefore, the respondents' interpretation of the relevant Amendment 1 language harkens to an outdated usage and cannot be adopted by this court if we remain true to our responsibility to give words used in our constitution their "natural and popular meaning usually understood by the people who adopted them." Urbish, 761 P.2d at 760. The voters cannot have intended that Amendment 1 would be given the obscure, archaic interpretation propounded by the respondents.

Amendment 1 does not employ the same language which is found in our mandatory fee-shifting statutes. See, e.g., § 38-12-103(3)(a), 16A C.R.S. (1982) ("The willful retention of a security deposit in violation of this section shall render a landlord liable for treble the amount of that portion of the security deposit wrongfully withheld from the tenant, together with reasonable attorneys' fees and court costs") (emphasis supplied); § 8-4-114, 3B C.R.S. (1986) ("Whenever it is necessary for an employee to commence a civil action for the recovery or collection of wages and penalties due ... the judgment in such action shall include a reasonable attorney fee in favor of the winning party") (emphasis supplied).

When the word "allow" is used in fee-shifting statutes, it is combined with either "shall" or "may." Compare § 10-3-1005, 4A C.R.S. (1994) ("the court may allow to the plaintiff a reasonable attorney fee" in an action against an unauthorized foreign or alien insurer); § 24-34-505.6(6)(b), 10A C.R.S. (1995 Supp.) ("The court, in its discretion, may allow a prevailing party reasonable attorney fees and costs" for a civil action relating to discriminatory housing practice or breach) with § 12-13-106, 5A C.R.S. (1991) ("The court shall, as part of the costs, allow reasonable attorney fees for each claimant who is a party to the action [under the Life Care Institutions statute]."); section 38-27-103, 16A C.R.S. (1982) ("the court shall allow a reasonable attorney's fee for the collection and enforcement of [a hospital] lien"). These verb combinations suggest that "allow," standing alone, has not been understood as mandating the award of attorney fees. ⁶

The language at issue here merely states that "[s]uccessful plaintiffs are allowed costs and reasonable attorneys fees." The key words are "are allowed." As applied, Amendment 1 means that courts "are allowed" to award attorney fees to successful plaintiffs.

Finally, there is nothing in the underlying purpose of Amendment 1...