JEFFERSON County Bd. of EQUALIZATION v. GERGANOFF

• Decision Date: 30 November 2010
• Docket Number: No. 09SC916.,09SC916.
• Parties: JEFFERSON COUNTY BOARD OF EQUALIZATION, Petitioner v. Mark W. GERGANOFF, Robin E. McIntosh, and Board of Assessment Appeals, Respondents.
• Court: Colorado Supreme Court

241 P.3d 932

JEFFERSON COUNTY BOARD OF EQUALIZATION, Petitioner

v.Mark W. GERGANOFF, Robin E. McIntosh, and Board of Assessment Appeals, Respondents.

No. 09SC916.

Supreme Court of Colorado,En Banc.

Nov. 8, 2010.

Rehearing Denied Nov. 30, 2010. ^*

Ellen G. Wakeman, Jefferson County Attorney, Eric T. Butler, Assistant County Attorney, Golden, Colorado, Attorneys for Petitioner.

Mark W. Gerganoff, Golden, Colorado, pro se and attorney for Respondent Robin E. McIntosh.

No appearance by or on behalf of Board of Assessment Appeals.

Lance J. Ingalls, Douglas County Attorney, Kelly Dunnaway, Deputy Douglas County Attorney, Robert D. Clark, Senior Assistant County Attorney, Michelle B. Whisler, Senior Assistant County Attorney, Castle Rock, CO, Attorneys for Amicus Curiae Douglas County.

H. Lawrence Hoyt, Boulder County Attorney, Michael A. Koertje, Assistant County Attorney, Boulder, Colorado, Attorneys for Amicus Curiae Boulder County Board of Equalization.

Hoban & Feola, LLC, Robert T. Hoban, Esq., Denver, Colorado, Attorneys for Amici Curiae Jaki Barry, Jim Butler, Dan Edwards, OPLLC, Jamie and Kim McIntosh, Jeff Quinlan, STP, and SH.

Kathryn Schroeder, Arapahoe County Attorney, George Rosenberg, Assistant County Attorney, Breena N. Meng, Assistant County Attorney, Littleton, Colorado, Attorneys for Amicus Curiae Arapahoe County Board of Equalization.

David R. Fine, City Attorney, City and County of Denver, David V. Cooke, Assistant City Attorney, Municipal Operations Section, Denver, Colorado, Attorneys for Amicus Curiae City and County of Denver.

Chief Justice MULLARKEY delivered the Opinion of the Court.

I. Introduction

We granted certiorari in Gerganoff v. Board of Assessment Appeals, 222 P.3d 395 (Colo.App.2009), to decide whether, upon sustaining in part a taxpayer's appeal of a county's property valuation, the state's Board of Assessment Appeals (the “BAA” or “Board”) is required to award the taxpayer his or her costs incurred in bringing the appeal. We hold that the BAA has the discretion to award costs, and we reverse the judgment of the court of appeals.

II. Facts and Procedural History

After losing their appeal to the Jefferson County Board of Equalization (the “County” or “BOE”) regarding the assessor's 2007 valuation of their home, married property owners Mark Gerganoff and Robin McIntosh (the “Taxpayers”) appealed to the BAA. The Board sustained their appeal in part by ordering a reduction in the valuation of the Taxpayers' home, although not to the amount the Taxpayers had initially requested. The Taxpayers were thereby entitled to a reduction in property taxes, and accordingly a refund of taxes overpaid.

Following the BAA decision, the Taxpayers requested that the Board award them the costs they incurred in hiring an expert appraiser for the appeal. The BAA summarily denied the request, as well as a request for written findings supporting the denial of costs, and the Taxpayers appealed to the court of appeals. Concluding that the BAA was required to award costs pursuant to section 39-8-109(1), C.R.S. (2009), but that the BAA may have properly exercised its discretion to award zero dollars in costs, a division of the court of appeals reversed and remanded the case to the BAA for reconsideration. Gerganoff, 222 P.3d at 397. The County subsequently petitioned this court for review. ¹

We conclude that the court of appeals misinterpreted section 39-8-109(1), C.R.S. (2009). Subsection 109(1) does not require the BAA to award costs in cases before it.

III. Analysis

Before turning to interpretation of subsection 109(1), we begin with a review of the BAA appeal process.

A. Appeals to the Board of Assessment Appeals

A taxpayer dissatisfied with a property tax valuation of his or her residence has several avenues of review. To begin the process, the taxpayer must object and protest to the assessor. § 39-5-122, C.R.S. (2010). If the assessor denies the objection and protest, the taxpayer may then appeal to the county board of equalization. §§ 39-5-122(3); 39-8-106, 107, C.R.S. (2010). If the county board of equalization denies the petition in whole or in part, the taxpayer has three options for additional review: appeal to the district court for a trial de novo, submit the dispute to binding arbitration, or, as the Taxpayers chose here, appeal to the BAA for a hearing. § 39-8-108(1), C.R.S. (2010).

The Board, comprised of licensed real estate appraisers experienced in property valuation and taxation, is a quasi-judicial tribunal within the Colorado Department of Local Affairs that hears property tax appeals from decisions of county boards of equalization. §§ 39-2-123(1)-(2), 125(1)(c), C.R.S. (2010). At a BAA hearing, a taxpayer may appear on his or her own behalf or be represented by an attorney or any other individual. § 39-2-127(4), C.R.S. (2010). A BAA hearing is not a formal judicial hearing, although it has some aspects of a judicial proceeding, including presentation of witness testimony and exhibits, as well as opening and closing statements. See generally BAA Procedures of Practice and Procedures of Review, 8 Colo.Code Regs. § 1301-1 (2010) (“BAA Rules”); BAA Instructions for Taxpayers, http:// dola. colorado. gov/ baa/ instruct. htm (last visited November 4, 2010). After the hearing, the BAA renders a written decision. BAA Rule 18. If the decision of the BAA is against the taxpayer, the taxpayer may appeal to the court of appeals. § 39-8-108(2), C.R.S. (2010).

If a taxpayer achieves a reduction in valuation in the appeal process, he or she must then set into motion the steps set forth by section 39-8-109(1) for obtaining a refund of taxes he or she overpaid. See § 39-8-109(1) (entitled “Effects of board of assessment appeals or district court decision”). Once the taxpayer provides the county assessor with all relevant decisions in the case, which set forth the modified property value, the county assessor forwards this documentation to the county treasurer. Id. The county treasurer then refunds to the taxpayer the appropriate sum of money, which, prior to the 2010 amendment of subsection 109(1), included the costs of the BAA appeal “as may be fixed” by the BAA. ² Id. Prior to amendment, subsection 109(1) also required the taxpayer to pay the county's costs, “as may be fixed” by the BAA, in the event the county prevails and the assessed valuation is upheld.

B. Rules of Statutory Interpretation

[1] We review de novo questions of statutory interpretation. Dubois v. People, 211 P.3d 41, 43 (Colo.2009). Familiar rules of statutory interpretation guide our analysis.

[2] [3] [4] In determining the meaning of a statute, our central task is to ascertain and give effect to the intent of the General Assembly. People v. Dist. Ct., 713 P.2d 918, 921 (Colo.1986). The language at issue must be read in the context of the statute as a whole and the context of the entire statutory scheme. See id. at 921; Bynum v. Kautzky, 784 P.2d 735, 736 (Colo.1989). Thus, our interpretation should give consistent, harmonious, and sensible effect to all parts of a statute. Dist. Ct., 713 P.2d at 921.

[5] [6] We begin by looking to the express language of the statute, construing words and phrases according to grammar and common usage. Id.; § 2-4-101, C.R.S. (2010). Additionally, in this case, we must strictly construe the provision at issue. § 39-1-101, C.R.S. (2010) (“[T]he provisions of said articles [1 through 13 of title 39] shall be strictly construed.”). If, after review of the statute's language, we conclude that the statute is unambiguous and the intent appears with reasonable certainty, our analysis is complete. Dist. Ct., 713 P.2d at 921.

[7] However, where a statute is ambiguous, we employ additional interpretational aids to assist with “selecting among reasonable interpretations of the particular language chosen by the legislature.” Union Pac. R.R. Co. v. Martin, 209 P.3d 185, 188 (Colo.2009). A statute is ambiguous when it “is capable of being understood by reasonably well-informed persons in two or more different senses.” 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 45:2, at 13, 19 (7th ed. 2007) (explaining that “some of the words used may refer to several objects and the manner of their use does not disclose the particular object to which the words refer”).

[8] Relevant to this case, we may look for guidance to statutory history, expressions of purpose in the constitution and in legislative declarations, and the consequences of a particular construction. § 2-4-203, C.R.S. (2010).

Additionally, the heading of a statute, although not dispositive of legislative intent, can aid in determining legislative intent. See City of Ouray v. Olin, 761 P.2d 784, 789 (Colo.1988) (finding helpful the title of legislation); Singer, supra § 47:14, at 336, 339-40 (“Section headings ... serve the same functions for sections that the title does for the entire act and generally should be accorded the same treatment.”).

Finally, because this case involves costs and involves the pursuit of costs against a public entity, certain foundational considerations frame our analysis. As a general matter, absent express legislative direction, the award of costs is a discretionary decision made by the adjudicating authority. Cf. C.R.C.P. 54(d) (“costs shall be allowed as of course to the prevailing party unless the court otherwise directs”); Archer v. Farmer Bros. Co., 90 P.3d 228 (Colo.2004) (“We have interpreted [C.R.C.P. 54(d) ] to mean that trial courts may exercise their discretion to award costs to a prevailing party.” (internal quotation marks and citations omitted)).

This adherence to a finding of discretion absent express legislative direction is particularly important where the costs are to be levied against the government and paid out of public funds, necessarily implicating sensitive budget and funding considerations. Cf. C.R.C.P. 54(d) (emphasizing that “costs against...