Passarelli v. Schoettler, 85SA208

• Decision Date: 08 September 1987
• Docket Number: No. 85SA208,85SA208
• Parties: Ronald PASSARELLI, Plaintiff-Appellee, v. Gail SCHOETTLER and State of Colorado, Defendants-Appellants.
• Court: Colorado Supreme Court

Page 867

742 P.2d 867

Ronald PASSARELLI, Plaintiff-Appellee, v. Gail SCHOETTLER and State of Colorado, Defendants-Appellants.

No. 85SA208.

Supreme Court of Colorado En Banc.

Sept. 8, 1987.

As Modified on Denial of Rehearing Oct. 5, 1987.

Haddon, Morgan & Foreman, P.C., Norman R. Mueller, Kenneth S. Canfield, Denver, for plaintiff-appellee.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Maurice Knaizer, Asst. Atty. Gen., Denver, for defendants-appellants.

KIRSHBAUM, Justice.

Appellants Colorado State Treasurer Gail Schoettler and the State of Colorado (collectively "the State") appeal the trial court's order declaring a portion of section 31-4-504.5, 12B C.R.S. (1986), unconstitutional and awarding the appellee, Ronald Passarelli, reimbursement for expenses he incurred in a recall election resulting in his retention in public office. ¹ We affirm.

I

While serving as a Trinidad, Colorado, city councilman, Passarelli became the subject of a recall election held in April of 1977. He incurred expenses of $6,970.14 during his successful campaign. Relying upon article XXI, section 4, of the Colorado Constitution, which expressly requires reimbursement from the state treasury of campaign expenses incurred by incumbent public office holders who prevail in recall elections, he filed a formal request for reimbursement of his expenses with the Secretary of State. No statutory procedures for reimbursing local officials for recall election expenses were in existence when Passarelli requested repayment. On the advice of the Attorney General, the Secretary of State denied Passarelli's request on the ground that specific enabling legislation was necessary for implementation of this constitutional provision.

In 1979, the General Assembly enacted section 31-4-504.5, authorizing reimbursement of expenses to local officials who successfully retain their offices in recall elections. The statute limits the total amount of reimbursement to a sum equal to ten cents per voter. In accordance with section 31-4-504.5, the General Assembly appropriated $170 to reimburse Passarelli. Act approved May 2, 1980, ch. 33, § 1, 1980 Colo.Sess.Laws 275. Although Passarelli accepted this sum, he reserved the right to institute legal proceedings for the balance of his expenses and subsequently commenced this action.

At trial only two witnesses testified, both of whom were called by Passarelli. Floyd Ciruli, a political campaign manager and marketing analyst experienced in recall election campaigns, testified that recall elections have inherently lower visibility than general elections, requiring incumbents who seek retention to campaign vigorously; that campaigns in smaller districts are more expensive on a per-voter basis than those in larger districts; and that no incumbent could mount a successful campaign opposing recall at the rate of ten cents per voter. Eric Sondermann, a marketing, communications and political consultant, also testified that an incumbent could not run a successful campaign if limited to expenditures of ten cents per voter.

The trial court concluded that the statutory reimbursement limitation of ten cents per voter set forth in section 31-4-504.5(4) bears no reasonable relationship to any legitimate state interest; has a punitive effect on incumbents subject to recall election in smaller districts; and directly contravenes article XXI, section 4, of the Colorado Constitution. The trial court entered judgment against the State in the amount of Passarelli's unreimbursed expenses of $6,800.14, plus interest.

II

Statutes are presumed to be constitutional, and a party asserting that a particular statute is unconstitutional assumes the burden of establishing such assertion beyond a reasonable doubt. People v. O'Cana, 725 P.2d 1139 (Colo.1986); People ex rel. City of Arvada v. Nissen, 650 P.2d 547 (Colo.1982); Bollier v. People, 635 P.2d 543 (Colo.1981). The General Assembly exercises plenary power with respect to appropriations, subject only to constitutional limitations. Colorado Gen. Assembly v. Lamm, 704 P.2d 1371 (Colo.1985); Anderson v. Lamm, 195 Colo. 437, 579 P.2d 620 (1978); MacManus v. Love, 179 Colo. 218, 499 P.2d 609 (1972). The State initially argues that section 31-4-504.5(4) is the product of the constitutional exercise of the General Assembly's plenary appropriations power and that article XXI, section 4, of the Colorado Constitution does not limit such appropriations power. We disagree.

Section 31-4-504.5 provides:

Incumbent not recalled--reimbursement. (1) If at any recall election the incumbent whose recall is sought is not recalled, he shall be repaid from the state treasury for any money actually expended by him as expenses of such election when such expenses are authorized by this section.

(2)(a) Authorized expenses shall include, but are not limited to, moneys spent in challenging the sufficiency of the recall petition and in presenting to the voters the official position of the incumbent, to include campaign literature and advertising and the maintaining of a campaign headquarters.

(b) Unauthorized expenses shall include, but are not limited to, moneys spent on challenges and court actions not pertaining to the sufficiency of the recall petition; personal expenses for meals, lodging, and mileage for the incumbent; costs of maintaining a campaign staff; reimbursement for expenses incurred by a campaign committee which has solicited contributions; reimbursement of any kind for employees in the incumbent's office; and all expenses incurred prior to the filing of the recall petition.

(3) The incumbent shall file a complete and detailed request for reimbursement within sixty days after the date of the recall election with the governing body of the municipality holding the recall election, who shall then review the reimbursement request for appropriateness under subsection (2) of this section and refer such request, with recommendations, to the controller within thirty days after receipt of the reimbursement request.

(4) The general assembly shall provide appropriations for such purpose, but in no event shall the sum appropriated exceed an amount equal to ten cents per voter.

The trial court concluded that this statute in general properly establishes a procedure for distinguishing the kinds of expenses for which officials who successfully retain their offices in recall elections may be reimbursed. The parties do not question that ruling.

The State does challenge the trial court's further conclusion that section 31-4-504.5(4) violates article XXI, section 4, of the Colorado Constitution. Article XXI of the Colorado Constitution establishes a procedure for the initiation and conduct of recall elections and provides that every elected public officer may be recalled by the electors through such procedure. Section 4 of article XXI, which places limitations on the recall procedure, provides in pertinent part:

If at any recall election the incumbent whose recall is sought is not recalled, he shall be repaid from the state treasury any money authorized by law and actually expended by him as expenses of such election; and the legislature shall provide appropriations for such purpose.

....

This article is self-executing, but legislation may be enacted to facilitate its operations, but in no way limiting or restricting the provisions of this article, or the powers herein reserved.

The State argues that the language requiring repayment of "any money authorized by law" delegates to the General Assembly complete discretion to determine the amount of money to be reimbursed, restricting that discretion only to the extent that money may not be appropriated for expenses not actually incurred. In our view, this argument accords those five words undue emphasis and fails to give appropriate weight to the strong mandatory statements of article XXI, section 4, requiring that the successful incumbent "shall" be repaid, providing that the legislature "shall" provide appropriations for such purpose, and expressly prohibiting the legislature from limiting or restricting these self-executing provisions. See, e.g., In re Interrogatories Propounded by the Senate Concerning H.B. 1078, 189 Colo. 1, 536 P.2d 308 (1975); Yenter v. Baker, 126 Colo. 232, 248 P.2d 311 (1952). These mandatory statements emphasize the primary purpose of this constitutional provision to assure incumbents of reasonable reimbursement of expenses incurred in recall elections. It is our responsibility to make certain that neither this purpose nor the clear language expressing it is ignored or rendered ineffective by our statutory construction. See, e.g., Colorado Ass'n of Public Employees v. Lamm, 677 P.2d 1350 (Colo.1984); Colorado State Civil Serv. Employees Ass'n v. Love, 167 Colo. 436, 448 P.2d 624 (1968).

Courts must, whenever possible, construe statutes to conform to constitutional standards. People v. New Horizons, Inc., 200 Colo. 377, 616 P.2d 106 (1980). While the role of the courts is not to determine whether particular legislation is wise or desirable, Kallenberger v. Buchanan, 649 P.2d 314 (Colo.1982); Winkler v. Colorado Dep't of Health, 193 Colo. 170, 564 P.2d 107 (1977), to withstand constitutional challenge statutory provisions must, at a minimum, have a reasonable basis in fact and bear a reasonable relationship to a legitimate governmental interest, see Lee v. Colorado Dep't of Health, 718 P.2d 221 (Colo.1986); Smith v. Charnes, 649 P.2d 1089 (Colo.1982); Heninger v. Charnes, 200 Colo. 194, 613 P.2d 884 (1980).

Here, the evidence at trial established that under the circumstances of this case the ten cents per voter limitation has no reasonable basis in fact. It is undisputed that all of Passarelli's expenses qualified for reimbursement under the guidelines set forth in section 31-4-504.5(2), that the expenses were reasonably and necessarily incurred, and that no incumbent in...