People ex rel. Losavio v. Gentry

• Decision Date: 04 February 1980
• Docket Number: Nos. 79SA296,79SA203 and 28228,s. 79SA296
• Citation: 199 Colo. 153,606 P.2d 57
• Parties: The PEOPLE of the State of Colorado ex rel. J. E. LOSAVIO, Jr., District Attorney in and for the County of Pueblo, State of Colorado, Petitioner- Appellant, v. Elvin L. GENTRY, Respondent-Appellee. Charles R. WILLIAMS, Petitioner, v. DISTRICT COURT IN AND FOR the TENTH JUDICIAL DISTRICT, and the Honorable Richard D. Robb, District Judge within and for the County of Pueblo, State of Colorado, Respondents. The PEOPLE of the State of Colorado ex rel. J. E. LOSAVIO, Jr., District Attorney in and for the Tenth Judicial District of the State of Colorado, Petitioner, v. The Honorable Richard D. ROBB, District Judge within and for the Tenth Judicial District of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 57

606 P.2d 57

199 Colo. 153

The PEOPLE of the State of Colorado ex rel. J. E. LOSAVIO,

Jr., District Attorney in and for the County of

Pueblo, State of Colorado, Petitioner- Appellant, v. Elvin L. GENTRY, Respondent-Appellee.

Charles R. WILLIAMS, Petitioner, v. DISTRICT COURT IN AND FOR the TENTH JUDICIAL DISTRICT, and

the Honorable Richard D. Robb, District Judge

within and for the County of Pueblo,

State of Colorado, Respondents.

The PEOPLE of the State of Colorado ex rel. J. E. LOSAVIO,

Jr., District Attorney in and for the Tenth

Judicial District of the State of

Colorado, Petitioner,

v.

The Honorable Richard D. ROBB, District Judge within and for

the Tenth Judicial District of the State of

Colorado, Respondent.

Nos. 79SA296, 79SA203 and 28228.

Supreme Court of Colorado, En Banc.

Feb. 4, 1980.

J. E. Losavio, Jr., Dist. Atty., for petitioner-appellant in No. 79SA296 and for petitioner in No. 28228.

Amy Isaminger, Deputy Dist. Atty., for petitioner-appellant in No. 79SA296.

Elvin L. Gentry, Sp. Prosecutor for Pueblo County, pro se in No. 79SA296 and for respondents in Nos. 79SA203 and 28228.

Laurence A. Ardell, for petitioner in No. 79SA203.

ERICKSON, Justice.

For the purposes of this opinion, we are consolidating original proceedings 28228 (filed by petitioner J. E. Losavio, Jr.) and 79SA203 (filed by petitioner Charles R. Williams) with appeal 79SA296 filed by the district attorney, J. E. Losavio, Jr. as relator for the people. We now make the rules we issued in 28228 and 79SA203 absolute and we reverse the judgment of the district court in 79SA296. Accordingly, the three cases are remanded to the designated district courts for further proceedings consistent with the views expressed in this opinion.

I.

These cases have their genesis in a motion filed on April 22, 1977 by the district attorney for the Tenth Judicial District, J. E. Losavio, Jr. (the district attorney). In that motion, the district attorney requested the appointment of a special prosecutor "to investigate and prosecute, if warranted, certain allegations concerning budgetary irregularities involving officials, agencies and departments of the County of Pueblo." According to the motion, a complaint asserted overspending of certain departmental budgets, allegedly in violation of section 29-1-118, C.R.S.1973 (now in 1977 Repl. Vol. 12) ¹ and sections 18-8-404 or 405, C.R.S.1973 (now in 1978 Repl. Vol. 8). ² Because the district attorney's department was one of the possible subjects of the investigation, the district attorney took the position that he was precluded from conducting an impartial investigation of the charges. The motion requested that a special prosecutor be charged with investigating all allegations of budgetary malfeasance and allied offenses on the part of Pueblo County officials over the past decade.

A similar motion was filed on April 25, 1977, by the Pueblo County Board of County Commissioners. That motion requested that a special investigator be appointed to investigate the alleged overspending of certain departmental budgets in violation of section 29-1-118, C.R.S.1973. The petition requested that the court appoint "a disinterested person to investigate such apparent violations for the purpose of making a determination of whether or not any such acts of overspending are in fact violations of C.R.S.1973, 29-1-118, 18-8-404, 18-8-405 or any other law of the state, and if prosecution is warranted, to pursue the same."

On May 3, 1977, the respondent district court approved the district attorney's and the county commissioners' motions for a special prosecutor, and appointed Elvin Gentry, the appellee in 79SA296, as special prosecutor. In its written order, the court found that the district attorney was an interested party under section 20-1-107, C.R.S.1973 with respect to the investigation and prosecution of the alleged budgetary irregularities. The Court subsequently amended its order granting to the special prosecutor the power to request an additional panel of the 1977 Pueblo County Grand Jury.

Pursuant to the court order, the special prosecutor investigated various Pueblo County officials and the district attorney by means of an additional panel of the 1977 Pueblo County grand jury. ³ On May 25, 1977, the grand jury returned an indictment against county commissioner Charles R. Williams, the petitioner in 79SA203. The indictment alleged a violation of sections 18-2-101 and 18-8-407, C.R.S.1973 (now in 1978 Repl. Vol. 8) (attempt to commit embezzlement of public property) and sections 18-2-201 and 18-8-407, C.R.S.1973 (now in 1978 Repl. Vol. 8) (conspiracy to commit embezzlement of public property).

Prior to the issuance of the indictment against Williams, on September 20, 1977 an investigator for the special prosecutor filed an application and affidavit for a search warrant authorizing the seizure of a U-Haul trailer found on the premises of an establishment owned by Williams. According to the affidavit, Williams had stolen the trailer in violation of section 18-4-401, C.R.S.1973 (now in 1978 Repl. Vol. 8) (theft). The special investigator subsequently seized the trailer.

Shortly after the seizure, Williams filed a motion in the respondent court challenging the authority of the special prosecutor to investigate the alleged theft of the U-Haul trailer. The motion alleged that such a matter did not involve a budgetary irregularity and therefore was outside the scope of the special prosecutor's authority. Williams also requested the return of the trailer and its suppression as evidence.

On February 1, 1978, the respondent court denied Williams' motion. The court held that while the special prosecutor did not have the authority to investigate allegations of theft, it had also been alleged that Williams had attempted to sell the trailer to Pueblo County officials in violation of section 18-8-407, C.R.S.1973 (theft by deception or embezzlement). The court reasoned that embezzlement constituted a budgetary irregularity within the scope of the special prosecutor's authority:

"Had Williams successfully completed the sale of this U-Haul trailer to the County of Pueblo for the sum asked, he would have received that sum without conveying good title to the County. . . . An expenditure of public money would have been made. That brings the entire matter within the scope of the Special Prosecutor's authority." ⁴

Following his indictment by the grand jury, Williams filed a motion to dismiss on the grounds that the subject matter of the indictment was outside the scope of the special prosecutor's authority. The respondent court denied the motion on April 11, 1979, and Williams subsequently filed an original proceeding in this Court (79SA203).

On June 26, 1978, the district attorney filed a petition in this Court for a writ prohibiting the respondent court from authorizing or approving further investigation by the additional panel of the grand jury which went beyond the scope of a special prosecutor's authority. In that petition, the district attorney alleged that the grand jury, aided by the special prosecutor, had attempted to inquire into a number of areas outside the scope of budgetary irregularities, including: the manner in which the assessor of Pueblo County makes assessments; a broad range of activities conducted by the Sheriff's office; allegations that Williams attempted to embezzle funds from Pueblo County; the actions of the district attorney's office in handling cases involved with Pueblo West; and certain other matters pertinent to the restoration of the Pueblo County Courthouse.

On June 27, 1978, the district attorney filed a quo warranto action, pursuant to C.R.C.P. 106, against the special prosecutor. In that action, the district attorney reiterated the allegations concerning the special prosecutor's conduct raised in the petition to this Court, and added further allegations that the special prosecutor had: investigated the alleged theft of articles and materials from the Pueblo County Courthouse; investigated the activities of the district attorney with respect to certain anti-recall efforts; investigated alleged bribes and thefts in the operation of the Pueblo County Roads and Budgets Departments; and investigated the alleged construction of a swimming pool by a Pueblo County employee. After a hearing, the trial court dismissed the complaint, stating that an investigation into budgetary irregularities necessarily included an investigation into the receipt of funds as well as the expenditure of funds. The district attorney subsequently appealed (79SA296), and the case was transferred to this Court for consolidation with the original proceedings (79SA203 and 28228).

II.

The office of the district attorney is created by Article VI, section 13 of the Colorado Constitution which provides: "In each judicial district there shall be a district attorney elected . . . (who shall) perform such duties as provided by law." Pursuant to the authority granted by the Constitution, the legislature has determined various responsibilities of the district attorney, See e. g. section 20-1-103, C.R.S.1973 (now in 1978 Repl. Vol. 8), and concomitantly, has determined the circumstances under which the district attorney may be supplanted in the exercise of those powers. Under the Constitution, the legislature is the only body empowered to circumscribe the duties of the district attorney and this Court has long required that such restrictions be construed as narrowly as possible by the courts. See e. g. People ex rel. Tooley v. District Court, 190 Colo. 468, 549 P.2d 772 (1976); Gray v. District Court, 42 Colo. 298, 94 P. 287 (1908).

One of the principal duties of the district attorney is to appear on behalf of the state and counties. Section 20-1-102, C.R.S.1973 (now in 1978 Repl. Vol. 8), provides:

"(1) Every district attorney shall appear in behalf of the state and the several counties of his district:

"(a) In...