People v. Losavio
| Decision Date | 19 February 1980 |
| Docket Number | No. 28456,28456 |
| Citation | 199 Colo. 212,606 P.2d 856 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Joseph E. LOSAVIO, Jr., Defendant-Appellee. |
| Court | Colorado Supreme Court |
Elvin L. Gentry, Sp. Prosecutor for Pueblo County, Colorado Springs, for plaintiff-appellant.
Patti F. O'Rourke, Pueblo, for defendant-appellee.
Elvin Gentry was appointed as a special prosecutor for Pueblo County. He presented evidence to an Additional Panel of the 1977 Pueblo County Statutory Grand Jury which resulted in the indictment of the district attorney for the Tenth Judicial District, Joseph E. Losavio, Jr.. The indictment charged that the district attorney had overspent his budget for the years 1974, 1975, and 1976 in violation of section 29-1-113, C.R.S.1973 (now in 1977 Repl.Vol. 12) (no contract to exceed appropriation) and section 29-1-118, C.R.S.1973 (now in 1977 Repl.Vol. 12) (Violation is malfeasance removal). 1
Subsequent to his indictment, the district attorney filed a motion to dismiss, asserting that he was a "state officer" and that the exclusive remedy by which he could be removed from office was by impeachment pursuant to Article XIII, section 2 of the Colorado Constitution. The trial court granted the motion to dismiss the indictment and the question of whether a district attorney may be removed from office under section 29-1-118, C.R.S.1973 is now before us on appeal.
By its terms, section 29-1-118, C.R.S.1973 provides a mechanism for the removal of "(a)ny member of the governing body of any county, city, or town or any member, officer, employee, or agent of any department, board, commission, or other spending agency." This removal procedure, however, does not apply to a district attorney. First, the district attorney is not a member of the governing body of Any county, city, or town. Under Article VI, Section 13 of the Colorado Constitution, the district attorney is an elected officer in a judicial district which may include one or More counties. See e. g. Johnson v. Board of County Commissioners, 174 Colo. 350, 483 P.2d 1344 (1971). "A district attorney is not a county or precinct, but a district, officer . . .." Merwin v. Board of County Commissioners, 29 Colo. 169, 67 P. 285 (1901). Second, a judicial district as such does not have the constitutional authority to appropriate money or levy taxes. Consequently, although the district attorney's office, in fact, spends money derived from the various counties that comprise its judicial district, the district attorney's office is not a spending agency of any one of the counties, cities, or towns that are found in the district, as contemplated by section 29-1-118, C.R.S.1973.
Sections two and three of Article XIII of the Colorado Constitution (hereinafter sections 2 and 3) provide:
At the hearing on the motion to dismiss, the special prosecutor conceded that the district attorney was a state officer for the purposes of section 2, but he argued that section 2 was not exclusive in its provision for the removal of state officers. We disagree with the special prosecutor's contention.
The district attorney is a state officer. People v. Gibson, 53 Colo. 231, 125 P. 531 (1912); Stainer v. San Luis Valley Land & Mining Co., 166 F. 220 (8th Cir. 1908). See also Johns v. Miller, Colo.App., 594 P.2d 590 (1979). In our view, the provisions of sections 2 and 3 are mutually exclusive: Section 2...
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People v. Castro
...a fee which considerably exceeded any fee paid by the state for her services on behalf of the defendant.4 See People v. Losavio, Jr., 199 Colo. 212, 606 P.2d 856 (1980).5 Defense counsel testified that she first met the defendant in the county jail prior to the preliminary hearing and advis......
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...but Justice Hobbs points out that district attorneys also must answer to the state general assembly. Id.; see also People v. Losavio, 199 Colo. 212, 606 P.2d 856, 858 (1980) (noting that district is a state officer who may be impeached by general assembly). Likewise, the Davidson majority n......
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