Prairie Mountain Publ'g Co. v. Regents of the Univ. of Colo.

• Decision Date: 04 March 2021
• Docket Number: Court of Appeals No. 20CA0691
• Citation: 491 P.3d 472
• Court: Colorado Court of Appeals
• Parties: PRAIRIE MOUNTAIN PUBLISHING COMPANY, LLP, d/b/a Daily Camera, Plaintiff-Appellee, v. REGENTS OF the UNIVERSITY OF COLORADO, Defendant-Appellant.

491 P.3d 472

PRAIRIE MOUNTAIN PUBLISHING COMPANY, LLP, d/b/a Daily Camera, Plaintiff-Appellee,

v.REGENTS OF the UNIVERSITY OF COLORADO, Defendant-Appellant.

Court of Appeals No. 20CA0691

Colorado Court of Appeals, Division V.

Announced March 4, 2021

Maxfield Gunning, LLP, Robert R. Gunning, Eric Maxfield, Boulder, Colorado, for Plaintiff-Appellee

Philip J. Weiser, Attorney General, Michael Kotlarczyk, Assistant Attorney General, Skippere Spear, Senior Assistant Attorney General, Denver, Colorado, for Defendant-Appellant

Philip J. Weiser, Attorney General, Julie C. Tolleson, First Assistant Attorney General, Isabel J. Broer, Assistant Attorney General, Denver, Colorado, for Amicus Curiae Colorado Higher Education Institutions

Baker & Hostetler LLP, Marc D. Flink, Denver, Colorado; Killmer, Lane, & Newman, LLP, Thomas B. Kelley, Denver, Colorado, for Amici Curiae Colorado Freedom of Information Coalition, Joseph L. Brechner Center for Freedom of Information, National Freedom of Information Coalition, News Leaders Association, Society of Professional Journalists, Colorado Politics, Colorado SPJ Pro Chapter, Colorado Press Association, Reporters Committee for Freedom of the Press, Colorado Broadcasters Association, Denver Post, Colorado Springs Gazette, Colorado News Collaborative and Colorado Sun

Opinion by JUDGE BERGER

¶ 1 This case arises under the Colorado Open Records Act (CORA) and the Open Meetings Law (OML). Prairie Mountain Publishing Company, LLP, d/b/a Daily Camera requested documents regarding applicants for the presidency of the University of Colorado (CU). CU refused the requests, and the Daily Camera sued. The district court agreed with the Daily Camera and ordered disclosure of the requested documents. Because we conclude the district court exceeded its authority in rewriting the applicable statutes, we reverse.

I. Background

¶ 2 When CU President Bruce Benson announced his retirement, the CU Board of Regents (Regents) adopted procedures to select his successor. The Regents appointed an internal search committee and hired an outside search firm. Initially, the search firm received more than one hundred referrals or applications for the position. These candidates were winnowed down at various stages. The search firm narrowed this list to twenty-seven candidates, and the search committee decided to interview eleven, eventually interviewing only ten after one withdrew. After those interviews, the search committee reduced the remaining applicants to six, all of whom were interviewed by the Regents. After those interviews, the Regents publicly announced that there was only one finalist — Mark Kennedy.

¶ 3 Mr. Kennedy then went through an extensive public vetting process, including personal meetings with various constituent groups at all of CU's campuses. During this vetting process, there was considerable criticism heaped on the Regents regarding both the search process itself and the Regents’ apparent selection of Mr. Kennedy. Ultimately, the Regents voted 5-4 to appoint Mr. Kennedy.

¶ 4 After Mr. Kennedy's appointment, the Daily Camera requested under CORA and the OML the names and application documents of the candidates selected by the search committee and those interviewed by the Regents.¹ When CU declined to produce the records (except those regarding Mr. Kennedy), the Daily Camera sued in Denver District Court.²

¶ 5 The court ruled in favor of the Daily Camera, concluding that the six candidates interviewed by the Regents were the finalists.

¶ 6 Proceedings before the Denver District Court confirmed that, at least with respect to appointment of officers of public entities (which all parties concede include CU and its Regents), both CORA and the OML are seriously flawed. Despite many legislative attempts over the years to reconcile competing public policy interests, the statutes do a very poor job of precisely designating which records regarding which people are subject to mandatory disclosure.

¶ 7 Faced with these confusing statutes, the district court did a yeoman's job attempting to make sense of and bring clarity to them. We conclude, however, that the district court's efforts were, in the end, outside the proper role of our courts.

¶ 8 It is beyond argument that the district court's construction of CORA and the OML better advance the sunshine and open government principles that underlie those statutes. The statutes, as construed by the district court are "better" in that sense, although that value judgment may well depend on one's point of view. But making statutes clearer, easier to administer, or "better" are not proper roles of this state's courts. That is the job of the General Assembly. Dep't of Transp. v. City of Idaho Springs , 192 P.3d 490, 494 (Colo. App. 2008) ("If a statute gives rise to undesirable results, the legislature must determine the remedy. Courts may not rewrite statutes to improve them.") (citations omitted).

¶ 9 Unlike a situation in which a court is tasked with interpreting an ambiguous statute to comport with underlying constitutional commands, there is no such baseline here. The rights involved here are entirely statutory, and the power of the General Assembly to establish, limit, and clarify those rights is plenary. It is in that context that we review the district court's judgment.

II. Analysis

A. Standard of Review and Preservation

¶ 10 This case presents a question of statutory interpretation, which we review de novo.³ Oakwood Holdings, LLC v. Mortg. Invs. Enters. LLC , 2018 CO 12, ¶ 12, 410 P.3d 1249. Courts "review de novo questions of law concerning the correct construction and application of CORA." Harris v. Denver Post Corp. , 123 P.3d 1166, 1170 (Colo. 2005). "Likewise, interpreting the OML presents a question of law that we review de novo." Colo. Off-Highway Vehicle Coal. v. Colo. Bd. of Parks & Outdoor Rec. , 2012 COA 146, ¶ 22, 292 P.3d 1132.

¶ 11 The issue of whether CORA and the OML require the requested disclosure was preserved for appeal.

B. The Plain Language of the Statutes is Unambiguous

¶ 12 The overriding goal of statutory construction is to effectuate the legislature's intent. Dep't of Revenue v. Agilent Techs., Inc. , 2019 CO 41, ¶ 16, 441 P.3d 1012. In doing so, courts "look first to the statute's language, giving words and phrases their plain and ordinary meanings." Bd. of Cnty. Comm'rs v. Dep't of Pub. Health & Env't , 2020 COA 50, ¶ 14 (cert. granted Sept. 28, 2020). This requires "reading applicable statutory provisions as a whole in order to accord consistent, harmonious, and sensible effect to all their parts." People in Interest of W.P. , 2013 CO 11, ¶ 11, 295 P.3d 514. However, when the plain language is unambiguous, we look no further. Id.

¶ 13 The parties agree that disclosure is required only with respect to finalists. Indeed, CORA prohibits CU and other state entities from disclosing any "[r]ecords submitted by or on behalf of an applicant or candidate for an executive position ... who is not a finalist." § 24-72-204(3)(a)(XI)(A), C.R.S. 2020.

¶ 14 This is the question before us: Who is a finalist? CORA defines a "finalist" as

an applicant or candidate for an executive position as the chief executive officer of a state agency, institution, or political subdivision or agency thereof who is a member of the final group of applicants or candidates made public pursuant to section 24-6-402(3.5), and if only three or fewer applicants or candidates for the chief executive officer position possess the minimum qualifications for the position, said applicants or candidates shall be considered finalists.

Id. (emphasis added).

¶ 15 By the statute's plain language, a "finalist" is a person who is disclosed by the appointing entity as a finalist — who is "made public." Id.

¶ 16 Unlike earlier versions of CORA, which were abrogated by the General Assembly, this definition of a "finalist" is confusing and perhaps circular. The district court acknowledged this, saying that it made no sense to allow the appointing entity to structure its appointment process to require disclosure of only the single person the entity intends to appoint. Such a process, according to the district court and the Daily Camera, violates the open records and open meetings principles underlying the statutes before us.

¶ 17 That may be true, but we hold this to be insufficient for us to step in and write what some may consider to be better statutes more attuned to concepts of open government. "Courts may not rewrite statutes to improve them." City of Idaho Springs , 192 P.3d at 494.

¶ 18 The bottom line is that it is not impossible to enforce the statutes as written. (If it were, principles regarding construction of statutes by courts might come into play.) Doing so may or may not provide the level of open records that many think essential to good government. But that is not the test. Instead, we hold that the district court overstepped its bounds in rewriting CORA to provide that the Regents had a mandatory legal duty to disclose the records of the six interviewees.

¶ 19 The problems with the district court's construction in this respect are several. First, how does a court determine who the finalists are? That is, even if we were to agree with the district court's interpretation that the plain language requires the disclosure of multiple finalists when more than three applicants possess the minimum qualifications, what judicially manageable standards exist to determine who the finalists are? Are they the large group of persons vetted by the outside search firm, or the smaller group identified by the internal search committee? Or are the finalists only those persons that were interviewed by the search committee?⁴ Is a person a finalist because he or she was interviewed by the Regents, even when the Regents, as a result of those interviews, determine that one or more of the interviewees were unsuitable for the job? Or are finalists limited to those persons that, after the interviews, are...