Reale v. Board of Real Estate Appraisers

• Decision Date: 12 September 1994
• Docket Number: No. 93SA319,93SA319
• Citation: 880 P.2d 1205
• Parties: Pat REALE, Petitioner, v. BOARD OF REAL ESTATE APPRAISERS, Respondent.
• Court: Colorado Supreme Court

Page 1205

880 P.2d 1205

Pat REALE, Petitioner, v. BOARD OF REAL ESTATE APPRAISERS, Respondent.

No. 93SA319.

Supreme Court of Colorado En Banc.

Sept. 12, 1994.

Robert J. Loew, Adams County Atty., Ronald A. Carl, Asst. County Atty., Brighton, Law Firm of Leonard Chesler, Ben Klein, Co-Counsel, Denver, for petitioner.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Donna L. Rice, Asst. Atty. Gen., Regulatory Law Section, Denver, for respondent.

Chief Justice ROVIRA delivered the Opinion of the Court.

The question in this case is whether the General Assembly can add qualifications for holding constitutionally created offices in addition to those set forth in the constitution itself. The trial court concluded that it could and thus, entered a permanent injunction prohibiting Pat Reale, the elected assessor of Adams County, from continuing to hold the office of Adams County Assessor. We reverse and remand with directions to dismiss the complaint.

I

In 1990, the General Assembly passed the Real Estate Appraiser's Act, §§ 12-61-701 to -717, 5B C.R.S. (1991) (the Act), which requires, among other things, that real estate appraisers meet state licensing requirements and that county assessors be licensed. ¹ The Act establishes categories of registered, licensed, and certified appraisers. Pursuant to section 12-61-706, 5B C.R.S. (1994 Supp.), county assessors must obtain an appraiser's license by completing a minimum of fifty-five hours of classroom instruction and passing a standardized appraiser's examination. ² The Act requires that county assessors comply with the licensing requirements within one year after taking office. § 12-61-714(2), 5B C.R.S. (1991). Reale has not met these requirements.

The State Board of Real Estate Appraisers (the Board) is charged with enforcing the Act. In 1993, the Board filed an action in the district court and requested a preliminary injunction seeking to prevent Reale from performing the duties of his office on the grounds that under the Act, he was not able to do so legally. In response, Reale argued, inter alia, that the Act was unconstitutional because the General Assembly did not have the power to impose additional qualifications for holding a constitutionally created office other than those set forth in the constitution itself.

The trial court declined to issue a preliminary injunction. However, after a trial on the merits, the court concluded that the Act served a compelling state interest, i.e., fair and accurate tax assessments, and was constitutional. Further, it held that the Act did not violate the guarantee of equal protection under the law and that the court was empowered to enjoin Reale from holding office. It entered a permanent injunction barring Reale from holding office as Adams County Assessor.

On appeal Reale reiterates his qualification argument and also contends that the licensing requirements of the Act violate his right to equal protection of the law. ³

II

The office of county assessor is created by article XIV, section 8 of the Colorado Constitution. Article XIV, section 10 of the Colorado Constitution provides: "No person shall be eligible to any county office unless he shall be a qualified elector; nor unless he shall have resided in the county one year preceding his election." Thus, the question presented is whether the qualifications for holding the office of county assessor provided for in article XIV, section 10 are exclusive, or whether the General Assembly may impose additional qualifications. Because we hold that the General Assembly may not impose additional qualifications as a prerequisite to holding the office of county assessor, we need not address Reale's equal protection argument.

A

While no Colorado court has directly decided this question, it has been considered by the courts of many other states. "The law is well established that, where a state constitution provides for certain officials and names the qualification for such officers, the legislature is without authority to prescribe additional qualifications." State v. Welch, 198 Or. 670, 259 P.2d 112, 114 (1953). See also Whitney v. Bolin, 85 Ariz. 44, 330 P.2d 1003 (1958); Thomas v. State, 58 So.2d 173 (Fla.1952); People v. McCormick, 261 Ill. 413, 103 N.E. 1053 (1913); State ex rel. Palagi v. Regan, 113 Mont. 343, 126 P.2d 818 (1942); Gibbany v. Ford, 29 N.M. 621, 225 P. 577 (1924); Cornell v. McAlister, 121 Okla. 285, 249 P. 959 (1926); State v. Betensen, 14 Utah 2d 121, 378 P.2d 669 (1963); C.T. Foster, Annotation, Legislative Power to Prescribe Qualifications for or Consideration of Eligibility to Constitutional Offices, 34 A.L.R.2d 155, 171 (1965) (hereinafter referred to as Legislative Power to Prescribe Qualifications ); 63A Am.Jur.2d, Public Officers and Employees § 37 (1984) ("The general rule is that where the Constitution establishes specific eligibility requirements for a particular constitutional office, the constitutional criteria are exclusive.").

The rationale for the rule is expressed by the maxim, "expressio unius est exclusio alterius"--the expression of one thing is the exclusion of another. Cornell, 249 P. at 960.

The qualifications fixed in the Constitution are exclusive for the reason that if it were not intended by the framers thereof to fix all the qualifications, then it must have been intended to fix only a part and leave it to the legislature to fix others. Such a view is inconsistent with accepted constitutional construction that the enumeration of certain specified things in a Constitution will usually be construed to exclude all other things not so enumerated.

Whitney, 330 P.2d at 1005.

While the text of the constitution, rules of constitutional construction, and the precedents of this court all support the adoption of the majority rule, see infra pp. 1208, it is important to recognize that this rule is grounded, ultimately, on unassailable principles of democratic governance. If the qualifications set out in Article XIV, section 10 for the office of county assessor can only be read as establishing a minimum requirement, and not as a limitation on the imposition of additional qualifications by the General Assembly then there can be no doubt that the General Assembly would have the power to add qualifications for other constitutional offices. ⁴ For example, the legislature could require that a governor obtain a degree in government by completing a prescribed course in an accredited university within one year after taking office, or that a justice take courses in jurisprudence for certification within a certain time frame. The legislature could also make obtaining a certificate by completing a minimum number of hours of classroom instruction and passing a standardized legislator's examination within six months after taking office a requisite for representatives and senators. ⁵

As such, the most fundamental right reserved to the people--the right to vote for representatives of their choice--would hinge not on constitutional guarantees, but on the General Assembly's willingness to abstain from imposing additional qualifications for holding constitutional offices.

[I]f the legislature possesses the power to vary the constitutional qualifications for office by adding new requirements or imposing additional limitations, then eligibility to office and freedom of elections depend, not upon constitutional guarantees, but upon legislative forbearance. If the legislature may alter the constitutional requirements, its power is then unlimited, and only such person may be elected to office as the legislature may permit.... [W]hen the Constitution undertakes to prescribe qualifications for office, its declaration is conclusive of the whole matter, whether in affirmative or negative form.

McCormick, 103 N.E. at 1057.

In a constitutional democracy the principle that the people must be permitted to vote for candidates of their choosing and in conformity with constitutional mandates is beyond question. Indeed, this principle is one of the primary features which distinguishes a constitutional democracy from other forms of government. That the right of the people to choose their representatives could hinge not on constitutional guarantees but on the predilections of the legislature, no matter how well-intentioned, is contrary to this elemental postulate of democratic government.

B

Keeping this justification for the majority rule in mind, we turn to the provisions of the Colorado Constitution. See Legislative Power to Prescribe Qualifications at 155 ("the question of whether a given state legislature has power to prescribe eligibility qualifications for a constitutional office depends, essentially, upon the relevant content of the state constitution").

The Colorado Constitution, unlike the federal constitution, does not comprise a grant of but rather, a limitation on power. All power which is not limited by the constitution is vested in the people and may be exercised by them via their elected representatives so long as the constitution contains no prohibition against it. Colorado State Civil Serv. Employee Ass'n v. Love, 167 Colo. 436, 448 P.2d 624 (1968). This principle supports the conclusion that the legislature does not have the power to impose additional qualifications for holding the office of county assessor.

Article XIV, section 10 requires only that a person be a qualified elector and have resided in the county one year prior to the election. The fact that the framers of the state constitution chose to specify the qualifications for this office limits, by implication, the legislature's power to impose additional qualifications. See Thomas v. State, 58 So.2d 173, 177 (Fla.1952). Recognizing that the Colorado Constitution is a limitation on the power of the legislative branch supports, rather than contradicts, the conclusion that the General Assembly does not have the power to impose...