Regents of University of Colorado v. Meyer, 93CA2006

• Citation: 899 P.2d 316
• Decision Date: 09 February 1995
• Docket Number: No. 93CA2006,93CA2006
• Parties: 102 Ed. Law Rep. 345 The REGENTS OF the UNIVERSITY OF COLORADO, and Judith Albino, President of the University of Colorado, Plaintiffs-Appellees, v. Natalie MEYER, Secretary of State, Defendant-Appellant, and Vern Bickel, Chairman, Colorado Union of Taxpayers, and Colorado Union of Taxpayers, Defendants. . III
• Court: Colorado Court of Appeals

Page 316

899 P.2d 316

102 Ed. Law Rep. 345

The REGENTS OF the UNIVERSITY OF COLORADO, and Judith

Albino, President of the University of Colorado, Plaintiffs-Appellees, v. Natalie MEYER, Secretary of State, Defendant-Appellant, and Vern Bickel, Chairman, Colorado Union of Taxpayers, and Colorado Union of Taxpayers, Defendants.

No. 93CA2006.

Colorado Court of Appeals,

Div. III.

Feb. 9, 1995.

Rehearing Denied March 9, 1995.

Certiorari Denied Aug. 14, 1995.

Office of University Counsel, Joanne M. McDevitt, Stephen Zweck-Bronner, Denver, for plaintiffs-appellees.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Laurie Rottersman, Asst. Atty. Gen., Denver, for defendant-appellant.

Opinion by Judge HUME.

Defendant, Secretary of State Natalie Meyer, appeals the district court's judgment reversing her order in which she ruled that plaintiffs, the University of Colorado (C.U.) and its president, Judith Albino, had violated the Campaign Reform Act (Act) by printing and disbursing election materials in an administrative publication. We affirm.

Plaintiffs regularly prepare a monthly newsletter and distribute it in the pay envelopes of all 19,000 C.U. employees. On September 30, 1992, the newsletter comprised the front and back of one page and contained a paragraph addressing the ramifications of a proposed constitutional amendment concerning taxation (Amendment One). It also contained a paragraph discussing the Great Outdoors Colorado (GO Colorado) initiative. Both issues were to be presented to the electorate in November.

Defendant received two complaints alleging that the newsletter violated the Act prohibiting the use of public funds to urge voters to vote for or against any issue before the electorate.

Pursuant to her statutory authority, defendant set a date for a public hearing and sent all concerned parties notice thereof. The complainant challenging both the Amendment One and GO Colorado paragraphs responded by letter stating that he would not attend. The other complainant, whose challenge was limited to the Amendment One information, filed a brief and participated in the hearing.

Defendant ultimately determined that both paragraphs of plaintiffs' newsletter violated the Act and that, even if the newsletter fell within an exemption permitted by the Act, public funds expended relating to the contested portions exceeded the $50 limitation provided by the exemption. Defendant then ordered the matter to be sent to the Colorado Attorney General's office for further action and relief pursuant to statute.

Plaintiffs sought judicial review in the district court. The court reversed defendant's order, finding that the newsletter conformed to the exemption requirements provided in the Act. Defendant now appeals the district court's decision.

I.

Defendant first contends that the court erred in concluding that the challenge to the newsletter was confined to the paragraph concerning Amendment One. We perceive no error.

In a proceeding for judicial review of agency action, the district court is required to set aside such action that it finds to be either unsupported by the evidence or contrary to law, and it is for the court to determine all questions of law, interpret the applicable statutes and state regulations, and apply such interpretations to the facts. Colorado Department of Social Services v. Davis, 796 P.2d 494 (Colo.App.1990). We are bound by the same principles. Guildner Way, Inc. v. Board of Adjustment, 35 Colo.App. 70, 529 P.2d 332 (1974).

Here, the participating complainant entered into the hearing record a C.U. professor's testimony that the paragraph on Amendment One offended him and that he considered it an attempt to influence his vote. He then stated that the GO Colorado information did not similarly concern him.

No one appeared at the hearing to represent the other complainant's concerns, and no evidence was presented regarding the GO Colorado paragraph in the newsletter. Nor can we conclude that the contents of the newsletter explicitly advocate that its readers vote either for or against the GO Colorado amendment.

Therefore, since there was no evidence in the record to support defendant's conclusion of law that both paragraphs of the newsletter violated the Act, the district court did not err in limiting the scope of its review to Amendment One information.

II.

Defendant next asserts that the court erred when it construed the Act to permit a policy-maker to expend up to $50 of public funds to express the official's personal opinion on an issue. We are not persuaded.

Courts are authorized to interpret a legislative enactment, and they are not bound by an agency decision that misapplies or misconstrues that law. El Paso County Board of Equalization v. Craddock, 850 P.2d 702 (Colo.1993).

Colo.Sess.Laws 1991, ch. 104, § 1-45-116(1)(a), at 604, as then in effect, provided, in part:

No agency, department, board, division, bureau, commission, or council of the state or any political subdivision thereof shall make any contribution or contribution in kind ... to urge electors to vote in favor of or against any issue before the electorate. However, a member or employee of any such agency ... who has policy-making responsibilities may expend not more than fifty dollars of public moneys in the form of letters, telephone calls, or other activities incidental to making himself available to the press or public for the purpose of responding to questions about any such issue or to express his opinion on any such issue. (emphasis added)

In construing a statute, the court's primary task is to ascertain and give effect to the intent of the General Assembly; to do so, the court must first look to the statutory language. Moody v. Corsentino, 843 P.2d 1355 (Colo.1993).

Here, the statutory language...