Uberoi v. University of Colorado

• Citation: 686 P.2d 785
• Decision Date: 27 August 1984
• Docket Number: No. 83SA101,83SA101
• Parties: 19 Ed. Law Rep. 1188 Mahinder S. UBEROI, Plaintiff-Appellant, v. UNIVERSITY OF COLORADO, Arnold R. Weber, Harrison Shull, Milton E. Lipetz, Alfred R. Seebass, George R. Inger, John P. Holloway, and Richard Tharp, Defendants-Appellees.
• Court: Colorado Supreme Court

Page 785

686 P.2d 785

19 Ed. Law Rep. 1188

Mahinder S. UBEROI, Plaintiff-Appellant, v. UNIVERSITY OF COLORADO, Arnold R. Weber, Harrison Shull Milton E. Lipetz, Alfred R. Seebass, George R Inger, John P. Holloway, and Richard Tharp, Defendants-Appellees.

No. 83SA101.

Supreme Court of Colorado En Banc.

Aug. 27, 1984.

Rehearing Denied Sept. 17, 1984.

Mahinder S. Uberoi, pro se.

Richard A. Tharp, Boulder, for defendants-appellees.

LOHR, Justice.

The plaintiff, Mahinder Uberoi, appeals from a judgment of the District Court for the County of Boulder denying his claim of entitlement to inspect and copy certain records of the University of Colorado. The court based this denial on its conclusion that the Colorado Open Records Act, ¹ upon which the plaintiff grounded his claim, is not applicable to the University of Colorado. We affirm.

The plaintiff, while employed as a professor by the University of Colorado at Boulder, requested the university administration to produce for his inspection various documents and other materials pursuant to the Colorado Open Records Act. Some of the requested material was provided; however, substantial portions were denied. ²

Uberoi sought an order from the District Court for the County of Boulder requiring the defendant university and various administrators to show cause why they should not be required to permit the requested inspection. ³ A hearing was held at which the defendants argued that the Open Records Act was not applicable to the University of Colorado. ⁴ The trial court agreed, and therefore ruled that the defendants had shown sufficient cause for refusing to permit inspection of the requested material.

The plaintiff appeals, contending that the Colorado Open Records Act is fully applicable to the University of Colorado. We disagree.

The University of Colorado is established and structured through a combination of constitutional and statutory provisions. The university is created as a state institution of higher education by the Colorado Constitution. Colo. Const. art. VIII, § 5(1). Similarly, the board of regents of the university is established by the constitution. Colo. Const. art. IX, § 12. The constitution provides that "[t]he governing boards of the state institutions of higher education, whether established by this constitution or by law, shall have the general supervision of their respective institutions and the exclusive control and direction of all funds of and appropriations to their respective institutions, unless otherwise provided by law." Colo. Const. art. VIII, § 5(2) (emphasis added). Section 23-20-111, 9 C.R.S. (1983 Supp.), confers on the regents the "general supervision of the university and control and direction of all funds of and appropriations to the university ...." General power to govern the university is conferred upon the regents by section 23-20-112, 9 C.R.S. (1973): "[t]he board of regents shall enact laws for the government of the university...." Additionally, various other statutory provisions detail the powers and responsibilities of the regents. §§ 23-20-101 to -135, 9 C.R.S. (1973 & 1983 Supp.). The foregoing constitutional and statutory provisions grant "broad discretion to the Regents as a governing board" and create in that body "specific and particular powers" to operate the university. Associated Students v. Regents, 189 Colo. 482, 484-85, 543 P.2d 59, 61 (1975).

In Associated Students, we held that the Open Meetings Law of the Colorado Sunshine Act, sections 24-6-401 to -402, 10 C.R.S. (1982), does not apply to meetings of the regents of the University of Colorado. A group of students and faculty members at the university had brought the suit to prohibit the regents from holding executive sessions, closed to the public. The plaintiffs argued that the phrase "unless otherwise provided by law," which qualifies the grant of powers to the regents in Colo. Const. art. VIII, § 5(2), has the effect of making any statute--whether specific or general--applicable to the regents. Thus, their argument proceeded, the Open Meetings Law was binding on the regents. We rejected that position, stating:

This phrase [i.e., "unless otherwise provided by law"] operates so that any qualification of the constitutional grant is to be construed as divesting the supervision and control granted only when a legislative enactment expressly so provides. Implied repeals are thereby intended to be guarded against.

189 Colo. at 485, 543 P.2d at 61 (emphasis in original).

We then concluded that the Open Meetings Law was a general law, not a specific one, and reversed the trial court's ruling requiring meetings of the board of regents to be open, holding that:

The [trial] court's interpretation of the applicability of the Sunshine Act if upheld would invalidate a law which the Regents are duly authorized to enact [i.e., a section of the Law of the Regents permitting closed meetings of the board of regents in certain circumstances]; and clearly this does, indeed, both limit and infringe upon the Regents' authority to govern the university. In order to reach such a result, the Sunshine Act would have to repeal both Art. VIII, Sec. 5(2) and section [23-20-112]. As we noted above, such a repeal would have to be express; and the Act contains no such language.

Id. at 485, 543 P.2d at 62.

The reasoning of Associated Students regarding the Sunshine Act is equally applicable to the Colorado Open Records Act at issue here. Section 24-72-201, 10 C.R.S. (1982), sets out as the public policy of Colorado that "all public records shall be open for inspection by any person at reasonable times"; however, this declaration is qualified by the specific exceptions of the Act itself and by the phrase "except ... as otherwise specifically provided by law." This language is essentially reiterated in section 24-72-203(1), 10 C.R.S. (1982), which provides that "[a]ll public records shall be open for inspection by any person at reasonable times, except as provided in this part 2 or as otherwise provided by law ...." The statutory scheme of the Open Records Act reveals that, as with the Open Meetings Law construed in Associated Students, it is a broad, general law. And, as we noted in Associated Students, statutory repeal by implication is not favored in Colorado, nor will a general statute be interpreted to repeal a conflicting special provision "unless the intent to do so is clear and unmistakable." Associated Students, 189 Colo. at 485, 543 P.2d at 61; See also People v. District Court, 196 Colo. 249, 585 P.2d 913 (1978); Gosliner v. Denver Election Commission, 191 Colo. 328, 552 P.2d 1010 (1976); Gillies v. Schmidt, 38 Colo.App. 233, 556 P.2d 82 (1976). Thus, the specific supervisory control over the university granted to the regents can be divested only by a legislative enactment expressly so providing. ⁵

The plaintiff urges that the Open Records Act's definition of "public records" sufficiently refers to records of the University of Colorado to bring those documents within the ambit of the Act. Public records are defined to include "all writings made, maintained, or kept by the state or any agency, institution, or political subdivision thereof" for specified uses. § 24-72-202(6), 10 C.R.S. (1982) (emphasis added). The Colorado Constitution refers to the university as one of the "state institutions of higher education." Colo. Const. art. VIII, § 5(1), (2). Occasional references to the University of Colorado as an "institution" also appear in the statutes establishing the structure of the university. E.g., § 23-20-107, 9 C.R.S. (1973). The Open Meetings Law of the Colorado Sunshine Act, at issue in Associated Students, mandated that meetings of any "board, committee, commission, or other policy-making or rule-making body of any state agency or authority " be open. § 24-6-402(1), 10 C.R.S. (1982) (emphasis added). We concluded that this language was not sufficiently express to evince a legislative intent to apply the Open Meetings Law to the University of Colorado. Similarly, here, we do not believe that the definition of public records to include writings kept by a state institution demonstrates legislative intent to make the Open Records Act applicable to the University of Colorado. As the trial court observed, "The act nowhere specifically refers to the University nor to governing bodies of educational institutions. It is in every sense a general law."

The university has adopted procedures dealing with the production and disclosure of records and other materials under its control. ⁶ As in Associated Students, invalidation of these procedures by a legislative enactment such as the Open Records Act would limit the regents' powers to supervise the operation of the university. The Open Records Act contains no clear expression of legislative intent to impose such a limitation on the regents and we will not infer such intent where it is not unmistakably expressed.

The judgment of the trial court is affirmed.

DUBOFSKY, J., dissents and NEIGHBORS, J., joins in the dissent.

DUBOFSKY, Justice, dissenting:

I respectfully dissent.

The majority relies on Associated Students v. Regents, 189 Colo. 482, 543 P.2d 59 (1975) for its conclusion that the Colorado Open Records Act, sections 24-72-201 to -206, 10 C.R.S. (1982 & 1983 Supp.) does not apply to the University of Colorado. I believe that Associated Students is distinguishable from the instant case and that the plain language of the Open Records Act governs the records of the University of Colorado.

Colo. Const. art. VIII, § 5(2) grants the governing boards of state institutions of higher education power to supervise generally their institutions. In Associated Students, although noting that article VIII's grant of authority is limited by the phrase, "unless otherwise provided by law," this court held that section 24-6-402, 10 C.R.S. (1982) (the Colorado Sunshine Act) requiring that meetings of "any board, committee,...