order denying msj

8/6/2019 Order Denying MSJ

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DISTRICT COURTCITY AND COUNTY OF DENVER, COLORADO

City and County Building1437 Bannock Street, Room 256Denver, CO 80202

DOUGLAS BRUCE,

Plaintiff,

v.

STATE OF COLORADO and GOVERNOR JOHNHICKENLOOPER, in his official capacity,

Defendants. tCOURT USE ONLYt

Case No. 10CV2425

Courtroom: 269(FKA Courtroom 2)

ORDER RE: MOTION FOR SUMMARY JUDGMENT

THIS MATTER is before the Court on Defendants’ Motion for Summary Judgment.Defendants, John Hickenlooper in his official capacity as the Governor of the State of Colorado,

and the State of Colorado (collectively “Defendants” or the “State”), filed their Motion forSummary Motion on January 27, 2011. Plaintiff, Douglas Bruce (“Bruce”), filed an untimelyResponse (“Answer to Motion for Summary Judgment”) on February 24, 2011. By Court Order,Bruce’s Response was deemed timely and filed on March 4, 2011. Shortly thereafter, the Statefiled its timely Reply. The Court, having reviewed the Motion, Response and Reply, the courtfile, and otherwise being fully advised in the premises herein, makes the following findings andorders:

1. Bruce seeks declaratory and injunctive relief against the State concerning itsimplementation of Colo. Const. art X, § 20(5), which requires the establishment of anemergency reserve of “3% or more of [the State’s] fiscal year spending excludingbonded debt service.” Bruce claims that the State has violated § 20(5) by designating

capital assets as part of the emergency reserve. He seeks a declaration that the Statehas violated § 20(5), along with an injunction requiring the State to immediately establisha separately held, all-cash emergency reserve. Bruce maintains that the purpose of§ 20(5) is clear and the language is unambiguous, and consequently must be enforced.

2. The Court granted the State’s motion to dismiss in part on August 23, 2010. The Courtdismissed Bruce’s tort claims against the Defendants, but the remaining claim fordeclaratory and injunctive relief survived.



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3. In its Motion for Summary Judgment, the State argues that the composition of theemergency reserve is now, and always has been, consistent with Colo. Const. art. X,§ 20(5). More specifically, the State maintains that the General Assembly’s interpretation

of § 20(5) is not foreclosed by the vague and ambiguous language contained in theclause requiring the establishment of the emergency reserve. In the absence of aspecific constitutional directive that the emergency reserve be made up solely of cashassets, the State asserts that the General Assembly is free to make, as a matter ofpolicy, decisions about the emergency reserve’s composition. So long as thosedecisions are consistent with statutorily mandated accounting principles, the Defendantscontend that the composition of the emergency reserve is consistent with state law.

4. In contrast, Bruce argues that the plain language of § 20(5) requires that cash or liquidassets are the only type of assets that may comprise the emergency reserve. Thisinterpretation is opposed to the amalgamation of capital assets, property holdings, andother illiquid assets, such as accounts receivable and inventory, that have historically

comprised the emergency reserve. Bruce makes a number of arguments to this effect,including but not limited to the canons of statutory interpretation and the plain languageof the constitutional provision. Included among these arguments, Bruce contends thatthe “evident contemporary interpretation,” proffered by the drafters of a statute orconstitutional amendment, is relevant to a Court’s interpretation of a statute orconstitutional provision. Bruce submitted a sworn affidavit on August 27, 2010, whereinBruce swears that he publically proffered his interpretation of § 20(5) to thousands ofvoters in Colorado while campaigning for the amendment.

5. Summary judgment is appropriate when the pleadings and supporting documentsindicate that there are no genuine issues as to any material fact, such that the movant isentitled to summary judgment as a matter of law. C.R.C.P. 56(c); Rocky Mountain

Festivals, Inc. v. Parsons Corp., 242 P.3d 1067, 1074 (Colo. 2010); Brodeur v. Am.Home Assurance Co., 169 P.3d 139, 146 (Colo. 2007). Once the movant has met thisburden, the burden shifts to the opposing party to establish that a triable issue of factexists. Snook v. Joyce Homes, Inc., 215 P.3d 1210, 1218 (Colo. App. 2009). Inreviewing the movant’s motion, the opposing party is entitled to all favorable inferencesthat are reasonably drawn from the undisputed facts. In re Tonko , 154 P.3d 397, 402(Colo. 2007). Any doubt as to inferences that may be drawn must be resolved in favor ofthe opposing party. Id.

6. Defendants assert that Bruce has failed to meet his burden in presenting rebuttalevidence as to the existence of a genuine issue of material fact. The Court finds thisargument unpersuasive. The Parties dispute whether an “evident contemporary

interpretation” of § 20(5), disseminated publically by Bruce prior to the 1992 election,should impact the Court’s interpretation of the Statute. Both Parties cite relevantauthorities, but the Court finds the caselaw inconclusive. Therefore, assuming that an“evident contemporary interpretation” may be relevant to the interpretation, there exists agenuine issue of material fact because the parties dispute Bruce’s pre-election publicstatements regarding § 20(5).

7. In his affidavit, Bruce makes the following verified statements:



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As chief spokesman, I told voters about the cash thatwould be required for the emergency reserve, and that itwould be three percent of the cash that was limited in its

growth under the fiscal year spending growth caps ofTABOR (7). I said this dozens of times in personalappearances, on radio, on television, in debates, innewspaper articles, and elsewhere. The audience forthose remarks was hundreds of thousands during thecourse of three campaigns.

(Bruce Aff. 5.) In opposition, the State points to hearing transcripts where Bruce “neverdirectly addressed the composition of the emergency reserve.” (State Mot. for Summ. J.15; id., Ex. 8, at 13, 30) The Court agrees that Bruce makes no “direct” reference in thishearing, but also observes that Bruce disputes the inferences that may be drawn fromhis statements.

8. Bruce’s affidavit is competent evidence on this issue, and it has not been refuted byDefendants. The State’s argument that Bruce has not come forward with extrinsicevidence, such as media reports or newspaper articles, to support his affidavit goes tothe weight of the evidence, not to the existence of a genuine issue of material fact.Should Bruce testify as to the contents, nature, and quantity of his pre-electionstatements, it will be in the Court’s sound discretion to weigh his credibility and theimport of the testimony.

9. Accordingly, because the state cannot point to authorities that reject the “evidentcontemporary interpretation” argument, and because the Parties dispute the nature,contents, and quantity of Bruce’s averred “contemporary interpretation,” the Motion for

Summary Judgment is DENIED. The Court Trial docketed on April 28, 2011, at 915 amis currently double set. In the event a 5-day Jury Trial commences on April 25, 2011, theCourt Trial in this matter shall be continued to May 5, 2011, where it will be the only casedocketed. The Court shall contact the Parties at the earliest possible time on or beforeApril 25, 2011, to confirm the trial date.

SO ORDERED this 12th day of April, 2011.

BY THE COURT:

District Court Judge

order denying msj

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