State ex rel. Department of Corrections v. Peña

Chief Justice ROVIRA

concurring in part and dissenting in part:

The majority concludes that the phrase “subject to appropriations” contained in *814section 17-1-112(1), 8A C.R.S. (1986) (“the prison reimbursement statute”), does “not affect the substantive right of local governments such as Denver to receive reimbursement for the housing of state prisoners,” maj. op. at 811, but only limits the “practical remedy” that may be available for a violation of the prison reimbursement statute. The majority reaches this conclusion on the grounds that (1) it conforms with “the most natural reading” of the statute and (2) is mandated by our decision in Goebel v. Colorado Department of Institutions, 764 P.2d 785 (Colo.1988). Maj. op. at 809-811. In my opinion neither the plain meaning of the prison reimbursement statute nor our decision in Goebel mandates the majority’s conclusion. Additionally, based on the language of the prison reimbursement statute and the legislative history underlying its enactment, the phrase “subject to appropriations” was clearly intended to create a conditional entitlement in any city or city and county for reimbursement for the housing of state-sentenced prisoners and not, as the majority holds, a right in those entities that may, as a practical matter, be without a remedy. Accordingly, I respectfully dissent from Part 11(B) of the majority opinion.

I

The General Assembly originally appropriated $886,950 in order to cover the anticipated payments that would come due under the prison reimbursement statute for the fiscal year beginning July 1, 1985. See ch. 340, sec. 2, 1985 Colo.Sess.Laws 1339, 1339-40. On December 20, 1985, after distributing $216,928 for the housing of state-sentenced prisoners under the prison reimbursement statute, the Department of Corrections (“DOC”) ceased providing payments to the City and County of Denver (“Denver”), although Denver continued to bill the DOC for housing those prisoners. Approximately four months later, on April 16, 1986, the General Assembly “disappro-priated” all remaining funds ($670,022) originally appropriated for payments under the prison reimbursement statute, but which had not been distributed by the DOC. See maj. op. at 806 n. 2.

Denver sought a damage award against the DOC in the amount of $835,136 which was based on Denver's housing of state-sentenced prisoners and parolees from September of 1985 through July of 1987 and represents the difference between the amounts billed and the amounts paid by the DOC.1 The trial court entered judgment in favor of Denver in that amount, and the court of appeals affirmed.

The DOC challenges this award on the grounds that it cannot be obligated to pay Denver the statutorily prescribed amount of reimbursement once the funds necessary to do so are no longer available. The DOC concludes therefore, that any money claimed by Denver pursuant to the prison reimbursement statute that remained unpaid by the DOC after the General Assembly’s disappropriation on April 16, 1986, can neither be claimed nor owed.

Thus, in determining whether the court of appeals erred in affirming the trial court’s entry of judgment, the question is whether Denver is entitled to receive payments under the prison reimbursement statute irrespective of whether the General Assembly has appropriated the funds necessary to make such payments. More specifically, we must determine whether the phrase “subject to appropriations” limits the ability to enforce a right to reimbursement that otherwise exists (as the majority holds), or whether this language indicates that no right is created by the prison reimbursement statute for compensation by the DOC.

II

When interpreting a statute, our starting point is the language of the statute itself, which should be given its plain and ordinary meaning. Thiret v. Kautzky, 792 P.2d 801, 806 (Colo.1990).

*815The prison reimbursement statute provides:

(1) Subject to appropriations, the department shall reimburse any county or city and county, in an amount of sixteen dollars per day to maintain a prisoner in a jail of the county or city and county, for the expenses incurred by that county or city and county in the confinement and maintenance of any person who is sentenced to a term of imprisonment in a correctional facility and who is confined in a local jail. Such reimbursement shall be for each day following seventy-two hours after such sentence but prior to the transmittal of the qualified person to a correctional facility.

§ 17-1-112, 8A C.R.S. (1986).

A

The phrase “subject to” is defined as “liable, subordinate, subservient, inferior, obedient to; governed by or affected by; provided that; provided; answerable for.” Black’s Law Dictionary 1425 (6th ed. 1990). Accordingly) in MacManus v. Love, 179 Colo. 218, 221, 499 P.2d 609, 610 (1972), this court observed that “subject to constitutional limitations,” the General Assembly’s power over appropriations is plenary. This observation was made in the course of holding that a statute which forbade the Governor from spending federal funds violated article V, section 32 of the Colorado Constitution. In short, we used the phrase “subject to” — in its plain and ordinary sense — as imposing a precondition on the ability of the legislature to exercise its otherwise absolute power of appropriations. Which is to say, of course, that the General Assembly’s power over appropriations is not absolute, but subject to constitutional constraints. See Burgess Constr. Co. v. M. Morrin & Son Co., Inc., 526 F.2d 108, 113 (10th Cir.1975) (“the words ‘subject to’ usually indicate a condition to one party’s duty of performance”) (citing 17 Am.Jur.2d Contracts § 320 (1964)) cert. denied, 429 U.S. 866, 97 S.Ct. 176, 50 L.Ed.2d 146 (1976).

In spite of the plain meaning of the phrase “subject to appropriations,” the majority simply asserts that “in ordinary language there is nothing in the phrase ‘[s]ub-ject to appropriations,’ ... to suggest that it limits a legal right rather than a practical remedy.” Maj. op. at 809-810. The majority offers no authority in support of this proposition yet concludes that “insofar as the phrase ... means anything ... its most likely function is to make explicit the intent of the General Assembly that satisfaction of obligations to local governments for housing state prisoners would be dependent on future appropriations.” Id. at 810.

I, however, believe that the plain language of the statute mandates that the DOC is obligated to pay any county or city and county for the housing of state-sentenced prisoners only if the necessary funds have been appropriated to do so. On this reading, any county or city and county enjoys only a conditional entitlement (“subject to appropriations”) to compensation for housing state prisoners as opposed to a right for which there may be no remedy.2

In my judgment, the plain language of the statute provides a sufficient basis for reaching this conclusion. If, however, some ambiguity in the phrase “subject to appropriations” remains, the legislative history unmistakably puts to rest any lingering doubts as to its intended meaning.

House Bill 1385 was originally passed by the House without the language “subject to appropriations.” Rather, the bill provided simply that “[t]he department shall reimburse any county or city and county in an amount of sixteen dollars per day....” When H.B. 1385 was considered by the Senate Judiciary Committee, however, concern was expressed about the mandatory language of the bill as passed by the House.

Senator Jeffrey M. Wells inquired whether H.B. 1385 provided that the department “shall pay $16 per day subject to appropriations, and once we run out of [the money appropriated] are we obligated for $16 per *816day thereafter or is it only to the extent of appropriations?” The Chairman of the Senate Judiciary Committee replied, “that will always be the ease.” Senator Wells then responded that “what I don’t want to see is after running out of [monies appropriated] having Pueblo County then sue us for its $16 for each day thereafter saying it has statutory authority saying we’re entitled to it, thereby we have to appropriate it to cover it.” 3 The Chairman replied that such restrictive language was not presently in the bill, but that he was sure that the limiting language could be added without objection. The Chairman then inquired as to “what would be the case law on that.” Senator Wells replied, “I really don’t know.”4 The phrase “subject to appropriations” was then added by the unanimous vote of the judiciary committee and, with this amendment intact, eventually became codified as section 17-1-112.

This legislative history is entirely consistent with what the plain language of the prison reimbursement statute indicates. The phrase “subject to appropriations” signifies that the statute creates no absolute right to $16 per day per prisoner to any county or city and county but rather, evinces an attempt by the General Assembly to help any county or city and county defray the costs of housing state prisoners in their facilities — if the requisite funds are appropriated. In my opinion, it is only after such an appropriation has been made that the DOC’s mandate that it “shall reimburse any county or city and county” becomes effective. § 17-1-112, 8A C.R.S. (1986) (emphasis added). The legislative history indicates that the phrase “subject to appropriations” was included in the prison reimbursement statute precisely to avoid any confusion over whether the General Assembly was creating an unconditional right in any county or city and county for reimbursement from the state when it attempted to defray the cost of housing state-sentenced prisoners.

The majority concludes, however, that Denver is entitled to $835,136 under the prison reimbursement statute based on the assumption that the phrase “subject to appropriations” has no relevance to the question of whether Denver has a right to $16 per day per prisoner.5 I disagree. Reading the prison reimbursement statute in this way effectively disregards the phrase “subject to appropriations” and conflicts with both the language of the statute and the legislative history of its enactment.

B

The majority also holds that its reading of the phrase “subject to appropriations” is “required by our analysis of an essentially similar phrase in Goebel, 764 P.2d at 788-801.” Maj. op. at 810. In Goebel we re*817viewed a ruling of the trial court which held, among other things, that the Colorado Act for the Care and Treatment of the Mentally Ill, §§ 27-10-101 to -127, 11 C.R.S. (1982 & 1986 Supp.) (“Care and Treatment Act”), created a statutory right to appropriate treatment. Goebel, 764 P.2d at 790-91. We observed, however, that the General Assembly, in response to this ruling of the trial court, had passed Senate Bill 120, which amended the Care and Treatment Act by introducing the language “subject to available appropriations” in numerous sections of the act. Thus, the question presented in Goebel required us “first [to] address the question of whether any legally enforceable rights to care and treatment were created by the Care and Treatment Act and then consider the effect of Senate Bill 120 on any such rights.” Id. at 796.

We concluded first, that the Care and Treatment Act, prior to its amendment by Senate Bill 120, provided rights to both voluntary and involuntary patients, based on “the language of the act and the legislative intent expressed in [section] 27-10-101.” Id. at 797. We then turned to the question of whether Senate Bill 120, which inserted the phrase “subject to available appropriations,” “deprived the trial court of jurisdiction to protect the class members’ rights.” Id. at 800. We reached the conclusion that the trial court retained jurisdiction to approve and implement a remedial plan by noting that

[t]he amended act not only retains the “right to treatment” provision upon which the court based its finding of a statutory right, but also clarifies and reinforces that right by making explicit reference to the mental health services particularized in section 27-l-201(l)(a) to (l)(e) and in rules and regulations authorized by section 27-1-202. It is only the implementation of the right that is made subject to available appropriations.... Senate Bill 120 does not limit the substantive rights provided under the Care and Treatment Act, but does explicitly restrict the remedies available for the fulfillment of those rights.

Id. at 800-01.6

As any fair reading of Goebel makes clear, we concluded that the right created by the Care and Treatment Act was retained in spite of the insertion of the language “subject to available appropriations,” because the statutory provisions originally relied on in concluding that such a right existed had not been deleted from the act.7 In short, the impact of the phrase “subject to available appropriations” with respect to the right at issue was based not on the meaning of that phrase, but on the import previously attributed to other statutory language which supported our initial conclusion that the act created a right. Indeed, the significance that the majority places on Goebel is striking in light of the fact that we never ventured an opinion in Goebel regarding what the phrase “subject to available appropriations” meant. To the contrary, we simply concluded that the phrase did not limit the substantive right that had previously been created by the *818Care and Treatment Act, because the language of the act that created that right was left intact by Senate Bill 120.

Thus, given the factual distinctions between the Care and Treatment Act and the prison reimbursement statute, as well as the rather conspicuous absence of any affirmative statement regarding the meaning of the phrase “subject to available appropriations” in Goebel, I am of the opinion that Goebel in no way mandates the result reached by the majority.

Ill

For the above stated reasons, I am of the view that the mandate of the prison reimbursement statute, i.e., “the department shall reimburse,” becomes operative only when the necessary appropriations have been provided for such reimbursement. Consequently, the court of appeals erred in affirming the trial court’s entry of judgment in favor of Denver in the amount of $835,136. It does not follow from my analysis, however, that Denver should not be entitled to receive any compensation under the prison reimbursement statute. To the contrary, Denver should receive reimbursement for its housing of state-sentenced prisoners during the period of time in which funds were appropriated by the General Assembly for such payments. As noted above, the legislature originally appropriated $886,950 for housing state-sentenced prisoners. Initially, the DOC made payments to Denver in accordance with the statutory mandate. Prior to the disappro-priation of those funds on April 16, 1986, however, the DOC had ceased providing payments to Denver, though Denver continued to submit bills for reimbursement. The DOC’s failure to make payments to Denver while the funds were appropriated is in conflict with the obligatory language of the prison reimbursement statute, which mandates that “[sjubject to appropriations, the department shall reimburse.... ” § 17-1-112, 8A C.R.S. (1986) (emphasis added).

Thus, the award to Denver under the prison reimbursement statute should be reconsidered in a manner which gives effect to both the limiting language of the statute {i.e., “subject to appropriations_”) as well as the mandatory provision of that statute {i.e., “the department shall reimburse.... ”).8

Accordingly, I respectfully dissent from Part 11(B) of the majority opinion.

I am authorized to say that Justice VOL-LACK joins in this concurrence and dissent.

. The record reflects that the difference between the amount billed by Denver and the amount paid by the DOC was $505,574 for fiscal year 1985-86; $247,562 for fiscal year 1986-87; and $82,000 for July 1, 1987 through July 31, 1987.

. Such an entitlement is to be contrasted to a right which exists independently of appropriations, but which can only be effectuated by virtue of an appropriation.

. As for the majority’s conclusion that its holding accords with the concern of Senator Wells, maj. op. at 811 n. 11, two points seem relevant. First, though the Senator was concerned with a local government’s ability to force the General Assembly to make an appropriation ("thereby we have to appropriate it to cover it”) it does not follow that Senator Wells' other concern ("what I don’t want to see is ... having Pueblo County then sue us ... saying it has statutory authority saying we’re entitled to [reimbursment]_”) is one which this court may properly eschew — particularly when that concern is expressed with as much clarity as it is here. Secondly, the fact that the Chairman inquired as to the “statutory case law” on the language "subject to appropriations," and that Senator Wells responded in the manner he did, suggests that the concerns of the Senator did not pertain solely to a local government's ability to force the General Assembly to make an appropriation, since it is the Constitution, and not case law, which grants the legislature plenary power over appropriations, see art. V, § 33, and we ordinarily presume that the legislature acts with full knowledge of relevant constitutional provisions. Smith v. Miller, 153 Colo. 35, 39, 384 P.2d 738, 740 (1963).

. Our decision in Goebel v. Department of Institutions, 764 P.2d 785 (Colo.1988), which the majority places so much emphasis on, was decided approximately three years after the prison reimbursement statute was first enacted.

. The majority holds that had the General Assembly intended "to limit the legal right of local governments to reimbursement for the housing of state prisoners, the General Assembly had absolutely no need to equivocate.” Maj. op. at 810. I agree with this statement, however in my opinion, it supports exactly the opposite conclusion than that reached by the majority — the General Assembly had no need, nor did it, equivocate.

. Justice Vollack, joined by Justice Erickson, dissented to Part II(B)2 of the majority opinion on the grounds that

Senate Bill 120 was a response to the trial court’s invitation to the General Assembly to make "crystal clear” its intent concerning availability of monetary relief for violation of the Care and Treatment Act. The title of Senate Bill 120, though not controlling supports the view that the General Assembly intended to limit monetary relief to the amount of available appropriations.

Goebel, 764 P.2d at 811 (Vollack, J., concurring in part and dissenting in part).

. The difference between determining the import of this phrase in the context of statutory scheme that is found to already create a substantive right (as with the Care and Treatment Act) as opposed to a statutory scheme where no such right has yet been found (as is the case here), is obscured by the majority when it states "that in ordinary language there is nothing in the phrase '[sjubject to appropriations' ... to suggest that it limits a legal right rather than a practical remedy," maj. op. at 809-810, and by concluding “that the addition of the phrase ... did not affect the substantive right of local governments such as Denver to receive reimbursement for the housing of state prisoners.” Maj. op. at 811. It is my opinion the issue before us is whether the prison reimbursement statute creates such a right. The majority’s analysis, from beginning to end, seems to assume that such a right exists.

. While the record before us reveals that the General Assembly appropriated and later disap-propriated funds for payment under the prison reimbursement statute for fiscal year 1985-86, we cannot ascertain what amounts were appropriated for such payments during fiscal year 1986-87 and the period from July 1, 1987 through July 31, 1987. The record also does not reveal whether any funds appropriated during those times were later disappropriated by the General Assembly. The trial court’s judgment in favor of Denver, however, was based on payments “owed” from June 1, 1985 through July 31, 1987. Therefore, in my judgment the case should be remanded to the trial court in order to determine the availability of appropriations for all times relevant to this dispute so as to demarcate the time periods for which Denver should be entitled to payment under the prison reimbursement statute.