Outcelt v. Schuck

MARTINEZ, Justice,

specially concurring:

The majority holds that petitioner Out-celt’s appeal was timely filed because CA..R. 26(a) excludes intervening weekends in calculating the five-day filing requirement of section 1-40-107(2), 1 C.R.S. (1997). See maj. op. at 1081. The majority also holds that the titles and summaries prepared by the Title Board are fair and accurate. See id. at 1083. I concur with both of these holdings. I disagree, however, with the majority’s view that section 1-40-107(2) requires an appellant to file his or her appeal within five days of the Title Board’s denial of a motion for rehearing. See id. at 1079-1081. In my view, the plain language of this section permits an appeal by an appellant whose motion for a rehearing has been overruled and who has requested a certified copy of the initiative’s titles and summary, provided that the appeal is filed within five days of the secretary of state’s furnishing of these certified copies. Accordingly, I do not join Part II.A of the majority opinion.

I.

Section 1-40-107(2) provides, in relevant part:

If any person who filed a motion for rehearing pursuant to subsection (1) of this section is overruled by the title board, then the secretary of state shall furnish such person, upon request, a certified copy of the petition with the titles, submission clause, and summary of the proposed law or constitutional amendment, together with a certified copy of the motion for rehearing and of the ruling thereon. If filed with the clerk of the stipreme court within five days thereafter, the matter shall be docketed as a cause there pending....

(Emphasis added.) It is undisputed that Outcelt filed this appeal within five days of obtaining the certified copies of the petition, titles and summary, from the secretary of state. Thus, it would appear that Outcelt filed his appeal in the time period prescribed by the statute, regardless of the effect of C.A.R. 26(a) on this filing requirement.

The majority holds, however, that section 1-40-107(2) requires one to file an appeal within five days after the Title Board denies the motion for rehearing. See maj. op. at 1081. I disagree.

II.

In construing a statute, a court must look to the language of the statute, giving effect to each word and phrase using commonly accepted meanings. See San Miguel County Bd. of Equalization v. Telluride Co., 947 P.2d 1381, 1384 (Colo.1997). If a court can give effect to the ordinary meaning of the *1088words and phrases adopted by the General Assembly, the statute must be construed as written, “since it may be presumed that the General Assembly meant what it clearly said.” PDM Molding, Inc. v. Sternberg, 898 P.2d 542, 545 (Colo.1995); see Gonzales v. Advanced Component Sys., 949 P.2d 569, 574 (Colo.1997). Thus, the limiting principles of judicial review require a court to interpret language consistently with legislative intent and with the plain meaning of the words chosen in the statute. See Swieckowski v. City of Fort Collins, 934 P.2d 1380, 1387 (Colo.1997).

Applying the limiting principles of judicial review to section 1-40-107(2), I find that the statute’s meaning is unambiguous. The first sentence of subsection (2) requires the secretary of state to furnish certified copies of various documents to any person who requests them after his or her motion for rehearing has been denied by the Title Board. See § 1-40-107(2). The second sentence provides that, “[i]f filed with the clerk of the supreme court within five days thereafter,” an appeal to this court is timely. Id. (emphasis added). Hence, the filing deadline described by subsection (2) depends upon the import of “thereafter” in the second sentence.

“Thereafter” means “after that.” Webster’s Ninth New Collegiate Dictionary 1223 (1989). Thus, the use of the term “thereafter” in the opening clause of the second sentence of subsection (2) begs the questions, “after what?” or “after what event or act?” The primary event or act described by the first sentence of subsection (2) is the secretary of state’s furnishing of certified copies to one who requests them. Thus, the logical import of “thereafter” in the second sentence of subsection (2) is “after the secretary of state furnishes the requested certified copies.”

As the United States Supreme Court has explained, “This Court naturally does not review congressional enactments as a panel of grammarians; but neither do we regard ordinary principles of English prose as irrelevant to a construction of those enactments.” Flora v. United States, 362 U.S. 145, 150, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960). Accordingly, I believe the plain meaning of the statute’s language and ordinary rules of grammar render the statute’s meaning unambiguous. Under section 1^10-107(2), an appeal is timely if filed within five days of the secretary of state’s furnishing of certified copies to one who requests them.

The majority concludes that the denial of a motion for rehearing is the operative act from which to calculate the five day filing requirement. See maj. op. at 1081. This interpretation of the statute asserts that “thereafter,” contained in the opening clause of the second sentence of subsection (2), refers to “overruled by the title board,” contained in the introductory clause of the first sentence, thus ignoring the natural grammatical flow of subsection (2). “Legislative words and phrases in a statute should be given their plain and ordinary meanings, and a forced, subtle, or strained construction should be avoided if the language is simple and the meaning is clear.” Grogan v. Lutheran Med. Ctr., Inc., 950 P.2d 690, 691 (Colo.App.1997) (citations omitted).1

Where the language of a statute is plain and unambiguous, “we do not reach beyond that language to determine intent.” Colorado State Bd. of Accountancy v. Zaveral Boosalis Raisch, 960 P.2d 102, 107 (Colo.1998); see Mason v. People, 932 P.2d 1377, 1380 (Colo.1997). Contrary to this rule of statutory construction, the majority reaches beyond this statute’s plain and unambiguous language and seeks support for its holding in public policy arguments. See maj. op. at 1080-1081.

The majority explains that the statute does not specify any time frame in which the appellant must request the certified materials from the secretary of state or in which the secretary of state must furnish them. *1089See id. at 1080-1081. Thus, the majority determines that interpreting section 1-40-107(2) to create a filing deadline that depends upon one requesting and obtaining certified copies from the secretary of state would delay the appeals process indefinitely. Such an indefinite delay, the majority asserts, “would entirely defeat the legislative objectives of finality of Board action and an expedited procedure in the event of an appeal.” Id. at 1080. Consequently, the majority declines to adopt this interpretation of section 1-40-107(2). See id. at 1081.

I agree that this interpretation of the statute may allow appellants or the secretary of state to affect, perhaps greatly, the initiative process. However, we are not empowered to ignore the plain meaning of statutory language. Rather, we must enforce a statute as written. “If this does not correspond to the General Assembly’s.intent, it is for that body, not this court, to rewrite it.” Dove Valley Bus. Park Assocs., Ltd. v. Board of County Comm’rs, 923 P.2d 242, 248 (Colo.App.1995).

Furthermore, the facts of this case are not an example of the evils the majority seeks to prevent. Outcelt requested the certified materials within one day of the Title Board’s denial of his motion for re hearing. The secretary of state supplied the certification within two business days of this request. Outcelt filed his appeal within two business days of receiving the certified materials. Thus, neither of the parties who possess the power to hinder the initiative process exercised that power here. The parties expeditiously carried out their duties in a manner consistent with an efficient initiative process.

Therefore, we are not faced with the question of what consequences attach to the dilatory behavior of either the secretary of state or an appellant. In such a situation, this court may decline to sanction a party’s deliberate attempt to frustrate the initiative process, or a party’s inexcusable neglect with respect to pursuing an appeal. We are not presented with either scenario today.

Additionally, the majority implies that an appellant may file his or her appeal before receiving the certified materials from the secretary of state. See maj. op. at 1081. The majority suggests that, in such a case, we may hold the appeal in abeyance pending the availability of the certified materials. See id. (citing In re Proposed Initiative on Education Tax Refund, 823 P.2d 1353, 1356 (Colo.1991)). Thus, the majority recognizes that, before the secretary of state furnishes certified copies of these materials, an appellant may not possess a copy of the denial of the motion for rehearing or of the initiative’s titles and summary as amended by the Title Board as a result of the rehearing motion.

Yet, the majority holds that an appellant may be required to file his or her appeal prior to receiving the certified materials. The majority’s holding, therefore, rests on the unusual notion that an appellant’s ability to make an informed decision about whether to pursue an appeal will not be affected by the fact that the appellant does not possess the materials that form the basis for the appeal. I disagree. In my view, an appellant is not required to file an appeal before he or she has access to the materials and the ruling of which he or she seeks review.

For the foregoing reasons, I do not join the majority’s interpretation of section 1-40-107(2). I would hold that an appeal is timely under the statute where the appellant files an appeal within five days of the secretary of state’s furnishing of the certified materials.

III.

I join the majority in applying C.A.R. 26(a) to section 1-40-107(2), and upholding the titles and summaries set by the Title Board. In my view, however, the plain, unambiguous language of section 1^10-107(2) allows an .appeal that is filed within five days of the secretary of state’s furnishing of the requested certified materials to the appellant. Therefore, I do not agree with Part II.A of the majority opinion.

KOURLIS, J., joins in this special concurrence.

. I do not view the rule of People v. McPherson, 200 Colo. 429, 432, 619 P.2d 38, 40 (1980), even if it remained viable today, as instructive in interpreting the statute before us because the rule relates to a statutory sentence which sets forth a list of objects or items. Conversely, section 1-40-107(2), using various dependent clauses between two sentences, describes a sequence of actions.