Passarelli v. Schoettler

VOLLACK, Justice,

dissenting:

Part II of the majority’s decision interprets the provisions of section 4 of article XXI of the Colorado Constitution to entitle incumbents who are successful in recall elections to reimbursement of reasonable and necessary election costs. Because I believe that section 31-4-504.5(4) is not unconstitutional, and because the majority’s holding essentially provides the challenged incumbent with no limitation on his or her right to finance a campaign at state expense, I respectfully dissent.

Section 4 of article XXI provides in pertinent part:

If at any recall election the incumbent whose recall is sought is not recalled, he shall be repaid from the state treasury any money authorized by law and actually expended by him as expenses of such election; and the legislature shall provide appropriations for such purpose.

(Emphasis added.) The language of section 4 requires that permissible reimbursements must be authorized by some source independent of section 4. See Colorado General Assembly v. Lamm, 700 P.2d 508, 517 (Colo.1985) (interpreting statutory language “under the provisions of law”). This independent source is the General Assembly. Thus, although section 4 states that “[t]his article is self-executing,” the Attorney General advised the Secretary of State to deny Passarelli’s request for reimbursement absent substantive legislation which would define expenses “authorized by law.” Section 31-4-504.5 was enacted to implement section 4 of article XXI, by defining the type and extent of expenses which would be reimbursable. The General Assembly has the power to define the grants of governmental authority articulated by the constitution. Subject to constitutional limitations, the power of the General Assembly over appropriations is absolute. Colorado General Assembly, 700 P.2d at 519. It may attach conditions upon the expenditure of those appropriations. MacManus v. Love, 179 Colo. 218, 499 P.2d 609 (1972). The majority’s opinion would take this power away from the legislature, and I do not think that section 4 of article XXI requires such a result.

The majority’s interpretation of section 4 of article XXI, to require “reimbursement of reasonable and necessary costs,” maj. op. at 870, has the effect of replacing the court’s policy for that of the legislature. It is not the function of this court to rewrite *874legislation. Bellendir v. Kezer, 648 P.2d 645 (Colo.1982). “One of the fundamental tenets of our constitutional system is that courts do not approve or disapprove the wisdom of legislative decisions or the desirability of legislative acts.” Kallenberger v. Buchanan, 649 P.2d 314, 318 (Colo.1982). Our sole function is to determine whether the limitations on reimbursable expenses subvert the governing constitutional provision. See Civil Service Employees v. Love, 167 Colo. 436, 448 P.2d 624 (1968). If the intent of section 4 was to provide for reimbursement of “reasonable” costs, the drafters could have so provided. Nowhere does the constitutional provision state that an incumbent has a right to reimbursement for “reasonable and necessary costs.” Article XXI provides that an incumbent shall be repaid “any money authorized by law,” and not “reasonable” expenses. Article XXI must be enforced as written, and neither the courts nor the legislatures have the right to add or take away from that meaning. Id. at 445, 448 P.2d 624. Article XXI, in its use of the phrase, “any money authorized by law,” leaves it within the power of the General Assembly to define what expenses are reimbursable, and to what extent they are reimbursable. The General Assembly is directed to make appropriations for reimbursement, and the amount of that appropriation is determined by the legislature. “[0]ur state constitution is an instrument of limitation of authority,” People v. Superior Court, 175 Colo. 391, 394, 488 P.2d 66, 67 (1971), and in the absence of express or necessarily implied constitutional prohibitions, the General Assembly has plenary powers of civil government. Groditsky v. Pinckney, 661 P.2d 279, 282 (Colo.1983). As I interpret article XXI, the General Assembly was within its authority in enacting section 31-4-504.5(4).

My chief concern with the majority’s opinion is the effect it will have on the public treasury. The General Assembly enacted section 31-4-504.5 to be read and applied in its entirety. To strike subsection (4) and leave the other provisions in place will have the effect of issuing an incumbent a blank check with which to wage his or her campaign. The majority s contention that an incumbent could not survive a recall election if limited to expenditures of ten cents per voter, maj. op. at 870, ignores the fact that an incumbent challenging a recall can raise funds from his or her constituency to pay expenses.

In addition, I disagree with the majority’s interpretation of the phrase “any money authorized by law and actually expended,” contained in section 4 of article XXI, to mean that “reasonable” expenses must be reimbursed. Instead, I believe that the phrase creates two limitations on the amount of money subject to reimbursement. First, an incumbent not recalled is entitled to reimbursement only for money which the General Assembly has authorized. Second, an incumbent can be reimbursed only for the amount of authorized money actually used for the election.

The wording of article XXI sets forth the people’s wishes that incumbents who survive a recall are entitled to some reimbursement of election expenses. The General Assembly has been given the authority to determine the extent of that reimbursement. The majority may believe that the legislative policy decision behind section 31-4-504.4 was not the best or even that it was incorrect, but that does not entitle us to overrule the decision absent a firm conviction that the decision was irrational. People v. Turman, 659 P.2d 1368 (Colo.1983). I believe that such a conviction has not been sufficiently demonstrated by the majority to invalidate section 31-4-504.4. Accordingly, I would uphold the constitutionality of the statute.

I am authorized to state that Justice ERICKSON and Justice ROVIRA join in this dissent.