dissenting.
I respectfully dissent to express my opinion that the plain language of subsection 39-8-109(1) resolves the instant case. The third sentence of subsection 39-8-109(1) contains the following critical language:
[TJhe appellant ... shall forthwith receive the appropriate refund of taxes and delinquent interest thereon ... and a refund of costs in said court or board of assessment *940appeals, as the case may be, including the fees of the appellant's witnesses, in such amount as may be fixed by the court or board of assessment appeals, as the case may be.
On its face, the statute expressly provides that a taxpayer, who is successful in whole or part, shall receive an award of costs that includes witness fees. Despite this passive language, the statute sufficiently provides that the refund of costs including witness fees is mandatory. There is therefore no need to resort to other rules of statutory construction. People v. Meredith, 763 P.2d 562, 564 (Colo.1988).
Nonetheless, the majority argues that. the statute is ambiguous. The primary concern appears to be the fact that the statute employs the generally contradictory terms "shall ... receive" and "as may be fixed" in the same sentence. A closer reading, however, provides a clear explanation for this alleged contradiction. Quite simply, while the taxpayer "shall ... receive" an award, the amount of the award is discretionary and "may be fixed" by the court or Board of Assessment Appeals ("BAA"), as the case may be. Due to the lack of contradiction, there is no ambiguity and no need to turn to the legislative history.
Indeed, even if these two terms did render the statute ambiguous, the majority's analysis of the legislative history does not assist me in determining whether an award is mandatory or discretionary. In its analysis of the legislative history, the majority focuses on three separate iterations of subsection 39-8-109(1); the first iteration of the statute in 1901, a subsequent revision in 1948, and the 1964 reenactment. Apparently, the evolution of the statute over these three iterations is meant to show that the legislature intended the award of costs to be discretionary.
The problem, however, is that the majority's analysis does not support its contention. Its analysis of the prior enactments of subsection 89-8-109(1), without more, are inconclusive for the simple reason that they involve different statutory language. The language in these prior iterations does not illuminate the current language in subsection 89-8-109(1), let alone assist me with "selecting among reasonable interpretations of the particular language chosen by the legislature." Union Pac. R.R. Co. v. Martin, 209 P.3d 185, 188 (Colo.2009). Because I believe that subsection 89-8-109(1), while poorly written, nonetheless provides for a mandatory award of costs, I find no need to rely on an ambiguous interpretation of the statutory history. Accordingly, I respectfully dissent.
I am authorized to state that Justice EID joins in this dissent.