Davidson v. Sandstrom

*661Justice HOBBS,

concurring in the judgment.

I concur in the court’s judgment, but for different reasons. I agree that the current District Attorney for the Tenth Judicial District is not barred from seeking re-election to that office. However, I reach this conclusion because, in my view, Colorado’s constitution does not term limit any district attorney from seeking re-election. My analysis proceeds from the text of Article XVIII, section 11, subsection (1) and the organization of the Colorado Constitution.

The text of the amendment limits the terms of non-judicial elected officials of local governments and certain other designated officials:

Elected government officials — limitations on terms.
(1) In order to broaden the opportunities for public service and to assure that elected officials of governments are responsive to the citizens of those governments, no nonjudicial elected officials of any county, city and county, city, town, school district, service authority, or any other political siibdivision of the State of Colorado, no member of the state board of education, and no elected member of the governing board of a state institution of higher education shall serve more than two consecutive terms in office, except that with respect to terms of office which are two years or shorter in duration, no such elected official shall serve more than three consecutive terms in office, (emphasis added).

In my view, the term “nonjudicial official” refers to officers of the executive and legislative branches of Colorado local governments. Article VI, section 13 of the Colorado Constitution places district attorneys in the judicial branch of state government:

District attorneys — election—term—salary qualifications. In each judicial district there shall be a district attorney elected by the electors thereof, whose term of office shall be four years. District attorneys shall receive such salaries and perform such duties as provided by law. No person shall be eligible to the office of district attorney who shall not, at the time of his election possess all the qualifications of district court judges as provided in this article. All district attorneys holding office on the effective date of this amendment shall continue in office for the remainder of the respective terms for which they were elected or appointed, (emphasis added).

The 1994 amendment to the constitution therefore does not provide term limits for district attorneys, and the Colorado electorate has never specifically identified the office of district attorney as being term limited. Nonetheless, the Majority holds that Article XVIII, section 11, subsection (1) effectuates this result — not by identifying district attorneys as term-limited officers — but on the grounds that a judicial district is a “political subdivision” and district attorneys — while each is an officer of his or her judicial district — are not judicial officers of the judicial district. Maj. op. at 655-656.

The amendment does not itself define “political subdivision,” and the majority does not cite to any constitutional or statutory provision, or any decision of our court, that classifies .a judicial district as a political subdivision. Typically, a political subdivision is an entity of local government that has a governing body, depends on local tax revenue for its funding, and can incur debt. As Mr. Sand-strom argues, maj. op. at 656-657, Article XVIII, section 11 follows this very pattern by enumerating examples of what it means by a “political subdivision,” namely a “county, city and county, city, town, school district, service authority.” Each has a governing body, depends on local tax revenue, and can incur debt. By accepted principles of interpretation, the meaning of an undefined general term being used in a particular context is limited according to the nature of the specific examples to which it applies itself.

Rather than limiting the term “political subdivision” according to its actual usage in the amendment, the majority simply chooses a broader dictionary definition and concludes that giving the term meaning according to its context would defeat the “plain meaning” of the language. See maj. op. at 656. In a similar fashion, it again turns to the dictio*662nary and case law from inapposite contexts, to locate district attorneys in the executive, rather than the judicial, branch of government. Maj. op. at 654-656. The fundamental law being amended by this provision, however, is the state constitution, and it is beyond any dispute that this very document creates the office of district attorney in Article VI, defining district attorneys as officials of the judicial branch of government.

In my view, judicial districts are sui gener-is in the design of the separation of powers. In contrast to political subdivisions, judicial districts have no local governing body to which their officers — judges and district attorneys — are responsible; judicial district funds that pay salaries are predominately state funds appropriated by the General Assembly; and judicial districts may not incur debt. They exist by reason of Article VI, section 10 to deliver the services of the third branch of government — the administration of justice — to the citizens of Colorado. As part of this basic design, judges hear criminal eases; district attorneys serve an executive function within the judicial branch by bringing those cases to the courts.

By operation of the constitution and implementing legislation, the services of the judicial branch of state government therefore include those provided by both judges and district attorneys. Article VI, section 13 requires that district attorneys possess all of the qualifications of district judges prescribed by the Colorado Constitution. As officers of the court they are subject to the supervision and regulation of the supreme body of the judicial branch. By statute they are obliged to appear, not only on behalf of the several counties of their respective districts, but on behalf of the state as well. See § 20-1-102(1), 6 C.R.S. (2003). Both judges and district attorneys are provided salaries, retirement, and insurance by the state.

Although the District Attorney has executive functions, the District Attorney is an officer of the judicial branch. District judges and district attorneys are both state officers, elected by the registered voters within the boundaries of judicial districts. But, within the judicial district, judges and the district attorney serve very different functions. A judge alone possesses the adjudicatory power. The district attorney prosecutes criminal cases and may represent counties in court. A judge clearly cannot direct the district attorney to bring or not to bring certain criminal charges; this function is executive in nature. See, e.g., People v. District Court, 186 Colo. 335, 338, 527 P.2d 50, 52 (1974). Nevertheless, as even the majority acknowledges, maj. op. at 659, the constitution and implementing laws of this jurisdiction provide that district attorneys are officials of judicial districts and perform executive duties solely within the purview of the judicial branch of government.

In view of this, I conclude that limitations on the terms of office for “nonjudicial elected officials” of “political subdivisions” in Article XVIII, section 11 apply only to executive and legislative officials of local governments that have governing bodies, depend on local tax revenue, and can incur debt. This accords with both the widely understood content of what constitutes a political subdivision and the specific usage of that term in the constitutional amendment. Votei’s can readily identify these entities because their local property tax bills identify the governmental entities that receive a portion of their tax payments. Judicial districts are not within this identification.

Constx'uing the above-cited constitutional provisions and laws together, I conclude that district attorneys are not term limited by any present provision of the Colorado Constitution, and they may hold office for as many consecutive four year terms under Article VI, section 13 as the voters of the judicial district may elect them to.

The Majority places reliance on the voters’ rejection of a year 2002 ballot measure to exempt district attorneys from term limits. Maj. op. at 652. However, because the measure before the voters phrased the issue as proposing the exemption of distinct attorneys from the existing term limit constitutional pi-ovisions, the rejection of this proposition should be seen as the voters stating that, if this is the law, they prefei'red not to change it. In any event, the 2002 vote should not be read as any sort of legislative-type history on *663the legal effect of the pre-existing term limit provisions.

As to the Colorado Attorney General’s opinion that led to the 2002 ballot proposal, see Legislative Council of the Colorado General Assembly, 2002 Ballot Information Booklet, An Analysis of Stateiuide Ballot Issues and Recommendations on Retention of Judges, Research Publication No. 502-10 at 22, Op. Att’y Gen. No. 2000-2 (Feb. 9, 2000), I conclude that the attorney general erred in opining that district attorneys are term limited by the pre-existing term constitutional provisions, namely those of Article XVIII, section 11. The resolution of this constitutional issue properly resides in this court, Board of County Comm’rs v. Vail Assoc., 19 P.3d 1263, 1272 (Colo.2001), of course, and the majority opinion resolves this question in favor of the attorney general’s view.

Nonetheless, in my opinion, the better construction of the present constitution is that district attorneys are not term limited. In 1990, the state constitution was amended to impose term limits on statewide officials. These enumerated officials were expressly limited to those of the executive and legislative branches of state government. The judicial branch was intentionally omitted. In 1994, the state constitution was again amended, extending term limits to governmental officials of political subdivisions and certain other local officials. Again, judicial officers expressly were omitted. The manifest purpose of the second amendment was not to extend term limits to all other elected officials in the state but rather to extend terms limits to executive and legislative officials of select local governmental bodies. Because the office of district attorney is created by Article VI of the state constitution and located in the judicial branch of state government by that fundamental law, it was not intended to be term-limited by either amendment. In my view, it is unsurprising that-district attorneys do not fit comfortably within the allowance for local exemption from term limits since they hold a state office that was intentionally excluded from term limits in the first instance.

Accordingly, I concur in the judgment of the court but not its reasoning.

I am authorized to say that Justice COATS joins in this concurrence.