The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY March 4, 2021
2021COA26
No. 20CA0691, Prairie Mountain Publishing Co. LLP d/b/a Daily Camera v. Regents of the University of Colorado — Government — Public Records — Colorado Open Records Act — Colorado Sunshine Act — Open Meetings Law
A division of the court of appeals holds that a “finalist” under
the plain language of the Colorado Open Records Act (CORA) is a
person who is disclosed by the appointing entity as a finalist. The
division therefore reverses the district court’s judgment that would
have required the Regents of the University of Colorado to disclose
the names and interview materials of all the candidates that they
interviewed.
The dissent would hold that CORA requires appointing entities
to disclose multiple finalists. The dissent would therefore affirm the
district court’s judgment. COLORADO COURT OF APPEALS 2021COA26
Court of Appeals No. 20CA0691 City and County of Denver District Court No. 19CV33759 Honorable A. Bruce Jones, Judge
Prairie Mountain Publishing Company, LLP, d/b/a Daily Camera,
Plaintiff-Appellee,
v.
Regents of the University of Colorado,
Defendant-Appellant.
JUDGMENT AND ORDER REVERSED
Division V Opinion by JUDGE BERGER Vogt*, J., concurs J. Jones, J., dissents
Announced March 4, 2021
Maxfield Gunning, LLP, Robert R. Gunning, Eric Maxfield, Boulder, Colorado, for Plaintiff-Appellee
Philip J. Weiser, Attorney General, Michael Kotlarczyk, Assistant Attorney General, Skippere Spear, Senior Assistant Attorney General, Denver, Colorado, for Defendant-Appellant
Philip J. Weiser, Attorney General, Julie C. Tolleson, First Assistant Attorney General, Isabel J. Broer, Assistant Attorney General, Denver, Colorado, for Amicus Curiae Colorado Higher Education Institutions
Baker & Hostetler LLP, Marc D. Flink, Denver, Colorado; Killmer, Lane, & Newman, LLP, Thomas B. Kelley, Denver, Colorado, for Amici Curiae Colorado Freedom of Information Coalition, Joseph L. Brechner Center for Freedom of Information, National Freedom of Information Coalition, News Leaders Association, Society of Professional Journalists, Colorado Politics, Colorado SPJ Pro Chapter, Colorado Press Association, Reporters Committee for Freedom of the Press, Colorado Broadcasters Association, Denver Post, Colorado Springs Gazette, Colorado News Collaborative and Colorado Sun
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2020. ¶1 This case arises under the Colorado Open Records Act (CORA)
and the Open Meetings Law (OML). Prairie Mountain Publishing
Company, LLP, d/b/a Daily Camera requested documents
regarding applicants for the presidency of the University of Colorado
(CU). CU refused the requests, and the Daily Camera sued. The
district court agreed with the Daily Camera and ordered disclosure
of the requested documents. Because we conclude the district
court exceeded its authority in rewriting the applicable statutes, we
reverse.
I. Background
¶2 When CU President Bruce Benson announced his retirement,
the CU Board of Regents (Regents) adopted procedures to select his
successor. The Regents appointed an internal search committee
and hired an outside search firm. Initially, the search firm received
more than one hundred referrals or applications for the position.
These candidates were winnowed down at various stages. The
search firm narrowed this list to twenty-seven candidates, and the
search committee decided to interview eleven, eventually
interviewing only ten after one withdrew. After those interviews, the
search committee reduced the remaining applicants to six, all of
1 whom were interviewed by the Regents. After those interviews, the
Regents publicly announced that there was only one finalist —
Mark Kennedy.
¶3 Mr. Kennedy then went through an extensive public vetting
process, including personal meetings with various constituent
groups at all of CU’s campuses. During this vetting process, there
was considerable criticism heaped on the Regents regarding both
the search process itself and the Regents’ apparent selection of Mr.
Kennedy. Ultimately, the Regents voted 5-4 to appoint Mr.
Kennedy.
¶4 After Mr. Kennedy’s appointment, the Daily Camera requested
under CORA and the OML the names and application documents of
the candidates selected by the search committee and those
interviewed by the Regents.1 When CU declined to produce the
1 The names of the candidates selected by the search committee were leaked to the press, even though that information was confidential. Ultimately, CU released documents relating to five of the six persons interviewed by the Regents (including Mr. Kennedy). The dissent correctly observes that this case narrowly escapes dismissal on mootness grounds.
2 records (except those regarding Mr. Kennedy), the Daily Camera
sued in Denver District Court.2
¶5 The court ruled in favor of the Daily Camera, concluding that
the six candidates interviewed by the Regents were the finalists.
¶6 Proceedings before the Denver District Court confirmed that,
at least with respect to appointment of officers of public entities
(which all parties concede include CU and its Regents), both CORA
and the OML are seriously flawed. Despite many legislative
attempts over the years to reconcile competing public policy
interests, the statutes do a very poor job of precisely designating
which records regarding which people are subject to mandatory
disclosure.
¶7 Faced with these confusing statutes, the district court did a
yeoman’s job attempting to make sense of and bring clarity to them.
We conclude, however, that the district court’s efforts were, in the
end, outside the proper role of our courts.
¶8 It is beyond argument that the district court’s construction of
CORA and the OML better advance the sunshine and open
2 CU’s executive offices are in Denver, making the district court for the second judicial district a proper forum for the CORA proceeding.
3 government principles that underlie those statutes. The statutes,
as construed by the district court are “better” in that sense,
although that value judgment may well depend on one’s point of
view. But making statutes clearer, easier to administer, or “better”
are not proper roles of this state’s courts. That is the job of the
General Assembly. Dep’t of Transp. v. City of Idaho Springs, 192
P.3d 490, 494 (Colo. App. 2008) (“If a statute gives rise to
undesirable results, the legislature must determine the remedy.
Courts may not rewrite statutes to improve them.”) (citations
omitted).
¶9 Unlike a situation in which a court is tasked with interpreting
an ambiguous statute to comport with underlying constitutional
commands, there is no such baseline here. The rights involved here
are entirely statutory, and the power of the General Assembly to
establish, limit, and clarify those rights is plenary. It is in that
context that we review the district court’s judgment.
4 II. Analysis
A. Standard of Review and Preservation
¶ 10 This case presents a question of statutory interpretation,
which we review de novo.3 Oakwood Holdings, LLC v. Mortg. Invs.
Enters. LLC, 2018 CO 12, ¶ 12. Courts “review de novo questions of
law concerning the correct construction and application of CORA.”
Harris v. Denver Post Corp., 123 P.3d 1166, 1170 (Colo. 2005).
“Likewise, interpreting the OML presents a question of law that we
review de novo.” Colo. Off-Highway Vehicle Coal. v. Colo. Bd. of
Parks & Outdoor Rec., 2012 COA 146, ¶ 22.
¶ 11 The issue of whether CORA and the OML require the
requested disclosure was preserved for appeal.
B. The Plain Language of the Statutes is Unambiguous
¶ 12 The overriding goal of statutory construction is to effectuate
the legislature’s intent. Dep’t of Revenue v. Agilent Techs., Inc.,
3 To the extent that CU argued in the district court that its interpretation of CORA or the OML deserved deference, it has not made that argument on appeal. Arguments not advanced on appeal are generally deemed waived. Moody v. People, 159 P.3d 611, 614 (Colo. 2007). In any event, CU is not an agency or institution charged with enforcing CORA or the OML, and thus we would not, in any event, defer to its interpretation. See, e.g., Huddleston v. Grand Cnty. Bd. of Equalization, 913 P.2d 15, 17 (Colo. 1996).
5 2019 CO 41, ¶ 16. In doing so, courts “look first to the statute’s
language, giving words and phrases their plain and ordinary
meanings.” Bd. of Cnty. Comm’rs v. Dep’t of Pub. Health & Env’t,
2020 COA 50, ¶ 14 (cert. granted Sept. 28, 2020). This requires
“reading applicable statutory provisions as a whole in order to
accord consistent, harmonious, and sensible effect to all their
parts.” People in Interest of W.P., 2013 CO 11, ¶ 11. However,
when the plain language is unambiguous, we look no further. Id.
¶ 13 The parties agree that disclosure is required only with respect
to finalists. Indeed, CORA prohibits CU and other state entities
from disclosing any “[r]ecords submitted by or on behalf of an
applicant or candidate for an executive position . . . who is not a
finalist.” § 24-72-204(3)(a)(XI)(A), C.R.S. 2020.
¶ 14 This is the question before us: Who is a finalist? CORA
defines a “finalist” as
an applicant or candidate for an executive position as the chief executive officer of a state agency, institution, or political subdivision or agency thereof who is a member of the final group of applicants or candidates made public pursuant to section 24-6-402(3.5), and if only three or fewer applicants or candidates for the chief executive officer position possess the minimum qualifications for the position, said
6 applicants or candidates shall be considered finalists.
Id. (emphasis added).
¶ 15 By the statute’s plain language, a “finalist” is a person who is
disclosed by the appointing entity as a finalist — who is “made
public.” Id.
¶ 16 Unlike earlier versions of CORA, which were abrogated by the
General Assembly, this definition of a “finalist” is confusing and
perhaps circular. The district court acknowledged this, saying that
it made no sense to allow the appointing entity to structure its
appointment process to require disclosure of only the single person
the entity intends to appoint. Such a process, according to the
district court and the Daily Camera, violates the open records and
open meetings principles underlying the statutes before us.
¶ 17 That may be true, but we hold this to be insufficient for us to
step in and write what some may consider to be better statutes
more attuned to concepts of open government. “Courts may not
rewrite statutes to improve them.” City of Idaho Springs, 192 P.3d
at 494.
7 ¶ 18 The bottom line is that it is not impossible to enforce the
statutes as written. (If it were, principles regarding construction of
statutes by courts might come into play.) Doing so may or may not
provide the level of open records that many think essential to good
government. But that is not the test. Instead, we hold that the
district court overstepped its bounds in rewriting CORA to provide
that the Regents had a mandatory legal duty to disclose the records
of the six interviewees.
¶ 19 The problems with the district court’s construction in this
respect are several. First, how does a court determine who the
finalists are? That is, even if we were to agree with the district
court’s interpretation that the plain language requires the
disclosure of multiple finalists when more than three applicants
possess the minimum qualifications, what judicially manageable
standards exist to determine who the finalists are? Are they the
large group of persons vetted by the outside search firm, or the
smaller group identified by the internal search committee? Or are
the finalists only those persons that were interviewed by the search
8 committee?4 Is a person a finalist because he or she was
interviewed by the Regents, even when the Regents, as a result of
those interviews, determine that one or more of the interviewees
were unsuitable for the job? Or are finalists limited to those
persons that, after the interviews, are actually considered by the
appointing entity for appointment, even when there is only one such
person?
¶ 20 In answering these questions, the district court concluded that
the finalists were those persons interviewed by the Regents, not the
larger groups. While that choice is reasonable — indeed, that is
precisely the choice made by the General Assembly in a prior, but
now abrogated, version of CORA — statutory language dictating
that choice is absent from the current versions of the statutes.
Compare § 24-72-204(3)(a)(XI)(A), C.R.S. 2020, with § 24-72-
204(3)(a)(XI)(A), C.R.S. 1994, and Ch. 286, sec. 3, § 24-72-
204(3)(a)(XI)(A), 2001 Colo. Sess. Laws 1073. Instead, that choice
4In fact, the Daily Camera requested the records of “the 28 candidates interviewed by the search committee.” It is immaterial whether this request was in reference to the twenty-seven candidates that were vetted by the search committee, or the ten candidates actually interviewed by the committee.
9 reflects a policy decision that is for the General Assembly, not the
courts.
¶ 21 The district court supported its interpretation with the
dictionary definition of a “finalist” as one who competes in the “final
round of competition,” and construed that to mean the interviews
with the Regents. But the General Assembly itself defined “finalist,”
and its statutory definition is not the same as the dictionary
definition. “[W]hen the legislature defines a term in a statute, that
definition governs.” Farmers Ins. Exch. v. Bill Boom Inc., 961 P.2d
465, 470 (Colo. 1998). The current statute does not define “finalist”
in terms of who receives an interview or rounds of competition.
¶ 22 Instead, the current provision defines a “finalist” as a person
“made public pursuant to section 24-6-402(3.5).” § 24-72-
204(3)(a)(XI)(A). There is no statutory requirement that an
institution name a minimum number of finalists, unless three or
fewer applicants “possess the minimum qualifications.” Id. In that
situation, all qualified applicants are finalists. Everyone agrees that
this case does not fall into this statutory exception. It is
undisputed that more than three applicants possessed the
minimum qualifications for CU president. Accordingly, by statute,
10 only a candidate who was a “member of the final group of
applicants or candidates made public pursuant to section 24-6-
402(3.5)” of the OML is a finalist. Id.
¶ 23 Neither does section 24-6-402(3.5), C.R.S. 2020, of the OML
specify the number of finalists that must be named. It states:
The state or local public body shall make public the list of all finalists under consideration for the position of chief executive officer no later than fourteen days prior to appointing or employing one of the finalists to fill the position. No offer of appointment or employment shall be made prior to this public notice. Records submitted by or on behalf of a finalist for such position shall be subject to the provisions of section 24-72-204(3)(a)(XI). As used in this subsection (3.5), “finalist” shall have the same meaning as in section 24-72- 204(3)(a)(XI).
Id.
¶ 24 Based on these statutory provisions, because Mr. Kennedy
was the only individual “made public pursuant to section 24-6-
402(3.5),” § 24-72-204(3)(a)(XI)(A), we conclude that CU acted
within its rights to treat him as the sole finalist.
¶ 25 The General Assembly could have said, but did not, that there
must be multiple finalists. “Where the legislature could have
chosen to restrict the application of a statute, but chose not to, we
11 do not read additional restrictions into the statute.” Springer v. City
& Cnty. of Denver, 13 P.3d 794, 804 (Colo. 2000). And we will not
second-guess the policy preferences of the legislature. Farmers Ins.
Exch., 961 P.2d at 469.
¶ 26 The district court also pointed to the words “member” and
“list” and their dictionary definitions as evidence that the General
Assembly intended that there be more than one finalist. These
words certainly permit a state entity to name multiple finalists. But
these words do not require multiple finalists. While the words
“member” and “list” can refer to multiple components they can also
refer to single components, like single-member LLCs, or a list
containing a single item. See Sedgwick Props. Dev. Corp. v. Hinds,
2019 COA 102, ¶ 17.
¶ 27 Although “group” usually denotes multiple individuals, we do
not think that term alone dictates rewriting the statute in the
manner done by the district court. We also point out that section
2-4-102, C.R.S. 2020, which governs construction of statutes,
provides that “[t]he singular includes the plural, and the plural
includes the singular.”
12 ¶ 28 As noted, under a prior version of CORA, both the question
and answer were simple: disclosure was required for all finalists,
and anyone interviewed by the appointing entity was a finalist.
§ 24-72-204(3)(a)(XI)(A), C.R.S. 1994. That is what the district
court held here, but that provision of CORA no longer exists. Ch.
286, sec. 3, § 24-72-204(3)(a)(XI)(A), 2001 Colo. Sess. Laws 1073.
When the General Assembly amends a statute there is a
presumption that it “intended to change the law.” Union Pac. R.R.
Co. v. Martin, 209 P.3d 185, 188 (Colo. 2009).
¶ 29 We fully acknowledge that, as written and as we apply the
statutes, both CORA and the OML are subject to abuse by
appointing entities because they can structure their appointment
process to limit applicant disclosure to only one finalist. Many will
argue, more than plausibly, that such a structure is inimical to
principles of open government. And they might be right. But again,
absent underlying constitutional constraints, which do not exist
here, that is for the General Assembly to address, not the courts.
City of Idaho Springs, 192 P.3d at 494; People v. Ramirez, 2018 COA
129, ¶ 32 (“While the result mandated by the statutory language
13 likely is undesirable to almost everyone, that does not give us a
license to improve or rewrite the statute.”).
¶ 30 The Daily Camera also points out, as did the district court,
that when there are three or fewer qualified applicants, CORA
requires disclosure of all of those applicants. If that is the law, they
say, how does it make sense that when there are more than three
qualified applicants, the appointing entity can designate only one
finalist? While this result may make little sense, it does not reach
the high bar of absurdity. “[T]he alleged absurdity must surmount
a high bar to be truly absurd.” Brett M. Kavanaugh, Fixing
Statutory Interpretation, 129 Harv. L. Rev. 2118, 2156-57 (2016)
(reviewing Robert A. Katzmann, Judging Statutes (2014)).
¶ 31 Under the plain language of the statute, there is no minimum
number of finalists if there are more than three minimally qualified
applicants. This construction incentivizes hiring institutions to
conduct broad, thorough searches of qualified candidates, at least
preliminarily. While we have no idea if this is what the legislature
intended — and we take no position on whether this is the right
policy choice — it is a plausible policy choice such that our
construction is not absurd. Had the General Assembly intended
14 that a minimum number of finalists be disclosed when more than
three applicants possessed the minimum qualifications, it could
have, and presumably would have, said so. But it did not.
¶ 32 In conclusion, the plain language of both CORA and the OML
permitted the Regents to do exactly what they did. Whether that is
good policy or good government is not for us to decide. Accordingly,
we reverse the judgment of the district court.
C. Attorney Fees and Costs
¶ 33 The Daily Camera requests recovery of its attorney fees and
costs on appeal under C.A.R. 39.1 and section 24-72-204(5)(b),
C.R.S. 2020.
¶ 34 Section 24-72-204(5)(b) provides, in part, that “[u]nless the
court finds that the denial of the right of inspection was proper, it
shall . . . award court costs and reasonable attorney fees to the
prevailing applicant in an amount to be determined by the court.”
¶ 35 Because we hold that CU’s refusal to disclose the records
sought by the Daily Camera was permissible under the plain
language of CORA and the OML, we deny the Daily Camera’s
request for attorney fees and costs on appeal.
15 ¶ 36 We also reverse the district court’s order granting attorney fees
and costs to the Daily Camera. “[W]hen an underlying judgment is
reversed, an award that is dependent on that judgment for its
validity is also necessarily reversed and becomes a nullity.”
Bainbridge, Inc. v. Douglas Cnty. Bd. of Comm’rs, 55 P.3d 271, 273
(Colo. App. 2002).
III. Conclusion
¶ 37 The district court’s judgment as well as its order awarding
attorney fees and costs are reversed.
JUDGE VOGT concurs.
JUDGE J. JONES dissents.
16 JUDGE J. JONES, dissenting
¶ 38 This is a difficult case — made so because the relevant
portions of the Colorado Open Records Act (CORA) and the Open
Meetings Law (OML) are, in some respects, less than clear.
Certainly the relevant provisions — those relating to who is a
“finalist” who must be disclosed by an appointing state entity —
could stand some clarifying revision, and I join the majority’s call
for the General Assembly to amend them so that the expenditure of
time and resources relating to disputes such as this can become a
thing of the past.
¶ 39 The majority holds that under these statutes, a “finalist” for a
position is whomever the appointing entity deigns to label a finalist,
and if that is a single individual, so be it. Indeed, the majority
holds that this is the unambiguous meaning of the relevant
statutes. I respectfully don’t agree. As I see it, the relevant statutes
— section 24-72-204(3)(a)(XI)(A), C.R.S. 2020, of CORA, and section
24-6-402(3.5), C.R.S. 2020, of the OML — unambiguously
contemplate that, unless there is only one applicant for a position,
there will always be more than one “finalist.” Determining how
many finalists there are in a given case is where things get murky.
17 The district court ruled that under the facts of this case the six
applicants who interviewed with the Board of Regents (Regents)
were the finalists for University of Colorado (CU) president. That
seems to me a reasonable application of CORA and OML.
Therefore, I would affirm the district court’s judgment and its order
awarding attorney fees and costs to the Daily Camera.
I. Facts
¶ 40 A search firm hired by the Regents identified more than one
hundred applicants for the job. In its judgment, twenty-seven of
those applicants met the qualifications for the position. The
Regents’ search committee (which didn’t comprise the entire board)
interviewed ten of those applicants. It then sent the names of six of
those applicants to the Regents. The Regents interviewed those six
applicants. They then voted unanimously to name Mark Kennedy
as the sole “finalist” pursuant to University of Colorado Board of
Regents, Regent Policy 3.E (rev. Sept. 2017),
https://perma.cc/KQ4T-7TS7,1 and they passed a resolution
stating as follows:
1 That policy says a “finalist” is
18 Resolved that the Board of Regents announce Mark R. Kennedy as a finalist for the presidency of the University of Colorado. The Board of Regents welcomes comments on Mr. Kennedy’s candidacy and shall not take any action to appoint or employ Mr. Kennedy for at least fourteen days from the date of this resolution.
¶ 41 Mr. Kennedy appeared at open fora at all four CU campuses
and the system administration offices. Individuals commented on
Mr. Kennedy on a CU website created for that purpose. A little
more than three weeks after the Regents named Mr. Kennedy a
finalist, they voted 5-4 to appoint him to the CU presidency.
¶ 42 The Daily Camera submitted a CORA request to CU for the
names and application documents of the twenty-seven applicants
whom the search committee had determined met the qualifications
[a] candidate who has agreed to be advanced for final consideration and potential appointment for the position of president or chancellor. A person who is named as a finalist shall be named in accordance with the requirements of [the OML] C.R.S. 24-6- 402(3.5) and records pertaining to that person shall be available for public inspection as allowed by [CORA] C.R.S. 24-72- 204[(3)(a)](XI)(A-B).
Univ. of Colo. Bd. of Regents, Regent Policy 3.C.2 (rev. Nov. 2020), https://perma.cc/KQ4T-7TS7.
19 for the job and the six applicants the Regents had interviewed. The
Regents declined to provide the requested information for any
applicant other than Mr. Kennedy.
¶ 43 The Daily Camera sued under CORA and the OML. The
district court ultimately ruled that the six applicants the Regents
had interviewed were finalists, and it ordered CU to produce the
requested information for those individuals. After someone publicly
disclosed the identities of four of the other five persons interviewed,
CU produced the materials relating to those four and Mr. Kennedy.2
II. The Relevant Statutes
¶ 44 Section 24-72-203(1)(a), C.R.S. 2020, of CORA creates a
general rule that “[a]ll public records shall be open for inspection by
any person at reasonable times, except as provided in this part 2 or
as otherwise provided by law . . . .”3 One exception is at issue in
this case — that for “[r]ecords submitted by or on behalf of an
applicant or candidate for an executive position as defined in
2 Because one interviewed person hasn’t been publicly identified, this case narrowly escapes dismissal for mootness. 3 “Public records” is defined in section 24-27-202(6), C.R.S. 2020.
There is no dispute that all the documents the Daily Camera seeks are public records.
20 section 24-72-202(1.3)[, C.R.S. 2020,] who is not a finalist.” § 24-
72-204(3)(a)(XI)(A). The position of president of CU is an executive
position as defined in section 24-72-202(1.3).
¶ 45 For purposes of this exception,
“finalist” means an applicant or candidate for an executive position as the chief executive officer of a state agency, institution, or political subdivision or agency thereof who is a member of the final group of applicants or candidates made public pursuant to section 24-6-402(3.5), and if only three or fewer applicants or candidates for the chief executive officer position possess the minimum qualifications for the position, said applicants or candidates shall be considered finalists.
§ 24-72-204(3)(a)(XI)(A) (emphasis added).
¶ 46 Section 24-6-402(3.5) is part of the OML. It directs the state
body to make public “the list of all finalists under consideration for
the position of chief executive officer no later than fourteen days
prior to appointing or employing one of the finalists to fill the
position.” Id. (emphasis added). It doesn’t separately define
“finalist”; instead, it says that for its purposes “‘finalist’ shall have
the same meaning as in section 24-72-204(3)(a)(XI),” the definition
for the relevant exception in CORA. Id.
21 ¶ 47 Ultimately, then, the meaning of “finalist” for purposes of both
CORA and the OML turns on the meaning of the above-highlighted
portions of section 24-72-204(3)(a)(XI)(A), though, as discussed
below, sections 24-6-402(3.5) and 24-72-203(1)(a) have something
to say about the matter.
III. Standard of Review
¶ 48 Because this case turns on the interpretation of CORA and the
OML, we review de novo. Denver Publ’g Co. v. Bd. of Cnty. Comm’rs,
121 P.3d 190, 195 (Colo. 2005) (CORA); Bd. of Cnty. Comm’rs v.
Costilla Cnty. Conservancy Dist., 88 P.3d 1188, 1192 (Colo. 2004)
(the OML).4
IV. Principles of Statutory Interpretation
¶ 49 To achieve our ultimate goal of determining and giving effect to
the General Assembly’s intent, we begin by attributing to the words
and phrases used in the statute their plain and ordinary meanings.
Hassler v. Account Brokers of Larimer Cnty., Inc., 2012 CO 24, ¶ 15;
Battle N., LLC v. Sensible Hous. Co., 2015 COA 83, ¶ 30. But we
4 I agree with the majority that since CU isn’t an agency tasked with implementing CORA or the OML — but is only an institution subject to those laws — we don’t owe any deference to its interpretation of the relevant statutes.
22 don’t consider words and phrases in isolation; rather, we consider
them “in context — both in the context of the statute of which the
words or phrases are a part and in the context of any
comprehensive statutory scheme of which the statute is a part.”
People v. Berry, 2017 COA 65, ¶ 13, aff’d, 2020 CO 14; see
Jefferson Cnty. Bd. of Equalization v. Gerganoff, 241 P.3d 932, 935
(Colo. 2010). At the same time, we strive to give consistent,
harmonious, and sensible meaning to all of a statute’s language.
And we must avoid any interpretation that would lead to an illogical
or absurd result. Schaden v. DIA Brewing Co., LLC, 2021 CO 4M,
¶ 32; Ferguson v. Spalding Rehab., LLC, 2019 COA 93, ¶ 10.
Indeed, the General Assembly’s manifest intent must prevail over a
literal meaning of the statute if that literal meaning would lead to
an absurd result. Henisse v. First Transit, Inc., 247 P.3d 577, 579
(Colo. 2011); Battle N., ¶ 30.
¶ 50 If, after applying these principles, we determine that the
statutory words and phrases are unambiguous, we enforce them as
written. Denver Post Corp. v. Ritter, 255 P.3d 1083, 1089 (Colo.
2011). But it isn’t always so easy. Sometimes application of these
principles doesn’t yield a clear meaning; sometimes the statutory
23 language is ambiguous — that is, susceptible of more than one
reasonable interpretation. When that is the case — and only when
that is the case — we may look to other rules of statutory
interpretation to resolve the ambiguity. Berry, ¶¶ 13-14; see § 2-4-
203, C.R.S. 2020. There are many such rules, and which ones
apply in a given case will vary. Id. at ¶ 14.
¶ 51 But given CORA’s broad, general policy favoring public
disclosure of public records, we are also guided by two other,
related principles. First, we must narrowly construe CORA’s
exceptions. City of Westminster v. Dogan Constr. Co., Inc., 930 P.2d
585, 589 (Colo. 1997); City of Fort Morgan v. E. Colo. Publ’g Co., 240
P.3d 481, 486 (Colo. App. 2010).5 And second, the party claiming
that an exception applies has the burden of showing that the
documents in question fall within the claimed exception. Shook v.
Pitkin Cnty. Bd. of Cnty. Comm’rs, 2015 COA 84, ¶ 6; City of Fort
5 In challenging this principle, the Regents cite to Benefield v. Colorado Republican Party, 2014 CO 57, ¶ 25. But that citation is to a dissent. The Regents didn’t acknowledge that in their opening brief or even in their reply brief after the Daily Camera’s answer brief noted it.
24 Morgan, 240 P.3d at 486; Zubeck v. El Paso Cnty. Ret. Plan, 961
P.2d 597, 600 (Colo. App. 1998).6
V. Analysis
¶ 52 The majority quotes section 24-77-204(3)(a)(XI)(A) and
immediately concludes, without intervening analysis, that “[b]y the
statute’s plain language, a ‘finalist’ is a person who is disclosed by
the appointing entity as a finalist — who is ‘made public.’” Supra at
¶ 15. It then notes that “this definition of ‘finalist’ is confusing and
perhaps circular.” Supra at ¶ 16. And later in the opinion, the
majority observes that the statute requires the naming of all
applicants when there are three or fewer applicants, and that it
therefore makes “little sense” that an appointing entity can
designate one finalist when there are more than three applicants.
Supra at ¶ 30. Nonetheless, the majority holds that the “confusing
6 We must also interpret the OML broadly to further its intent to give citizens a greater opportunity to become fully informed on issues of public importance. Bd. of Cnty. Comm’rs v. Costilla Cnty. Conservancy Dist., 88 P.3d 1188, 1193 (Colo. 2004); Cole v. State, 673 P.2d 345, 347, 349 (Colo. 1983). And, as with CORA, we must strictly construe exceptions to the OML’s requirement of public access to meetings at which the public’s business is discussed. Gumina v. City of Sterling, 119 P.3d 527, 532 (Colo. App. 2004).
25 and perhaps circular” definition of “finalist” that it adopts — that is,
a finalist is whomever the appointing entity says is a finalist — is
the definition that it must enforce even though it doesn’t make
sense. Supra at ¶¶ 16, 18, 30. I can’t agree.7
¶ 53 This interpretation runs afoul of several basic principles of
statutory construction. First, it contravenes the principle that we
must interpret a statute as a whole to give it “sensible” effect.
Schaden, ¶ 32; Ferguson, ¶ 10. Adopting a construction that the
majority concedes doesn’t make sense can’t be squared with that
principle.
¶ 54 Second, even if the majority were correct that a literal
construction of the statute leads to its interpretation of the meaning
of “finalist” (a conclusion with which I don’t agree, as explained
7 The district court relied heavily on the commonly understood meaning of “finalist.” Like the majority, I don’t go there because the term is defined in the statute. But I do observe that the commonly understood meaning of that term undercuts the majority’s interpretation. See Webster’s Third New International Dictionary 851 (2002) (a “finalist” is “any of the contestants who meet in the final round of a competition”); see also Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-24 (1992) (when faced with a statutory definition of a term that is essentially circular and unhelpful, a court should assume the legislature intended the accumulated settled meaning under the common law).
26 below), that interpretation shouldn’t be adopted because it leads to
an absurd result. See Henisse, 247 P.3d at 579 (the General
Assembly’s intent must prevail over a literal meaning that would
lead to an absurd result). It is absurd because, as the majority
recognizes, it allows for less disclosure when there are more than
three applicants than when there are three or fewer applicants (a
result which, as noted, the majority says doesn’t make sense). And
it leads to an absurd result because it allows each appointing entity
unfettered power to determine who is a finalist. Different
appointing entities can take different approaches and can
manipulate their procedures to shield information from disclosure
in spite of the policies served by CORA and the OML. In other
words, under the majority’s interpretation, “finalist” really has no
meaning at all — it’s just whatever an appointing entity says it is.
¶ 55 Third, the majority fails to read the statutory provisions as a
whole and in context. The majority simply skips over the phrase
“who is a member of the final group of applicants or candidates.”
To me, this phrase unambiguously contemplates multiple finalists.
The majority, however, says all the plural words in that phrase can
be read as singular. I disagree. Reading them as singular certainly
27 isn’t the most natural way to read them, and Colorado courts have
long favored the most natural reading of statutory language. See,
e.g., Qwest Corp. v. Colo. Div. of Prop. Tax’n, 2013 CO 39, ¶ 35M,
abrogated on other grounds by Warne v. Hall, 2016 CO 50; In re
Petition of S.O., 795 P.2d 254, 259 (Colo. 1990); U.S. Fid. & Guar.
Co. v. People, 44 Colo. 557, 567, 98 P. 828, 832 (1908); Markus v.
Brohl, 2014 COA 146, ¶ 37. Nor, in a similar vein, is such a
reading consistent with the commonly understood meanings of
these terms. See Ybarra v. Greenberg & Sada, P.C., 2018 CO 81,
¶ 10 (term that isn’t defined “must be understood according to its
ordinary meaning”); OXY USA, Inc. v. Mesa Cnty. Bd. of Comm’rs,
2017 CO 104, ¶ 16 (we must give words and phrases in a statute
“their commonly accepted and understood meanings”). That the
plural meaning is intended by the General Assembly is further
borne out by its stringing together of multiple plural terms, as well
as the clause addressing the situation when there are three or fewer
applicants.
¶ 56 The majority justifies its treatment of multiple plural terms as
including the singular in two ways. It says first that while “‘group’
usually denotes multiple individuals,” the use of that “term alone”
28 does not “dictate[] rewriting the statute in the manner done by the
district court.” See supra at ¶ 27. But the word “group” is always
— not usually — plural.8 A group is “two or more figures . . .
forming a distinctive unit complete in itself or forming part of a
larger composition”; “a relatively small number of individuals
assemble or standing together”; “a number of individuals bound
together by a community of interest, purpose, or function”; or some
other collection made up of at least two elements. Webster’s Third
New International Dictionary 1004 (2002). And so to construe
“group” as plural is not to rewrite the statute, but to enforce it as
written.9
8 In this way, “group” is like “a few,” “several,” or “many.” It isn’t a singular noun transformed into a plural form of the noun merely by adding an “s.” 9 The case cited by the Regents in their opening brief, A.N. ex rel.
Ponder v. Syling, 928 F.3d 1191 (10th Cir. 2019), for the proposition that “group” can be singular actually supports the notion that a group is more than one person. It says, “[a]n equal protection claim may be asserted with respect to a group or a ‘class of one.’” Id. at 1196 (emphasis added) (citation omitted). (The Regents omit the internal quotation marks in this quote when quoting this statement in their opening brief.) The case A.N. cites for this proposition, A.M. v. Holmes, 830 F.3d 1123 (10th Cir. 2016), expressly distinguishes between groups, which comprise more than one person, and classes of one, which do not. Id. at 1166.
29 ¶ 57 The majority also relies on section 2-4-102, C.R.S. 2020,
which says that “[t]he singular includes the plural, and the plural
includes the singular.” But statutes such as this should be applied
to further legislative intent, not to undermine it. Put another way,
they should be applied when necessary to carry out the evident
intent of a statute. See, e.g., First Nat’l Bank in St. Louis v. Missouri,
263 U.S. 640, 657 (1924); Dakota, Minn. & E. R.R. Corp. v. Schieffer,
648 F.3d 935, 938 (8th Cir. 2011); Toy Mfrs. of Am., Inc. v.
Consumer Prods. Safety Comm’n, 630 F.2d 70, 74 (2d Cir. 1980),
abrogation on other grounds recognized by Prestop Holdings, LLC v.
United States, 96 Fed. Cl. 244 (2010); see also 2A Norman J. Singer
& J. D. Shambie Singer, Sutherland Statutes and Statutory
Construction § 47:34, at 506-07 (7th ed. 2014). In my view, the
evident intent of the statute — as expressed by the General
Assembly’s repeated and connected uses of plural terms in section
24-72-204(3)(a)(XI)(A) and (as discussed below) other statutory
provisions — is that “group” means (as it always does) more than
one person. Therefore, section 2-4-102 doesn’t apply.
¶ 58 The majority also fails to recognize the full import of the clause
of section 24-72-204(3)(a)(XI)(A) addressing the situation where
30 there are three or fewer applicants. That clause follows immediately
after the “group” clause and provides that all applicants are
considered “finalists” if there are three or fewer applicants. Id. As
the majority concedes, it makes no sense to require disclosure of all
applicants in that circumstance but allow an appointing entity to
designate only one “finalist” where there are more than three
applicants. But rather than accepting the most logical implication
of that incongruity, the majority creates a possible rationale for it
that not even the Regents put forward. In my view, the General
Assembly’s inclusion of that clause is most naturally regarded as a
further indication that it intended the plural terms in the preceding
“group” clause to be applied as commonly understood.
¶ 59 Apart from the text of section 24-72-204(3)(a)(XI)(A) itself,
section 24-6-402(3.5) of the OML also indicates that the General
Assembly intended that, except in the case of a single applicant,
there would always be more than one finalist. It speaks in terms of
“the list of all finalists under consideration” and “one of the finalists”
for the position. § 24-6-402(3.5) (emphasis added). The natural
meaning, or common understanding, of this phrasing is obviously
that there will be more than one finalist. See Kuhn v. Williams,
31 2018 CO 30M, ¶ 49 (statutes relating to the same subject should be
read together).10
¶ 60 In the end, the majority’s interpretation contravenes the
supreme court’s admonition that exceptions to CORA’s general rule
of disclosure must be narrowly construed. By holding, in essence,
that section 24-72-204(3)(a)(XI)(A) leaves it up to each appointing
entity to determine for itself what “finalist” means, the majority
allows appointing entities to shield persons and documents from
disclosure almost without limitation, contrary to the policy of
transparency underlying both CORA and the OML.11
¶ 61 Considering the language of section 24-72-204(3)(a)(XI)(A) in
accordance with the common understanding of that language, the
context, other related statutes, and our obligation to narrowly
construe exceptions to CORA’s disclosure requirement, I conclude
10 All this isn’t to say that the phrase “made public pursuant to section 24-6-402(3.5)” does no work in section 24-72- 204(3)(a)(XI)(A), C.R.S. 2020. That phrase, considered in conjunction with section 24-6-402(3.5), C.R.S. 2020, dictates that all finalists be made public within the time specified by section 24- 6-402(3.5) (“no later than fourteen days prior to appointing or employing one of the finalists to fill the position”). 11 The only limitation is that one person must be disclosed.
32 that it unambiguously requires an appointing entity to identify
more than one “finalist” in all cases, save where there is only one
applicant.12
¶ 62 But how many finalists must an appointing entity identify if
there are more than three applicants? The statute doesn’t say.
Nor, as currently written, does it give many clues, giving rise to a
host of questions (as the majority points out). Try as I might, I can’t
resolve this ambiguity. But I think the answer will vary from case
to case, depending on the number of applicants, the nature of the
process involved, and the appointing entity’s substantive bases for
winnowing the field of candidates.
¶ 63 In this case, I believe the district court reasonably concluded
that the six persons the Regents interviewed were finalists. I would
therefore affirm the district court’s judgment and its award of
attorney fees to the Daily Camera. And I would grant the Daily
12Because I believe the statute is unambiguous on this score, I don’t look to other sources of legislative intent, such as legislative history. In any event, I didn’t find any of the legislative history recounted by the parties to be particularly enlightening. Nor do I consider the Regents’ policy arguments apart from CORA and the OML. Such arguments are best directed to the General Assembly. Sharon v. SCC Pueblo Belmont Operating Co., LLC, 2019 COA 178, ¶ 21.
33 Camera its reasonable attorney fees incurred on appeal. See § 24-
72-204(5)(b).