Romer v. Board of County Commissioners

897 P.2d 779, 19 Brief Times Rptr. 942, 1995 Colo. LEXIS 257

Opinions

Justice ERICKSON

delivered the Opinion of the Court.

We granted certiorari before judgment to review Board of County Commissioners v. Romer, No. 93CV3671 (Denver Dist.Ct. Jan. 13, 1994),¹ pursuant to C.A.R. 50.² The trial court entered summary judgment in favor of the Board of County Commissioners of Weld County (Board) holding that the Board’s twenty percent payment is a “subsidy” within the meaning of article X, section 20(9) of the Colorado Constitution and that social services programs have been “delegated” to the counties within the meaning of section 20(9). The petitioners, Roy Romer in his official capacity as Governor of the State of Colorado, Karen Beye in her official capacity as the Executive Director of the Department of Social Services for the State of Colorado, and The Department of Social Services for the State of Colorado (collectively State), sought certiorari review pursuant to C.A.R. 50. We reverse and remand to the district court with directions to grant the State’s cross-motion for summary judgment.

I

The Human Services Code³ requires each county to have a department of social services (county department), consisting of a county board of social services, a county director, and other necessary employees. § 26-1-115(1), 11B C.R.S. (1994 Supp.). Each county department is “charged with the administration of public assistance and welfare and related activities in the respective counties in accordance with the rules and regulations of the state department.” § 26-1-118(1), 11B C.R.S. (1994 Supp.).

The state department of social services (state department) is required to provide public assistance and welfare services to those who qualify. § 26-1-111(2), 11B C.R.S. (1989 & 1994 Supp.). The state department consists of a state board, an executive director, and other sections and units which are established by the executive director. § 26-1-105,11B C.R.S. (1989 & 1994 Supp.). The executive director is responsible for establishing rules governing internal administration in the state department. § 26-1-108, 11B C.R.S. (1989 & 1994 Supp.). Rules and regulations issued by the state board and the executive director are binding upon the county departments. §§ 26-1-107(b)(10), -108(2), 11B C.R.S. (1994 Supp.).

The board of county commissioners in each county must appropriate funds to pay the county department’s twenty percent share of the overall cost of providing social services. § 26 — 1—122(l)(a), 11B C.R.S. (1994 Supp.). Counties levy a property tax in an amount sufficient to raise funds to meet their twenty percent obligation. § 26-1-125, 11B C.R.S. (1989). If the amount raised is insufficient, the county must appropriate additional funds. § 26 — 1—122(l)(a), (c), 11B C.R.S. (1994 Supp.). As long as the county department complies with the policies and rules of the state department, the state provides the remaining eighty percent of social services costs. § 26 — 1—122(3)(b), 11B C.R.S. (1994 Supp.).⁴

At the 1992 general election, the voters of the State of Colorado approved an amendment to the Colorado Constitution known as the Taxpayer’s Bill of Rights (Amendment 1). Section 20(9) of Amendment 1 provides:

State Mandates. Except for public education through grade 12 or as required of a local district by federal law, a local district may reduce or end its subsidy to any program delegated to it by the general assembly for administration. For current programs, the state may require 90 days notice and that the adjustment occur in a maximum of three equal annual installments.

Colo. Const, art. X, § 20(9).

On November 16,1992, pursuant to section 20(9), the Board notified the State of its decision to terminate and recover its twenty percent participation in social services programs.⁵ In response, the State notified the Board that section 20(9) does not apply to social services programs. According to the State, the county’s twenty percent share is not a “subsidy,” and social services programs are not “delegated.”

The Board filed an action for declaratory judgment seeking a determination of the correct application of section 20(9) to social services programs. The parties filed cross motions for summary judgment. The trial court granted the Board’s motion and held that section 20(9) applied to social services programs. The trial court found “that Weld County properly and lawfully notified the state of its election to end these 20% payments; that such election was effective April 1, 1993; [and] that Weld County is accordingly entitled to a refund of the 20% payments made and to be made to the state from April 1993 through March 1996.... ”

The trial court also denied the parties’ cross-requests for attorneys fees and costs. Gene Brantner, an individual Weld County taxpayer, filed a second motion for attorneys fees and costs. The second motion was denied, which gives rise to the issue on Brant-ner’s cross-petition.

II

Section 20(9) of Amendment 1 allows a local district to “reduce or end its subsidy to any program delegated to it by the general assembly for administration.” Colo. Const, art X, § 20(9) (emphasis added). “Subsidy” is not defined either in the constitutional provision or by the General Assembly. However, “subsidy” is given a broad definition in a lay dictionary as “[financial assistance given by one person or government to another.” American Heritage Dictionary 809 (3d ed. 1994). A legal dictionary defines “subsidy” as “[a] grant of money made by government in aid of the promoters of any enterprise, work, or improvement in which the government desires to participate, or which is considered a proper subject for government aid, because such purpose is likely to be of benefit to the public.” Black’s Law Dictionary 1280 (5th ed. 1979). Courts have used other definitions of “subsidy.” See, e.g., State Tax Comm’n v. Miami Copper Co., 74 Ariz. 234, 239, 246 P.2d 871, 876 (1952) (“ ‘[A] grant of funds or property from a government, to a private person or company to assist in the establishment or support of an enterprise deemed advantageous to the public.’ ”) (quoting Webster’s International Dictionary (2d ed.)); County of Los Angeles v. State Dep’t of Pub. Health, 158 Cal.App.2d 425, 322 P.2d 968, 973 (1958) (A “ ‘subsidy’ is ... ‘a grant of funds or property from a government, as of the state or a municipal corporation, to a private person or company to assist in the establishment or support of an enterprise deemed advantageous to the public_’ ”) (quoting 83 C.J.S. Subsidy 760 (1953)); Weaver v. Prince George’s County, Md., 281 Md. 349, 379 A.2d 399, 408 (1977) (“The ordinary signification of the term ‘subsidy’ is a grant of funds by a government or its proper agencies to a private person or entity to assist in the establishment or support of an enterprise or activity deemed advantageous to the public.”); Klies v. Linnane, 117 Mont. 59, 156 P.2d 183, 185 (1945) (A “ ‘subsidy’ ... [is] ‘a grant of funds or property from a government, ... to a private person or company to assist in the establishment or support of an enterprise deemed advantageous to the public.’ ”) (quoting Webster’s New International Dictionary). The various definitions illustrate the ambiguity created by the word “subsidy” in section 20(9). The use of the word “subsidy” creates a difficult issue in resolving the limitations imposed by section 20(9). The determination of the application of section 20(9) centers on the state-county relationship.

A government cannot subsidize itself. “A county is not an independent governmental entity existing by reason of any inherent sovereign authority of its residents; rather, it is a political subdivision of the state, existing only for the convenient administration of the state government, created to carry out the will of the state.” Board of County Comm’rs v. Love, 172 Colo. 121, 125, 470 P.2d 861, 862 (1970); see also Pennobscot, Inc. v. Board of County Comm’rs, 642 P.2d 915, 918 (Colo.1982) (“A county is a political subdivision of the state and, as such, possesses only those powers expressly granted by the constitution or delegated to it by statute.”). As a political subdivision of the state, a county is part of the state government. When a county attempts to subsidize the state, the state, through a county, contributes to itself. The Board’s subsidy argument is not a legal possibility. One division of government may not subsidize another division.

Ill

The Human Services Code specifically states that public assistance and social services activities are “state as well as county purposes.” § 26-1-111(1), 11B C.R.S. (1994 Supp.). Counties “benefit when the indigent or disabled residents of their communities receive assistance for basic subsistence needs....” Colorado Dep’t of Social Servs. v. Board of County Comm’rs, 697 P.2d 1, 13 (Colo.1985). The locally raised funds are disbursed throughout the county. Id. at 11. A county directly benefits from social services programs, and these activities serve the purposes of state and local government. Id. at 13. The individual benefits received by each county correspond to the different costs of providing social services programs. See id. at 10 n. 13. The different costs for social services in each county evidence the various and different needs of the districts and emphasize the local purposes served by the programs. By upholding different tax rates for each county to effect a fair share of the burden, the local character of social services was established.⁶ See Colorado Dep’t of Social Servs. v. Board of County Comm’rs, 697 P.2d 1, 23 (Colo.1985). We recognize that Colorado Department of Social Sewices was decided before the adoption of Amendment 1. However, Amendment 1 did not change the mixed state and local character of social services. To hold otherwise would require overruling Colorado Department of Social Services and subject the entire social services funding scheme to constitutional attack. We decline to do so.

Under our holding in Colorado Department of Social Sewices, the Colorado Constitution allows a county to tax for local purposes where the state may not, but the county’s power to tax must be delegated to it expressly by the state. Therefore, because a county has no power to tax except as authorized by the state, a county is an agent of the state and has no capacity to subsidize the state.

Because we hold that the county’s social services payments do not constitute a subsidy within the meaning of section 20(9), we decline to address the other issues raised on certiorari. Accordingly, we reverse the trial court’s summary judgment for the respondents and remand to the district court with directions to grant the petitioners’ cross-motion for summary judgment.

ROVIRA, C.J., dissents, and LOHR, J., joins in the dissent. VOLLACK and SCOTT, JJ., do not participate.

Footnotes

1

. Certiorari was granted to review three issues. The first and second issues were raised by the petitioners. The third issue was raised by the respondents and cross-petitioners, the Board of County Commissioners and Gene Brantner.

1. Whether the county’s twenty percent share of the cost of some social services programs is a subsidy within the meaning of article X, section 20(9), of the Colorado Constitution.

2. Whether the general assembly has delegated social services to the county within the meaning of article X, section 20(9), of the Colorado Constitution.

3. Whether the provision allowing successful plaintiffs to recover their attorney fees is mandatory or permissive upon the trial court, and if permissive what standards should the district court have applied in evaluating plaintiffs’ motion.

2

. C.A.R. 50(a) provides:

A writ of certiorari from the Supreme Court to review a case newly filed or pending in the court of appeals, before judgment is given in said court, may be granted upon a showing:

(1) That the case involves a matter of substance not heretofore determined by the Supreme Court of Colorado, or that the case if decided according to the relief sought on appeal involves the overruling of a previous decision of the Supreme Court; or

(2) That the Court of Appeals is being asked to decide an important state question which has not been, but should be, determined by the Supreme Court; or

(3) That the case is of such imperative public importance as to justify the deviation from normal appellate processes and to require immediate determination in the Supreme Court.

3

.§§ 26-1-101 to 26-18-106, 11B C.R.S. (1989 & 1994 Supp.).

4

. This percentage ratio is subject to a number of exceptions and limitations. See, e.g., §§ 26-1-122(4)(e), -126, 11B C.R.S. (1989 & 1994 Supp.).

5

. The Board confirmed its position on January 4, 1993.

6

. If the provision of social services were of exclusive statewide concern, the ability of a county to end its financial contribution to the state social services program under Amendment 1 would conflict with the prohibition of the release or discharge of counties from their “proportionate share of taxes to be levied for state purposes” under article X, section 7. Colo. Const, art. X, § 7. See, Submission of Interrogatories on Senate Bill 93-74, 852 P.2d 1, 8 (Colo.1993) (“The test for the existence of a conflict is: Does one authorize what the other forbids or forbid what the other authorizes?”) (citation omitted). An "interpretation which harmonizes different constitutional provisions is favored over one that would create a conflict between them.” Colorado Common Cause v. Bledsoe, 810 P.2d 201, 207 (Colo.1991). Recognizing the mixed state and local interest in the provision of social services is consistent with our prior decisions and avoids direct conflict between Amendment 1 and section 7.