In re INTERROGATORIES RELATING TO THE GREAT OUTDOORS COLORADO TRUST FUND
No. 95SA392
Supreme Court of Colorado, En Banc.
March 25, 1996.
913 P.2d 533
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Merrill Shields, Deputy Attorney General, Richard Djokic, First Assistant Attorney General, Stephen G. Smith, Assistant Attorney General, Regulatory Law Section, Denver, for State of Colorado.
Douglas G. Brown, Rebecca C. Lennahan, John Roman Taylor, Denver, for Colorado General Assembly.
Sherman & Howard, L.L.C., Dee P. Wisor, Edmond F. Noel, Jr., Denver, for Great Outdoors Colorado Trust Fund.
David L. Harrison, Boulder, Pro Se.
Justice KOURLIS delivered the Opinion of the Court.
This matter comes before us pursuant to
Interrogatory No. One:
Whether payments made pursuant to
Colo.Rev.Stat. § 33-60-103(1)(c) (1993), and to a 1992 refunding of certain obligations of the state enumerated therein, which exceed the payments on obligations described inArticle XXVII, Section (3)(1)(c), of the Colorado Constitution (“Amendment 8“) originally due through November 30, 1998, are payable from the net proceeds of the Colorado lottery without violating Amendment 8.Interrogatory No. Two:
Whether savings from the 1992 Refunding of certain obligations described in Amendment 8 can accrue to the benefit of the Capital Development Fund, instead of the Great Outdoors Colorado Trust Fund established by Amendment 8, without violating Amendment 8.1
Interrogatory No. Three:
Whether the last installment payment made under the contract between the State of Colorado and the City and County of Denver concerning the Colorado Convention Center, which was orig
inally scheduled for July 1, 1993 and was postponed to September 1, 1993 pursuant to Colo.Rev.Stat. § 33-60-103(1)(b) (1993), violates Amendment 8.
We answer the first two interrogatories in the affirmative and uphold the constitutionality of
I.
In 1980, the voters of the State of Colorado adopted an amendment to
In 1988, in the wake of significant increases in demand for prison beds, the General Assembly amended the lottery statutes to permit the game of lotto, and altered the funding formula to direct a portion of lottery proceeds to the construction of three named correctional facilities, as well as “such other correctional facilities as shall be designated by the general assembly.”
In November of 1992, the voters adopted the Great Outdoors Colorado Amendment (Amendment 8), which provides that net lottery proceeds, including those from lotto, can only be used for the “preservation, protection, enhancement and management of the state‘s wildlife, park, river, trail and open space heritage....”
However, Amendment 8 also recognized that certain lottery proceeds had already been dedicated to capital construction projects and that those commitments should be honored. The text of the Amendment therefore permits for payment of identified obligations, providing that the payments are to be made within the “window” period of September 1, 1993, through November 30, 1998.
Prior to passage of Amendment 8, the state had financed various lottery-related capital construction projects through the issuance of certificates of participation (COPs). COPs were sold to investors and proceeds were used to pay the construction costs of the projects. The state then entered into lease-purchase agreements with the COP holders, who held title to the projects, and paid rent for the use of the properties. This rent money was ultimately used to pay principal and interest on the COPs, which would eventually result in the state holding title to the properties when the debt payments were completed.
In October of 1992, prior to the November adoption of Amendment 8, the Capital Finance Corporation2 refinanced a number of the COPs because of a reduction in interest
In 1993, the General Assembly enacted
The interrogatories posed to us by the Governor raise three issues, the first two of which are interrelated. Issue one requests a determination as to whether Amendment 8 permits payments made pursuant to the 1992 refunding as contemplated by the statute. Issue two inquires about the appropriate disposition of the savings resulting from the 1992 refunding. Issue three addresses the last payment made on the Colorado Convention Center and whether it was untimely under Amendment 8.
II.
There is no dispute among the various parties that the obligations that were subject to the refunding are, in part, the same obligations as those enumerated in section 3(1)(c) of Amendment 8. Therefore, we are not dealing with whether the purpose of the payments was proper, but instead with whether the amount of the payments made from lottery proceeds toward the refunded debt under
The applicable language of Amendment 8 provides that the state treasurer shall distribute net lottery proceeds:
(II) to the State‘s Capital Construction Fund for payment of debt service due from and including September 1, 1993, to and including November 30, 1998, on the obligations described in Subsection (1)(c) of this Section 3, but only to the extent such debt service is due during such period according to the terms of the documents originating such obligations, and only if such debt service has not been prepaid or other moneys have not been dedicated or set aside for such debt service payments as of January 1, 1992, or thereafter; provided, however, that such obligations may be refunded and debt service from and including September 1, 1993, or the date of such refunding, if later, on any such refunding obligation shall be payable from Net Proceeds, even if payable after November 30, 1998, to the extent the debt service on such refunding obligation does not exceed the total amount of debt service payable on the applicable refunded obligation from and including September 1, 1993, or from the date of such refunding, if later, to and including November 30, 1998, according to the terms of the documents originating the applicable refunded obligation ....
In a parallel manner, the language of
The people intend that debt service on the following obligations shall continue to be payable from Lottery Program Net Proceeds to the extent allowed in Section 3(1)(a) above:
(A) State of Colorado Certificates of Deposit (1979); Wheat Ridge, Colorado Project, in the original principal amount of $6,895,000 (Issue A); Pueblo, Colorado Project, in the original
principal amount of $5,320,000 (Issue B); Grand Junction, Colorado Project in the original principal amount of $4,735,000 (Issue C); (B) Original principal amount of $36,495,000 Colorado Health Facilities Authority Certificates of Deposit (1986) (Youth Services, Developmental Disabilities Projects);
(C) Original principal amount of $36,000,000 Colorado Convention Center Contract with the City and County of Denver (1987);
(D) Original principal amount of $63,025,000 State of Colorado Certificates of Deposit (1988) Master Lease Purchase Agreement (Correctional Facilities Project);
(E) Original principal amount of $66,894,861.85 State of Colorado Certificates of Deposit (1989) Master Lease Purchase Agreement (Various Projects); and
(F) Original principal amount of $28,635,000 State of Colorado Certificates of Deposit (1990) Master Lease Purchase Agreement (Additional Projects).
(4) Pursuant to Amendment XXVII of the state constitution, the sum of all distributions of net lottery proceeds made to the capital construction fund from the fourth quarter of fiscal year 1992-93 through the fourth quarter of fiscal year 1997-98 shall include payment in full of all debt service due from and including September 1, 1993, to and including November 30, 1998, on all obligations set forth in section 3(1)(c) of article XXVII of the state constitution.
The Great Outdoors Colorado Trust Fund and the Attorney General of the state of Colorado argue that payments pursuant to the 1992 refunding mandated by section 33-60-103(4) are unconstitutional to the extent they exceed the obligations which were extant during the “window” as of January 1, 1992. The Colorado General Assembly responds by asserting that the statute represents a reasonable resolution of ambiguities in the amendment and should be upheld. For the reasons set forth below, we adopt the position asserted by the Colorado General Assembly.
A.
As an initial matter, we note that a court‘s duty in interpreting a constitutional amendment is to give effect to the will of the people adopting such amendment. In re Interrogatories Propounded by Senate Concerning House Bill 1078, 189 Colo. 1, 7, 536 P.2d 308, 313 (1975). When the language of an amendment is plain, its meaning clear, and no absurdity involved, constitutional provisions must be declared and enforced as written. Colorado Ass‘n of Public Employees v. Lamm, 677 P.2d 1350, 1353 (Colo. 1984).
However, where ambiguities exist, a court should favor a construction that harmonizes different constitutional provisions rather than creates conflict. Bolt v. Arapahoe County Sch. Dist. No. Six, 898 P.2d 525, 532 (Colo. 1995). Where possible, courts should adopt a construction of a constitutional provision in keeping with that given by coordinate branches of government. Watrous v. Golden Chamber of Commerce, 121 Colo. 521, 546, 218 P.2d 498, 510 (1950).
We find the language of Amendment 8 to be ambiguous in several significant respects. The most troublesome is the lack of clear meaning of the key phrases “documents originating the obligations” and “documents originating the applicable refunded obligation.” These phrases are used in section 3(1)(a)(II) of Amendment 8 to define the amount payable on a debt during the “window” and thus are integral to a determination of whether the higher payments required by the 1992 refunding are constitutional.
One interpretation of these phrases is by reference to the documents creating the original debts. Under such a reading, section 3(1)(a) would be internally inconsistent with section 3(1)(c)(I), which lists specific obligations that had already been refunded years before Amendment 8 had been written. Also, this interpretation would provide no basis to distinguish the 1992 refunding from any refunding that had occurred five or ten years prior to the Amendment. In addition, the retroactive impact of the Amendment would be pervasive in vitiating all refundings. Such a reading also could not be harmonized
Another interpretation of these phrases relies on the phrase in Amendment 8 which states: “Except to the extent allowed in Section 3(1)(a) above for refunding obligations, debt service on obligations originated on or after January 1, 1992, shall not be payable from Net Proceeds.”
In enacting legislation, the General Assembly is authorized to resolve ambiguities in constitutional amendments in a manner consistent with the terms and underlying purposes of the constitutional provisions. See Submission of Interrogatories on Senate Bill 93-74, 852 P.2d 1, 11 (Colo. 1993). By enacting
B.
In addition to being a reasonable and permissible interpretation of Amendment 8,
Retroactive application of laws is highly disfavored; unless the terms of the amendment clearly show an intent to make it retrospective in operation, it is presumed that a constitutional amendment will be given only prospective application. Bolt v. Arapahoe County Sch. Dist. No. Six, 898 P.2d 525, 533 (Colo. 1995); People v. Elliott, 186 Colo. 65, 68, 525 P.2d 457, 458 (1974). In Bolt, this court examined
A court‘s interpretation of a constitutional amendment is constrained by consideration of the state of things existing at the time the provision was framed and adopted. Krutka v. Spinuzzi, 153 Colo. 115, 124, 384 P.2d 928, 933 (1963). The altered status of the obligations listed in section 3(1)(c)(I) as of the Amendment‘s adoption in November 1992 argues strongly against applying the interpretation advocated by the Attorney General and the Great Outdoors Colorado Trust Fund.
Finally, statutes enacted by the General Assembly are presumed to be constitutional and are therefore entitled to deference by the courts. See Submission of Interrogatories on Senate Bill 93-74, 852 P.2d at 5 n. 4; see also Firelock, Inc. v. District Court, 776 P.2d 1090, 1097 (Colo. 1989). The party challenging the constitutionality of an act bears the burden of proving its unconstitutionality beyond a reasonable doubt. Id.; People v. Riley, 708 P.2d 1359, 1362 (Colo. 1985); People v. Schoondermark, 699 P.2d 411, 415 (Colo. 1985).
While the Attorney General and the Great Outdoors Colorado Trust Fund set forth some reasonable arguments, they fail to meet their burden of proving the unconstitutionality of the statutory interpretation of Amendment 8 in
Thus, we conclude that payments made pursuant to
III.
The second interrogatory concerns whether the savings achieved by the state in the 1992 refunding appropriately go to the Great Outdoors Colorado Trust Fund or whether they may accrue to the benefit of the capital construction fund. To address this question we must understand the nature of the savings which this interrogatory contemplates.
By virtue of our answer to interrogatory number one, we ratify the legislative interpretation of the Amendment whereby payments will continue to be made on the 1992 refunded obligations. Therefore, the second interrogatory addresses the money that will ultimately be saved through the 1992 refunding of the obligations listed in section 3(1)(c)(I). The ultimate savings occur in the form of shorter debt service obligation periods.
The 1992 refunding accomplished two goals: 1) it reduced the interest rate on various debts; and 2) it accelerated the payment of principal. The net effect was that the payments due during the “window” period are greater than they were preceding the refunding, but the total amount of principal and interest payments spread over the life of the obligations is lower. The savings in this case will therefore exist in the form of monies that will no longer be required to be paid out as a result of an overall decrease in debt payments.
The Amendment is silent on the issue of any savings achieved by a refunding of obligations. The statute is similarly silent. The Great Outdoors Colorado Trust Fund and the Attorney General argue that, if payments are to be made on the refunded obligations at all, the Trust Fund should be the beneficiary
The gravamen of this question turns on whether the monies that, as a result of the 1992 refunding, are no longer required to be paid out were originally to be paid from lottery proceeds or from general taxpayer dollars. Under the terms of Amendment 8, any unspent lottery proceeds must go to the Trust Fund.7
But if the money no longer required to be spent on the capital construction debts was not originally to be paid from lottery proceeds, then there is no reason for the benefit to apply to the Trust Fund. To do so would, in effect, necessitate a transfer of money from the capital construction fund, or general fund, to the Trust Fund.8 There is no basis for such action since there is no language in the amendment or the statute that directs ultimate savings accomplished by refunding of debts to be paid from either the capital construction fund or the general fund to the Trust Fund. Thus, any unspent taxpayer dollars or money from the general fund may appropriately accrue to the capital construction fund.
Our analysis shows that the 1992 refunding will not result in any lottery proceeds set aside for the capital construction debts remaining unspent. Amendment 8 provides a formula from which to determine the highest total amount of lottery proceeds allowed to be applied toward capital construction debts during the window. It does not set aside a specific dollar amount to be paid on the obligations. Under the payment schedule outlined by
Therefore, we answer interrogatory number two by concluding that savings resulting from the 1992 refunding of certain obligations of the state described in
IV.
We turn lastly to the issue concerning the propriety of the Colorado Convention Center payment. The debt on the Colorado Conven
Two rules of statutory construction direct the answer to this interrogatory. First, in interpreting the language of a constitutional amendment, courts should give effect to the intent of the people who adopted the provision. Urbish v. Lamm, 761 P.2d 756, 760 (Colo. 1988). Second, in construing constitutional language, each clause and sentence must be presumed to have purpose and use. Reale v. Board of Real Estate Appraisers, 880 P.2d 1205, 1208 (Colo. 1994).
In reading Amendment 8, debt due on the Colorado Convention Center Contract is clearly listed as one of the six capital construction obligations to which lottery proceeds will be directed. See supra p. 537-38 n. 5. The payment schedule on the Convention Center Contract is not included in the text of the Amendment. Thus, it is likely that voters were unaware that the final payment on the Convention Center Contract was due before September 1, 1993, and that as a result, technically none of the Convention Center debt fell within the acceptable “window.” Instead, the text of Amendment 8 would lead a reasonable reader to believe that some lottery proceeds would be going towards the Convention Center debt.
To interpret Amendment 8 differently and exclude any payments to the Convention Center would render section 3(1)(c)(I)(C) meaningless. Courts must lean in favor of a construction that will render every word operative, rather than one that may make some words idle and nugatory. Lamborn v. Bell, 18 Colo. 346, 352, 32 P. 989, 991 (1893); see also City of Aurora v. Acosta, 892 P.2d 264, 267 (Colo. 1995).
Hence, since technical construction should not be applied so as to defeat the objectives sought to be accomplished by the voters, see Cooper Motors, Inc. v. Board of County Comm‘rs, 131 Colo. 78, 83, 279 P.2d 685, 688 (1955), we hold constitutional the General Assembly‘s action in delaying the final payment on the Convention Center Contract so that it would fall within the window delineated by Amendment 8.
V.
On the basis of the conclusions set out in this opinion, we respond to the Interrogatories submitted to us as follows:
Interrogatory No. One:
Yes, payment of the 1992 refunded obligations pursuant to
Interrogatory No. Two:
Yes, savings generated by reason of the 1992 refunding can accrue to the Capital Development Fund.
Interrogatory No. Three:
No, the last installment payment on the Colorado Convention Center did not violate Amendment 8.
LOHR, J., concurs in part and dissents in part, and SCOTT, J., joins in the concurrence and dissent.
Justice LOHR concurring in part and dissenting in part:
The resolution of the interrogatories submitted to this court by the governor requires the interpretation of the allocation provisions of Amendment 8, now
I disagree with the majority‘s finding of ambiguity. I read the provisions of Amend
Interrogatory No. Two relates to the use of savings from the refunding of certain obligations described in Amendment 8. The plain language of Amendment 8 does not require the allocation of all refunding savings to wildlife, park, river, trail, and open space purposes. Accordingly, although our reasons for reaching this conclusion differ, I concur in the majority‘s determination that Interrogatory No. Two should be answered in the affirmative.
I therefore concur as to the majority‘s resolution of Interrogatory No. Two and dissent as to the majority‘s resolution of Interrogatories Nos. One and Three.
I.
A brief review of the history of the Great Outdoors Colorado Amendment (Amendment 8), now codified at
Colorado voters authorized the establishment of a state-supervised lottery program in 1980 by approving an amendment to article XVIII, section 2, of the Colorado Constitution. This amendment dedicated the net lottery proceeds to the state conservation trust fund “for distribution to municipalities and counties for park, recreation, and open space purposes,” unless otherwise provided by statute.
In 1988, the General Assembly made two significant changes to the lottery system. First, the General Assembly amended the lottery statutes to allow the game of lotto. Second, the General Assembly altered the funding formula to direct a portion of lottery proceeds to the construction of state correctional facilities. Ch. 178, sec. 3,
Based on concerns that the state‘s park, recreation, and open space resources were underfunded and that the people‘s original intent to dedicate the lottery proceeds to those purposes was not being followed, a group of Colorado citizens drafted Amendment 8 and secured its placement on the 1992 ballot. See Submission of Interrogatories on Senate Bill 93-74, 852 P.2d 1, 8 (Colo. 1993) (“With specific exceptions, Amendment 8... dedicates the net proceeds of the state-supervised lottery to specific purposes because of the perception that the General Assembly had diverted net lottery proceeds away from the original purposes of the lottery to capital construction.“) (citing Legislative Council of the Colorado General Assembly, An Analysis of 1992 Ballot Proposals 41 (1992)). Amendment 8 was adopted by the voters in November of 1992 and became
Amendment 8, however, did not provide for the immediate transfer of all lottery proceeds to wildlife, park, river, trail, and open space purposes. In recognition of the state‘s existing practice of paying certain capital construction obligations from lottery proceeds, the amendment established a five-year “window,” from September 1, 1993, through and including November 30, 1998, during which the state could continue to pay certain identified obligations from lottery monies, subject to additional restrictions set forth in the amendment. This allocation format allowed the state time to find alternate funding sources for these obligations but strictly limited the ability of the state to divert additional lottery proceeds away from wildlife, park, river, trail, and open space purposes. See Submission on Senate Bill 93-74, 852 P.2d at 4 (intent of Amendment 8 was to “ensure that [lottery proceeds] will be returned to parks and outdoor recreation as ... originally intended’ “) (quoting Analysis of 1992 Ballot Proposals, supra, at 41).
The capital construction obligations potentially eligible for repayment from lottery proceeds under Amendment 8 were originally financed through issuance of certificates of participation (COPs).1 In October of 1992,
following the drafting and publication of Amendment 8 but one month prior to its adoption, the state completed a refunding of several of these COPs (the 1992 refunding). This refunding accomplished both a reduction in interest rates on the obligations and an acceleration of certain future principal payments that were to become due after the closing of the “window” so that these payments would become due during the “window” period and could be repaid from lottery proceeds. For the purposes of the issues before us, the relevant result of the 1992 refunding was a $6,597,477.00 increase in the amount of debt service payable with lottery proceeds, from $163,323,746.14 prior to the refunding to $169,921,223.14 pursuant to the terms of the refunding.2
In 1993, the General Assembly enacted
II.
The first interrogatory requires the interpretation of the allocation provisions of Amendment 8 to determine whether they prohibit the use of lottery proceeds as authorized in
A.
Section 3 of article XXVII of the Colorado Constitution governs the allocation of all state lottery proceeds, net of prizes and various other operating expenses.4 Through the fourth quarter of the 1997-98 fiscal year, section 3 provides that each of the following entities receives a portion of these lottery proceeds: the Conservation Trust Fund (pursuant to
Section 3(1)(a)(II) of Amendment 8 specifically defines and limits the amount of lottery proceeds available for the repayment of debt service due on state capital construction obligations. In pertinent part, this provision states that net proceeds are allotted
to the State‘s Capital Construction Fund for payment of debt service due from and including September 1, 1993, to and including November 30, 1998, on the obligations described in Subsection (1)(c) of this Section 3, but only to the extent such debt service is due during such period according to the terms of the documents originating such obligations ...; provided, however, that such obligations may be refunded and debt service from and including September 1, 1993, or the date of such refunding, if later, on any such refunding obligation shall be payable from Net Proceeds, even if payable after November 30, 1998, to the extent the debt service on such refunding obligation does not exceed the total amount of debt service payable on the applicable refunded obligation from and including September 1, 1993, or from the date of such refunding, if later, to and including November 30, 1998, according to
This provision provides a clear and unambiguous statement of the rules governing the allocation of lottery proceeds to debt service on capital construction projects. The first portion of the above provision5 controls the application of lottery proceeds to capital construction obligations in the absence of any refunding of the obligations. The obligations potentially eligible for payment with lottery proceeds are limited to six obligations existing prior to the drafting of Amendment 8 and specifically identified in section 3(1)(c)(I).6 Moreover, the provision allows payment of debt service on these obligations from lottery proceeds only to the extent that these payments are due within a five-year “window,” from and including September 1, 1993, to and including November 30, 1998.
This plain reading of Amendment 8 is consistent with both the policy underlying the amendment and the legal principles relating to the refunding process. Amendment 8 was intended to direct the bulk of lottery proceeds to preserve the state‘s wildlife, park, river, trail and open space heritage. The amendment makes concessions for the payment of certain preexisting capital construction obligations from lottery proceeds, but payments may be made only on those obligations specifically identified in section 3(1)(c)(I). The amendment references the originating documents to define this limited group of potentially eligible obligations and to ensure that these obligations could not be expanded at the expense of open space programs. Furthermore, as the majority recognizes, a refunded debt is a new obligation, created at the time of the refunding, that replaces the original debt. Maj. op. at 539 (citing 64 Am.Jur.2d, Public Securities and Obligations § 261 (1972)). Accordingly, obligations created by refunding have their own sets of originating documents, and the above reading creates no inconsistency relating to the presence of both refunding and nonrefunded obligations in section 3(1)(c)(I). Although the majority posits several inventive interpretations of the reference to “originating documents,” maj. op. at 539, its inexplicable failure to discuss the above facial interpretation, despite its presence in the briefs of both the General Assembly and the GOCO Board, suggests a search for ambiguity where none exists. Cf. Colorado State Civil Serv. Employees Ass‘n. v. Love, 167 Colo. 436, 445, 448 P.2d 624, 627 (1968) (where words and phrases have a plain and ordinary meaning, court should not resort to forced and strained definitions). I would apply the plain meaning of these provisions. See Dempsey v. Romer, 825 P.2d 44, 51 (Colo. 1992) (“[I]f language of a constitutional provision conveys a clear and definite meaning involving no absurdity or internal contradiction, any construction of such language must give full effect to that meaning.“) (citations omitted).
The second portion of section 3(1)(a)(II)7 permits the refunding of the obligations listed in section 3(1)(c)(I), but only subject to specific restrictions. These obligations may be refunded, and new obligations payable from lottery proceeds created, with the following exception: debt service payable from lottery proceeds under the obligation created by refunding cannot exceed the amount of debt service that would have been payable during the “window” period, or the part of that period remaining on the date of the refunding, according to the terms of the documents originating the applicable refunded obligation.
The majority expresses concern that the provisions of Amendment 8, regardless of how they are read, provide no guidance concerning a refunding, such as the 1992 refunding, completed between the drafting of Amendment 8 and its adoption by the voters. See maj. op. at 538-39. This concern is misplaced, however, for the amendment‘s plain language encompasses such interim refundings, and the refunding restrictions in section 3(1)(a)(II) are applicable to the 1992 refunding. Amendment 8 provides for re
Because the 1992 refunding obligations were not drafted into the amendment as obligations directly payable from lottery proceeds, they cannot qualify for repayment under Amendment 8 except to the extent that they meet the restrictions on refundings of the listed obligations. Thus, notwithstanding the timing of the 1992 refunding, the refunding obligations it created are not payable from lottery proceeds under Amendment 8 unless they were created in compliance with the refunding restrictions in section 3(1)(a), including the cap on total debt service payable from lottery proceeds. The language of section 3(1)(c)(II), which states that “[e]xcept to the extent allowed in Section 3(1)(a) above for refunding obligations, debt service on obligations originated on or after January 1, 1992, shall not be payable from Net Proceeds,”
B.
Having discerned the plain and unambiguous meaning of the allocation provisions of Amendment 8, the next analytical step requires application of these provisions to determine the validity of the 1992 refunding and the repayment provisions of
The state finalized the transaction described as the 1992 refunding in October of 1992, approximately one month prior to the November 1992 adoption of Amendment 8 by the voters. This refinancing altered two elements of the affected obligations. First, the state secured a reduced interest rate on the refinanced obligations. Second, the state accelerated payment of portions of the principal on these obligations into the “window” period identified in the then-pending Amendment 8. Consequently, following the 1992 refunding, certain principal amounts previously due after November 30, 1998, were rescheduled for payment as debt service prior to that date. Although the constitutionality of this action is at issue today, the immediate result of this acceleration was to increase the amount of debt service due during the “window,” with a corresponding increase in the amount of debt service payable from lottery proceeds and decrease in the lottery proceeds allocated to the GOCO Fund. Specifically, the Attorney General calculated the amount of debt service due before the 1992 refunding to be $163,323,746.14. Subsequent to the 1992 refunding, the amount of debt service due during the “window” rose to $169,921,223.14, an increase in debt service payable from lottery proceeds of $6,597,477.00.
In 1993, following the passage of Amendment 8, the General Assembly enacted
As discussed in part II(A), supra, section 3(1)(a)(II) of Amendment 8 places a specific limitation on the state‘s ability to refund the obligations payable with lottery proceeds under the amendment. Debt service on refunding obligations is payable from net lottery proceeds during the “window,” but only to the extent that it does not exceed the debt service payable on the refunded obligations during that same time period.
III.
The governor‘s second interrogatory concerns the allocation of monies saved by virtue of the 1992 refunding.8 For reasons I will briefly explain below, any savings attributable to the 1992 refunding occur outside of the “window,” and thus are not allocable to the GOCO Fund. Therefore, though our analyses differ slightly, I concur in the majority‘s determination that any savings from the 1992 refunding may accrue to the Capital Construction Fund and that Interrogatory No. Two should be answered in the negative. Maj. op. at 541.
To answer the second interrogatory, I must first address the validity of the portion of the 1992 refunding that shifted principal payments that were to become due after the closing of the “window” so that they would become due during the “window” period, and provided for payment of these principal obli
The preceding interpretation logically requires the conclusion that the 1992 refunding produced no savings of lottery proceeds. Amendment 8 sets a cap on the total amount of debt service payable from lottery proceeds. However, the amendment does not limit the state‘s ability to restructure the portions of this eligible debt service attributable to principal and interest, respectively, provided the total debt service does not exceed the cap amount. Thus, the state‘s acceleration of future principal payments in the 1992 refunding and the use of lottery proceeds to make such payments is consistent with Amendment 8 so long as the total debt service payments from lottery proceeds during the “window” do not exceed the debt service cap. As a logical corollary, invalidation of payments of lottery proceeds in excess of the debt service cap during the “window” does not prevent the expenditure of the full amount of lottery proceeds available under the debt service cap.
In accord with this interpretation, the 1992 refunding merely resulted in the allocation of the same amount of lottery proceeds to the repayment of capital construction obligations as would have been allocated in the absence of the refunding. The only savings attributable to this refunding are in the form of shorter debt service obligation periods—i.e., the reduction in total payments that will have to be made to satisfy an obligation, with the concomitant reductions in total interest to be paid and the time necessary to satisfy the obligation. These savings will be realized after the “window” has closed. The state was not required to reduce debt service equally both within and outside of the “window” period. Therefore, any savings accruing as a result of the 1992 refunding are not savings of lottery proceeds and need not be returned to the GOCO Fund. Accordingly, I concur in the majority‘s determination that these savings may accrue to the benefit of the Capital Construction Fund.
IV.
The third interrogatory concerns the constitutionality of the General Assembly‘s decision to delay the $6,000,000 final payment on the Colorado Convention Center obligation to allow it to be paid from lottery proceeds.9 The majority upholds the General Assembly‘s action, finding the relevant provisions of Amendment 8 ambiguous and attributing to the people of Colorado an intent that this obligation was to be paid from lottery proceeds. I discover no such ambiguity in the amendment and follow the rule that the plain language of a constitutional provision is the best measure of the voters’ intent. People ex rel. Carlson, Governor v. City Council of Denver, 60 Colo. 370, 377, 153 P. 690, 692 (1915) (“[W]hen [the] language [of a constitutional provision] is explicit, the courts are bound to seek for the intention in the words of the provision itself, and they are not to suppose or hold that the people intended anything different from what the meaning of the language employed imports.“); see also In re Proposed Initiative on Water Rights, 877 P.2d 321, 327 (Colo. 1994) (“[W]hen courts construe a constitutional amendment that has been passed through a ballot initiative, any intent of the proponents not adequately expressed in the language of the measure will not govern that construction.“). Furthermore, even if the delayed payment were permissible, it must be accounted for within the cap on total debt service, and available lottery proceeds for future repayments of capital construction obligations would necessarily decrease by $6,000,000. Accordingly, I respectfully dissent and would answer Interrogatory No. Three in the affirmative.
A.
The state participated in the construction of the Colorado Convention Center by agreeing to contribute $36,000,000 over a period of years. Under the documents governing the terms of the contribution, a contract between the state and the City and County of Denver and
Subject to the explicit restrictions within Amendment 8, section 3(1)(c)(I) identifies a limited number of obligations potentially pay
Amendment 8 expressly limits payment from lottery proceeds on the listed obligations “to the extent allowed in Section 3(1)(a) above.”
This plain reading of Amendment 8 is further supported by section 3(1)(e), which states in pertinent part: “Debt service payable prior to September 1, 1993, according to the terms of the documents originating such obligations shall not be paid from Net Proceeds allocated pursuant to this Article.”
The language of Amendment 8 regarding the payment of the Convention Center obligation is clear and must be enforced as written. Bolt v. Arapahoe County Sch. Dist. Number Six, 898 P.2d 525, 532 (Colo. 1995); Dempsey, 825 P.2d at 51. The General Assembly may not enact a statute that flies in the face of the clear meaning of a constitutional provision. Colorado Ass‘n of Pub. Employees, 677 P.2d at 1353 (citing Mauff v. People, 52 Colo. 562, 123 P. 101 (1912)). Here, section 33-60-103(1)(b) constitutes a clear attempt to allow payment of the Convention Center obligation from lottery proceeds in contravention of the constitutional restrictions present in Amendment 8. Thus, I would hold that payment of the final Convention Center payment is not permissible under the terms of the amendment and that section 33-60-103(1)(b), 14 C.R.S. (1995), is therefore unconstitutional.11
However, even if the majority were correct in its determination that satisfaction of the final Convention Center payment from lottery proceeds was permitted under the provisions of Amendment 8, the General Assembly‘s action remains subject to the total debt service cap set forth in section 3(1)(a)(II). As discussed in part II, supra, Amendment 8 creates a cap on the total amount of debt service payable on capital construction obligations from lottery proceeds. This cap is calculated based on the debt service payable during the “window” according to the documents originating these obligations. As explained in the preceding paragraph, the contract with the City and County of Denver that originated the Convention Center obligation provided that no payments were due on that obligation during the “window.” Whether permissible or not, the General Assembly‘s enactment of section 33-60-103(1)(b) did not change the status of the Denver contract as the document originating the Convention Center obligation. Therefore, the debt service cap amount, calculated as $163,323,746.14 by the Attorney General, did not include the $6,000,000 final payment on the Convention Center obligation. Thus, if the state makes this $6,000,000 payment and also follows through with its intention, embodied in
V.
For the reasons set forth above, I concur in the majority‘s answer to the second interrogatory but respectfully dissent to its determinations with respect to the first and third interrogatories. Accordingly, I would respond to the submitted interrogatories as follows:
Interrogatory No. One:
No. Payment of the 1992 refunding obligations pursuant to
Interrogatory No. Two:
Yes. Savings generated by reason of the 1992 refunding can accrue to benefit of the Capital Development Fund.
Interrogatory No. Three:
Yes. Payment of the last installment payment on the Colorado Convention Center from lottery proceeds violated Amendment 8.
SCOTT, J., joins in this concurrence and dissent.
Notes
Whether payments made pursuant to
The people intend that debt service on the following obligations shall continue to be payable from Lottery Program Net Proceeds to the extent allowed in Section 3(1)(a) above:
(A) State of Colorado Certificates of Deposit (1979); Wheat Ridge, Colorado Project, in the original principal amount of $6,895,000 (Issue A); Pueblo, Colorado Project, in the original principal amount of $5,320,000 (Issue B); Grand Junction, Colorado Project in the original principal amount of $4,735,000 (Issue C);
(B) Original principal amount of $36,495,000 Colorado Health Facilities Authority Certificates of Deposit (1986) (Youth Services, Developmental Disabilities Projects);
(C) Original principal amount of $36,000,000 Colorado Convention Center Contract with the City and County of Denver (1987);
(D) Original principal amount of $63,025,000 State of Colorado Certificates of Deposit (1988) Master Lease Purchase Agreement (Correctional Facilities Project);
(E) Original principal amount of $66,894,861.85 State of Colorado Certificates of Deposit (1989) Master Lease Purchase Agreement (Various Projects); and
(F) Original principal amount of $28,635,000 State of Colorado Certificates of Deposit (1990) Master Lease Purchase Agreement (Additional Projects).
Whether savings from the 1992 refunding of certain obligations described in Amendment 8 can accrue to the benefit of the Capital Development Fund, instead of the Great Outdoors Colorado Trust Fund established by Amendment 8, without violating Amendment 8.
In accord with the majority, maj. op. at 535 n.1, I take the reference to the “Capital Development Fund” to refer to the Capital Construction Fund created inWhether the last installment payment made under the contract between the State of Colorado and the City and County of Denver concerning the Colorado Convention Center, which was originally scheduled for July 1, 1993 and was postponed to September 1, 1993 pursuant to