author: Justice KOURLIS

text:
    Concerning the Application for Water Rights of Groundwater Appropriators of the South Platte River Basin, Inc., FORT MORGAN RESERVOIR AND IRRIGATION COMPANY, Objector-Appellant v. GROUNDWATER APPROPRIATORS OF the SOUTH PLATTE RIVER BASIN, INC., Applicant-Appellee and Lower South Platte Water Conservancy District and Ferguson Family Trust, Objectors-Appellees Division Engineer, Water Division No. 1, Appellee Pursuant to C.A.R. 1(e).
    No. 03SA56.
    Supreme Court of Colorado, En Banc.
    Feb. 23, 2004.

      Timothy R. Buchanan, P.C., Timothy R. Buchanan, Karen M. Holmes, Arvada, Colorado, Attorneys for Objector-Appellant.
    Hill & Robbins, P.C., David W. Robbins, Dennis M. Montgomery, Avi S. Rocklin, Denver, Colorado, Attorneys for Applicant-Ap-pellee.
   Justice KOURLIS

delivered the Opinion of the Court.

I. INTRODUCTION

On June 30, 1998, Groundwater Appropriators of the South Platte River Basin, Inc. (GASP) filed an application in the District Court in and for Water Division No. 1 (the “water court”) pursuant to the Water Right Determination and Administration Act of 1969 (the “1969 Act”) for a conditional water storage right for the proposed Ovid Reservoir. Fort Morgan Reservoir and Irrigation Co. (“Fort Morgan”) filed a statement of opposition. Following a trial, the water court entered an order granting GASP a conditional water storage right in Ovid Reservoir. In addition, the water court ultimately granted GASP’s Motion for Award of Costs pursuant to C.R.C.P. 54(d)(“Rule 54(d)”). Fort Morgan appealed that portion of the water court order, asserting that the court inappropriately applied Rule 54(d) and abused its discretion in awarding GASP costs. Because there is no rule or statute explicitly or implicitly prohibiting such an award, and because the water court did not abuse its discretion under the facts of this case, we affirm the order granting GASP’s Motion for Award of Costs.

II. FACTS

GASP’s application for water storage right sought the conditional right to store 7,500 acre-feet of water in the proposed Ovid Reservoir in Sedgwick County, Colorado. On August 24, 1998, Fort Morgan filed a statement of opposition with the water court claiming that GASP’s application could adversely affect its vested water rights located in the South Platte River basin. The division engineer filed a Summary of Consultation on October 1, which identified various concerns that GASP would have to address before the Engineer could approve the application. On September 21, 1999, GASP certified its intent to protest an adverse ruling of the referee under section 37-92-303(2), 10 C.R.S. (2003), and accordingly moved to rere-fer the matter to the water judge. C.R.C.P. Rule 16 disclosure deadlines were then set, and the case moved toward trial. On September 21, 2000, the water court granted GASP’s motion for partial summary judgment, determining that GASP was not required to identify the specific well-depletions to be replaced with water stored in the reservoir. . The water court denied Fort Morgan’s and other Objectors’ cross-motions for summary judgment regarding GASP’s temporary substitute supply plan.

The water court conducted a trial on February 4-6, 2002, during which GASP presented evidence in support of its application for conditional water rights and Fort Morgan presented evidence and exhibits in opposition. Fort Morgan argued that GASP failed to prove by a preponderance of the evidence that GASP can and will put the water to beneficial use within a reasonable time. On May 7, 2002, the water court issued a written order addressing all of Fort Morgan’s legal arguments, resolving them in GASP’s favor, and granting GASP’s conditional application. On September 5, 2002, the water court entered the final decree which incorporated the findings and conclusions of its May 7, 2002, order and which granted a storage right of 5,772 acre-feet, conditional, with the right to fill and refill the reservoir whenever water is physically available in priority.

On September 20, 2002, GASP filed a Motion for Award of Costs for expert witness fees and- copying costs pursuant to C.R.C.P. Rules 54(d) and 121, section 1-22. Fort Morgan opposed the Motion, arguing that an award of costs to the applicant in a water court proceeding was inappropriate in all but the most egregious circumstances. The water court granted GASP’s motion, held a hearing and ultimately awarded GASP costs totaling $7,240.65, approximately $4,000 less than GASP originally sought.

Fundamentally, Fort Morgan opposed the entry of costs by the water court on the same basis as that which it asserts in this appeal: namely, that water court proceedings are not brought against another party, but rather are brought by an applicant seeking the adjudication of claims to a public resource. Op-posers appear in order to protect their own water rights and to hold the applicant to a strict standard of proof. Hence, Fort Morgan argued before the water court and argues here that water cases are not litigation in the sense of civil cases where one party has sued another, and should not therefore result in an imposition of costs against an opposer. The water court largely rejected Fort Morgan’s contentions and instead held that:

The court agrees with Fort Morgan’s arguments to a certain extent, but also concludes that there is a point where voluntary filing of an application for a water right becomes litigation. At this point, the costs expended by any party (Applicant or Opposers) are not necessarily incurred in the “routine course” of securing a water right or opposing an application. It is within the court’s discretion to award these litigation costs to the prevailing party under C.R.C.P. Rule 54(d), and Rule 121, § 1-22. See Rossmiller v. Romero, 625 P.2d 1029 (Colo.1981); and [Greenwald] v. Molloy, 114 Colo. 529, 166 P.2d 983 (Colo.1946).
The court concludes that an application for water rights becomes litigation at the point that it has moved from the Referee’s jurisdiction to the Water Court’s, and the matter has been set for trial. The court will consider requests for costs incurred from this point forward. Absent a showing of extraordinary circumstances, the court is not inclined to grant any costs incurred prior to this point.
In this matter, GASP was the prevailing party at the trial on the merits. Thus, GASP is entitled to an award of costs to the extent that its submitted claims are consistent with the above language and were reasonably incurred in preparation for trial in this case.

Fort Morgan appealed the water court’s ruling on the following points: (A) whether an applicant for water rights who obtains a decree granting conditional water rights should be considered a “prevailing party” pursuant to Rule 54(d) for the purpose of granting costs against an opposer in an application; and (B) whether the- water court’s decision to award costs to GASP against Fort Morgan pursuant to Rule 54(d) in this case was unreasonable, unfair, and arbitrary, or constituted an abuse of discretion.

III. ANALYSIS

A. The Parties’ Positions

Fort Morgan asserts that water right adjudication proceedings are inherently unique and should not be considered litigation under Rule 54(d), except in extraordinary circumstances. Specifically, Fort Morgan posits that it is difficult even to determine who the “prevailing party” is in water court proceedings, because an applicant may receive a decree for water rights — but for less than it claimed or with certain strict conditions that inure to the benefit of the opposer. Fort Morgan further contends that an award of costs against an opposer interferes with and chills the right to protect senior water rights. GASP, on the other hand, argues that when an opposer forces an applicant to a contested trial, and affirmatively presents evidence at that trial, the opposer is doing more than just protecting its own water right. Under those circumstances, GASP suggests that an award of costs under Rule 54(d) is appropriate.

B. Water Court Proceedings

Water court proceedings are unique in a number of ways, one of which involves the use of the referee. By operation of statute, when an application is filed, the water judge refers the matter to the water court referee. § 37-92-203(7), 10 C.R.S. (2003). The referee, without conducting a formal healing, is charged with investigating and becoming fully advised about the matters in the application and any statements of opposition. § 37-92-302(4), 10 C.R.S. (2003). The referee must consult with the appropriate division engineer or state engineer or both, and the engineer is to file a summary report of that consultation with the water court. Id.

Within sixty days from the last day on which statements of opposition may be filed, the referee files a ruling on the application unless he or she determines to rerefer it to the water judge at that point. § 37-92-303(1), 10 C.R.S. (2003). The ruling may disapprove or approve the application in whole or in part. Id.

Within twenty days after mailing of the ruling, any person may file in protest or support of the ruling. When a pleading is filed with respect to a referee’s proposed ruling, or when a case is rereferred to the water judge by the referee, the water court shall then conduct de novo proceedings. § 37-92-304(3), 10 C.R.S. (2003). When there is no protest to a referee ruling, the water judge shall confirm and approve the ruling, unless it is “contrary to law.” § 37-92-304(5).

Hence, water court cases are bifurcated. The first phase of the ease takes place before the referee, during which time the parties have an opportunity to become apprised of the facts, review the summary of consultation filed by the division or state engineer, and explore resolution. When there is no protest, or when the parties all agree with the referee’s ruling, the water judge is likely to approve that ruling and never conduct any de novo proceedings. When the matter is rere-ferred to the water court, or when the referee’s ruling is protested, the case moves into its second phase, which consists of discovery and trial.

C. Rule 54(d)

Rule 54(d) states in pertinent part: “Except when express provision therefor is made either in a statute of this state or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs.... ” Hence, in the absence of a statute or rule, “trial courts may exercise their discretion to award costs to a prevailing party.” Rossmiller v. Romero, 625 P.2d 1029, 1030 (Colo.1981); see also Bd. of County Comm’rs v. Crystal Creek Homeowners Ass’n, 891 P.2d 981, 983 (Colo.1995) (“In determining whether to award costs in a water rights case, a court is to be guided by C.R.C.P. 54(d)....”).

A note át the beginning of the Uniform Local Rules for All State Water Court Divisions (the Uniform Water Rules) provides that “[ejxcept as expressly provided in these rules, the Colorado Rules of Civil Procedure, including the state-wide practice standards set out in C.R.C.P. 121, shall apply to water court practice and procedure.” See also Groundwater Appropriators of the South Platte River Basin, Inc. v. City of Boulder, 73 P.3d 22, 24-25 (Colo.2003) (“As this court has previously recognized, the Uniform Local Rules For All State Water Court Divisions indicate their intent that the Colorado Rules of Civil Procedure apply to water court practice and procedure, ‘[ejxcept as expressly provided by these rules.’ ”) (quoting Am. Water Dev., Inc. v. City of Alamosa, 874 P.2d 352, 381 (Colo.1994))(alteration in original).

While the Uniform Water Rules do mention and limit specific provisions of the civil rules, Rule 54(d) gets no special attention indicating that it does not apply or should be applied only in limited circumstances. Similarly, there is no provision in the 1969 Act either permitting or prohibiting the award of costs to a “prevailing party” in water court proceedings.

C.R.C.P. 81(a)(“Rule 81(a)”) does provide in pertinent part that “[the Colorado Rules of Civil Procedure] do not govern procedure and practice in any special statutory proceeding insofar as they are inconsistent or in conflict with the procedure and practice provided by the applicable statute.” Water rights proceedings are indeed “special statutory proceedings” for purposes of Rule 81(a). However, we are not persuaded that the award of costs pursuant to Rule 54(d) is inconsistent or in conflict with any purpose or provision of the 1969 Act, such as to implicate the prohibition of Rule 81(a). The 1969 Act contemplates that an individual or entity may file for a water right, and that any person may file a statement of opposition setting forth facts “why the application should not be granted, why it should be granted only in part or on certain conditions.” § 37-92-302(l)(b). The statement of opposition places the applicant, the division engineer, and the water referee on notice of concerns regarding the granting of the water right. Those concerns are then taken into account in the phase of the process involving the summary of consultation and the issuance of a proposed ruling by the referee.

If the referee does not rerefer the matter to the water judge and does issue a ruling, it is then incumbent upon an opposer again to voice objection to that ruling. If no objection is filed, the water judge will most likely approve the ruling. Hence, the filing of an additional protest to a proposed ruling triggers the involvement of the applicant and the opposer in a contested proceeding before the water judge where, at the least, the opposer will hold the applicant to a strict burden of proof and may present affirmative evidence adverse to the applicant.

That process is not intrinsically inconsistent with the “prevailing party” concept inherent in Rule 54(d). By the time a water case gets to a de novo hearing before a water judge, it carries many of the indicia of contested civil litigation. The issues have been crystallized, and the parties have likely identified witnesses, perhaps expert witnesses, and exhibits that they intend to introduce at trial.

It may well be true that there are instances in which it would be difficult to identify a “prevailing party” at the conclusion of the trial because the applicant might obtain a water right, but something less than it sought. However, that possibility does not justify categorically removing from water courts the discretion to award costs. In order to “prevail” for purposes of Rule 54(d), a party must prevail on a significant issue in the litigation and achieve some of the benefits sought by the litigation. Crystal Creek, 891 P.2d at 984. “The issue on which the party prevails need not be the central issue in the litigation, only a significant one.” Id. Moreover, where “each of the parties can arguably be viewed as having prevailed in part, the award of costs in such a situation is committed to the sole discretion of the trial court.” Mackall v. Jalisco Int’l, Inc., 28 P.3d 975, 977 (Colo.App.2001).

At the point at which a water rights case ceases to be a dispute handled informally by a water referee, and becomes litigation involving pre-trial discovery, sworn live testimony, and expert witnesses, it rests within the sound discretion of the trial court to determine whether, at the trial’s conclusion, there is a prevailing party entitled to costs.

Since there is no statute or rule prohibiting the award of costs, and the unique nature of water right proceedings does not preclude the applicability of Rule 54(d), the award of costs necessarily rests in the sound discretion of the water court. Rossmiller, 625 P.2d at 1030.

D. The Facts of this Case

Finally, Fort Morgan maintains that even if Rule 54(d) applies in water rights proceedings, the water court abused its discretion here in awarding costs to GASP. Generally, we will not overturn an award of costs on appeal absent an abuse of discretion. See Rossmiller, 625 P.2d at 1030. Such abuse is manifest only when the trial court’s decision is “arbitrary, unreasonable, or unfair.” Hock v. New York Life Ins. Co., 876 P.2d 1242, 1251 (Colo.1994).

First, the water court determined that “an application for water rights becomes litigation at the point that it has moved from the Referee’s jurisdiction to the Water Court’s, and the matter has been set for trial. The court will consider requests for costs incurred from this point forward.” Given the mandate of the 1969 Act concerning the movement of a case from the referee to the water court, such a determination is not arbitrary or unreasonable. Once the case is before the water judge, it does change its character.

Second, the water court found that GASP was the “prevailing party” under Rule 54(d). Although the court did not recite that fact in its order, it is apparent in other portions of the record that Fort Morgan appeared at the trial and actively opposed GASP’s application by the presentation of evidence. As a matter of law and fact, the water court ruled against Fort Morgan’s position that GASP had failed to satisfy the “can and will” prong of the statute, and granted GASP’s application for the conditional storage right in full.

Given the circumstances of the case, we find no abuse of discretion in the water court's order.

IV.

Because there is no statute or rule prohibiting the award of costs pursuant to C.R.C.P. 54(d) in water rights proceedings, and because the water court’s decision is supported by the record, we affirm the Order awarding costs to GASP.

      . § 37-92-101, et seq., 10 C.R.S. (2003).

      . GASP amended its claim prior to trial to 5,772 acre-feet of water, with a right to fill and refill.

      . Other parties filed statements of opposition as well, and participated in portions of the proceedings. Ultimately, all Objectors other than Fort Morgan entered into stipulations with GASP.

      .GASP did amend its request downward to delete $2,000 that Fort Morgan argued was attributable to another case with which this case was consolidated at one point.

      . Fort Morgan does contend that opposers may be entitled to costs in certain circumstances.

      . Ultimately, the parties entered into a stipulation as to the amount of costs that should be awarded if the water court’s award is upheld. Therefore, we need not address whether the costs are reasonable.

      . See, e.g., Rule 11(c), Uniform Local Rules for All State Water Court Divisions, 12 C.R.S. (2003) (barring formal discovery pursuant to C.R.C.P. Rules 26 through 37 until a case is "at issue”).

      . See Colorado River Water Conservation Dist. v. Rocky Mountain Power Co., 174 Colo. 309, 486 P.2d 438, 440 (1971), cert. denied, 405 U.S. 996, 92 S.Ct. 1245, 31 L.Ed.2d 465 (1972).


source: Caselaw Access Project

author: Justice MARTINEZ

license: Public Domain

text:
    COLORADO DEPARTMENT OF CORRECTIONS, PAROLE DIVISION, by and through the Executive Director, Jeannie MILLER, and Sheriff of the City and County of Denver, Fred Olivia, State of Colorado, Respondents-Appellants, v. William MADISON, Petitioner-Appellee.
    No. 03SA14.
    Supreme Court of Colorado, En Banc.
    March 1, 2004.

      Ken Salazar, Attorney General, Joseph P. Sanchez, Assistant Attorney General, Denver, Colorado, Attorneys for Respondents-Appellants.
    Gary D. Fielder, Westminster, Colorado, Attorney for Petitioner-Appellee.
    Jane Hazen, Denver, Colorado, Attorney for Amicus Curiae Colorado Criminal Defense Bar.
   Justice MARTINEZ

delivered the Opinion of the Court.

In this case, we consider an appeal brought by the Colorado Department of Corrections challenging the Denver District Court’s interpretation of section 17-2-103(7), 6 C.R.S. (2003). The district court interpreted section 17-2-103(7) to require that a parolee may be held in custody pending a revocation hearing for only thirty days after his arrest, even though the revocation hearing may be continued beyond thirty days and held after a parolee’s temporary release. In rendering its ruling, the court relied on dicta contained within two cases, Turman v. Buckallew, 784 P.2d 774 (Colo.1989), and Goetz v. Gunter, 830 P.2d 1154 (Colo.App.1992). Upon a review of the court’s reliance on the dicta of Turman and Goetz, and following an evaluation of the plain meaning of section 17-2-103(7), we disagree with the district court’s interpretation of the statute. Accordingly, we hold that, in the context of section 17-2-103(7), upon a finding of good cause by the parole board, a parole revocation hearing can be delayed beyond thirty days after the parolee’s arrest and a parolee can be held in custody for a reasonable time pending the revocation hearing. Thus, we reverse.

I.

FACTS AND PROCEEDINGS BELOW

On November 30, 2002, William Madison was placed on parole by the Colorado Department of Corrections (DOC). That same day, Madison was charged with violating a variety of Denver municipal ordinances and was detained in the Denver County Jail. As a result of this arrest, a parole hold was placed on Madison.

On December 2, 2002, Madison’s parole officer filed a complaint with the parole board alleging that Madison had violated his parole by committing new criminal offenses. A parole revocation hearing was set for December 19, 2002. At the hearing, Madison’s parole officer requested a continuance pursuant to section 17-2-103(12). Section 17-2-103(12) states that a parole officer shall request that a parole revocation proceeding be continued until a disposition is reached in the underlying criminal case(s). Over Madison’s objection, the hearing officer granted the parole officer’s request and continued the hearing to February 20, 2003.

On December 31, 2002, Madison filed a petition for writ of habeas corpus alleging that his incarceration was illegal. Madison asserted that his parole revocation hearing was not held within the thirty-day time period mandated by section 17-2-103(7). Subsection (7) states that if a parolee is in custody,

the hearing on revocation shall be held within a reasonable time, not to exceed thirty days after the parolee was arrested; except that the board may grant a delay when it finds good cause to exist therefor.

Madison argued that his continued incarceration was illegal because his revocation hearing had not been held within thirty days of his arrest. The district court initially disagreed and dismissed Madison’s petition after finding that pending criminal charges constituted good cause to extend the hearing beyond thirty days.

Subsequently, Madison filed a motion for reconsideration and requested a hearing to determine whether he was subject to an illegal incarceration. The court granted Madison’s motion and held a short hearing. Upon reconsideration, the court, relying on Tur-man and Goetz, ordered Madison released. The court agreed with Madison’s argument that a parolee may be held in custody pending a revocation hearing for only thirty days, even though the revocation hearing may be continued beyond thirty days and held after the parolee’s release.

Although the municipal court charges against Madison were subsequently dismissed and the parole revocation complaint withdrawn, the DOC appealed, challenging the district court’s interpretation of section 17-2-103(7).

II.

ANALYSIS

We first discuss the DOC’s interpretation of section 17-2-103(7) and the discretion the parole board has in deciding whether to continue a parolee’s revocation hearing. Next we address the district court’s ruling in this matter. Specifically, we discuss the district court’s reliance on the dicta of two cases, Turman and Goetz. By focusing on the dicta of Turman and Goetz, the court ignored the plain language of section 17-2-103(7). We conclude that the plain meaning of section 17-2-103(7) provides that, upon a finding of good cause by the parole board, a parole revocation hearing can be delayed beyond thirty days after the parolee’s arrest and a parolee can be held in custody for a reasonable time pending the revocation hearing.

A.

PAROLE BOARD DISCRETION IN DELAYING REVOCATION HEARINGS

In its appeal to this court, the DOC seemingly interprets section 17-2-103(7) to denote that anytime a parolee is charged with a crime, there exists automatic good cause to delay the revocation hearing and hold the parolee pending resolution of the underlying criminal case. The DOC argues that the district court erred by releasing Madison because the parole board was required to continue Madison’s revocation hearing and detain him until a resolution was reached in his underlying municipal court case. We do not agree. Various sections of the parole revocation statute afford the parole board discretion to determine whether good cause exists to continue a revocation hearing.

Section 17-2-103.5 details the only instances in which the parole board is required to delay a revocation hearing. In section 17-2-103.5, the General Assembly lists specific offenses for which a parole officer must file a parole revocation complaint and the parole board must delay the revocation hearing as long as criminal charges are pending and no technical violations have been alleged. These specific offenses include possession of a deadly weapon, or being charged with: a felony, a crime of violence as defined in section 16-1-104(8.5), a misdemeanor assault involving a deadly weapon or resulting in bodily injury to the victim, or sexual assault in the third degree as defined in section 18-3-404. § 17 — 2—103.5(l)(a)(I)—(II). The parole board must delay a revocation hearing pending a disposition in the underlying criminal case only when a parolee has been arrested for committing one or more of these limited offenses and no technical violations have been alleged. See § 17-2-103.5(l)(e). However, if technical violations have indeed been alleged, the parole board need not continue the revocation hearing. Thus, the statute recognizes that there are circumstances in which the board should proceed with a hearing even when one of the serious charges listed in section 17-2-103.5 is pending. Only under limited conditions does the parole board lack any discretion and must continue a revocation hearing.

In addition to section 17-2-103.5, subsections within section 17-2-103 also suggest that the parole board has discretion when determining whether good cause exists to delay a revocation hearing. Section 17-2-103(9)(a) indicates that when the violation of parole consists of a pending criminal charge, the parole board may hold the revocation hearing before the case has been resolved in criminal court. As section 17-2-103(9)(a) states, “testimony given before the board in a parole revocation proceeding shall not be admissible in such criminal proceeding before a court.” Hence, section 17-2-103(9)(a) implies that the parole board may proceed with a hearing even when criminal charges are pending.

Section 17-2-103(12) offers the parole board additional discretion in determining whether to continue a revocation hearing. Subsection (12) states that when a parolee has been arrested by a law enforcement officer and is being detained in a county jail, a parole officer shall advise the parole board of the pending criminal action and shall request that the revocation hearing be deferred pending the disposition of the criminal charge. Only the parole officer has specific duties under section 17-2-103(12); the parole board maintains discretion in determining whether to continue the hearing or not. Because under section 17-2-103(12) the parole board is not required to delay the revocation hearing, the parole board may decide whether it is appropriate to continue a parolee’s revocation hearing.

Because Madison had not been arrested for committing one of the specific offenses listed in section 17-2-103.5(l)(a)(I)~ (II), the parole board had discretion to decide whether good cause existed to continue Madison’s revocation hearing and detain him beyond thirty days after his arrest. Thus, the DOC’s broad interpretation of section 17-2-103(7) — that anytime a parolee is charged with a crime, there exists automatic good cause to delay the revocation hearing and hold the parolee pending resolution of the underlying criminal case — is not convincing.

Having explained our disagreement with the DOC’s interpretation of section 17-2-103(7), we next discuss the district court’s treatment of the statute in rendering its ruling on Madison’s petition for writ of habeas corpus.

B.

DISTRICT COURT RULING

The plain language of section 17-2-103(7) dictates the procedures that must be followed when a parolee is in custody and is awaiting a revocation hearing. However, in rendering its decision in this case, the district court failed to evaluate the controlling language of section 17-2-103(7) and instead relied upon dicta in Turman and Goetz. As we will first discuss, mere reliance upon the dicta of Tur-man and Goetz can create confusion for courts attempting to discern the meaning of section 17-2-103(7) because the dicta of both cases only address circumstances under which a parolee may be entitled to release from custody under the statute. Instead, as we will later relate, the plain language of section 17-2-103(7) refers not only to the instances in which a parolee might be entitled to release from custody, but also details circumstances in which a revocation hearing can be continued and a parolee can be detained pending that hearing.

1. DICTA OF TURMAN AND GOETZ

Both Madison and the district court mistakenly construe dicta contained within two cases, Turman and Goetz, to reach the conclusion that a parolee can never be held for longer than thirty days after his or her arrest. The court relied upon specific language in Goetz in which the court of appeals discusses the limitations section 17-2-103(7) puts on the amount of time a parolee can be held pending a revocation hearing when no good cause exists to detain the parolee beyond thirty days after his arrest. In Goetz, the court of appeals states:

If the parolee is arrested, a revocation hearing must be held “within a reasonable time, not to exceed thirty days after the parolee was arrested,” unless the board grants a delay for good cause. However, this section limits only the period of time a suspected parole violator may be imprisoned while authorities investigate the alleged violation; it does not limit the time within which the board must act on the issue of revocation.

Goetz, 830 P.2d at 1155. The court interpreted this language to mean that Madison was automatically entitled to be released from custody because he had been held beyond thirty days after his arrest. By narrowly focusing on this isolated portion of the Goetz opinion, the court mistakenly interpreted section 17-2-103(7) as simply limiting the time a parolee can be held in custody.

This focus on particular language may have caused the district court to lose sight of the fact that the relevant holding of Goetz has no bearing upon the issue being decided in Madison’s case. In Goetz, the court of appeals determined that the statutory time period in section 17-2-103(7) did not apply to a parolee because his parole term had expired, and therefore that the parole board lacked jurisdiction. Id. at 1156-57. Thus, Goetz offers no guidance as to how the present ease should be resolved.

Madison and the district court also mistakenly rely upon isolated dicta in Turman. Madison argues that Turman stands for the proposition that although a revocation hearing may be delayed beyond thirty days after a parolee’s arrest, a parolee is entitled to temporary release from custody. In Tur-man, we stated that the remedy for a violation of section 17-2-103(7) is a parolee’s temporary release from custody:

When the revocation hearing is not held within the statutory time period, the proper sanction for violation of the statute is a temporary release from custody. The parole violation complaint is not dismissed and the parole board does not lose jurisdiction to revoke parole.

Id. at 778. Madison contends, and the court agreed, that this specific language indicates that thirty days is the maximum period of time he could remain in custody when his revocation hearing was delayed. Such a reading of the Turman dicta misapprehends not only the circumstances under which a parolee is entitled to be released from custody, but also ignores the plain meaning of section 17-2-103(7) as a whole.

We stated in Turman that temporary release is the sanction for a hearing that is not held within the statutory time period. However, in the context of the issue before us, that statement was dicta intended to emphasize that if Turman had been entitled to relief, the relief would not have been dismissal of the petition to revoke his parole. Rather, the possible relief was merely release from custody on his parole hold until his final revocation hearing. Turman, a Colorado parolee, was arrested in a foreign jurisdiction, extradited to Colorado nearly a month after his arrest, and given a parole revocation hearing twenty-three days after his return to Colorado. Turman, 784 P.2d at 776. Tur-man filed a petition for habeas corpus relief alleging that he was entitled to release due to the fact that “the parole board lacked jurisdiction because his parole revocation hearing was not held within the statutorily-mandated thirty day time limit.” Id. We rejected Tur-man’s claim and held that “the thirty day time limit began to run when Turman was taken into custody by Colorado authorities” and that the parole board had jurisdiction when it revoked Turman’s parole. Id. at 779. Thus, we did not find that the statutory time period was violated. However, we commented that had the statutory time period been violated, Turman’s remedy was release from custody pending the parole revocation hearing.

As with Goetz, the district court focused on language in Turman that merely describes circumstances in which a parolee could be eligible for release under section 17-2-103(7). Unfortunately, the dicta of these two cases can be misread to imply that section 17-2-103(7) only governs issues of temporary release. This reading ignores the plain language of the statute. Section 17-2-103(7) not only governs the instances in which a parolee might be entitled to release from custody, but it also details the circumstances in which a revocation hearing can be continued and a parolee can be detained pending that hearing.

2. PLAIN LANGUAGE OF SECTION 17-2-103(7)

In construing a statute, we attempt to give effect to the legislative purpose behind the statute. We do so by examining the plain language of the statute and giving the words their plain and ordinary meaning. If the plain language of a statute is unambiguous and clear, we need not employ other tools of statutory interpretation. Anderson v. Watson, 953 P.2d 1284, 1290 (Colo.1998).

Section 17-2-103(7) governs parolees who have been arrested, taken into custody, and are awaiting a parole revocation hearing. The plain language of section 17-2-103(7) unambiguously sets forth the steps a parole board must take when a parolee is in custody awaiting a revocation hearing. Section 17-2-103(7) specifically addresses two facets of the revocation process: the circumstances in which a revocation hearing can be continued and a parolee can be detained pending that hearing; and the instances in which a parolee may be entitled to temporary release from custody. The relevant portion of section 17-2-103(7) states:

If a parolee is in custody pursuant to subsection (4) of this section, or the parolee was arrested and then released pursuant to paragraph (e) of subsection (5) of this section, the hearing on revocation shall be held within a reasonable time, not to exceed thirty days after the parolee was arrested; except that the board may grant a delay when it finds good cause to exist therefor.

As the plain language of subsection (7) indicates, if a parolee is in custody, a revocation hearing shall be held within a reasonable time, not to exceed thirty days after he was arrested, unless the parole board finds good cause to delay the hearing. If the parole board is able to find good cause, a parolee’s revocation hearing can be delayed beyond thirty days after the parolee’s arrest, and the parolee can be held for a reasonable time pending the revocation hearing. Hence, thirty days after a parolee’s arrest, a parolee is entitled to temporary release from custody only if the parole board is unable to find good cause to continue a revocation hearing and detain the parolee.

Section 17-2-103(7) does not simply address the circumstances of a parolee’s possible release pending a revocation hearing. Rather, the statute also refers to the instances in which a revocation hearing can be continued and a parolee can be detained pending that hearing.

3. APPLICATION OF PLAIN LANGUAGE TO THE PRESENT CASE

As the plain language of section 17-2-103(7) indicates, Madison would only be entitled to temporary release from custody if there were no good cause to continue his revocation hearing beyond thirty days after his arrest and detain him pending that hearing. By misconstruing isolated language contained within Turman and Goetz, the district court overlooked the essential provisions of section 17-2-103(7) detailing the parole board’s ability to find good cause, continue the revocation hearing beyond thirty days after the parolee’s arrest, and detain the parolee pending that hearing. Thus, we conclude that the court erred by not recognizing that the plain language of section 17-2-103(7) governs both the instances in which a parolee might be entitled to release from custody, and the circumstances in which a revocation hearing can be continued and a parolee can be detained pending that hearing.

III.

CONCLUSION

We conclude that the district court misinterpreted the plain language of section 17-2-103(7) by relying upon dicta located within Turman and Goetz. We hold that, in the context of section 17-2-103(7), upon a finding of good cause by the parole board, a parole revocation hearing can be delayed beyond thirty days after the parolee’s arrest and a parolee can be held in custody for a reasonable time pending the revocation hearing. Thus, we reverse.

      . Section 17-2-103(12) reads:
      If the parole officer is informed by any law enforcement agency that a parolee has been arrested for a criminal offense and is being detained in the county jail, the parole officer shall file a complaint alleging the criminal offense as a violation of parole. The parole officer shall advise the board of any pending criminal proceeding and shall request that a parole revocation proceeding be deferred pending a disposition of the criminal charge.

      . Because the municipal court charges against Madison were dismissed and the revocation complaint withdrawn, this case is moot. Generally, we decline to decide a matter that is moot. However, there are two exceptions to the mootness doctrine: (1) the matter involves a question of great public importance, or (2) the controversy is capable of repetition, yet evades review. See Simpson v. Bijou Irrigation Co., 69 P.3d 50, 71 (Colo.2003). We are persuaded that the relatively short statutory time periods that exist in these proceedings make the issue we are addressing capable of repetition, yet likely to evade review.

      . In Goetz, the court of appeals states that section 17-2-103(7) "does not limit the time within which the board must act on the issue of revocation.” Goetz, 830 P.2d at 1155. This assertion is misleading. According to section 17-2-103(7), the parole board must hold the revocation hearing "within a reasonable time, not to exceed thirty days after the parolee was arrested; except that the board may grant a delay when it finds good cause to exist therefore.” Thus, the parole board does not have an unlimited amount of time in which to hold a revocation hearing. However, section 17-2-103(7) does not explicitly address the consequence for the board's failure to hold a timely hearing.

      . For purposes of subsection (7), a parolee is in "custody" if:
      rather than issuing a summons, a parole officer makes an arrest of a parolee, with or without a warrant, or the parolee is otherwise arrested, the parolee shall be held in a county jail or a preparóle facility or program pending action by the parole officer pursuant to subsection (5) of this section.
      § 17-2-103(4).

      . The parole board did not make a finding of good cause to continue the hearing. Thus, it is unclear whether the parole board exercised its discretion to determine whether to delay the hearing, or instead believed a continuance was mandated. Both because the district court did not consider this issue, and because this dispute is moot and we have interpreted the legal issue presented as an exception to the mootness doctrine, we do not further address good cause in this case.


author: Judge TAUBMAN.

text:
    LONGMONT TOYOTA, INC.; HIH Insurance; and Western Guaranty Fund Services, Petitioners, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO and Andrew Anderson, Respondents.
    No. 02CA0441.
    Colorado Court of Appeals, Div. V.
    Feb. 13, 2003.
    Rehearing Denied June 12, 2003.
    Certiorari Granted March 8, 2004.

      Clifton, Hook & Bovarnick, P.C., Richard A. Bovarnick, Gary L. Fleming, Denver, Colorado, for Petitioners.
    Ken Salazar, Attorney General, Laurie Rottersman, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.
    Law Office of Robert A. Garcin, Robert A. Garcin, Loveland, Colorado, for Respondent Andrew Anderson.
    Michael J. Steiner, Denver, Colorado, for Amicus Curiae Colorado Compensation Insurance Authority, d/b/a Pinnacol Assurance.
   Opinion by

Judge TAUBMAN.

In this workers’ compensation proceeding, Longmont Toyota, Inc., and its insurer, HIH Insurance (collectively employer), seek review of the final order issued by the Industrial Claim Appeals Office (Panel) which awarded temporary total disability (TTD) benefits to Andrew Anderson (claimant). We set aside the order and remand.

The following facts are not in dispute. Claimant sustained an admitted injury to his lower back on June 5, 2000, while employed as a line mechanic at a car dealership. He returned to- modified light duty at full salary on July 26, 2000, but voluntarily resigned on August 31, 2000, for reasons unrelated to the industrial injury. Claimant then obtained employment, which was within his medical restrictions, with another car dealership. However, on September 13, 2000, claimant’s condition worsened, he was no longer able to continue with his second employment, and he sought TTD benefits from the date he left that position.

Following an evidentiary hearing, the Administrative Law Judge (ALJ) determined that claimant’s worsened condition was due to the natural progression of his work injury and was not caused by any specific intervening event which would constitute a new injury. The ALJ further found that claimant’s resignation from his position with the first employer was a volitional act that severed the causal relationship between his wage loss and his work injury. Therefore, the ALJ determined that claimant was responsible for that separation and was barred from receiving temporary disability benefits under § 8-42-105(4), C.R.S.2002.

On review, the Panel concluded that the ALJ had misconstrued § 8-42-105(4) as a permanent bar to all temporary disability benefits where the claimant is determined to be “responsible” for the loss of employment. The Panel held that § 8-42-105(4) precludes recovery for a wage loss only when it is the direct consequence of the independent volitional action which caused the claimant’s separation from employment. The Panel then determined that the wage loss after September 13, 2000, resulted not from claimant’s voluntary resignation, but from his worsened condition. The Panel, consequently, held that § 8-42-105(4) did not apply and thus claimant was entitled to TTD benefits from the date his worsened condition caused him to resign from his second employment.

Employer contends that the Panel erred in reversing the ALJ’s determination that claimant was responsible for his wage loss within the meaning of § 8-42-105(4). We agree.

Section 8-42-105(4) and identical language in § 8-42-103(l)(g), C.R.S.2002, provide: “In eases where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury.” (Emphasis added.)

These statutory provisions overrule PDM Molding, Inc. v. Sternberg, 898 P.2d 542 (Colo.1995). See Colo. Springs Disposal v. Indus. Claim Appeals Office, 58 P.3d 1061 (Colo.App.2002)(amended termination statutes reintroduce the limited concept of “fault” which was used in termination cases prior to PDM Molding and which focused on the reasons for termination apart from the cause of the injury for which compensation was sought). In PDM Molding, the supreme court held that an employee who sustained a work-related injury and was subsequently discharged for fault from the employment out of which the injury arose was not automatically ineligible for temporary disability benefits. The determining factor for postse-paration benefits was whether the injury contributed to some degree to the loss of wages.

Before PDM Molding, when a temporarily disabled employee was determined to be at fault for his or her termination, any subsequent wage loss was deemed to be caused not by the injury, but rather by the employee’s act that led to the termination. Conversely, when a faultless employee was terminated while still temporarily disabled, the resulting wage loss was attributed to the injury. Monfort v. Husson, 725 P.2d 67 (Colo.App.1986), overruled on other grounds by Allee v. Contractors, Inc., 783 P.2d 273 (Colo.1989). Thus, under the law before PDM Molding, when a claimant’s voluntary conduct caused his or her termination and the injury played no part in the discharge, a compensable injury was no longer recognized for purposes of temporary disability benefits. Padilla v. Digital Equip. Corp., 902 P.2d 414 (Colo.App.1994), vacated, 908 P.2d 1185 (Colo.App.1995).

Here, the Panel acknowledged that § 8-42-105(4), and by implication, § 8-42-103(l)(g), have resurrected the former law in an effort to overrule PDM Molding legislatively. Referring to the legislative hearings concerning the enactment of § 8-42-105(4), the Panel further observed that the General Assembly apparently intended to preclude an injured worker from recovering temporary disability benefits where the worker is at fault for the loss of post-injury modified employment, regardless of whether the industrial injury remains a proximate cause of the subsequent wage loss. See Hearings on H.B. 99-1105 before the House Business, Affairs & Labor Committee (Jan. 14, 1999, at 2:05 p.m.) and Senate Committee on State Veterans & Military Affairs (Feb. 22, 1999, at 1:39 p.m.), 62d General Assembly, First Session (House & Senate Hearings). However, in interpreting § 8-42-105(4), the Panel focused on the phrase “resulting wage loss” and reasoned that had the General Assembly intended to create a permanent bar to temporary disability benefits when the claimant is responsible for termination of employment, it clearly could have done so by specifying that no subsequent wage loss could be attributed to the on-the-job injury.

The word “resulting” is defined as “something that results as a consequence, effect, issue, or conclusion.” Webster’s Third New International Dictionary 1937 (1969). The definition encompasses both direct and indirect consequences, and in this context, the word can plausibly be interpreted either narrowly to mean a wage loss that occurs immediately following a separation for cause, or broadly to mean any subsequent wage loss. The definition of “resulting,” therefore, does not answer the question whether the General Assembly intended to preclude an injured worker from recovering temporary disability benefits when the industrial injury remains a proximate cause of a post-injury wage loss with a different employer. Consequently, we find the word “resulting” ambiguous. See Colo. Dep’t of Labor & Employment v. Esser, 30 P.3d 189 (Colo.2001)(the word “testimony” was ambiguous as used in the administrative statute because it could be interpreted to include or exclude written testimony as an alternative to oral testimony under oath at a hearing or deposition).

When a statute is ambiguous on its face, the reviewing court must resort to extrinsic aids to construction that are probative of the General Assembly’s intent, such as the objectives of the legislation, the circumstances under which the statute was enacted, the legislative history, and the consequences of the alternative constructions. See § 2-4-203, C.R.S.2002; United Airlines, Inc. v. Indus. Claim Appeals Office, 993 P.2d 1152 (Colo.2000). Further, although the interpretation given a statute by the officer or agency charged with its administration is ordinarily entitled to deference, the interpretation must be set aside if it is inconsistent with the legislative intent. Magnetic Eng’g, Inc. v. Indus. Claim Appeals Office, 5 P.3d 385 (Colo.App.2000).

Here, the legislative history does not address the meaning of the word “resulting.” Nor did the discussion in the various committees and floor debates encompass a hypothetical situation similar to the one before us. See House & Senate Hearings, supra; House Second Reading of H.B. 99-1105, 62d General Assembly, First Session (Jan. 25, 1999).

Nevertheless, as the Panel indicated, the sponsoring legislators expressed a clear intent to overrule PDM Molding and completely cut off temporary benefits whenever an injured worker is responsible for separation from the employment when the injury occurred, regardless of the consequences that followed. The proponents of the bill testified that PDM Molding had created abuses, which could be curbed only by reinstating the law as it applied prior to that case. Specifically, they asserted that PDM Molding’s holding frustrated an employer’s legitimate right to limit its liability for temporary disability benefits by placing the injured employee in a light duty position at full salary, because PDM Molding allowed the employee to collect such benefits even when the employee had been discharged from the light duty position for misconduct. Opponents of § 8-42-105(4) also testified regarding potential abuses by employers were the statute to be adopted, but the amendment was passed nonetheless.

We recognize that use of the phrase “any subsequent wage loss” could have more clearly expressed the General Assembly’s intent. However, we find nothing within the legislative history suggesting that the General Assembly intended to limit the bar against temporary disability benefits set forth under § 8-42-105(4). Our conclusion in this regard is further buttressed by the fact that the General Assembly chose not to incorporate the views of the bill’s opponents. Therefore, we conclude that the term “resulting” means any wage loss following a termination for which the employee is responsible, and that, once the causative link between the industrial injury and wage loss is thereby severed, it cannot later be restored.

Consequently, we hold that § 8-42-105(4) is to be construed as a permanent bar to receipt of temporary disability benefits when a claimant is responsible for his or her separation from employment and the separation is for causes within the employee’s control, but unrelated to the industrial injury.

We note, however, that if claimant’s separation from his second employment had been caused by either a work-related aggravation of the old injury or a new injury, § 8-42-105(4) would not bar a claim for temporary disability benefits against claimant’s new employer.

The Panel’s order is set aside, and this case is remanded for reinstatement of the ALJ’s order denying the claim for TTD benefits.

Judge CASEBOLT and Judge NIETO concur.


author: Judge JONES.

text:
    COLORADO COMMON CAUSE, a registered not-for-profit corporation, and Pete Maysmith, Executive Director of Colorado Common Cause, Complainants-Appellees, v. Mike COFFMAN, Colorado State Treasurer, Respondent-Appellant.
    No. 01CA1709.
    Colorado Court of Appeals, Div. V.
    March 27, 2003.
    As Modified on Denial of Rehearing May 29, 2003.

    Certiorari Granted March 1, 2004.
    Beimford & Gleason, P.C., Richard J. Gleason, Denver, Colorado, for Complainants-Appellees.
    Ken Salazar, Attorney General, Maurice Knaizer, Assistant Attorney General, M. Terry Fox, Assistant Attorney General, Denver, Colorado, for Respondenh-Appellant.

       JONES, J., does not participate.

   Opinion by

Judge JONES.

Respondent, Mike Coffman, State Treasurer, who leads the Office of the State Treasurer, appeals the order of an administrative law judge (ALJ) against him and in favor of complainants, Colorado Common Cause, and Pete Maysmith, its executive director. The ALJ imposed a civil penalty, finding that the Treasurer willfully violated § 1-45-117, C.R.S.2002, of the Fair Campaign Practices Act (FCPA). We affirm.

The November 2000 election included a state-wide ballot initiative, known as Amendment 23, providing for amendment of the Colorado Constitution to require the state to set aside certain revenues each fiscal year for the State Education Fund.

The parties here concede that Amendment 23 constituted a “[s]tate-wide ballot issue” for purposes of § l-45-117(l)(a)(I)(A), C.R.S. 2002. The voters approved the amendment.

Under the amendment, the fund is to be administered and invested under the aegis of the State Treasurer and is to be exempt from the TABOR Amendment limitations on fiscal year spending provided for in Colo. Const, art. X, § 20.

Before the election, the Treasurer criticized, and urged the defeat of, the proposed amendment at a press conference and in three press releases, prepared and issued during official work hours and through use of public funds. He issued a fourth press release after the election.

The press releases were prepared during regular’ work hours by a staff member at the direction of the deputy treasurer, who reviewed and edited the drafts. The Treasurer conducted a press conference on September 7, 2002, to express opposition to the amendment. The staff member arranged for the dissemination of the first press release by email, fax, and web posting. No further press conferences were held by the Treasurer, but the other releases were disseminated in October 2000.

The first press release was entitled, “Coff-man: Amendment 23 a ‘Fiscal Train Wreck.’ ” It stated, in part:

This terribly confusing and complex initiative ... promises nothing in return for a huge increase in spending. I don’t think the authors of this initiative fully considered the effects of their amendment when they wrote it .... [It] provides only vague and general guidance for the spending of this money so that some of the more powerful legislators could easily steer this money to their districts for capital construction projects rather than where it is needed most: the classroom.

The second press release noted that the amendment would require the state’s capital construction budgets to be reduced by more than $155 million over the following five years, and it characterized the amendment as a “carelessly written amendment [that] is so deeply flawed that I urge Colorado’s voters to turn it down.”

The third press release was entitled, “Coff-man: Amendment 23 Deceptive.” It stated that “when an economic downturn occurs the State Education Fund, like a sailor’s wallet on the morning after, probably will not have the money the proponents claim to have set aside to meet the inflation plus one percent obligation,” and it urged the voters to reject the amendment “simply because of its complexities.” The release noted that “drunken sailors and marines [will] have acted like cub scouts ... compared to many legislators when they have TABOR exempt tax dollars to spend.”

Common Cause filed a complaint with the Secretary of State, alleging that, in issuing the press releases and related media pieces, the Treasurer had violated the prohibitions of the FCPA against using state resources to express opposition to a state-wide ballot issue. Pursuant to § 1-45-111, C.R.S.2002, an ALJ was appointed to hear the matter.

In their case management order, the parties stipulated to most of the facts and agreed that two issues were presented:

1) Whether Treasurer Mike Coffman was authorized — constitutionally, statutorily or by the common law — to use state resources, in part through the use of emails, faxes, web postings and press releases, to express an opinion regarding Amendment 23, and, therefore, whether the Treasurer and his staff were allowed to generate and disseminate the statements at issue, such that there was no violation of Section 117 of the Colorado Fair Campaign Practices Act, § 1-45-117, C.R.S.2000?
2) If Treasurer Mike Coffman was not so authorized, did his actions constitute a violation of Section 117 of the Fair Campaign Practices Act, or were his actions, nevertheless, exempt pursuant to § 1-45-117(l)(a)(II), C.R.S.2000?

On the parties’ cross-motions for summary judgment, the ALJ determined that there were no genuine issues of material fact as to the first issue and that, as a matter of law, the Treasurer was not authorized to use public resources exceeding fifty dollars to urge the electorate to vote against proposed Amendment 23. The ALJ determined, however, that genuine issues remained as to whether the Treasurer had expended more than fifty dollars of public funds under § 1-45 — 117(l)(a)(II), C.R.S.2002, and also as to whether the Treasurer’s actions were permitted under § l-45-117(l)(b)(III)(A) and (B), C.R.S.2002.

Following a hearing on June 5, 2002, the ALJ entered findings of fact and conclusions of law determining that (1) that the Treasurer used more than fifty dollars of public funds in opposing Amendment 23; and (2) the Treasurer’s conduct was not made permissible by § l-45-117(b)(l)(III)(A) and (B). Concluding that he lacked jurisdiction to impose a criminal penalty, the ALJ imposed a civil penalty of $334.92 on the Treasurer, individually. This appeal followed.

I.

In this appeal, we are asked to interpret portions of the FCPA. Our review of a statutory interpretation is de novo. Fowler Irrevocable Trust 1992-1 v. City of Boulder, 17 P.3d 797 (Colo.2001).

An ALJ’s findings of evidentiary fact may not be set aside on review unless they are contrary to the weight of the evidence. Section 24-4-105(l)(b), C.R.S.2002; Colo. State Bd. of Nursing v. Lang, 842 P.2d 1383 (Colo.App.1992).

Findings of ultimate fact are conclusions of law or mixed questions of fact and law. A finding of ultimate fact may be set aside only if the substituted conclusions have a reasonable basis in law and are supported by substantial evidence. Davis v. State Bd. of Psychologist Exam’rs, 791 P.2d 1198 (Colo.App.1989).

II.

The Treasurer contends that the ALJ erred in concluding, as a matter of law that the Treasurer lacked authority to use state resources to inform citizens about the fiscal impact of the passage of a proposed constitutional amendment and to urge its defeat. We do not agree.

The purpose of § 1-45-117 is to prohibit the state government and its officials from spending public funds to influence the outcome of campaigns for political office or ballot issues. See Hearings on H.B. 1179 before the House Committee on State Affairs, 56th General Assembly, 2d Session (Feb. 11, 1988)(discussing predecessor statute to § 1-45-117, 1988 Colo. Sess. Laws, ch. 33, § 1-45-116(l)(a) at 301); Hearings on H.B. 95-1017 before the House Committee on State, Veterans and Military Affairs, 60th General Assembly, 1st Session (1995).

In construing a statute and determining legislative intent, we rely on the language of the statute and give the words used their plain and ordinary meaning. Section 2-4-101, C.R.S.2002; Hall v. Walter, 969 P.2d 224 (Colo.1998). If the meaning of a statute is clear and unambiguous, then we need not resort to other aids of statutory construction to ascertain the intent of the General Assembly. However, if the statutory language is ambiguous, a reviewing court may consider legislative history and other extrinsic sources to assist in ascertaining its meaning. Colo. Dep’t of Revenue v. Woodmen of the World, 919 P.2d 806 (Colo.1996). Additionally, in order to effectuate legislative intent, we consider statutes as a whole and attempt to give consistent, harmonious, and sensible effect to all their parts. State v. Nieto, 993 P.2d 493, 501 (Colo.2000).

“Furthermore, when possible, statutes should be construed so as to avoid questions of their constitutional validity.” Adams County Sch. Dist. No. 50 v. Heimer, 919 P.2d 786, 790 (Colo.1996), citing People v. Thomas, 867 P.2d 880, 883 (Colo.1994); and Perry Park Water & Sanitation Dist. v. Cordillera Corp., 818 P.2d 728, 732 (Colo.1991).

We will consider each of the pertinent subsections of the statute here.

A.

Section 1-45-117(1) provides the spending prohibition and certain exceptions, in pertinent part:

(a)(1) No ... department ... of the state ... shall ... expend any public moneys from any source, or make any contributions, to urge electors to vote in favor of or against any:
(A) state-wide ballot issue that has been submitted for the purpose of having a title designated and fixed pursuant to section 1-40-106(1) or that has had a title designated and fixed pursuant to that section
(II) ... A member or employee of any such ... department ... who has policy-making responsibilities may expend not more than fifty dollars of public moneys in the form of letters, telephone calls, or other activities incidental to expressing his or her opinion on any such issue described in subparagraph(I) of this paragraph (a).
(l)(b)(I) Nothing in this subsection (1) shall be construed as prohibiting ... [a] department ... from expending public moneys ... to dispense a factual summary, which shall include arguments both for and against the proposal, on any issue of official concern before the electorate in the jurisdiction. Such summary shall not contain a conclusion or opinion in favor of or against any particular issue....

Thus, § 1 — 45—117(l)(a)(II) allows a state official or employee with policy-making responsibilities to expend up to fifty dollars in expressing opinions on campaign and ballot issues. However, the Treasurer does not challenge on appeal the ALJ’s finding the Treasurer expended more than fifty dollars in holding the press conference and issuing press releases.

Further, even if under § l~45-117(l)(b)(I) the ballot issue were “an issue of official concern” as to which the Treasurer could properly use public funds to issue a factual summary of the arguments in favor of and against the proposed amendment, the Treasurer’s press releases are not such a balanced factual summary but, instead, constitute “a conclusion or opinion ... against” the ballot proposal. As such, they remain subject to the spending limitations of the statute.

B.

The statute also permits state officials such as the Treasurer to express personal opinions in favor of or against election candidates and ballot proposals. It provides: “Nothing in this subsection (1) shall be construed to prevent an elected official from expressing a personal opinion on any issue.” Section l-45-117(l)(b)(II), C.R.S.2002. The statute does not, however, authorize the expenditure of public funds for the expression of such personal opinions. In any event, the Treasurer does not maintain here that his actions involved the mere expression of personal opinions.

Rather, he argues that his press releases on Amendment 23 were resolutions or positions of advocacy and that, under § 1-45-117(l)(b)(III), C.R.S.2002, the statutory spending limitations therefore do not apply. That subsection provides, in pertinent part:

Nothing in this subsection (1) shall be construed as prohibiting ... [a] department ... of the state ... from:

(A) passing a resolution or taking a position of advocacy on any issue described in subparagraph (I) of paragraph (a) of this subsection (1); or
(B) Reporting the passage of or distributing such resolution through established, customary means, other than paid advertising, by which information about other proceedings of such ... department ... is regularly provided to the public.

First, we reject the Treasurer’s assertion that his press conference, press releases, and other actions in opposition to the proposed Amendment 23 constituted the passing of a resolution. A resolution is “[a] formal expression of the opinion or will of an official body or public assembly, adopted by vote; as a legislative resolution.” Black’s Law Dictionary 1178 (5th ed.1979). Thus, a resolution generally requires action by a voting body.

We also reject the Treasurer’s assertion that his actions constituted the taking of a position of advocacy on the ballot measure and that therefore the spending limitation of the FCPA does not apply and his actions were proper.

Section 1 — 45—117(l)(b)(III) does not authorize unlimited expenditures in taking positions of advocacy — it merely clarifies that the FCPA is not to be construed to prohibit a department from taking such positions. This section does not purport to create an exception to the spending limitations of the FCPA.

The Treasurer’s interpretation of the statute — as creating an exemption from the spending limitation for any taking of a position of advocacy — would totally undermine the stated purposes of FCPA. Under that interpretation, a government official who spent state funds in opposing a candidate or ballot measure would, by definition, be taking a position of advocacy on an issue and therefore be unconstrained by the spending limits. Such a construction would render other provisions of the FCPA meaningless. Because such an interpretation would lead to that absurd result, we reject it. See State v. Nieto, supra (courts must reject interpretations that lead to absurd results).

Accordingly, under the circumstances here-, the ALJ did not err in finding that the Treasurer violated the FCPA by expending more than fifty dollars of public funds in urging voters to defeat Amendment 23.

Finally, we disagree with the Treasurer that the ALJ had no authority to impose a monetary sanction for his violation of $ 1-45-117.

The former § 1-45-111 authorized an ALJ to impose an appropriate sanction for a violation of several sections of the statute, including § 1-45-117. Colo. Sess. Laws 2000, ch. 36 at 127 (repealed effective Dec. 6, 2002); cf. Colo. Const. art. XXVIII, § 9. The former § 1-45-113(1) set forth that a violation of any of the enumerated sections, including § 1-45-117, constitutes a class two misdemeanor. It further provided:

In addition to the criminal penalty provided for in subsection (1) of this section, any person who intentionally violates any provision of this article relating to contribution limits shall be subject to a civil penalty of double the amount contributed or received in violation of the applicable provision of this article.

Colo. Sess. Laws 2000, ch. 36, § 1-45-113(2) at 128 (repealed effective Dec. 6, 2002); cf. Colo. Const. art. XXVIII, § 10.

The Treasurer argues that he did not violate any provision “relating to contribution limits” and, therefore, the ALJ had no authority to impose a fine against him. However, read in context, the term “contribution limits” as used in § 1-45-113 included, as relevant here, the statutory restrictions on the expenditure of public money. To the extent that the General Assembly added a provision explicitly stating that any violation of § 1-45-117 was subject to sanctions under § 1-45-113, we read this as a clarification rather than, as the Treasurer ■ argues, a change in the law- See § 1-45-117(4), C.R.S. 2002; Corsentino v. Cordova, 4 P.3d 1082 (Colo.2000)(if amendment clarifies the law, then law remains unchanged).

Based on our resolution of this case, we deem it unnecessary to consider the Treasurer’s other contentions.

The order is affirmed.

Judge DAVIDSON and Judge KAPELKE concur.


author: Judge DAILEY.

text:
    David G. BRYAN, Plaintiff-Appellant, v. Gary D. NEET, Robert B. Allen, Gloria Masterson, Richard R. Friend, Lisa Lehn, Ruby Osberg, Glen Jones, and Richard Johnson, Defendants-Appellees.
    No. 02CA1386.
    Colorado Court of Appeals, Div. III.
    July 3, 2003.
    Rehearing Denied Sept. 25, 2003.
    Certiorari Denied March 1, 2004.

      David G. Bryan, Pro Se.
    No Appearance for Defendants-Appellees.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.

   Opinion by

Judge DAILEY.

In this prison disciplinary review action, plaintiff, David G. Bryan, appeals a magistrate’s orders denying his request to proceed in forma pauperis and dismissing his complaint against defendants, Gary D. Neet, Robert B. Allen, Gloria Masterson, Richard R. Friend, Lisa Lehn, Ruby Osberg, Glen Jones, and Richard Johnson. We dismiss the appeal.

Plaintiff, an inmate in a state correctional facility, instituted an action under C.R.C.P. 106(a)(4) and 42 U.S.C. § 1983 for backpay, reinstatement of his job, and restoration of various privileges lost when he was found guilty by prison officials of having violated the Code of Penal Discipline. In an earlier proceeding, plaintiff had been found not guilty of the alleged violation, but that determination was overturned by an associate warden, who remanded the matter for another hearing.

In his complaint, plaintiff alleged, among other things, that his due process and double jeopardy rights were violated when he was reprosecuted after having been found not guilty of the alleged violation.

Along with his complaint, plaintiff filed a motion to proceed in forma pauperis. A district court magistrate denied this request and subsequently dismissed plaintiffs complaint when he failed to pay the docket fee.

Plaintiff directly appealed these orders to this court. On appeal, he contends that the magistrate lacked jurisdiction over his case and otherwise erred in the rulings. We lack jurisdiction to consider these contentions.

C.R.M. 7 governs appeals from orders and judgments of magistrates. “C.R.M. 7(a) sets out the procedure for review of magistrate’s orders and judgments that have been ‘entered without consent’ of the parties, and C.R.M. 7(b) sets out a different procedure for orders and judgments that have been ‘entered with consent’ of the parties.” People ex rel. Garner v. Garner, 33 P.3d 1239, 1242 (Colo.App.2001). For C.R.M. 7 purposes, whether an order has been entered with or without the parties’ consent depends not upon whether the parties actually consented, but upon whether consent is required by rules or statutes to invest a magistrate with authority to act. See People ex rel. Garner v. Garner, supra, 33 P.3d at 1242-43.

C.R.M. 6(a)-(e) lists specific matters that either do or do not require the parties’ consent before a magistrate may rule upon them. The subject matter of the present case is not one of the matters listed in those provisions.

C.R.M. 6(f), however, provides that “[a] district court magistrate may perform any other function specifically authorized by statute.” Section 13-17.5-105, C.R.S.2002, states, without any reference to consent of the parties, that district court magistrates are authorized to preside over (1) motions filed under § 13-16-103, C.R.S.2002, to proceed in forma pauperis and (2) motions filed under the Colorado Rules of Civil Procedure to dispose of an inmate’s action without necessity of trial.

Because a statute that establishes no conditions should be applied without additional requirements, we conclude that a magistrate may, without the consent of the parties, act upon an inmate’s in forma pauperis request and dispose of the case in accordance with its ruling thereon. It follows, then, that appellate review of the magistrate’s rulings in this case is governed by C.R.M. 7(a). See People ex rel. Garner v. Garner, supra, 33 P.3d at 1242 (employing similar analysis in connection with child support enforcement orders).

Where, as here, a magistrate has entered an order on a matter in which consent is not required, a party is not entitled to pursue appellate review unless he or she has first filed a motion for review of the magistrate’s order in the district court. This motion must be filed no later than fifteen days subsequent to the date of the magistrate’s order or judgment. C.R.M. 7(a)(1).

Here, plaintiff failed to file any motion for review in the district court. Consequently, we lack jurisdiction to consider his appeal. See People ex rel. Gamer v. Gamer, supra, 33 P.3d at 1243.

Accordingly, the appeal is dismissed.

Judge ROY and Judge PLANK concur.


author: Judge KAPELKE.

text:
    POUDRE VALLEY HEALTH CARE INC., d/b/a Poudre Valley Hospital, Plaintiff-Appellee, v. CITY OF LOVELAND, a Colorado Municipal Corporation, Defendant-Appellant.
    No. 02CA0550.
    Colorado Court of Appeals, Div. IV.
    July 17, 2003.
    Certiorari Denied March 8, 2004.

      Law Office of Carole C. Schriefer, Carole C. Schriefer, Fort Collins, Colorado, for Plaintiff-Appellee.
    Hall & Evans L.L.C., David R. Brougham, Denver, Colorado, for Defendant-Appellant.
    Bell, Boge & Associates, P.C., Gregory S. Bell, for Amicus Curiae Colorado Health & Hospital Association.
   Opinion by

Judge KAPELKE.

Defendant, City of Loveland (City), appeals from the summary judgment entered by the trial court in favor of plaintiff, Poudre Valley Health Care, Inc., d/b/a Poudre Valley Hospital (Hospital). The issue presented is one of first impression in Colorado: whether a governmental entity has an obligation to pay for outside medical costs incurred in the care and treatment of a pretrial detainee in its custody. We conclude that such an obligation exists, and we therefore affirm.

Following his arrest by City of Loveland police officers, a pretrial detainee injured himself when he escaped through the window of a police transport van that was traveling at a high speed. He was taken by ambulance to the Hospital, where he underwent medical treatment, including surgery, and remained for several days. The Hospital presented a statutory claim to the City for $26,625, the cost of the medical treatment and hospitalization. The City denied the claim.

In this action, the Hospital seeks to recover from the City the costs of the medical treatment provided the detainee. In the trial court, the parties stipulated to the facts and the Hospital moved for summary judgment, arguing that a governmental entity’s constitutional and statutory duty to provide medical care to a person in its custody includes a corresponding duty to compensate the provider of that care. The trial court granted the Hospital’s motion and entered judgment against the City in the amount of the claimed medical costs.

The City contends that there is no constitutional or statutory basis for the Hospital’s claim and that the trial court therefore erred in granting summary judgment. We disagree.

We review de novo a trial court’s grant of summary judgment. Ryder v. Mitchell, 54 P.3d 885 (Colo.2002).

In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the Supreme Court held that the constitutional prohibition against cruel and unusual punishment under the Eighth Amendment requires governmental entities to provide medical care for convicted prisoners.

Later, in City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983), the Court determined that, based on the Due Process Clause of the Fourteenth Amendment, governmental entities also have a duty to provide medical care to pretrial detainees in their custody.

In Revere, however, the Court declined to hold that the Constitution requires the detaining governmental entity to pay the costs incurred by the medical provider. The Court stated: “[A]s long as the governmental entity ensures that the medical care needed is in fact provided, the Constitution does not dictate how the cost of that care should be allocated as between the entity and the provider of the care. That is a matter of state law.” City of Revere v. Mass. Gen. Hosp., supra, 463 U.S. at 245, 103 S.Ct. at 2983.

Accordingly, here, we must apply Colorado law in determining whether the City is liable for the costs incurred by the Hospital in affording medical care and treatment to the pretrial detainee.

The Hospital argues that Colorado statutory law imposing a duty on governmental entities to provide medical care for detainees in their custody supports the trial court’s ruling here. We agree.

A reviewing court must construe statutes so as to give effect to the legislative intent and must interpret them as a whole in order to give effect to the entire statutory scheme. People v. Felgar, 58 P.3d 1122 (Colo.App.2002). To discern that intent, we must look first to the plain language of the statute and interpret the words in accordance with their commonly accepted meanings. Bodelson v. City of Littleton, 36 P.3d 214 (Colo.App.2001).

No Colorado statute expressly addresses the allocation of costs of medical care for pretrial detainees. However, as the Hospital points out, § 16-3-401(2), C.R.S.2002, imposes a duty on a detaining governmental entity to provide such medical care:

Persons arrested or in custody shall be treated humanely and shall be provided with adequate food, shelter, and, if required, medical treatment. Anyone receiving medical treatment while held in custody may be assessed a medical treatment charge as provided in section 17-26-104.5, C.R.S.

(Emphasis added.)

Courts in other jurisdictions have considered whether a statutory duty of a governmental entity to provide medical care includes or implies an obligation to pay the costs of such care.

For example, in United Hosp. v. D’Annunzio, 514 N.W.2d 681, 684 (N.D.1994), the North Dakota Supreme Court held that a statute requiring “[t]he governing body of each jail [to] ... [e]nsure that inmates have adequate medical care” includes “the inherent duty to pay for such care.” In so ruling, the court quoted a North Dakota attorney general opinion: “It would be illogical to assume that the governing body of a jail would be financially responsible for the medical care and treatment of an inmate if provided in the jail, but would not be financially responsible for that same treatment if provided by an established medical facility such as a local hospital.” United Hosp. v. D’Annunzio, supra, 514 N.W.2d at 686 (citing North Dakota Attorney General Opinion 14 at 4 (1986)).

A panel of the Florida District Court of Appeal made a similar ruling in Hospital Board of Directors v. Durkis, 426 So.2d 50, 51 (Fla.Dist.Ct.App.1982). Based on a Florida statute obligating sheriffs to furnish medical care for prisoners, the panel held that “a sheriff who has custody of such a prisoner is responsible for his immediate medical needs and impliedly agrees to pay the necessary and reasonable hospital charges when a prisoner in his custody must be hospitalized.”

In contrast, in Myrtle Beach Hospital, Inc. v. City of Myrtle Beach, 341 S.C. 1, 532 S.E.2d 868 (2000), relied on by the City here, the South Carolina Supreme Court held that statutes mandating the humane treatment of inmates of the state penitentiary and county jails, and making the director of the Department of Corrections responsible for proper care of the prisoners, did not demonstrate a legislative intent concerning the allocation of medical expenses for pretrial detainees.

Similarly, the Alabama Supreme Court, in Baptist Health Systems, Inc. v. City of Midfield, 792 So.2d 1095 (Ala.2001), rejected an argument that a governmental entity was liable for medical costs of a pretrial detainee where the pertinent statute, by its express terms, applied only to medical treatment afforded prisoners confined in a county jail. The court reasoned that, in the absence of any statute imposing an obligation to pay the costs of medical treatment rendered to a pretrial detainee, the entity would not be liable.

Unlike the statutes addressed in Myrtle Beach Hospital and Baptist Health Systems, supra, however, § 16-3 — 401(2) expressly imposes on the detaining entity a duty to provide medical treatment for individuals “in custody.” The statutory duty in Colorado is not limited to treatment afforded individuals who have already been convicted and incarcerated.

We agree with the analysis and holdings in United Hospital v. D’Annunzio, supra, and Hospital Board of Directors v. Durkis, supra, that where, as here, a state statute unambiguously imposes a duty on governmental entities to provide medical treatment and care for detainees in then- custody, such a duty includes or, at a minimum, implies an inherent obligation to pay the costs of such treatment and care. Our conclusion accords with the General Assembly’s evident intent to place the duty to provide such medical care on the entities holding the detainees.

The City argues that the Colorado statutes do not create a private right of action in favor of a medical provider such as the Hospital here, and that the trial court therefore erred. In asserting this argument, the City relies on Board of County Commissioners v. Moreland, 764 P.2d 812 (Colo.1988), and Quintano v. Industrial Commission, 178 Colo. 131, 495 P.2d 1137 (1972).

In Moreland, the court stated: “We agree that based on Quintano, the absence of a clear expression of legislative intent to allow a civil liability remedy for breach of the obligations imposed on the County by the [building code] precludes recovery by [plaintiff] in this case.” Bd. Of County Comm’rs v. Moreland, supra, 764 P.2d at 817.

Here, however, the Hospital does not contend that § 16-3-401(2) creates a private right of action, as such, based on a breach or violation of a statutory duty owed by the City. On the contrary, the treatment provided by the Hospital actually served to fulfill the City’s statutory duty to provide medical care to the pretrial detainee in its custody. Under these circumstances, the cases discussing creation of private rights of action based on violations of statutory duty are simply inapposite in our view.

Rather, the Hospital’s position — and the basis of our ruling — is that in expressly requiring governmental entities to provide medical care to pretrial detainees, the General Assembly intended to impose a corollary duty to pay for such care. It is illogical to assume that the General Assembly intended to impose a duty on governmental entities to provide or arrange for the provision of such care for pretrial detainees, but did not intend to require the entities to pay the very medical providers through whose efforts that duty is discharged.

We therefore conclude that the trial court did not err in entering summary judgment determining that the City is liable to the Hospital for the medical costs incurred in the treatment and care of the pretrial detainee.

The judgment is affirmed.

Judge ROTHENBERG and Judge DAILEY concur.


author: Judge GRAHAM.

text:
    In re the MARRIAGE OF Rebecca K. MOHRLANG, Appellee, and Bruce A. Mohrlang, Appellant.
    No. 02CA0360.
    Colorado Court of Appeals, Div. IV.
    July 31, 2003.
    Rehearing Denied Sept. 18, 2003.
    Certiorari Denied March 8, 2004.

      Kaplan Law, L.L.C., Marc J. Kaplan, Denver, Colorado, for Appellee.
    Hunnicutt & Appelman, P.C., Robert E. Lanham, Denver, Colorado, for Appellant.

       Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S.2002.

   Opinion by

Judge GRAHAM.

In this dissolution of marriage action between Bruce A. Mohrlang (husband) and Rebecca K. Mohrlang (wife), husband appeals from that portion of permanent orders valuing his interest as a beneficiary in a trust. We reverse and remand for reconsideration.

The principal issue in this case was valuation of two companies and the stock that the parties owned in them. Husband individually owned 250 shares of Mohrlang Manufacturing, Inc. (MMI) stock and was the beneficiary of 3850 shares of MMI stock held in the Bruce Mohrlang Trust. Wife was the beneficiary of 200 shares of MMI stock in a similar trust.

The trial court found that the trust established in husband’s name was irrevocable and not modifiable, and the settlor, husband’s father, retained no interest in the income, principal, or remainder of the trust. The beneficiary received mandatory net income distributions, at least quarterly, and principal distributions within the discretion of the trustee. The beneficiary’s interest would terminate if husband predeceased his parents, and his share would be divided in a designated proportion among his children, if living, and the descendants of any deceased child.

Husband does not contest the court’s determination that his interest in the trust constituted property, according to the analysis established by In re Marriage of Balanson, 25 P.3d 28 (Colo.2001). Nor does he challenge the determination that, because the trust was acquired by gift during the marriage, the increase in value of the stock in trust constituted marital property.

At issue in this appeal is the trial court’s conclusion that the value of husband’s remainder interest in the trust should not be discounted in calculating its present value even though he could not receive payment of the corpus until after his parents died.

Husband’s expert valued the stock by using an income approach and urged the court to apply a discount rate of four percent for inflation plus a thirty-three percent capitalization rate to that value. However, the trial court credited the opinion of wife’s expert and determined the MMI stock should be valued based on the current value of the corporation’s net assets. It rejected use of the income approach because, in recent years, the company had suffered losses and, historically, the income generated was sufficient to provide only the salaries of the directors and officers of the corporation. The court further relied on the fact that two pieces of real estate constituted one-third of the company’s assets. The court criticized husband’s expert valuation as being result-driven.

Instead, the trial court found that the parties had presently vested rights to income because those distributions were mandatory, as reflected in the tax returns. Additionally, it found that husband had an enforceable right to have the trustee exercise its discretion to invade the corpus of the trust for husband’s support, maintenance, health, and education.

The court also considered the mortality tables, which it determined were the only evidence presented concerning the likelihood that the remainder would vest, and concluded that vesting was “more probable than not.” The court found that, even if for “some unforeseen circumstances the parties might be divested of their remainder interest, that interest is going to pass at least in part to their children.” The court concluded that the beneficial enjoyment of the trust corpus would be realized and that it was not “likely to be siphoned off and consumed by someone else in the family.” Thus, the court determined that the particulars of the trust did not warrant a discount for a present value calculation.

I.

Husband first contends that the trial court erred as a matter of law when it failed to discount the present value of his interest in the trust. We agree.

Admittedly, it is difficult to determine the present value of a vested interest in a trust that is subject to divestment based on a condition subsequent. In re Marriage of Gorman, 36 P.3d 211 (Colo.App.2001). However, valuation of such an interest should be accomplished by using an approach similar to that taken when valuing pensions. See In re Marriage of Balanson, supra.

To determine the net present value of a vested interest that is subject to the contingency of survival to a future date, the court may consider a variety of circumstances, including actuarial information concerning the life expectancy of the settlor or current beneficiaries. See In re Marriage of Crubb, 745 P.2d 661 (Colo.1987)(noting application of seven percent discount factor to account for risk of forfeiture in valuation of vested but unmatured pension, but remanding for consideration of alternative distributions).

Three methods of valuation are applicable to pensions, but of those three only net present value contemplates an immediate distribution to the spouse. In re Marriage of Hunt, 909 P.2d 525 (Colo.1995). Of course, an immediate distribution is precisely what the trial court must contemplate in an equitable distribution of marital property.

If an interest is inaccessible before a distant date and terminable upon the beneficiary’s death, the risk of forfeiture is also an important factor for the trial court to consider. In re Marriage of McGinnis, 778 P.2d 281 (Colo.App.1989); see also In re Marriage of Beckman, 800 P.2d 1376 (Colo.App.1990).

However, the determination of value is within the discretion of the court based upon consideration of all the relevant circumstances. See In re Marriage of Page, 70 P.3d 579 (Colo.App.2003). Ultimately, credibility determinations lie within the sole discretion of the trial court. See In re Marriage of Gorman, supra.

Here, the trial court discredited the testimony of husband’s expert and was not required to accept the thirty-seven percent discount proposed by that expert to reduce the value of husband’s remainder interest to its present value.

However, the court erred by rejecting any discount based on the fact that husband’s interest would go to his children if he predeceased his parents. The trial court lacks the authority to award marital property to the children of the marriage or to compel a parent to make such a conveyance. Giambrocco v. Giambrocco, 161 Colo. 510, 423 P.2d 328 (1967); see also In re Marriage of Sewell, 817 P.2d 594 (Colo.App.1991).

Distribution of principal was dependent on the trustee’s determination that husband required such amounts to provide for his support, maintenance, health, and education. Thus, it was conditioned on need. See Dunklee v. Kettering, 123 Colo. 43, 225 P.2d 853 (1950). Further, the court should have considered actuarial information concerning the life expectancy of husband’s parents and relevant information concerning the likelihood that the trustee would invade the trust corpus in the future. See In re Marriage of Balanson, supra.

Accordingly, this matter must be remanded to the trial court to reconsider whether the value of husband’s trust interest in MMI stock should be discounted by an appropriate rate because of the delay in husband’s receiving his interest, the possibility of forfeiture, and other contingencies. See In re Marriage of McGinnis, supra; cf. City of Boulder v. Streeb, 706 P.2d 786 (Colo.1985)(because referee employed an unduly restrictive standard of compensability, it was necessary to remand case for additional findings under the correct standard).

On remand, the court may take such additional evidence as it may deem appropriate and relevant. See In re Marriage of Lee, 781 P.2d 102 (Colo.App.1989). The court will need to consider the current economic circumstances of the parties in determining an equitable property distribution. See In re Marriage of Wells, 850 P.2d 694 (Colo.1993).

II.

Because of the disposition we have reached, we need not address husband’s other contentions of error.

The judgment is reversed, and the case is remanded for reconsideration as set forth herein.

Judge STERNBERG and Judge HUME * concur.