DISTRICT COURT CITY AND COUNTY OF DENVER, COLORADO City and County Building 1437 Bannock Street, Room

256 Denver, CO 80202 DOUGLAS BRUCE, Plaintiff, v. STATE OF COLORADO and GOVERNOR JOHN HICKENLOOPER, in his official capacity, Defendants.

EFILED Document CO Denver County District Court 2nd JD Filing Date: Apr 12 2011 12:22PM MDT Filing ID: 36991949 Review Clerk: Ashley Landis

tCOURT USE ONLY t Case No. 10CV2425 Courtroom: 269 (FKA Courtroom 2) ORDER RE: MOTION FOR SUMMARY JUDGMENT

THIS MATTER is before the Court on Defendants Motion for Summary Judgment. Defendants, John Hickenlooper in his official capacity as the Governor of the State of Colorado, and the State of Colorado (collectively Defendants or the State), filed their Motion for Summary Motion on January 27, 2011. Plaintiff, Douglas Bruce (Bruce), filed an untimely Response (Answer to Motion for Summary Judgment) on February 24, 2011. By Court Order, Bruces Response was deemed timely and filed on March 4, 2011. Shortly thereafter, the State filed its timely Reply. The Court, having reviewed the Motion, Response and Reply, the court file, and otherwise being fully advised in the premises herein, makes the following findings and orders: 1. Bruce seeks declaratory and injunctive relief against the State concerning its implementation of Colo. Const. art X, 20(5), which requires the establishment of an emergency reserve of 3% or more of [the States] fiscal year spending excluding bonded debt service. Bruce claims that the State has violated 20(5) by designating capital assets as part of the emergency reserve. He seeks a declaration that the State has violated 20(5), along with an injunction requiring the State to immediately establish a separately held, all-cash emergency reserve. Bruce maintains that the purpose of 20(5) is clear and the language is unambiguous, and consequently must be enforced. 2. The Court granted the States motion to dismiss in part on August 23, 2010. The Court dismissed Bruces tort claims against the Defendants, but the remaining claim for declaratory and injunctive relief survived.

3. In its Motion for Summary Judgment, the State argues that the composition of the emergency reserve is now, and always has been, consistent with Colo. Const. art. X, 20(5). More specifically, the State maintains that the General Assemblys interpretation of 20(5) is not foreclosed by the vague and ambiguous language contained in the clause requiring the establishment of the emergency reserve. In the absence of a specific constitutional directive that the emergency reserve be made up solely of cash assets, the State asserts that the General Assembly is free to make, as a matter of policy, decisions about the emergency reserves composition. So long as those decisions are consistent with statutorily mandated accounting principles, the Defendants contend that the composition of the emergency reserve is consistent with state law. 4. In contrast, Bruce argues that the plain language of 20(5) requires that cash or liquid assets are the only type of assets that may comprise the emergency reserve. This interpretation is opposed to the amalgamation of capital assets, property holdings, and other illiquid assets, such as accounts receivable and inventory, that have historically comprised the emergency reserve. Bruce makes a number of arguments to this effect, including but not limited to the canons of statutory interpretation and the plain language of the constitutional provision. Included among these arguments, Bruce contends that the evident contemporary interpretation, proffered by the drafters of a statute or constitutional amendment, is relevant to a Courts interpretation of a statute or constitutional provision. Bruce submitted a sworn affidavit on August 27, 2010, wherein Bruce swears that he publically proffered his interpretation of 20(5) to thousands of voters in Colorado while campaigning for the amendment. 5. Summary judgment is appropriate when the pleadings and supporting documents indicate that there are no genuine issues as to any material fact, such that the movant is entitled to summary judgment as a matter of law. C.R.C.P. 56(c); Rocky Mountain Festivals, Inc. v. Parsons Corp., 242 P.3d 1067, 1074 (Colo. 2010); Brodeur v. Am. Home Assurance Co., 169 P.3d 139, 146 (Colo. 2007). Once the movant has met this burden, the burden shifts to the opposing party to establish that a triable issue of fact exists. Snook v. Joyce Homes, Inc., 215 P.3d 1210, 1218 (Colo. App. 2009). In reviewing the movants motion, the opposing party is entitled to all favorable inferences that are reasonably drawn from the undisputed facts. In re Tonko, 154 P.3d 397, 402 (Colo. 2007). Any doubt as to inferences that may be drawn must be resolved in favor of the opposing party. Id. 6. Defendants assert that Bruce has failed to meet his burden in presenting rebuttal evidence as to the existence of a genuine issue of material fact. The Court finds this argument unpersuasive. The Parties dispute whether an evident contemporary interpretation of 20(5), disseminated publically by Bruce prior to the 1992 election, should impact the Courts interpretation of the Statute. Both Parties cite relevant authorities, but the Court finds the caselaw inconclusive. Therefore, assuming that an evident contemporary interpretation may be relevant to the interpretation, there exists a genuine issue of material fact because the parties dispute Bruces pre-election public statements regarding 20(5). 7. In his affidavit, Bruce makes the following verified statements:

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As chief spokesman, I told voters about the cash that would be required for the emergency reserve, and that it would be three percent of the cash that was limited in its growth under the fiscal year spending growth caps of TABOR (7). I said this dozens of times in personal appearances, on radio, on television, in debates, in newspaper articles, and elsewhere. The audience for those remarks was hundreds of thousands during the course of three campaigns. (Bruce Aff. 5.) In opposition, the State points to hearing transcripts where Bruce never directly addressed the composition of the emergency reserve. (State Mot. for Summ. J. 15; id., Ex. 8, at 13, 30) The Court agrees that Bruce makes no direct reference in this hearing, but also observes that Bruce disputes the inferences that may be drawn from his statements. 8. Bruces affidavit is competent evidence on this issue, and it has not been refuted by Defendants. The States argument that Bruce has not come forward with extrinsic evidence, such as media reports or newspaper articles, to support his affidavit goes to the weight of the evidence, not to the existence of a genuine issue of material fact. Should Bruce testify as to the contents, nature, and quantity of his pre-election statements, it will be in the Courts sound discretion to weigh his credibility and the import of the testimony. 9. Accordingly, because the state cannot point to authorities that reject the evident contemporary interpretation argument, and because the Parties dispute the nature, contents, and quantity of Bruces averred contemporary interpretation, the Motion for Summary Judgment is DENIED. The Court Trial docketed on April 28, 2011, at 915 am is currently double set. In the event a 5-day Jury Trial commences on April 25, 2011, the Court Trial in this matter shall be continued to May 5, 2011, where it will be the only case docketed. The Court shall contact the Parties at the earliest possible time on or before April 25, 2011, to confirm the trial date. SO ORDERED this 12th day of April, 2011.

BY THE COURT:

District Court Judge

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