Opinion
No. 74-055
Decided December 17, 1974. Rehearing denied January 7, 1975. Certiorari granted March 31, 1975.
District attorney brought action against Board of County Commissioners seeking order requiring Board to pay that county's pro rata share of the salaries of four part-time deputy district attorneys. From summary judgment for district attorney, board appealed. Reversed
1. COUNTIES — Salaries — Deputy District Attorneys — Not Assessable — Proportional to Population — Error — Order Payment. From the explicit provisions of the statute authorizing the appointment of part-time deputy district attorneys, it is evident that the salaries of part-time deputies are not to be assessed against the counties of the judicial district in the proportion that their population bears to the whole population of the district; therefore, the trial court erred in ordering the Board of County Commissioners to pay this proportionate share of the salaries of four part-time deputies that had been appointed by the district attorney.
2. Failure — County Commissioners — Approve — Deputy District Attorneys — Appointments — Not Illegal — Burden — Show — No Reasonable Necessity. The failure of the Board of County Commissioners to approve appointments of four part-time deputies by the district attorney did not render their appointments illegal; if the board objects to the district attorney's appointees, the burden is on the Board to show that there is no reasonable necessity for the part-time deputies the district attorney seeks to employ, and in the present case, there has been no such showing.
3. Deputy District Attorney — Serve — More Than One County — Reasonable Relationship — County's Share — Salary — Services Anticipated. If the services of a part-time deputy district attorney are to be rendered to more than one county within the judicial district, there should be some reasonable relationship shown in the district attorney's budget proposals between that part of the salaries each county is expected to pay and the services anticipated in that county for the ensuing fiscal year.
4. APPEAL AND ERROR — Payment of Judgment — Board of County Commissioners — — Not — Waiver — Right to Review — Stay of Execution — Denied. Although Board of County Commissioners paid its proportionate share of the salaries of part-time district attorneys in accordance with the judgment of the trial court, the Board's motion for stay of execution were denied both by the trial court and by the Court of Appeals; therefore, the issues relative to the Board's challenge to the payment of these salaries did not become moot; the applicable rule is that the payment of a judgment in obedience to the order of the court does not waive the right to review unless the payment was a compromise or was pursuant to an agreement not to appeal.
5. STATUTES — Circumstances — Militate Against — Retroactive — Application — As Construed — Prospective Application Only. Since in dispute relative to Board's payment of its proportional share of the salaries of part-time deputy district attorneys, Board's payment of the judgment and the elapse of another fiscal year militate against retroactive application of the statute as construed by Court of Appeals, such construction shall have prospective application only from the date that the opinion of the Court of Appeals becomes final, either after review by the Colorado Supreme Court or, in the absence of such review, pursuant to the Colorado Appellate Rules.
Appeal from the District Court of the County of Yuma, Honorable Waino Johnson, Judge.
Doyle T. Johns, Jr., for plaintiff-appellee.
James M. De Rose, Michael C. Stern, for Amicus Curiae, Colorado District Attorneys Association.
R. C. Stephenson, Hurth, Yeager Sisk, John M. Yeager, for defendants-appellants.
The Board of County Commissioners of Yuma County and its individual members appeal from a summary judgment in favor of Doyle T. Johns, Jr., District Attorney for the Thirteenth Judicial District. The trial court interpreted the provisions of 1971 Perm. Supp., C.R.S. 1963, 45-3-3, as authorizing the district attorney's appointment of four part-time deputy district attorneys to serve the entire judicial district and approved the payment of their salaries by the counties within the district in proportion as the population of each county bears to the whole population of the judicial district. We reverse.
In September 1972, Johns transmitted to the seven Boards of County Commissioners within the judicial district his proposed budget for the fiscal year 1973 and indicated his intention to employ part-time deputy district attorneys to serve the entire district, their salaries to be paid by the counties in proportion as the population of each county bore to the whole population of the judicial district. In mid-December, Johns appointed four part-time deputy district attorneys, and in late January 1973, he advised the county commissioners within his district of these appointments. The Yuma County Board of County Commissioners neither approved nor disapproved of Johns' budget and appointments, but in February 1973, declined to honor the salary and expense vouchers submitted for the four part-time deputies because there was no showing that their services were performed for Yuma County.
In April 1973, Johns brought suit for declaratory judgment, seeking an order directing the Board of County Commissioners to pay Yuma County's 12.5% pro rata share of the salaries of these part-time deputies. Both parties moved for summary judgment and after the filing of interrogatories, answers to interrogatories, affidavits, and other documents, the trial court heard arguments on the motions in August 1973.
The trial court found that
"since all the counties receive the services of all four deputies, the equitable and fair method of assessing their compensation would be on a pro rata population basis applied to full-time deputy district attorneys . . . . [T]he phrase in 1963 C.R.S. Chapter 45-3-3(c), 'to be paid by the county or counties receiving such services,' applies to the general services of a deputy appointed to represent the district attorney in such county or counties . . . . "
The court entered judgment in November 1973, ordering the Board to pay all salary vouchers of the four part-time deputy district attorneys.
Two of the three issues presented for review involve construction of the provisions of 1971 Perm. Supp., C.R.S. 1963, 45-3-3, which provides:
"(1)(a) In every judicial district, deputies of the district attorney shall be entitled to receive as compensation for services rendered by them, as the district attorney may direct, a sum not to exceed the maximums as provided in paragraphs (b) and (c) of this subsection (1), subject to the approval of the board of county commissioners of the county or city council of the city and county affected.
"(b) Full-time deputies of every judicial district shall receive as compensation for services rendered by them a sum not to exceed eighteen thousand dollars per annum; but the full-time chief deputy, appointed pursuant to section 45-3-1(2), shall be entitled to receive as compensation for his services a sum not to exceed nineteen thousand dollars per annum. Such full-time chief deputy and deputy district attorneys shall not engage in the private practice of law, nor receive any income from any private law firm.
The salary amounts in (1)(b) were increased by Ch. 161, 1973 Session Laws. Subsection (1)(c) remains unchanged.
"(c) The district attorney in every judicial district that is composed in part of a county or counties of less than twenty-five thousand population may, with the approval of the board of county commissioners of such county or counties, appoint one or more part-time deputies to fulfill the duties of the district attorney which may arise in such county or counties. Such part-time deputies shall be entitled to receive as compensation for services rendered a sum not to exceed ten thousand dollars per annum, to be paid by the county or counties receiving such services. Such part-time deputies may engage in the private practice of law.
"(2) The salaries specified in paragraphs (a) and (b) of the subsection (1) of this section shall be paid in twelve equal monthly installments. Each county comprising such judicial district shall pay such deputy's salary in proportion as the population of such county bears to the whole population of such judicial district."
The Board contends that subsection (1)(c) of this statute provides the exclusive method for the appointment and payment of part-time deputy district attorneys in judicial districts comprised of counties of less than twenty-five thousand population, as does the Thirteenth Judicial District. We agree.
[1] Where a statute is explicit and its meaning plain, we are not at liberty to resort to forced interpretation. See Harding v. Industrial Commission, 183 Colo. 52, 515 P.2d 95. Subsection (1)(c) of Article 3 is the only provision in Chapter 45 authorizing the appointment of part-time deputy district attorneys. This subsection makes explicit provision for compensating the services of such deputies by the county or counties receiving the services, and the omission from subsection (2) of any reference to subsection (1)(c) makes it evident that the salaries of part-time deputies are not to be assessed against the counties of a judicial district in proportion as the population bears to the whole population of the district. We hold, therefore, that the trial court erred in ordering the Board to pay its 12.5% proportionate share of the salaries of the four part-time deputies appointed by the district attorney.
[2] We do not agree, however, with the Board's contention that its failure to approve the appointments of the four part-time deputies rendered their appointments illegal. The district attorney's subordinates hold office at his pleasure, see 1967 Perm. Supp., C.R.S. 1963, 45-3-1(1), 1971 Perm. Supp., C.R.S. 1963, 45-3-1(2), and the provisions of 45-3-3 subjecting the district attorney's appointments to "the approval of the board of county commissioners" do not empower the Board to veto his appointments by silence. If the Board objects to the district attorney's appointees, the burden is on the Board to show that there is no reasonable necessity for the part-time deputies the district attorney seeks to employ. See Wadlow v. Kanaly, 182 Colo. 115, 511 P.2d 484; and Johnson v. Board of County Commissioners, 174 Colo. 350, 483 P.2d 1344. There has been no such showing here.
[3] We do not mean to suggest that part-time deputy district attorneys must be residents of the counties they serve or that payment by the county for services already rendered is in any way contingent upon a showing by the district attorney of the nature of those services or the actual time spent by the part-time deputy in the county receiving the services. But if the services of a part-time deputy district attorney are to be rendered to more than one county within the judicial district, there should be some reasonable relationship shown in the district attorney's budget proposals between that part of the salaries each county is expected to pay and the services anticipated in that county for the ensuing fiscal year. Only in this way can the professional independence of the district attorney be assured and the fiscal responsibilities of the board of county commissioners be discharged. See C.R.S. 1963, 45-3-1, as amended, and Wadlow v. Kanaly, supra.
The district attorney, relying on Johnson v. Board of County Commissioners, supra, asserts that the issues in this case have become moot by the Board's payment of Yuma County's proportionate share of the salaries in accordance with the judgment of the trial court. We do not regard that case as controlling here, since in Johnson, it appears that the salary of the deputy district attorney was paid voluntarily, before prosecution of the writ of error.
[4] In this case, the Board's motions for stay of execution were denied both by the trial court and by this court. Under these circumstances, the rule is that the payment of a judgment in obedience to the order of court does not waive the right to review unless the payment was a compromise or was pursuant to an agreement not to appeal. See Reserve Life Insurance Co. v. Frankfather, 123 Colo. 77, 225 P.2d 1035.
[5] The Board's payment of the judgment, however, and the elapse of another fiscal year, militate against retroactive application of the result we have reached. See Van Cleave v. Board of County Commissioners, 33 Colo. App. 227, 518 P.2d 1371. We therefore determine that the construction we have given to 1971 Perm. Supp., C.R.S. 1963, 45-3-3, shall have prospective application only from the date this opinion becomes final, either after review by the Supreme Court of the State of Colorado or, in the absence of such review, pursuant to the Colorado Appellate Rules.
Judgment reversed.
JUDGE ENOCH and JUDGE RULAND concur.