Was Mesa State College eligible for Amendment 50 community college gaming-tax revenue?

Opinion 09-01: Mesa State College's community college division qualified for Amendment 50 gaming-tax revenue

Plain-English summary

Voters had just passed Amendment 50, allowing Central City, Black Hawk, and Cripple Creek to expand casino hours, betting limits, and games. The new tax revenue was earmarked for "the state's public community colleges, junior colleges, and local district colleges." Mesa State College's president asked whether the College, technically a four-year baccalaureate institution, would see any of that money for its community college operations. The AG said yes. Mesa State College had originated as Mesa Junior College and, under § 23-53-101, was statutorily required to "maintain a community college role and mission" alongside its newer baccalaureate role. The Colorado Commission on Higher Education recognized Mesa State as having a community college service area covering Mesa, Delta, Montrose, San Miguel, and Ouray counties. The AG read Amendment 50's language to extend to all public colleges authorized to operate community college programs, not only those under the State Board for Community Colleges and Occupational Education. Excluding Mesa State would have stranded community college students in a five-county region from the benefits of the amendment.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Mesa State College has since been renamed Colorado Mesa University; the underlying Amendment 50 distribution mechanics may also have evolved.

Background and statutory framework

Amendment 50 was a 2008 ballot measure that authorized voters in the three Colorado gaming towns to extend casino hours, raise the maximum single bet, and approve additional games. The new tax revenue from those expanded limits was directed to community colleges. Specifically, 78 percent went "to the state's public community colleges, junior colleges, and local district colleges to supplement existing state funding for student financial aid programs and classroom instruction programs," to be distributed in proportion to full-time-equivalent student enrollments. The amendment was codified at Colo. Const. art. XVIII, § 9(7)(c)(III)(A).

Mesa State College had been founded in the early twentieth century as Grand Junction Junior College, was renamed Mesa Junior College in 1937, and was expanded into a four-year institution in 1972. The 1972 statute that authorized the four-year role explicitly preserved the community college mission: "Mesa state college shall also maintain a community college role and mission, including vocational and technical programs." Two-year offerings were delivered through what was called the Western Colorado Community College Division.

The Colorado Commission on Higher Education had, under § 23-1-109(2), defined service areas for community college programs across the state. Under that 1995 service-area regulation, Mesa State and Adams State were the only two four-year institutions with two-year roles, and Mesa State's community-college service area covered Mesa, Delta, Montrose, San Miguel, and Ouray counties.

What the AG concluded at the time

The amendment's text reached community college programs at four-year institutions

The AG started with the words of the amendment: "the state's public community colleges, junior colleges, and local district colleges." That phrasing did not limit the benefit to colleges under the State Board for Community Colleges and Occupational Education (§ 23-60-104). The AG read it to include all public colleges authorized by Colorado law to engage in a community college role and mission.

Statutory mission language was the controlling fact

The AG pointed to § 23-53-101's directive that Mesa State College "shall also maintain a community college role and mission, including vocational and technical programs." That mission, plus the College's Commission-approved community-college service area in five counties, brought Mesa State within the class of institutions Amendment 50 was designed to fund.

Voter intent supported inclusion

Citing Bolt v. Arapahoe County Sch. Dist. No. Six, the AG framed the analysis in terms of giving effect to the will of the people. Excluding Mesa State would have meant excluding all community college students in its five-county service area from a measure clearly intended to expand community college opportunity statewide. The 2008 Blue Book ballot analysis emphasized helping more Coloradans benefit from community-college economic opportunities; the AG read that aim as supporting Mesa State's eligibility.

Persuasive interpretive aids

The AG cited Grossman v. Dean for the rule that the Blue Book is an aid in interpreting initiated constitutional amendments. The Blue Book's broad framing of the financial-aid and instruction goals reinforced an inclusive reading.

Common questions

Did the opinion guarantee Mesa State a specific dollar amount?

No. The opinion addressed eligibility, not allocation amounts. The amendment distributed funds in proportion to full-time-equivalent student enrollments. Mesa State's community college division would have received a share calibrated to its FTE.

Did this opinion apply to Mesa State's four-year programs?

No. The opinion's reasoning was tied to the College's community-college role, mission, and service area. The AG was not asked, and did not opine, whether four-year baccalaureate enrollments would also be eligible for Amendment 50 funds.

What about Adams State College, the other dual-mission institution?

The AG mentioned Adams State only in passing, when describing the Commission's service-area regulation that recognized both Mesa State and Adams State as four-year institutions with two-year roles. The opinion did not formally extend its conclusion to Adams State, but its reasoning would have applied identically.

Did the opinion address gaming revenue distributed to other purposes?

No. Amendment 50 directed 78 percent of new tax revenue to community colleges; the remaining 22 percent went to gaming impact mitigation and the state historical fund per § 9(7)(c)(III)(B) and (C). The opinion only addressed the 78-percent community-college slice.

Citations

• Colo. Const. art. XVIII, § 9(7)(c)(III)(A) — Amendment 50's directive that 78 percent of new tax revenue go to public community, junior, and local district colleges in proportion to FTE enrollment.
• C.R.S. § 23-53-101 (2008) — required Mesa State College to maintain a community college role and mission including vocational and technical programs.
• C.R.S. § 23-1-109(2) (2008) — gave the Colorado Commission on Higher Education authority to define service areas, including for community college programs.
• C.R.S. § 23-60-104 (2008) — established the State Board for Community Colleges and Occupational Education.
• Bolt v. Arapahoe County Sch. Dist. No. Six, 898 P.2d 525 (Colo. 1995) — Colorado Supreme Court rule that initiative interpretation must give effect to the will of the people in adopting the measure.
• Grossman v. Dean, 80 P.3d 952 (Colo. App. 2003) — Colorado Court of Appeals decision treating the Blue Book as an aid in interpreting initiated constitutional amendments.

Source

• Landing page: https://coag.gov/attorney-general-opinions/
• Original PDF: https://coag.gov/app/uploads/2019/08/No.-09-1-Whether-any-of-the-Additional-Gaming-Revenues-Raised-Under-Recently-Passed-Amendment-50-would-be-Available-for-Mesa-State-College-and-its-Students.pdf

Original opinion text

STATE OF COLORADO

John W. Suthers
Attorney General

DEPARTMENT OF LAW

Cynthia H. Coffman
Chief Deputy Attorney General

Office of the Attorney General
State Services Building
1525 Sherman Street - 7th Floor
Denver, Colorado 80203
Phone (303) 866-4500

Daniel D. Domenico
Solicitor General

FORMAL OPINION OF JOHN W. SUTHERS Attorney General

No. 09-01
AG Alpha No. HE MS AGBCV

January 28, 2009

This opinion, requested by Mesa State College President Tim Foster, concerns whether any of the revenues raised under the recently-passed Amendment 50 would be available for Mesa State College and its students.

QUESTION PRESENTED AND CONCLUSION

Question: Whether under Amendment 50 any of the revenues raised under the measure would be available for Mesa State College and its students.

Answer: Yes. Mesa State College's community college students and programs are eligible to receive additional funding under the measure.

BACKGROUND

Amendment 50 allows residents of Central City, Black Hawk, and Cripple Creek to vote to extend casino hours, approve additional games, and increase the maximum single bet limit for legalized gaming. The new gaming tax revenues that will result from these expanded gaming limits are to be used to fund Colorado community colleges. Specifically, the text of Amendment 50 provides that the new tax revenues will be distributed to community colleges as follows:

(A) Seventy-eight percent to the state's public community colleges, junior colleges, and local district colleges to supplement existing state funding for student financial aid programs and classroom instruction programs; provided that such revenue shall be distributed to institutions that were operating on or after January 1, 2008, in proportion to their respective full-time equivalent student enrollments in the previous fiscal year.

Amendment 50, codified at Colo. Const. art. XVIII, section 9(7)(c)(III)(A).

Thus, the question of whether any of the additional gaming tax revenues from passage of Amendment 50 will go to Mesa State College turns on whether any part of Mesa State College meets the definition of the "state's public community colleges, junior colleges, and local district colleges" as those terms are used in Amendment 50. I conclude that Mesa State College's community college programs, offered through the College's Western Colorado Community College Division, do meet these definitions and are thus eligible for Amendment 50 funding.

DISCUSSION

What is now Mesa State College was originally organized as a local junior college district known as Grand Junction Junior College. In 1937, the name of Grand Junction Junior College was changed to Mesa Junior College. In 1972, the mission of Mesa Junior College was expanded and four-year programs were added to the College's previous community college role and mission. See Colo. Rev. Stat. § 124-27-1 (1963); § 23-54-104, C.R.S. (1972) (transfer of property and assets of Mesa Junior College District to newly-authorized Mesa State College).

There is hereby established a college at Grand Junction, to be known as Mesa state college, which shall be a general baccalaureate and specialized graduate institution with moderately selective admission standards. Mesa state college shall offer undergraduate liberal arts and sciences, teacher preparation, and business degree programs and a limited number of graduate programs.

§ 23-53-101, C.R.S. (2008).

While the legislature expanded the role and mission of Mesa Junior College, however, it expressly declared that the school retained its prior role and mission as a community college as well: "Mesa state college shall also maintain a community college role and mission, including vocational and technical programs. Mesa state college shall receive resident credit for two-year course offerings in its commission-approved service area." Id.

Thus, Mesa State College maintains its prior role and mission as a community college in addition to its newer role and mission as a general baccalaureate and specialized graduate institution. This community college role and mission is currently reflected in Mesa State College's Western Colorado Community College Division, which is an open admission, comprehensive community college offering higher education instruction, including certificate programs that can be completed in nine months, associate degree programs that average two years in length, and many skills courses for career upgrades.

Mesa State College's continuing role and mission as a community college is recognized by the Colorado Commission on Higher Education, which is the state agency charged by statute with defining the geographic and programmatic service areas for Colorado public institutions of higher education, including the service areas for community college programs. § 23-1-109(2), C.R.S. (2008). The Colorado Commission on Higher Education's Service Areas of Colorado Institutions of Higher Education, October, 1995, Part N, defines the geographic service areas for all Colorado Community Colleges and area vocational schools. This regulation recognizes the dual role of Mesa State College, providing that "[t]wo four-year institutions, Adams State College and Mesa State College, have two-year roles and may conduct appropriate two-year programs in their defined service areas". The regulation goes on to define the Mesa State College community college service area as follows:

Mesa State College shall provide Resident instruction two-year academic programs in Mesa, Delta, Montrose, San Miguel and Ouray counties. It shall cooperate with Adams State College in providing any needed two-year academic programs, coordinated by the central office of The State Colleges in Colorado, in Gunnison and Hinsdale counties. The College's service area for vocational programs is Mesa County.

Service Areas of Colorado Institutions of Higher Education, October, 1995, Part N, § 2.13.

Additionally, state-supported institutions of higher education are prohibited from offering off-campus instruction or programs outside of their Commission-approved service areas unless approved by the Commission or otherwise provided by law. § 23-1-109(2), C.R.S. (2008). Thus, with the exception of Gunnison and Hinsdale Counties, where its authority overlaps with Adams State College, Mesa State College is the sole provider of community college resident two-year academic programs for its Commission designated service area.

In interpreting an initiative, a court must "determine and give effect to the will of the people in adopting the measure". Bolt v. Arapahoe County Sch. Dist. No. Six, 898 P.2d 525, 532 (Colo. 1995). In this case, the expressed intent of Amendment 50 is to provide additional gaming tax revenue to "the state's public community colleges, junior colleges, and local district colleges" that were operating on or after January 1, 2008 "in proportion to their respective student enrollments as of January 1 of each year". Colo. Const. art. XVIII, section 9(7)(c)(III)(A). Thus, the intent of the initiative is clearly to benefit community colleges in proportion to their student enrollment. Moreover, the deliberate use of the terminology "the state's public community colleges, junior colleges, and local district colleges" indicates an intent that the benefit extend beyond those public community colleges under the authority of the State Board for Community Colleges and Occupational Education, § 23-60-104, C.R.S. (2008) and be inclusive of all public colleges authorized to engage in a community college role and mission. If Mesa State College were excluded from eligibility for revenue under this Initiative, then those students receiving community college services either now or in the future in Mesa State College's Commission-designated service area would be excluded from the benefits of Amendment 50.

Such an interpretation is contrary to the intent of Amendment 50. Courts look to the Blue Book issued by the Colorado Legislative Council as an aid in interpreting initiated constitutional amendments. Grossman v. Dean, 80 P.3d 952, 962 (Colo. App. 2003). In this case, the 2008 Blue Book Colorado Ballot Analysis for Amendment 50 notes that "[increasing financial aid will help more Coloradoans benefit from the economic opportunities that community colleges can provide. The additional revenue also goes to recruiting and retaining qualified faculty so that Colorado can offer quality education throughout the state." Thus, an interpretation of the scope of Amendment 50 that would, in effect, exclude resident students within Mesa State College's exclusive geographic and programmatic service area would appear contrary to the intent of the Initiative to expand community college opportunities and access to qualified faculty for all of Colorado's citizens.

CONCLUSION

Based on the foregoing analysis, I conclude that Mesa State College's Western Colorado Community College Division and its students would be eligible to receive supplemental student financial aid and classroom instruction programmatic funding under the provisions of Amendment 50.

Issued this 28th day of January, 2009.