Decided July 9, 1990. Opinion Modified, and as Modified Rehearing Denied August 20, 1990.
Review Pursuant to Section 1-40-109(2), C.R.S. District Court, City and County of Denver Honorable John M. McMullen
Kenneth A. Padilla, Barry D. Roseman, Henry J. Feldman, for Plaintiff-Appellant.
Catharyn A. Baird, for Defendants-Appellees.
Shannon A. Robinson, P.C., Shannon A. Robinson, Jeffrey A. Esses, for Intervenors-Appellees.
In 1987 intervenors-appellees the Official English Committee (the intervenors) filed with Secretary of State Natalie Meyer (Meyer) petitions in support of a proposed initiative to amend the Colorado Constitution to make English Colorado's official language. Plaintiff-appellant Rita Montero (Montero), a registered elector of the state of Colorado, filed a protest against the petitions, and Meyer denied the protest. Montero subsequently filed a complaint for judicial review of Meyer's denial of the protest in the Denver District Court. The district court dismissed Montero's complaint. Montero then instituted this action by filing in this court, pursuant to subsection 1-40-109(2), 1B C.R.S. (1980), an application for review of the district court's order of dismissal. Montero specifically alleges that the petitions submitted in support of the proposed initiative were withdrawn and could not be re-filed before the applicable filing deadline, that Meyer improperly certified the initiative for the ballot, and that Meyer improperly dismissed Montero's amended protest.
The Official English Committee is composed of four registered electors, as that term is defined in § 1-40-106, 1B C.R.S. (1980 1989 Supp.), designated pursuant to § 1-40-107 to represent the signers of the petitions.
Montero brought her complaint for judicial review under C.R.C.P. 106(a)(4), 7A C.R.S. (1989 Supp.), and § 1-40-109(2), 1B C.R.S. (1980).
The parties do not dispute the facts. On October 29, 1987, the intervenors filed with Meyer petitions in support of a proposed initiative to add the Official English Amendment (the amendment) to the Colorado Constitution. The intervenors sought to place the proposed initiative on the ballot for the November 8, 1988, election. On November 13, 1987, Meyer verified that the petitions contained more than the 50,668 signatures required to place the proposed initiative on the ballot. On November 27, 1987, Montero filed a timely protest to the signatures on the petitions submitted in support of the proposed initiative on the ground that the signatures had been collected in violation of the Voting Rights Act, 42 U.S.C. §§ 1971 to 1974e (1983). On December 15, 1987, Meyer conducted a hearing on Montero's protest. At the hearing Meyer denied the protest and advised Montero that she had ten days to file an amended protest to the signatures. Montero did not file an amended protest to the petition signatures. Instead, Montero filed a complaint in the Denver District Court pursuant to C.R.C.P. 106(a)(4), 7A C.R.S. (1989 Supp.), challenging Meyer's decision. On May 20, 1988, the district court affirmed Meyer's denial of the protest, and specifically determined that Montero's federal Voting Rights Act claims should be filed in the United States District Court for the District of Colorado.
The proposed initiative was approved by a majority vote on November 8, 1988, and is now codified at Colo. Const. art. II, § 30a, 1A C.R.S. (1989 Supp.).
Montero challenged more than 62,000 of the signatures collected by the intervenors.
Montero and three other individuals (the protestants) then filed a complaint in the United States District Court for the District of Colorado claiming that Meyer had violated their rights under the Voting Rights Act by preparing, approving, and circulating, in counties subject to the bilingual provisions of the Voting Rights Act, petitions written only in English. See Montero v. Meyer, 696 F. Supp. 540 (D. Colo. 1988). On September 16, 1988, the United States District Court ruled in the protestants' favor and granted their request for a preliminary injunction preventing Meyer from holding an election on the initiative. Id. at 551. Meyer appealed the district court's ruling to the United States Court of Appeals for the Tenth Circuit.
On September 19, 1988, Meyer entered an order finding that the form of the petitions had been declared insufficient by the district court, and that the intervenors could attempt to cure the deficiencies in the petitions pursuant to subsection 1-40-109(2), 1B C.R.S. (1980). Meyer's order gave the intervenors until October 3, 1988, to rehabilitate defective petitions and file additional petitions. Meyer also certified the ballot initiative to the county clerks for placement on the ballot, pursuant to section 1-40-112, 1B C.R.S. (1980).
Subsection 1-40-109(2) was slightly amended in 1983, but the amendment has no influence on the issues in this case. See 1983 Colo. Sess. Laws 373. Subsection 1-40-109(2) was substantially amended in 1989. See 1989 Colo. Sess. Laws 326-27.
Meyer's September 19 order stated that in light of the preliminary injunction the petitions contained only 36,877 valid signatures. A minimum of 50,668 valid signatures were required to place the proposed initiative on the ballot.
Sections 1-6-202, 1B C.R.S. (1989 Supp.), and 1-40-112 required Meyer to certify the initiative to the county clerks at least 50 days before the election.
On September 20, 1988, the intervenors constructively withdrew the petitions to attempt to cure the deficiencies. The intervenors' declaration of constructive withdrawal stated that the intervenors were not conceding that the petitions they originally filed were insufficient under federal or state law, and that they were not waiving their right to appeal the entry of the preliminary injunction. The intervenors rehabilitated the petitions which were invalidated by the federal district court's ruling, and collected additional signatures. On October 3, 1988, the intervenors re-filed petitions in support of the initiative. On October 5, 1988, Meyer found that the rehabilitated petitions and the additional petitions contained almost 86,000 signatures, substantially more than the 50,668 signatures required to place the initiative on the ballot.
On October 12, 1988, the Tenth Circuit Court of Appeals reversed the federal district court and lifted the preliminary injunction. Montero v. Meyer, 861 F.2d 603 (10th Cir. 1988), cert. denied, 109 S. Ct. 3249 (1989). On October 12, 1988, Meyer ruled that the decision of the Tenth Circuit reinstated the signatures which had been invalidated by the district court's preliminary injunction. Meyer's order stated that Montero had until October 24, 1988, to file an amended protest. On October 24, Montero filed an amended protest which challenged the petition signatures re-filed by the intervenors on October 3, 1988. Montero's amended protest challenged the signatures on the ground that they were submitted within three months of the election in violation of Colo. Const. art. V, subsection 1(2), that they were collected in violation of the Voting Rights Act, and that the proposed initiative violated equal protection. Montero also challenged specific signatures on various other grounds. On November 2, 1988, Meyer granted the intervenors' motion to dismiss the amended protest on the ground that it was not timely filed.
In November 1988, Montero brought an action for declaratory and injunctive relief in the Denver District Court challenging Meyer's certification of the initiative prior to the November 1988 election, and her dismissal of Montero's amended protest to the petitions. The district court dismissed Montero's complaint. Montero then filed in this court an application for review of the district court's order of dismissal.
Montero's first contention is that the intervenors' re-filing of the initiative petitions on October 3, 1988, constituted an original filing. Montero argues that Meyer improperly certified the initiative for the ballot because the intervenors made this second original filing within three months of the election, in violation of article V, subsection 1(2), of the Colorado Constitution. We disagree.
Article V, subsection 1(2), of the Colorado Constitution states that "[i]nitiative petitions for state legislation and amendments to the constitution, in such form as may be prescribed pursuant to law, shall be addressed to and filed with the secretary of state at least three months before the general election at which they are to be voted upon." At the time the intervenors constructively withdrew their first filing, subsection 1-40-109(2) provided:
"In case the petition is declared insufficient in form or number of signatures of registered electors, it may be withdrawn by a majority in number of the persons representing the signers of such petition and, within fifteen days after the insufficiency is declared, may be amended or additional names signed thereto as in the first instance and refiled as an original petition."
In order to address Montero's claim we must decide whether the intervenors' attempt to comply with the cure provision of subsection 1-40-109(2) by constructively withdrawing the petitions subjected the second filing of the petitions by the intervenors to the deadline contained in article V, section 1(2).
Article V, section 1(2), explicitly reserves to the people the power of the initiative. We have previously held that constitutional and statutory provisions for the initiative and the referendum should be liberally construed so that "the constitutional right reserved to the people `may be facilitated, and not hampered by either technical statutory provisions or technical construction thereof, further than is necessary to fairly guard against fraud and mistake in the exercise by the people of this constitutional right.'" Brownlow v. Wunsch, 103 Colo. 120, 123, 83 P.2d 775, 777 (1938) (quoting State ex rel. Case v. Superior Court, 81 Wn. 623, 632, 143 P. 461, 464 (1914) (emphasis in original)); see also City of Glendale v. Buchanan, 195 Colo. 267, 272, 578 P.2d 221, 224 (1978) ("[t]he power of initiative is to be liberally construed to allow the greatest possible exercise of this valuable right"). Traditional principles of statutory construction are also relevant to our inquiry. Section 2-4-201, 1B C.R.S. (1980), provides:
"(1) In enacting a statute, it is presumed that:
"(a) Compliance with the constitutions of the state of Colorado and the United States is intended;
"(b) The entire statute is intended to be effective;
"(c) A just and reasonable result is intended;
"(d) A result feasible of execution is intended;
"(e) Public interest is favored over any private interest."
We addressed a similar question in Brownlow, 103 Colo. 120, 83 P.2d 775. In Brownlow, the Secretary of State invalidated signatures submitted by proponents of a ballot initiative. The proponents of the initiative withdrew the petitions in order to rehabilitate invalidated signatures and supply additional signatures. The proponents later re-filed the petitions, which contained approximately 7,000 rehabilitated signatures and 10,000 new signatures. Opponents of the ballot initiative attacked the re-filed petitions on the ground that they had been filed more than six months after the date on which the titles and submission clauses were provided to the Secretary of State, in violation of a state statute. Id. at 127, 83 P.2d at 778. We rejected their argument. We noted that the deadline was not invoked a second time by the language in the cure statute providing that after amendment the petition could be re-filed "as an original petition." Id. at 129, 83 P.2d at 779. We stated that this language was intended to proclaim "that after having been refiled the amended petition, in legal effect, is to be considered as an original petition, but [the language does] not import that status so as to invoke the limitation controlling the initial filing of the rejected initial petition." Id. This court held that "the sponsors have the specified six months within which to secure signatures and file their petition, and in the event of protest and rejection of the petition, at their election they are entitled, as a matter of course, to refile the petition within fifteen days even though the refiling date may fall beyond the six-months period." Id.
That statute is now codified at § 1-40-104, 1B C.R.S. (1989 Supp.).
In this case, the provision in subsection 1-40-109(2) that an amended petition may be re-filed "as an original petition" does not subject such re-filed petitions to the deadline in article V, subsection 1(2). Initially, the proponents of an initiative must submit petitions in support of the initiative which are sufficient in form and number, and which are timely under article V, subsection 1(2). Petitions re-filed in response to a declaration that the petitions are insufficient in form or number of registered electors may be filed within three months of the election at which the initiative is to be voted on. Cf. Brownlow, 103 Colo. at 129, 83 P.
Our interpretation of subsection 1-40-109(2) and article V, subsection 1(2), furthers the public's initiative power. Under Montero's interpretation of subsection 1-40-109(2), proponents of an initiative would have to submit petitions in support of the initiative far enough in advance of the three-month deadline to take account of the possibility that opponents of the initiative might file one or more successful protests. This would effectively move the deadline for filing petitions in support of an initiative far ahead of the three-month deadline in article V, section 1(2), and would present additional, potentially insurmountable, difficulties for future proponents of initiative measures. Cf. Brownlow, 103 Colo. at 129, 83 P.2d at 779. Montero relies on Christensen v. Baker, 138 Colo. 27, 328 P.2d 951 (1958). In Christensen, the proponents of a ballot initiative submitted the petitions in support of the initiative on the last day then allowed by article V, section 1. Id. at 28, 328 P.2d at 951. The number of signatures submitted with the petitions was far short of the total required by article V, section 1. The proponents of the initiative subsequently submitted three separate supplements containing additional signatures substantially in excess of the requisite number. Each supplement was rejected by the Secretary of State on the ground that the petitions did not contain the requisite number of signatures on a date four months prior to the date of the general election. Id. We upheld the Secretary of State's determination on the ground that under the plain language of article V, section 1, petitions containing an inadequate number of signatures submitted in support of a ballot initiative were invalid ab initio, and could not be supplemented by additional signatures pursuant to the cure statute. Id. at 30, 328 P.2d at 952.
Montero's interpretation of § 1-40-109(2) and article V, § 1(2), also renders the 15-day time limit in the cure provision of § 1-40-109(2) superfluous. If, as Montero suggests, an amended petition submitted under § 1-40-109(2) is, in effect, an original petition which cannot be filed within three months of the election, nothing would be served by the requirement in § 1-40-109(2) that the amended petition be submitted within 15 days of its withdrawal. The 15-day time limit in § 1-40-109(2) indicates that the legislature intended to allow proponents of an initiative to cure deficiencies in the supporting petitions after the three-month deadline in article V, § 1(2).
At the time Christensen was decided, article V, § 1, required proponents of ballot initiatives to submit petitions in support of the initiative "at least four months before the election at which they are to be voted upon." Id. at 29, 328 P.2d at 952; Colo. Const. art. V, § 1, 1A C.R.S. (1980).
The cure statute was then codified at § 70-1-9, 3 C.R.S. (1954).
In this case the signatures contained in the petitions submitted by the intervenors were sufficient in form and number at the time they were originally submitted on October 29, 1987. The petitions were declared insufficient as to form by Meyer as a result of the United States District Court decision on September 19, 1988. The United States District Court decision was reversed on October 12, 1988, restoring all of the original signatures submitted in the original petitions filed in October 1987. Montero's reliance on Christensen is misplaced since the petitions in Christensen submitted originally were insufficient in number and could not be cured by subsequent filings.
Montero next argues that the Denver District Court erred in holding that the Secretary of State had the authority to certify an initiative for the ballot on the same date that she issued an official determination that the signatures submitted by the proponents of the initiative were insufficient in form to qualify that measure for the ballot. Montero relies on sections 1-40-112 and 1-6-202, 1B C.R.S. (1989 Supp.). Section 1-40-112 provides:
"The secretary of state, at the time he certifies to the county clerks of the several counties the names of the candidates for state and district offices for general election, shall also certify to them the ballot titles and numbers of each initiated and referred measure theretofore filed in his office to be voted upon at such election."
Section 1-6-202 states that the Secretary of State shall, at least fifty days before any general election, "make and deliver or transmit by certified mail to the county clerk and recorder of each county a notice in writing specifying the national, state, and district officers to be elected at the general election." Montero argues that under section 1-40-112 the Secretary of State is required to certify the validity of the petitions supporting an initiated measure when she certifies the ballot titles and numbers of the measure to the county clerks. We reject Montero's argument.
Title 1 of the Colorado Revised Code establishes a series of steps which make up the initiative and referendum process. See § 1-40-101 to 1-40-120, 1B C.R.S. (1980 1989 Supp.). The Secretary of State's certification of the ballot title and number of each initiated measure under section 1-40-112 is one of the steps in that process. When the Secretary of State certifies the ballot title and number of each initiative to the county clerks, she is not required to verify that the petitions in support of the initiative satisfy every legal and constitutional requirement applicable to them. Challenges to the legal and constitutional sufficiency of the petitions supporting an initiative may be litigated up to, and after, the date of the general election. Thus, section 1-40-112 affords opponents of a proposed initiative an opportunity to challenge the initiative process without depriving the electorate of its opportunity to vote on an initiated measure.
The facts of this case illustrate this point. When Meyer certified the ballot title and number of the initiative to the county clerks, a federal district court had ruled there was a rebuttable presumption that the petitions were insufficient due to their failure to conform to the Voting Rights Act. Meyer had appealed that decision to the Tenth Circuit. The intervenors were taking advantage of the cure provisions of section 1-40-109(2) by rehabilitating signatures and collecting new signatures. Meyer submitted the initiative title to the county clerks on the deadline day prescribed by sections 1-6-202 and 1-40-112. Meyer was required to submit the initiative title to the county clerks in order to continue the initiative process, and by doing so she enabled the county clerks to prepare the election ballot pending the final outcome of Montero's suit in federal court. Meyer's action did not jeopardize Montero's remedy, because Meyer's placement of the initiative on the ballot did not divest state and federal courts of jurisdiction to invalidate the initiative after the general election if the initiative had been found to be constitutionally or statutorily infirm. § 1-40-109(2).
The federal district court subsequently ruled that its injunction did not prevent Meyer from certifying the initiative to the county clerks pursuant to § 1-40-112.
The Denver District Court correctly held that Meyer had the authority to certify an initiative for the ballot.
Finally, Montero argues that Meyer improperly dismissed her amended protest to the petitions, and that Meyer was estopped from dismissing the amended protest.
Montero's arguments are based on the unusual sequence of events in this case. Montero, on November 27, 1987, filed a verified protest to the petitions on the ground that the federal Voting Rights Act had been violated and that irregularities in petition signatures violated certain Colorado statutes. On December 15, 1987, Meyer held a hearing on the verified protest. Meyer ruled that she was without jurisdiction to rule on the Voting Rights Act violations. She further ruled that the portion of the protest concerning irregularities under Colorado statutes failed to specify by petition number and line the specific signatures that were not valid under Colorado statutes. Meyer denied the protest and granted Montero ten days to file an amended protest as to the portion of the denial concerning Colorado statutes. Montero did not file an amended protest, and chose instead to appeal Meyer's ruling to the Denver District Court. On May 20, 1988, the district court affirmed Meyer's decision, and noted that the United States District Court had jurisdiction over Montero's Voting Rights Act claims. Montero then brought an action in the United States District Court for declaratory and injunctive relief.
On September 19, 1988, three days after the federal district court entered its preliminary injunction, Meyer entered an order finding the petitions insufficient in form. Meyer's order gave the intervenors until October 3, 1988, to re-file the petitions pursuant to the cure provisions of subsection 1-40-109(2). The intervenors constructively withdrew the petitions on September 20, 1988, and re-filed the original petitions and additional signatures in response to the September 19, 1988, order, on October 3, 1988.
On October 12, 1988, the date the Tenth Circuit vacated the preliminary injunction issued by the federal district court, Meyer informed Montero that she had until October 24, 1988, to file an amended protest. Montero filed an amended protest on October 24, 1988, which asserted various challenges to the sufficiency of the petitions declared valid by the Tenth Circuit. On November 2, 1988, Meyer dismissed Montero's amended protest as untimely.
Montero first argues that Meyer's dismissal of the amended protest constituted a denial of statutory procedural rights and fundamental fairness.
Under section 1-40-109, opponents of an initiative may file a protest with the Secretary of State, and they may amend the protest within ten days of the Secretary of State's denial of the protest. § 1-40-109(1). Opponents of an initiative may also seek judicial review of the Secretary of State's denial of a protest. § 1-40-109(2). Section 1-40-109 is intended to resolve disputes about petitions before the date of the election. In furtherance of this purpose section 1-40-109 equips opponents of a ballot initiative with two separate means of attacking the validity of petitions submitted in support of the initiative. The statute provides an orderly process by which an opponent may protest an initiative and, upon exhaustion of administrative remedies, provides recourse to the courts. To determine whether or not Montero was denied her statutory right to a hearing on her amended protest after the Tenth Circuit ruling, we must separate the original petitions filed on October 29, 1987, from the re-filed petitions that were filed to cure those signatures on the original petitions that the federal court held were improper as to form.
The original petitions filed October 29, 1987, had been validated by the Secretary of State as containing 98,593 signatures. To place the question on the ballot, 50,668 signatures were needed. The United States District Court ruled that it was a rebuttable presumption that the petitions were circulated in one or more of twelve counties deemed to be bilingual, and in violation of the Voting Rights Act since petitions were not circulated in Spanish and English in those counties. Meyer determined that 36,874 signatures did not fall into the bilingual violation classification and, based on the district court's ruling, the petitions lacked 13,794 signatures needed to place the initiative on the ballot.
The Tenth Circuit Court of Appeals reinstated the original 98,593 signatures which had been protested in December 1987. To allow further protest of the original signatures after the expiration of the statutory period for such protest would violate the plain reading of the statute. The period of time which Montero had to amend her protest expired on December 28, 1987, and the statute does not authorize the Secretary of State to enlarge the time period once it has expired. Montero's failure to submit her amended protest to the original petitions within 10 days of denial of the protest on December 15, 1987, precluded her from making further objections to the original petitions under subsection 1-40-109(1). Brownlow, 103 Colo. at 135, 83 P.2d at 782.
The signatures obtained under Meyer's order of September 19, 1988, to cure the deficiency created by the United States District Court's order would be subject to protest if the number and form were necessary to place the proposition on the ballot. The Tenth Circuit ruling restored the original signatures filed in October 1987. Montero, 861 F.2d at 610. The signatures obtained to cure under the September 1988 order were not necessary, and a challenge to their validity would have been moot. See Humphrey v. Southwestern Dev. Co., 734 P.2d 637, 639 (Colo. 1987); Zoning Bd. of Adjustment v. DeVilbiss, 729 P.2d 353, 356 (Colo. 1986); Barnes v. District Court, 199 Colo. 310, 312, 607 P.2d 1008, 1009 (1980).
Meyer's order of November 2, 1988, dismissing the protest concluded that if the protestors could have established the invalidity of every signature in the protestors' challenge and the signatures were removed, according to a count made by the Secretary of State's office, 31,695 signatures would be removed from the original petition of 98,593, leaving a balance of valid signatures of 66,898 which would be in excess of the required number of 50,668.
Montero also argues that Meyer was estopped from dismissing her amended protest because Meyer had notified Montero that she could file a protest on or before October 24, 1988. Meyer's action of October 12, 1988, in authorizing an amended protest as to the original petitions exceeded her statutory authority since the statute does not provide for extensions of time to file an amended protest once the time for filing has expired. § 1-40-109. Meyer could authorize a protest of the new signatures to cure the deficiency if the additional signatures were needed to place the question on the ballot. That is not the case here, however. Meyer's notice to Montero that she had until October 24, 1988, to file an amended protest as to the original petitions was not authorized by section 1-40-109. "A party cannot state a claim for relief under a theory of estoppel against a state or local government entity on the basis of an unauthorized action or promise." Seeley v. Board of County Commissioners, No. 89SC129, slip op. at 12 (Colo. May 14, 1990).
JUSTICE QUINN dissents, and JUSTICE MULLARKEY joins in the dissent. JUSTICE KIRSHBAUM joins in part III. of the dissent.