Adams v. City of Colorado Springs

Decision Date10 February 1970
Docket NumberCiv. A. No. C-1817.
PartiesJean L. ADAMS et al., Plaintiffs, v. The CITY OF COLORADO SPRINGS, a Municipal Corporation, Organized and Existing Under and by Virtue of the Laws of the State of Colorado, et al., Defendants.
CourtU.S. District Court — District of Colorado

Creamer & Creamer, by Nathan H. Creamer and George Louis Creamer, Denver, Colo., for plaintiffs.

Frederick T. Henry, City Atty., and William T. Eckhart, Asst. City Atty., Colorado Springs, Colo., Winner, Berge, Martin & Clark, by Fred M. Winner, and Howard M. Kirshbaum, Denver, Colo., for defendants.

Kenneth G. Bueche, Gen. Counsel for Colorado Municipal League, Boulder, Colo., amicus curiae.

Before HILL, Circuit Judge and KERR and DOYLE, District Judges.

MEMORANDUM OPINION AND ORDER

WILLIAM E. DOYLE, District Judge.

This action is brought by a group of 277 registered voters and property owners living in an area commonly known as Cragmor, an unincorporated community adjacent to the city of Colorado Springs, Colorado, to enjoin a proposed annexation of Cragmor to Colorado Springs. Plaintiffs seek to have the Colorado Annexation Act of 1965 declared unconstitutional. Jurisdiction of the suit is predicated upon 28 U.S.C. § 1331 and 28 U.S.C. § 1343. Since the constitutionality of a state statute of statewide application is involved, a three-judge court has been convened pursuant to 28 U.S.C. § 2281.

The material facts in this controversy are not in dispute. In 1965, the Colorado legislature enacted a comprehensive annexation law, C.R.S.1963, 139-21-1, et seq. (as amended). This statute establishes two different procedures for effectuating an annexation of unincorporated area by an adjacent municipality. Under the first of these, which may be used only when the area to be annexed has at least one-sixth and not to exceed two-thirds of its perimeter contiguous with the municipality, annexation may be initiated in one of two ways: (1) by a petition signed by a specified number of qualified electors in the territory to be annexed requesting that an annexation election be held in the said area; or (2) by a petition signed by the landowners of more than fifty percent of the territory to be annexed. If the annexation is initiated by a landowners' petition, persons who are qualified electors in the area to be annexed may cause an election to be held by submitting a proper petition.

Under the second procedure, which is limited to a situation in which the area to be annexed has over two-thirds contiguity with the municipality, annexation is initiated by a petition of landowners of more than fifty percent of the territory to be annexed or by resolution of the city council of the annexing municipality. In this situation no election is permitted and no right to vote is provided. If the landowners of more than fifty percent of the territory to be annexed petition for annexation, the city must annex the area. The city, after notice and hearing, may adopt a resolution unilaterally annexing the contiguous area without any participation by those living in such an area.

The two sections of land which together make up Cragmor — North Colorado Springs Additions Numbers 1 and 2 — encompass a large territory about one-tenth the size of the present city of Colorado Springs. North Colorado Springs Addition Number 1 includes some 3,200 acres of land, while North Colorado Springs Addition Number 2 includes approximately 700 acres. The number of people involved is said to be 2,000, and we are also told that 86 percent of the population oppose it.

On September 23, 1969, the City Council of Colorado Springs set in motion the machinery to unilaterally annex North Colorado Springs Additions Numbers 1 and 2. The City Council has passed resolutions of intent to annex and public hearings have now been held.1

Since the territory to be annexed has over two-thirds contiguity with Colorado Springs, procedure two described above will be used in effectuating the proposed annexations. Thus, there will be no vote of qualified electors and the annexation will be consummated by the unilateral action of the Colorado Springs City Council.2

In essence, plaintiffs argue that the statute is unconstitutional on its face in that it gives to qualified electors in an area to be annexed which has between one-sixth and two-thirds contiguity with the annexing city a vote on the issue of annexation, and at the same time withholds voting rights from qualified electors in territory to be annexed which has over two-thirds contiguity with the annexing city. This, it is said, constitutes an arbitrary classification, an invidious discrimination against the plaintiffs as voters, contrary to the equal protection clause of the Fourteenth Amendment of the United States Constitution. Plaintiffs concede that the Colorado General Assembly is empowered to create annexation machinery without granting the right to vote, but maintains that when the Assembly extends the franchise to one group it must extend the same right to another group absent a compelling public reason.

Furthermore, plaintiffs claim that their position is supported by the principles set forth by the United States Supreme Court in a series of recent decisions involving apportionment and voting rights. E. g., Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 89 S. Ct. 1886, 23 L.Ed.2d 583 (1969); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963).

I.

Defendants contend that the present case presents a nonjusticiable political question and should, therefore, be dismissed, citing Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 (1907). The Hunter case held that the validity of an annexation could not be attacked either upon the ground that it impaired the obligation of a contract between the citizens of a municipal corporation and the corporation itself, or upon the ground that the annexation of an area without the consent of its citizens constituted a taking of property under the due process clause. However, the Hunter opinion contains very broad language with respect to the powers of the state vis-a-vis its political subdivisions.3 We conclude from a reading of Hunter that a state has broad discretion in determining the procedures for effectuating annexation, but we do not feel that Hunter can or should be read as conferring absolute immunity from judicial scrutiny upon all changes which a state may see fit to make in the boundaries of its political subdivisions.

The United States Supreme Court laid to rest the argument that all matters involving changes in the boundaries of political subdivisions are nonjusticiable in Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). It held that the boundaries of a city cannot be altered so as to purposefully exclude Negroes from the city, whereby they are prevented from voting in municipal elections. The Supreme Court's view was that Hunter did not preclude judicial consideration of a claim that a change in municipal boundaries resulted in a violation of the Constitution.

There are cases which construe Hunter differently. These courts say that the procedures for effectuating annexation are not subject to review; that they do not pose a justiciable question; that the issue is political. Deane Hill Country Club, Inc. v. City of Knoxville, 379 F.2d 321 (6th Cir.), cert. denied, 389 U.S. 975, 88 S.Ct. 476, 19 L.Ed.2d 467 (1967); Detroit Edison Co. v. East China Township School Dist. No. 3, 247 F.Supp. 296 (E.D.Mich.1965), aff'd., 378 F.2d 225 (6th Cir.), cert. denied, 389 U.S. 932, 88 S.Ct. 296, 19 L.Ed.2d 284 (1967). We doubt whether the Supreme Court would so categorize annexation problems. There is no reason for exempting annexation procedures from the requirements of equal protection which apply to all other areas of state legislative activity. As our own Circuit Court has stated in reviewing the Kansas annexation law:

And certain it is that a state cannot legislate upon even a matter of complete state interest in such a manner as to abuse a federal constitutional right. International Harvester Co. v. Kansas City, 308 F.2d 35, 38 (10th Cir. 1962), cert. denied, 371 U.S. 948, 83 S.Ct. 503, 9 L.Ed.2d 498 (1963).

Moreover, recent Supreme Court decisions have substantially reduced the category of political question, especially in those cases involving discrimination in relation to the franchise. See, e. g., Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963); Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969).

We conclude that the instant controversy poses a justiciable issue.

II.

Jurisdiction in civil rights cases is conferred on the federal district courts by 28 U.S.C. § 1343. Section 1343(3) of Title 28 is the jurisdictional parallel to one of the early civil rights acts, 42 U. S.C. § 1983, and its effect is to remove the need for showing the jurisdictional amount normally required in cases arising under Acts of Congress. 28 U.S.C. § 1331.

Section 1983 applies to:

Every person, who under color of any statute * * * subjects, or causes to be subjected, any citizen of the United States * * * to the deprivation of any rights * * * secured by the Constitution * * *.

Defendants contend that since the city of Colorado Springs is not a "person" within the meaning of the Act, 42 U.S.C. § 1983 and 28 U.S.C. § 1343 have no application. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L. Ed.2d 492 (1961). However, this action is not brought against the city alone. Each member of the Colorado Springs City Council, as well as the mayor and the city manager, are named as defendants. These individuals are "persons" within the meaning of 42 U.S.C. § 1983, and it is alleged that their conduct pursuant to a purportedly unconstitutional state statute deprives citizens of their constitutional...

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