Bernzen v. City of Boulder

• Decision Date: 12 August 1974
• Docket Number: No. 26505,26505
• Citation: 525 P.2d 416,186 Colo. 81
• Parties: George G. BERNZEN et al., Plaintiffs-Appellees, v. The CITY OF BOULDER, a municipal corporation organized under and by virtue ofthe laws of the State of Colorado, et al., Defendants-Appellants, v. Chester V. WELLS et al., Intervenors-Appellants.
• Court: Colorado Supreme Court

Page 416

525 P.2d 416

186 Colo. 81

George G. BERNZEN et al., Plaintiffs-Appellees, v. The CITY OF BOULDER, a municipal corporation organized under and by virtue ofthe laws of the State of Colorado, et al., Defendants-Appellants, v. Chester V. WELLS et al., Intervenors-Appellants.

No. 26505.

Supreme Court of Colorado, En Banc.

Aug. 12, 1974.

Duncan A. Campbell, Paul Snyder, Jr., Boulder, for plaintiffs-appellees.

Christopher R. Brauchli, Boulder, for defendants-appellants Tate and Fuller, on the issue of succession only.

Walter L. Wagenhals, City Atty., Ronald B. Porter, Deputy City Atty., Boulder, for defendants-appellants, City of Boulder, Colo., and Carl Chapel, City Clerk.

Dosh, DeMoulin, Anderson & Campbell, Edward H. Haffey, Denver, for intervenors-appellants.

Jeremy Shamos, Denver, for amici curiae, The Center for Law and Research and American Civil Liberties Union of Colo.

KELLEY, Justice.

This appeal challenges the judgment of the Boulder County District Court which permanently enjoined an election for the recall of two city councilmen, Penfield Tate and Timothy Fuller, because of the insufficiency of the petitions for recall certified by the City Clerk of Boulder on May 2, 1974. The judgment also held, in the event an election were to be held, that both councilmen could run as candidates to succeed themselves in the same election in the event they were recalled.

Thus, two issues arise out of the controversy: 1. Whether the petitions for recall are sufficient under the Boulder Charter and the constitution of the State of Colorado to require the holding of a recall election; and 2. in the event an election is held, whether Tate's and Fuller's names should be allowed on the ballot as candidates for election and be permitted to succeed themselves in the event they (or either of them) should be recalled. We answer the first question in the affirmative and the second question in the negative.

The plaintiff Bernzen is a duly registered voter in the city of Boulder and is a member of a class of persons who voted for the election of Councilmen Tate and Fuller in the November, 1971, municipal election.

The plaintiffs Brown and Schechter are also registered electors of the city of Boulder and are students at the University of Colorado, who alleged that they planned to be gone from Boulder for the proposed recall election. They claimed to be members of a large class of persons similarly situated. Because of the delay resulting from this appeal, the issue raised by Brown and Schechter appears to have become moot insofar as the present recall election is concerned. It should also be noted that the trial court found that the evidence failed to sustain the class allegedly represented by Brown and Schechter and the court's judgment did not consider the issues they raised involving student voters.

The defendants Correll, Roberts, Paget, Wright, Slack, Buchanan and Trenka, at all times pertinent to the litigation, were duly elected city council members, serving with Tate and Fuller, and were responsible for implementing the charter provisions in reference to the recall. Additionally, Chester V. Wells, Zenon J. Raczkowski, and B. J. Perrin appear here as intervenors-appellants and argue that the petitions are sufficient and that the recall election be held forthwith.

The action was filed on May 3, 1974, the day after the city clerk certified to the city council that the two petitions for recall met the charter requirements in all respects. Boulder is a home rule city under Colo.Const. Art. XX, Sec. 6. The Boulder Charter requires, if the councilman for whose recall the petition is filed does not resign within five days of the clerk's certificate, that a recall election be set for a date not less than 30 nor more than 40 days from the date on the clerk's certificate. At its meeting to be held May 7, 1974, the council had scheduled for consideration a proposed ordinance providing that the recall election be held on June 11, 1974. However, on May 7, 1974, the district court entered a temporary restraining order enjoining the city and its agents from taking any steps toward setting a date for the recall election. The temporary order was extended and was in force up until the entry of the judgment which is under consideration here.

I.

The first issue--the sufficiency of the petitions--involves the applicability to home rule cities of the limitation on judicial review contained in Article XXI, Sections 1 and 2 of the Colorado Constitution relating to recall from office. Section 1 provides that:

'. . . such petition shall contain a general statement, in not more than two hundred words, of the ground or grounds on which such recall is sought, which statement is intended for the information of the electors, and The electors shall be the sole and exclusive judges of the legality, reasonableness and sufficiency of such ground or grounds assigned for such recall, and said ground or grounds shall not be open to review.' (Emphasis added.)

Section 2 amplifies the limitation on judicial review:

'The finding as to the sufficiency of any petition may be reviewed by any state court of general jurisdiction in the county in which such petition is filed, . . . The sufficiency, or the determination of the sufficiency, of the petition referred to in this section shall not be held, or construed, to refer to the ground or grounds assigned in such petition for the recall of the incumbent sought to be recalled from office thereby.' (Emphasis added.)

Section 56 of the Boulder City Charter provides that a petition for recall shall contain 'a substantial statement of grounds upon which the removal is sought.' However, the charter is silent as to whether one may obtain judicial review of the sufficiency of the grounds set out in the petition.

The limitation on judicial review of the grounds for recall set out above makes it clear that the recall intended by the framers of the Colorado Constitution is purely political in nature. As the Oklahoma Supreme Court said in Dunham v. Ardery, 43 Okl. 619, 143 P. 331 (1914):

'We understand that the principle underlying the recall of public officers means that the people may have an effective and speedy remedy to remove an official who is not giving satisfaction--one who they do not want to continue in office, regardless of whether or not he is discharging his full duty to the best of his ability and as his conscience dictates.

If the policies pursued do not meet the approval of a majority of the people, it is the underlying principle of the recall doctrine to permit them to expeditiously recall the official, without form or ceremony, except as provided for in the charter.' 143 p. 331, 333.

Thus, Colorado is not a state in which official misconduct is necessarily required as a ground for recall. Rather, the dissatisfaction, whatever the reason, of the electorate is sufficient to set the recall procedures in motion. See Batchelor v. Eighth Judicial District Court, 81 Nev. 629, 408 P.2d 239 (1965); Wallace v. Tripp, 358 Mich. 668, 101 N.W.2d 312 (1960); State ex rel. Topping v. Houston, 94 Neb. 445, 143 N.W. 796 (1913); But see Taines v. Galvin, 279 So.2d 9 (Fla.1973); Richard v. Tomlinson, 49 So.2d 798 (Fla.1951). The framers, by requiring that a recall petition contain the signatures of at least 25% Of all votes cast in the last election for All candidates for the position which the person sought to be recalled occupies, assured that a recall election will not be held in response to the wishes of a small and unrepresentative minority. However, once at least 25% Of the electorate have expressed their dissatisfaction, the constitution reserves the recall power to the will of the electorate. Courts of law are not to intercede into the reasons expressed by the majority.

Our disagreement with the trial court stems from a basic difference in concept and interpretation of the constitutional provisions relating to recall. We view recall, as well as the initiative and referendum, as fundamental rights of a republican form of government which the people have reserved unto themselves. As stated in Brooks v. Zabka, 168 Colo. 265, 450 P.2d 653 (1969) at 268, 450 P.2d at 655:

'Such a reservation of power in the people must be liberally construed in favor of the right of the people to exercise it. Conversely, limitations on the power of referendum must be strictly construed.'

See Burks v. City of Lafayette, 142 Colo. 61, 349 P.2d 692 (1960); Brownlow v. Wunsch, 103 Colo. 120, 83 P.2d 775 (1938). We have also held that where the constitution protects certain fundamental values, neither the legislature nor a home rule city has the power to act to infringe upon such values. Burks v. City of Lafayette, Supra; In re Kindergarten Schools, 18 Colo. 234, 32 P. 422 (1893).

We are not unaware that Article XXI, Section 4 of the Colorado Constitution delegates the recall power to the subordinate levels of state government. ¹ However, in view of the fundamental nature of the recall power and our reading of the applicable paragraphs of Section 4, this delegation of power must be limited to procedural matters and substantive provisions not in conflict with the state constitution. Section 4 in pertinent part provides:

'The recall may also be exercised by the electors of each . . . city and town of the state, with reference to the elective officers thereof, Under such procedure as shall be provided by law.

'Until otherwise provided by law, The legislative body of any such county, city and county, city and town may provide for the manner of exercising such recall powers in such counties, cities and counties, cities and towns, But shall not require any such recall to be signed by electors more...