Bickel v. City of Boulder, RE-2 and C

• Decision Date: 12 September 1994
• Docket Number: RE-2 and C,No. 94SA130,94SA130
• Citation: 885 P.2d 215
• Parties: Vern BICKEL, Jerald Weskalnies and Charles Allen Wright, III, Plaintiffs/Appellants, v. CITY OF BOULDER, Boulder Valley School Districtounty of Boulder, Defendants/Appellees.
• Court: Colorado Supreme Court

Page 215

885 P.2d 215

Vern BICKEL, Jerald Weskalnies and Charles Allen Wright III, Plaintiffs/Appellants, v. CITY OF BOULDER, Boulder Valley School District RE-2 and County of Boulder, Defendants/Appellees.

No. 94SA130.

Supreme Court of Colorado,

En Banc.

Sept. 12, 1994.

As Modified on Denial of Rehearing

Oct. 11, 1994.

Certiorari Denied Feb. 21, 1995.

See 115 S.Ct. 1112.

Kevin B. Pratt, Colorado Springs, for plaintiffs/appellants.

Kutak Rock, Cassandra G. Sasso, Robert D. Irvin, Michael R. Johnson, Timothy M. Jones, Denver, Office of City Atty., Joseph N. de Raismes, III, Alan E. Boles, Jr., H. Lawrence Hoyt, Boulder Co. Atty., Madeline J. Mason, Deputy Co. Atty., Boulder, for defendants/appellees City of Boulder and Boulder County.

Caplan & Earnest, Gerald A. Caplan, Richard E. Bump, Alan J. Canner, Boulder, for defendant/appellee Boulder Valley School Dist. RE-2.

Kenneth G. Bueche, David W. Broadwell, Denver, for amicus curiae Colorado Mun. League.

Hall & Evans, Thomas J. Lyons, Denver, for amicus curiae Colorado Counties, Inc.

Lauren B. Kingsbery, Denver, for amicus curiae Colorado Ass'n of School Boards.

J. Evan Goulding, Denver, for amicus curiae Sp. Dist. Ass'n of Colorado.

Justice MULLARKEY delivered the Opinion of the Court.

Plaintiffs, citizens and taxpayers of the City and the County of Boulder, brought this action ¹ against defendants City of Boulder (City), County of Boulder (County) and Boulder Valley School District RE-2 (School District, and, collectively, the governmental entities) seeking declaratory and injunctive relief and the invalidation of several ballot issues proposed by the defendants and ultimately adopted by the electorate at the November 2, 1993, general election. Plaintiffs claimed that the ballot issues in question violated several provisions of Article X, Section 20 of the Colorado Constitution, also known as "Amendment 1." The trial court disagreed, however, and granted the City's and the County's motions for summary judgment and the School District's motion to dismiss plaintiffs' claims. We affirm the trial court's rulings in part, reverse in part, and remand the case to the trial court for further proceedings consistent with this opinion.

I

The facts relevant to our disposition of this appeal are not in dispute.

School District Question 1

In the fall of 1993 the School District distributed a "NOTICE OF ELECTION TO INCREASE TAXES/TO INCREASE DEBT" to all registered voters within its boundaries. That election notice contained the ballot titles for two proposed initiatives, summaries of written comments for and against those initiatives, and the School District's recent fiscal spending year information. The ballot title for the first issue, "School District Question 1," reads in relevant part:

SHALL BOULDER VALLEY SCHOOL DISTRICT RE2'S DEBT BE INCREASED $89,000,000 WITH A REPAYMENT COST OF $166,290,620 (WHICH IS THE MAXIMUM PRINCIPAL AND INTEREST OVER THE LIFE OF SUCH DEBT) AND SHALL BOULDER VALLEY SCHOOL DISTRICT RE2'S TAXES BE INCREASED $10,862,540 ANNUALLY FOR THE PAYMENT OF SUCH DEBT AND ANY REFUNDINGS THEREOF (THE "BONDS"), ALL FOR THE PURPOSE OF CONSTRUCTING, ERECTING, ACQUIRING ... OR MAKING ADDITIONS TO ANY SCHOOL BUILDING, AND ACQUIRING, PURCHASING OR IMPROVING SCHOOL GROUNDS ... AND SHALL THE BONDS BE GENERAL OBLIGATIONS OF THE DISTRICT ...; AND IN CONNECTION THEREWITH, (I) SHALL THE DISTRICT'S AD VALOREM PROPERTY TAXES BE INCREASED IN ANY YEAR IN AN AMOUNT SUFFICIENT TO PAY THE PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THE BONDS WHEN DUE, WITHOUT LIMITATION AS TO RATE OR AMOUNT OR ANY OTHER CONDITION EXCEPT AS STATED ABOVE, AND (II) SHALL THE PROCEEDS OF THE BONDS, AND THE REVENUES FROM SUCH TAXES ... BE COLLECTED AND SPENT WITHOUT LIMITATION OR CONDITION, AND WITHOUT LIMITING THE COLLECTION OR SPENDING OF ANY OTHER REVENUES OR FUNDS BY THE DISTRICT, UNDER [AMENDMENT 1] OR ANY OTHER LAW? ²

Five days prior to the election, plaintiffs filed suit in the Boulder County District Court claiming that School District Question 1 violated Amendment 1 by (1) seeking approval of a "consolidated" debt and tax increase; (2) seeking approval of "unlimited general obligation bonds"; (3) seeking to exempt the School District from "future voter approval of tax rate increases"; (4) failing to include the "text" of the ballot issue in the election notice; and (5) failing to include in the election notice a proper estimate of the School District's "first full fiscal year spending." The plaintiffs' complaint sought declaratory and injunctive relief for these alleged violations. ³ On election day, a majority of the voters answered School District Question 1 in the affirmative.

In granting the School District's motion to dismiss plaintiffs' claims, the trial court found that School District Question 1 did not constitute a "consolidation" of ballot issues in violation of subdivision 3(a) of Amendment 1. The court instead ruled that Question 1 contained a permissible combination of two related subjects, the incurrence of debt and the collection of taxes to repay that debt, in the same ballot issue. It also found that School District Question 1 did not violate subdivision 4(a) of Amendment 1 because that section does not specifically prohibit "voter approval at a given election of mill levy increases in years beyond the year immediately following the election." Finally, the trial court found that the School District "substantially complied" with all of the election notice requirements imposed by Amendment 1 and that none of the plaintiffs' alleged violations "could possibly have affected the election result."

City Question B

Plaintiffs have challenged only two of the nine issues placed on the November 1993 ballot by the City. Both of these issues were approved by a majority of the electorate. The first ballot issue challenged by plaintiffs, City Question B, proposes that the City grant a franchise to Public Service Company of Colorado, Inc. (Public Service) to sell and distribute gas and electricity to the City and its residents. Plaintiffs claim that City Question B violates subdivision 3(c) of Amendment 1 because it "seeks a tax increase" yet its ballot title does not begin with the words "SHALL (DISTRICT) TAXES BE INCREASED...." The ballot title for City Question B reads in relevant part:

SHALL THE CITY OF BOULDER GRANT A FRANCHISE TO PUBLIC SERVICE COMPANY OF COLORADO TO FURNISH, SELL AND DISTRIBUTE, GAS AND ELECTRICITY TO THE CITY AND TO ALL PERSONS, BUSINESSES, AND INDUSTRIES WITHIN THE CITY AND THE RIGHT TO MAKE REASONABLE USE OF ALL STREETS AND OTHER PUBLIC PLACES AND PUBLIC EASEMENTS AS MAY BE NECESSARY; AND IN CONNECTION THEREWITH, IN THE EVENT OF UNCOLLECTABILITY, SHALL CITY TAXES BE INCREASED BY UP TO EIGHT MILLION DOLLARS BY DEEMING THE FRANCHISE FEE TO BE AN OCCUPATION OR A SALES AND USE TAX, AND SHALL THE CITY BE PERMITTED TO COLLECT, RETAIN, AND EXPEND THE FULL PROCEEDS OF SUCH TAX, NOTWITHSTANDING ANY STATE RESTRICTION ON FISCAL YEAR SPENDING, INCLUDING WITHOUT LIMITATION THE RESTRICTIONS OF [AMENDMENT 1]?

The trial court initially noted that the "application of [Amendment 1] to a ballot issue dealing primarily with something other than taxes, but containing authorization for a future tax contingent on unlikely future events, raises intriguing issues." It rejected plaintiffs' claim, however, because they failed to allege that the omission of the words "SHALL (DISTRICT) TAXES BE INCREASED" at the beginning of the ballot title could have affected the outcome of the election. It also noted that the ballot title for City Question B "did comply with the requirements of [Amendment 1], and that [the City] accurately described the issues on which the voters were asked to pass judgment."

City Question C

Plaintiffs also claim that City Question C, which proposes to increase the City's debt by $50,000,000 through the issuance and payment of bonds for the purpose of acquiring open space real property, violates several provisions of Amendment 1. ⁴ Prior to the election, the City distributed an election notice to all registered voters which included the ballot title for City Question C and a summary of the comments for and against the measure which were filed with the election officer. That ballot title reads in relevant part:

SHALL CITY OF BOULDER DEBT BE INCREASED UP TO $50,000,000 WITH A REPAYMENT COST OF UP TO $150,000,000 (SUCH AMOUNT BEING THE

TOTAL PRINCIPAL AND INTEREST THAT COULD BE PAYABLE OVER THE MAXIMUM LIFE OF SAID DEBT) BY THE ISSUANCE AND PAYMENT OF BONDS OF THE CITY FOR THE PURPOSE OF CONTINUING THE ACQUISITION OF OPEN SPACE REAL PROPERTY OR INTERESTS THEREIN, AS PREVIOUSLY AUTHORIZED BY A VOTE OF THE PEOPLE IN 1971, IN A PRINCIPAL AMOUNT NOT TO EXCEED $50,000,000 OR SUCH LESSER AMOUNT AS IS PERMITTED FROM TIME TO TIME BY SECTION 97 OF THE CITY'S CHARTER ... SUCH BONDS TO BE PAYABLE FROM SALES AND USE TAX REVENUES EARMARKED AND COMMITTED FOR SUCH PURPOSES BY VOTE OF THE CITY'S ELECTORS AND BY A PLEDGE OF THE FULL FAITH AND CREDIT OF THE CITY AS AUTHORIZED IN THE CITY'S CHARTER, WHICH AUTHORIZATION SHALL INCLUDE AUTHORIZATION TO REFUND SUCH BONDS AND REFUNDING BONDS WITHOUT ADDITIONAL VOTER APPROVAL; AND IN CONNECTION THEREWITH (I) SHALL CITY OF BOULDER AD VALOREM PROPERTY TAXES BE INCREASED IN ANY YEAR IN AN AMOUNT SUFFICIENT TO PAY THE PRINCIPAL OF AND INTEREST ON SUCH BONDS AND REFUNDING BONDS WHEN DUE, WITHOUT LIMITATION AS TO RATE OR AMOUNT OR ANY OTHER CONDITION EXCEPT AS STATED ABOVE, AND (II) SHALL THE PROCEEDS OF SUCH BONDS AND REFUNDING BONDS AND THE REVENUES FROM SUCH TAXES AND ANY EARNINGS FROM THE INVESTMENT OF SUCH PROCEEDS AND REVENUES BE COLLECTED AND SPENT WITHOUT LIMITATION OR CONDITION ... UNDER [AMENDMENT 1 OR ANY OTHER LAW]?

Plaintiffs argued in the trial court that City Question C violated Amendment 1 by (1) seeking approval of a consolidated debt and tax increase; (2) failing to state a dollar amount of the proposed...