Bruce v. City of Colorado Springs, 05SA365.

• Decision Date: 27 February 2006
• Docket Number: No. 05SA365.,05SA365.
• Citation: 129 P.3d 988
• Parties: Douglas BRUCE, Plaintiff-Appellee, v. CITY OF COLORADO SPRINGS and Kathryn Young, City Clerk, in her official capacity as election officer for the city, Defendants-Appellants.
• Court: Colorado Supreme Court

129 P.3d 988

Douglas BRUCE, Plaintiff-Appellee, v. CITY OF COLORADO SPRINGS and Kathryn Young, City Clerk, in her official capacity as election officer for the city, Defendants-Appellants.

No. 05SA365.

Supreme Court of Colorado, En Banc.

February 27, 2006.

Douglas Bruce, Colorado Springs, pro se.

Patricia K. Kelly, City Attorney for Colorado Springs, Shane White, Senior Attorney, Colorado Springs, for Defendants-Appellants.

Colorado Municipal League, Geoffrey T. Wilson, Denver, for Amicus Curiae Colorado Municipal League.

MARTINEZ, Justice.

In this case, we review the summary judgment order of the district court invalidating the voters' approval of a measure to extend an existing sales and use tax for "Trails, Open Space, and Parks" in the April 2003 Colorado Springs municipal election. The trial court found that Issue 1A's election notice did not substantially comply with the requirements of article X, section 20 of the Colorado Constitution or Article VII, section 90 of the Charter of the City of Colorado Springs (collectively "Amendment 1").¹

The trial court first held the tax extension in Issue 1A was the equivalent of a "tax increase" for purposes of Amendment 1. Although the weight of factors before the trial court suggested that Issue 1A was in substantial compliance with Amendment 1, the trial court found that because Issue 1A failed to meet the additional Amendment 1 election notice requirements pertaining to tax increases, this defect proved fatal to the validity of the election notice.

The resolution of this issue accordingly rests upon the determination of whether a tax extension is a tax increase within the meaning of Amendment 1's election notice provisions. We hold that a tax extension is not a tax increase, and therefore the election notice requirements for tax increases do not apply to Issue 1A. We reverse the judgment of the trial court below.

I. Facts and Proceedings Below

This dispute arises from a challenge to Issue 1A in an election held by the City of Colorado Springs (the "City") on April 1, 2003. Issue 1A proposed to extend the existing 0.1% sales and use tax for "Trails, Open Space, and Parks" from its slated expiration of April 30, 2009, to December 31, 2025. The ballot title for Issue 1A states:

Without raising additional taxes, shall the existing 0.1% (one-tenth of a cent) City sales and use tax for Trails, Open Space and Parks (TOPS) be extended from its current expiration of April 30, 2009 through December 31, 2025 . . . as a voter-approved revenue change, the above constituting no changes to the program except allowing no more than 6% be used for stewardship and maintenance of TOPS-funded trails, open space and parks and no more than 3% be used for program management?

Issue 1A was approved by the voters of Colorado Springs.

Plaintiff, Douglas Bruce, initially challenged the election contending it violated Amendment 1. He also challenged the factual summary for alleged violations of the Fair Campaign Practices Act (FCPA), sections 1-45-101 to -118, C.R.S. (2003).

Bruce sought damages, a declaratory judgment proclaiming Issue 1A illegal and void, and an injunction preventing the City from counting ballots on Issue 1A, revealing the results of the count, spending additional money on Issue 1A, or conducting any further proceedings with regard to Issue 1A. Bruce also alleged bad faith on the part of Defendants, the City and the City Clerk, Kathryn Young. He sought a court order to prevent any further involvement in the April 1, 2003 election by Young and the substitution of the El Paso County Clerk and Recorder in her place for the purpose of performing her election duties.

The City moved to dismiss all of Bruce's claims or, in the alternative, for summary judgment. As there were no disputed issues of fact, the trial court treated Bruce's response as a cross-motion for summary judgment.

In a written order, the trial court granted Bruce's cross-motion for summary judgment on his claim that the Issue 1A election notice violated Amendment 1. Following review of the alleged Amendment 1 infirmities in the election notice, the trial court determined the key issue in resolving whether Issue 1A's election notice was in substantial compliance with Amendment 1 was whether the ballot title requirements for "tax increases" in section (3) of Amendment 1 applied to Issue 1A.

Section (3) sets forth a number of requirements for the form and content of a ballot title. Additional title requirements apply when the ballot issue involves a tax or debt increase. Section (3) is silent, however, with respect to tax extensions. Accordingly, the trial court attempted to resolve whether a "tax extension" is a "tax increase" in the context of section (3). The court read "tax increase" broadly to include "tax extension" and thereby found that the additional ballot title requirements for tax increases applied to the election notice of Issue 1A. The court recognized this determination as pivotal to whether the election notice was otherwise in substantial compliance with Amendment 1. In a footnote, the court noted that if it had determined the election notice requirements for tax increases did not apply to Issue 1A, it "would have found substantial compliance despite the other [Amendment 1] infirmities."

The trial court dismissed Bruce's remaining claims in favor of the City. Bruce's direct challenge to the form of the ballot title was dismissed because the trial court found that Bruce failed to comply with the procedural requirements for challenging the City election pursuant to the Uniform Election Code, section 1-11-203.5(2), C.R.S. (2003). This provision requires ballot title challenges to be brought within five days of setting the ballot title. Bruce did not contest the City's averment that the challenge was not brought within the five-day period. Consequently, the trial court found for the City and barred Bruce's ballot title claim.²

The trial court also dismissed Bruce's claims alleging violations of the FCPA in the factual summary on the basis that Bruce had already availed himself of the exclusive remedy for his claim. The court found that under the FCPA, the remedy for contesting the factual summary of a ballot issue is to file a complaint with the Colorado Secretary of State and follow the appropriate procedures. Bruce followed those procedures, lost on his claim following a hearing before an administrative law judge, and did not appeal.

Last, the trial court found no bad faith on the part of the City Clerk, Kathryn Young. After initially taking the position that no comments would be received, the City reversed its position after Bruce appeared at the City Clerk's office on the final day for comment submission³ and insisted that the Clerk's office accept his comments. The City Clerk then solicited comments from a proponent of Issue 1A shortly before the 5:00 p.m. deadline. The trial court found the City Clerk's actions were not in bad faith, but that the City did not afford the public "any reasonable opportunity to further the purposes of [Amendment 1] with the submission of comments."

The City now appeals the decision of the trial court granting summary judgment in favor of Bruce on the basis that the election notice of Issue 1A was not in substantial compliance with Amendment 1. Bruce does not cross-appeal any of the other issues. Thus, we address only the trial court's decision to grant summary judgment in favor of Bruce on the election notice issue. Specifically, we look at whether Amendment 1's election notice requirements for tax increases apply to tax extensions, that is, whether a "tax extension" is appropriately termed a "tax increase." Because the trial court's conclusion that a tax extension is the equivalent of a tax increase has implications for the election notice beyond the form and content of the ballot title, a ruling on the ballot title provisions alone would not resolve whether the election notice of Issue 1A was in substantial compliance with Amendment 1. Therefore, we examine the meaning of "tax increase" with respect to the ballot title requirements and as it appears in the other election notice provisions.

We conclude a tax extension is not a tax increase within the meaning of Amendment 1's election notice provisions. Accordingly, the election notice requirements for tax increases do not apply to Issue 1A. The trial court erred as a matter of law when it determined as a preliminary matter that the election notice requirements for tax increases apply to tax extensions and, consequently, the notice of election was not in substantial compliance with Amendment 1. Thus, we reverse the summary judgment of the trial court.

II. Jurisdiction

Upon request of the court of appeals, we accepted transfer of this case under section 13-4-110(1)(a), C.R.S. (2005).⁴ The court of appeals has original jurisdiction for appeals from the district court concerning proceedings initiated under article X, except for summary proceedings. § 13-4-102(1)(g), C.R.S. (2005);⁵ see Busse v. City of Golden, 73 P.3d 660, 662 (Colo.2003). We exercise jurisdiction here because the subject matter of this case concerns a significant state constitutional question of first impression.

III. Analysis

Claims brought to enforce Amendment 1's election provisions are measured by a "substantial compliance" standard. Bickel v. City of Boulder, 885 P.2d 215, 227 (Colo. 1994). Elections will be set aside only where clear grounds for such action exist. See id.; see also F.T. Havens v. Bd. of County Comm'rs, 924 P.2d 517, 524 (Colo.1996). In Bickel, we set forth a number of factors to consider when determining whether a measure substantially complies with Amendment 1:

(1) the extent of the district's noncompliance with respect to the challenged ballot issue, that is, a court should distinguish between isolated examples of district oversight and what is more properly viewed as systemic disregard of ...