Bruce v. City of Colo. Springs

• Decision Date: 10 June 2010
• Docket Number: No. 09CA1541.,09CA1541.
• Citation: 252 P.3d 30
• Parties: Douglas BRUCE, Plaintiff–Appellant,v.CITY OF COLORADO SPRINGS, a home rule city and Colorado municipal corporation; Title–Setting Board; and Patricia Kelly, Cindy Conway, and Robert Briggle, in their official capacities as members of the City Title–Setting Board, Defendants–Appellees.
• Court: Colorado Court of Appeals

252 P.3d 30

Douglas BRUCE, Plaintiff–Appellant,

v.CITY OF COLORADO SPRINGS, a home rule city and Colorado municipal corporation; Title–Setting Board; and Patricia Kelly, Cindy Conway, and Robert Briggle, in their official capacities as members of the City Title–Setting Board, Defendants–Appellees.

No. 09CA1541.

Colorado Court of Appeals, Div. VI.

June 10, 2010.

Douglas Bruce, Pro Se.Patricia K. Kelly, City Attorney, Shane White, Senior City Attorney, Colorado Springs, Colorado, for Defendants–Appellees.Opinion by Judge GRAHAM.

Plaintiff, Douglas Bruce, appeals the trial court's order issued after remand from an earlier appeal to this court, see Bruce v. City of Colorado Springs, 200 P.3d 1140 (Colo.App.2008) ( Bruce I ), concluding that the City of Colorado Springs's single subject ordinance set forth in section 5.1.503 of the City Code is not unconstitutional and that plaintiff's petition for an initiated ordinance violates the single subject rule. Plaintiff also appeals the trial court's order denying his motion seeking disqualification of the trial court judge. We affirm.

The relevant underlying facts are set forth in Bruce I, and we do not repeat them here. It suffices to say that plaintiff has unsuccessfully attempted to place an initiative on the municipal ballot that is intended to prevent the City's use of non-business enterprises to serve as “fronts for traditional governmental public works projects paid for by forced fees (taxes) outside TABOR's [Colorado Taxpayer Bill of Rights] spending limit.”

I. Compliance with C.A.R. 28

Initially, we note that plaintiff's briefs fail to meet the basic requirements of C.A.R. 28. The briefs fail to set forth a table of contents, a table of cases, a statement of the issues presented for review, a summary of the argument or any designation to the record other than bare references to certain exhibits. The briefs also lack case citations, applicable standards of review, and certifications that the briefs comply with C.A.R. 28. Ordinarily, we would summarily strike plaintiff's briefs and dismiss the appeal. However, in numerous cases filed with this court, plaintiff has often contended that he has been denied his day in court. In addition, the issues raised here are of public concern.

Under these rare circumstances, we have determined that it is in the public interest to consider plaintiff's briefs and the issues raised therein. See Barr Lake Vill. Metro. Dist. v. Colo. Water Quality Control Comm'n, 835 P.2d 613, 615 (Colo.App.1992) (division considered issues in deficient brief).

However, plaintiff is cautioned that, in the future, his failure to comply with C.A.R. 28 or other applicable appellate rules may result in striking the noncomplying brief or other appropriate sanctions, including dismissal. See C.A.R. 38(e); State ex rel. Dep't of Corr. v. Pena, 788 P.2d 143, 147 (Colo.1990) (when confronted with a party's failure to comply with the appellate rules, an appellate court should consider the full range of possible sanctions and select the one most appropriate under the circumstances presented in a particular case).

II. The City's Single Subject Ordinance

The current and applicable version of the City's single subject ordinance, section 5.1.503, provides in relevant part:

A. Legislative Finding: The City Council hereby finds that a single subject requirement for initiatives is necessary to prohibit the practice of “log rolling” whereby diverse and unrelated matters are passed as one matter because no single matter could be passed on its own merits. Council further finds that this single subject limitation on initiatives submitted for voter approval facilitates concentration on the meaning and wisdom of the proposal [,] preventing surprise and deception as to the matter being put to a vote. The Council hereby further finds that people have the right to petition their government through the initiative process. However, neither the Colorado Constitution nor the City Charter reserves to the people the right to exercise executive or administrative powers.

B. Single Subject Initiatives Required: The Initiative Review Committee, as well as the Title Board, shall ensure that initiatives contain only single subjects to enable voters to understand the subject matter of the initiative. Matters proposed for submission to the electorate must be necessarily or properly connected and not disconnected or incongruous.

The same single subject requirements are found in Colorado Constitution article V, section 1(5.5), and section 1 –40 –106.5, C.R.S.2009, which apply to statewide ballot measures.

The Colorado Constitution provides that the state title-setting board may not set the title of a proposed initiative if the initiative contains multiple subjects. Article V, section 1(5.5) provides:

No measure shall be proposed by petition containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any measure which shall not be expressed in the title, such measure shall be void only as to so much thereof as shall not be so expressed. If a measure contains more than one subject, such that a ballot title cannot be fixed that clearly expresses a single subject, no title shall be set and the measure shall not be submitted to the people for adoption or rejection at the polls. In such circumstance, however, the measure may be revised and resubmitted for the fixing of a proper title without the necessity of review and comment on the revised measure in accordance with subsection (5) of this section, unless the revisions involve more than the elimination of provisions to achieve a single subject, or unless the official or officials responsible for the fixing of a title determine that the revisions are so substantial that such review and comment is in the public interest. The revision and resubmission of a measure in accordance with this subsection (5.5) shall not operate to alter or extend any filing deadline applicable to the measure.

Colo. Const. art. V, § 1(5.5); see also Colo. Const. art. XIX, § 2(3) (“No measure proposing an amendment or amendments to this constitution shall be submitted by the general assembly to the registered electors of the state containing more than one subject, which shall be clearly expressed in its title....”).

Having set forth the relevant constitutional, statutory, and municipal single subject requirements, we now turn to plaintiff's arguments on appeal.

III. Constitutionality of the City's Single Subject Ordinance

Plaintiff contends that the City's single subject ordinance is unconstitutional because it was adopted without first holding a public election to allow voters to decide the matter through a state constitutional amendment and because it violates the right to petition. We are not persuaded.

We review de novo the constitutionality of a municipal enactment. Trinen v. City & County of Denver, 53 P.3d 754, 757 (Colo.App.2002).

An ordinance is presumed to be constitutional, and the party attacking it must establish its unconstitutionality beyond a reasonable doubt. Id. If an enactment can reasonably be construed so as to harmonize it with the constitution, that construction should be preferred. Id.

Article XX, section 6 of the Colorado Constitution states that a home rule city or town shall have

powers necessary, requisite or proper for the government and administration of its local and municipal matters, including power to legislate upon, provide, regulate, conduct and control:

...

d. All matters pertaining to municipal elections in such city or town, and to electoral votes therein on measures submitted under the charter or ordinances thereof, including the calling or notice and the date of such election or vote, the registration of voters, nominations, nomination and election systems, judges and clerks of election, the form of ballots, balloting, challenging, canvassing, certifying the result, securing the purity of elections, guarding against abuses of the elective franchise, and tending to make such elections or electoral votes non-partisan in character.

As pertinent here, this section gives municipalities all the powers of the General Assembly with regard to local and municipal electoral matters. Town of Frisco v. Baum, 90 P.3d 845, 847 (Colo.2004).

Colorado Constitution article V, section 1(9) also permits cities, towns, and municipalities to provide for the manner of exercising the initiative and referendum powers as to their municipal legislation:

The initiative and referendum powers reserved to the people by this section are hereby further reserved to the registered electors of every city, town, and municipality as to all local, special, and municipal legislation of every character in or for their respective municipalities. The manner of exercising said powers shall be prescribed by general laws; except that cities, towns, and municipalities may provide for the manner of exercising the initiative and referendum powers as to their municipal legislation.

(Emphasis added.)

We reject plaintiff's argument that the Colorado Constitution had to be amended by popular vote before the City could impose a single subject rule on municipal ballot initiatives. Under the Colorado Constitution, the City, as a home rule city, is authorized to enact ordinances establishing the manner in which municipal legislation is exercised, which clearly includes ordinances that require initiatives submitted for voter approval to contain only single subjects. We therefore reject plaintiff's contention that the City's single subject ordinance is unconstitutional because it was not submitted to statewide popular vote before it was enacted.

We also reject plaintiff's argument that the City's single subject requirement violates the right to petition. In so doing, we adopt the reasoning set forth in Campbell v. Buckley, 203 F.3d 738, 746–47 (10th Cir.2000), which upheld the constitutionality of the...