Buckley v. Chilcutt, 98SA378

• Citation: 968 P.2d 112
• Decision Date: 23 November 1998
• Docket Number: No. 98SA378,98SA378
• Parties: 98 CJ C.A.R. 5830 In the Matter of Statement of Sufficiency For 1997-98 # 40 (Medical Use of Marijuana): Victoria BUCKLEY, in her official capacity as the Secretary of State of the State of Colorado, Petitioner, v. Martin H. CHILCUTT, Respondent.
• Court: Supreme Court of Colorado

Page 112

968 P.2d 112

98 CJ C.A.R. 5830

In the Matter of Statement of Sufficiency For 1997-98 # 40 (Medical Use of Marijuana) Victoria BUCKLEY, in her official capacity as the Secretary of State of the State of Colorado, Petitioner, v. Martin H. CHILCUTT, Respondent.

No. 98SA378.

Supreme Court of Colorado En Banc.

Nov. 23, 1998.

Gale A. Norton, Attorney General, Richard A. Westfall, Solicitor General, Paul Farley, Deputy Attorney General, Maurice G. Knaizer, Deputy Attorney General, State Services Section, Denver, for Petitioner.

Isaacson, Rosenbaum, Woods & Levy, P.C., Mark G. Grueskin, Edward T. Ramey, Denver, for Respondent.

Chief Justice MULLARKEY delivered the Opinion of the Court.

Pursuant to section 1-40-119, 1 C.R.S. (1998), the Secretary of State Victoria Buckley (Secretary) brought this direct appeal from the judgment of the Denver District Court which ordered her to certify initiative 1997-98 # 40, "Medical Use of Marijuana," for the 1998 general election. In so ordering, the district court rejected the Secretary's request that she be permitted to conduct a line-by-line determination of the sufficiency of the signatures submitted with the petition. The court equated errors made by the Secretary when issuing a statement pursuant to section 1-40-118(1), 1 C.R.S. (1998) with the secretary of state's "fail[ure] to issue a statement within thirty calendar days." § 1-40-118(1). Thus, the court invoked the statutory remedy for inaction by the Secretary and ordered the initiative to be placed on the ballot. See id.

Because the election date was fast approaching, the ballots already had been printed, and such ballots included this initiative, we issued an order summarily reversing the judgment of the district court. We directed that the Secretary conduct a line-by-line review of the signatures and that the votes cast for the initiative be counted only if the signatures were found sufficient. Our order stated that this opinion would follow.

I. Background

The facts underlying this case are not in dispute. Respondent Martin H. Chilcutt, a registered elector, is a proponent of a citizen-initiative petition that would amend the Colorado Constitution to authorize specified medical uses of marijuana for persons suffering from certain medical conditions. On July 7, 1998, he and other proponents timely submitted their initiative petition, designated 1997-98 # 40, to the Secretary for verification and determination of sufficiency of the petition signatures in order to certify the initiative for the 1998 general election. The constitutional formula required 54,242 signatures for an initiative to qualify for the 1998 general election ballot. The Secretary conducted a random sampling of 4,482 of the 88,815 signatures submitted. Her projection, based on the random sample, indicated that the petition contained 47,960 valid signatures or 88% of the requisite number to certify the Medical Use of Marijuana measure for the general election. Because the random sample indicated that the petition contained less than 90% of the required number of signatures, on August 6, 1998, the Secretary issued a statement determining that the petition was insufficient pursuant to section 1-40-116(4), 1 C.R.S. (1998).

On September 4, 1998, Chilcutt filed a timely protest in Denver District Court as permitted by section 1-40-118, 1 C.R.S. (1998). Following the filing, the Secretary conducted a supplementary review. A hearing was held on September 11, 1998 at which Chilcutt argued that the Secretary had erred in her initial review of the signatures. Chilcutt asserted that a correct assessment of the random sample indicated that the petition contained 96.4% of the required number of signatures. The Secretary, as a result of her supplementary review, conceded that fifty signatures previously declared invalid were in fact valid and that, based on this correction, the petition contained more than 90f the required signatures. The Secretary acknowledged that the initial statement determining the petition to be insufficient was issued in error and stipulated to this fact before the district court.

The Secretary argued that, pursuant to section 1-40-116(4), the law required her to conduct a line-by-line count. Because the deadline for certification of questions to the ballot was September 14, 1998, the Secretary offered to certify the measure to the ballot while she conducted the count. If the line-by-line count resulted in a conclusion that the measure contained a sufficient number of signatures, then the votes cast for the measure would be counted. If the measure did not contain the required number of signatures, then the votes would not be counted. Under this proposal, the proponents would retain the right to protest a new determination of insufficiency. According to the Secretary's proposal, if the proponents prevailed on an appeal, then the measure would be placed on the ballot in the year 2000, the year of the next general election.

At the protest hearing, the district court concluded that there was "no express authority for the secretary of state to do a line-by-line analysis outside the statutory parameters." Chilcutt v. Buckley, No. 98CV6940, slip op. at 15 (D.Ct. Sept. 11, 1998). In addition, the district court rejected the Secretary's proposal to print the initiative on the ballot while conducting a line-by-line count for certification. The district court reasoned that such a process would be "cumbersome, awkward, and messy" in addition to generating significant uncertainty. Id. at 16. Applying these concerns to the factors we set out in Rathke v. MacFarlane, 648 P.2d 648, 652-53 (Colo.1982), the district court concluded that injunctive relief was appropriate and ordered the Secretary to certify the initiative for the ballot because of the state's policy "to favor enfranchising the voters of this state rather than creating potential disenfranchisement." Chilcutt, No. 98CV6940, slip op. at 16.

II. Analysis

A. The Initiative Process

We begin our analysis with relevant background regarding the initiative process. The process is governed by Colorado Constitution article V, section 1 and sections 1-40-101 to 134, 1 C.R.S. (1998). Initiative proponents circulate copies of an initiative petition in order to accumulate the constitutionally required number of signatures from "registered electors." See Colo. Const. art. V, § 1(2); § 1-40-111(1). In order to qualify for the ballot, an initiative must have signatures from registered electors totaling "at least five percent of the total number of votes cast for all candidates for the office of secretary of state at the previous general election." Colo. Const. art. V, § 1(2). A petition required 54,242 signatures to qualify for the ballot in the 1998 general election. The Secretary is required to verify the signatures on the initiative petition. See § 1-40-116(2). The Secretary conducts the first step of the verification process through random sampling. See § 1-40-116(4).

If the random sample indicates that the petition as a whole contains less than 90% of the required number of valid signatures, then the statute deems the petition to be "not sufficient." See id. If the random sample indicates that the number of valid signatures equals or exceeds 110% of the number required for certification, then the statute deems the petition "sufficient." See id. If the random sample indicates that the number of valid signatures is greater than 90% but less than 110% of the requisite number, then the Secretary is required to "order the examination and verification of each signature filed." Id. If this "line-by-line" count indicates that the petition contains the constitutionally required number of signatures, 54,242 for the 1998 election, the initiative must be submitted to the people "for adoption or rejection at the polls." See Colo. Const. art V, § 1(7). The Secretary's authority to conduct a line-by-line examination is at issue in this case.

Article V, section 1 of the Colorado Constitution and sections 1-40-116 to -119, 1 C.R.S. (1998) govern the timing of the initiative process. Article V, section 1(2) of the constitution requires that an initiative petition must be filed with the Secretary at least three months before the general election on which it is to be voted upon. Once a petition has been filed, the Secretary is required to issue a determination of sufficiency of the signatures within thirty days. See § 1-40-118(1). If the Secretary finds the number of signatures is insufficient, the proponents have fifteen days to cure the insufficiency provided the new signatures are submitted at least three months before the election. See § 1-40-117(3)(b). The cure option was not available to the initiative proponents in this case because they could not meet the three-months deadline.

A statutory remedy is provided for the Secretary's failure to act within thirty days: "If the secretary of state fails to issue a statement within thirty calendar days, the petition shall be deemed sufficient." § 1-40-118(1). If the Secretary issues a statement of sufficiency, any registered elector may file a protest within thirty days after the Secretary issues the statement. See id.

Nothing in the statute expressly addresses the situation now before us. The Secretary admittedly made mistakes and excluded some valid signatures when she randomly sampled the signatures. However, when the errors were corrected, the sample still contained insufficient signatures to automatically qualify the initiative for the ballot under section 1-40-116(4). Rather, the corrected random sample came within the range (more than 90% but less than 110%) of section 1-40-116(4) that requires a line-by-line count of all signatures. The protest section of the statute, section 1-40-118(2), allows any registered elector to challenge defects in the Secretary's random sample, but the section is silent as to the remedy available under the...